PTAB Filings Edged Upward in Q2 as IPR Withstood Another Set of Constitutional Challenges

In the second quarter of 2020, 380 petitions for America Invents Act (AIA) review were filed with the Patent Trial and Appeal Board (PTAB), including 356 petitions for inter partes review (IPR), two petitions for covered business method (CBM) review, and 22 petitions for post-grant review (PGR). The overall number of AIA review petitions filed in Q2 was 11.4% higher than the prior quarter, during which 341 petitions for AIA review were filed—the second quarterly increase in a row.

Those gradually increasing numbers came as the IPR regime withstood another constitutional challenge toward the end of Q2. Although the US Supreme Court resolved the Article III constitutionality of IPR in Oil States, the Court’s April 2018 opinion declined to foreclose other types of challenges against the program, explicitly stating that the ruling did not address the retroactive application of IPR nor due process concerns. On June 22, 2020, the Court denied three certiorari petitions raising those issues, each of which argued that the retroactive application of AIA review to patents issued before the AIA violates the Due Process and Takings Clauses of the Fifth Amendment: one filed by Quarterhill Inc. subsidiary Collabo Innovations, Inc. and the other two by Celgene and Enzo Life Sciences, respectively. The US government opposed each of those petitions.

See RPX’s second-quarter review for more coverage of recent PTAB developments, including a series of judicial rulings that imposed possible burdens on the Board and placed constraints on frequent petitioner-defendants.