In Q2, PTAB Petitions Dipped as IPR Largely Survived Supreme Court Review in Arthrex
August 11, 2021
RPX data show that Patent Trial and Appeal Board (PTAB) petitions dipped slightly in the second quarter of 2021, as the inter partes review (IPR) system survived Supreme Court review in Arthrex—albeit in modified form.
In particular, the PTAB saw 361 petitions for America Invents Act (AIA) review in Q2, including 345 petitions for IPR and 16 petitions for post-grant review (PGR). Filings in Q2 were 5% lower than in the same quarter last year (when 380 petitions were filed) but were 7.1% higher than in Q1 2021 (which saw 337 petitions).
While AIA reviews remain largely intact after Arthrex, the timing of such validity challenges could still be impacted as a result of the Court’s June ruling. In that decision, the Court ruled that the appointment of the PTAB’s administrative patent judges (APJs) violated the US Constitution’s Appointments Clause because the USPTO director lacked the ability to sufficiently review their decisions. The Court’s solution was to give the director the authority to review and rehear IPR final written decisions himself or herself.
Yet the USPTO’s interim director review procedure implementing Arthrex, announced on June 29, went further than some were expecting by leaving the existing panel review procedure in place. The way this system is structured allows some PTAB litigants two bites at the apple: while the denial of a request for director review in the first instance takes panel rehearing off the table, a party that successfully requests panel review first can then seek director review of the resulting rehearing decision.
Going forward, one all but certain result of this new dual-review system will be a flood of additional rehearing requests, as parties previously limited to panel rehearing can now file requests for director review as well. That deluge of new requests could make impacted IPRs and PGRs take much longer to resolve, particularly for such cases that subsequently get appealed to the Federal Circuit.
For more on Arthrex, the PTAB, and other trends impacting patent litigation and the patent marketplace, see RPX’s second-quarter report.
