PTAB Petitions Dipped in 1H 2022 as Vidal Began Addressing Stakeholder Criticisms
September 7, 2022
In the first half of 2022, 688 petitions for America Invents Act (AIA) review were filed with the PTAB, including 669 petitions for inter partes review (IPR) and 19 petitions for post-grant review (PGR). Filings in the year’s first half were 1.4% lower than during the same period in 2021.
The second quarter saw 352 petitions for AIA review, including 341 IPR petitions and 11 petitions for post-grant review (PGR). Filings in Q2 were 4.8% higher than in the prior quarter (when 336 petitions were filed) but 2.5% lower than in Q2 2021 (which saw 361 petitions).
That slight decline came as USPTO Director Kathi Vidal began taking steps to refine and streamline PTAB procedures based on various stakeholder critiques. One of those changes was designed to address the perception that the USPTO director may exercise her authority to influence the outcomes of AIA review decisions. In May, Vidal announced a new procedure intended to insulate the PTAB’s Administrative Patent Judges (APJs) from any such pressure, under which a Circulation Judge Pool made up of non-management peer judges review and give feedback on pending decisions, all without the director’s involvement.
Another area of focus for Vidal has been the USPTO’s interim director review program, which gave the director the ability to rehear PTAB decisions as a result of the Supreme Court’s Arthrex decision. In addition to clarifying the proper basis for party requests seeking review of final decisions, the USPTO updated its guidance to clarify that the Director has the authority to initiate director review of institution decisions sua sponte (i.e., at her own initiative, without the request of a party). Vidal did so for the first time in June, deciding to review the PTAB’s decisions to institute trial in IPRs field by OpenSky Industries and Patent Quality Assurance (PQA) against VLSI Technology LLC—proceedings in which those third-party challengers, particularly OpenSky, have been accused of IPR gamesmanship.
See RPX’s second-quarter review for more on the PTAB and other trends impacting patent litigation and the patent marketplace.