PTAB Petitions Increased in Q2 as USPTO Faced Uncertainty After Chevron’s Fall

The Patent Trial and Appeal Board (PTAB) saw 329 petitions for America Invents Act (AIA) review in the second quarter of 2024, including 315 petitions for inter partes review (IPR) and 14 petitions for post-grant review (PGR). Filings were up by 9% compared to Q2 2023, which saw 301 petitions filed; but were flat compared to Q1 2024, during which 328 petitions were filed. Filing rates also held relatively steady in the first half of the year, which was up by just under 2% from that same period last year.

This increase from the second quarter of 2023 comes as the USPTO faces greater uncertainty over its ongoing efforts to reform various aspects of PTAB proceedings. In the past year, the agency has sought to use notice-and-comment rulemaking to set regulations governing prominent aspects of the AIA review system: One rulemaking proposal would essentially codify the interim director review process imposed after the Supreme Court’s Arthrex decision, while another proposal seeks to revamp and clarify certain aspects of how the Board handles discretionary denials.

However, the broader landscape of agency regulation could see a significant upheaval as a result of the Supreme Court’s June 28 decision in Loper Bright Enterprises v. Raimondo. That landmark case overturned a 40-year-old doctrine known as Chevron that required courts to defer to agencies’ legal interpretation of the statutes governing them when those laws were deemed ambiguous, which previously gave those agencies wide latitude to set various regulations.

Questions remain as to the extent Loper Bright will ultimately impact the USPTO, given that Chevron has been applied less frequently with respect to that agency’s regulations. Notably, the last time that the Supreme Court applied Chevron was in a patent case, Cuozzo Speed Technologies v. Lee, in which the Court deferred to a USPTO regulation that applied a different claim construction standard (broadest reasonable interpretation) in PTAB proceedings from the one used in district court (Philips). (The USPTO subsequently used this same authority to switch the PTAB over to Philips.) Moreover, the USPTO is somewhat unique in that it is overseen by a specialist appellate court, the Federal Circuit, that has never shown deference to the USPTO on substantive rulemaking. The Federal Circuit rarely applied Chevron in evaluating rules promulgated by the Patent Office, and though it has upheld some USPTO regulations challenged on that basis, the court did not reach a consensus on the proper bounds of Chevron deference as applied to USPTO regulations while Chevron was still in effect (failing to do so in its split Aqua Products decision in 2017).

Some have observed that Loper Bright may encourage opponents of current USPTO regulations to file litigation challenging those policies—including issues where the Federal Circuit did not previously decide the propriety of those regulations under Chevron, such as whether PTAB precedential opinions were entitled to such deference. As for policies yet to be finalized, such challenges could cause roadblocks and delays for the USPTO’s rulemaking proposals on discretionary denials, as described above, and other regulations recently proposed by the Patent Office (including the proposed codification of rules governing director reviews). Nonetheless, certain stakeholders (including Christopher “Kit” Crumbley, a former PTAB Lead Administrative Patent Judge) have argued that while litigation is likely, few rules are likely to be struck down, in part because the USPTO may still bolster its regulations under Skidmore by attempting to provide fulsome, “persuasive reasoning” justifying its relevant interpretations of the law.

See RPX’s second-quarter review for more on the PTAB and other key developments impacting patent litigation in Q2.