Patexia Insight 28: Analysis of Judges’ Decisions in Apple's IPR Challenges
This week, Patexia Data Science Team continued reviewing Apple’s IPR challenges. However, we turned our attention towards PTAB Panel of Administrative Judges. Given that Apple has been the most active company responsible for filing almost 5 percent of all IPR challenges through the end of 2016 (equal to 267 cases), we believe that analyzing its cases can be meaningful to many patent attorneys and IP litigators. And it could help them as they choose the right strategy and advise their clients. The goal of this investigation was to see the distribution of cases as well as decision types among different judges. 
In total, we learned that 68 judges were involved in denial, institution or final decision of Apple’s IPR cases. However, the top 10 most active judges were involved in 131 of 267 cases, or almost half of the cases filed by Apple.
|
Apple's IPR Challenges |
267 |
|---|---|
| Unique Judges | 68 |
In normal circumstances, a Panel of 3-Administrative Judges is assigned to each IPR challenge and one of these three judges writes the final decision. We reviewed all judges assigned to Apple’s IPR challenges and looked at their denial, institution and final written decisions.
As one of our readers had correctly pointed out after reading our Patexia Insight 27 (Analysis of Firms Representing Apple in IPR Challenges), neither a Final Written Decision nor a denied petition would mean an absolute win or loss for the petitioner. However, statistically speaking, the majority of cases that reach the final written decision phase have at least one or more of their claims invalidated. While this does not necessarily mean the patent is completely dead and the patent owner has lost all his patent rights, we use it as a metric to measure the success of an IPR, even though it could be a partial success.
The following table summarizes the cases judged by the top 10 most active judges on Apple’s IPR cases. Karl D. Easthom, who was one of the three judges in 48 cases, was at the top of the list. In 50 percent of his cases, the petition was denied.
| Admin. Judges | All Cases | Denied | Final Decision | Instituted |
|---|---|---|---|---|
| Karl D Easthom |
48 |
24 | 15 | 6 |
| Gregg I Anderson | 40 | 24 | 13 | 1 |
| Barbara A Parvis | 33 | 27 | 1 | 0 |
| Michael R Zecher | 28 | 18 | 2 | 6 |
| Michael P Tierney | 26 | 14 | 6 | 2 |
| Stephen C Siu | 25 | 15 | 6 | 2 |
| David C Mckone | 25 | 12 | 5 | 3 |
| Patrick R Scanlon | 24 | 21 | 1 | 1 |
| Jennifer S Bisk | 23 | 13 | 9 | 0 |
| Justin T Arbes | 21 | 14 | 2 | 2 |
We reported the overall status of Apple’s IPR cases as of January 2017 in our Patexia Insight 26 (Weekly Chart 26: Claim-Level Analysis of Apple’s IPR Cases). Based on our analysis of PTAB data, Apple’s petitions were denied in about 47 percent of cases. We added the status pie chart again here for the purpose of comparison with the decision of judges.
We examined the decisions further to discover the top 10 judges with the highest denial rate among those who judged Apple’s IPR cases. While we cannot draw a solid conclusion without getting into the details of each case, it was interesting to see that out of the 109 cases in which these judges were part of the decision, 97 cases were denied. That is approximately 36 percent of all Apple’s IPR challenges.
| Admin. Judges | All Cases | Cases Denied | Percentage |
|---|---|---|---|
| Benjamin D M Wood |
16 |
16 | 100% |
| Josiah C Cocks | 3 | 3 | 100% |
| Toni R Scheiner | 2 | 2 | 100% |
| Kerry Begley | 19 | 17 | 89% |
| Patrick R Scanlon | 24 | 21 | 88% |
| Barbara A Benoit | 14 | 12 | 86% |
| Jo-anne M Kokoski | 13 | 11 | 85% |
| Michael J Fitzpatrick | 12 | 10 | 83% |
| Kalyan K Deshpande | 6 | 5 | 83% |
Each IPR challenge is quite complex and there is not a single factor that one can analyze and discover the possible outcome. Technology area, affected products, market size, quality of prior art, petitioner’s and patent owner’s attorneys, judges and type of the case (NPE vs. Operating Companies) are among the many factors that can impact the final outcome.
We plan to expand this study and make it available as one of Patexia Research Tools to our users, allowing them to review the performance of each of the PTAB judges and compare their decisions to average based on the technology area, type of the company (NPE vs. Operating Companies) and activity (number of cases).
In the coming weeks, we will continue our review of Apple’s IPR cases, examining the types of patents challenged through IPR as well as the outcome, searching for any prevailing pattern there.