Patexia Insight 14: Patent Litigation Down 16 Percent, IPR Up 5 Percent in Q3 of 2016
As Q3 of 2016 ended last Friday, we looked at the quarterly numbers for patent litigation in district courts as well as Inter-Partes Review (IPR) challenges filed before the PTAB. In those three months, there were 1,182 patent lawsuits filed in different district courts – down 16.5 percent from the Q2 total of 1,415. In terms of year-over-year comparison, we saw a 6.3-percent decline compared to the 1,261 cases filed in Q3 of 2015. IPR filing activity was up slightly in Q3. We also looked at the institution and final written decision rates based on the latest PTAB update as of October 1, 2016.
In the third quarter of 2016, 435 IPR challenges were filed before the Patent Trial and Appeal Board (PTAB), which was up 4.5 percent compared to Q2 (416 cases filed). Year-over-year, this is almost a 4 percent increase from the 419 cases filed in Q3 of 2015.
If we consider the PTAB as a venue for litigation, 450 cases were filed there, including 435 IPR, seven CBM and eight PGR cases. This places the PTAB as the primary venue for patent litigation, followed by Texas Eastern District Court (436 cases in Q3 of 2016).
During the just-concluded quarter, PTAB also updated the status of all IPR cases, now including several new types to better describe status and outcome. Patexia has updated its PTAB database and all cases reflect their new statuses. Additionally, users now can easily download the latest documents, such as final written decision, patent owner response, etc. for each IPR case, directly from Patexia lawsuit and PTAB search for free.
As of the end of Q3 of 2016, a total of 5,140 IPR challenges have been filed before the PTAB.
With the most updated statuses of IPR cases, we noticed about a third of the filings were denied the institution, while nearly 25 percent have received the final written decision and 12 percent have terminated due to settlement.
Also, 14 percent have been instituted and about 10 percent are still pending review. The following table summarizes the status of All IPR challenges filed from September 2012 through the end of the most recent quarter.
| IPR Status | No. of Cases |
|---|---|
| Terminated-Denied | 1690 |
| FWD Entered | 1258 |
| Instituted | 723 |
| Terminated-Settled | 624 |
| Notice OF Filing Date Accorded | 477 |
| PO Response Filed | 201 |
| Submitted | 51 |
| Terminated-Dismissed | 48 |
| Filing Date Accorded | 43 |
| Terminated-Adverse Judgment | 21 |
| Waiver Filed | 3 |
| Terminated-Other | 1 |
A few weeks ago, we released similar statistics for IPR (Is PTAB Really the Patent Death Squad?) and – as they were based on USPTO’s status, which is at the case level rather than patent level – the conclusions (i.e., decline in institution rate) were rightly questioned by a number of attorneys and IP experts. One concern was that, in many cases, multiple IPRs may have been filed on the same patent. While one may be instituted and kills all the claims listed in the petition, the rest may not be instituted. This will inflate the institution denial rate, albeit inadvertently.
In the coming weeks, we plan to release the institution rate and invalidation rate at the patent (claim) level. In order to do so, we must review the final written decisions for all IPR cases and identify invalidated claims. This study will show the true invalidation rate of all challenged patents at patent and claim level.