At the end of each fiscal year running from October 1 through September 30, the Patent Trial and Appeal Board (“PTAB”) provides a summary of its trial statistics. [1] This information provides practitioners with useful insight into trends at the PTAB regarding petitions filed, institution rates, and outcomes. This blog post highlights the statistics and trends at the PTAB for Fiscal Year 2024 (“FY24”).

Petitions Filed

In FY24, 1,288 petitions were filed. Out of these petitions, 97% were for inter partes review (“IPR”) and 3% were for post grant review (“PGR”). [2] Additionally, the PTAB categorized the petitions filed by technology, which showed: 69% electrical/computer, 22% mechanical and business method, 6% bio/pharma, 3% chemical, and less than 1% design. [3]

The FY24 trends for petitions filed were consistent with the trends over the last three years. In FY23, 98% of petitions filed were for IPRs and 2% were for PGRs. The petitions filed sorted by technology for FY23 were categorized as: 69% electrical/computer, 20% mechanical and business method, 7% bio/pharma, 3% chemical, and 0% design (although 5 design petitions were filed). [4] In FY22, 97% of petitions filed were for IPRs and 3% were for PGRs. The petitions filed sorted by technology for FY22 were categorized as: 65% electrical/computer, 23% mechanical and business method, 7% bio/pharma, 4% chemical and 0% design (although 6 design petitions were filed). [5] In FY21, 93% of petitions filed were for IPRs and 7% were for PGRs. The petitions filed sorted by technology for FY21 were categorized as: 65% electrical/computer, 23% mechanical and business method, 7% bio/pharma, 6% chemical, and 0% design (although 3 design petitions were filed). [6]

Institution Rates

In general, it is helpful for PTAB practitioners to understand the institution rate trends to best advise their clients. However, it is particularly helpful to know the institution rates by technology. Institution rates alone cannot determine the outcome of a petition or patent at the PTAB, but it is one of many factors that may be considered.

In FY24, 68% of petitions were instituted. According to the PTAB, 740 petitions were instituted and 347 petitions were denied institution. [7] When assessing the institution rates by patent, the data showed that 74% of patents were instituted. Specifically, 650 patents were instituted and 229 patents were denied institution. [8] This was a 6% higher institution rate than by petition.

The PTAB also provided data for the institution rates by the type of technology. Although bio/pharma accounted for only 6% of the total petitions filed, 73% of bio/pharma petitions were instituted. Electrical/computer and mechanical and business method technologies also resulted in institution rates of greater than 50% at 69% and 66%, respectively. Chemical petitions had an institution rate of 46% and design petitions had a 0% institution rate. [9]

Outcomes

1,212 petitions reached an outcome  at the PTAB between October 1, 2023 and September 30, 2024. Out of the total petitions, approximately 38% (446 petitions) reached final written decisions. Out of those that reached final written decisions, 26% (312 petitions) of the total petitions were all unpatentable, 6% (67 petitions) were all patentable, and 6% (67 petitions) were a mix of patentable and unpatentable. Additionally, 28% (338 petitions) were denied institution, 32% (387 petitions) settled, 2% (19 petitions) requested adverse judgment, and 2% (22 petitions) were dismissed. [10]

Source: The data for this chart can be found at https://www.uspto.gov/sites/default/files/documents/ptab_aia_fy2024__roundup.pdf

Similar outcomes were reported for outcomes sorted by patents. There were 1,037 patents that reached an outcome at the PTAB between October 1, 2023 and September 30, 2024. Out of the total patents, approximately 39% (416 patents) reached final written decisions. Out of those that reached final written decisions, 27% (284 patents) of the total patents were all unpatentable, 6% (67 patents) were all patentable, and 6% (65 patents) were a mix of patentable and unpatentable. Additionally, 24% (252 patents) were denied institution, 30% (312 patents) settled, 2% (16 patents) requested adverse judgment, 2% (17 patents) were dismissed, and 2% (24 patents) had mixed outcomes. [11]

Source: The data for this chart can be found at https://www.uspto.gov/sites/default/files/documents/ptab_aia_fy2024__roundup.pdf

The PTAB also provided statistics for outcomes sorted by claims challenged. In FY24, there were 17,827 claims challenged. Out of the total claims challenged, approximately 38% (6,891 claims challenged) reached final written decisions, where 30% (5,400 claims challenged) of the total claims challenged were unpatentable and 8% (1,491 claims challenged) were patentable. Additionally, 24% (4,355 claims challenged) were denied institution, 31% (5,603 claims challenged) were challenged but did not reach a final written decision, 4% (766 claims challenged) were disclaimed, and 1% (212 claims challenged) were dismissed. [12]

Source: The data for this chart can be found at https://www.uspto.gov/sites/default/files/documents/ptab_aia_fy2024__roundup.pdf

The statistics show that less than 50% of petitions, patents, or claims challenged reached a final written decision at the PTAB. Of the less than half that did reach a final written decision, a significant percentage were all unpatentable. For example, 416 patents reached a final written decision. Out of the 416 patents to reach a final written decision, approximately 68% of patents were all unpatentable and only about 16% were all patentable.

Additionally, there has been a slight upward trend over the past few years for all unpatentable patents with a final written decision, with the trend appearing to begin to level out from FY22 to FY24. The percentage of total patents to reach an outcome with a final written decision of all unpatentable was 27% in FY24, 28% in FY23, 26% in FY22, 17% in FY21, 24% in FY20, and 20% in FY19. [13]

Conclusion

Overall, the most recent trends at the PTAB provide practitioners with useful information. For example, although bio/pharma petitions accounted for only 6% of total petitions filed, the PTAB’s statistics show that the bio/pharma petitions had the highest institution rates. Similarly, 46% of chemical petitions were instituted despite making up only 3% of total petitions filed. This information may be useful for practitioners assessing the likelihood of success for institution, depending on the technology.

However, the trends for outcomes show that only a small percentage of patents are upheld in whole (6%) or in part (6%). For patent owners, this indicates a lower likelihood of success at the PTAB. Additionally, the success rate for patent owners appears to be on a downward trend, based on the data from recent years. On the other hand, the same data shows that 27% of patents are unpatentable, which indicates a comparatively higher likelihood of success for patent challengers. Ultimately, it is important for PTAB practitioners to understand the most recent PTAB trends to provide the best representation for their clients because the data has the potential to inform both strategy and risk analysis.

More information about the PTAB’s trial statistics for FY24 may be found at: https://www.uspto.gov/sites/default/files/documents/ptab_aia_fy2024__roundup.pdf.

Sources:

[1] See Statistics, USPTO, https://www.uspto.gov/patents/ptab/statistics (last visited Dec. 26, 2024).

[2] See PTAB Trial Statistics FY24 End of Year Outcome Roundup IPR, PGR, USPTO, 3 https://www.uspto.gov/sites/default/files/documents/ptab_aia_fy2024__roundup.pdf (last visited Dec. 20, 2024).

[3] See id. at 4.

[4] See PTAB Trial Statistics FY23 End of Year Outcome Roundup IPR, PGR, USPTO, 3-4, https://www.uspto.gov/sites/default/files/documents/ptab_aia_fy2023__roundup.pdf (last visited Dec. 20, 2024).

[5] See PTAB Trial Statistics FY22 End of Year Outcome Roundup IPR, PGR, USPTO, 3-4, https://www.uspto.gov/sites/default/files/documents/ptab__aia_fy2022_roundup.pdf (last visited Dec. 20, 2024).

[6] See PTAB Trial Statistics FY21 End of Year Outcome Roundup IPR, PGR, USPTO, 3-4, https://www.uspto.gov/sites/default/files/documents/ptab_aia_fy2021__roundup.pdf (last visited Dec. 20, 2024).

[7] See supra, PTAB Trial Statistics FY24 End of Year Outcome Roundup IPR, PGR, at 6.

[8] See id. at 7.

[9] See id. at 8.

[10] See id. at 10.

[11] See id. at 11.

[12] See id. at 12.

[13] See id. at 11 (providing FY24 percentage); see also supra PTAB Trial Statistics FY23 End of Year Outcome Roundup IPR, PGR at 11 (providing FY23 percentage); supra PTAB Trial Statistics FY22 End of Year Outcome Roundup IPR, PGR at 12 (providing FY22 percentage); supra PTAB Trial Statistics FY21 End of Year Outcome Roundup IPR, PGR at 12 (providing FY21 percentage); PTAB Trial Statistics FY20 End of Year Outcome Roundup IPR, PGR, USPTO, 14, https://www.uspto.gov/sites/default/files/documents/ptab_aia_fy2020_roundup.pdf (last visited Dec. 26, 2024) (providing FY20 percentage); PTAB Trial Statistics FY19 End of Year Outcome Roundup IPR, PGR, USPTO, 14, https://www.uspto.gov/sites/default/files/documents/ptab_aia_fy2019_roundup.pdf (last visited Dec. 26, 2024) (providing FY19 percentage).