The number of patent disputes before the Patent Trial and Appeal Board dropped sharply in 2019. Womble Bond Dickinson attorney Brent Babcock frequently represents clients in PTAB proceedings and closely follows PTAB activity. So Scott Graham of Law.com reached out to Babcock for insights for the latest edition of “Skilled in the Art.”
After five years of remarkable consistency, in which PTAB filings ranged from 1,702 to 1,796, PTAB filings declined 23 percent in 2019 to 1,299.
Babcock tells Law.com that the decline is not coincidental and is related to actions taken by PTO Director Andrei Iancu. For example, Babcock said the PTO “has cracked down on multiple petitions challenging the same patent, adopted the same claim construction standard as the federal courts, and made claims easier to amend during IPR,” according to Law.com. These amended claims are more resilient to challenges in district court. As a result, petitioners are more reluctant to file challenges, Babcock said.
Babcock said that the overall patent invalidation rate of 39 percent is in line with the European Patent Office “and no one complains that the EPO is a patent killing machine,” he said.
Click here to read the Jan. 3 edition of “Skilled in the Art,” featuring comments by Brent Babcock (subscription required).
Also, click here to read Brent Babcock’s recent article on “Federal Circuit Says PTAB APJ Appointments Were Unconstitutional – Now What?”
Brent Babcock represents high-technology clients in every aspect of intellectual property disputes, focusing on federal district court litigation throughout the country, trials and post-grant patent proceedings before the USPTO's Patent Trial and Appeal Board and alternative dispute resolution (ADR) proceedings, including domestic and international arbitrations. His practice also includes pre-litigation counseling, pre-interference and post-grant proceeding consulting, and appellate briefing and oral argument before the United States Court of Appeals for the Federal Circuit.