The U.S. Patent Office regularly posts statistics on post-grant proceedings such as inter partes review and covered business method patent review. An excerpt of PTAB statistics for February 13, 2014 is found below. The acronyms “FWD” and “RAJ” stand for “Final Written Decision on the merits” and “Request for Adverse Judgment.” The “Other” category includes terminations due to dismissal.
The number of trials with a final written decision on the merits (FWD) remains relatively small because IPR proceedings take roughly about a year and a half from filing of a petition to conclusion, and the AIA provision allowing IPRs is only about 17 months old.
Interestingly, the data shows a relatively high number of settled IPR proceedings. These settlements can occur any time after the filing of the petition and before a final written decision on the merits. Therefore, these settlements are made within months of the Petition filing rather than years. Of course, all settlements are not equal. Some result in the termination of both the Patent Office proceeding and the concurrent District Court litigation. Others may only terminate the Patent Office proceeding. And, as discussed in earlier posts, some settlements may dismiss the Petitioner from the Patent Office proceeding but maintain the proceeding against the Patent Owner. Regardless, early settlements often favor the Petitioner and provide a “win” for the Petitioner. And even if that is not the case, settlements executed before a final decision on the merits provide another opportunity for early discussion and resolution of patent disputes.
It should be noted that IPRs are responsible for more settlements than can be provided by these statistics, because many disputes are resolved by settlements achieved prior to any filing of IPR petitions (i.e., in cases where the Patent Owner is afforded an opportunity to settle before an IPR petition is filed).
It will be some time before more accurate statistics on IPRs will be available, however these settlement statistics show that parties can achieve some resolution of patent disputes very early in post-grant proceedings, and likely much earlier than in traditional litigation time frames.