In 2021, in more than 45% of all IPR institution decisions (420 of 918), the PTAB spent considerable time and resources dealing with the discretionary considerations under the NHK Spring-Fintiv rule. But with more than a year since Director Iancu stepped down from the USPTO, Fintiv and 314(a) denials have plummeted dramatically. In Q1 of 2022, only 37 petitions have been denied on procedural grounds, and such denials on procedural grounds are projected to decrease by 17% year-over-year as seen below.
In particular, there have been only ten 314(a) denials in the first quarter of 2022. 314(a) denials are projected to decrease by roughly 2/3rds when compared to last year. Conversely, there is an uptick in 325(d) denials, with a projected increase of 83% when compared to last year.
In total, there have been only 32 denials based on either 314(a) or 325(d) so far in 2022. Collectively, these denials are expected to drop by 25% when compared to last year and will be the lowest since 2019.
Since Q1 of 2021, 314(a) denials have dropped every quarter, unlike 325(d) denials which have increased most of the time.
When looking at all denials, 12.2% of denials were based on 314(a), while another 24% were other procedural-based denials.
Procedural denials that rely on 325(d) now occur 6.3% of the time.
When looking at 314(a) denial framework, interestingly General Plastic was the most used framework. NHK Spring/Fintiv based denials are projected to decrease by 85% in 2022. While the Board is spending more time addressing NHK Spring/Fintiv, these types of denials are becoming less and less common.
Looking overall, nearly 30% of all NHK Spring/Finitiv based denials since 2016 are NPE-based litigation.
The patent owners involved in NHK Spring/Fintiv based denials include both Operating Companies and NPEs. The top 10 patent owners involved in Fintiv denials account for 44% of all Fintiv denials. 4 of those patent owners are NPEs.
The Top-10 Fintiv denied petitioners encompass 63% of all Fintiv denials. Most of these companies are often targets of NPEs.
Taking this a step further, Unified examined specific cases where a party had filed a district court case against a party/parties and an unnamed defendant to the suit filed a petition at the PTAB with either the defendants named or on their own accord over the same patent. Since 2015 only 9% of all PTAB filings were from serial petitioners.
When a serial petitioner does file, 65.6% of the time it is against an NPE
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