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Though it was only created within the last few years under the America Invents Act of 2012, the Patent Trial and Appeal Board (PTAB) has been the situs of much intellectual property drama and bloodletting. Generally, boards that are this young need even a decade or two to pass before lawyers can start generating a nice spreadsheet of precedential cases.
But the recent tidal wave of PTAB appeals before the Federal Circuit has reminded us of the importance of in house counsel's understanding of the whole PTAB process.
The Professionals Do the Work
This is how the numbers break down so far. About half of the AIA cases are decided on the merits. The other half get as far as the Federal Circuit through the appeals process, post-grant. Inside Counsel estimates that if there are 1,000 post-grant petitions, about an extra 250 cases that grace the PTAB will go through the full appeals system each year. They crunched the numbers and found that it worked out to be about an extra 20 cases for each week that the Federal Circuit is in session.
Those challenging the PTAB should really take a closer look at the affirmation rates -- which are sobering. If a PTAB case is appealed, there's greater than an 80 percent chance that the Federal Circuit will affirm the ruling. For in house counsel, this means great news for applicants, and not such great news for challengers.
Sign Posts and Barriers
Since the PTAB is only a few years old, it was inevitable that issues of first impression would make it to the Federal Circuit. These issues relate to the reviewability of the higher court in questioning the way the PTAB runs its ship.
Still New Area
As the agency ages, these rules will spread their roots into the ground and take firmer hold, thereby giving attorneys a clearer idea of the best way to negotiate through the PTAB process. In general, it appears that main function of the PTAB thus far is to act as a buffer between the lower courts and the Federal Circuit, thereby streamlining the appeals process. This is not to say that the circuit court will simply assent to anything the PTAB rules, but knowing of the circuit's general deference to the PTAB will at least help with counselors' nerves.