2011 Patent Reexamination Appeal Results (Q1-Q3)
As discussed last week, every quarter, the BPAI releases general statsistics on patent reexamination appeals. As promised, I have now gathered statistics that are specific to the type of reexamination proceeding. (Special thanks to the USPTO for providing me these figures).
Below are statistics from October 1, 2010 through May 20, 2011. Note that Q3 of FY 2011 has not yet closed, so, these statistics to not quite cover all of Q1-Q3. First let’s look at the overall statistics for 2011.
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As explained last week, the three year results for patent reexamination appeals indicate that the examiners of the Central Reexamination Unit are affirmed, at least partially, in roughly 70% of cases.
Preliminary results for FY 2011, as shown in the chart above by the number of filings and percentage x,y%, indicate that the affirmance rate is trending upward with roughly 80% of cases including some form of affirmance (61 % Affirmed, 19% Affirmed-in-part). Reversal rates are coming in at about 17%, which is slightly lower than 2009 and 2010 (see 2009 and 2010 stats here).
Below is the break out of these statistics into ex parte and inter partes patent reexamination categories.
Not surprisingly, as ex parte patent reexamination proceedings make up the bulk of the sample, these case closely track the general patent reexamination statistics.
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BPAI results in inter partes patent reexamination exhibit only slightly more variability. Affirmance rates in these proceedings is roughly 83% (affirmed 54%, in part 29%).
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As mentioned previously, an affirmance in inter partes patent reexamination is not always a victory for challengers as allowed claims are also subject to appeal in such proceedings.
While the ex parte patent reexamination statistics for FY 2011 are based upon a sample size that is double that of inter partes, it may be that the variation between the proceedings is just a statistical anomaly. Yet, one would expect examiner rejection to fare better on appeal when supported by the efforts of an additional party. The difference between absolute affirmance rates in inter partes and ex parte patent reexamination appears to be accounted for by a corresponding increase in the affirmance-in part rate of the inter partes proceedings. This may be a reflection of the cross appeal mechanism that is unique to this proceeding.
It is hoped the BPAI will publish future statistics to account for the type of reexamination proceeding.