On September 16th, 2012 the new post grant patent proceedings of the America Invents Act (AIA) became available to patent challengers for the first time. These proceedings have only been available for a few months, but there has been a robust demand for these proceedings with over 120 petitions filed in the first few months—many of which target NPE portfolios. This filing rate is equal to about one IPR petition per business day. The USPTO is estimating that as many as 300 petitions will be filed in the first 12 months of availability. This filing rate would be consistent with the demand for the predecessor proceeding, inter partes patent reexamination.
As a reminder, IPR allows challenges to suspect patents of any vintage in a speedier, more cost effective, and challenger friendly manner relative to that of the federal district courts. That is to say, for the very first time, there is a true, accelerated alternative to patent litigation. The new post grant proceedings of the USPTO’s Patent Trial & Appeal Board (PTAB) will conclude in a fast enough time (12-18 months) to transform the existing litigation landscape in a manner that will significantly undermine the NPE patent litigation business model.
Breaking down the petitions to date, close to 50% target entities that are considered by most to fall into the “patent troll” category. The category “other” reflects filings made against the patents of more traditional research entities, such as universities. (Click to Enlarge)