USPTO Considers Record Number of Requests for Patent Reexamination
In fiscal year 2011 the USPTO initiated a total of 1133 patent reexamination proceedings (both ex parte and inter partes). The 2011 tally represents an overall increase in filings of about 7% relative to 2010 numbers.
Interestingly, while ex parte filings receded slightly, inter partes filings surged by 33% relative to 2010. In FY 2011 374 requests for inter partes patent reexamination were filed.
USPTO statistics for 2011 are found (here)
Ex parte patent reexamination proceedings are typically disfavored over inter partes reexamination proceedings as being too one-sided, and historically biased in favor of patent holders. Likewise, as patent reexamination is increasingly employed as a litigation tool, it is not surprising that the more robust proceeding is now surpassing ex parte filings (especially now that most issued patents qualify by virtue of being filed as applications on or after 11/29/1999)
On the one year enactment anniversary of the America Invents Act (AIA), inter partes patent reexamination (IPX) will be replaced by Inter Partes Review (IPR). The USPTO will gradually implement Inter Partes Review over the first four years by limiting the proceeding to the first 281 filers. This limit was established by the AIA as a control to keep the Office from being overwhelmed in the early implementation stages of this new AIA proceeding.
The 281 filing cap is based upon the total inter partes patent reexamination filings for 2010. (fiscal year concluding before passage of the AIA)
Based upon the current market demand for IPX filings, the USPTO may find themselves up against the 2010 limit very quickly.