Maier & Maier

PTAB Petitions Spike As BRI Era Closes

On October 10, 2018, the USPTO announced it would adopt the Phillips claim construction standard as of November 13, 2018. That means that as of yesterday, any petitions filed are no longer reviewed under the Broadest Reasonable Interpretation (BRI) standard that the PTAB had applied since its creation under the AIA. Instead, they will be reviewed under the Phillips standard for claim construction. For more information about the switch, read our post on the announcement here.

While the potential impacts of the change have been hotly debated, one month out from the announcement, we can be sure of one thing: Petitioners preferred BRI over Phillips. Over the 6 year history of the PTAB, there have been nearly 10 thousand petitions filed-an average of 121 per month, with a high of 237 in January of 2017.

In just 12 days this November, Petitioners filed at least 178 petitions, with a staggering 74+ coming the last day for BRI filings-November 12, 2018. That 178 petitions so far this November would already stand as the 8th highest month on record for filings before reaching the halfway point for the month.

It remains possible that the Phillips era may usher in even more filings in lieu of district court litigation and what impact the shift may have on the current 40% institution rate, but as of now Petitioners have given a final resounding endorsement of BRI.

The above statistics were obtained using the PostGrant Portal Insights feature, where you can find similar statistics and track individual proceedings, along with further searching capabilities.

Category: Firm News, General