Statistics based on hard facts tell a lot more than law firms with a financial objective and appeal to authority like "innovation" myths

Summary: Activity at the Patent Trial and Appeal Board (PTAB) is up, the Federal Circuit is supportive of PTAB's activities, and patent trolls lose their patents (which is all they really have)

AT THE EPO there are severe issues that have been further exacerbated by an oppressive regime. At the USPTO, by contrast, things are improving (except for 'professional' litigators like patent trolls). How do we know? Just look at the hard numbers. The EPO is running out of patent applications (the number is decreasing) while granting them at an alarming rate which indicates sloppy (rushed due to pressure from management) examination. Contrariwise, numbers are up at the USPTO and examination becomes stricter. PTAB is getting involved.

"The Federal Circuit affirmed the PTAB on every issue in 219 (73.99%) cases," a very large law firm said the other day. That figure used to be ~79% in 2016 and early 2017 (maybe by a slightly different criterion or definition other than "on every issue"). But it's still very high. It means that in 3 out of 4 cases a high court fully justifies decisions made by PTAB. That's a very high affirmation rate and serves to prove PTAB's competence.

Here's one paragraph with some more statistics, which are hard for lawyers to manipulate because they're derived directly (and exhaustively, not from a cherry-picked sample) from the "data", which is unambiguous court decisions:

Through January 15, 2018, the Federal Circuit decided 296 PTAB appeals from IPRs and CBMs. The Federal Circuit affirmed the PTAB on every issue in 219 (73.99%) cases, and reversed or vacated the PTAB on every issue in 34 (11.49%) cases. A mixed outcome on appeal, where at least one issue was affirmed and at least one issue was vacated or reversed, occurred in 31 (10.47%) cases.

Here's more: "Of the 296 PTAB appeals it has considered thus far, the Federal Circuit has issued Rule 36 affirmances in 136 (45.95%) cases. The court issued written opinions, including affirmances, reversals, dismissals, and mixed decisions, in 160 (54.05%) cases."

It's infeasible for this court to look into every single appeal and also issue a written decision/determination for each; we're talking about thousands per year! Overall, what we're seeing here is very good. Think of it as patents cleanup. They garden the database of patents, removing from it patents that simply do not belong there.

Here's another new bit of statistics: "Group 1600 patent challenges at the Patent Trial and Appeal Board hit an all-time high last year, reveals a report from Fish & Richardson."

Managing IP says "PTAB smashes record in 2017" (by "record" it means all-time high, in line with the overall trend at PTAB).

PTAB is worth guarding because it's under attack by the litigation 'industry'. Public support for PTAB is necessary and later in the weekend we'll say more about that.

Michael Loney has some more statistics about PTAB. "Petition filing at the Patent Trial and Appeal Board was up slightly in January," he wrote. PTAB sets new records every year, so this is hardly surprising. To quote:

In January 137 petitions were filed at the Patent Trial and Appeal Board (PTAB). This was up slightly on 134 in December 2016.

Last year, an average 149.9 petitions were filed a month.

Anticipat, which is clearly anti-PTAB, wrote that "January 29, 2018 was a very quiet day for ex parte appeals decisions at the PTAB. Especially as two of the four decisions were interference judgments. Here is the executive summary of the 4 issued decisions" (there's a picture/chart there).

Unified Patents, a firm which helps eliminate bad patents through PTAB, reported 3 days ago that it had gone after a troll which we wrote about a year ago. As Unified Patents put it: "On February 8, 2018, Unified, represented by Haynes and Boone, filed a petition for inter partes review (IPR) against U.S. Patent 9,462,074 owned and asserted by Sound View Innovations, LLC, a well-known NPE. The '074 patent, directed to "caching techniques to support streaming media storage and distribution in a network," has been asserted in multiple cases against such companies as Facebook and Hulu."

Unified Patents also goes after a Hailo patent (last mentioned here a year ago) and it is succeeding so far. To quote a post from 5 days ago:

On February 6, 2018, the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims in an IPR filed by Unified against U.S. Patent 5,973,619, owned and asserted by Hailo Technologies, LLC, a subsidiary of Red Dragon Innovations, LLC and well-known NPE. The '619 patent, directed to a taxi dispatch and payment system, has been asserted in multiple district court cases against such companies as Uber and Lyft.

Notice how Unified Patents specifically targets patent trolls. Who would say that it's a bad thing? Only defenders of patent trolls, whom we'll name later in the weekend (they really hate Unified Patents).

Professor Risch, whom we respect (he used to write a lot about patent trolls), takes note of the latest data from Lex Machina. It's behind a sort of paywall (if you can afford it/willing to lose anonymity), but he summarises it as follows: "The @LexMachina year in review has a lot of useful data in it (and it reviews more than a year in a lot of areas) [...] Data from @LexMachina Report on Litigation shows that number of patent defendants sued was lowest in 10 years - lower than 2008 levels."

That is very good news. Litigation should only be a last resort, unless one is purely in the litigation 'industry' (as patent trolls are). Speaking of patent trolls, one of them blogged about the above data, noting that the "Eastern District of Texas still the top venue but new cases drop 48%" (consistent with what we saw and noted last year).

To quote:

“The Supreme Court’s decision on TC Heartland v. Kraft dramatically changed the landscape of U.S patent law by ending the dominance of Judge Rodney Gilstrap and the Eastern District of Texas and leveling the playing field for defendants,” said Owen Byrd, General Counsel and Chief Evangelist at Lex Machina. “Practicing patent law is now a whole new ballgame, with new districts, judges, law firms and attorneys rising to prominence – all of which underscores an even greater need for legal analytics to understand the behaviors and track records of opposing attorneys and presiding judges.”

Patent trolls are very concerned to be set adrift from the Eastern District of Texas, which they have become so reliant on ("reprehensible" people like Rodney Gilstrap). ⬆