`PTAB Discretionary Denials
`By Scott McKeown on July 24, 2020
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`APPLE 1071
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`Delaware Cases Slipping 4-6 Months
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`The practice of denying AIA trial petitions in view of competing district court trial dates
`has brought some negative attention to the Patent Trial & Appeal Board (PTAB) over
`the past few months. At the same time, patent litigation has increased over the first two
`quarters of the year by 20%. This surge has been greatly aided by the exploding
`popularity of the Western District of Texas (WDTX) with non-practicing entities
`district that the PTAB is increasingly deferring to in its discretionary denials based upon
`competing trial dates.
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`While Patent Owners are quick to point to a looming district court trial date as being set
`in stone, in reality, these dates are often reset once the PTAB hurdle is cleared.
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`While still a small data set, cases that are denied by the PTAB based upon a looming trial
`date have seen significant delays in some districts.
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`For example, in the patent suit heavy District of Delaware, 100% of the cases denied by
`the PTAB for an earlier trial date have be
`This is a significant delay that may militate in favor of institution given the relative speed
`of an 8-month PTAB trial schedule:
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`In the WDTX, 70% of trial dates initially relied upon by the PTAB to deny petitions have
`slid. While WDTX shows a lower average delay, this is li
`preference to push out dates on a recurring basis rather than more significant schedule
`remodels.
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`Taking all districts into account the average trial delay is 3 months, with a maximum of 7
`months. That said, with COVID-19 delaying trials scheduled for the last 4-5 months,
`delays will certainly increase further as the courts work through their growing backlog.
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`In the meantime, as one PTAB panel explained it, the PTAB has been firing on all
`cylinders.
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`Patents Post-Grant
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`Copyright © 2020, Ropes & Gray LLP. All Rights Reserved.
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