After a heady 2020, 2021 proved to be a return to normalcy for the PTAB. While there was significant excitement early in the year about how the Supreme Court would rule in Arthrex, its decision in June mostly maintained the status quo. With the PTAB’s constitutional defect now cured, the post-grant world refocused its attention back to more typical matters – discretionary denial, institution reviewability, and the one-year time bar, among other issues. Filings at the PTAB in 2021 also reflect a general slowdown, with a decline of about 10% from 2020. Nevertheless, the PTAB remains the most active forum for patent disputes nationwide, handling significantly more matters in 2021 than both the Eastern and Western Districts of Texas and the District of Delaware.

Given the challenges of 2020 – a global pandemic, a deep economic recession, and a turbulent presidential election, among others – a slowdown in activity at the PTAB would not be unexpected. But a comparison of 2019 and 2020 statistics reveals that filings actually increased by about 15%, reversing a decline of about 30% between 2018 and 2019. The United States Patent and Trademark Office (USPTO) attributes this success to a two-year IT stabilization and modernization effort, which allowed the agency to transition 13,000 employees to remote work relatively seamlessly. The PTAB also became one of the first tribunals in the country to conduct virtual hearings, having held over 1,000 all-virtual hearings by year’s end.

The Patent Trial and Appeal Board (PTAB) remains the forum of choice for challenging the validity of patent claims. However, it is notable that a comparison of 2019 and 2018 statistics reveals about a 30 percent decline in filings. Under the guidance of its newly appointed chief judge, Scott Boalick, who assumed his new role in March 2019, the PTAB announced a new Pilot Program granting patent owners new options for motions to amend and a second update to the America Invents Act (AIA) Trial Practice Guide (TPG) relating to recent precedential decisions. Incidentally, 2019 also marked the eighth anniversary of the AIA. We saw important decisions from the Supreme Court in Return Mail—barring the federal government from initiating post-grant challenges—and from the United States Court of Appeals for the Federal Circuit in Arthrex, challenging the constitutionality of administrative patent judges.