What Investors Need to Know About Covid-19's Impact on the PTAB....

Gaston Kroub

For investors with investments potentially impacted by patent litigation events, keeping apprised of goings on at the USPTO’s Patent Trial and Appeal Board (“PTAB”) is a must. The PTAB handles a variety of patent-related adversarial proceedings, including post-grant reviews and the ever-popular inter partes reviews (“IPRs”). IPRs are a first-line defense for many companies accused of patent infringement, who petition the PTAB for help in canceling all or some of the patent claims asserted against them. While IPRs remain an important part of modern patent litigation practice, PTO operations — including those of the PTAB — have not been immune from the impacts of the Covid-19 pandemic. Like just about everything else.

In fact, the PTAB issued its Covid-19 policies in mid-March, within weeks of the start of lockdowns around America. We know, thanks to a new blog post by Lex Machina, that IPR filings have gone up since the PTAB’s implementation of its Covid-19 protocol. Which may seem surprising, considering the general slowdown of business activity as a result of the pandemic. But when you consider that new patent cases are being filed in greater numbers, pandemic be damned, the continued appeal of the PTAB makes more sense. For one, IPR filings tend to track the filing of new patent cases, as accused infringers look to secure stays of those district court cases by getting IPRs on file quickly.

Another big piece of the puzzle has been the PTAB’s demonstration to the IP community that it can continue to function well despite the pandemic. Unlike courts, which have had a host of problems keeping cases moving, while also struggling with the disparate impact of Covid-19 in different geographical locations, the PTAB continues to offer a predictable approach to handling disputes before it. Yes, there is increased use of video and tele-conferencing, but the PTAB was heavily reliant on phone conferences even pre-Covid 19.

Perhaps more importantly, PTAB panels have continued to crank out both institution and final written decisions within the statutory time frames that those panels must adhere to. In the words of Lex Machina: “PTAB continued its trial flow in an effective, timely fashion. It has been reliable throughout this spring and summer, causing some parties to choose PTAB as a solution for stalled federal district court cases.” Put another way, the PTAB has risen to the Covid-19 challenge with aplomb. It is not a surprise, therefore, that the PTAB continues as a popular destination for patent disputes.