October 17, 2017

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Design Patent PTO Litigation Statistics (through July 1, 2017)

The statistics below reveal the current trends on proceeding breakdowns, institution rates, and outcomes of design patent PTO litigation. Since February 2017, with 13 additional design patent institution decisions the institution rate has remained relatively steady at 40% (from 37%), still significantly lower than the overall institution rate.

Year

IPR

PGR

Grand Total

2012

1

 

1

2013

5

 

5

2014

4

 

4

2015

3

 

3

2016

17

4

21

2017

7

1

8

Grand Total

37

5

42

II. Institution Rates/Case Statuses

The institution rate for design patents, for both claims and proceedings, is 40% (16/40).

For cases overall, the proceeding institution rate is 70%, and the claim institution rate is 62%.

Here is a breakdown of the current case statuses for all of the design cases:

Status

Total

Final Written Decision

8

Instituted

8

Institution Denied

24

Pending

1

Settled Prior to Institution

1

Grand Total

42

III. Final Written Decision (FWD) Outcomes

A. Claim Cancellation Rate

The instituted claim has been cancelled in 6 of 8 design FWDs (75%).  The overall claim cancellation rate is 79%.

B. FWD Ground Type

 

FWD Ground Type

 

Grand Total

Claim Outcome

102/103

103

 

Not Unpatentable

2

0

2

Unpatentable

3

3

6

Grand Total

5

3

8

C. FWD Prior Art Type

Trial Number

FWD Ground Type

FWD Prior Art Type

IPR2016-00130

102/103

NPL

IPR2015-01453

102/103

NPL

IPR2015-00416

103

NPL/Patent

IPR2015-00306

103

Patent

IPR2013-00580

102/103

Patent

IPR2013-00501

102/103

Patent

IPR2013-00500

102/103

Patent

IPR2013-00072

103

Patent

 

FWD Prior Art Type

 

Claim Outcome

Patent

NPL

Both

Grand Total

Not Unpatentable

0

2

0

2

Unpatentable

5

0

1

6

Grand Total

5

2

1

8

IV. Technology Areas

Tech Area

#

Footwear

15

Household Items

11

Construction

4

Retail Fixtures

4

Automotive

2

Apparel

1

Aviation

1

Electronics

1

Furniture

1

Gaming

1

Medical Devices

1

 

Patrick Murray contributes to this article.

© 2017 Sterne Kessler

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About this Author

Mark W. Rygiel, Intellectual Property, Sterne Kessler Law Firm
Director

Mark Rygiel, a director in the Mechanical Group, counsels a broad spectrum of entities ranging from large multi-national companies to small start-ups in developing IP strategies and protecting new technologies.  Mr. Rygiel specializes in obtaining utility and design patent protection for cutting edge technologies in the consumer product, vehicle system, medical device, manufacturing, and e-commerce industries.  His practice also focuses on complex post-grant proceedings at the USPTO, analyzing patents for validity, infringement, and freedom-to-operate issues and providing related opinions...

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