New survey shows COVID-19’s effect on petitions filed at USPTO
Patent petitions and disputes filed at the US Patent and Trademark Office (USPTO) increased earlier this year, soaring by 76% and 114% respectively in February, before falling the following month, a new survey tracking the effects of COVID-19 on the US legal system reveals.
The data, published by legal analytics company Lex Machina on August 6, shows that 162 new petitions were filed in February 2020 compared to 92 in February 2019. By contrast, 99 new petitions were filed in March 2020 compared to 126 in March 2019, a drop of 20%.
The survey also shows that in February 2020, 141 distinct patents were disputed in newly-filed petitions, more than double the 65 patents disputed in February 2019, while the number of patents disputed fell by 10% in March from 103 in 2019 to 93 in 2020.
According to Lex Machina, the drop in the number of petitions filed in March is likely due to official US government advice around COVID-19, which was issued in late February. Between March 1 to March 15, only 34 new petitions were filed, while the latter part of the month showed a significant rebound with 65 petitions filed – nearly double the first half of the month.
In addition to the drop in petitions filed in March 2020, the pandemic had a significant effect on the content of filings. From February 2020 to July 31, 2020, 75 filed petitions mentioned the current health crisis, using the keywords “COVID-19”, “coronavirus”, or “the pandemic”. While the majority of these mentions referred to procedural considerations, some petitioners argued that their petitions should be considered due to the extreme delays and unreliability of federal district court.
Despite the effects of the pandemic, the data shows that new petition filings are trending upwards from May onwards. There was a higher number of new petitions filed in 2020 than in 2019, rising by 19% in May, (127 in 2020 compared to 107 in 2019), 42% in June, (159 in 2020 compared to 112 in 2019), and by 41% in July, (159 in 2020 compared to 113 in 2019).
The number of patent challenges also steadily rose from May onwards, increasing 24% year-on-year in May (112 in 2020 compared to 90 in 2019), 45% in June (132 in 2020 compared to 91 in 2019) and 27% in July (126 in 2020 compared to 99 in 2019)
Geneva Clark, Lex Machina IP researcher, explains that the quick rebound in filing and petitions post-March is largely due to the USPTO’s Patent Trial and Appeal Board (PTAB)’s remote- friendly environment. “The court was built for the virtual world; it has been remote friendly since its inception, with trials moving forward at a reliable, undisrupted pace throughout the Covid-19 crisis. Looking at the data back to January, new filings and individual patents challenged were already trending up, year-over-year, which suggests the continued increases in April through July of 2020 may be due to PTAB growth that was already in process in 2020."
She added that increases in patent activity may be at least partly motivated by the venue using fewer resources compared to the federal courts, and its provision of an option to request extensions or a waiving of fees in mid-March. “USPTO director Andrei Iancu implemented new PTAB policies in October 2019 that were designed to conserve judicial resources and provide consistency in patent validity evaluations.
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