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The results of a recent update to the PTAB Multiple Petition Study show Petitioners face an uphill battle when attempting to utilize a multiple petition strategy. These results, discussed during the December 10, 2020 Boardside Chat, show a notable decrease in the success rate of both serial and parallel petitions filed in the past few years. A “serial” petition, as defined in the study, involves the same petitioner filing petitions on the same patent more than ninety days apart. A parallel petition, on the other hand, is defined as petitions filed by the same petitioner, on the same patent, less than or at ninety days apart. While there are some circumstances where petitioners have found success, petitioners generally should not count on multiple bites at the apple.
Introduction
The authors have recently proposed alternative analyses for the discretionary denial of IPR and PGR petitions involved in parallel district court litigation, as well as for the discretionary denial of serial petitions filed before the Patent Trial and Appeal Board (“PTAB”). The PTAB is also currently at a crossroads with yet a third similar but distinct issue the discretionary denial of
parallel petitions filed before the PTAB. “Serial petitions” refer to multiple successive petitions challenging a particular patent that are filed by the same or different petitioners, whereas “parallel petitions” refer to multiple contemporaneous petitions challenging a particular patent that are filed by the same (or a related) petitioner. Although the PTAB has promulgated an analytical factor-based framework for evaluating the discretionary denial of serial petitions, the PTAB has not done so for parallel petitions. Rather, the Board has simply issued general guidance th