Rowan Analytics Insights
Patent Prosecution Analytics Benchmarking Report – August 2022

Examination of 112 Rejections in PGR Petitions

For the last three articles, Rowan has been examining Covered Business Method (CBM) petitions, and the 112 arguments considered in them. As the CBM program was transitional in nature, and ended in September of 2020, we now move to the Post Grant Review (PGR) process and examine recent petitions that utilized this method.

Because Inter Partes Reviews (IPRs) are limited in their ability to challenge a patent based on 101 and 112 arguments, we wondered if PGRs have risen as a method of challenging a patent based on 112 arguments.

We analyzed 84 PGR petitions filed between 2020 and 2022 that reached some conclusion. Of those, 32 reached a final decision.

10 petitions, i.e. 31%, of the petitions that reached a final decision had at least one claim canceled due to a 112 argument.

How many of these cancellations could have been avoided by using patent drafting software to catch a preventable error? What did this cost the patent owners?

It appears that over the last 2 years since the demise of the CBM petition PGRs have been used more frequently for 112 arguments. Are PGRs becoming the method of choice for challenging a patent based on a 112 argument? Will this trend continue?

Next month we will look further back into PGR petitions. What kind of shifts were seen in 2012 when CBM reviews were first introduced? Will this prove to have been a preview of what would happen following the end of CBM era?

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Source: Rowan analysis

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