Rowan Analytics Insights
Patent Prosecution Analytics Benchmarking Report – September 2022

Comparison of CBM and PGR Petitions

Over the last several months, Rowan has examined both Covered Business Method (CBM) and Post Grant Review (PGR) petitions, the times that 112 arguments were raised within them, and ultimately the frequency of one or more claims being canceled due to such arguments.

We thought it would be useful to wrap up this series by comparing the number of CBM and PGR petitions over time, to see the trends in when each was utilized. CBM filings were opened on September 16, 2012, and because it was always intended as a transitional program, the sunset of the program was 8 years later, on September 16, 2020.

The PGR program was also initiated on September 16, 2012, and continues today.

If we look at the number of CBM petitions during the program’s tenure, we see a rapid increase, and then a steady decline from 2015 to 2018, ultimately dying out in 2020 when the program terminated.

If we then turn to PGR petitions, we see a different dynamic, with steady growth over the years and a trend that looks to continue upward.

If we combine the data into one chart, the trends are apparent:

While the CBM program reached its end, the PGR program continues to experience growth. Will the upward trend of PGR petitions continue?

As re reported last month, 31% of the PGR petitions that reached a final decision had at least one claim canceled due to a 112 argument. As the CBM program has sunset, PGRs are one of the only non-litigation paths to challenge a patent on 112 grounds. Is the continued growth of PGRs evidence of the use of this argument? Would the use of patent drafting software to catch errors in applications have prevented these claim cancellations?

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Sources: USPTO, Rowan analysis

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