[co-author: Patrick Murray, Paralegal/Business Development Coordinator]

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.

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