`
`Inside Views & News Pertaining to the Nation's Busiest Patent
`Court
`
`District Court Trial Dates Tend to Slip After
`PTAB Discretionary Denials
`
`By Scott McKeown on July 24, 2020
`
`EX. 1016
`APPLE INC. / Page 1 of 4
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`
`
`Delaware Cases Slipping 4-6 Months
`
`The practice of denying AIA trial petitions in view of competing district court trial dates has
`brought some negative attention to the Patent Trial & Appeal Board (PTAB) over the past
`few months. At the same time, patent litigation has increased over the first two quarters of the
`year by 20%. This surge has been greatly aided by the exploding popularity of the Western
`District of Texas (WDTX) with non-practicing entities — a district that the PTAB is increasingly
`deferring to in its discretionary denials based upon competing trial dates.
`
`While Patent Owners are quick to point to a looming district court trial date as being set in stone,
`in reality, these dates are o!en reset once the PTAB hurdle is cleared.
`
`While still a small data set, cases that are denied by the PTAB based upon a looming trial date
`have seen significant delays in some districts.
`
`EX. 1016
`APPLE INC. / Page 2 of 4
`
`
`
`For example, in the patent suit heavy District of Delaware, 100% of the cases denied by the PTAB
`for an earlier trial date have been rescheduled — anywhere from 4-6 months. This is a
`significant delay that may militate in favor of institution given the relative speed of an 8-month
`PTAB trial schedule:
`
`In the WDTX, 70% of trial dates initially relied upon by the PTAB to deny petitions have slid.
`While WDTX shows a lower average delay, this is likely a due to that court’s preference to push
`out dates on a recurring basis rather than more significant schedule remodels.
`
`EX. 1016
`APPLE INC. / Page 3 of 4
`
`
`
`Taking all districts into account the average trial delay is 3 months, with a maximum of 7
`months. That said, with COVID-19 delaying trials scheduled for the last 4-5 months, delays will
`certainly increase further as the courts work through their growing backlog.
`
`In the meantime, as one PTAB panel explained it, the PTAB has been firing on all cylinders.
`
`Patents Post-Grant
`
`Copyright © 2021, Ropes & Gray LLP. All Rights Reserved.
`
`EX. 1016
`APPLE INC. / Page 4 of 4
`
`
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