Patent Trial and Appeal Board Update

• Statistics based first three years of AIA filings

• 3,655 petitions– 3,277 (89.7%) inter partes review (IPR)– 368 (10%) covered business method (CBM)– 10 (.3%) post grant review (PGR)

• Breakdown by subject matter– Electrical/computer (63%)– Biotech/pharma (9%)

Patent Trial and Appeal Board Update (cont.)

• Trial Institutions* (awkward data)– IPR – 42%– CMB – 50%– PGR – 20%

• Results– 12% of all claims available for challenge

ultimately held invalid (4,496 of 38,462) (excludes claims dropped, settled or cancelled)

– Compare this with first year’s worth of IPRs in which 25% of all claims available for challenge were ultimately held invalid

Expansion of Direct Infringement

Akami v. Limelight (Fed. Cir. 2015) (en banc)

• LimeLight is an online content distribution site, and the customers “tag” and “serve” content thereon. A user agreement requires this.

• Jury found direct infringement, trial court judge overruled on reconsideration.

• Supreme Court held that 271(b) requires a single direct infringer.

• .

Expansion of Direct Infringement• An entity is responsible for the other’s

performance of method steps when:– (1) the entity directs or controls the other’s

performance, or– (2) where the actors for a joint enterprise

• BeforeDirect infringement = all steps performed by a single entity or its agent

• AfterDirect infringement = all steps can be attributed to a single entity or its agent