In 2020, the PTAB logged a record increase in “discretionary” denials, with 228 petitions denied without considering the merits. The vast majority—62%—came under either the NHK Spring/Fintiv “trial date” framework or were based on the new parallel petition requirements. In a year where denials were up generally, roughly 20% of all institution decisions (and almost half of ALL denials) were procedurally denied, compared to 12.5% in 2019.
Remarkably, the Board has accelerated their use of procedural denials based on trial dates, despite district trials continually being delayed—and many cancelled outright—due to the current pandemic. This 60% increase in denial rates was due to the explosive use of 314(a). Indeed, even in the trial on which this line of decisions were based–-the NHK Spring decision—the trial never materialized.
That overall decisions were down in 2020 (based on a dip in filings in 2019) throws those numbers in to even starker relief; as you can see from the chart below, “procedural” non-merits denials made up almost half (43+%) of all denials, merits or otherwise.