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.

The use of 314(a) nearly doubled over that in 2019, following the previous trend from 2018 to 2019. Indeed, this year 314(a) was used in 73% (167) of all procedural denials.

Looking at the last five years, 314(a) denials are now used by the Board nearly 11% of the time by the board, an increase of 1.5% from last quarter.

Meanwhile, 325(d) denials remain consistent with last quarter at 5.4%.

The NHK Spring/Fintiv framework, in particular, saw a +1,300% increase in 2020—i.e., 85 times in 2020, versus 6 in 2019. Parallel Petition Denials also saw a 60% increase from the previous year as well.