Sunset for CBMs

by | Aug 28, 2020 | CBMs

By John Marlott –

The Transitional Program for Covered Business Method (“CBM”) Review is quietly coming to an end on September 16, 2020, after eight years.  The CBM program, which Congress created as a streamlined and temporary method for weeding out low-quality business method patents in the financial services industry, has been relatively infrequently used over its eight-year run.

As newly-created by the America Invents Act, a CBM petition can be used to challenge a patent having claims “used in the practice, administration, or management of a financial product or service” and that do not claim a “technological invention.”  Only a party or real-party-in-interest that has been sued or charged with infringement of an eligible patent can seek CBM review.  CBM reviews are broader than IPRs, permitting, for example, challenges based on §101 and §112 grounds.

We have previously written about the consistent downward trend in CBM petition filings in recent years.  That trend has continued.  According to the most recent PTAB statistics, only 11 CBM petitions have been filed in all of Fiscal Year 2020. This compares to over 1,100 IPR petitions filed in FY2020.  And not a single CBM petition has been filed in 8 of the last 13 months.  Overall, fewer than 600 CBM petitions have been filed during the entire eight-year life of the CBM program.

There have been occasional discussions of potentially extending and/or expanding the availability of CBM reviews beyond September 16, 2020, and Congress conducted a hearing on this subject in March 2018. But given the limited and declining demand for CBM proceedings, particularly over the last 3-4 years, it now appears that the sunset date for the filing of CBM petitions will quietly come and go.

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John Marlott

Partner at Jones Day
John Marlott brings more than 30 years of intellectual property law experience to his role as lead counsel in IP disputes for Jones Day clients. He focuses on high-stakes district court and ITC patent litigation, post-grant patent proceedings before the PTAB, and appeals to the U.S. Court of Appeals for the Federal Circuit.