December 8, 2021

Volume XI, Number 342

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December 07, 2021

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December 06, 2021

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Federal Circuit PTAB Appeal Statistics Through April 30, 2021

Through April 30, 2021, the Federal Circuit decided 870 appeals from the PTAB in IPRs, CBMs, and PGRs.  While the vast majority of these appeals came from IPRs, the number of PGR appeals has slowly increased over time, partially offsetting a decline in the number of CBM appeals.

In IPR appeals, the Federal Circuit affirmed the PTAB on every issue in 602 (73.87%) cases and reversed or vacated the PTAB on every issue in 105 (12.88%) cases.  A mixed outcome on appeal, where at least one issue was affirmed and at least one issue was vacated or reversed, occurred in 80 (9.82%) cases.  The court also dismissed 28 (3.44%) IPR appeals without rendering a decision on the merits.  Dismissals may occur, for example, where the Federal Circuit determines that it does not have jurisdiction to hear an appeal, such as in certain appeals from PTAB institution decisions. 

In CBM appeals, the Federal Circuit affirmed the PTAB on every issue in 37 (75.51%) cases, reversed or vacated the PTAB on every issue in 4 (8.16%) cases, issued a mixed outcome in 4 (8.16%) cases, and dismissed 4 (8.16%) cases. 

In PGR appeals, the Federal Circuit affirmed the PTAB on every issue in 2 (33.33%) cases, issued a mixed outcome in 1 (16.67%) case, and reversed or vacated every issue in 3 (50%) cases.  No PGR appeals have been dismissed.

Taken together, in decisions for IPR, CBM, and PGR appeals, the Federal Circuit affirmed every issue in 641 (73.68%) cases, issued a mixed outcome in 85 (9.77%) cases, reversed or vacated every issue in 112 (12.87%) cases, and dismissed 32 (3.68%) cases.

An important tool helping the Federal Circuit manage its significant docket of PTAB appeals is the Rule 36 affirmance, through which the court affirms the PTAB without rendering a full, written opinion.  Of the 870 IPR, CBM, and PGR appeals it has considered thus far, the Federal Circuit issued Rule 36 affirmances in 382 (43.91%) cases.  The court issued written opinions, including affirmances, reversals, dismissals, and mixed decisions, in 488 (56.09%) cases.  The ratio of Rule 36 affirmances to issued decisions has trended slightly downward over time.

 

 

© 2021 Finnegan, Henderson, Farabow, Garrett & Dunner, LLPNational Law Review, Volume XI, Number 140
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About this Author

Daniel F. Klodowski Intellectual Property Lawyer Finnegan Washington DC
Associate

Daniel Klodowski’s practice focuses on post-grant proceedings before the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office (USPTO), litigating patents in district court and at the International Trade Commission (ITC), and prosecuting patent applications in several mechanical and electrical technologies. 

Daniel has a breadth of experience in intellectual property law, with a particular focus on post-grant proceedings before the PTAB. Having appeared in dozens of PTAB proceedings, Daniel has both drafted successful...

202-408-4216
Elliot C. Cook Intellectual Property Attorney Finnegan, Henderson, Farabow, Garrett & Dunner Reston, VA
Partner

Elliot Cook maintains a diverse intellectual property practice, including patent litigation, post-grant patent challenges, strategic patent prosecution and portfolio development, and patent monetization.

Elliot devotes a significant amount of his practice to helping clients strategically develop patent portfolios that effectively block competitors and build corporate value. He works closely with clients to ensure that their patents align with and advance their business goals, thereby optimizing value and minimizing cost.

Based on his involvement in more than 25 patent...

571-203-2738
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