Through April 30, 2020, the Federal Circuit decided 718 PTAB appeals from IPRs and CBMs.  The Federal Circuit affirmed the PTAB on every issue in 524 (72.98%) cases and reversed or vacated the PTAB on every issue in 100 (13.93%) cases.  A mixed outcome on appeal, where at least one issue was affirmed and at least one issue was vacated or reversed, occurred in 68 (9.47%) cases. 

The court also dismissed 26 (3.62%) 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 an appeal from a PTAB institution decision.  As the Supreme Court established in Cuozzo Speed Techs., LLC v. Lee, the Federal Circuit is barred from considering appeals from many (if not most) aspects of institution decisions under 35 U.S.C. § 314(d).  This includes appeals of institution decisions involving the 35 U.S.C. § 315(b) time bar, as the Court recently explained in Thryv, Inc. v. Click-to-Call Technologies. 

Breaking down the numbers further, in its appeals from IPRs, the Federal Circuit affirmed the PTAB on every issue in 489 (72.77%) cases, reversed or vacated the PTAB on every issue in 96 (14.29%) cases, issued a mixed outcome in 65 (9.67%) cases, and dismissed 22 (3.27%) cases. 

In CBM appeals, the Federal Circuit affirmed the PTAB on every issue in 35 (76.09%) cases, issued a mixed outcome in 3 (6.52%) cases, dismissed 4 (8.70%) cases, and reversed or vacated the PTAB on every issue in 4 (8.70%) cases.

 

An important tool helping the Federal Circuit manage its significant docket of PTAB appeals is the Rule 36 affirmance, whereby the court affirms the PTAB without rendering a full, written opinion.  Of the 718 IPR and CBM appeals it has considered thus far, the Federal Circuit issued Rule 36 affirmances in 334 (46.52%) cases.  The court issued written opinions, including affirmances, reversals, dismissals, and mixed decisions, in 384 (53.48%) cases.

The summary affirmance rate for IPR appeals closely tracks the combined average with CBMs, perhaps unsurprisingly due to the relatively high proportion of appeals from IPR proceedings.  The Federal Circuit issued written decisions in 357 (53.13%) IPR appeals, and issued summary affirmances in 315 (46.88%) appeals.

            The summary affirmance rate for CBM appeals, however, is currently somewhat lower than in IPRs.  The Federal Circuit issued summary affirmances in 19 (41.30%) CBM appeals, and issued written decisions in 27 (58.70%) CBM appeals.

Stay tuned to the AIA Blog for the latest updates, analysis, and statistics on all aspects of PTAB and Federal Circuit practice.  Subscribe to the AIA Blog at the bottom of the page to receive notifications of new posts via email.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.