Finnegan is proud to introduce statistics covering the disposition of cases appealed to the Court of Appeals for the Federal Circuit from the USPTO's Patent Trial and Appeal Board (PTAB). The Federal Circuit faces an increasing number of such appeals, corresponding to the increasing number of Final Written Decisions issued over time in PTAB proceedings. More statistics regarding PTAB Final Written Decisions are found here.

Since the inception of PTAB proceedings through September 1, 2016, the Federal Circuit decided 113 PTAB appeals. The Federal Circuit affirmed the PTAB on every issue in 90 (79.65%) of the cases, and reversed or vacated the PTAB on every issue in 8 (7.08%) of the cases. A mixed outcome on appeal, where at least one issue was affirmed and at least one issue was vacated or reversed, occurred in 10 (8.85%) of the cases.

The court dismissed 5 (4.42%) of the cases 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 a case, such as in an appeal from a PTAB institution decision. As the Supreme Court recently established in Cuozzo Speed Techs., LLC v. Lee, the Federal Circuit is barred from considering appeals from institution decisions under 35 U.S.C. § 314(d). Dismissals may also result from settlements among the parties to the appeal.

An important tool that helps the Federal Circuit manage its growing docket of PTAB appeals is the Rule 36 affirmance, whereby the court affirms the PTAB without rendering a full, written opinion. Of the 113 PTAB appeals it has considered thus far, the Federal Circuit has issued Rule 36 affirmances in 61 (53.98%) of cases. The court issued written opinions, including affirmances, reversals, and mixed decisions, in 52 (46.02%) of its cases.

The following resources are also available on the AIA Blog:

Various other PTAB metrics collected and generated by Finnegan are reserved for the use of Finnegan and its clients.

Finnegan will expand its Federal Circuit statistics in the future. Stay tuned to the AIA Blog for the latest updates, analysis, and statistics on all aspects of PTAB and Federal Circuit practice.

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.