United States: Federal Circuit PTAB Appeal Statistics – December 2016

Through December 1, 2016, the Federal Circuit decided 141 PTAB appeals from IPRs and CBMs. The Federal Circuit affirmed the PTAB on every issue in 109 (77.30%) of the cases, and reversed or vacated the PTAB on every issue in 11 (7.80%) 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 13 (9.22%) of the cases.

The court dismissed 8 (5.67%) 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 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, or where the court determines that a prior decision renders a case moot.

An important tool that helps 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 141 PTAB appeals it has considered thus far, the Federal Circuit has issued Rule 36 affirmances in 73 (51.77%) of cases. The court issued written opinions, including affirmances, reversals, and mixed decisions, in 68 (48.23%) of its cases.

Breaking down the numbers further, in its appeals from IPRs, the Federal Circuit affirmed the PTAB on every issue in 99 (78.57%) of the cases, reversed or vacated the PTAB on every issue in 10 (7.94%) of the cases, issued a mixed outcome in 12 (9.52%) of the cases, and dismissed 5 (3.97%) of the cases.

In CBM appeals, the Federal Circuit affirmed the PTAB on every issue in 10 (66.67%) of the cases, issued a mixed outcome in 1 (6.67%) case, dismissed 3 (20%) cases, and reversed or vacated the PTAB on every issue in 1 case (6.67%).

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