In an unusually favorable month for appellees, the Federal Circuit in June affirmed the PTAB on every issue in 10 (90.91%) cases and issued a mixed outcome in 1 (9.09%) case in appeals from PTAB post-grant proceedings. A mixed outcome occurs where at least one issue is affirmed and at least one issue is reversed or vacated. There were no decisions where the Federal Circuit reversed or vacated every issue, nor were any appeals dismissed on the merits, such as due to the Court's lack of jurisdiction over an appeal.
Out of the 11 appeals in June, the Federal Circuit issued a Rule 36 summary affirmance in 9 appeals (81.82%) and issued a written decision in just 2 appeals (18.18%). Both the high affirmance rate and high proportion of summary affirmances are statistical outliers relative to cumulative data for PTAB appeals.
Through June 30, 2022, the Federal Circuit cumulatively decided 1,052 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 near total decline in the number of CBM appeals.
In IPR appeals, the Federal Circuit has cumulatively affirmed the PTAB on every issue in 721 (72.90%) cases, and reversed or vacated the PTAB on every issue in 131 (13.25%) cases. A mixed outcome on appeal occurred in 103 (10.41%) cumulative cases, and the court cumulatively dismissed 34 (3.44%) IPR appeals without rendering a decision on the merits.
In CBM appeals, the Federal Circuit affirmed the PTAB on every issue in 37 (74%) cases, reversed or vacated the PTAB on every issue in 5 (10%) cases, issued a mixed outcome in 4 (8%) cases, and dismissed 4 (8%) cases. These statistics are unchanged from our last report through May 31, 2022.
In PGR appeals, the Federal Circuit cumulatively affirmed the PTAB on every issue in 8 (61.54%) cases, issued a mixed outcome in 1 (7.69%) case, and reversed or vacated every issue in 4 (30.77%) cases. No PGR appeals have been dismissed on the merits.
Taken together, in decisions for IPR, CBM, and PGR appeals, the Federal Circuit affirmed every issue in 766 (72.81%) cases, issued a mixed outcome in 108 (10.27%) cases, reversed or vacated every issue in 140 (13.31%) cases, and dismissed 38 (3.61%) cases.
Of the 1,052 IPR, CBM, and PGR appeals it has considered thus far, the Federal Circuit issued Rule 36 affirmances in 456 (43.35%) cases. The court issued written opinions, including affirmances, reversals, dismissals, and mixed decisions, in 596 (56.65%) cases. The ratio of Rule 36 affirmances to issued decisions has trended downward over time, notwithstanding the sharp increase this month.
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