In April, an unusually difficult month for appellants, the Federal Circuit affirmed the PTAB on every issue in 16 (94.12%) cases on appeal from post-grant proceedings, including in one precedential opinion: Arbutus Biopharma Corp. v. ModernaTX, Inc. (No. 20-1183). The Federal Circuit issued a mixed outcome in 1 (5.88%) appeal and did not issue any opinion in which it reversed or vacated every issue on appeal. No appeals were dismissed, which may occur, for example, when the Federal Circuit determines that it does not have jurisdiction over an appeal.
Through April 30, 2023, the Federal Circuit cumulatively decided 1,146 appeals from the PTAB in IPRs, CBMs, and PGRs. While the vast majority of these appeals came from IPR proceedings, the number of PGR appeals has slowly increased over time.
In IPR appeals, the Federal Circuit has cumulatively affirmed the PTAB on every issue in 794 (73.65%) cases and reversed or vacated the PTAB on every issue in 138 (12.80%) cases. A mixed outcome on appeal occurred in 112 (10.39%) cases, and the court dismissed 34 (3.15%) IPR appeals on non-settlement grounds without rendering a decision on the merits.
In PGR appeals, the Federal Circuit cumulatively affirmed the PTAB on every issue in 12 (70.59%) cases, issued a mixed outcome in 1 (5.88%) case, and reversed or vacated every issue in 4 (23.53%) 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 844 (73.65%) cases, issued a mixed outcome in 117 (10.21%) cases, reversed or vacated every issue in 147 (12.83%) cases, and dismissed 38 (3.32%) cases.
Of the 1,146 IPR, CBM, and PGR cumulative appeals that it has considered, the Federal Circuit issued Rule 36 affirmances in 493 (43.02%) cases. The court issued written opinions, including affirmances, reversals, dismissals, and mixed decisions, in 653 (55.98%) cases. The ratio of Rule 36 affirmances to issued decisions has trended steadily downward over time but increased slightly in April.
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