In September, the Federal Circuit affirmed the PTAB on every issue in 8 (66.67%) cases on appeal from post-grant proceedings, including in two precedential opinions: Sisvel International S.A. v. Sierra Wireless, Inc. (Case No. 22-1387) and Elekta Limited v. Zap Surgical Systems, Inc. (Case No. 21-1985). The Federal Circuit issued a mixed outcome in 3 (25%) appeals, including its precedential decision in Netflix, Inc. v. DivX, LLC (Case No. 22-1138). The court reversed or vacated every issue in 1 (8.33%) appeal, including its precedential decision in Apple Inc. v. Corephotonics, Ltd. (Case No. 22-1350). The Federal Circuit did not dismiss any appeals, which may occur, for example, when the Federal Circuit determines that it does not have jurisdiction over an appeal.
In October, the Federal Circuit affirmed the PTAB on every issue in 16 (76.19%) cases, including in 2 precedential opinions: Schwendimann v. Neenah, Inc. (Case No. 22-1333) and Netflix, Inc. v. DivX, LLC (Case No. 22-1203). The Federal Circuit issued a mixed outcome in 1 (4.76%) appeal, including its precedential decision in Sisvel International S.A. v. Sierra Wireless, ULC (Case No. 22-1493). The court reversed or vacated every issue in 3 (14.29%) appeals, including its 2 precedential decisions in Corephotonics, Ltd. v. Apple Inc. (Case No. 22-1340) and ABS Global, Inc. v. Cytonome/ST, LLC (Case No. 22-1761), and dismissed 1 (4.76%) appeal.
Through October 31, 2023, the Federal Circuit cumulatively decided 1,227 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 856 (73.98%) cases and reversed or vacated the PTAB on every issue in 147 (12.71%) cases. A mixed outcome on appeal occurred in 119 (10.29%) cases, and the court dismissed 35 (3.03%) 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 14 (73.68%) cases, issued a mixed outcome in 1 (5.26%) case, and reversed or vacated every issue in 4 (21.05%) 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 908 (74%) cases, issued a mixed outcome in 124 (10.11%) cases, reversed or vacated every issue in 156 (12.71%) cases, and dismissed 39 (3.18%) cases.
Of the 1,227 IPR, CBM, and PGR cumulative appeals that it has considered, the Federal Circuit issued Rule 36 affirmances in 524 (42.67%) cases. The court issued written opinions, including affirmances, reversals, dismissals, and mixed decisions, in 704 (57.33%) cases. The ratio of Rule 36 affirmances to written decisions has trended steadily downward over time.
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