In this special report, we review trends over time in PTAB post-grant appeals to the Federal Circuit. Through December 31, 2023, the Federal Circuit cumulatively decided 1,247 appeals from the PTAB in IPRs, CBMs, and PGRs. Yet the number of opinions in PTAB appeals has not remained constant over time; in 2015, the first year it heard appeals from AIA post-grant proceedings, the Federal Circuit issued only 47 opinions. That number rose steadily over time to a peak in 2019, when the Federal Circuit issued 190 opinions. The rate of opinion issuance then decreased over time, falling to 119 opinions in 2022 before increasing again to 150 opinions issued in 2023.
The composition of PTAB post-grant appeals has also changed over time. IPRs have consistently represented the vast majority of post-grant proceedings appealed to the Federal Circuit, but CBM appeals began with 5 opinions issued in 2015 before reaching a peak in of 12 opinions issued in 2017. The number of CBM appeals then tapered over time. By 2023, the Federal Circuit did not issue any opinions for CBM appeals, reflecting Congress's sunsetting of the CBM program in 2020 (although notably, two CBM appeals have already issued in 2024). As the number of CBM appeals waned, the Federal Circuit gradually began issuing opinions for PGR appeals, beginning with one PGR appeal in 2018 and increasing to 7 opinions issued in 2023.
Through the end of 2023, the Federal Circuit affirmed every issue on appeal in 925 (74.18%) cases and issued a mixed outcome, in which some issues were affirmed and others were reversed or vacated, in 125 (10.02%) cases. The court reversed or vacated every issue on appeal in 156 (12.51%) cases and dismissed 41 (3.29%) cases on non-settlement grounds, such as due to the court's stated lack of jurisdiction for appeals of PTAB institution decisions.
The outcomes in PTAB post-grant appeals have also varied significantly over the past nine years. In 2015, the Federal Circuit affirmed every issue on appeal in about 83% of its opinions. The affirmance rate then fell to 70.5% by 2017 before remaining consistently between 70-75% from 2017 through 2022. In 2023, the court's affirmance rate for every appealed issue, however, rose sharply to a peak of 83.3%. The Federal Circuit's rate of reversing or vacating every issue in PTAB post-grant appeals has not exceeded 20%, reaching a peak of 17.4% in 2019. The rate of mixed outcomes has similarly remained relatively low over time, peaking at about 13% in 2020, and the ratio of dismissals has hovered in the low single-digits after peaking at 8.5% in 2015.
In cases that it deems lacking in precedential value, the Federal Circuit may issue a summary (one-line) affirmance under Federal Circuit Rule 36. Of the 1,247 IPR, CBM, and PGR appeal opinions issued through 2023, the Federal Circuit issued Rule 36 affirmances in 532 (42.66%) cases. The court issued written opinions, including affirmances, reversals, dismissals, and mixed decisions, in 715 (57.34%) cases.
The rate of Rule 36 affirmances has generally decreased over time. The Federal Circuit issued summary affirmances in 55% of its opinions in 2015 before sharply decreasing to 38% in 2017. After increasing in 2018-2019, the rate of Rule 36 affirmances again dropped, settling at a summary affirmance rate of 40% in 2023. This trend of decreasing Rule 36 affirmances is particularly noteworthy given the overall increase in the Federal Circuit's rate of affirming on every issue; while the overall affirmance rate (for every appealed issue) rose to 83.3% in 2023, a historic high, the rate of summary affirmance nevertheless remained relatively low, reflecting the long-term trend of summary affirmances becoming less common at the court.
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