Through November 1, 2016, the Federal Circuit decided 128 PTAB appeals from IPRs and CBMs. The Federal Circuit affirmed the PTAB on every issue in 101 (78.91%) of the cases, and reversed or vacated the PTAB on every issue in 9 (7.03%) 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 11 (8.59%) of the cases.
The court dismissed 7 (5.47%) 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 growing docket of PTAB appeals is the Rule 36 affirmance, whereby the court affirms the PTAB without rendering a full, written opinion. Of the 128 PTAB appeals it has considered thus far, the Federal Circuit has issued Rule 36 affirmances in 69 (53.91%) of cases. The court issued written opinions, including affirmances, reversals, and mixed decisions, in 59 (46.09%) of its cases.
Breaking down the numbers further, in its appeals from IPRs, the Federal Circuit affirmed the PTAB on every issue in 92 (80.00%) of the cases, reversed or vacated the PTAB on every issue in 9 (7.83%) of the cases, issued a mixed outcome in 10 (8.70%) of the cases, and dismissed 4 (3.48%) of the cases.
In CBM appeals, the Federal Circuit affirmed the PTAB on every issue in 9 (69.23%) of the cases, issued a mixed outcome in 1 (7.69%) case, and dismissed 3 (23.08%) cases. The Federal Circuit has not reversed or vacated the PTAB on every issue in a CBM appeal.
Stay tuned to the AIA Blog for the latest updates, analysis, and statistics on all aspects of PTAB and Federal Circuit practice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.