Through August 31, 2021, the Federal Circuit decided 922 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 decline in the number of CBM appeals.
In IPR appeals, the Federal Circuit affirmed the PTAB on every issue in 633 (73.26%) cases and reversed or vacated the PTAB on every issue in 116 (13.43%) cases. A mixed outcome on appeal, where at least one issue was affirmed and at least one issue was vacated or reversed, occurred in 87 (10.07%) cases. The court also dismissed 28 (3.24%) IPR appeals 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 an appeal, such as in certain appeals from PTAB institution decisions.
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.
In PGR appeals, the Federal Circuit affirmed the PTAB on every issue in 4 (50%) cases, issued a mixed outcome in 1 (12.50%) case, and reversed or vacated every issue in 3 (37.50%) cases. No PGR appeals have been dismissed.
Taken together, in decisions for IPR, CBM, and PGR appeals, the Federal Circuit affirmed every issue in 674 (73.10%) cases, issued a mixed outcome in 92 (9.98%) cases, reversed or vacated every issue in 124 (13.45%) cases, and dismissed 32 (3.47%) cases.
An important tool helping the Federal Circuit manage its significant docket of PTAB appeals is the Rule 36 affirmance, through which the court affirms the PTAB without rendering a full, written opinion. Of the 922 IPR, CBM, and PGR appeals it has considered thus far, the Federal Circuit issued Rule 36 affirmances in 401 (43.49%) cases. The court issued written opinions, including affirmances, reversals, dismissals, and mixed decisions, in 521 (56.51%) cases. The ratio of Rule 36 affirmances to issued decisions has trended slightly downward over time.
Stay tuned to the At the PTAB Blog for the latest updates, analysis, and statistics on all aspects of PTAB and Federal Circuit practice. Subscribe at the bottom of the page to receive notifications of new posts via email.
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.
