Federal Circuit PTAB Appeal Statistics – March 1, 2017

Authors: David C. SeastrunkDaniel F. Klodowski, Elliot C. Cook
Editor: Jason E. Stach

Through March 1, 2017, the Federal Circuit decided 172 PTAB appeals from IPRs and CBMs.  The Federal Circuit affirmed the PTAB on every issue in 132 (76.74%) cases, and reversed or vacated the PTAB on every issue in 15 (8.72%) cases.  A mixed outcome on appeal, where at least one issue was affirmed and at least one issue was vacated or reversed, occurred in 16 (9.30%) cases.

The court dismissed 9 (5.23%) 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 at least certain aspects of 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 significant docket of PTAB appeals is the Rule 36 affirmance, whereby the court affirms the PTAB without rendering a full, written opinion.  Of the 172 PTAB appeals it has considered thus far, the Federal Circuit has issued Rule 36 affirmances in 90 (52.33%) cases.  The court issued written opinions, including affirmances, reversals, dismissals, and mixed decisions, in 82 (47.67%) cases.

Breaking down the numbers further, in its appeals from IPRs, the Federal Circuit affirmed the PTAB on every issue in 121 (78.57%) cases, reversed or vacated the PTAB on every issue in 13 (8.44%) cases, issued a mixed outcome in 14 (9.09%) cases, and dismissed 6 (3.90%) cases.

In CBM appeals, the Federal Circuit affirmed the PTAB on every issue in 11 (61.11%) cases, issued a mixed outcome in 2 (11.11%) cases, dismissed 3 (16.67%) cases, and reversed or vacated the PTAB on every issue in 2 (11.11%) cases.

Stay tuned to the AIA Blog for the latest updates, analysis, and statistics on all aspects of PTAB and Federal Circuit practice.  Subscribe to the AIA Blog at the bottom of the page to receive notifications of new posts via email.


DISCLAIMER: Although we wish to hear from you, information exchanged in this blog cannot and does not create an attorney-client relationship. Please do not post any information that you consider to be personal or confidential. If you wish for Finnegan, Henderson, Farabow, Garrett & Dunner, LLP to consider representing you, in order to establish an attorney-client relationship you must first enter a written representation agreement with Finnegan. Contact us for additional information. Additional disclaimer information.

IPR and CBM Statistics for Final Written Decisions Issued in January 2017

Authors: Daniel F. Klodowski, Elliot C. CookDavid C. Seastrunk
Editor: Aaron L. Parker

In the 47 Final Written Decisions issued by the Patent Trial and Appeal Board in January, the Board cancelled 513 (85.79%) of the instituted claims and declined to cancel 69 (11.54%) of the instituted claims. Patent owners conceded 16 (2.68%) instituted claims through motions to amend or disclaimer.

  Continue reading

Tagged , , , , , , , , ,

Wi-Fi One’s Supplemental Brief Urges En Banc Federal Circuit to Permit Appellate Review of PTAB Time-Bar Decisions

Authors: Robert K. High III
Editor: James D. Stein

Wi-Fi One has submitted its supplemental briefing in Wi-Fi One, LLC v. Broadcom Corp., Nos. 2015-1944, -1945, -1946, urging the en banc court to overturn its decision in Achates Reference Publishing Inc. v. Apple Inc., 803 F.3d 652 (Fed. Cir. 2015), holding that that the PTAB’s decision regarding the timeliness of an IPR petition under 35 U.S.C. § 315(b) is unreviewable. In Achates, the Federal Circuit interpreted § 314(d), which makes the decision whether to institute “final and nonappealable,” as precluding this review. Continue reading

Tagged , , , , , , ,