Authors: David C. Seastrunk, Daniel F. Klodowski, Elliot C. Cook
Editor: Jason E. Stach
Through January 1, 2017, the Federal Circuit decided 155 PTAB appeals from IPRs and CBMs. The Federal Circuit affirmed the PTAB on every issue in 120 (77.42%) of the cases, and reversed or vacated the PTAB on every issue in 13 (8.39%) 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 14 (9.03%) of the cases.
The court dismissed 8 (5.16%) 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 significant docket of PTAB appeals is the Rule 36 affirmance, whereby the court affirms the PTAB without rendering a full, written opinion. Of the 155 PTAB appeals it has considered thus far, the Federal Circuit has issued Rule 36 affirmances in 82 (52.90%) of cases. The court issued written opinions, including affirmances, reversals, dismissals, and mixed decisions, in 73 (47.10%) of its cases.
Breaking down the numbers further, in its appeals from IPRs, the Federal Circuit affirmed the PTAB on every issue in 110 (79.14%) of the cases, reversed or vacated the PTAB on every issue in 12 (8.63%) of the cases, issued a mixed outcome in 12 (8.63%) of the cases, and dismissed 5 (3.60%) of the cases.
In CBM appeals, the Federal Circuit affirmed the PTAB on every issue in 10 (62.50%) of the cases, issued a mixed outcome in 2 (12.50%) cases, dismissed 3 (18.75%) cases, and reversed or vacated the PTAB on every issue in 1 (6.25%) case.
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