Through March 31, 2022, the Federal Circuit decided 1,017 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 near total decline in the number of CBM appeals.
In IPR appeals, the Federal Circuit has cumulatively affirmed the PTAB on every issue in 701 (73.33%) cases and reversed or vacated the PTAB on every issue in 125 (13.08%) cases. In just March, the Federal Circuit affirmed over 83% of its appeals from IPRs and PGRs, including 14 affirmances from IPR appeals and 1 affirmance from a PGR appeal.
A mixed outcome on appeal, where at least one issue was affirmed and at least one issue was vacated or reversed, occurred in 97 (10.15%) cumulative cases. The court also cumulatively dismissed 33 (3.45%) 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. These statistics are unchanged from our last report through January 31, 2022.
In PGR appeals, the Federal Circuit cumulatively affirmed the PTAB on every issue in 7 (63.64%) cases, issued a mixed outcome in 1 (9.09%) case, and reversed or vacated every issue in 3 (27.27%) cases. No PGR appeals have been dismissed.
Taken together, in decisions for IPR, CBM, and PGR appeals, the Federal Circuit affirmed every issue in 745 (73.25%) cases, issued a mixed outcome in 102 (10.03%) cases, reversed or vacated every issue in 133 (13.08%) cases, and dismissed 37 (3.64%) 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 1,017 IPR, CBM, and PGR appeals it has considered thus far, the Federal Circuit issued Rule 36 affirmances in 442 (43.46%) cases. The court issued written opinions, including affirmances, reversals, dismissals, and mixed decisions, in 575 (56.54%) cases. The ratio of Rule 36 affirmances to issued decisions has trended slightly downward over time.
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.