Law360 interviewed Finnegan attorney Dan Klodowski to discuss Patent Trial and Appeal Board (PTAB) statistics over the past ten years. In a recent At the PTAB Blog post, co-authored with Finnegan attorney Eric Liu, the attorneys explained that out of the 987 appeals from the PTAB to the Court of Appeals for the Federal Circuit (CAFC), the CAFC affirmed the PTAB’s decision on 721 cases or roughly 73% of the time.
Dan and Eric have been tracking the PTAB statistics for the last six years. The PTAB appeals statistics include inter partes reviews (IPR), post-grant reviews (PGR), and covered business method (CBM) reviews.
In September of 2016, they recorded the PTAB affirmance rate to be 79.65%, whereas in their most recent At the PTAB blog post, they recorded the affirmance rate as 73.05%. Dan stated, “I would call that a slight downward trend over time.”
Additionally, Eric and Dan recorded that as of recently, there have been 429 affirmances of PTAB decisions under Federal Circuit Rule 36, accounting for 43.47% of all affirmances. This statistic shows about a 10% drop in comparison to the 2016 rate of affirmance at 53.98%. Dan said: “It’s a significant swing...I’m not quite sure what prompted that change, but I think it is noteworthy and something that we’ve seen as a pretty steady trend where the numbers have been on a downward slope over time.”
In observing the different rates among IPRs, PGRs, and CBMs, the attorneys found PGRs to have a slightly lower rate at 60% compared to IPRs at 73.14% and CBMs at 74%. Dan suspects that the lower rate could be attributed to a smaller sample size of PGRs due to petitioners being restricted to only challenging patents filed after March 15, 2013. He stated, “Of course, that could change over time as we get more decisions.”
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Patent Trial and Appeal Board (PTAB), United States Court of Appeals for the Federal Circuit (CAFC)
