Federal Circuit PTAB Appeal Statistics for February 2023

[Editor’s Note: Given the near-total decline of CBM appeals since the sunset of the CBM program in September 2020, we will no longer list CBM appellate outcomes in our monthly statistics charts.  We will continue to include historical CBM outcomes in our cumulative PTAB statistics.]

In February, the Federal Circuit affirmed the PTAB on every issue in 9 (81.82%) cases on appeal from post-grant proceedings and reversed or vacated on every issue in 2 (18.18%) cases. The Federal Circuit did not issue any mixed outcome opinions, nor did it dismiss any appeals, which may occur, for example, when the Federal Circuit determines that it does not have jurisdiction over an appeal. 

Through February 28, 2023, the Federal Circuit cumulatively decided 1,116 appeals from the PTAB in IPRs, CBMs, and PGRs. While the vast majority of these appeals came from IPR proceedings, the number of PGR appeals has slowly increased over time.

In IPR appeals, the Federal Circuit has cumulatively affirmed the PTAB on every issue in 769 (73.24%) cases and reversed or vacated the PTAB on every issue in 136 (12.95%) cases. A mixed outcome on appeal occurred in 111 (10.57%) cumulative cases, and the court dismissed 34 (3.24%) IPR appeals on non-settlement grounds without rendering a decision on the merits.   

In PGR appeals, the Federal Circuit cumulatively affirmed the PTAB on every issue in 10 (66.67%) cases, issued a mixed outcome in 1 (6.67%) case, and reversed or vacated every issue in 4 (26.67%) cases. No PGR appeals have been dismissed on the merits.

Taken together, in decisions for IPR, CBM, and PGR appeals, the Federal Circuit affirmed every issue in 817 (73.21%) cases, issued a mixed outcome in 116 (10.39%) cases, reversed or vacated every issue in 145 (12.99%) cases, and dismissed 38 (3.41%) cases.

Of the 1,116 IPR, CBM, and PGR appeals it has considered thus far, the Federal Circuit issued Rule 36 affirmances in 480 (43.01%) cases. The court issued written opinions, including affirmances, reversals, dismissals, and mixed decisions, in 636 (56.99%) cases. The ratio of Rule 36 affirmances to issued decisions has trended steadily downward over time.