March 3, 2023
By Daniel F. Klodowski; Audrey J. Parker
Edited by Jason E. Stach; Elliot C. Cook
In January, an unusually favorable month for appellees, the Federal Circuit affirmed the PTAB on every issue in post-grant proceeding appeals. Specifically, the Federal Circuit affirmed the PTAB in 8 (100%) cases and did not issue any mixed outcomes, reverse or vacate every issue on the merits, or dismiss any appeals on non-settlement grounds.
Through January 31, 2023, the Federal Circuit cumulatively decided 1,105 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, 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 760 (73.15%) cases and reversed or vacated the PTAB on every issue in 134 (12.90%) cases. A mixed outcome on appeal occurred in 111 (10.68%) cumulative cases, and the court dismissed 34 (3.27%) IPR appeals on non-settlement grounds without rendering a decision on the merits.
In CBM appeals, the Federal Circuit cumulatively affirmed the PTAB on every issue in 38 (74.51%) cases, reversed or vacated the PTAB on every issue in 5 (9.80%) cases, issued a mixed outcome in 4 (7.84%) cases, and dismissed 4 (7.84%) cases. These numbers remain unchanged from last month.
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 808 (73.12%) cases, issued a mixed outcome in 116 (10.50%) cases, reversed or vacated every issue in 143 (12.94%) cases, and dismissed 38 (3.44%) cases.
Of the 1,105 IPR, CBM, and PGR appeals it has considered thus far, the Federal Circuit issued Rule 36 affirmances in 478 (43.26%) cases. The court issued written opinions, including affirmances, reversals, dismissals, and mixed decisions, in 627 (56.74%) cases. The ratio of Rule 36 affirmances to issued decisions has trended steadily downward over time, though the ratio ticked upward slightly in January.
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