Federal Circuit PTAB Appeal Statistics for May 2023

In May, the Federal Circuit affirmed the PTAB on every issue in 12 (80%) cases on appeal from post-grant proceedings, including in three precedential opinions: Sanofi-Aventis Deutschland GmbH v. Mylan Pharmaceuticals Inc. (No. 21-1981), Bot M8 LLC v. Sony Interactive Entertainment LLC (No. 22-1291), and Medtronic, Inc. v. Teleflex Innovations S.A.R.L. (Nos. 21-2356, -2358, -2361, -2363, and -2365).  The Federal Circuit issued a mixed outcome in 1 (6.67%) appeal and reversed or vacated every issue in 2 (13.33%) appeals.  No appeals were dismissed, which may occur, for example, when the Federal Circuit determines that it does not have jurisdiction over an appeal. 

Through May 31, 2023, the Federal Circuit cumulatively decided 1,161 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 806 (73.74%) cases and reversed or vacated the PTAB on every issue in 140 (12.81%) cases.  A mixed outcome on appeal occurred in 113 (10.34%) cases, and the court dismissed 34 (3.11%) 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 12 (70.59%) cases, issued a mixed outcome in 1 (5.88%) case, and reversed or vacated every issue in 4 (23.53%) 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 856 (73.73%) cases, issued a mixed outcome in 118 (10.16%) cases, reversed or vacated every issue in 149 (12.83%) cases, and dismissed 38 (3.27%) cases.

Of the 1,161 IPR, CBM, and PGR cumulative appeals that it has considered, the Federal Circuit issued Rule 36 affirmances in 502 (43.24%) cases.  The court issued written opinions, including affirmances, reversals, dismissals, and mixed decisions, in 659 (56.76%) cases.  The ratio of Rule 36 affirmances to issued decisions has trended steadily downward over time.