Federal Circuit PTAB Appeal Statistics for November 2023

In November, a relatively difficult month for appellants, the Federal Circuit affirmed the PTAB on every issue in 8 (88.89%) cases on appeal from post-grant proceedings, including in one precedential opinion: Medtronic, Inc. v. Teleflex Life Sciences Ltd. (Case No. 22-1721).  The Federal Circuit dismissed 1 (11.11%) appeal in its precedential Allgenesis Biotherapeutics Inc. v. Cloudbreak Therapeutics, LLC (Case No. 22-1706) decision, which held the appellant lacked standing.  The court did not issue any opinions with mixed outcomes (in which at least one issue is affirmed) or any opinions in which every issue was vacated or reversed.

Through November 30, 2023, the Federal Circuit cumulatively decided 1,237 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 863 (74.08%) cases and reversed or vacated the PTAB on every issue in 147 (12.62%) cases.  A mixed outcome on appeal occurred in 119 (10.21%) cases, and the court dismissed 36 (3.09%) 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 15 (75%) cases, issued a mixed outcome in 1 (5%) case, and reversed or vacated every issue in 4 (20%) 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 916 (74.11%) cases, issued a mixed outcome in 124 (10.03%) cases, reversed or vacated every issue in 156 (12.62%) cases, and dismissed 40 (3.24%) cases.

Of the 1,237 IPR, CBM, and PGR cumulative appeals that it has considered, the Federal Circuit issued Rule 36 affirmances in 527 (42.60%) cases.  The court issued written opinions, including affirmances, reversals, dismissals, and mixed decisions, in 710 (57.40%) cases.  The ratio of Rule 36 affirmances to written decisions has trended steadily downward over time.