Federal Circuit PTAB Appeal Statistics Through May 31, 2022

In May 2022, the Federal Circuit affirmed the PTAB on every issue in 7 (63.64%) cases, reversed or vacated the PTAB on every issue in 2 (18.18%) cases, issued a mixed outcome in 1 (9.09%) case, and dismissed 1 (9.09%) appeal.  A mixed outcome occurs when at least one issue is affirmed and at least one issue is vacated or reversed in an opinion, and a dismissal may occur, for example, when the Federal Circuit determines that it does not have jurisdiction to hear an appeal. 

Cumulatively through May 31, 2022, the Federal Circuit decided 1,041 appeals from the PTAB in IPRs, CBMs, and PGRs.  While the vast majority of these appeals came from IPRs, 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 712 (72.73%) cases, and reversed or vacated the PTAB on every issue in 131 (13.38%) cases.  A mixed outcome on appeal occurred in 102 (10.42%) cumulative cases, and the court cumulatively dismissed 34 (3.47%) IPR appeals without rendering a decision on the merits.   

In CBM appeals, the Federal Circuit affirmed the PTAB on every issue in 37 (74%) cases, reversed or vacated the PTAB on every issue in 5 (10%) cases, issued a mixed outcome in 4 (8%) cases, and dismissed 4 (8%) cases.  These statistics are unchanged from our last report through April 30, 2022.

In PGR appeals, the Federal Circuit cumulatively affirmed the PTAB on every issue in 7 (58.33%) cases, issued a mixed outcome in 1 (8.33%) case, and reversed or vacated every issue in 4 (33.33%) cases.  No PGR appeals have been dismissed.

Taken together, in decisions for IPR, CBM, and PGR appeals, the Federal Circuit affirmed every issue in 756 (72.62%) cases, issued a mixed outcome in 107 (10.28%) cases, reversed or vacated every issue in 140 (13.45%) cases, and dismissed 38 (3.65%) cases.

An important tool helping the Federal Circuit manage its significant docket of PTAB appeals is the Rule 36 affirmance, through which the court affirms the PTAB without rendering a full written opinion.  Of the 1,041 IPR, CBM, and PGR appeals it has considered thus far, the Federal Circuit issued Rule 36 affirmances in 447 (42.94%) cases.  The court issued written opinions, including affirmances, reversals, dismissals, and mixed decisions, in 594 (57.06%) cases.  The ratio of Rule 36 affirmances to issued decisions has trended slightly downward over time and continued to decrease this month.

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