Surf's Up! Riding the Big Wave of IPR Appeals at the Federal Circuit

In 2013, then-Chief Judge Rader argued that Congress should grow the number of judges on the Federal Circuit to handle the “tsunami” of patent appeals he saw “heading up the Potomac” from the Patent Office.[1]

The following year, in FY2014, more than 1,300 IPR requests were filed at the Patent Office and in FY2015, more than 1,600.  While the Patent Trial and Appeal Board has been expeditiously handling these proceedings, a question has been looming over what would happen when the wave of appeals from adverse decisions hits the U.S. Court of Appeals for the Federal Circuit, which is the court having exclusive jurisdiction over appeals from IPR decisions.  Will it be a tsunami, a gentle lapping of the waves, or something in between?   

Despite Judge Rader’s ominous prediction, as of right now, the Court appears to be surfing the wave of IPR appeals quite well.  Of the roughly 3,000 IPR requests that have been filed to date, close to 400 have already been appealed to the Federal Circuit.  Of that number, the Federal Circuit has cut the number of distinct appeals roughly in half by consolidating related appeals—such as appeals from IPRs involving the same parties and similar patents.  And of the roughly 200 appeals after consolidation, the Federal Circuit has issued about 40 decisions.

But, it remains to be seen whether the wave will grow, stay steady, or eventually recede.  In a series of Surf's Up! posts, we plan to address these questions and more, including:

• when and how the Federal Circuit is consolidating appeals from related decisions, and how parties can respond;

• the frequency with which the Federal Circuit issues decisions via Federal Rule of Appellate Procedure 36 and the effects of doing so;

• how often and for what reasons the PTO solicitor intervenes, and the effect intervention has on the appeal;

• what types of issues the Federal Circuit is finding warrant remand or reversal; and

• the additional time that an appeal from an IPR decision adds to the overall time to ultimately resolve an IPR petition.

Look forward to answers to these questions and more in upcoming posts.

[1] S. Hansen, Panel Calls for Litigation Reform to Address Patent Trolls, Lexology (June 27, 2013).