Federal Circuit PTAB Appeal Statistics, and How the Board Handles Remands

In its January 18, 2017 article, Managing Intellectual Property took a close look at Finnegan's AIA Blog posts to examine Federal Circuit Patent Trial and Appeal Board (PTAB) appeal statistics, as well as what parties can expect from cases that are remanded.

As of the start of 2017, the Federal Circuit had decided 155 PTAB appeals from inter partes review (IPR) and covered business method (CBM) reviews. In about 77% of those cases, the court had affirmed the PTAB on every issue and reversed or vacated the PTAB on every issue in about 8% of the cases. As of January 1, approximately 53% of cases were issued as Rule 36.

In a December blog post, Finnegan discussed what can be expected from the PTAB on remand. Since there are no specified deadlines for remanded cases, it has not been clear as to how remands will be treated. So far, once the Federal Circuit’s mandate has issued, jurisdiction returns to the Board and a teleconference with the PTAB may occur within a week to a month after the mandate issues. Then, the PTAB authorizes the parties to submit briefs explaining the impact of the Federal Circuit's ruling. Briefing by the petitioner and patent owner typically occurs at the same time, but sometimes it is staggered to give the patent owner an extra week. Parties can expect a three to six month wait from the date of the Federal Circuit's mandate for the PTAB to issue its new final written decision on remand.