Through May 1, 2017, the Federal Circuit decided 200 PTAB appeals from IPRs and CBMs. The Federal Circuit affirmed the PTAB on every issue in 150 (75%) cases, and reversed or vacated the PTAB on every issue in 17 (8.50%) cases. A mixed outcome on appeal, where at least one issue was affirmed and at least one issue was vacated or reversed, occurred in 23 (11.50%) cases.
The court dismissed 10 (5%) appeals without rendering a decision on the merits of a patentability challenge. Dismissals may occur, for example, where the Federal Circuit determines that it does not have jurisdiction to hear an appeal (such as in an appeal from a PTAB institution decision) or a party lacks standing on appeal (for example, where an appellant has not been sued for infringement by the patentee). As the Supreme Court established in Cuozzo Speed Techs., LLC v. Lee, the Federal Circuit is barred from considering appeals from at least certain aspects of institution decisions under 35 U.S.C. § 314(d). More recently, the Federal Circuit confirmed in Phigenix, Inc. v. Immunogen, Inc. that an appellant must demonstrate Article III standing to appeal a PTAB decision. Dismissals may also result from settlements among the parties to the appeal, or where the court determines that a prior decision renders an appeal moot.
An important tool that helps the Federal Circuit manage its significant docket of PTAB appeals is the Rule 36 affirmance, whereby the court affirms the PTAB without rendering a full, written opinion. Of the 200 PTAB appeals it has considered thus far, the Federal Circuit has issued Rule 36 affirmances exactly half the time, i.e., in 100 (50%) cases. The court issued written opinions, including affirmances, reversals, dismissals, and mixed decisions, in 100 (50%) cases.
Breaking down the numbers further, in its appeals from IPRs, the Federal Circuit affirmed the PTAB on every issue in 136 (75.98%) cases, issued a mixed outcome in 21 (11.73%) cases, reversed or vacated the PTAB on every issue in 15 (8.38%) cases, and dismissed 7 (3.91%) cases.
In CBM appeals, the Federal Circuit affirmed the PTAB on every issue in 14 (66.67%) cases, dismissed 3 (14.29%) cases, issued a mixed outcome in 2 (9.52%) cases, and reversed or vacated the PTAB on every issue in 2 (9.52%) cases.