By Dennis Crouch
The following table shows the decision outcome of ex parte appeal to the BPAI/PTAB for a number of patent owners, including the top-twenty-five owners of appealed applications as well as a few others with particularly high or low win rates. As a reminder, in ex parte cases, the PTAB reviews rejections by the patent examiner. Thus, an affirmance always represents a decision upholding the examiner’s rejection. A reversal fully-sides with the patentee and “AIP” are cases “affirmed-in-part.” PTAB decisions normally stick — that is –the vast majority of affirmed cases are subsequently abandoned by the patentee while the vast majority of the reversed and AIP cases are subsequently issued as patents.
Anyone considering these numbers should keep in mind that appeal statistics can be largely driven by the cases selected for appeal rather than by the quality of counsel handling the appeal. Parties with an especially high affirmance rate may be less selective than those that are typically more successful. However, I would also suspect that a company like Boston Scientific or Medtronic puts much more effort per application (i.e., $$$) than does IBM or HP.