Federal Circuit Review of the PTAB

By Jason Rantanen

I’m presenting some data from the Compendium of Federal Circuit Decisions later today at Chicago-Kent’s terrific conference on The Power of the PTAB.  Below are a few of the graphs I’ll be showing, along with a bonus graph involving Federal Circuit review of inter partes review proceedings.  All data is through October 17, 2017.

This first graph shows the distribution of dispute types in opinions and Rule 36 summary affirmances that arise from the USPTO.  Unsurprisingly, most of the growth in these decisions comes from appeals in IPRs.  More surprising to me was that a substantial chunk of the growth from 2014-16 came from appeals from inter partes reexamaminations.  Those will drop off as the last reexaminations work through the system.

Dispute Types

This second graph shows the affirmance rates in different dispute types for the period 2012-2016.  Note the difference between affirmance rates in ex parte-type proceedings versus the rates in inter partes-type proceedings.  For the CBMR and Interference rates, keep in mind that the number of these decisions is small for this time period (CBMR, n=15, Interference, n=25).

Federal CIrcuit Review 2012-2016

Here’s the bonus graph: the affirmance rates for inter partes reviews only.  Although the affirmance rate was above 85% for 2015 (n=44), it was lower in 2016 (n=107), and so far for 2017 has been even lower (n=100 through Oct. 17, 2017).

CAFC review of IPRs

This last graph shows the frequency of the Federal Circuit’s use of Rule 36 summary affirmances.  The “post-Crouch” drop may vindicate Dennis’s February 1, 2017 post on Rule 36 affirmances.  That bar reflects the frequency of Rule 36 affirmances in these appeals since that date.

Frequency of Rule 36

Thanks to my research assistants, Louis Constantinou, Sarah Jack and Brett Winborn for their hard work on the Compendium.  If you are a researcher on the Federal Circuit and would like access to the Compendium in its beta state, please drop me an email.

 

 

 

7 thoughts on “Federal Circuit Review of the PTAB

  1. It might also be interesting to compare the rise of post- grant invalidation procedures to the decline in startups.

    link to theguardian.com

    1. Night Writer was preaching that line (and you were opposing it) YEARS ago Ned.

  2. More surprising to me was that a substantial chunk of the growth from 2014-16 came from appeals from inter partes reexamaminations.

    So it appears that Congress took a model for reducing court workload that had been – in actuality – trending upward for increased court workload…

    One still must question the reasons offered by Congress in the ill-advised, ill-constructed, and projecting to Oil States illegal IPR regime.

    Maybe the next transition year will come when Congress realizes that they have been captured by Efficient Infringer forces that are NOT friends of innovation.

    1. There is no evidence that innovation has been negatively impacted by IPRs. None. Nada. Zilcho.

      Plenty of evidence that the monetization of the junkiest junk has been negatively impacted. That’s a good thing. Your croc tears are just sweet tea for the rest of us, “anon.” We kicked where it counts.

      Best part: more to come!

      1. Your feelings are noted.

        Of course, those that understand what innovation actually entails (including the number one area of innovation in the modern world) clearly see that your feelings simply show your cognitive dissonance towards why we even have a patent system to begin with.

        As usual.

  3. Note the difference between affirmance rates in ex parte-type proceedings versus the rates in inter partes-type proceedings.

    What does it mean, I wonder?

    I think 2015 can properly be looked at as a transition year, where the impact of IPRs on the CAFC’s workload was just being appreciated by the CAFC.

    1. Re; “inter partes reexamaminations” – a typo that makes them look even longer than inter partes reexaminations were?
      —————-
      The differences in Fed. Cir. reversal rates of inter partes reexaminations vis a vis the reversal rates of IPRs is one of several demonstrations of why IPRs were set up at the PTAB with APJ patent attorneys with disputed evidence experience and patent law knowledge, instead of in the examining corps.

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