July 14, 2020 - Federal Circuit Insights

Who Wins, Who Loses

Since we began tracking cases late last year, we have been thinking about some of the common perceptions we sometimes hear about the Federal Circuit. For example, people sometimes say that patent owners do very well on appeal (although we hear the opposite too). Is that true? We took a look at the data to see. Since November, in decisions where the patent owner is an appellant and there is no cross-appeal, the Court affirms 79% of the time. Now, some readers may be thinking that the PTAB plays a big part of this high affirmance (loss) rate for patent owner appellants, and that’s certainly true. Taking just PTAB appeals by patent owners, the affirmance rate jumps to 86%. Yet stripping those PTAB appeals out makes the affirmance rate 71%. In other words, the patent owner is still losing 7 out of 10 times on appeal.

Of course, for the perception to be a misperception, non-patent owners would have to be doing better. They are. Overall, non-patent owner appeals have a 54% affirmance rate, a 60% affirmance rate just taking PTAB appeals, and a 41% affirmance rate when PTAB appeals are removed. That last stat means that the non-patent owner appellant is getting some relief almost 6 out of 10 times in non-PTAB appeals.

Statistics like these certainly don’t predict outcomes in future cases. And while we have a robust amount of data going back to November, the more you parse it the smaller the sample size becomes. We’ll keep looking at stats like these as the data set grows, and you can use our statistics pages to see what trends you might find on your own.