October 21, 2020 - Federal Circuit Insights

Who Wins, Who Loses Revisited

At Federal Circuitry, we frequently update our statistics. We now have almost a year’s worth of data since we started our project of collecting every Federal Circuit decision and collating all of the Court’s substantive orders. In a post in July, I took a look at some win-loss rates. One of the things I found interesting was that the data showed that in patent cases, patent owner appellants did noticeably worse than non-patent owner appellants. I thought it would be worth seeing if things have generally remained the same with about three more months of data.

So have things changed? Not really for patent owners. Statistically, it’s still not great to be the patent owner in a Federal Circuit appeal. In July, I noted that patent owner appellants lose 79% of the time. With the additional data, patent owners still lose 79% of the time. The affirmance rates are about the same from both the PTAB (86% in July compared to 84% now) and district courts (71% in July compared to 73%). So that basically means that patent owners did a little better from the PTAB and a little worse from district courts over the past few months.

Is the same true with non-patent owner appeals? Sort of. In July, we noted that non-patent owner appeals had a 54% affirmance rate, a 60% affirmance rate just taking PTAB appeals, and a 41% affirmance rate when PTAB appeals are removed. With the additional data, non-patent owners are still doing better than patent owners, but the gap has narrowed. The overall affirmance rate now is 62%, 67% just taking PTAB appeals, and 53% for non-PTAB appeals.

Obviously, this means that non-patent owners did much worse than before in decisions over the last three months. Looking at only the newly added cases sheds some light on why these numbers changed. Over the last three months, non-patent owners lost nearly 72% of the time. And they lost a stunning 85% of the time in PTAB appeals. And while non-patent owners did better outside the PTAB (losing 63% of the time), that still is much worse than before.

One other tidbit I found interesting. When looking at Board of Contract Appeals and Court of Federal Claims appeals, the affirmance rate is about 71%, which is nearly identical to the overall 71% affirmance rate in the Federal Circuit. But the Rule 36 rate is only 9%. By contrast, the Court’s overall Rule 36 rate is 24% and 34% for patent cases. There could be multiple explanations for this. It may be that BCA and CFC cases have been submitted on the briefs more frequently than other kinds of cases, which generally increases the likelihood that the Court will issue at least a short opinion. It also seems possible that, because there are less BCA and CFC cases at the Court, there may be less precedent on those cases, making it more likely that a case will raise an issue that the Court decides warrants an opinion. In a future post, we may try to take a closer look at those cases to see if we can find any interesting trends.

Now’s the time when I’ll note the usual caveats that past outcomes don’t predict future results, and caution against reading too much into this—the more we parse the data, the smaller the sample size and the more likely that a couple case outcomes can skew the data. But if you’re like me and find this interesting, you can go to our statistics page, and click on “case outcomes” and manipulate the data on your own.