June 22, 2022 - Federal Circuit Insights

Who Wins, Who Loses – Still Worse To Be the Patent Owner on Appeal

We’ve been updating our stats pretty frequently but haven’t had a recent post about what—if anything—has changed in affirmance rates as more data has been compiled.  So with basically 2½ years of data, I thought we could look again at affirmance rates across various different types of cases, mainly in the Court’s patent docket.

When I first did this about two years ago (here), I wasn’t surprised by the high affirmance rate (particularly in PTAB appeals).  But I was surprised by the fact that patent owners did substantially worse in appeals—when patent owners appealed, the Court affirmed 79% of the time, but when a defendant or patent challenger appealed, the Court affirmed 54% of the time.

So what’s going on now, with our more robust data of almost 1800 cases?  The short answer is that patent owners continue to face a tough road on appeal, and non-patent owners do much better, at least as a matter of statistics.  For instance, in district court appeals, it’s basically a coin flip when it comes down to whether the judgment is affirmed or not for a non-patent owner appeal.

So the details:  the overall affirmance rate for patent cases now is 72%.  For patent owner appeals, the affirmance rate is 78%.  And for non-patent owner appeals, the affirmance rate is a little over 59%.  That’s pretty similar to what we first saw when we had less data.

If you just look at PTAB appeals, the affirmance rate is 76%.  And patent owners continue to struggle on appeal, with the Board being affirmed 83% of the time.  Conversely, patent challengers (non-patent owners) continue to do better, getting affirmed 62% of the time.

In district court appeals, the affirmance rate remains lower at 67%, with patent owner appeals losing (getting affirmed) 71% of the time.  Remarkably, the non-patent owner appeal gets affirmed 54% of the time, which means that the appellant is getting some relief almost half the time.

I also thought it would be interesting to look at Rule 36s.  About a third (34%) of all patent cases are Rule 36’d.  PTAB appeals are Rule 36’d more, at 39% compared to 28% for district court appeals.  And for non-patent owners, once you get a week or so past oral argument (when it’s less likely there will be a Rule 36), the appellant becomes the favorite—as the affirmance rate falls to 46% in PTAB non-patent owner appeals and 39% in district court non-patent owner appeals.

One final caveat:  our data can tell us outcomes, not what those outcomes mean.  An appellee getting an affirmance certainly “won” the appeal.  But the same can’t be said about every appellant that doesn’t get affirmed.  As every lawyer knows, getting some relief in an appeal as an appellant doesn’t automatically mean you won the appeal.  Losing on all the big issues, but winning on a side issue doesn’t mean that you “won”—even though that’s how our stats view it.

And, of course, if you want to play with the data on your own, you can do so here.