Introduction – Federal Circuit Appeals from the PTAB and ITC: Summaries of Key 2022 Decisions

As part of the recovery from the global COVID-19 pandemic, the U.S. Court of Appeals for the Federal Circuit took steps to return to normal operations. It began requiring live oral arguments in August 2022 and, by November, members of the public could attend.

Turning to the statistics, the number of appeals from the U.S. Patent and Trademark Office (USPTO) stayed relatively the same as in 2021. The spike in appeals from the Court of Federal Claims that appeared last year has disappeared, with the number now returned to historical levels. The number of appeals from district court also rebounded to the 2020 level. Pendency for Patent Trial and Appeal Board (PTAB) appeals increased in 2022 to the highest ever, at more than 16 months.

Appellate results continued to strongly favor appellees. Overall in 2022, 73% of the PTAB’s Leahy-Smith America Invents Act (AIA) decisions were affirmed, 18% were remanded, 5% were reversed, and 3% were dismissed. The affirmance rate has checked in between 73% and 79% for each of the last six years. Additionally, the percentage of Federal Circuit’s AIA appeals that resulted in precedential opinions rebounded to 20% after a sharp decline last year. Nonprecedential opinions correspondingly dropped, making up only 39% of the court’s decisions. Rule 36 summary affirmances, however, rose to 41%, in line with historical data.

We have chosen a mix of cases from 2022 dealing with topics like exclusion of expert testimony, the ITC’s ability to enforce consent orders, estoppel by IPR final written decisions, standing to challenge PTAB decisions on appeal, obviousness in light of overlapping ranges in the prior art, and the impact of settlements of IPRs before the PTAB.

The summaries and statistics in this review are the results of a collaborative process. We thank our co-authors—Kristina Caggiano Kelly, Deirdre Wells, Richard Crudo, Jon Wright, Anna Phil-lips, Trey Powers, and Jennifer Meyer Chagnon. We also thank Patrick Murray for his data and statistics contributions.

We appreciate your interest in this report, and we encourage you to see our firm’s other 2022 year-in-review reports and on-demand webinars, available at sternekessler.com or by request. Please feel free to reach out to either of us if you have questions about this report, wish to discuss the future of Federal Circuit appeals, or if you would like hard copies of this report.

This article appeared in the Federal Circuit Appeals from the PTAB and ITC: Summaries of Key 2022 Decisions report.