Introduction (Federal Circuit IP Appeals: Summaries of Key 2023 Decisions)

2023 saw a return to business as usual for the Federal Circuit. Oral arguments are once again in-person and open to the public, and the Court has resumed its former practice of holding occasional sittings outside of Washington, D.C.

Turning to the statistics, the number of appeals from the U.S. Patent and Trademark Office (USPTO) held steady from 2022, as did appeals originating from district court patent cases. Pendency for Patent Trial and Appeal Board (PTAB) appeals increased for a second consecutive year, to a new all-time high of approximately 17 months.

Appellate results continued to heavily favor appellees, particularly in cases arising out of America Invents Act (AIA) proceedings before the PTAB. Overall in 2023, 83% of such decisions were affirmed, 11% were remanded, and only 3% were reversed. The affirmance rate has ranged between 73% and 83% for each of the last seven years. Additionally, the percentage of the Federal Circuit’s AIA appeals that resulted in precedential opinions increased only slightly—from 20% to 21%—after a substantial uptick last year. Nonprecedential opinions remained the same as last year, making up 39% of the court’s decisions. Rule 36 summary affirmances accounted for the remaining 40%.

We have chosen a mix of cases from 2023 dealing with topics like claim construction, obviousness, and the requirements of the Administrative Procedure Act. This year’s edition expands our coverage beyond patent law to include trademark cases as well. We also discuss the Federal Circuit’s currently pending en banc case in LKQ v. General Motors, which concerns the obviousness standard applicable to design patents. And our review kicks off with an analysis of the Supreme Court’s latest foray into patent law—last year’s Amgen v. Sanofi decision on enablement.

The summaries and statistics in this review are the results of a collaborative process. We thank our co-authors—Jennifer Meyer Chagnon, Richard Crudo, Jamie Dohopolski, Kristina Caggiano Kelly, Anna Phillips, Trey Powers, Deirdre Wells, and Jon Wright. 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 2023 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 would like hard copies of this report.

Best regards,

This introduction appeared in the Federal Circuit IP Appeals: Summaries of Key 2023 Decision report.