Federal Circuit Faces Explosion of PTAB Appeals

20
Jun

Federal Circuit Faces Explosion of PTAB Appeals

Appeals from Patent Trial and Appeal Board decisions have flooded the docket of the Court of Appeals for the Federal Circuit (CAFC) in the last few years, substantially altering the makeup of that court’s docket.

Based on publicly available docket data, the number of appeals from the Patent and Trademark Office (PTO) pending at the CAFC has exploded from just over 100 in 2013 (when the first PTAB Trials under the America Invents Act were still winding their way through the PTAB) to over 630 PTO appeals pending as of May 2017. Over that same period, PTO appeals have gone from 11% of the CAFC’s docket, to over 40%. In contrast, appeals from the district courts have dropped from 44% of the CAFC’s docket to under 35%.

As the graph indicates, this dramatic increase in appeals from PTO proceedings has not been offset by a substantial decrease in district court appeals. As a result, the number of total cases pending at the CAFC has increased over 50% from May 2013 to May 2017.

This change to the CAFC’s caseload has already had an obvious impact on the court. In particular, the court recently began expanding its argument calendar to six days of argument per month, rather than the traditional five days, permitting additional cases to be calendared for argument. So far, the change to the court’s caseload has not substantially impacted the court’s time to resolution statistics. However, assuming this situation persists, it would not be surprising to see a lengthening of case pendency times.

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