In 2016, the US Court of Appeals for the Federal Circuit docketed more appeals from the US Patent and Trademark Office (PTO) than any other venue—a first in its over 30-year history. The post grant proceedings created by the America Invents Act (AIA) spurred this explosive growth. While the total number of Federal Circuit appeals from the Patent Office declined slightly in 2017 relative to the previous year, the PTO’s Patent Trial and Appeal Board (PTAB) remains the primary contributor to the Federal Circuit’s docket.
The Federal Circuit has accumulated numerous opportunities to weigh in on the PTAB’s handling of post grant proceedings, with over 300 decisions and 150 opinions rendered through the end of 2017. This growing volume of case law has enhanced predictability, both at the Federal Circuit and at the PTAB. And increased predictability, in turn, seems likely to contribute to a stemming of the tide of decisions appealed from the PTAB.
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