Federal Circuit Appeals from the PTAB and ITC: Summaries of Key 2021 Decisions

Michael Joffre, Ph.D., Kristina Caggiano Kelly, William Milliken, Pauline Pelletier, Anna Phillips, R. Wilson (Trey) Powers III, Ph.D., Deirdre Wells, Kathleen Wills, Jon Wright
Sterne, Kessler, Goldstein & Fox P.L.L.C.
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[co-author: Jamie Dohopolski]

Last year, the continued global COVID-19 pandemic forced American courts to largely continue the procedures set in place in 2020. The U.S. Court of Appeals for the Federal Circuit was no exception. It briefly returned to live oral arguments towards the end of the year before returning to telephonic arguments due to the rise of various COVID-19 variants.

Turning to the statistics, appeals from the U.S. Patent and Trademark Office (PTO) dipped for the second straight year in FY21. And due to a spike in appeals from the Court of Federal Claims, District Court appeals are now the third most common for the Federal Circuit. The number of appeals from the PTO reached an all-time high in 2019 at more than 650 appeals. In 2020, that number was less than 550 appeals, while in 2021, the number dipped further to just over 500 appeals. Pendency for Patent Trial and Appeal Board (PTAB) appeals also dipped in 2021 to 14.7 months. Appellate results continued to strongly favor appellees.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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