How do Appellants Fare on Appeal in Patent Reexamination?Every quarter of the fiscal year, the USPTO releases a statistical analysis of the number patent reexamination filings and concluded proceedings. In addition to this helpful information on new filings and concluded proceedings, the USPTO releases appeal statistics that explain the results of appeals art unit 3900, the Central Reexamination Unit (CRU).An analysis of the appeal results from the CRU show a slightly higher affirmance rate and lower reversal rate relative to the rest of the examining corps. Below is a chart providing the outcome of all reexamination appeals from 2009 through April 2011. (click to enlarge) The category “other” refers to administrative remands, substantive remands and dismissals.Over the past three years, examiners have been affirmed, at least in some fashion, close to 70% of the time. Unfortunately, this appeal data does not distinguish between ex parte and inter partes results. One would expect the inter partes appeal results to be more favorable to third party requesters based upon USPTO statistics on the ultimate outcome of these proceedings. Still, an affirmance in inter partes patent reexamination could also indicate a favorable outcome for a patentee if the affirmance relates to an examiner decision to allow claims. Hopefully the PTO will begin to distinguish between the type of reexamination proceedings in future appeal statistics. In the meantime, I will present a more detailed analysis of the general results above in the near futu
Every quarter of the fiscal year, the USPTO releases a statistical analysis of the number patent reexamination filings and concluded proceedings. In addition to this helpful information on new filings and concluded proceedings, the USPTO releases appeal statistics that explain the results of appeals art unit 3900, the Central Reexamination Unit (CRU).
An analysis of the appeal results from the CRU show a slightly higher affirmance rate and lower reversal rate relative to the rest of the examining corps. Below is a chart providing the outcome of all reexamination appeals from 2009 through April 2011. (click to enlarge) The category “other” refers to administrative remands, substantive remands and dismissals.
Over the past three years, examiners have been affirmed, at least in some fashion, close to 70% of the time. Unfortunately, this appeal data does not distinguish between ex parte and inter partes results. One would expect the inter partes appeal results to be more favorable to third party requesters based upon USPTO statistics on the ultimate outcome of these proceedings. Still, an affirmance in inter partes patent reexamination could also indicate a favorable outcome for a patentee if the affirmance relates to an examiner decision to allow claims. Hopefully the PTO will begin to distinguish between the type of reexamination proceedings in future appeal statistics. In the meantime, I will present a more detailed analysis of the general results above in the near future.