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Notes on Ex Parte Appeals of Patent Cases

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by Dennis Crouch

  1. The overwhelming majority of ex parte patent appeals (92%) are centered on obviousness, with 2/three of these solely addressing obviousness questions.
  2. It is uncommon for every other concern to be the only real concern on appeal:
    • 2.5% of appeals solely concentrate on Section 101;
    • 1% of appeals solely concentrate on Section 102;
    • 2.2% of appeals solely concentrate on Section 112 (together with 112(a) and 112(b)).
  3. Applicants frequently win obviousness appeals — successful reversal of the obviousness concern in about 35% of instances and partial reversal of the obviousness concern in at the least 5% extra.
  4. Applicants not often win appeals primarily based upon Section 101 — Eligibility rejections are affirmed in 90%+ of instances.
  5. Perhaps not shocking, probably the most cited case seems to be the Supreme Court’s obviousness resolution in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007).

* These notes come from a set of lately determined ex parte appeals that i’ve been working throuhg – DC




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