PTAB Remands From The CAFC: Mixed Outcomes

PTAB Remand Not Always Déjà vu

When appealing a decision of an administrative agency such as the Patent Trial & Appeal Board (PTAB), reversal is quite rare. This is because rarely will a pure question of law (with no facts in dispute) control the outcome of such an appeal  Rather, a typical PTAB appeal to the Federal Circuit will dispute whether the agency record fully supports its decision, or is complete with respect to required fact finding. In these cases vacatur and remand are appropriate.

Since 2016, as the volume of appeals from the PTAB has increased, so to has the number of remands to the agency. Where a PTAB record is incomplete, one might expect the agency to simply remedy the shortcoming on remand to maintain its earlier decision. However, two years of recent statistics reflect a more balanced outcome.