When an appealed patent application makes it all the way to the PTAB and there is a final decision on the merits, the panel will affirm or reverse the examiner’s rejection, either in whole or in part. If the board reverses the examiner in whole or in part, we consider that outcome to be a win for the applicant, since it means their appeal was at least partially successful. If the board affirms the examiner, we consider that outcome to be a loss for the applicant, since it means that the examiner’s rejection was allowed to stand. Thus, it is illustrative to consider PTAB outcomes in terms of “wins” and “losses” for the applicant.
The average win rate at the PTAB for the USPTO at large is 41.8%, meaning that 41.8% of all applications in which there was a final decision on the merits resulted in the examiner being reversed in whole or in part. That gives all applicants less than a 50/50 chance of obtaining a positive outcome for their application once it receives a PTAB decision. However, this win rate is not the same across all technology sectors at the USPTO and, in fact, some art units have significantly higher win rates than the USPTO average.
Below are the top 10 art units and art unit groups (grouped by technology sector) where applicants have the highest chance of success at the PTAB. All percentages were calculated based on PTAB decisions where there was a final decision on the merits. In order to be eligible for inclusion on this list, each art unit must have had at least 100 PTAB decisions between January 1, 2006 and December 31, 2016.
10. 3731-3733, 3738, 3774-3776: Medical & Surgical Instruments, Treatment Devices, Surgery and Surgical Supplies (54.6%)
9. 3721, 3728, 3765, 3781-3788: Sheet Container Making, Package Making, Receptacles, et al. (56.0%)
8. 3735-3737, 3739, 3762, 3766-3769, 3777, 3779: Medical Instruments, Diagnostic Equipment, and Treatment Devices (56.6%)
7. 3631-3638: Static Structures, Supports and Furniture (57.1%)
6. 3641-3649: Aeronautics, Agriculture, Fishing, Trapping, et al. (58.0%)
5. 3651-3659: Material and Article Handling (59.7%)
4. 3611-3618: Surface Transportation (60.1%)
3. 3742-3744, 3749: Refrigeration, Vaporization, Ventilation, and Combustion (63.8%)
2. 3752-3754: Fluid Handling and Dispensing (64.8%)
1. 3661-3669: Computerized Vehicle Controls and Navigation, Robotics, et al. (64.8%)
As shown above, which art unit your application lands in can have a significant effect on your chances of success on appeal, should you choose to go that route after a final rejection. When it comes to appeals, it’s best to know how likely you are to succeed before you even file your Notice of Appeal. That’s where Juristat Examiner Reports can help—by letting prosecutors know what they are getting themselves into right from the start, as well as guiding them through prosecution with data-backed insights. Sign up today and see what Juristat can show you.
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