The Federal Circuit could receive a thousand appeals per year from decisions of the Patent Trial and Appeal Board (PTAB). That means that within one year we could effectively expect a doubling in the patent appeal load in the Federal Circuit. Then, shortly thereafter, in another year, it could be as much as three times the pre-AIA load of patent appeals. That is going to place an extraordinary stress and strain on the Federal Circuit.
In practical terms, this means that you want to win below, whether it’s in district court or before the PTAB. And – if you are making an appeal and you lost your case below – you are going to need to make your case extraordinarily interesting on the law and on the facts, because with the expected heavy appeals load your client’s appeal could have a very difficult time attracting the attention of Federal Circuit judges. There will be a real premium on appellate advocacy in the next two years as many fundamental PTAB issues are resolved by the Federal Circuit.