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I Lost at the USPTO, What Are My Chances on Appeal?

William G. Jenks

©2017. Published in Landslide, Vol. 9, No. 3, January/February 2017, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

This article will help intellectual property lawyers with a potential United States Patent and Trademark Office (USPTO) appeal at the Court of Appeals for the Federal Circuit answer one of the most frequent and vexing questions appellate lawyers hear. The question clients love to ask and lawyers hate to answer: What are my odds on appeal? Typically, the first response to this question is to say confidently, “Appellants from the USPTO win about 10 percent of the time at the Federal Circuit, but we have some good arguments to present.” That confidence deflates rather awkwardly when the client asks, “So what are my odds, exactly?”

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