TTAB Affirms 80% Of Ex Parte Refusals
TTABlog reader Kevin Grierson asked me yesterday for an estimate of the reversal rate for TTAB ex parte appeals. I responded, "about 20%." [That was based on a statement made by former Judge Cissel at a conference a few years ago]. But I decided to take a look at last year's TTAB final decisions to see whether that estimate holds up.
Based on a review of the TTAB's summaries of its 2004 final decisions, I counted 92 reversals of 464 appealed refusals to register. According to my MILANO brand Museum of Modern Art calculator (shown above), that comes out to a reversal rate of 19.8%, or conversely, an affirmance rate of 80.2%
Meanwhile, Kevin checked the Board's decisions for the first nine weeks of 2005 (through March 4), and counted 16 reversals out of 67 refusals, for a reversal rate of about 23.9%, or an affirmance rate of 76.1%.
Thus it appears that the 20% reversal rate is a pretty handy rule of thumb.
I decided to probe further into the 2005 decisions to break them down a bit:
33 of the ex parte decisions (about 50%) concerned Section 2(d) likelihood of confusion refusals, and the Board affirmed the PTO as to 25 of the refusals -- or about 75%.
19 of the decisions (about 28%) involved a Section 2(e)(1) mere descriptiveness refusal. The Board affirmed 14 of those refusals -- or about 74%
The TTABlog, for its next statistical project, will similarly break down the Board's 2004 ex parte decisions. A report will follow.
Text and staircase photograph ©John L. Welch 2005. All Rights Reserved.