Can interim and final decisions in patent cases be appealed?

Patent Litigation

Australia Small Flag Australia

Final decisions of the Federal Court of Australia can be appealed as of right, to a Full Court of the Federal Court. A Full Court appeal decision will generally be issued within around 15 months of the first instance judgment.

Leave from the court is required to appeal an interlocutory judgment, and to appeal any Federal Court decision on a Patent Office appeal.

A judgment of the Full Court of the Federal Court of Australia can only be appealed to the High Court of Australia with special leave, generally only granted in significant cases dealing with new or disputed points of law.

A judgment which has been appealed will not be automatically stayed. The applicant must show that the stay is necessary to preserve the position.

Austria Small Flag Austria

Decisions of Commercial Court Vienna in PI and main proceedings, as well as decisions of the APO in opposition and invalidly proceedings, may be appealed to the Higher Regional Court Vienna both on factual and on legal grounds. However, no new evidence may be submitted during the second instance proceedings.

In PI proceedings, the deadline to file an appeal is two weeks. In main proceedings, it is four weeks. These deadlines are not extendable. The appeal must contain all the grounds and arguments in its support; there is no possibility to bring further arguments at a later stage.
Decisions of the APO may be appealed within two months.

There is no permission required for an appeal against a first instance decision.
If a PI was granted in first instance it becomes immediately enforceable and appeals in general do not have a suspensive effect. However, the court may grant an appeal suspensive effect, if the purpose of the appeal would otherwise be frustrated and the applicant and the applicant will not suffer a disproportionate disadvantage due to the suspensive effect (rare in patent cases).

An appeal against a decision in main infringement proceedings or in proceedings before the APO does have suspensive effect. For main proceedings, this means that the decision is enforceable only after being confirmed on appeal in a final and binding way. For opposition and invalidity proceedings this means that the patent stays valid until the decision becomes final. Furthermore, a granted PI generally stays enforceable as long as there is no final decision in main proceedings and/or opposition or invalidity proceedings. There are limited grounds to lift a granted PI.

Decisions of the Higher Regional Court Vienna may be appealed to the Supreme Court if the case depends on a fundamental question of law of importance beyond the particular case. In its decisions, the Higher Regional Court has to state whether the case depends on such a question. If the Higher Regional Court denies that such a question is raised by the case, an appeal to the Supreme Court is nevertheless possible if the value of the matter in dispute is beyond € 30.000 (usually unproblematic in patent cases). However, in all cases, the Supreme Court may itself rule that there is no question of law of fundamental importance and reject the appeal outright.

In PI proceedings a second instance decision typically takes between 3 to 6 months and second and third instance decisions take between 6 to 9 months each. In main proceedings as wells as in proceedings starting before the APO both the second and third instance decisions usually take between 6 to 9 months.

Brazil Small Flag Brazil

Both interim and final decisions can be appealed to the appellate courts.

Regarding final decisions, all the arguments, facts, evidence analysed and decided by the trial court can be reviewed by the appellate court. There is no deference doctrine applicable by the Appellate Court to the Trial Court decision. Appeals can be decided again.

Final decisions by the appellate courts can be challenged (certioriari type of process) before the Superior Court of Justice (non-constitutional grounds) and before the Supreme Court (constitutional grounds).

Canada Small Flag Canada

Interlocutory decisions within Federal Court proceedings will often be heard by a Prothonotary, and decisions of a Prothonotary are subject to appeal as of right to a Judge. Certain types of interlocutory proceedings as well as trials can only be heard by a Judge.

Appeals from interlocutory and final decisions of Judges of the Federal Court are available as of right to the Federal Court of Appeal.

Decisions of the Federal Court of Appeal may be appealed to the highest court, the Supreme Court of Canada, only with leave of the Supreme Court.

China Small Flag China

For the patent invalidity proceedings, the CNIPA (China National Intellectual Property Administration) would make the decision on validity. If either of the parties is dissatisfied with the decision, he can bring an administrative suit before Beijing Intellectual Property Court and then appeal to the Intellectual Property Tribunal of the Supreme Court if he is dissatisfied with the first instance judgement.

For the patent infringement proceedings, the patentee can file a suit before an eligible court and then appeal to the Intellectual Property Tribunal of the Supreme Court if he is dissatisfied with the first instance judgement. Only if the case relates to design patent, the appeal shall be filed to the upper court rather than the Intellectual Property Tribunal of the Supreme Court.

The timeframe for appeal proceedings in patent cases is generally 1 to 1.5 years. When the first instance judgment is appealed, the judgement would not take effect until the second instance judgement is rendered. If either party is dissatisfied with the second instance judgement, he can petition to the Supreme Court for retrial. Such petition would not suspend the execution of the second instance judgement unless the Supreme Court makes a decision on retrial of the case.

Czech Republic Small Flag Czech Republic

A 1st instance validity decision of the IPO can be appealed as of right to the President of the IPO. A judicial review application, itself a two instance process, can be filed.

A 1st instance (non)infringement/damages judgment of the City Court can be appealed as of right to the High Court in Prague. An extraordinary appeal to the Supreme Court is possible. A constitutional compliant to the Constitutional Court is possible. An ECHR complaint may be filed.

An EU preliminary reference can be made by the courts at any time.

Interim decisions can in some cases be appealed or subjected to an extraordinary appeal, depending on circumstances. An interim judgment finding infringement which is to be followed by damages calculation proceedings, can be appealed.

France Small Flag France

A decision of the Paris District Court can be appealed before the Paris Court of appeal within one month from its service on the other party, if the latter is domiciled in France; this deadline is extended by one month for the party domiciled in the French overseas territories, and by two months for foreigners.

The appellant submits its notice of appeal with the registry of the court of appeal, which notifies the defendant hereabout. The grounds of appeal have to be submitted within 3 months from the notice of appeal. This deadline is extended by two months for foreigners. The defendant has to respond within 3 months from the filing of the grounds of appeal if it desires to file a counter-appeal.

The appeal suspends the enforceability of the judgment, unless the District Court has decided differently, which is generally the case for the interim injunctions and provisional damages awarded. Where the provisional ruling would have evident excessive consequences, upon request, the Presiding judge of the Paris Court of appeal can order the suspension of the provisional enforcement. Such suspension is exceptionally granted.

On appeal, the case is heard de novo; i.e. the parties can add new arguments and exhibits, which had not been submitted in first instance. However they are not admissible to file new claims and the case is reheard in its entirety by the court of appeal. Each party has a right to appeal, so that no permission to appeal is required. Proceedings before the court of appeal last in general 18-22 months.

A decision of the court of appeal can be appealed before the Supreme Court; this appeal is not suspensive and is limited to questions of law. The Supreme Court only ascertains that the challenged decision does not contain errors in law. No permission to appeal before the Supreme Court is required. In general, a decision is obtained within 18-24 months.

Germany Small Flag Germany

Decisions on patent infringement rendered by the District Courts can be appealed within one month from proper service of the decision. A permission to appeal is not required in order to appeal first instance decisions. The competent court to hear the appeal is the local Upper District Court. Decisions by this appellate court can be further appealed within one month in case the further appeal has been explicitly permitted by the Upper District Court. Otherwise an application for permission to appeal can be filed. Both, the further appeal and the application for permission to appeal, are handled by the German Federal Supreme Court (Bundesgerichtshof).

The timeframe of the appeal before the Upper District Court usually is 15-20 months. The timeframe of the further appeal proceedings before the Federal Supreme Court usually is about two years.

The decisions of first and second instance courts are not stayed pending the outcome of an appeal and thus remain fully enforceable during the appeal proceedings. A request for stay of enforcement can be filed with the respective Upper District Court, however, such requests usually are dismissed.

Decisions on the validity of a patent rendered by the Federal Patent Court can be appealed within one month starting from proper service of the decision. A permission to appeal is not required. The competent court to hear the appeal is the Federal Supreme Court. A further appeal is not possible.

The timeframe of the appeal before the Federal Supreme Court in invalidity proceedings usually is two to four years.

The patent in suit remains formally valid until a final decision of the Federal Supreme Court is issued.

Greece Small Flag Greece

Only decisions in main infringement action proceedings and not preliminary injunction decisions may be subject to appeal. All final decisions of the first-instance courts are open to appeal within 30 days of notification to the losing party in case of Greek nationals or within 60 days of notification in case of foreign nationals. If no official notification takes place, the decision may be appealed within two years of its publication. The losing party may contest all aspects of the judgment in connection with legal issues or incorrect findings regarding the facts of the case.

India Small Flag India

a) Yes, an appeal lies against an interim as well as the final decision. An appeal will lie to the High Court Single Judge Bench from an order of the District Court and has to be filed within 90 days. Thereafter an appeal lies to the Supreme Court of India within 90 days.

b) Where the Patent suit is filed at the original side of the High Court, an appeal will lie to the Division Bench of the High Court and has to be filed within 60 days, comprising of two Judges and thereafter an appeal lies to the Supreme Court of India within 90 days.

c) As regards an appeal to the Supreme Court, a Special leave to appeal may be filed to by the Supreme Court by virtue of which the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

Ireland Small Flag Ireland

Yes. A full right of appeal exists for all decisions of the High Court (including the Commercial Court) to the Court of Appeal. The appellant has 28 days (for an ordinary appeal) and 10 days (for the appeal of an interlocutory order) from the date on which the order of the High Court is perfected to appeal. Decisions of the Court of Appeal may only be further appealed to the Supreme Court, where the decision involves a matter of public importance or an appeal is necessary in the interests of justice.

The filing of an appeal does not operate as a stay on the execution of a decision. The grant of a stay pending an appeal is entirely at the discretion of the Court.

Israel Small Flag Israel

Final Patent Office decisions are appealable to the Tel Aviv or Jerusalem District Court as of right. Interim Patent Office decision are appealable the Tel Aviv or Jerusalem District subject to obtaining leave to appeal. Further appeal from the District Court as an appellate judicial instance to the Supreme Court is possible subject to obtaining leave but such leave will only be granted if the matter raises an issue of significant legal important.

Final District Court decisions are appealable to the Supreme Court by right. Interim District Court decisions are appealable to the Supreme Court subject to obtaining leave to appeal.

Notwithstanding the above, interim decisions on various procedural matters may be appealable only together with the final decision.

Patent litigation appeals may take 1 to 2 years until the matter is heard, briefed and a decision is given.

The default rule is that patent litigation decisions are not stayed pending appeal. However, the matter is discretionary and while a monetary award may be stayed only in exceptional circumstances, the bar for staying injunctions or patent revocations is lower. Injunctive remedies which could create irreparable harm may be stayed if the appellate court is convinced that the appeal has good prospects. Orders for account of profits may also be stayed pending the outcome of the appeal if they are involved in divulging trade secrets and confidential information to the plaintiff.

Italy Small Flag Italy

First instance decisions handed down in ordinary proceedings can always be appealed before the territorially competent Court of Appeal. Appeal court judgments can be further appealed (on point of law only) before the Court of Cassation, which sits in Rome.

The deadline to appeal before the Court of Appeal and the Court of Cassation is 6 months from publication of the judgment subject to appeal, although a shorter deadline of 30 days can be triggered by formally serving the judgment on the parties.

First instance decisions handed in interim (PI) proceedings can always be appealed before a Panel of three judges from the same Commercial Chamber, within 15 days from publication.

Japan Small Flag Japan

An appeal may be filed against a final judgment in the first instance, and a final appeal or a petition for acceptance of a final appeal may be filed with the Supreme Court against a final judgment in the appeal instance. Appeals and final appeals, etc. may not be filed independently against an interlocutory judgment. An appeal against a first-instance final judgment should be filed within two weeks from the day following the delivery date of the original copy of the judgment. The filing of an appeal is accepted by submitting a Petition for Appeal including, for example, the object of appeal stated in a relatively simple manner; however, the appellant must submit an Appeal Brief including substantial reasons for appeal within fifty days from the day following the date of appeal. No permission is required for the filing of an appeal. The statistics from the Intellectual Property High Court indicate that the average period for proceedings for appeal instance civil cases relating to intellectual property in 2018 was 7.3 months. There is no system to stay or stop patent infringement litigation proceedings which are concurrently in progress together with the relevant invalidation trial proceedings.

Norway Small Flag Norway

A decision (both interim and final decisions) by the District Court may be appealed to the Court of Appeal.

The appeal term is one month from the service of the appealed decision. No leave is required.
The appeal procedure is similar to the procedure before the District Court.

A decision by the Court of Appeal may be appealed to the Supreme Court. The term of appeal is one month. Leave is required.

If admitted to the Supreme Court the case is heard by five legal judges.

It typically takes between one and a half and two years (counted from the time when the first instance issued its decision) to obtain a decision from the Court of Appeal. The case handling time before the Supreme Court is however, much quicker. If leave is granted it typically takes approximately six to ten months counted from the date of the Court of Appeal's decision to obtain a decision from the Supreme Court.

A decision from the first instance granting a preliminary injunction may be enforced immediately also if the first instance's decision is appealed. A decision on the merits issued in ordinary proceedings (i.e. not preliminary injunction proceedings) regarding infringement and/or validity only becomes effective and enforceable from the time the decision becomes final, i.e. from the time the term for appeal has expired without an appeal being filed or from the time the decision is upheld after an appeal.

Poland Small Flag Poland

Infringement:
Preliminary injunction decisions of the first instance courts are immediately enforceable and may be appealed within 7 days from receipt of the decision to the courts of appeal. Their enforceability may be stayed pending the appeal. The second instance decision is rendered in camera usually within 3-6 months.

Judgments of the regional courts (first instance) are not enforceable and may be appealed within 14 days from receipt of the copy of judgment with written grounds (or 21 days from the publication of the judgment) to the courts of appeal (second instance). The second instance decision is taken after an open hearing usually within 6 months up to 1 year but it strongly depends on the workload of a given court.

Judgements of the courts of appeal are final and enforceable. Under certain circumstances explicitly set out by the law, the final and legally binding judgment of the court of appeal may be subject to a cassation appeal to the Supreme Court, which is not legally bound to hear the case brought before it. If the a cassation appeal is filed, the enforceability of the second instance judgement may be stayed.

Validity:
Decisions of the Polish Patent Office (both first instance and the second instance decisions) may be appealed to the Voivodeship Administrative Court in Warsaw. The proceedings before this court usually take 1,5-2 years. Judgments of the Voivodeship Administrative Court in Warsaw could be further appealed to the Supreme Administrative Court but the cassation appeal in the administrative course of action is not an extraordinary appeal and, once filed, has to be decided. The proceedings before the Supreme Administrative Court usually take 1-2 years.

Portugal Small Flag Portugal

VdA: All court decisions are in principle subject to appeal in one or two degrees. The appeal to be lodged against a decision of the IP Court will be filed to the Lisbon Court of Appeal (judicial second-instance court, “LCA”), both on matters of fact and of law. A decision can be expected within 1-2 years. The decision of the LCA may be subject to a further appeal to the Supreme Court of Justice (“SCJ”), depending on the circumstances of the case. The SCJ decides only on matters of law. In both courts, the appeal is assessed by a panel of three judges and, in principle, has not a suspensive effect.

Should any unconstitutionality arise, appeals may be filed to the Constitutional Court subject to some formal requirements being met. The majority of the interim decisions are appealable along with the final decision, although some interim decisions may be subject to an autonomous immediate appeal in certain cases expressly provided in the law.
PIs follow the same regime, although it is generally not possible to appeal to the SCJ except in very special and rare cases.

In pharmaceutical cases brought under Law 62/2011, the discussion is still open on whether the appeal to the SCJ is admissible in accordance with the general CPC rules or only on the very special circumstances that govern also the appeal for PI.

Russia Small Flag Russia

The first instance court decision (in economic courts) is not enforceable within 30 days as a rule (unless immediate enforcement is ordered by the judge as an extraordinary measure). An appeal can be filed within these 30 days with respective appeal economic court.

Appeal court proceedings involve re-check the matter of fact and the matter of law. New evidence from an appellant usually is not admissible in the appeal court, unless a party proves, it was beyond its control to present it in the court of the first instance. A party, defending the decision of the first instance, can provide new evidence to support their argumentation against the appeal. After appeal court ruling (which in patent infringement cases takes about 2-5 months after appeal filing) the decision of the first instance court is fully enforceable.

Further cassation appeal in a patent infringement case is to be filed with the IP Court. The cassation appeal proceedings involve check of the matter of law only. There is no evidence evaluation in the cassation proceedings. The cassation appeal proceedings in the IP Court usually take 2-5 months.

The indicated three stages in patent infringement case are ordinary proceedings, i.e. the consideration by the courts takes place without any permission. A court case can further have two extraordinary proceedings, which are the second cassation appeal and supervisory appeal. Both extraordinary stages are with the Supreme Court, and they are possible upon initial permission of the respective judge of the Supreme Court.
Basic legal framework

Singapore Small Flag Singapore

Interim or interlocutory proceedings in patent cases, like all other civil cases before the Singapore High Court may be appealed at least once. Such appeals are called Registrar’s Appeals and are typically heard by a single Judge in the High Courts. However, some particular types of interlocutory decisions may not be appealed or may only be appealed with leave of Court. Registrar’s Appeals are generally heard and decided within a month of the first instance interlocutory decision.

As for first instance decisions following the trial of a patent suit, there is only one round of appeal to the Court of Appeal. Parties do not need to obtain permission to appeal to the Court of Appeal. The notice of appeal must be filed within 1 month of the date of the judgment or order. Typically, an appeal will take roughly 6 months to 1 year to be heard and decided by the Court of Appeal.

As for revocations of patents heard at the IPOS Registry, a party has the right to appeal the decision to the High Court except where the decision:

(a) relates to the form of the abstract;

(b) relates to the omission of disparaging or offensive matter from a specification;

(c) relates to the prohibition of publication of information prejudicial to national security; and/or

(d) is given under rules which except the right of appeal.

The above position will be modified by the IPDR Bill, which introduces a new system of re-examination by the IPOS Registry, and further provides that a party does not have the right to appeal a decision of the IPOS Registry to:

(a) not grant a request for re-examination; and/or

(b) not revoke a patent after re-examination.

A party who wishes to further appeal the High Court’s decision on revocation to the Court of Appeal will need to seek the leave of the Court of Appeal to do so. Such an appeal will only be allowed if the IPOS Registry’s decision was given on a specified matter listed in section 90(3) of the PA.

Generally, there is no automatic stay of proceedings until and unless a party applies for and obtains a stay of execution of the decision that is the subject of an appeal.

South Korea Small Flag South Korea

Generally, interim decisions are not rendered in patent litigations in Korea. Final decisions from first-instance main actions for patent infringement can be appealed to the Patent Court. Appeals can be filed as of right, and no permission is required. The appeal is reviewed by a panel of three judges, assisted by technical advisors. The Patent Court’s review is conducted de novo and not restricted in its scope to issues of law; factual issues can be contested and re-adjudicated at the Patent Court. Typically, one or two oral hearings will take place, at least one of which will be a technical presentation hearing. The Patent Court’s appellate proceedings generally take between 6 and 12 months.

In addition, a party may, as a right, appeal an adverse Patent Court decision to the Supreme Court, the court of last resort. The appeal is reviewed by a judicial panel of four justices, with assistance from research judges and technical advisors. The proceedings at the Supreme Court are generally documentary proceedings, with oral hearings being a rare occurrence. The Supreme Court dismisses the majority of appeals within about four months after its receipt of the case records, on the ground that the appeal lacks sufficient legal basis for a full review. If the Supreme Court does decide to conduct full review, final decision generally takes about two years.

In patent invalidation actions, the losing party may appeal the IPTAB’s judgment to the Patent Court. The decision by the Patent Court then may be appealed to the Supreme Court. The same comments above regarding the timeline for the Supreme Court appeal apply here.

Sweden Small Flag Sweden

Final and interim decision can be appealed. Leave to appeal is required from the Patent and Market Court of Appeal. The Patent and Market Court of Appeal has discretion to allow appeal of its judgment to the Supreme Court, which then decides whether to hear the appeal.

The timeframe before the Patent and Market Court of Appeal is normally 12-18 months.

A final decision or judgment will not become final and fully enforceable during appeal, unless specifically provided for in the decision/judgment itself. However, non-final decisions concerning interlocutory relief (e.g. interlocutory injunctions) are enforceable immediately but may be inhibited upon request by the appeal court.

Switzerland Small Flag Switzerland

Interim and final decisions can be appealed to the FSC. Interim decisions may, however, only be appealed if they are capable to cause irreparable harm to the appellant.

The FSC’s review is limited to questions of law, while it is generally bound to the facts established by the lower court. For interim decisions, the review of the FSC is further restricted.

In patent cases, the proceedings before the FSC usually take between six and nine months.

Taiwan Small Flag Taiwan

The final decisions of the first instance in a patent infringement lawsuit made by one judge at the IP Court can be appealed unconditionally to a panel of three judges of the same court. The appellate decision made by this panel of judges can in turn be appealed to the Supreme Court, provided that the value of the claim exceeds NT$ 1.5 million. It usually takes approximately one to one and half year to conclude the proceeding at the second instance and six months to one year to conclude the proceeding at the third instance.

The IP Court in some cases will render interim decisions on specific issues, such as invalidity or infringement. Those interim decisions could not be appealed until the IP Court renders its final decisions on a patent litigation.

Thailand Small Flag Thailand

The final decisions of the first instance in a patent infringement lawsuit made by one judge at the IP Court can be appealed unconditionally to a panel of three judges of the same court. The appellate decision made by this panel of judges can in turn be appealed to the Supreme Court, provided that the value of the claim exceeds NT$ 1.5 million. It usually takes approximately one to one and half year to conclude the proceeding at the second instance and six months to one year to conclude the proceeding at the third instance.

The IP Court in some cases will render interim decisions on specific issues, such as invalidity or infringement. Those interim decisions could not be appealed until the IP Court renders its final decisions on a patent litigation.

Turkey Small Flag Turkey

Yes.

In general, there is a two-stage appeal system in Turkey. The first stage is the examination before the regional courts. Then, a further appeal may be filed before the Court of Appeal. Neither the regional courts nor the Court of Appeal judges have a technical background, yet there are special chambers dealing with intellectual property disputes. The relevant chambers in the regional courts consist of three judges, whereas the those in the Court of Appeal consists of five.

The first instance courts’ final decisions can be appealed within two weeks as of the receipt of the reasoned judgement before the regional courts. The regional courts’ examination takes around six to 12 months, depending on the workload.

Thereafter, a further appeal may be filed before the Court of Appeal within two weeks as of the receipt of the regional courts’ decision. The Court of Appeal is the third and final judicial authority and its decisions are expected within one to two years.

For preliminary injunctions, the appeal procedure is different. Indeed, if a preliminary injunction decision is granted by the first instance courts, the counterparty should first object to the same court. In case the court insists on its previous decision, the requesting party is entitled to appeal this decision before the regional courts within two weeks as of the receipt of the judgement. Alternatively, in case a preliminary injunction request is refused, the requesting party may directly apply to the regional courts. The regional court’s decision will be deemed final and cannot be further appealed before the Court of Appeal. The appeal procedure of the preliminary injunction decision does not suspend the main proceedings. The appeal of the preliminary injunction decision is rather quick, and it takes around one to two months for the regional courts to grant decision on the preliminary injunction decisions.

United Kingdom Small Flag United Kingdom

Decisions in patent cases can be appealed. The process for appeal and the tribunal to which the appeal is made will depend on whether the original decision was made in the Patents Court, IPEC or by the Comptroller.

Cases heard before the Comptroller can be appealed to the Patents Court, and permission to appeal is not required.

Decisions from the IPEC and Patents Court can be appealed to the Court of Appeal, provided that permission to appeal is granted. Such permission may be given by the lower court or, where the lower court has refused permission to appeal, the appellant may apply to the Court of Appeal directly for permission. Permission will only be given where the court believes that the appeal has a real prospect of success, or there is some other compelling reason to allow the appeal to go ahead.

Appeals to the Court of Appeal are limited to review of the first instance decision on points of law and will not involve a re-opening of the evidence heard and findings of fact made at first instance. New evidence will not be heard on appeal.
Further appeal from a decision of the Court of Appeal is available, but only for appeals that concern points of law of general public importance. Permission to appeal is required and such permission is granted relatively infrequently, in light of the high threshold of “general public importance”.

Appeals from the IPEC or Patents Court to the Court of Appeal will generally be heard within about 12-18 months of the filing of the appeal, whilst further appeal to the Supreme Court typically takes a further one to two years.

Where the applicant is granted permission to appeal, the orders made to give effect to the first instance judgment are not automatically stayed pending the outcome of the appeal. Nevertheless, the applicant can apply to the court for a stay if one is required.

United States Small Flag United States

Appeals based on substantive patent law from the district courts, CFC, ITC, and PTAB are all heard exclusively by the United States Court of Appeals for the Federal Circuit (“CAFC”), which is located in Washington, D.C.

Typically, a decision must be part of final judgment in order to be appealable. If a party does not preserve their rights on the issue in the court of first instance, an appeal may be waived. While a final judgment is usually required for an appeal to be ripe, exceptions are made by statute for particular issues, such as decisions on injunctive relief. With respect to the PTAB, it is notable that a decision on whether to institute or deny a petition for IPR is not appealable to the CAFC.

Vietnam Small Flag Vietnam

(i) Administrative action:

In principle, the defendant is allowed to appeal the ruling four times. The first-time appeal will be before the head of the administrative body that renders the ruling. The second will be before the upper leader of the administrative body. The third will be before an administrative court. The fourth (also final) appeal is before an appellate court. In many cases, however, the infringer does not file an appeal.

The first and second appeals might each take around 2-3 months, while the third and fourth appeals before the court would each take around 12 months.

(ii) Civil action:

The first-instance judgment can be appealed once to the upper court (provincial court or Superior Court, as the case may be). Typically, any party can appeal the judgment within 15 days from the date it is issued. The appellate proceedings can last around 12 months. The appellate court’s judgment is final and binding. In case of no appeal, the first-instance judgment shall take effect.

Updated: November 4, 2019