CrystalMark Research · No. 04
The Appeal Read
Nine decided Section 2(d) appeals in ten affirm the refusal. Close to two resolved appeals in three end with the refusal coming off. Both numbers are true of the same record. The difference is the denominator: one counts from the Board's decision, the other from the notice of appeal.
The famous 90% affirmance rate is real. Our record reproduces it on the Section 2(d) decisions the published hand counts cover. But it describes only the 15% of resolved appeals the Board ever decides. Counted from the notice of appeal, most appeals end with the refusal coming off and no decision at all.
§ 1 · The decided-appeal rate
The Section 2(d) number is real. We checked.
The profession's working number for ex parte appeals is that about nine in ten fail. The number has a source: careful hand counts of Section 2(d) decisions, published annually, have tracked it for two decades. Computed independently from the public TTAB record, our Section 2(d) cut sits between 84% and 92% in every year since 2018, with most years near nine in ten. Across all grounds it runs a point or two lower in most years, and the table carries both:
| Decision year | Decided, all grounds | Affirmed | Decided, §2(d) involved | Affirmed |
|---|---|---|---|---|
| 2018 | 400 | 88.8% | 260 | 90.8% |
| 2019 | 445 | 88.5% | 273 | 90.8% |
| 2020 | 547 | 87.2% | 321 | 90.3% |
| 2021 | 443 | 86.5% | 285 | 86.7% |
| 2022 | 368 | 89.1% | 238 | 92.0% |
| 2023 | 384 | 82.3% | 231 | 84.4% |
| 2024 | 376 | 86.2% | 246 | 86.6% |
| 2025 | 370 | 89.7% | 246 | 91.1% |
| 2026* | 247 | 86.6% | 180 | 85.6% |
*2026 through September 2. The year table and the decision counts on this page are frozen at that date; the funnel figures in § 2 read the nightly record. Rates are affirmed ÷ decided; mixed affirmed-in-part decisions count in the denominator only. §2(d)-involved means the application carried a §2(d) Final we have classified. That is a floor, with known coverage lapses. Every count in this table is one appeal per application serial, while a hand count of decisions counts one per opinion, and the Board often decides an applicant's related marks in one opinion, so our count can run higher than a hand count of the same year, and for 2025 it does. A few §2(d)-involved appeals carried another refusal ground on that Final as well.
Through September 2, 2026, the record holds 13,527 Board merits decisions: 10,915 affirmed, 2,214 reversed, 398 affirmed in part. Since 2018 the all-grounds rate has run between 82% and 90% in every year. Nothing on this page argues with it. The question is what it measures.
§ 2 · Counted from the notice
Only 15% of resolved appeals are ever decided.
The decided-appeal rate has a condition attached: the Board reached a decision. Of the 90,450 resolved ex parte appeals in the public record, only 15% ever did. Count every resolved appeal from the notice of appeal instead, and the record reads like this:
Resolved means the appeal is no longer pending in the record, by any route. Coming off is the first two segments together: the application went on to approval or registration without an affirmance, or the Board reversed the refusal in whole or in part. An approved application still has to clear publication before it registers. Applicant gave up means the appeal resolved with no ruling on the merits, and the application neither registered nor reached approval on or after the notice.
64% of resolved appeals end with the refusal coming off. Board reversals and partial reversals supply about 3 points of that. The rest is the examining attorney withdrawing the refusal before any decision. Both clocks start at the notice of appeal: the withdrawal comes at a median of 2 months, a merits decision at roughly 10 months.
This is also why the decided-appeal rate is so high. Refusals that an amendment or a second look can resolve come off early, on reconsideration. What reaches briefing and decision is the pool where the applicant would not amend and the examining attorney would not withdraw. Since 2021 the Board has affirmed 87% of that pool across all grounds. Over the same period it has affirmed close to 90% of the Section 2(d) decisions the published counts cover. The famous number describes only the decided pool.
§ 3 · What moves
The withdrawal usually walks in through the reconsideration door.
A notice of appeal queues a case for the Board. Appellants also routinely file a request for reconsideration alongside it. The Board then suspends the appeal and sends the application back to the examining attorney. The refusal gets one more look with the Board now in view. In the 2025 filing cohort, at least 84% of the appeals that ended with the refusal coming off had a request for reconsideration on file. Every cohort back to 2022 reads at least 82%. Docket-event coverage is incomplete, so these are floors, read on the 2022 to 2025 cohorts.
The second door is negotiated. In the same 2025 cohort, one favorable close in four shows an examiner's amendment entered after the notice. In those closes the examining attorney and the applicant settle on language that resolves the refusal, by agreement rather than by brief. A withdrawal is not always a concession, and it is not always free: a share of these closes ride an amendment the applicant offered. Both doors open once the notice is filed. Neither shows up in an affirmance rate.
§ 4 · The spread
The average hides the examiner.
The corps affirmance rate is an average. Split the decided appeals by the examining attorney whose refusal was reviewed, and the spread opens up:
Affirmance rate when a refusal reaches a Board merits decision, per active examining attorney with at least 5 decided appeals (n = 452 of the 925 active examining attorneys, measured September 16, 2026). Rates are raw and career-long, and they cover all grounds. A profile publishes its examiner's rate for the refusal coming off once the resolved appeals reach a minimum count, and it pulls a thin sample toward the corps rate. A profile can therefore read differently from this table.
Of the 452 active examining attorneys with at least five decided appeals, roughly three in ten fall below 80% affirmance when their refusals reach a decision. That group is about 15% of the active corps. For 19 of them, about half of the refusals that reach a decision are reversed. A caution in both directions: five decided appeals is a small docket, and it is not random which refusals get appealed, or against which examiner. Treat a single examiner's rate as a place to start asking questions, alongside their withdrawal rate and their record after Final.
§ 5 · Reading the record
Match the denominator to the decision.
Read the 90% for what it measures.
The decided-appeal affirmance rate answers one question: how the Board rules when it reaches a decision. It says nothing about the appeals that never get there, and 85% of resolved appeals never do. Quoting the rate as the odds of filing an appeal gives it a denominator it was never counted on.
The notice of appeal is a lever, not a last resort.
Across every resolved appeal, the refusal comes off in about two in three. A request for reconsideration usually rides along with the notice, and the record cannot separate the two. Read these figures as the value of the second look. When the refusal comes off without a Board decision, the median is 2 months from the notice. A full Board decision takes a median of 10 months from the notice, and it means facing the decided-appeal odds.
Then ask the per-examiner question.
Corps numbers set the base rate. The examining attorney on your application moves it: their own withdrawal-after-Final rate, their record when appealed, and what has overcome them before. A CrystalMark profile carries its examiner's version of this page's numbers wherever the record supports one.
Built from the public record. CrystalMark is not affiliated with, sponsored by, or endorsed by the United States Patent and Trademark Office or any of its employees.
The per-examiner version
The record is corps-wide. Your examiner is not.
Once an examiner has enough resolved appeals on record, their profile carries its own appeal read: how often the refusal comes off after a notice of appeal, and their record when the Board decides.
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