CrystalMark Research · No. 05
The Appeal Read
Nine decided appeals in ten affirm the refusal. Two resolved appeals in three end with the refusal coming off. Both numbers are true of the same record, and the difference between them is the denominator: one counts from the Board's decision, the other from the notice of appeal.
In one sentence: the famous 90% affirmance rate is real and we reproduce it from the public record, but it describes only the 15% of appeals the Board ever decides, and counting every appeal from the notice forward, the majority end with the refusal coming off without a decision at all.
§ 1 · The decided-appeal rate
The famous number is real. We checked.
The profession's working number for ex parte appeals is that about nine in ten fail. It is not folklore in origin: careful hand counts of Section 2(d) decisions, published annually, have tracked it for two decades. Computed independently from the public TTAB record, our corpus lands in the same band, year after year:
| 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* | 238 | 86.6% | 172 | 84.9% |
*2026 through August 20. 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: a floor with known coverage lapses, and slightly broader than a hand count of pure §2(d) decisions since §2(d) may sit among other appealed grounds.
All-time, the record holds 13,518 Board merits decisions: 10,907 affirmed, 2,213 reversed, 398 decided in part. The modern rate sits in the high 80s and has for years. Nothing on this page argues with it. The question is what it measures.
§ 2 · Counted from the notice
Only 15% of appeals are ever decided. The rest is the story.
The decided-appeal rate has a quiet condition attached: the Board reached a decision. Of the 89,468 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:
64% of resolved appeals end with the refusal coming off. Board reversals supply about 3 points of that; the rest is the examining attorney withdrawing the refusal before any decision, at a median of 2 months from the notice against roughly 10 months to a merits decision.
This is also why the decided-appeal rate is so high. The weak refusals exit the pipeline early, withdrawn on reconsideration. What survives to briefing and decision is the pool of refusals the examining attorney was willing to defend to the end, and that pool affirms at 90%. The famous number is not wrong. It is the survivors' number, and the survivors are selected.
§ 3 · What moves
The withdrawal usually walks in through the reconsideration door.
A notice of appeal does not just queue a case for the Board. It reopens the conversation: appellants routinely file a request for reconsideration alongside it, examination resumes, and the examining attorney takes one more look with the Board now in view. In the 2025 filing cohort, at least 61% of the appeals that ended with the refusal coming off had a request for reconsideration on file (in the young 2026 cohort, 82%). Docket-event coverage thins with age, so both figures are floors.
The second door is negotiated: in the same 2025 cohort, one favorable close in five shows an examiner's amendment entered after the notice, the examining attorney and the applicant agreeing on language that resolves the refusal by phone rather than by brief. Withdrawal is not always surrender, and it is not always free: a share of these closes ride an amendment the applicant offered. But the direction is unambiguous, and it is the part of the appeal record no affirmance rate can see.
§ 4 · The spread
The average hides the examiner.
The 90% is a fleet average, and fleet averages flatter no one and indict no one. 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 = 458 of the ~950-strong active fleet).
Roughly one active examining attorney in three falls below 80% affirmance when their refusals reach a decision, and 25 lose about half of the refusals they defend. A caution in both directions: five decided appeals is a small docket, and which refusals get appealed against which examiner is not random. Treat a single examiner's rate as a place to start asking questions, next to their withdrawal rate and their record after Final, not as a verdict on its own.
§ 5 · Reading the record
Two numbers, one rule: match the denominator to the decision.
Read the 90% for what it measures.
The decided-appeal affirmance rate answers one question: if the Board reaches a decision, who wins. It says nothing about the appeals that never get there, and 85% of resolved appeals never get there. Quoting it as the odds of filing an appeal swaps its denominator for one it was never counted on.
The notice of appeal is a lever, not a last resort.
Filed and pressed, usually with a request for reconsideration riding along, the refusal comes off in about two appeals in three, at a median of 2 months. Waiting for a full Board decision takes a median of 10months and runs into the survivor pool's odds. Most of the value of an appeal arrives before briefing ever ends.
Then ask the per-examiner question.
Fleet 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. Every CrystalMark profile carries its examiner's version of this page's numbers.
The per-examiner version
The record is fleet-wide. Your examiner is not.
Every profile carries its examiner's own appeal read: how often their Finals draw a notice of appeal, how often the refusal comes off, and their record when the Board decides. That is the number that prices your client's decision.
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