Federal Circuit Judge Lourie recently discussed the state of the court. Here are some points [LINK]:
- 11.3 Months: Time from docketing to disposition of district court [patent] appeals in the past year.
2.1 Months: Time from calendaring to disposition of the same cases.
- Note: It is unclear from Judge Lourie’s speech if the times are averages or medians. The court has made great strides in keeping the average and median pendency quite low. There are however, a group of outliers with much longer pendency. The outliers are, for the most part, associated with a couple of particular Federal Circuit judges.
- 50-mile rule: “On this issue of district court judges sitting with us, some recent patent bills have proposed to eliminate the current statutory requirement that judges on our court live within a 50-mile radius of the district. In my view, no persuasive reason has been given for that change. I believe it would be contrary to the best interest of the court and its functioning, and hence the law”
- PTO Discussion: “No doubt an overcrowded examination system that places quotas on examiners plays a role in our less-than-perfect examination system.”
- Pro Patent Court: “Since I have been on the court, over 18 years, not once have we [as a court] had a discussion as to what direction the law should take, whether we should be pro-patent or not. That is because we are not a policy-making body. We have just applied the law and precedent as best we could determine it to the cases that have come before us. In fact, we have been criticized for, in the view of some people, narrowing the doctrine of equivalents, emphasizing the need for a written description commensurate with the claims, and affirming summary judgments of non-infringement that in effect preclude juries from deciding these cases.”
- Make sure your case is final before filing the appeal
- Cross appeals are only for the purpose of challenging the decision (not for arguing that the decision is correct)
- Don’t allege that “every business fact is super-confidential. It makes it difficult for us to ask questions from the bench and write an opinion.”
- Limit the issues: “Having more than three issues in a brief suggests to us that you don’t have a strong appeal.”