Are Appeals at the Federal Circuit a “Coin Flip”?

Guest Post by Professor Ted Sichelman, University of San Diego School of Law

A general patent counsel at a Fortune 500 company recently remarked, "[T]he Federal Circuit does a coin flip and reverses district court decisions left and right. You might as well just roll the dice."[1] When I was in legal practice, many patent litigators echoed this sentiment.

In a recent article, I collected data from the University of Houston's PatStats project, Professor David Schwartz's exhaustive study on claim construction appeals, internal studies by the Federal Circuit, and the Administrative Office of the Courts to test this seemingly widespread belief.

By and large, the belief is false. Reversal rates for patent cases at the Federal Circuit are not particularly high, and roughly the same as civil reversal rates in other circuits, especially those for complex civil cases. On an issue-by-issue level, although claim construction, § 102(a) anticipation, indefiniteness, and a few other issues have noticeably high reversal rates, for most patent law issues, the rates are about average when compared with rates for private civil appeals in other circuits.

Figure 1 below shows case-by-case reversal rates at the Federal Circuit from 2000-2009 for patent infringement cases appealed from district courts. (This data includes cases that were fully reversed or vacated, and appears to take into account summary affirmances.)

Figure 1. Reversal Rates at the Federal Circuit for District Court Patent Appeals (2000-2009).

In comparison to the 8-18% rates shown in Figure 1, the private civil litigation reversal rates across the regional circuit courts are roughly 7-18%. The reversal rate in 2009 for bankruptcy cases in the regional circuit courts was 15.1%. Although it is somewhat out-of-date, the most exhaustive study of securities and contract appeals in federal courts reports reversal rates of 29.4% and 22.8%, respectively, from 1988-1997. In sum, the case-by-case reversal rates at the Federal Circuit are roughly the same or lower than the reversal rates in the regional circuits for private civil actions, particularly complex ones, like bankruptcy, securities, and contracts cases.

Figure 2 below shows issue-by-issue reversal rates at the Federal Circuit from 2000-2007 for those issues appealed in at least 20 cases (for a more exhaustive set of reversal rates, see my article). According to the data sources I used to compile these figures, these rates derive from all appeals decided by the Federal Circuit, including summary affirmances. (However, I believe some of the summary affirmances from the early 2000s may be missing from one of the sources–if so, this would only lower the issue-by-issue reversal rates, strengthening my argument.)

PatentLawPic965 

As Figure 2 shows, the average reversal rate across all issues (other than claim construction) is 18% and 21% (including claim construction). Of course, a number of issues appear to have inordinately high reversal rates–with the oft-appealed issue of claim construction (at 33%) near the top of the list. But like the case-by-case reversal rates, the average reversal rate across all issues–that is, even taking into account the large number of claim construction reversals–is roughly the same as the overall civil reversal rate in other circuits, and roughly the same or lower than case-by-case reversal rates for complex civil cases.

Thus, the actual reversal rates–whether generated on a case-by-case or issue-by-issue basis–belie the assertion that appeals at the Federal Circuit are a "coin flip" or "dice roll." When compared with reversal rates for private and complex civil actions in other circuits, the Federal Circuit rate is no different, perhaps even lower. So why do so many attorneys believe otherwise?

I think two forces are at work here. First, nearly all of the widely publicized studies on the Federal Circuit have focused on claim construction and obviousness–both of which have high reversal rates. And some of these studies excluded summary affirmances, a practice which artificially inflates the reversal rates by roughly 30%. Second, my sense is that many attorneys who regularly appear before the Federal Circuit are subject to "memory bias." Specifically, as a number of psychologists have generally recognized, these attorneys very likely recall their unpredictable appeals and forget their predictable ones.

Hopefully, the data presented here and in my article will help dispel these widespread myths and diminish some of the undeserved criticism of the Federal Circuit regarding appeals.

Ted Sichelman is an Assistant Professor at the University of San Diego School of Law, where he teaches patent law and other intellectual property courses.

[1] Patent Troubles: Does The Patent System Need Fixing?, Corporate Legal Times, June 2005, at 61 (statements of Richard J. Rodrick, General Patent Counsel, S.C. Johnson & Son Inc.).

52 thoughts on “Are Appeals at the Federal Circuit a “Coin Flip”?

  1. I’m going to get a roll of quarters for my phonecalls. Why even when I came back to my computer it said someone else was using it.That has happened 2 times in two days. Maybe they are reading my emails that explain some things that have occured, don’t seem to go anywhere. But as Wenzel said I am in a box. It’s just a matter of using phones outside the box.
    Jaoi.. You have no idea what else just happened. They seem to think if I do it their way, I’ll have no recourse. But I have news for all of them. It’s not about the Quid. It’s about the rule of Law. And this is a lawless society. And yes I got the nine copies. And to all you academics. Don’t bother teaching it , deciphering it, studying it. The Constitution is irrelevent in this country.

  2. We the People, i.e., the public, including those that have served in patent case juries,

    Companies are people too. Didn’t you get nine copies of that memo?

    In ten years, corporations will be required to serve on juries. That will be a fun and exciting time for patent law.

    Fun fact: some countries guarantee you the right to a trial by jury only in criminal matters.

  3. Dear DC,

    This is a general response to your comment and the question above:

    “Are Appeals at the Federal Circuit a “Coin Flip”?

    Not really – it’s much worse than that. The patent court playing field is tilted.

    District Courts, the CAFC and the USSC have all been adversely and irreparable influenced by Cisco et al. and their phucking cartel – The Coalition for Patent Fairness – and other such false propagandizing efforts to destroy the once-upon-a-time honored perception of the independent American inventor in the mind’s eye of the We the People, i.e., the public, including those that have served in patent case juries, executive branch agencies, such as the USPTO, the Dept. of Commerce, the bodies of Congress, District Courts, CAFC and USSC Justices (as mentioned above) and their staffs, and the various media, including newspapers and magazines, network and cable TV, radio, the Internet, all information/news transmitting media in our Nation.

    Even Judge Newman’s – historically, the patentee’s staunched advocate – judicial integrity has been compromised by the shameful shenanigans of the anti-independent inventor lynching gangs!

  4. Does the Federal Circuit get it right? And can that question be answered in any meaningful way that guides our practice?

    I’m not sure the question can be meaningfully asked or answered, except in the tautological sense that the final court of appeal is always right. It’s difficult-to-impossible to identify an objectively correct claim construction, and that’s probably a big part of the reason the Circuit disagrees with the trial court so often.

    Maybe that’s the problem. If the court’s claim construction methodology doesn’t lead relatively consistently and unambiguously to the same construction, the Circuit’s do-over will seem like a coin toss even if the district court did everything right. We need a better way to construe claims so we can better predict outcomes without actually asking/paying for them, and we need more deference to the underlying findings of fact for better predictability on appeal.

    And even then, some companies will appeal anything just so they can write a press release to the effect that they are vigorously contesting the adverse-decision-of-the-month.

  5. If district court claim constructions are a coin toss, then even infallible Federal Circuit decisions will look like a coin toss. A very good litigator, after losing in the district court, tried to convince me that the Federal Circuit reverses half of all claim constructions. My answer to him was that the Federal Circuit reverses all incorrect claim constructions, and upholds all correct claim constructions, so his statistic merely reflected the underlying fact that many district court claim constructions were wrong. The truly interesting question is whether my assumption of infallibility is warranted. Does the Federal Circuit get it right? And can that question be answered in any meaningful way that guides our practice?

  6. “I was surprised both ways. I was surprised at how often cases that I thought were rock-solid wins were solid losses. There were also cases where I thought my argument hadn’t a prayer, but the case was reversed anyway.”

    Kind of like law school finals. Maybe there WAS something to that whole law school thing after all.

  7. I don’t know that saving with a d6 is common, but saving with a d20 only gives a 5% reversal rate.

    Welcome to the blog, paladin. You’ll find many here who share your alignment – but few Lawful Goods.

  8. “at the current rate it’s less of a coin flip and more of a saving throw on a d6″

    I feel like an old nerd for even having gotten this joke. However, I feel a little bit better about myself for not knowing that the saving throw specifically made use of the 6 sided die. But, then again I am reminded and deeply ashamed to admit that I still have a full set of dragon dice (in their velvet bag) somewhere.

    *** takes 1d12 damage vs. undead due to skeletons falling out of closet ***

  9. >>One of my favorite law school professors

    Wow, MM, after all this time is claiming directly to have at least gone to law school.

    If Bilski doesn’t hurt too much, it is hard not to feel optimistic with Rader taking the helm.

  10. One of my favorite law school professors — a litigator in “real life” — had a great saying: a good attorney wins 2/3 of the cases she is supposed to win, plus 1/3 of the cases she is supposed to lose.

  11. This is all anecdotal, of course.

    At one place I worked, the trial attorney was expected to handle the appeal for any case that he lost, if any. I tried many cases, and had to appeal some of those cases. I also had a great deal of in-depth communication with other attorneys at the same place, who also handled many appeals.

    I never appealed anything where I felt that the appeal was without merit. However, many times, there was rather less merit than I would have preferred.

    I was surprised both ways. I was surprised at how often cases that I thought were rock-solid wins were solid losses. There were also cases where I thought my argument hadn’t a prayer, but the case was reversed anyway.

    For what it is worth, almost all the time, I fervently believed what I asserted, and was disappointed when I lost.

    This was mostly at the State Appellate level. I did not find the Federal Court of Appeals to be noticeably different. I never appeared before the Federal Circuit.

    I felt that, far too often, there was an element of “coin-toss” involved. The argument expressed in the court’s opinion turned on some small point that neither side particularly addressed. It seemed that the judges had their own agenda, and had to stretch to reach their point and result.

    In my experience, a large sample of appellate opinions is appropriate for statistical analysis.

    Mostly, appellate courts get it right. Meritorious appeals get due consideration, and junk appeals get affirmed. Squeakers are really hard to call.

    In those situations where the appellate court is not consistent (for example: one particular district overturning one-third of the appealed divorce decrees), statistical analysis can indicate unacceptable meddling by the appellate court.

    Professor Sichelman’s statistical analysis appears sound to me, and the results square with my own appellate experiences.

  12. I was always interested in the intersection of political speech and ethics. Does anyone have an indication of the analysis that would be undertaken to determine whether an attorney who set forth the title of the blog is expressing protected free speech or an ethical violation showing animus toward the court?

  13. ****
    at the current rate it’s less of a coin flip and more of a saving throw on a d6.
    ****

    lawl

  14. Ted: “…attorneys–or at least neutral observers–should be able to do much better at predicting outcomes in any given case than the baseline–say with 90% accuracy.”

    I’m interested in whether you have any evidentiary basis for this belief, or particularly for the 90% figure.

    When Just Visiting said that “Coin flip implies to me that the merits of cases don’t matter.”, he was stabbing at the same thing as was I, when I emphasized the importance of being right on outcome FOR THE RIGHT REASONS.

    Are you sure that your study investigates the true basis for, or meaning of, the patent counsel’s comment?

  15. Ted,

    Thank you for commenting on my post (which mysteriously disappeared). The average reversal rates are instructive, but my point was that they are truly meaningless for the individual merits of the case, from a statistical independence standpoint. The myth of statistical dependence regarding statistically independent events is one of the biggest fallacies in modern life – just ask the folks who run the roulette tables.

    That being said, a potential client might look at a 30% “average reversal rate” on claim construction and say that the case is not worth pursuing when, on the individual merits, it may very well be.

  16. Coin flip implies to me that the merits of cases don’t matter. Not even a 50% reversal rate would be enough evidence to convince me that an appeal is a coin flip without evidence that the FC is wrong in a substantial number of reversals.

    I agree, it’s less about the probabilities and more about whether the Federal Circuit is correcting errors below or re-deciding cases. Even so, at the current rate it’s less of a coin flip and more of a saving throw on a d6.

    I think part of the “coin flip” attitude comes from the Federal Circuit deciding that questions of mixed fact and law are “questions of law” to be reviewed de novo. Every case involves claim construction, and every litigator knows that whatever happens at first instance the appeal is a full do-over. It’s not merely a question of whether you (or the other party) can identify a reversible error in the court below. Nothing that happens at trial can make the appeal any more certain than the trial.

    Max has a pretty good perspective on this. You want to get the facts out of the way as soon as possible to avoid extra proceedings, and reserve appeals for when the trier of fact has made an error of law that needs to be fixed. Or just admit to ourselves what we’re really doing and hold Markman hearings before a panel of Circuit judges.

  17. Maxie,

    How does your “universal” patent law philosophy handle the apparent schism between civil and common? Are you ready yet to give up chasing that windmill?

  18. Good point from Visiting.

    Take any civil law jurisdiction, like the EPO. Most every case goes to trial, and most every losing litigant appeals because the appeal instance is for the first time the real thing, where the tribunal is expected to get it right, and the loser has meanwhile convinced himself that, despite his failure at first instance, he will surely win in front of a court that, for a change, is right-thinking. The first instance (the Opposition Division) is more in the nature of a first stab at the issues, a rehearsal or a dry run, to get as far as a document (the reasoned Decision) which sets out the key issues for resolution properly. For another example, consider patent infringement litigation in Germany or Japan.

    But then look at a properly functioning common law system of patent litigation, where the first instance carries the entire burden of exhaustive, comprehensive fact-finding. Unless the first instance gets the law wrong, the first instance Decision should be the end of the litigation (because any appeal is surely going to fail).

    That is why, in English patent litigation,only a minority of the trialled but still uncompromised cases go on to the Court of Appeal.

    Is that also how it is, in the USA?

  19. Coin flip implies to me that the merits of cases don’t matter. Not even a 50% reversal rate would be enough evidence to convince me that an appeal is a coin flip without evidence that the FC is wrong in a substantial number of reversals.

  20. I remember that about a year after the CAFC was instituted, there was a conference in NYC at which several panelists discussed the first CAFC decisions. One of the panelists opened up the discussions by saying: ” I have discovered how to win a case before the CAFC! You first win in the district court!” It looks like things have not changed.

  21. And Mr. French who ever told you those facts is a liar. My Idea was being sold in the winter Catalog for Overtons in Feb 1996. And as you know Litman never even filed a non provisional till Nov 22, 1995.And then he abandoned it. And that was because Dolph decided he. John, and Rich needed the Cash to pay the mounting bills. So even stating Seadoo (who I called on Oct. 1, 1996) was the infringer is ludicrous. So get your facts straight before spewing what you have been told without investigating it.
    And when I do my Story, I will fondly speak of this blog. But only after all involved are made aware of all the facts. I must make sure everyone knows that will be mentioned in my story.I don’t need people being surprised.
    And when I speak with Todd and Breen I must set them straight. I was speaking of a Trademark.

  22. That was awesome Gene 1,ooo,ooo,ooo to contact the Judge. You contacted me too. Does he know that?
    Do you know that the Cherrys were allowed to run amuck until I filed that first complaint. 15 years. There were even complaints by people in tha area about him pulling guns on them too. And no one did anything then either. But I guess they( Lehman with all he needed at his disposal to violate my civil rights) thought well if they did that for my buddy Litman. Then we will look the other way for 15 years. Or until someone puts it way out there.
    Good for you. I know what you did. I hope you had a party.

  23. Mark,

    Thanks for the comments. However, I disagree with your point that I can’t “claim that the reversal rate is low” for at least three reasons.

    First, if a case is affirmed-in-part–i.e., there is no full reversal or vacation and remand–then I don’t agree with you that the party who won below will in most cases need to return to district court. If I’m right, then an partial affirmance implies that, in most cases, the party who won below effectively wins above. Unfortunately, I don’t think there is any data on which one of us is correct here. In that vein, I know of no data set that tracks cases through appeal and remand, do you?

    Second, the issue-by-issue reversal rates are also relatively low, standing at about 20%. Typically, there are not a tremendous number of issues on appeal in any given case, and attorneys–or at least neutral observers–should be able to do much better at predicting outcomes in any given case than the baseline–say with 90% accuracy. Even supposing that there are, on average, three independent issues in any given case, any one of which can lead to a full reversal or effective loss–which is clearly an overestimation of reversability–then with a 90% accuracy on each issue, the odds of mispredicting reversal is still only 27% (1-(9/10)^3). This is hardly a coin flip.

    One might counter that claim construction tends to be more dispositive than other issues, and the misprediction percentage should be higher to account for this greater weight. This ties back into the first point of whether affirmances-in-part (e.g., only one claim term on appeal is reversed) lead more often than not to remands. My experience says no; yours says yes. But even if a large share of claim construction reversals of single terms lead to remands, the predictability still would not approach that of a coin flip.

    More likely the cause for difficulty in prediction–as I mentioned in other responses–attorneys all-too-often like to drink their own kool-aid, believing they have a strong case when they do not. But these blinders are, of course, no fault of the Federal Circuit’s.

    Last, one needs to take the statement from the IP counsel in context–namely, that patent litigators, their clients, and even many academics seem to think the Federal Circuit is much less predictable than other circuits. When I compare reversal rates from the Federal Circuits to other circuits, both figures of course exclude partial affirmances. Thus, for private civil matters, the Federal Circuit has roughly the same reversal rates–and, I believe, is about as predictable–as appeals in other circuits. And, based on my experience clerking, I don’t think most private civil cases are terribly difficult to predict.

  24. Super point from Mark Lemley. Reminds me of the stats for oppositions at the EPO: one third of opposed patents maintained as issued, one third revoked, and one third maintained in amended form (ie, with narrower claims). Taking that last one third, should they to be counted as wins for the patent owner or for the opponent? Half and half, I would say.

  25. Ted –

    Thanks for doing this. But your post seems as much about interpretation as about the data. You can get to the 8-18% number only by treating all “affirmed in part” decisions as affirmances. But of course they are also reversed in part. If you treated those as reversals, you would find that the full affirmance rate in your Table 1 is 50-60%, which sounds like a coin flip to me.

    Now that likely goes too far in the other direction. There was a partial affirmance, after all. But an “affirmed in part, reversed in part” generally means that the case isn’t done and has to go back, so for purposes of predictability it is probably closer to a reversal than an affirmance. Without delving into what issues were affirmed and what reversed, I don’t think you can claim that the reversal rate is low.

  26. You know, I really like the deck chair to be placed over there.

    And let’s place these chairs over there.

    And…

    why are these chairs sliding back? Why is the ship listing so?

  27. Paul,

    That’s a nice point on delay, and is especially pertinent for pharma cases under Hatch-Waxman.

  28. Ned, the last time I saw the numbers, as I recall, the CAFC affirmance rate on appeals from PTO Board patent decisons was about 9 to 1, and most of the reversals were from interferences, I.e., inter partes contested cases.

  29. I appreciated the author’s indirect support of my comment by his added candid comments that: “Attorneys in all circuits seem to think cases are tough to predict–probably because they have drunk too much of their own “kool-aid” (i.e., they are too heavily invested in their client’s position).” and that “lawyers–who often bill by the hour in private civil matters–have a strong incentive to continue litigating a case. Less sophisticated parties will be less able to counter this incentive.”
    But also where a party is facing a product injunction, or an in-house counsel is facing a possible career imparement for losing at the District Court [which IS harder to predict], an appeal can delay the disaster, and the CAFC seems to hardly ever sanctions appeals for being frivolous even when they should.

  30. TJ,

    I do think patent litigators believe the CAFC is more liable to reverse and, generally, more unpredictable than other circuits. There are at least two reasons why my proposition that roughly the same percentage of weak appeals are brought in other circuits does not contradict this belief.

    First, nearly all patent appeals are heard by the Federal Circuit. Most appeals to the CAFC are handled by patent litigators, who are very unlikely to litigate in other circuits. Related, those who regularly litigate in other circuits are unlikely to litigate regularly in the CAFC. Thus, both groups may (wrongly) hold the view that appellate outcomes in their circuit are relatively tough to predict.

    Second, as I mentioned, weak appeals are brought for reasons unrelated to predictability. In my view, much of this turns on the sophistication of the parties. Specifically, lawyers–who often bill by the hour in private civil matters–have a strong incentive to continue litigating a case. Less sophisticated parties will be less able to counter this incentive. Parties to patent litigation are most likely more sophisticated than typical parties on appeal in the regional circuits in private civil cases. Thus, even if the Ninth Circuit were entirely predictable, many weak cases could be brought simply because of misaligned incentives between attorney and client.

    As such, one cannot–as you appear to do–make a one-to-one mapping between the strength of appeals and the perceived predictability of the appellate court.

  31. Ted,
    If Ninth Circuit practitioners also view the Ninth Circuit as unpredictable and thus also appeal lots of weak cases, that undermines your initial premise, which is that the Federal Circuit is somehow perceived to be uniquely unpredictable. Either people think the Federal Circuit is more trigger happy and thus appeal weaker cases than otherwise, in which case the constant reversal rate indicates the perception is justified; or people don’t think that the Federal Circuit is any different than other courts of appeals, in which case attacking “coin flip” myth is a attacking strawman.

  32. It would also be interesting to know the difference, if any, between the affirmance rates between appeals from the district courts and appeals from the PTO on patent matters.

  33. Malcolm & Ned,

    I agree there a relationship between specific issue reversal rates and whether the issue is one of law (de novo review) or one of fact (deferential review). However, this factor does not fully explain the deviation in rates.

    For example, enablement is a question of law, and it’s near the bottom, at a 11% reversal rate. Also, many appeals are from summary judgment, which usually invokes full de novo review.

  34. Adam E,

    The average reversal rates in red are weighted by the specific number of cases involving each issue. The average rate including claim construction issues is 21% and excluding claim construction issues is 18%.

    In other words, the overall reversal rates are not averages of each issue reversal rate, but instead take into account weighted averages across all issues.

  35. Dennis, Inviting Body Punches, RealWorldAttorney, and TJ,

    Of course, most appeals will be dice rolls in that the outcomes are not perfectly predictable. I think the more important issue is whether the Federal Circuit is any less predictable than other circuits.

    In this regard, average case-by-case and issue-by-issue reversal rates seem a good proxy for predictability. As such, I disagree with RealWorldAttorney that these rates are “kind of meaningless.” To the contrary, on average, claim construction–which stands at a 33% reversal rate–is much less predictable on appeal than enablement, which stands at 10%.

    Of course, any given case may be more or less predictable than the average case. But this does not imply that the baselines–i.e., the average rates–are not useful in litigation. Just like average stats in sports, average rates can help to provide reliable–though, not perfect–predictions for any given case.

    In view of these average rates and the ability of experienced counsel to predict likely outcomes on the basis of the unique law and facts of any given case, I disagree with Inviting Body Punches that cases at the Federal Circuit are coin flips, either in outcome or reasoning. Perhaps some of the most important ones–e.g., en banc opinions–fit this description, but run-of-the-mill appeals are in my experience not terribly difficult to predict.

    And as for TJ’s point about dealing with selection effects–which I address at length in the full paper–based on my experience as a clerk on the 9th Circuit, I do not believe that appeals in other circuits have substantially more merit than appeals at the Federal Circuit. Attorneys in all circuits seem to think cases are tough to predict–probably because they have drunk too much of their own “kool-aid” (i.e., they are too heavily invested in their client’s position). For this and a variety of other reasons, many weak cases are appealed in all circuits, and this is why such a large number are affirmed.

    With these points in mind, appeals at the Federal Circuit seem about as predictable as appeals at any other circuit.

  36. I would think that if the question is one of fact, not of law, the affirmance rate should be similar to other circuits. But I would expect the Fed. Cir.’s overall rate of reversals to be high given that it reviews, de novo, so many claim construction orders.

    That said, I would be interested to see if there are any differences among judges. I have an impression that some judges might more in favor of reversing cases than affirming them as a general matter, or on particular issues, particularly if they have an agenda.

  37. Ted,

    This is interesting work, but you need to account for selection effect. In other circuits, we might assume that the appealed cases are ones where lawyers make a judgment that the appeal has some merit. In the Federal Circuit, apparently losing litigants think they should always appeal, since “you might as well roll the dice.”

    If this mentality translates into real action, then the appeals to the Federal Circuit should reflect, on average, a weaker set of cases than other circuits. But the reversal rate, as you note, is roughly comparable. If so, this indicates to me that the Federal Circuit is more trigger-happy than other circuits, once the selection effect is accounted for.

  38. Isn’t this perception in large part due to the facts that: (1) claim construction from SJ’s for non-infringement seems to be the most common issue on appeal to the CAFC, and the CAFC decides that issue de novo, and/or (2) unrealistic views of the merits of their patent cases by said “general patent counsel at a Fortune 500 company” (and the like elsewhere) due largely to rarely getting completely objective outside third party current case appraisals from those who’s financial livelyhoods are not involved in the litigation, and/or problems with patents that were filed and prosecuted as cheaply as possible?

  39. Heads = i4i v Microsoft (court will not second-guess damages award if supported by some evidence)

    Tails = Lucent v. Microsoft (we can’t figure out how jury came up with damages award so we reverse and remand)

  40. I should have thought that two issues dominate patent litigation, namely, what does the claim mean, and is anything within its ambit obvious.

    And is there ever a patent case where they are not both present and both of decisive importance (despite the use of c+c to sweep the second one under the carpet).

    This study is useful. It shows exactly where the system is broken (even without needing to invoke MM’s comment that, on M+F claims,the rate of reversal is even higher).

  41. Does your empirical work do anything to dispel the notion that that the CAFC decision is any better than a roll of the dice?

    Isn’t the trend in Figure 2 evidence for this, with more of the fact-dependent mens-rea issues on the right (overturned less often, more deference to the district court), and the questions of law (claim construction) and more subjective patent issues (obviousness) on the left?

  42. Although the second chart is helpful, I think it would be even more helpful to weight the chart, so that the issues that arise most often get the most weight. For example, unless there are more 102(g) cases than I think there are, it’s number is artificially biasing the chart (visually, at least) towards a lower reversal rate.

    Conversely, if the Fed. Cir. sees more obviousness and 102 issues than other matters, and the reversal rates for obviousness and 102 issues are higher, then the reversal rate percentages should be weighted accordingly to give a more accurate picture of the number of reversals of each issue relative to the total number of reversals.

  43. As Figure 2 shows, the average reversal rate across all issues (other than claim construction) is 18% and 21% (including claim construction). Of course, a number of issues appear to have inordinately high reversal rates–with the oft-appealed issue of claim construction (at 33%) near the top of the list.

    This seems consistent with earlier studies. And I also seem to remember that m+f claim constructions have an even higher reversal rate.

  44. Average reversal rates are kind of meaningless. Because, for true professionals, certain factual circumstances may signal much higher odds than other circumstances.

  45. Ted – This is not interesting work.

    Just kidding.

    However, I find it interesting only insofar as statistical generalizations about a population are applicable to a particular case.

    When people talk about a coin flip, I believe they are referring to the lack of predictability in any particular case–not only as relates to outcome, but more often to the grounds for the decision.

    It doesn’t do us attorneys much good to be right for all the wrong reasons.

    Heck, even “Malcolm Mooney” can do that!

  46. Ted – This is interesting work. You have convinced me that the odds-on-appeal are not simply a 50/50 coin flip and that these odds depend upon the issue being appealed.

    However, most dice games involve odds that are different than 50/50. Assuming that the dice-game can offer 20/80 odds. Does your empirical work do anything to dispel the notion that that the CAFC decision is any better than a roll of the dice?

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