Waiting for Federal Circuit Decisions

by Dennis Crouch

I am regularly asked how long it will take for the Court of Appeals for the Federal Circuit to issue its decision in a given patent case. The chart below helps to answer that question. The chart shows a set of boxplots for the timing of Federal Circuit patent decisions appealed from US District Courts.  At its most basic, the chart attempts to provide some guidance as to typical timelines from Federal Circuit oral argument until the resulting decision. The boxplot shows the range between the 25th and 75th percentile of that pendency and also the median pendency.

As is apparent, non-precedential opinions (including Rule 36 decisions) are much quicker than precedential decisions.  With a comparative median of 7 days to about 4 months respectively.  The group as a whole (precedential and non-precedential) has a median pendency of 70 days.

022413_1623_WaitingforF1

Although not shown here, one driver of even-longer precedential opinions is the appearance of a dissenting opinion — adding about two months to the typical timeline.  And, en banc decisions take approximately twice as long as ordinary precedential decisions.  The slowest authors are Judge Newman, Rader, and O'Malley; the quickest are Judges Lourie, Moore, and Dyk. 

11 thoughts on “Waiting for Federal Circuit Decisions

  1. Dennis, this is very interesting and helpful. What, of course, would be even more useful would be a state-by-state analysis of time to district court patent rulings, but I shudder to think how much number crunching THAT would involve!

  2. Are all oral arguments so listed, and if not, do we know what are the deciding factors for doing so? (is there some selection bias at play?)

  3. BMW

    Here is what I did: (1) downloaded all listings of oral arguments since 2006 from the CAFC website; (2) download listing of all CAFC decisions since 2009 from CAFC website; (3) download all CAFC decisions since 2009 from LexisNexis. I then parsed these in a way that I could match them according to which decisions correspond to which oral arguments and pulled out info such as (1) lower decisionmaking body (PTO, DCT, ITC…), (2) type of decision (precedential nonprecedential); (3) judges on panel and which one authored any opinion.   At that point it was easy to calculate these timing figures for any slice of the aformentioned information. 

  4. Actually in most cases I’d probably just give you my opinion right after the oral arguments were finished. And I’d just say them instead of writing them down, although you could get a transcript from the clerk.

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