By Jason Rantanen
Last week, in writing about the Federal Circuit’s grant of en banc review in SCA Hygiene Products v. First Quality Baby Products, I observed that the order was not yet available on the court’s website. Upon checking again this morning, I noted that it continues to be unavailable.
As a general matter, I tend to favor the existence of the Federal Circuit and believe that the judges who sit on that court are largely just folks who are trying to do the best they can in deciding very challenging cases. I don’t always agree with the judges’ reasoning, but I appreciate the difficulty of what they are called upon to do (as well as how much easier it is to criticize an analysis than it is to assemble an analysis).
Where I tend to be most disappointed is with those aspects of the court that do not operate at this high level; or even at a “pretty good” level. In particular, I am routinely unimpressed with the lack of public transparency when it comes to information about the court’s decisions. One example is the court’s statistics page, which contains data that can be difficult to interpret because no methodology is provided. Worse, the variety of statistics that the court has publicly released has shrunk over the years. The court used to provide data on the dispositions of patent infringement cases, for example; that data is no longer provided by the court.
Much greater than problems with the court’s statistical data, however, is the lack of transparency in connection with the court’s decisions themselves. This is not to say that there is no information: the court deserves credit for deciding, several years ago, to post its opinions on the Federal Circuit webpage. These opinions are published at http://www.cafc.uscourts.gov/opinions-orders/ throughout the day. Since around the middle of 2007, the material released at this location has included summary affirmances under Rule 36, and for the past few years “selected” orders have been published there as well.
Unfortunately, no criteria for which orders are “selected” for publication on the website are provided, and extremely significant and important orders are sometimes not released there. For example, even though the Federal Circuit’s announcements page contains an announcement about the grant of en banc review in SCA Hygiene and an invitation for amicus participation, the order itself (which contains the questions presented) is not available on the court’s website. Instead, users are directed to download the order from PACER, a registration-required, fee-based system that is routinely criticized on access to justice grounds. Surely, such an important order would be easily available to the interested public. It is not.
In addition, as Hal Wegner recently pointed out in his email newsletter, the court’s public revelation of its decisions via PACER creates a second, possibly more significant, issue: those folks who do have PACER access will know about the court’s decisions before those who merely follow its public website. This is because the decisions can appear on PACER up to two hours before they appear on the Federal Circuit’s website. The result is that those who follow that particular docket on PACER will gain first knowledge about the outcome of the case, something that may have significant financial implications.
There are some actions that followers of the Federal Circuit can take if they want to stay on the cutting edge of the court’s dispositions. First, the court has an RSS feed through which it announces releases of opinions on PACER. You can subscribe to the RSS feed here: http://www.cafc.uscourts.gov/rss-opinions.php (thanks to Hal Wegner for the tip!). I’m told, but haven’t yet confirmed, that this feed updates at the same time that an opinion is released on PACER. Second, if you have access to a document monitoring service, such as BNA, you can set it to alert you when individual dockets are updated. Again, I haven’t yet confirmed how “real time” the alert is. Both approaches have drawbacks, but they do provide partial solutions.
But the bigger problem remains: the challenge of gaining access to all of the court’s theoretically “public” decisions. PACER is not like, say, the USPTO‘s trademark search system, which a model of transparency and ease of use. Instead, it is the electronic equivalent of the warehouse at the end of Indiana Jones and the Raiders of the Lost Ark, with the addition of a fee to open each box. And the court’s recent elimination of the “daily disposition sheet” has only made it more difficult to even know what’s kept in that warehouse.
With all the technological and political issues surrounding PACER, figuring out how to open up all the court’s judicial decisions to greater public access is, perhaps, not an easy problem to solve. But given the court’s ability to address complex issues of fact and law in its decisions, it’s rather disappointing that it hasn’t applied that same ability to releasing those decisions in a more transparent way.
One possible start might be to ensure that court opinions and orders are released simultaneously on the court’s website and PACER. Another would be to post all the court’s orders on the website, not just those that are “selected.” And a third would be to create an electronic, publicly-available historic set of all the court’s decisions, not just the incomplete set that is currently provided. All three would would go a substantial way to ensuring greater judicial transparency and to avoid any more embarrassing lapses like the SCA Hygiene snafu.
By the way – if you are looking for that particular order, you can download it here: SCA Hygiene en banc order
My moderation policy is in effect for comments on this post. Off-topic, excessive and abusive comments will be removed.
Edit to add a reference to the elimination of the daily disposition sheet after the comment from Pilgrim. Some additional minor edits for clarification.
I wonder if your post got any attention at the court. Looking at the stats page today, I’m seeing a lot more detail than I think I remember from recent years
link to cafc.uscourts.gov
This post sounds like the plaintive whining of a privileged elite. The core purpose of the court is to decide cases, and not to supply every possible data item and statistic that academics want to have. Preparing and providing that data and statistics, with appropriate analysis, comes at a cost. Why should taxpayers bear that burden? The academics who want this data and statistics should tap the massive tax-free endowments at their universities to extract the data they want from the case decisions, and determine the statistics they want. After all, the principal use of this data is to support the publications, positions and salaries of academics, so why shouldn’t they bear the cost of its creation? If government makes the raw information readily available–case decisions on Pacer–then academics have all they need to produce whatever derivative information they want.
This is a good comment. The real world is tough.
If government makes the raw information readily available–case decisions on Pacer
Decisions on Pacer are hardly “readily available”, at least not compared to the obvious alternatives discussed here.
And it’s not just “academics” who would like the information.
Preparing and providing that data and statistics, with appropriate analysis, comes at a cost.
It’s a minimal cost, to say the least. And I would not be surprised if the Federal Circuit continues to compile the data and statistics. They just don’t share it.
That’s right Pacer needs to end. Ridiculous. But his other comments are good.
Only a small part of my post related to statistical analyses; if you don’t believe that those have value in terms of judicial transparency or provide a benefit to the public, then nothing that I say is likely to convince you.
The broader point relates to the incompleteness of the material available on the court’s public website. Practicing lawyers tend to get caught up in PACER; for the general public, it’s an extremely poor mechanism for public access to court records. Especially when compared to other public record systems such as PTO’s trademark database. The core purpose of the court system isn’t just to resolve disputes between parties; it’s to resolve them in a way that earns the public’s trust and confidence. A certain degree of transparency is an important part of achieving this goal.
On the statistics point, two additional comments. First, from an efficiency perspective, the court itself—as the generator of the information—is the lowest-cost assembler of information about what it’s doing. Anything that I do, or private industry does, is necessarily going to be more costly. Second, my experience is that private industry is producing a lot of the statistical analyses of judicial decisions and behavior these days; much more than the academy. Perhaps that’s because they perceive this information as valuable. Academics just don’t have the resources to begin to approach what private industry can do. I’d love to draw upon this magical “massive tax-free endowment”; perhaps you can tell me where it is?
There’s a deeper point buried in your comment, though, that relates to the amount of public resources that the government should devote to different activities. This is absolutely a policy issue, and we probably have different views on it. I see judicial transparency as being less valuable than national defense, for example, but more valuable than, say, flat screen monitors in courtrooms.
Statistical analysis of judicial activity definitely has significant benefit to the public, but I don’t believe it is a function of government to pay for producing that analysis. We do have a policy disagreement there. If the public wants the information, the public can organize itself and prepare the information. Beyond PACER, the public has the ability to obtain court decisions by other means and create its own databases to analyze and make them available. You can, if you want, station someone at the CAFC every day, get the opinions, upload and massage them, and produce whatever you want. You just want the taxpayer to pay for it. I don’t. Some in this country have developed a persistent sense of entitlement, that everything should come from government. It shouldn’t. My view is that the information and statistics you are asking for represent a luxury that the elite should pay for if it wants it.
The University of Iowa Foundation, at your university, is reporting a current balance of $1.404 billion–that’s with a B–and a goal of $1.7 billion. Its press releases report millions in gifts, and a 2012 law school campaign seeking $50 million. You appear to have the resources you need.
Well, I am loath to suggest it, but maybe Google could get on it. After all, putting all of this up on Google is just the sort of thing they are very good at. Actually, it would seem to be a perfect project for Google to get involved in. Make all the public legal documents in accessible via Google…..
Gotta love being called by a reporter about a decision in a case you’ve been handling before you were even aware that of the decision.
But that was then, and this is now where disposition e-mails are sent to counsel by the new ECF system. This systems requires everything to be filed electronically, and counsel are automatically notified.
That being said, I still don’t know how to use the system to access amicus briefs. If I type in a case number or case name, I can download are the party briefs.
Am I doing something wrong?
Superb post, Jason. This is one of those issues where all parties should be able to join hands and promote some unambiguous progress.
The best way to get the word out is the old fashioned way: every time that any of the Federal Circuit judges are out there giving speeches or sitting on panels someone should raise the issue and ask them if they have plans to do anything about it.
I also second Dan Feigelson’s comment 8 about improvements to the search engine.
Regarding transparency, I’m not aware that Chief Judge Prost made public her protocol for assigning judges to replace Rader’s assignments. The replacements should have been selected randomly (since the rules mandate that the original panels are selected randomly). However, with her selection of Mayer on Ultramercial, I suspect she appointed judges to suit her own agenda. If this is true, I don’t think the decision should stand.
Ultramercial should be on this and should file a FOIA request.
Mod – Comments relating to whether Ultramercial was correctly or incorrectly decided removed as off topic, especially since that issue has been discussed to death in other threads.
“Mod – Comments relating to whether Ultramercial was correctly or incorrectly decided removed as off topic, especially since that issue has been discussed to death in other threads.”
I want to get this straight, comments about whether U was correctly or incorrectly decided are removed as off topic, even a comment merely stating that if the panel was run again it would come out the same thanks to the law now being applied. Buuuuuuuut, a comment regarding an implication that the vote in the case supposedly was rigged is not removed as being off topic?
Ayyy yey ayy.
Yep. Any other questions?
My original post was on topic and had to do with transparency of the CAFC, albeit a different aspect than covered in the article but still related to transparency. The mechanics of Mayer’s appointment to the U panel has always bothered me because the mechanism therein was never made transparent. I never used the word “rigged.”
“My original post was on topic and had to do with transparency of the CAFC, albeit a different aspect than covered in the article but still related to transparency”
Yes I finally picked up on that tangential connection between your paranoid theory (maybe even conspiracy theories) and “transparency”. Such as it is. That’s why I let the matter drop. Fine, fine, it totalllly fits into the subject at hand.
“The mechanics of Mayer’s appointment to the U panel has always bothered me because the mechanism therein was never made transparent. I never used the word “rigged.””
If you don’t think that it was “rigged” what is bothering you about it? Is it literally just the “secrecy”? To be sure, as other posters noted they’ve detailed their methods elsewhere in publications.
I understand your argument to be that because Ultramercial turned out how you believe Prost would decide it, the conclusion is that Mayer must have been appointed in an inappropriate manner. Is that correct? Putting aside the fact that Ultramercial would have come out the same way without Mayer, I don’t see how you reach that conclusion. Put another way, if you were filing a complaint, I doubt you would survive Twombly with those facts. A perfectly reasonable conclusion is that Mayer was appointed randomly.
Also, FWIW, I’m pretty sure FOIA only applies to agencies.
I did not say “Mayer must have been appointed in an inappropriate manner”, I said that I suspect it it was inappropriate because there would only be a 1/16 chance that Prost would appoint the one judge hardest on 101. That’s pretty slim odds, don’t you think?
“Putting aside the fact that Ultramercial would have come out the same way without Mayer” — While this appears to be true on the surface, it is simply not definitely true here. Ask anyone who has clerked for the Federal Circuit. When these judges decide a case they discuss it among themselves and there is some maneuvering/editing involved to get others to sign off on an opinion. If Newman was appointed to the panel, I would think it likely that O’Malley would have sided with Newman and ruled for Ultramercial. But she may have felt bullied here under the circumstances and felt a dissent was futile.
I agree with everything you just said. Still you don’t actually think she would break the rules to appoint Mayer do you?
What odd thing is that if Rader had not resigned Prost would not have been chief judge, but rather Moore would have become the next chief judge.
there would only be a 1/16 chance that Prost would appoint the one judge hardest on 101. That’s pretty slim odds, don’t you think?
Indeed! It’s like one in a million! Except it’s 1 in 16 instead. But otherwise totally the same!
If Newman was appointed to the panel, I would think it likely that O’Malley would have sided with Newman and ruled for Ultramercial.
And then what? What changes? Answer: nothing changes.
Ultramercial is the tip of the iceberg of computer-implemented claims that are going down the tubes. For those who would embrace embarassing claims like Ultramercial’s claims, here’s some disappointing news for you: 2015 is going to make 2014 look like a software patent superbowl party. And 2016 is going to be even worse.
The odds of Mayer being on the panel were exactly the same as any other judge. Again, that statistic shows nothing (and in fact it is not 1/16). Imagine I said, “don’t you think it’s weird that if I pick a random team from the NFC, there’s a 1/16 chance I’d pick the Detroit Lions? Slim odds!”. No, the odds are not slim. They are 1/16, and they are the same for picking any other team. That someone picked the Detroit Lions tells us nothing about whether that pick was somehow biased. They are just as likely as picking any other team of the remaining 15.
I have no doubt the judges talked amongst themselves. I would be surprised if they didn’t. But your conclusion that that happened again tells us nothing about how judges would have decided had circumstances been different. Perhaps it would have been different if Newman was appointed. That didn’t happen. That does not lead to the conclusion that something improper occurred.
There are many cases that I do not agree with. I do not assume that because I don’t agree with them, something improper occurred, absent some indication to the contrary.
Perhaps your trust in the impartiality of the judiciary has been eroded by the recent scandal with Chief Judge Rader. I would not blame you for that opinion. However, I still would like to think (hope?) that overall our system works, and we have to trust that those that are a part of it are ethical, otherwise we risk more than just one patent being invalidated.
“and in fact it is not 1/16)” I understand your argument, but the fallacy is Mayer is the most anti-software on the entire panel. If for instance Dyk had been put on that panel, I would not say there was a 1/16 chance of something suspicious going on here (because as you say, there is 1/16 chance of any judge being picked). But since Prost is anti-software and she happens to pick the biggest anti-software judge, then yes I still call it that the odds are 1/16 of this being a truly random event. If Lourie had resigned and Rader picked Newman then I would say the same thing.
I responded (thanks for the respectful response, Jane) but my response is caught in the “moderation filter.” What magic words cause stuff to get stuck in this filter? My response used “Dyk” but I would assume this blog would pass that one, lol
g e n e
“O’Malley”
Yes when I think about O’Malley “easily bullied into huge changes to the patent system” is what immediately comes to mind .
Pretty sure there is something about how the new panelist are to selected in the Fed. Cir. practice guide or whatever it is called. I have a dusted copy around here somewhere.
I would be shocked if Prost broke the rules in appointing Mayer. That would be worse than Rader’s email.
The rules don’t address this situation. If Prost did hand-pick Mayer, I don’t think she technically broke any rule. I don’t know what really happened, but I think chances are more likely Prost hand-picked Mayer than it being a truly random pick.
If Prost could hand pick the judge, then I agree that she would pick Mayer. Prost is a nightmare. She is another no science interest prior to having the opportunity to become a judge.
Regarding transparency, this could have all been easily addressed if Lourie’s opinion in the procedural history said something like, “Due to Rader’s departure, Judge Mayer was randomly selected for this panel.” In that case I would trust the Judges’ integrity and not question it further.
And there does not seem to be any mechanism to get clarification from the Fed Circuit about this issue. If FOIA won’t work (as Jane stated above), then what can be done? I guess nothing.
Seek out a mole.
Actual the CAFC rules/procedures do address this situation. Internal Operating Procedure 15 para. 2 (cited in the first footnote of the Ultramercial decision) provides that on remand from the Supreme Court, the original panel is to be reconsitituted and if cannot be reconstituted, it will be assigned to the original panel member(s) and “one or two newly selected judges.” It does not mention random assignments.
Also, Fed. Cir. R. 47.11 (Quorum) provides that if a panel member is unable to continue after oral argument due to resignation or recusal, then if the remaining judges are not in agreement or if they so request, “the chief judge . . . will secure another judge to sit with the panel.”
Given that substituting in for another judge is outside the normal workload of the judges, this is arguably not a random process, and the chief judge would have to find a judge willing to do this.
That’s what I thought. So Prost did select Mayer.
Yes, the rules do not require a random assignment (I never said they did which is why I said it is not addressed in the rules). But since original panels are randomly chosen, you would think the proper thing to do is make a random assignment. Not hand pick to suit the Chief’s agenda. Goes back to my 1/16 probability that this was not a hand pick by Prost.
See my earlier posts on this, when Rader resigned I predicted Prost would appoint Mayer to ensure a defeat for U. I see this as a transparency issue. I don’t think the Chief judge should be appointing to suit her own agenda.
The result doesn’t really seem fair, does it? Not to stray off topic, but the effect this case is now having on patent litigation is tremendous.
I remember thinking about 4 years ago that Rader was hand picking replacement judges to get the result he wanted.
I don’t see a transparency problem with Ultramercial. Federal Circuit Rule 47.11 says this in relevant part: If a judge of a panel that has heard oral argument or taken under submission any appeal, petition, or motion is unable to continue with consideration of the matter because of death, illness, resignation, incapacity, or recusal, the remaining judges will determine the matter if they are in agreement and no remaining
judge requests the designation of another judge. If the remaining judges are not in agreement or if any remaining judge requests the designation of another judge, the remaining judges will promptly advise the chief judge who will secure another judge to sit with the panel.
I think this happens rarely enough that no greater detail is necessary than what the rule says. Presumably, once Judge Rader left, the two remaining judges asked for the designation of an additional judge. I have no reason to believe that CJ Prost selected Judge Mayer for “agenda”-based reasons, and I doubt anyone else does. More likely, Prost selected Mayer because he’s a senior judge and was available to fill in. The pool of senior judges is a natural place to look when the court needs someone to pick up the slack for a missing active judge. Also, Judge Mayer’s vote looks not to have affected the outcome. That isn’t to say that judges never persuade each other and that a different judge couldn’t have persuaded the other two to vote differently or write the opinion differently, just that Mayer seems not to have broken a tie or anything like that.
I’m all in favor of transparency in general, but see no issue with Ultramercial.
Maybe, I guess she has the power to do so and there really isn’t anything wrong with it or anything we can do about it.
Jason, here’s another one: once upon a time, the CAFC’s web site had opinions organized in half-year increments. So if you weren’t sure of the name of the parties but you remember approximately when the opinion issued, you could look it up that way. Now for “date range” you can look in the last 7 days, last month, last 3 months, last 6 months, last year, and “older”. Would it be so much trouble to have searchable opinions with a good search engine?
As to transparency, and decision reporting, I should like reader views on the site linked below.
The 2011 Human Genome case (v. Lilly) on utility went to the UK Supreme Court. You could try searching for that, as a test run.
As soon as the UK patents courts hand down a decision it becomes available on this site, in full, with no fee to pay whatsoever. I use it a lot. I understand it is under pressure to make money though. I think it would be a great shame, to lose this wonderful resource. What do you think, please?
link to bailii.org
“As a general matter, I tend to favor the existence of the Federal Circuit and believe that the judges who sit on that court are largely just folks who are trying to do the best they can in deciding very challenging cases.”
It’s a sign of the times that you even have to say that out loud.
I wonder if this is a policy of the judges or an example of the ongoing petty tyranny of the Clerk’s Office.
I suspect that the decisions referenced in this post are unilateral decisions of the clerk. This is of a piece with their ongoing practice of routinely rejecting filings for minor technicalities (typos in the caption) or for violations of nonexistent rules. In general, that office is a part of the court that “do[es] not operate at this high level; or even at a ‘pretty good’ level.”
I have been subscribing to that RSS feed for several years, and I think it updates, for opinions, at roughly the same time opinions are posted to the public court website (i.e., usually around 11 am) though it will update with orders often the night before (12 am). I have no idea how this relates to the PACER release, though.
PACER continues to be one of the most frustrating hindrances to access to the law, and it is disappointing that the judiciary does not see the harm it inflicts on our system of justice by locking up decisions behind an indefensible “per page” fee system.
PACER was adopted by most courts in the 90s, and the fees were presumably put in place to maintain and pay for the costs the system. But rather than costs going down as technology has gotten cheaper, instead they have consistently been raised. Indeed, the “costs” charged by PACER have no link to actual costs, which can be seen through the “per page” fee which has no relation to actual costs of data storage. Looking at two files on my computer right now, a 2 page pdf order from the Fed. Cir. is 99 KB whereas a 21 page petition for en banc is 97 KB. How can the courts justify charging me 10X as much for the latter? The marginal cost of maintaining PACER surely does not account for this discrepancy.
I would encourage all practitioners in all courts (where possible) to use RECAP, a free web browser plug in that will archive documents pulled from PACER so that duplicate fees aren’t charged. I say “where possible” because certain courts have stated that using RECAP violates a terms of service, another disappointing and short cited decision by those courts to limit access to justice.
Jason, it would be interesting to see this piece updated with some discussion as to how the other Circuits handle these sorts of issues. For example, are the 9th and 2nd Circuits more forthcoming with information than the CAFC, or does the CAFC pretty much just do (and not do) what the 9th, 2nd, and other circuits do?
The Federal Circuit–the “technology court” and center of the patent universe–was the last of the courts of appeals to adopt ECF filing.
The 9th Circuit is the polar opposite and something of a model for courts in terms of serving the public’s need for information.
link to ca9.uscourts.gov
They have “published” and “unpublished” pages for opinions. The former is updated promptly at 10am PT, and the latter at 1pm PT, and if there are no opinions on any particular day, the court posts a “no opinions today” note to the site.
“Cases of Interest” (i.e. those with a lot of media attention) are on the front page with links to the actual briefs. Some oral arguments are live-video-streamed.
No court is perfect, and the CA9 is in the midst of a controversy about whether their panel assignments are truly random. But in terms of informing the public of how cases are being decided, the CA9 is far ahead of the Federal Circuit and most others.
All good points. You can add to the list the CAFC’s decision to do away with the Daily Disposition Sheet effective 12/29/2014. It used to be you could check the court’s website at 11am ET (or shortly thereafter) to see a list of all the opinions, dismissals, mandamus decisions, and rehearing orders in one place. No longer, unfortunately.
The court’s stated reason for eliminating the daily disposition sheet was “In compliance with Judicial Conference Policy on access to case information. . . .” I wonder what “Policy” of the Judicial Conference would make court records and information less accessible to the public, unless it’s a policy to make money off of PACER fees.
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