Data on Federal Circuit Appeals and Decisions

By Jason Rantanen

A few months ago, I wrote that the Federal Circuit is now receiving more appeals arising from the Patent and Trademark Office than the District Courts.  As of the end of May, that trend is still holding strong.

CAFC Appeal Rates

This influx of appeals raises the question of how the Federal Circuit will manage its expanded docket.  One possibility is that the court will make greater use of Rule 36 summary affirmances in appeals where the panel votes to affirm.

To assess whether this is already happening, my research assistants collected and coded information about all decisions in appeals arising from the PTO and district courts that were posted to the Federal Circuit’s “opinions and orders” page since 2008.  (To my knowledge, this represents the full set of opinions and Rule 36 summary affirmances, but if anyone has contrary information I’d be very interested in hearing it.)  Orders (not all of which are posted to the website) are not included in the below graphs.

The first graph distinguishes between Federal Circuit opinions, both precedential and nonprecedential, and Rule 36 summary affirmances.  The orange bars represent numbers of opinions each year and the blue bars represent numbers of Rule 36 summary affirmances.  The percentages reflect the percentage of Rule 36 summary affirmances.

PTO Opinions v R 36

I see two takeaways from this graph. One is that the use of Rule 36 summary affirmances is indeed rising, both in absolute numbers and as a percentage of dispositions.  During 2015 and so far in 2016, the Federal Circuit has resolved more appeals arising from the PTO through Rule 36 summary affirmances than with an opinion.

But the court can hardly be accused of slacking: at the same time that Rule 36 summary affirmances are going up, the court is also issuing more opinions in appeals arising from the PTO than ever before. Last year, the court issued almost 60 opinions in appeals arising from the PTO and this year it is poised to exceed that by a substantial margin.

A similar trend appears from looking at precedential and nonprecedential opinions separately.  The following figure depicts numbers of precedential opinions (yellow), nonprecedential opinions (red), and Rule 36 affirmances (blue).  The rate at which the court is issuing both precedential and nonprecedential opinions is climbing, with the court issuing only a few less precedential opinions in the first five-and-a-half months of 2016 than all of last year.  The percentages here reflect the percentage of all dispositions that took the form of a precedential opinion.

PTO Nonprec prec Rule 36

I also looked at appeals arising from the district courts and include those graphs as below.  Here, too, the percentage of appeals disposed of through a Rule 36 summary affirmance has risen since 2008, as has the absolute number of Rule 36 summary affirmances.  However, given the slight dip in appeals arising from the district courts, I expect to see a lower number of both appeals and summary affirmances this year.

DCt Opinions v R 36

For the sake of completeness, here’s the figure for precedential and non-precedential opinions broken out separately.

DCt Nonprec prec Rule 36

Data collection notes: For purposes of this analysis, each document was treated as an individual disposition.  Approximately 10% of the data was coded by independently by two coders.  Comparison of the coding results indicated near-perfect agreement.

Thanks to my research assistants Peter Kline and Andrew Stanley for their work in coding these decisions.

34 thoughts on “Data on Federal Circuit Appeals and Decisions

  1. Prof. Rantanen,

    What was the methodology of predicting a drop in appeals from District Courts when the last 5 month data set is well over half the level of the previous year?

    Is appeal docketing a seasonal thing, with the majority of appeals docketed in the beginning of the year?

      1. So…..

        No answers then.

        I guess we will have to wait for the next update in about three months, at which time that “drop” will somehow magically disappear all on its own.

  2. Another 2015 Fed. Cir. statistic that would be interesting to see [especially in view of its pending cert challenge] is what % of D.C. jury validity or infringement decisions were reversed on appeal by the Fed. Cir? In particular, how does that compare with the recent Fish & Richardson report that in 2015 “in 83 post-grant appeals from the PTAB, the Federal Circuit has affirmed in 92% [mostly without opinion]? [I would suspect that the Fed. Cir. gives less deference percentage-wise to jury decisions, which raises interesting questions of jury deference vs APA deference?]

  3. Part of me wonders whether the hate of rule 36 summary affirmance by the attnys has less to do with “unreviewability” and more to do with the fact that they weren’t given enough of a chance to obfuscate the issues to confuse the Court into reversing the PTO

    1. The thinly veiled “all attorneys are Ev1l” CR@P is even worse than the political stuff.

      Just saying.

  4. Very nice job.

    I’d like to use some of your plots in-house in my company to illustrate the trends. Do I have permission to do so?

    Thanks

    1. It is your tree house, but it is getting pretty clear that politics is more important to patent law than the Constitution and the patent laws.

    2. I just cannot wait for the objective and equal application of “commentary is off topic and will be deleted.”

      Hooray!

  5. NW, if you had been around as long as I have, you would know that even the CCPA that transitioned into the Fed .Cir. was a retirement dumping ground for senators that lost their elections, and the like, with no prior science or patent law knowledge. The appointment to the CCPA or the Fed. Cir. of someone with either a science education or patent law practice experience by any president has always been rare.
    As for the Sup. Ct., which controls the Fed. Cir., how can anyone ignore the fact that many of the newer Sup. Ct. decisions that patent attorneys complain about the most are unanimous decisions of appointees by both parties?

    1. Actually, Paul, it does not surprise me that the decisions were unanimous. The key is the money and power of the big international corporations. If you haven’t noticed, Trump is actually to the left of Clinton, and Obama and Bush are almost indistinguishable.

      Also, a science background now more than ever has become important and the key is that it is not just that they don’t have a science or patent law background, but that they have professed antipathy towards patents. They pretty much are saying before the appointment, “yes I will burn the system down. No problem.” It may be that the CCPA was a hog trough, but that is very different than appointing people with no integrity that are appointed for judicial activism for burning the system down, because Obama can’t get the legislation that he thinks should be passed. That is the key to understanding the problem. Integrity. A loss in faith in the functioning of the system. That is why Trump has legs–no one believes these people are in anyway fair arbitrators.

      The issue is integrity. There is none at the Fed. Cir. or at the PTO.

  6. Was not the aim of the AIA IPR to reduce the load on the courts with an alternative to litigation?

    The emperor’s tailors remain hard at work.

          1. Great – that’s not the point of either this thread nor my comments.

            If you are going to go off tangent, well that’s one thing – but if you are going to go off tangent AND reply to my post, that’s quite another. In your replies, try to – you know – reply on point.

            Thanks

            1. What are you talking about anon? Are you suggesting that there is the same amount of dist. ct. work and more fed. cir. work?

              1. Your point is a non-sequitur.

                The work for Article III courts have moved in the opposite direction of what the AIA intended (unless the thread here is misleading).

                1. anon, if you believe the dotted lines, it looks like dist. ct. cases are being reduced and shifted to the PTO. The fed. cir. is more burdened, but the dist. cts. have less work.

                2. Night Writer,

                  I am analyzing the inherent aspects of the dotted line projections, and frankly, even at the “best case” of those projections, there is NO possible way that we have any net drop in judicial burden – and further, any even projected drop in DC simply pales in comparison to the increased numbers from the PTO.

                  In fact, both straightline and mere doubling of the five month totals show an INCREASE in DC actions (I do not know the basis for the projected drop).

                  In other words – the underlying premise here simply is not sound, and the basic fact of the matter – the only legitimate take-away – is that the very purpose of the AIA “band-aid” does not – cannot meet its purpose.

                  What we are really seeing is not a substitute for court actions (as was sold), but an entirely** additive path of attack on granted patents.

                  **perhaps a bit of hyperbole, but rest assured – any amount attributable to “coming from the DC” cannot even approach HALF the number now coming from the PTO.

                  SO….

                  You have a “new manner of attack” that is AT BEST on questionable Constitutional grounds, coupled with a clear lack of even meeting the expressed purpose of that new manner.

                  How much do you want to bet that this aspect will not even be recognized by the “champions of the AIA…?

                  I recall a presidential mandate (for executive actions) that had a Hippocratic Oath style of Primum Non Nocere.

                  link to en.wikipedia.org

                3. anon, I basically agree with you. I think it is just money. The IPRs are a lot cheaper and so naturally they are just going to get used frequently. Plus, I think anyone that has ever done any litigation knows that the way it works that the more causes of action there are (different ways of attack), then the more expensive it gets.

                  You make a good point. Perhaps they have done nothing but added more stuff. You know the fundamental problem that they didn’t address was simple to understand: the imbalance in the costs upfront of the D compared with the P. Had that been addressed, then patents that had validity problems simply wouldn’t have been litigated.

  7. Nice work.
    Here is another badly needed 2o15-2016 statistic [relevant to several cert petitions as well as some decision-makers]: How much change [not just numbers] in ultimate Fed. Cir. decisions in cases coming from D.C. decisions has there been lately? Specifically, has the number of patent cases decided on validity [as the result of Alice, etc.] greatly increased as compared to the traditionally larger number of cases decided on infringement? To put it another way, have there been more or less final decisions of invalidity from D.C. suits? Has the number of appeals of D.C. decisions in which validity was challenged decreased as the result of more validity challenges being made in IPRs instead, or not?

  8. The Federal Circuit’s increasing use of Rule 36 affirmances is concerning.

    The use of Rule 36 has significant implications for finality and collateral estoppel. For just one example of the mischief it causes, see 731 F. 3d 1336. As a hypothetical example, a summary affirmance of a judgment of invalidity based on multiple pieces of prior art, would seemingly have no preclusive effect with respect to what that prior art teaches, e.g., should any of the other claims then be asserted, undermining traditional notions of collateral estoppel and the case law arising from Blonder-Tongue.

    Although I appreciate the need to handle an increasing workload, I am sympathetic to Judge Reyna’s dissent in TecSec and perhaps, as he suggests, the Federal Circuit may wish to revisit its use of Rule 36, or reconsider how it interacts with collateral estoppel.

  9. Well. Well.

    Speaking of collateral damage. IPRs have vastly increased the work of the Federal Circuit.

    1. I strongly suspect that this is why the court took such a strong stance in Cuozzo on the unreviewability of PTAB institution decisions. They said to themselves “we are being flooded with these things, and if we have to give each one a substantive look, we will quickly drown in them. We need a way to throw them out quickly and easily at the Rule 36 stage.”

      You are correct, however, that IPRs necessitate expanding the number of judges on the CAFC accordingly to deal with the added caseload.

      1. Now you are sounding like me with the Constitutional challenge to the IPRs.

        But, I think the justices will reverse the unreviewability issue. I haven’t read enough to be sure, but I think too much mischief can be done with unreviewability. Not just in this case but in future laws. I also think they are going to let BRI stand.

        See, I make other predictions. I am unconfortable with these predictions because I haven’t read enough of the case law.

        1. How do you “reverse” the unreviewability given the clear and simple language from Congress?

          This is just not something that can be “interpreted” into being.

          1. I think the SCOTUS will say that it is unconstitutional. I feel uncomfortable with this prediction because I am too busy at work to read through all the briefs and case law. But, my sense is that unreviewability is just too much power in the hands of a political appointment. Imagine new legislation that makes decisions unreviewable and how this could be extended and abused.

            I am out on a limb with this. I need to read all the briefs and some of the cases. Imagine, the President could just call up and say none of those Google patents are going to be reviewed. And what could anyone do about it? You have the federal courts, but only if you have standing. Image other legislation too that may put this in. Just doesn’t seem like it works to me.

      2. IPRs necessitate expanding the number of judges on the CAFC accordingly to deal with the added caseload.

        Or we can stop granting patents on software “functionality”, which have no place in the system and which are nearly 100% responsible for the massive bubble of junk that has been clogging the patent system up for a decade and will clog up for decades to come unless it’s popped once and for all.

        I’m still waiting to hear a coherent argument in defense of software patents. We need them and all the gaping problems they present to the system because … why? The only answer that keeps popping up is that some super wealthy entitled people have “expectations”. We mustn’t disappoint them! Is there anything else other than that?

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