Every day I read (or at least scan) the new CAFC opinions. Today, there were a number of Rule 36 affirmances, meaning that the court affirmed what happened below, but we don’t know why.
There are nine, so far, in August.
When I was a lawyer, I had a case Rule 36’d on our client, and I hated it. We’d written briefs, mooted the argument, traveled to DC, and then… nothing. When I clerked for the court a year ago, a Rule 36 meant that we didn’t have to write an opinion, because there was nothing really to say except “Hey, 102 says you can’t patent what’s old, and you did.” (I exaggerate, obviously.)
I wonder what y’all think about Rule 36 affirmances. I’m not sure if the CAFC does them more, or less, than other courts…
Expanding on Comment 1: As one who has never clerked, I may be on shaky ground. However, it seems to me the court is missing an opportunity to reduce its workload in the future. Somehow, the appellant was convinced to spend $100k or so and in hindsight it wasn’t even close. It seems to me the court could use these cases to educate prospective appellants about what has little chance of success.
After a case like these are decided (I would guess 3-0), would it take that much extra work to summarize the case, the grounds for appeal, and a brief statement such as “On this record we see no reason to set aside the decision/judgment of the PTAB/district court?” In August alone, there were nine obvious losers. It would be handy not to have to dig out the briefs or lower tribunal proceedings to see what is hopeless in a nutshell.
Or, would this be more work for the court than it seems?
Good questions. I should, first, be clear that some “big” cases brought by big firms and, apparently, for appellants with a lot of money are affirmed under Rule 36.
And I agree that maybe a simple summary would be at least some comfort to the appellant, but I’ve only seen the court do that on occasion. As you imply, it is a cost/benefit issue. Maybe they’re trying to dissuade appeals, but if lawyers don’t see why there’s an affirmance, the lesson may not be there?
“I’ve seen the world from both sides now” and I still don’t like the rule.
Are not some such clear-loser appeals still appealing as time-delayers? I.e., several more months for the owners to face finally having to pay large damages or even a business line shut-down by injunction? It can even delay the firing date of the G.C. and/or C.P.C. of the losing party. If such a client insists on appealing, then their O.C. does not have much choice even if they had no incentive. Nor are many GP G.C.’s that good at predicting how low their odds are for success on an appeal of a particular patent case, even with blunt O.C. advice. Furthermore, giving that advice can be difficult on a “luck of the panel draw” issues like claim scope interpretation, where different Fed. Cir. judges can take quite different views.
Good real world points that might explain a lot of it.
An awful practice. A slap in the face of the appellant.
I agree
Rule 36s are a necessary evil for a court that is overworked, and about to be way more overworked. We’re going to see an explosion of Rule 36s soon, I predict.
Of course, a well developed opinion is always nice. But someone has to do it…
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