Federal Circuit Dispositions, Part II

By Jason Rantanen

As discussed yesterday, the Federal Circuit disposed of approximately 19% of the patent infringement appeals it adjudicated in FY 2010 via Rule 36 summary orders/affirmances.  Although this datum is interesting, it begs the question whether the CAFC's use of Rule 36 affirmances has changed over time.  To answer that question, I searched WESTLAW for the court's Rule 36 orders and manually reviewed the results.  As the following table shows, aside from a modest rise in 2006 and 2007, the CAFC's use of Rule 36 affirmances has remained relatively constant over the last twelve years – with one important exception.

CAFC Rule 36 Dispositions 1999-2011
That exception is FY 2011, which so far has exhibited a notable uptick in Rule 36 orders.  The blue bar for 2011 reflects only the Rule 36 affirmances issued through the first four and a half months of the fiscal year, which runs from October 1 to September 30.  If the current rate continues, the CAFC will issue over a hundred Rule 36 affirmances in patent infringement cases -  50% more than the next closest year (FY 2007).

The below chart presents the data in a slightly different way, comparing it to total patent infringement appeals and panel dispositions for the years in which I have data.  Data for FY 2011 reflects appeals docketed and terminated through January 28, 2011.  Note that the termination data for FY 2011 is slightly different from previous years (those years reflect panel adjudications, not all terminations).  As a result, the number of actual panel adjudications is likely somewhat lower. 

CAFC Appeals and Dispositions FY 2006-2011

Limitations of this analysis: Because the data was obtained through searches of WESTLAW, it's possible that the number of Rule 36 dispositions is under-inclusive.  I suspect, however, that the variation is not particularly large, as the CAFC's own charts indicate that for patent infringement cases there were 42 summary affirmances in 2010, 55 in 2009, and 36 in 2008, an average variation from my data for those years of about 7. (Data for prior years is not readily available).

19 thoughts on “Federal Circuit Dispositions, Part II

  1. 19

    Hawk needs to pass the exam and get cool with the ethics rules . . . then strut his ‘tude.

    It’s bad enough that the examiners don’t have to sit the PTO exam. That is, in my eyes, a rip-off of the real professionals, and possibly how Kuhn got his ticket, seein’ how’s he’s a former examiner.

    I see 31 patents for “Jordan Kuhn” as assistant, none as primary, so he couldn’t have been there too long.

    [This comment is all chopped up because TypePad keeps blocking me. Or maybe it’s my Google Chrome.]

  2. 18

    I admit I am conflicted on this issue and regret Hawk’s attitude.

    You would be the first to agree that Hawk adds a lot to the discussion, and not just his wit. So I have noooo problems with the website. It’s dispensable, but a good read most of the time.

    Hawk needs to pass the exam, and get cool with the ethics rules . . . then strut his ‘tude.

  3. 17

    BOTOH, like the other professional prosecutors who contribute to these discussions, I may be “garden-variety”, in Hawk’s words, but at least I went to a lot of trouble, sweat a lot of bullets, gave up a years of income, and paid a holy be’jeesus lot of money for my ticket, and I’ll be dipped in sheet and ice skate backwards across heell before some patent agent/attorney wanna-be gets a free ride at our expense. What’s Harvey’s number, anyway?

  4. 16

    I admit I am conflicted on this issue and regret Hawk’s attitude.

    You would be the first to agree that Hawk adds a lot to the discussion, and not just his wit. So I have noooo problems with the website. It’s dispensable, but a good read most of the time.

  5. 15

    I dunno’. Kuhn, who is a registered agent, could have a problem with OED if this puffery is a misstatement of fact.

    Iza think Kuhn could have a problem even (or especially) if this puffery is not a misstatement of fact – as you point out that neither is an attorney, any statements of litigation experience may make the OED interested (in light of 37 CFR 10.31, 10.34 and 10.49) amongst others.

    One wonders, that if the cat is out of the bag, and sees a downed hawk, isn’t it likely that the cat has found its next meal? Perhaps the “comment section” wont be the only thing that gets taken down.

  6. 13

    Yep, something sure set the ole’ Hawk off. The problem started w/ his puffery:

    “Platinum Patents drafts and prosecutes patents with more firepower than your garden-variety prosecutor, because our litigation experience brings first-hand insight into what it takes to draft enforceable patents.”

    This necessarily implies that Hawk and his buddy Kuhn have more litigation experience than us garden-variety dudes, and that experience makes them better patent prosecutors. The PP website says of Kuhn: “Besides being a patent agent (62154), Jordan works extensively in patent litigation as part of Patent Hawk.”

    Not sure I follow how someone is a “part of Patent Hawk.” I thought Patent Hawk is a person: Gary Odum. Never mind.

    So, anyway, I asked in my comment how much “litigation experience” can they have when neither is a lawyer. Seemed like a reasonable question.

    I exacerbated that “ad hominem” by asking whether a person not registered with PTO can legally draft patent applications for a fee. Then you “ill-tempered punks” — I’m sure he’s not referring to me — jumped in at that point with your thoughts on the issue.

    [BTW, don’t you gasp at the irony of Hawk calling his followers “ill-tempered punks?” It’s like Rush Limbaugh referring to his critics as “insufferable windbags.”]

    If Hawk and Kuhn were members of a state bar, their advertising of “litigation experience” giving them an advantage would likely draw fire from the ethics cops, particularly if they do not have an unusual level of litigation experience that does, in fact, give them an advantage. But since they’re not lawyers, they might figure they don’t have to worry about pesky ethics complaints.

    I dunno’. Kuhn, who is a registered agent, could have a problem with OED if this puffery is a misstatement of fact.

    BTAYQ, Hawk’s pulling the plug on comments is just his way of playing Mubarak with us.

  7. 11

    A couple of nits to pick:

    1. The word data is plural. Always has been; always will be. Except that the illiterate geeks have pretty well squeezed the grammar out of it. But for a self-respecting, white-tower academic, one should always use the proper “data were obtained”.

    2. I’d be careful about how much you infer from these data. You’ve stuck your neck out with that mean looking red projection for 2011. Can you justify it simply on the basis of the annual numbers? I don’t think so. I don’t see anything here suggesting that the annual data are evenly distributed across the year, which is where ping seems to be going with his comment.

    Lies, d&mn lies, and statistics.

  8. 9

    Might this be a behind the scenes effort by relatively-new Chief Judge Rader to dispose of cases quicker than previously? The uptick seems to overlap with his taking on the role of CJ.

  9. 7

    I had a similar thought. We keep hearing about there being more litigation in the past few years, but has that translated into more cases before the CAFC in 2011 than in previous years? If so, then the projected rise might not indicate a greater likelihood of summary judgement than in previous years.

  10. 6

    You’re both right that the apparent uptick in 2011 might just be due to seasonal variation in oral argument scheduling. I went back and looked at the data for the first four and a half months of the three highest years (2004, 2006, and 2007). The Rule 36 dispositions for the same time period were 16 (2004), 24 (2006), and 31 (2007). This would project out to 42 (vs. 45 actual), 64 (vs. 59 actual), and 83 (vs. 64 actual). So the explanation is certainly plausible, although even at the 2007 rate we might expect to see around 78 Rule 36 affirmances this year – still quite a few more than even the previous highest year. Even 2007 was still just outside two standard deviations of the mean for the years in which I have data.

  11. 5

    Nah, you are making unbased assumptions in the Bilksi matter. Sure, Rule 36 dispostions are alomst always issued the day after oral argument – but ya miss the point that the court manages its docket and that includes when it schedules oral arguments. As Bilski was considered a big deal and much more than strictly 101 issues would be affected, it is perfectly logical to consider that the waiting for the deicsion (and its aftermath to coalesce) has a direct relation to the uptick.

    But you are fight in the Big D chart showing timing of actions – I remember it well cause it coincides with the benefits directly for the judges (and eventhe judges have no shame in manipulating the system for their own personal gain).

  12. 4

    The Bilski point is almost certainly wrong. Rule 36 dispositions are almost always issued the day after oral argument. I doubt that there was an inordinate number of 101 cases argued in January and February, but am open to being proved wrong. Regarding the “uptick,” I think it’s too early to say. 2 thoughts on that:

    1. Some months are more opinion-heavy than others. I think Dennis did a chart of this a while back, but I’m not finding it in my searches. Rule 36 dispositions usually issue within a day or 2 of argument. Some months are more argument-heavy than others. Individual active CAFC judges usually sit 10 out of 12 months per year (IIRC), and most take their 2 “months off” near the summer. The first four months of the year usually have all/most of the judges sitting and likely more oral arguments (and thus more cases to be disposed of and thus more R36’es). I don’t know how many cases were argued in January. There were 46 cases argued in February (counting the block of In re NTP cases as 1).

    2. The CAFC has been going with a lot of vacancies lately. All else being equal, when the judges are overloaded with opinions to write from prior months, they’re probably more likely to Rule 36 a marginal case.

  13. 2

    Interesting. It may also be worthwhile to compare the caseload in those years (i.e., heavier caseload might lead to more Rule 36 affirmances) and also the number of judges taking cases on the bench. You have had several judges retire or take senior status in the past year with no replacement (with the recent exception of Judge O’Malley). So the caseload per judge may be increasing for that reason too.

  14. 1

    has remained relatively constant

    About as constant as a roller coaster ride, which is to say, not constant at all. If ya have to take the scale of the graph out far enough for the data to look constant, that the actual differences in data swallow the value of the data, ya be making thing up.

    Also, the uptick in FY 2011 can quite naturally be attributed to the number of cases that were bein held back awaitin the Bilski decision. Courts do tend to manage their dockets that way.

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