The Federal Circuit released two more “Rule 36” from the Federal Circuit: Hill-Rom Services, Inc. v. Stryker Corporation; and First Quality Baby Products v. Kimberly-Clark Worldwide, Inc. Both of these cases involved the patentee appealing PTAB obviousness determinations during reexamination proceedings.
The Federal Circuit’s local Rule No. 36 provides:
Rule 36. Entry of Judgment – Judgment of Affirmance Without Opinion
The court may enter a judgment of affirmance without opinion, citing this rule, when it determines that any of the following conditions exist and an opinion would have no precedential value:
(a) the judgment, decision, or order of the trial court appealed from is based on findings that are not clearly erroneous;
(b) the evidence supporting the jury’s verdict is sufficient;
(c) the record supports summary judgment, directed verdict, or judgment on the pleadings;
(d) the decision of an administrative agency warrants affirmance under the standard of review in the statute authorizing the petition for review; or
(e) a judgment or decision has been entered without an error of law.
Since January 2015 (10 1/2 months), the court has issued 101 precedential opinions.
Although the two cases here do seemingly turn on factual questions, they also deal with obviousness – which is the key issue in the vast majority of Patent Office decisions.
Over the past year, the Federal Circuit has decided a large number of Patent Office appeals with R.36 judgments or non-precedential opinions. Looking at Federal Circuit decisions since January 1, 2015 that stem from Patent Office appeals: approximately 20% are precedential opinions; 20% are non-precedential opinions; and 60% are Rule 36 affirmances without any opinion at all.