by Dennis Crouch
I have uploaded a draft of a short article of mine titled Wrongly Affirmed Without Opinion – If I am correct, is has some potentially of shaking up the Federal Circuit’s current practice of issuing so many Rule 36 Affirmances Without Opinion. [Download the Paper from SSRN: https://ssrn.com/abstract=2909007]
Many see the Court of Appeals for the Federal Circuit as the patent court because of its national jurisdiction over patent cases and its congressional mandate to strengthen and bring uniformity to the patent system, presumably through precedential decision-making. Oddly, for the past few years most of the court’s merits decisions in Patent and Trademark Office appeals have not been released with precedential opinions – or even non-precedential opinions for that matter. Rather, most are filed as judgments without any opinion at all. The court’s approach is surprising considering the current high levels of uncertainty in the areas of patent law procedure (AIA Trials before the PTAB) and doctrine (eligibility under Alice and Mayo) that are being decided without opinion.
This short article raises a surprisingly simple but novel argument: the Federal Circuit is required by statute to issue an opinion in these PTO appeals. As I explain, the statute is plain and clear and is supported by strong policy goals. The court’s recent spate of hidden decisions is threatening its public legitimacy. I respect the members of this court so much, and I hope they will use this opportunity to take the next step in the right direction.