Wrongly Affirmed Without Opinion

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merits decisions in Patent and Trademark Office appeals have not been released with precedential opinions – or even non-precedential opinions for that matter.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.

Dennis Crouch

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

73 thoughts on “Wrongly Affirmed Without Opinion

  1. I can imagine the EPO’s Trump-like CEO Benoit Battistelli looking on with vivid green envy, while the American and English courts of appeal in patent cases manage the backlog on their ever-greater docket of appeal cases by summarily dismissing so many of them.

    Can’t happen at the EPO folks. Pay your appeal fee there and put together an admissible document set and for your time and money you get a “right to be heard” at oral proceedings on the merits.

    Of course, the increase in backlog at the EPO is compounded by Battistelli’s egregious behaviour, wilfully choosing not to fill judge-ships at the EPO, as ever more posts fall vacant. He and his minions, the clique he has imported to run the EPO, are convinced followers (from the French school of corporate management) of the notion that, until morale improves, the beatings will continue.

    1. Can’t happen at the EPO folks. Pay your appeal fee there and put together an admissible document set and for your time and money you get a “right to be heard” at oral proceedings on the merits.

      Shallow beyond belief, as part of the consternation in the EPO is how Mr. Battistelli has the courts in his pocket – isn’t that so, MaxDrei?

  2. I see two separate arguments in this paper, one more thoroughly developed than the other:

    (1) The CAFC cannot (i.e., lacks statutory authority to) issue Rule 36 judgments in appeals from the PTO; and

    (2) The CAFC ought not (even if the statute were amended) to issue Rule 36 judgments in appeals from the PTO.

    I can see the force of the first argument. My principle counterargument is that it seems strange that the practice could have gone on for so long if the statute is so clearly contrary, but that is a weak argument. I agree that “shall” usually indicates a lack of alternate options. Therefore, the first Crouch argument seems sound to me, unless and until I see some additional evidence to the contrary.

    I am far more skeptical of the second argument. If the CAFC lacks the statutory power to issue Rule 36 judgments from PTO appeals, then it should not do so until Congress amends the statute to empower the CAFC to do so. But Congress should empower the CAFC to do so. There is no compelling reason why appeals from the PTO should be treated differently than other appeals in the CAFC’s jurisdiction. Meanwhile, Rule 36 serves a useful purpose.

    I think that the proliferation of non-precedential opinions from the CAFC is doing harm to stare decisis. The proliferation of Rule 36 judgments, however, does neither harm nor good. It just makes the whole system seem as if far fewer appeals were actually filed.

    1. I think that the proliferation of non-precedential opinions from the CAFC is doing harm to stare decisis.

      This is what I would like to see developed and added to the good Professor’s paper.

    2. Thanks Greg. I largely agree with you. The main thrust of what I’m saying is that the statute controls. Once that is cleared-up we can debate over what makes sense for the court.

    3. Greg: I think that the proliferation of non-precedential opinions from the CAFC is doing harm to stare decisis.

      I don’t think that’s the case. Stare decisis is still with us. It looks just like it always did. Maybe your stethoscope is broken?

      I do think that it’s pretty much impossible for you (or anyone else) to prove that opinions which are non-precedential are “doing harm to stare decisis.”

      You have a 12 member court comprising judges with wildly divergent views that hears highly fact intensive cases, 3 random judges at a time. The cases are argued, without any substantial fear of penalty, by some of the most ethically challenged attorneys in our legal system, attorneys who habitually ignore Supreme Court cases they don’t like.

      If you are so concerned about the “health” of “stare decisis”, I’d focus elsewhere. Non-precedential patent decisions are relatively benign, to say the least.

  3. So, if an appellant loses a Fed Circuit appeal and only gets a rule 36 affirmance, could that appellant (rather than seek relief from the Fed Circuit itself) sue the Chief Judge of the Federal Circuit demanding a full opinion based on Dennis’ argument in a district court? It could then be appealed all the way up to the Supreme Court.

    1. Thanks PL. Right on, although I believe that procedurally, you would be able to do this through a motion for rehearing or petition for writ of certiorari. As such, there would be no need (and therefore no standing) to take the more extreme position of suing the Chief Judge.

  4. Very interesting article. I agree with one of the earlier comments – if the judges don’t want to write opinions, who is going to enforce this requirement?

    Also, one point that is not touched on but might be interesting is how the CAFC appears to take a different approach to Rule 36 affirmances in its different areas of jurisdiction. If you do a search on the CAFC’s opinions page by MSPB origin, you’ll see that, even though practically all the cases are affirmed, hardly any are Rule 36’d. Most have a short, non-precedential opinion. The ones that are Rule 36 uniformly appear to be ones where the appellant was represented by counsel.

    This seems to be a conscious effort by the court to give some written explanation as to why the appellant lost (and in these types of cases, lost their livelihood as well). It seems the court figures that if the appellant hired counsel, his or her counsel can explain what happened, but where the appellants are pro se, they deserve some explanation from the court. This Rule 36 practice appears to be the same in Veterans appeals.

    Also, for what its worth, the George Mason Law Review note at vol. 12, p. 1013 (2004) sets out statistics for Rule 36 dispositions and unpublished opinions for the 1982-2003 period in various subject areas, including PTO appeals. The article’s Rule 36 statistics appear low to me (possibly because article was focused on unpublished opinions, and the author’s Westlaw and Lexis might not have found all Rule 36 dispositions (see fn 97)). The “total decisions” by year listed in Table 1b are consistently lower than the “terminations by judges” statistics that the CAFC clerk publishes, suggesting that the author didn’t find all the dispositions.

  5. Great article, Dennis. Thanks for the effort, and for the preview.

    There’s a clear tension in patent litigation over where to draw the line between resolving disputes – including those that are a routine application of the law – and defining the law. Clearly, the PTAB is at the “dispute resolution” end of the spectrum – it issues thousands of decisions a year but designates almost none of them as precedential or even “of interest.” And SCOTUS, having exhausted its lawmaking interests in this area, is now declining cert in patent cases left and right.

    The Federal Circuit is in the unenviable position of occupying both roles – especially, as Dennis’s article notes, PTAB decisions are appealable directly to the Federal Circuit. Not only are these filings exceeding expectations, but they are also arriving at the Federal Circuit with a less robust case history than appeals following a full-blown district-court trial, including a complete discovery phase.

    I presume that the Federal Circuit is trying to fulfill both roles by defining law at relevant opportunities, and resolving routine disputes with these no-opinion affirmances.

    Presumably, the Federal Circuit often believes that the PTAB correctly applied the law and reached the correct result (or, at least, a result that’s not so unpersuasive that it requires reversal). In these many cases, what sort of opinion should the Federal Circuit issue? Besides ticking the “mandatory opinion has been issued” checkbox, how does an opinion crafted around the singular statement: “we agree with the Board opinion” improve the process?

    Dennis, you cited Prof. James White:

    For in every case the court is saying not only, “This is the right outcome for this case,” but also, “This is the right way to think and talk about this case, and others like it.” The opinion in this way gives authority to its own modes of thought and expression, to its own intellectual and literary forms.

    But can that model really be applied in these circumstances? Two factors stand out as different about our process that relate to this point:

    1) In other areas, such as criminal procedure cases, nearly-identical circumstances arise in such great volume that every step in a coherent process can be informed by dozens of cases.

    By contrast, IPRs, and patent cases generally, tend to be overwhelmingly fact-specific, turning on interpretation of a single claim term or a very particular aspect of the disclosed technology or infringing product. By definition, every single patent case involves a novel technology and unique claims! So just how much should we expect such fact-specific cases to extend to “others like it?”

    2) I think that the fan-in factor between district courts and appellate courts is much lower than it is for the Federal Circuit.

    This is an open-ended question: What is the typical ratio of district court judges / courts / cases to the appellate level? If you were to apportion the entire load of appealed cases per appellate-level judge, what would be the workload?

    By contrast – what is the ratio for patent law cases throughout the entire country, both PTAB and district courts, to the 18 judges total of the federal circuit?

    This factor must be compounded by the complexity of the average case. I’ll speculate that the average criminal procedure case that reaches an appellate court does so under circumstances that are already very familiar to the appellate judges involved. How about patent cases, where the judges have to get up to speed not only about the dispute, but about the claimed technology and prior art references at issue?

    Based on my not-informed-by-actual-metrics estimation, federal circuit judges must be hard-pressed to keep up with the mandatory workload for every case. A requirement of a full written opinion in every case – one that describes the technology, the dispute, and the resolution, all so accuracy as to withstand appeal to SCOTUS or for en-banc review – may be prohibitive to the workload.

    1. IPRs… tend to be overwhelmingly fact-specific, turning on interpretation of a single claim term or a very particular aspect of the disclosed technology or infringing product… [H]ow much should we expect such fact-specific cases to extend to “others like it?”

      I take your point, but maybe that means that the courts should revisit the question of whether obviousness is an issue of fact or of law. So long as obviousness remains a question of law, I am afraid that you have to concede that precedents are necessary to expound the law on this point. If the courts (or Congress) want to acknowledge the fact-specific nature of obviousness determinations on the way to sparing the courts more work than they can handle, then they should come clean and acknowledge the factual nature of the obviousness holding.

      A requirement of a full written opinion in every case – one that describes the technology, the dispute, and the resolution, all so accuracy as to withstand appeal to SCOTUS or for en-banc review – may be prohibitive to the workload.

      I do not see this as any sort of rebuttal to Prof. Crouch’s thesis. His point is that the statute requires a written opinion. Maybe they only need to issue a one-pager, no longer than a standard Rule 36 judgment, but the statute requires what the statute requires. If this statutory requirement is not practical in view of the IPR caseload, then the judicial conference should mention as much in its regular report to Congress, and ask that the statute be changed to allow for Rule 36 judgments.

      Maybe Prof. Crouch is wrong in his statutory argument. I am still cogitating on this point. If we grant his point, however, then it is no answer to say “but opinions are a lot of work.” The statute requires what it requires.

      Incidentally, as Hal Wegner never tires of pointing out, a fact section is kind of pointless in a non-precedential opinion. If they really do not have time to keep up with their workload, maybe they should write their “non-precedential” opinions as if the work-product really were non-precedential.

      Meanwhile, it does not take that long to copy and paste “we adopt the board’s fact-finding and conclusions as our own, but designate this holding as non-precedential.” I would not like that outcome, but it would, at least, comply with the plain-sense of the statutory command.

      1. I do not see this as any sort of rebuttal to Prof. Crouch’s thesis. His point is that the statute requires a written opinion.

        Sure, I understand that, and I think it’s a compelling argument.

        I’m making two points that are somewhat different:

        (1) Are such opinions valuable if the judges don’t have anything meaningful to write? Just as you wrote: copying-and-pasting the board’s conclusions with “I agree” appended is feasible, but not helpful.

        (2) Is such a requirement practically achievable given the workload – especially given the requirement that the opinions must be scrupulously free of errors, which would support a case for correction via en banc rehearing or SCOTUS?

        If we grant his point, however, then it is no answer to say “but opinions are a lot of work.” The statute requires what it requires.

        Well… I think that courts don’t rule in a vacuum; I think their decisions are always balanced against pragmatism and feasibility.

        For instance, a variety of challenges have been raised with respect to the legality of IPRs – including Ned Heller’s incisive argument about Article I vs. Article III courts. Evaluated in a purely academic setting, these arguments should have compelled some drastic reshaping of the IPR system. Evaluated in the realities of patent litigation… I think that the courts found a way to gloss over the errors, shoehorn the procedure into imperfectly-fitting legal principles, and make it work.

        I think a similar result would arise in this case. Simply put, courts are extremely reluctant to reach conclusions but that break the court system – especially if the pros are simply “the law requires it” without specific advantages, and the cons are “fulfilling the requirement won’t provide a lot of meaningful value, anyway.”

        Case in point: There’s a well-established principle of statutory interpretation that if a statute features a term that is insolubly ambiguous – and the meaning cannot be sussed out from a variety of canons – the law must be held invalid until the legislature corrects the error.

        Based on that principle, I’d have expected 101 to have been invalidated sometime in the mid-1990’s, after the failed Freeman-Walter-Abele experiment. Or in the 2000’s, after the insoluble wrangling over State Street Bank. Or in the 2010’s, after the extraordinary circuit split – more like fragmentation! – following Bilski. Instead, the courts seem to feel entitled to experiment, endlessly, with fabricating a complex legal apparatus from whole cloth – all lashed to the word “useful” in 35 USC 101. Statutory construction? Ambiguity? Who? What?

        1. These are all good points. I wonder (only half jokingly) about the relevance of the historical interpretation of 35 USC 121 to Prof. Crouch’s question. Section 121 permits for restriction among “independent and distinct” inventions in a single application. However, neither “independent” nor “distinct” is defined, so no one is quite sure what either term means. Therefore, the PTO’s practice (MPEP 802.01) has been to allow for restriction if two claimed inventions are either independent or distinct. In other words, that “and” has, in application, been changed to an “or,” and the CCPA just smiled and nodded as it happened.

          Maybe the CAFC is engaging in the same hermeneutic. “Mandate and opinion” has become “mandate or opinion.”

        2. with respect to the legality of IPRs …. Evaluated in a purely academic setting

          Or looking at it from another perspective (because there is one, you know), with respect to a PTO utterly failing to provide anything remotely resembling a subsantive examination of hundreds of thousands of granted “do it on a computer” patent claims, what would a “purely academic” analysis suggest is the most efficient solution to dealing with that insult to the public?

          Hypothetically, let’s say the PTO grants 1,000,000 distinct but plainly invalid and/or ineligible claims tomorrow to five individuals and the issue fees are immediately paid. The claims turn pretty much every US business into an infringer. What would a “purely academic setting” suggest is the best way to solve this problem?

          courts don’t rule in a vacuum; I think their decisions are always balanced against pragmatism and feasibility.

          Definitely not “always”. But much of the time. And mostly that’s a good thing because impractical infeasible solutions usually aren’t welcomed by people who are in need of help. And, yes, that is a quintessentially “academic” point.

          Circling back to these Rule 36 “judgments”, the practicality of it is that the CAFC is never going to write full blown independent opinions on decisions that don’t necessitate them. But they can still provide readers with useful information without breaking into the tiniest sweat. If you ask for something reasonable, you might actually get it. If the CAFC fails to respond reasonably to a reasonable request, they should understand that there is possibility for a less appealing mandate coming down the pike.

        3. David,

          There is a difference between “don’t rule in a vacuum” and “legislating from the bench” as well as “make up rules as you want.”

      2. Re that last paragraph, the Fed. Cir. Panel might NOT all agree with all of the Board fact findings or legal decisions, but find the Decision correct… They have said before That is their job.

    2. DS: A requirement of a full written opinion in every case – one that describes the technology, the dispute, and the resolution, all so accuracy as to withstand appeal to SCOTUS or for en-banc review – may be prohibitive to the workload.

      I highly highly doubt that will ever happen. I also think that asking for it is going to be seen as a ridiculous request, at best.

      That’s why I suggest asking for modest baby steps. Just have a clerk fill in some incredibly modest formalities, i.e., the patent number, a representative claim at issue, and the rationale/statute under which the lower (affirmed) decision was reached. That’s valuable information, and a win for everybody.

      Greg writes: as Hal Wegner never tires of pointing out, a fact section is kind of pointless in a non-precedential opinion.

      Well, let’s give the highly dubious Hal Wegner another chance to re-think one of his ill-considered views instead of applying more saliva to his crusty rings. A fact section isn’t “pointless” at all if it’s a better (e.g., more accurate and/or more clearly written) summary of the facts than the one that appears in the district court’s decision.

      1. You cannot help but get things wrong, can you Malcolm?

        How is the appeal judicial body going to get the facts better when they are not entertaining the development of those facts?

        1. How is the appeal judicial body going to get the facts better

          “Get” the facts “better”? What?

          they are not entertaining the development of those facts

          What?

          Learn to write English and maybe someone will answer your s00per deep questions, “anon.”

      2. MM, A clerk (in a separate section) could summarize the holding below and its rationale and the issue the applicant raises (from the brief). This would tell interested parties what the case was about so that they could investigate further.

        1. Yes, a clerk could do that. A clerk could also be responsible for picking flowers for Judge Dyk’s nosegay, or setting a bowl of M&Ms by the lectern for each party’s attorney. Neither of these tasks would be all that much extra work, but neither task is really the job of the clerks. So too, finding irrelevant details for attorneys who are interested (out of mere curiosity), but not motivated to pull the relevant file wrappers themselves, does not strike me as a high value use of the clerks’ time.

          1. Comparing “putting flowers on a desk” to “preparing a summary of the issues below and copying a representative claim and the number of the invalidated patent” seems a tad disengenous. Just a tad.

            This is why we can’t have nice things.

            1. Sorry Greg, Malcolm has “tagged” you as a “cohort” of mine.

              Prepare to enjoy his “swagger.”

              (feel free to check with Ned how to do that 😉 )

              1. There’s ten zillion miles of daylight between you and Greg (and you and Ned, for that matter, and you and most other commenters here).

                If Greg is smart — and he’s waaaaaaaay smarter than you, “anon” — he’ll keep it that way.

                I know this will come as a tremendous (yuge!) shock to you, “anon”, but my comment above had nothing to do with you or your bromancing and everything to do with the fact that Greg’s comparison isn’t a fair one.

                I don’t want clerks to be spending time on the job getting flowers or M&Ms for judges. Nor do I want them carrying the judge’s luggage or picking their k i ds up from day care or buying McDonald’s for them. I would like to see clerks adding some useful information to otherwise completely empty Rule 36 judgments because … useful information. And because it’s easier for them to do with the info right in front of them than it is for practitioners to hunt the info down.

                1. For all of that “zillion miles,” your script and your “swagger” show ZERO distance.

                  Maybe you should take note of that and your “one bucket” tendencies.

        2. Ned: A clerk (in a separate section) could summarize the holding below and its rationale and the issue the applicant raises (from the brief). This would tell interested parties what the case was about so that they could investigate further.

          Exactly. Admittedly, it’s possible to obtain the lower court decision by hunting it down directly and occasionally it’s even made freely available and accessible by a third party. But all the information (and more) is *always* right there in front of the CAFC. Just share it already. The additional hour of work needs to be paid for somehow? I’m pretty sure they can figure that one out.

    3. This comment has a lot of merit. IPRs in particular can be extremely technical. Remember the PTAB judges are usually very knowledgeable in both Patent Law and the technologies being judged. Their opinions get into the technology weeds in ways that district courts never did and that is likely troublesome for the Federal Circuit.

      1. Does that go directly back to Greg’s comment about the appealed item being (or should be changed to being) fact versus law?

        At the appeal level, the law no matter how “tech detailed” the case, should NOT cause the Federal Circuit any difficulties.

  6. Love the concept, Dennis. Good job.

    I’m going to read the article over lunch and I expect I’ll have a couple more comments later.

  7. Simply do away with the unnecessary 101 and the unconstitutional IPRs, CBMs, and PGRs … and this problem quickly disappears.

  8. Dennis,

    On page 27, you suggest that an opinion that merely stated “Affirmed based upon the doctrine of res ipse loquitur” (the thing speaks for itself) would be an adequate opinion. But, doesn’t a Rule 36 decision imply that was the reason for the Rule 36 decision?

    1. Agree with Troubled here.

      Note that in many Rule 36 cases (including many 101 cases) it is absolutely the case that the lower court decision “speaks for itself.” In some cases, the claims alone “speak for themselves”.

      My concern is that we don’t even get a summary of the district court’s decision, or an independent claim at issue, or a patent number or a citation of the statute that was relied on. Putting that information in the Rule 36 affirmation would seem to require very very little effort indeed but it would be very useful information to everyone who is trying to “keep up” as it were.

      1. In some cases, the claims alone “speak for themselves”.

        Especially to the self-appointed watchers over the fields of rye and their super keen (and yet so “sensitive feelings driven bias”) ability to merely sniff a claim and pronounce legal conclusions as if Persons Having Ordinary Skill In The Art were not required to understand those very claims.

      2. I totally agree MM. Thanks for this comment.

        In the paper, I did not work out the exact definition of what constitutes an opinion but rather picked the easy fruit – R36 judgments definitely are not opinions.

    2. OK, I wouldn’t favor that approach, I think they should write a real opinion.

      My point of putting it in the paper is a manner of explaining the scope of what is required by statute (which I think is less than what they should be doing).

  9. There may be occasions where an appellate panel can reach judgment
    without agreement upon the reasons for judgment. The Supreme Court has
    recognized in the non-patent context that “sometimes the members of the
    court issuing an unexplained order will not themselves have agreed upon its
    rationale, so that the basis of the decision is not merely undiscoverable but
    nonexistent.”

    And even in that case the court could issue three separate opinions, all concurring in the judgment but not necessarily all (or even any) of the rationale.

    Appeals whose judgments are entered under Rule 36 receive
    the full consideration of the court, and are no less carefully
    decided than the cases in which we issue full opinions

    This, I think, is the polite fiction of Rule 36. I would not be surprised if most of the consideration in these cases was done by the judges’ clerks.

    How has the number of Rule 36 decisions tracked with the Fed Circuit’s caseload, both in total and appeals from the PTAB?

    1. I expect that you are correct James, and maybe I should get into it in the paper. It regularly happens to me that I come to some simple conclusion in my head – but then the simplicity goes away as I try to explain it in writing. The opinion drafting forces the court to deal with the nuance inherent to patent law.

  10. How can 18 judges decide all the patent cases in the country? That is how it is working. If neither party screws up the record and if the issue is framed as a matter of law, the Fed Circuit picks the winner.

    The problem is that infringement cases aren’t really decided on the law. They are decided on the facts and equities. The district courts don’t need more guidance, more rules, more factors. There 2 steps for this, 4 factors for this, 15 factors for that. There are already crazy number of hoops the district court has to jump through to issue an opinion. The appellant just sifts through all the precedents and picks the top 4 to take to the Federal Circuit.

    I would suggest the pendulum must swing the other way. There are too many precedents tying the hands of the district judges to decide a case.

    All the fuss is a futile hunt for a set of rules that will yield consistent answers to §101 and §103 inquiries. It won’t happen. These are in the gray area and the district judge is going to decide them on the equities, then fill out the boilerplate portion of the opinion citing all the latest controlling precedents. He knows this is for show, the Fed Circuit will make its own decision if the appellant does not screw up.

    1. Except, Invention Rights, more of what you want (discretion at the lower levels) leads directly to more if what the “public” does not want: forum shopping for the forum most amenable (given the discretion) to where the case may be brought.

    2. I agree with you that the court should be wary and avoid as far as reasonably possible adding new steps and factors into the doctrines for district courts or the PTO to decide.

    3. The “public” (wink) wants to transfer discretion that favors patent owners to jurisdictions that favors infringers.

      How about we set up three regional patent courts with original jurisdiction?

      Patent disputes cannot be decided with a complex set of rules (whether the PTO or CAFC precedent).

  11. >>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.

    Your standards are very, very low for respecting people. I’d say most of these judges are a half a step above the slime on the rim of toilet.

      1. DC: My problem with them is that few of them apply the law. Most are judicial activist that write opinions to justify the results they want. They simply do not apply the law.

        1. I think that we see more of this at the Federal Circuit level than other courts because these folks see so many patent cases and thus become experts in that area and because there are so many questions of law in the doctrine.

  12. Who would enforce a statute requiring the CAFC to issue merits opinions and not rule 36 one liners? SCOTUS? Fat chance on that. But, nevertheless, important to demonstrate – yet again – the circular firing squad created with the AIA.

      1. Well good luck. I suspect rule 36 opinions would fall under the inherent (or statutory power) for Court’s to manage their dockets (practicality). In other words, you have zero chance.

  13. It’s because they know decisions from these random panels will cause internal conflict RE 101. There is no way to reconcile even the opinions we have with one another.

      1. That’s a great decision, especially as it was former solicitor, now judge, Chen slapping around the PTAB. Joined by new judge Stoll. And reliable J. Newman.

        Why it’s non-precedential is puzzling.

        There was another decision a few months back dealing with an ice melting composition. I think J. Stoll wrote the decision. She rightly called bs on the PTO’s reliance on the old “routine optimization” nonsense and noted that there was absolutely no finding of facts as to the level of ordinary skill to justify such a conclusion. But that decision was also non-precedential, so its value is greatly diminished.

        If the court is to provide any “uniformity” to the law, when it provides guidance to the PTO on what is required to support these knee jerk rejections based on “common sense” and “obvious improvement” then those decisions must be precedential so the PTO is bound by them.

      1. Just the person who has been conversing with you in the comments section about the other problem with the CAFC’s decision labeling modus operandi (particularly, the absence of the CAFC doing their “defining the law” job with too many nonprecedential decisions).

Comments are closed.