Writing Opinions at the Federal Circuit

It has now been one week since I posted a draft version of my article Wrongly Affirmed Without Opinion arguing that the Patent and Trademark Statutes requires that the USPTO issue opinions in PTO appeals (rather than just Rule 36 Judgments Without Opinion).  Although the court has not offered any public statement, it has not issued any R.36 judgments during this time.  During the month of January the court issued 15 judgments in PTO appeal. Those included: 1 precedential opinion, 2 non-precedential opinions, and 12 judgments without opinion.  No PTO appeal decisions have been issued yet in February 2017.


8 thoughts on “Writing Opinions at the Federal Circuit

  1. 2

    Dennis, your article is really fascinating, and I look forward to seeing its impact. Just to let you know, although there are very few articles on appellate dispositions without opinion, which is one reason your article is so worthy of comment, you should make sure to ready (if you have not already) “On Not Making Law,” the Gulati & McCauliff 1998 article in LAW & CONTEMPORARY PROBLEMS. The article intentionally avoids including statistics on the Federal Circuit because of its multiple-category sphere of jurisdiction, but that is by far the best article I am aware of on the subject until yours came along.

    Of course, the very reason that Gulati & McCauliff excluded the Federal Circuit from their analysis points to something interesting about the Court. It is quite clear that, as your article suggests, the Federal Circuit’s practice with respect to Rule 36 affirmances is different — very different, and consistently different –depending on the category of appeal. For example, Rule 36 is far more commonly used in PTAB appeals than veterans’ appeals. The results seem downright odd when you look at the cases closely, because many veteran’s appeals that seem very frivolous and easy to reject nevertheless are the subject of opinions that clearly took some work, and collectively took a very large amount of work that one might have thought could have been devoted to writing opinions in, say, some affirmed decisions applying 35 U.S.C. § 101; and meanwhile, the Federal Circuit regularly uses Rule 36 to affirm patent cases in which the lower tribunal specifically called out the issue it was deciding as unsettled and unclear. This categorical differentiation in Rule 36 use is probably a product of historical accident as much as a conscious policy of the Court, but it only accentuates the oddities of the Court’s Rule 36 practice.

      1. 2.1.1

        One clarification on this. The Federal Circuit’s practice (at least while I was there, over 10 years ago) is to R36 a case only if it is orally argued. Since veterans cases are mostly submitted on the briefs, it paradoxically creates the situation that many obviously-frivolous cases are not R36-ed.

  2. 1

    The court usually issues R36s in a batch immediately after argument week. So I wouldn’t attribute the lack of R36s this month to anything except the fact it isn’t that time of the month yet.

    1. 1.1

      This is correct. And the oral arguments for this month just started today.

      We’ll likely see some Rule 36 judgments before the end of the week. And then we can infer what the CAFC thinks about this pesky trouble-maker from Missouri and his fancy legal theories!

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