Short Non-Precedential Opinions?

by Dennis Crouch

Many of us have been criticizing the Federal Circuit new proclivity to issue no-opinion judgment – particularly in patent cases stemming from the Patent Trial and Appeal Board. The Court appears to be experimenting with a new method – short non-precedential decisions.  I highlight two decisions released on August 17:


In Gold Standard, the PTAB had found all claims of the challenged patent obvious. IPR2015-00632, U.S. Patent No. 8,727,773. That decision is now affirmed on appeal. In the four-page appellate decision identifies the evidence sufficient to support the Board’s factual conclusions (substantial evidence standard) and thus affirms.

Similarly, in Cronos Tech., the district court had granted summary judgment of non-infringement of U.S. Patent No. 5,664,110. On appeal, the Federal Circuit affirmed in a three-page opinion that essentially adopts the district court reasoning with some explanation.

Both appeals identify exactly why the patentee lost and why the lower judicial opinion was correct and should serve as models of future panels concerned with no-opinon judgments.


Although released on the same day, the two opinions are written by two completely different judicial panels – a hopeful indication that the court is considering this approach as a replacement to its R.36 approach that is now receiving so much criticism.

17 thoughts on “Short Non-Precedential Opinions?

  1. 5

    I really don’t see why Rule 36 judgments matter. Notably, the CAFC *always* writes an opinion when an appellant is pro-se, unlike other circuits. I think the general feeling is that with pro-se litigants, it is important to explain why they lost. (Obviously, opinions will be written when there is a reversal).

    But, as for parties that are represented by sophisticated counsel, who were present at oral argument, and who know the law (hopefully), I don’t think it is important to explain to them why they lost, when they almost certainly know why they did. For example, Oil States was a Rule 36 if I’m not mistaken. Did they really need to have an opinion that said “Go read MCM?” Similarly, does an appeal from the PTAB that largely challenges factual findings of the Board need to say “go read what substantial evidence is?”

    If someone can explain to me why this matters in a real, non-trivial hypertechnial way, I would appreciate it.

  2. 3

    A surprise for Lemley-haters – look who has joined the campaign against Rule 32 affirmances of patent invalidity decisions:
    “Paul Gugliuzza (BU) and Mark Lemley (Stanford) have posted ‘Can a Court Change the Law by Saying Nothing?’ on the Federal Circuit’s many affirmances without opinion in patentable subject matter cases. …”

    1. 3.1

      A premise there – merely accepted at face value and NOT questioned is that the judicial branch is substantively changing statutory law.

      See (among other things) the original Paper Chase movie (with John Houseman) at the hour and six minute mark….

      1. 3.1.1

        See (among other things) the original Paper Chase movie (with John Houseman) at the hour and six minute mark….

        It may surprise you to learn that other people don’t spend all day running around in their Professor Charles Kingsfield, Jr. underoos.


          You do not have to do as you insinuate in order to understand the point being put on the table.

          Do you understand that point?

    2. 3.2

      Nine pages in and I had to stop reading because I was v0m1ting – the article’s “historical perspective” is unmitigated C R P and the host of self-serving references is nothing more than the usual academic group think in action.

      Even IF the aim may “align” with proper coordination of why Rule 36 affirmances are improper, the means to that aim are woefully off.

      I found the piece to be a pandering attempt at “soft-selling” the fact that every patent bar organization has sought repeal of the Court-made law. A classic half-truth piece of propaganda, that “acknowledges” error, but then turns to spin that error away from a true correction.

      1. 3.2.1

        Nine pages in and I had to stop reading because I was v0m1ting

        That’s a really strange reaction to the first 9 pages of a law review article.


          Consider the source: Lemley.

          I have read his material in depth previously (including tracking down citations, when present) – his usual “liberties” and self-references aligning with what can be generously labeled as propaganda is something that removes the notion of “really strange reaction to the first 9 pages of a law review article.

  3. 2

    Memo from Judge to Law Clerk:

    The PTAB set out facts as to why the claims would have been obvious. The applicant disagrees.
    Simple disagreement not good enough.
    We will affirm.

    Please add the appropriate background to the decision and keep it under four pages.
    Thank you.

    1. 2.1

      I think that the statement “Simple disagreement not good enough” would require qualification to address the intent of WHY an actual opinion is to be put on the record for these types of situations.

    2. 2.2

      The opinions in such affirmances could be shorter and more to the point legally, e.g.:
      Appellant has not met the APA requirement for an appeal from this administrative agency trial [cite] of showing that it was not supported by “substantial evidence.” Affirmed.

      [Of course this is not suitable for reversals or remands in appeal decisions.]

    1. 1.1

      I’d still like to see at least the broadest claim(s) at issue recited in these decisions. Quick-searching the patent number isn’t necessarily going to direct you to the actual claims if the patent has been corrected/reissued at some point.

      The claims are where nearly all the “action” is. If someone has a claim nearly identical to a claim of my client or a claim of a competitor of my client, the fate of that claim can be highly informative. The rationale for the decision is undoubtedly helpful but without the context of at least an independent/representative claim the value of these truncated opinions is diminished.

      1. 1.1.1

        Never satisfied… only 43 minutes between “Yay!” and starting down the slippery slope. (I’m being mostly facetious.)


          I’m not ready to pull out the party hats just yet.

          The odds are good that this is just a coincidence and not a trend. Or maybe rather than a trend towards “longer summaries” in summary affirmances it’s the beginning of a trend towards shorter opinions in general. Maybe we’ll see ten Rule 36 decisions on Monday …

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