By Jason Rantanen
We recently launched an updated version of the Compendium of Federal Circuit Decisions that contains information on decisions posted to the Federal Circuit’s website for all origins, not just appeals arising from the USPTO and District Courts (although the richest data is still for appeals from those sources). Data is current through June 28, 2019.
For those who aren’t familiar with the Compendium, it’s a database designed specifically to support quantitative empirical research about the Federal Circuit’s decisions. We’ve coded an array of basic information about Federal Circuit decisions to make it as easy as possible for anyone to do their own empirical studies. There’s data on document type to panel judges to authorship information and more. We’re constantly working on adding new types of data, so if there’s something specific that you’d like empirical data on, just let me know.
Below are a few basic highlights through the first six months of 2019. As always, the usual disclaimers when working with quantitative data about court decisions apply. Large-scale quantitative overviews only provide one perspective into judicial decisions and are subject to various selective forces that are described in various sources including this one.
Decisions by Origin
As the below chart shows, the gap between decisions (which we define as opinions and Rule 36 summary affirmances) in appeals arising from the USPTO and the District Courts continues to widen. Both are a little lower so far in 2019 than 2018. Through the first six months of 2019, the number of decisions arising from the district courts is about 20 fewer than in 2018 (106 through June 30 in 2018 vs. 87 in 2019) and the number of decisions arising from the USPTO is about 10 fewer (132 in 2018 vs. 121 in 2019).
Keep in mind that the Federal Circuit’s output of decisions is dependent on appeals, and appeals form both sources have shown a slight decline from peaks in 2015 (docketed appeals from district courts) and 2016 (docketed appeals from the USPTO). The next chart shows data from the Federal Circuit’s monthly reports (not the Compendium) about appeals docketed. While the number of appeals arising from the USPTO will likely go up this year, the number of appeals arising from the district courts is likely to continue declining (consistent with a decline in the number of patent cases filed over the last few years).
I have a chart that shows how many appeals arise from the PTAB versus the TTAB, but it’s not very interesting because the vast majority of appeals every year come from the PTAB (these days, by an order of magnitude). A bit more interesting is the below chart, which shows Federal Circuit decisions by dispute type in appeals arising from the USPTO. Consistent with conventional wisdom, most of these involve appeals from inter partes review proceedings, although there was a bump in appeals from rejections of patent applications last year.
Not shown are a handful of miscellaneous types, such as two appeals from post-grant review proceedings in 2018.
Decision Type
Generally, the Federal Circuit tends to use Rule 36 affirmances more frequently in appeals arising from the PTAB than in appeals arising from the district courts. Through the first six months of 2019, about half of the court’s decisions in appeals arising from the PTAB have been affirmed via Rule 36 summary affirmances.
The Federal Circuit’s opinions arising from the district courts tend to be designated precedential more often than decisions from the USPTO, although the raw numbers of precedential opinions are getting closer.
Outcomes of appeals from inter partes review proceedings
The below chart shows the outcomes of appeals from inter partes review proceedings. Since 2016, the court’s affirmance rate of these decisions has remained around 70% (affirmance-in-full) and 80% (including affirmances-in-part). While selection effects are still important to consider here, keep in mind that these decisions represent a substantial portion of all completed inter partes review proceedings, so there’s less selection taking place between the USPTO’s determination and the Federal Circuit’s decision than in other forms of appeal. Edit: District court decisions likely have a similar high frequency of appeal characteristic; this is more of an observation relative to appeals generally.
We haven’t yet completed outcome-coding of all the decisions arising from the district courts, so comparative data isn’t available yet. (Soon, hopefully!)
Want the data analyzed in a different way?
You’re welcome to play around with the data on your own. If you do use it for something that you publish, please include a citation to the Compendium. There’s a convenient cite form on the landing page for the database.
Thanks to my research assistants for their work on the Compendium, especially John Miscevich, Joseph Bauer and Lucas Perlman.
Jason, thank you for your response to my questions. It does seem that a substantial percentage of IPR decisions as well as an even higher percentage of district court final decisions on summary judgments or trial verdicts continue to be appealed to the Fed. Cir.* But that the combined total of all such appeals seems to now be leveling off? I will look forward to your further analytical efforts, including the interactions – e.g., the number of district court final decisions that are due to IPR decisions [versus 101 motions, non-infringement or invalidity].
Personally I do not see how statistics on whether appeal decisions are precedential or not, or Rule 36 affirmances, are of practical interest. Because that form of appeal decision does not change the outcome for the parties, and is not something the parties have any control over. Nor, as KSR demonstrated, is it an obstacle to a successful cert petition.
*In spite of your indicated 70%-80% IPR affirmance rate by the Fed. Cir.
Thanks, Prof. Rantanen. These data a very interesting.
These are the kinds of useful correlations that you think should be ineligible for patenting, right? Not “valuable” enough? Right?
I comment, therefore I am.
–Moonbeam
(minor correction):
“…, therefore I am a blight.”
Pro Say: 🙂
The right wing has weaponized disingenuousness. It’s hard to know how to analyze or respond to their claims because they’re ever shifting and they will constantly fall back from positions they have taken in apparent seriousness with their weasel battle cry of “it was just a joke, man.” Do any of them believe what they say publicly? It’s definitely hard for me to tell. But they understand that the media is congenitally incapable of saying “these guys keep lying about their intentions, let’s not cover them” so they get their message out there and then get to fall back as needed, or stick to their guns if it gains traction.
But we must continue to be “civil” to these people and treat their nertcase, extremely radical, unpopular and absurd positions as if they are The Most Important People Evah !
It’s been interesting watching Jason and Dennis get “played” by disgusting cre eps like Bildo or merely disingenuous clueless dust-kickers like Greg “whatever lines my pockets” DeLazyus. Or maybe they, too, believe that correlations should be eligible subject matter for patent protection. It’s more than a bit odd that neither of these law professors will state their beliefs one way or the other. I wonder what they are afraid of?
“ut we must continue to be “civil” to these people and treat their nertcase, extremely radical, unpopular and absurd positions as if they are The Most Important People Evah !”
You absolutely miss the point.
It is not about “being civil” (and certainly not from my vantage point, as witness my quote [made often enough] from John Maynard Keynes) — it is about being on topic and being inte11ectually honest.
BOTH of which you, Malcolm, struggle mightily with.
If you’re looking to complain about people who demonstrate a lack of candor and a failure to appreciate the repercussions of their articulated positions on various patent policies, you should be complaining about the two professors who run this blog.
But you’re a hypocrite with the intellect of a three year old so my expectations are low.
Who the F cares about your expectations — you have the lowest level of inte11ectual honesty imaginable, and your Accuse Others meme is merely the prime example of that.
My expectations aren’t the point, Bildo. The point is that like all patent maximalists you will do and say literally anything at any time, regardless of the fact that you are transparently a hypocrite whose only guiding principle is self-enrichment and being a toxic pr-i-ck. As noted, the failure of Jason and Dennis to directly address the inanity and stupefying dishonesty of you and your ilk years ago is a spectacular failure on their part.
What’s interesting to me is what is their excuse? There’s a number of explanations. Probably a good time for a phone call.
Your feelings are noted.
Here too, the Joachim portrayal of the Malcolm Penguin “logic” is apt:
link to patentlyo.com
Noted here that the use of “too” reflects that fact that Malcolm has [again] added to his record level of expunged posts.
Thanks Jason!
I had a question about “..these decisions represent a substantial portion of all completed inter partes review proceedings, so there’s less selection taking place between the USPTO’s determination and the Federal Circuit’s decision than in other forms of appeal.”
Is that saying that a far smaller percentage of district court patent decisions are appealed to the Fed. Cir. than PTAB IPR decisions? Is that a reflection of the vast majority of district court patent suits being ended by settlements versus the small % of IPRs ended that way? Does it take into consideration all the district court decisions that were de facto decided by adverse IPR decisions?
[I was under the impression that most district court patent cases that go all the way through trial and post-trial motions to a final judgment [rather than settled] do get appealed to the Fed. Cir. Was that incorrect?]
Hi Paul,
My comment was more directed at the concern about selection effects and appellate decisions generally, as opposed to appeals from district courts. I’ll add a clarifying sentence.
My recollection from looking at the handful of cohort studies that are out there is that a substantial portion of grants of summary judgments and trial verdicts are appealed. When I looked at it a few years ago, the exact numbers were a bit hard to pin down but now, with all the analytics tools out there, it should be easier. Part of this project to add that missing link between district-court analytics and appellate analytics.
How many of these useful correlations are you filing patent applications on, Jason? Did you speak to your University’s tech transfer office before publishing or is your department allowed to go rogue?
Thanks to my research assistants for their work on the Compendium, especially John Miscevich, Joseph Bauer and Lucas Perlman.
You meant to say “co-inventors”, I assume.
I guess it’s possible that the University of Iowa College is just parading its socialist stripes here by dedicating these correlations to the public.
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