A Decade of Federal Circuit Decisions

By Jason Rantanen

While most commentators are focusing on year-in-reviews, I thought it would be fun to do a decade-in-review using data from the Compendium of Federal Circuit Decisions, the publicly-accessible dataset that we’ve developed at Iowa Law containing information about all decisions by the Federal Circuit since 2008.  You can access the Compendium via empirical.law.uiowa.edu/.

1. Decisions by origin

Recently, we updated the Compendium to include all decisions arising from origins other than the District Courts and USPTO.  This lets us compare decisions across all origins along a variety of dimensions.

Figure 1 shows the distribution of Federal Circuit decisions by major source.  A “decision” in the Compendium is defined as an opinion or Rule 36 affirmance.  I’ve grouped origins with small numbers of appeals, including the Board of Contract Appeals, Department of Justice, and Department of Veterans’ Affairs, into the “other” category. (The figures link to larger versions.)

Figure 1

Or if strata are more your thing:

Figure 2

These graphs show the well-known increase in decisions arising from the USPTO (mostly from inter partes review proceedings), but also a decline in decisions arising from the MSPB. (These outputs match the inputs: the Federal Circuit’s statistics page indicates a decline in the number of docketed appeals arising from the MSPB.)  While decisions arising from the district courts and the USPTO have crossed paths over the past few years, the number of decisions originating from the district courts is about where it began the decade. Overall, the court’s total output has risen by about 100 decisions/year during this time.

2. Precedential opinions by origin

Another way to assess a court’s output is in terms of its precedential opinions, as these constitute law on which future courts and parties rely.  Below is a chart showing the Federal Circuit’s annual number of precedential opinions by major source of origin.  The “other” group here includes the “other” category from the above graphs plus the Court of Appeals for Veterans’ Claims, Court of International Trade, and International Trade Commission.

Figure 3

Figure 3 shows precedential opinions in appeals arising from the district courts peaking at about 100 in 2014 and 2015, before falling to about 75 for the last few years. At the same time, the number of precedential opinions in appeals arising from the USPTO has risen substantially, from under 20 in 2013 to about 50-60 for the last few years.

3. Types of Decision by Origin

The below pie charts show the distribution of precedential opinions, nonprecedential opinions and summary affirmances under Rule 36.  by source of origin for the entire period 2010-2019.  About 30% of the Federal Circuit’s decisions consist of Rule 36 affirmances.

Figure 4

The lion’s share of precedential opinions and Rule 36 affirmances come from appeals from the District Courts and USPTO, nearly all of which involve patent issues.  For nonprecedential opinions, it’s the opposite: about half of these of these are written in appeals from the MSPB and CAVC.

One other way of looking at the data on decision types by court of origin for the entire decade:

Figure 5

  1. District court and PATO opinions: precedential, Rule 36 and nonprecedential

The final set of graphs for today are annual decisions from the USPTO and District Court by decision type.

Figure 6

Figure 7

If there are particular graphs of Federal Circuit decisions from the last decade that you’d like to see, send me an email and if we have the data I’ll try to generate them.

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.  You’re also welcome to use the above graphs in presentations, provided that you give credit to PatentlyO and the Compendium of Federal Circuit Decisions (https://empirical.law.uiowa.edu/compendium-federal-circuit-decisions).

More reading on the Compendium of Federal Circuit Decisions and methodology & cautions for case count data generally:

Thanks to my research assistants for their work on the Compendium, especially Will O’Brien, Lindsay Kriz, Madison Murhammer-Colon, John Miscevich and Joseph Bauer.

8 thoughts on “A Decade of Federal Circuit Decisions

  1. 3

    Jason — What does the chart for en banc decisions look like over time?

  2. 2

    Any thoughts on providing a contextual background to the decade’s worth of data with information outside of the court’s direct decisions?

    I am thinking specifically of setting the context of those patent cases with a normalization factor of total number of ‘live’ claims (or as a proxy, the number of patents from which patent cases before the court may arise from). This would be claims (patents) each year that could spawn a court case (including a running/diminishing 6 year clock related to damages for naturally expired patents as well as adjusting for claims (patents) that become donated to the public with the lapse of paying maintenance fees.

    Without normalizing the data, the ‘results’ are most likely very skewed and paint a somewhat (or more than somewhat) inaccurate picture.

    For a quick example, if the (mere) court data were to show a 3-fold increase in patent cases, but the norming number of available patents had increased 10-fold, you would actually have a negative trending indicator. You would move from a “OMG, three times up, this is out of control” to a “hmm, something is driving enforcement actions (alarmingly) down”

    1. 2.1

      Anon, there already is one rough indication of one such “normalization.” There has been a large increase in the total number of U.S. patents granted in the last 5 years as compared to prior years, yet a decrease in total new patent suits. But even that is of questionable value if one also notes another factor, that most patent suits are not based on recently issued patents and many are issued many years earlier.

      1. 2.1.1

        Paul, the timing of suit versus timing of patent from which the suit originated may well be an interesting item to review, but such does NOT impact the notion I present of normalizing by recognizing (and accounting for) the context of possible patent actions.

        I would though be interested in any such subsequent studies (and to which, for example, adding other variables — such as art field — may provide some insight into dynamics of innovation concentration).

        Be that as it may, my notion is far simpler and brings more direct impact and illumination that may be helpful in dispelling some of the noxious propaganda about “bad” patents (and the “bad” people who own those properties).

  3. 1

    Fig. 6 shows increasing Rule 36 decisions on Fed. Cir. appeals from IPRs. That may be partially due to the fact that by now many legal issues previously argued in IPRs over the years have been settled? But will that increase continue? With the D.C. suits that trigger IPRs declining, and IPR Petition denial rates increasing, IPR trials and final decisions seem to be leveling off or decreasing lately. Hence, the total number of future IPR decision appeals may no longer be increasing?

    1. 1.1

      I am not sure that I buy the correlation between Rule 36 and ‘settled law,’ Paul.

      IPR’s mainly deal with prior art items which should already have been dealing with ‘settled law.’

      The issue of the rate of Rule 36 use is different than a ‘settled law’ issue; namely, court’s control of their docket for their own expediency versus setting a full court case record (and Congressional mandates for such).

      IPR cheerleading is a bit of a red herring here.

      1. 1.1.1

        Thanks Anon for pointing out an important advantage of IPRs – that “IPR’s mainly deal with prior art items which should already have been dealing with ‘settled law.” [Even more narrowly, only patent or publication prior art.] I was careful to only query if some prior Rule 36 appeal decisions “may be partially due” to settling prior IPR legal disputes. Those included many constitutionality challenges, some IPR-initiation-appealability challenges, claim substitution issues, clarifying the IPR bar date, joinders, etc. Furthermore, IPR claim scope determination is now the same as for the D.C.s.

        1. 1.1.1.1

          I think that the flea wagging on the tail of the dog probably is not a great place to put emphasis.

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