By Jason Rantanen
This post uses data from the Compendium of Federal Circuit Decisions to provide a quick statistical overview of the Federal Circuit’s decisions this year, particularly in appeals arising from the district courts and USPTO.
Decisions by origin
Figure 1 shows the total number of Federal Circuit opinions and Rule 36 summary affirmances by origin. The increase in decisions in appeals from the USPTO (orange) over the past decade is clearly visible, although last year there was a slight decline. Decisions in appeals arising from the USPTO dropped about 17% (254 in 2019 versus 2010 in 2020), while decisions in appeals arising from the district courts increased slightly (182 in 2019 versus 199 in 2020). Overall, the Federal Circuit’s docket is a lot more patent-heavy today than it was in 2010. The court is issuing more decisions as well.
Decline in Rule 36 Summary Affirmances
Figures 2 and 3 show the number of written opinions and Rule 36 summary affirmances in appeals arising from the district courts and USPTO. Both figures show a decrease in the number of Rule 36 summary affirmances and increase in written opinions in 2020. This change is especially dramatic in decisions arising from the USPTO.
In addition, as figures 4 and 5 show, the increase in written opinions has primarily come in the form of more nonprecedential opinions. The number of nonprecedential written opinions in appeals from both the district courts and USPTO have increased while the number of precedential decisions has remained about the same or declined.
Despite the decrease in Rule 36 summary affirmances, the court’s overall affirmance rate measured by decision (i.: the outcome of a given opinion or Rule 36 affirmance) remained about the same in 2020. As Figure 6 shows, over the last ten years the Federal Circuit fully affirmed about 70% of its decisions arising from the district courts and affirmed at least in part about 80% of the time. Similarly, as Figure 7 shows, the court has full affirmed the USPTO around 80% of the time and affirmed at least in part about 90%. This data is inconsistent with the hypothesis that the Federal Circuit is issuing fewer Rule 36 summary affirmances because it is reversing less often.
My takeaway is that the Federal Circuit judges are writing more nonprecedential opinions instead of issuing Rule 36 summary affirmances. Hopefully this will provide some additional information for parties on the court’s reasoning when it affirms.
As always, the data for this post (and much more data) is available via the Compendium of Federal Circuit Decisions website. In calculating the affirmance rate I did not include decisions coded as “dismissed” or “other.” Thanks to my research assistants for their work coding Federal Circuit decisions, particularly Lindsay Kriz who did the lions share of the coding for 2020 decisions.