by Dennis Crouch
By the time the Federal Circuit opines about a particular patent, that patent is usually at least 8 years old (median). I was wondering about the shortest time from patent-issuance to Federal Circuit written decision. The fastest I could find (for the past decade) is M-I LLC v. FPUSA, LLC, 626 F. App’x 995 (Fed. Cir. September 24, 2015) (non-precedential).
M-I’s US9004288 issued Apr. 14, 2015 and directed to a system for recovering drilling fluid by using an improved “shaker.” A month later, May 15, 2015, M-I sued FPUSA for patent infringement in W.D.Tex and requested a preliminary injunction. The district court reviewed the equitable factors and granted the preliminary injunction on June 24, 2015. As was its right, FPUSA immediately appealed — filing its notice of appeal five days later along with a motion to expedite. The Federal Circuit granted that motion. Appellate was complete on September 8, and the court heard oral arguments on September 16. Eight days later, the court released Judge Hughes 7-page non-precedential opinion that affirmed-in-part. In particular, the court agreed that the preliminary injunction was proper, but concluded that the district court should have more carefully prescribed the scope. “[T]he preliminary injunction is overbroad … As we have previously held, broad injunctions that merely instruct the enjoined party not to infringe are improper because such an order frustrates the remedy of contempt.” Id.
Total time from patent issuance to written decision: 163 days.
Note – This data comes from my own compilation of patent data combined with some of Prof. Rantanen’s work available here: Jason Rantanen, “Federal Circuit Docket Dataset”, https://doi.org/10.7910/DVN/EKSYHL, Harvard Dataverse, V3 (2021). I’ll note that these are preliminary statistics and so it is possible that there is another case with a faster opinion.
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One of the longest-delays from the past several years is found in Dome Patent LP v. Lee, 799 F.3d 1372 (Fed. Cir. 2015). The patent at issue there was granted in 1981, almost 34 years before the appellate decision. US4306042 (Oxygen permeable contact lens material). Dome had filed the infringement lawsuit in 1997 — not much before the time of patent expiration. The defendants sent the patent through reexamination. After losing at the PTO on obviousness, the patentee filed a civil action to confirm patentability (this is no longer allowed for reexams). That whole process took more than a decade to resolve. Finally in 2015, the Federal Circuit affirmed — holding the claims invalid as obvious.