By Paul R. Gugliuzza, Temple University Beasley School of Law; Jonas Anderson, American University Washington College of Law; and Jason Rantanen, University of Iowa College of Law
Recently, we wrote about the small number of mandamus decisions on transfer of venue that the Federal Circuit has designated as precedential and about how those precedential decisions are unrepresentative of overall outcomes. Specifically, the Federal Circuit has labeled only 15% of its venue mandamus orders as precedential. And, though the Federal Circuit grants venue mandamus less than a third of the time, the court has granted nearly 80% of the petitions it has decided in precedential orders.
As a comparison, we wanted to share some data on precedential opinion rates in regular Federal Circuit appeals (as opposed to mandamus petitions). Our data make two things clear.
- First, opinions in regular appeals are more than twice as likely to be precedential than orders on venue mandamus.
- Second, the outcomes reported in those precedential opinions—like precedential mandamus orders—are skewed toward cases in which the Federal Circuit disagrees with the decision below.
On the first point, here’s the breakdown of precedential opinions, nonprecedential opinions, and Rule 36 affirmances for all Federal Circuit appeals from 2008 through 2021.
Table 2 below breaks the data down by tribunal of origin.
These two tables make clear that, overall, 30% of Federal Circuit appeals are decided in a precedential opinion. In district court cases—the most relevant comparator for venue mandamus petitions—the figure is 42%.
Either way, the proportion of appeals resolved in precedential opinions is substantially higher than for venue mandamus petitions. Moreover, the Federal Circuit decides more than a quarter of appeals in no-opinion affirmances—a mechanism the court does not employ for mandamus petitions. If we excluded Rule 36 affirmances from our calculations, the differences between appeals and mandamus orders would be even greater.
On the second point about skewed outcomes: Like with mandamus petitions, the results in precedential opinions disproportionately disagree with the lower court or agency. Table 3 below reports the outcomes and modes of disposition of all Federal Circuit appeals (excluding a few hundred appeals that were dismissed or that had an unusual outcome—namely, something other than affirmed, reversed, vacated, etc.) from 2008 through 2021.
As the bottom row of the table makes clear, overall, the Federal Circuit fully affirms in 78% of appeals. Yet, as the first row of data indicates, only 53% of precedential Federal Circuit opinions affirm the lower tribunal; 47% vacate or reverse, at least in part. By contrast, nonprecedential opinions (the second row of data on the table) fully affirm 81% of the time. And, as indicated toward the bottom of the table, nearly 30% of Federal Circuit appeals are decided in no-opinion Rule 36 affirmances, which, by definition, also fully affirm across the board.
In short, looking only at precedential opinions, one might think that, in any given appeal, there’s about a 50-50 chance the Federal Circuit will at least partly disagree with the tribunal below. But, in reality, fewer than a quarter of the Federal Circuit’s decisions disagree with the tribunal below in any respect.
The disparity between the outcomes reported in precedential opinions versus overall results is equally stark when the data is limited to the primary sources of Federal Circuit patent cases—appeals from the district courts, the PTO, and the ITC. From those three tribunals, combined, only 48% of precedential opinions fully affirm. But the overall fully-affirmed rate in appeals from those tribunals is 73%. The figures below illustrate those vast disparities.
Figure 2: Federal Circuit Nonprecedential Rulings in DCT, PTO, and ITC Appeals, 2008 through 2021
The skew of precedential opinions toward decisions that disagree with the lower tribunal provide a misleading sense of what Federal Circuit’s rulings look like day in and day out, just like the Federal Circuit’s precedential venue mandamus orders provide an inflated sense of the likelihood of mandamus being granted. These findings also raise interesting questions about what happens to patent doctrine when it is developed in cases that are not representative of overall outcomes.
The data used in this post comes from the Federal Circuit Dataset Project, available at https://doi.org/10.7910/DVN/UQ2SF7 or empirical.law.uiowa.edu.