By Jason Rantanen
It’s time for the annual Federal Circuit statistics update! As I’ve done for the last few years, below I provide some statistics on what the Federal Circuit has been doing over the past year. These charts draw on the Federal Circuit Dataset Project, an open-access dataset that I maintain that contains information on all Federal Circuit decisions and docketed appeals. The docket data is collected directly from PACER, and the court’s decisions are collected from via its RSS feed. My research team then uses a combination of algorithmic processing via Python code and manual review to code information about each document
One of my goals with this dataset is to make it publicly accessible so that anyone can use it in their own research. A complete copy of this year’s release is archived at https://dataverse.harvard.edu/dataverse/CAFC_Dataset_Project. We also continue to make a historic version of the dataset available through an RShiny user interface available through https://empirical.law.uiowa.edu, but as will no longer be updating the RShiny interface with new data. A copy of the codebooks are available at these locations as well. In addition, if you are a researcher who would like help using the dataset, please reach out to me – I’m happy to help make it easier to work with the data or answer questions about it.
Onto the data!
Figure 1
Figure 1 shows the number of Federal Circuit opinions and Rule 36 summary affirmances by origin since 2010. These represent individual documents (i.e.: a single opinion or Rule 36) rather than docket numbers (which is how the Federal Circuit reports its metrics).
Opinions vs. Summary Affirmances
Once again, the highest number of merits decisions arose from the PTO, and the overall number of merits decisions was about the same as in 2022. However, the number of decisions arising from the district courts continued to decline: the court issued just 95 merits decisions in appeals arising from the district courts in 2023, as compared with 117 in 2022 and a high (or this period) of 238 in 2014. The direct cause of fewer decisions isn’t a mystery: there were only 286 appeals arising from the district courts docketed in 2021 as compared with over 500 a year in the period 2013-2015. But the bigger point is that we’re currently seeing fewer appeals (and decisions) arising from the district court while the number of appeals and decisiosn from the PTO remains high.
Figure 2
Figure 2 shows the number of opinions versus Rule 36 summary affirmances arising from the District Courts and PTO. The court continued its downward trend in the use of Rule 36 affirmances. Even as the total number of merits decisions arising from the District Courts and PTO increased from 264 (2022) to 285 (2022), the number of Rule 36 summary affirmances dropped from 86 (2022) to 81 (2023). In relative terms, just 15% of the decisions arising from the district courts were disposed of through a summary affirmance while 35% of the Federal Circuit’s decisions arising from the PTO were summary affirmances. These are the lowest rates that I’ve observed for at least the last fifteen years. Kudos to the Federal Circuit for its increased rate of opinions.
What about the type of opinion that the court is issuing? It turns out that this increased rate of opinions is coming in the form of more nonprecedential opinions – and in the case of the PTO, quite a few more nonprecedential opinions.
Figure 3
Dispositions
Figure 4 shows the general disposition of Federal Circuit appeals – in other words, whether the panel affirmed, affirmed-in-part, reversed-in-full, etc.
Figure 4
Last year I observed that the Federal Circuit’s affirmance rate for appeals arising from the District Courts dropped compared to the preceding few years. That affirmance rate rose back to historic norms in 2023: the court affirmed-in-full in appeals arising from the district courts 75% of the time in 2023. (The purple line indicates the average 68% affirmance-in-full rate over the 12-year time period). As a reminder, these graphs do not include petitions for writs of mandamus. The affirmance rate for appeals arising from the PTO remained consistent: 83% in 2023, as compared with a 14-year average of 80%.
In addition, the Federal Circuit’s website now appeal terminations even if that termination takes the form of something other than an opinion or Rule 36 summary affirmances. Figure 5 shows the distribution of terminating documents for 2023. About 56% of terminating documents were opinions or Rule 36 summary affirmances. Most of the remainder were dismissals (which includes voluntary dismissals), with a small number of transfers and remands without opinion (typically these occur through orders).
Figure 5
As with the previous figures, the record unit for Figure 5 is a document – i.e.: an opinion or order. It’s possible for a single document, such as an opinion, to decide multiple appeals.
In comparison, Figure 6 shows the number of docketed appeals by origin. As Figure 5 shows, there was a big drop in appeals filed in 2021, followed by an increase in appeals filed in 2022 and then again in 2023.
Figure 6
Note that our statistics on appeals filed is slightly different from the counts that the Federal Circuit reports (even if you look at the data on a Financial Year (Oct – Sept) basis rather than a calendar year basis. My understanding is that this is because the Federal Circuit treats an appeal that is reinstated as a separate count in its numbers, while we treat that as a single appeal. The differences are minor, however.
Miscellaneous Dockets
Finally, what about Petitions for Writs of Mandamus? These, along with Petitions for Permission to Appeal, are shown below. Figure 7 indicates that the number of decisions on Petitions for a Writ of Mandamus went up slightly last year, although nothing like 2021.
Figure 7
Focusing in on the 39 decisions involving Petitions for a Writ of Mandamus arising from the district courts, the Federal Circuit granted in whole or part 7 (21%), denying or dismissing the remaining 32. This is lower than the grant rate for 2022 (37%) or 2021 (43%). Of those 7 granted petitions, 6 arose from the W.D. Tex. (out of 23 total terminations of petitions for Writs of Mandamus arising from W.D. Tex.).
Replication materials for blog post: Rantanen, Jason, 2023, “Replication Data for “Federal Circuit Decisions Stats and Datapack””, https://doi.org/10.7910/DVN/HPARYR, Harvard Dataverse, V2
Document dataset: Rantanen, Jason, 2021, “Federal Circuit Document Dataset”, https://doi.org/10.7910/DVN/UQ2SF7, Harvard Dataverse, V5, UNF:6:IFV+cSbcrBOMsCWg0GoHGg== [fileUNF]
Docket dataset: Rantanen, Jason, 2021, “Federal Circuit Docket Dataset”, https://doi.org/10.7910/DVN/EKSYHL, Harvard Dataverse, V5, UNF:6:mgpnlh/ZznOQNIkSPHe4Tg== [fileUNF]
Since so many patent suits are now filed in Texas, attorney discipline in Texas should be of interest: The Sup. Ct. has just rejected appeals by Texas lawyer Sidney “release the Kraken” Powell, the already GA disbarred Lin Wood, and five others, from a 6th Cir. decision sustaining most of the attorney sanction penalties by a MI D.C. judge in one of their several 2020 election challenge suits entirely based on unfounded allegations. In addition to the monetary penalties, Powell, Wood and the others were referred to their bar associations their states for disciplinary proceedings. Powell has also already plead guilty to six misdemeanor counts in the GA election racketeering case. But, so far there is no report of the Texas bar association taking any new or effective attorney disciplinary action against Powell since an earlier failed attempt, apparently rejected on some strange technicality by some Texas judge, now being appealed.
How about that Georgia case…
Hey lookie it’s “independent thinker” Billy popping in as usual with his rightwing scripts! Very serious stuff.
Seriously, though, Powell deserves to sit in jail for a good long time. Just anothet piece of s c u m that deserves nothing from a civil society.
I care not at all about Powell and hope she gets what she deserves.
As I also hope that s c u m Georgia prosecutor gets what SHE also deserves.
Or do you think that her grift is somehow ok?
(and that’s certainly NOT a rightwing thing – unless you have SOOOOO Sprinted Left (which, from your usual v0m1t, is quite the possibility)
I think you are a low-knowledge water-carrier for rightwing f a s c i s t s in this country, Billy, and the evidence for that could fill many pages.
What you think is clearly wr0ng – and you have already shown that you have zero understanding of what “evidence” means.
Yeah – and I notice that you have said nothing about the malfeasance going on.
Gee – shockers (not).
Horrible human being and non-stop lying trash bag and money-grabber John Eastman will very shortly be disbarred in California which is something very much worth celebrating.
Most of the remainder were dismissals (which includes voluntary dismissals), with a small number of transfers and remands…
“[W]hich includes voluntary dismissals” might leave people with the wrong impression. That huge “dismissals” chunk of the disposition pie chart is mostly made up of parties deciding not to pursue the appeal to conclusion. In other words, just like most cases settle before they get to trial, a substantial fraction of appeals settle before they get to judgment.
“]”
Some people say “housing availability.”
Others call it as it is: Slums.
You can be more than certain that this won’t happen in the Martha Vineyards of the Elites.
The mere 95 Fed. Cir merits decisions in appeals arising from the district courts in 2023 was particularly interesting. That is a very surprisingly small number of all patent suits that neither party thought was financially worth pursuing through trial and appeal rather than settling, and/or, had already been effectively ended by decisions in IPRs, summary judgments for non-infringement, or 12(b)(6) Alice-based or other such motions. Especially interesting because traditionally a relatively high percentage of patent suits that Did go through a full trial were also appealed by one or both parties, on infringement, validity, and/or damage calculations issues.
Here’s a slightly different related patent litigation data question. As you know, there have been many attacks on IPRs as allegedly being duplicative efforts, rather than low cost pre-trial disposals, of patent suits, in spite of the vastly smaller issues scope of IPRs to only patent and publication 103. So the obvious and important statistical question is what percentage of all patent suits in which defendants filed IPR petitions also went through a full trial anyway?
So the obvious and important statistical question is what percentage of all patent suits in which defendants filed IPR petitions also went through a full trial anyway?
And why is this an important statistical question? You saying so doesn’t make it true.
The simple fact is that a small percentage of all patent litigation goes to a full trial. The cost of losing, for plaintiff and defendant, is so high that both sides are looking for exit ramps.
As an example, an IPR represents one of the exit ramps. A defendant/petitioner that doesn’t completely prevail on all of the asserted claims is unlikely to want to go to a full trial.
“And why is this…”
Are you really asking that question?
Have you not been paying attention, and do you not know that Paul IS the IPR cheerleader?
[W]hy is this an important statistical question?
The whole point of IPRs was to provide a faster and cheaper alternative to litigation. If, instead, a meaningful number of IPRs happen—not instead of— but rather in addition to an IPR, then that would be evidence that the IPR system is a failure. Surely that is the sort of question that we should want to answer, no?
Mea culpa.
… but rather in addition to
an IPRa trial…Please Pardon Potential re(P)eat…
Your comment is awaiting moderation.
February 18, 2024 at 4:59 pm
a Double (1nsane) beat of Drum pure drivel leading to a Insurance article….?
i”n”stead…
i”n”
“…”
Greg has lost it.
“A defendant/IPR petitioner that doesn’t completely prevail on all of the asserted claims is unlikely to want to go to a full trial” may or may not be true if some valid and infringed claims remain? That is another interesting question of general interest as to the impact of IPRs on overall litigation costs which would be best answered by actual statistics. As noted, it has been publicly asserted [without statistics] by some that IPRs and patent trials are duplicative increased costs rather than overall patent litigation cost reductions.
2.1.2.1 here also notes that if a meaningful number of IPRs happen in addition to a trial, not because of a trial, those IPRs may not be providing the intended direct litigation cost savings. [The last statistic I recall seeing on that was that about 80% of IPRs are in response to the IPR petitioner being sued or threated with suit on the subject patent.]
Congress was explicit in its consideration of standing for the first half of all of the post grant review processes in the Executive Branch arena.
It’s a bit of a smokescreen then to try to provide a correlation to Article III proceedings without noting this explicit step.
Thanks Jason and team! Great — and important — information.
(Whether or not the CAFC appreciates it.)
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