by Dennis Crouch
Relationship expert John Gottman famously identified “stonewalling” as one of his “Four Horsemen of the Apocalypse” that predict relationship failure. Stonewalling occurs when one partner withdraws from interaction, refusing to engage or respond meaningfully to the other’s concerns. The behavior is particularly toxic because it leaves the other party feeling ignored and invalidated, while also preventing any real progress toward resolution. In many ways, the Federal Circuit’s prevalent use of Rule 36 summary affirmances operates as a form of institutional stonewalling – responding to carefully crafted legal arguments with a single word “AFFIRMED” while refusing to explain its reasoning. That practice is now under intense scrutiny, with Island IP pressing a two-front challenge through Supreme Court filings this week. In addition to filing its reply brief in Island Intellectual Property LLC v. TD Ameritrade, Inc., No. 24-461, Island IP has also submitted an amicus brief supporting the parallel petition in ParkerVision, Inc. v. TCL Industries Holdings Co., No. 24-518.
In its reply brief, Island IP confronts TD Ameritrade’s attempts to minimize the Rule 36 problem. TD argued that prior denials of certiorari on this issue suggest the practice is acceptable, but Island IP counters that the large number of petitions (over 20 identified) demonstrates a persistent problem requiring correction. While TD claimed other circuits use similar practices, Island IP methodically demonstrates how the Federal Circuit stands alone in its extensive use of unexplained, one-word affirmances. In particular, among the other circuit courts, only one other court – the Fifth Circuit – has issued any summary affirmances in 2024, and even then only in three cases (and typically with at least a 1 sentence explanation of the holding). In contrast, just since October 2024, the Federal Circuit has issued 10 Rule 36 judgments compared to only 5 reasoned opinions in cases from the USPTO and Federal Circuit – demonstrating how the court has moved from never using Rule 36 judgments before 2007 to now relying on them as a primary tool for disposition.
In its opposition, TD had also relied upon Taylor v. McKeithen, 407 U.S. 191 (1972) as providing appellate courts discretion in “whether or how to write opinions.” That statement from before the Federal Circuit founding comes as a footnote in dicta. And, the irony of Taylor is that the holding “calls upon the Fifth Circuit to write an amicus curiae opinion.” Taylor (Rehnquist in dissent). It is also useful to note that, although the Supreme Court suggested that the original Fifth Circuit opinion was a summary affirmance, the actual decision was simply short – 200 words – without substantial explanation of its reasoning. In its brief, Island IP makes the distinction here between:
- Having discretion about how to write an opinion (which Taylor permits), and
- Issuing no explanation at all (which is what the Federal Circuit does with Rule 36)
Island IP strengthens this argument by citing the Federal Circuit’s own description of Rule 36 judgments in Rates Tech., where it wrote “Since there is no opinion, a Rule 36 judgment simply confirms that the trial court entered the correct judgment. It does not endorse or reject any specific part of the trial court’s reasoning.” Rates Tech., Inc. v. Mediatrix Telecom, Inc., 688 F.3d 742, 750 (Fed. Cir. 2012).
Island IP’s amicus brief in ParkerVision builds on these arguments while emphasizing how the two cases together present an “ideal vehicle” for addressing the Rule 36 problem. The brief highlights a striking statistic: over the past decade, the Federal Circuit has issued one-word affirmances in approximately 35% of all appeals from district courts and the USPTO, with the rate exceeding 40% for USPTO appeals. And just to be clear, we’re talking about patent cases here that typically involve hundreds of thousands to millions spent just on attorney fees – a fraction of the overall case values. As with Island IP and ParkerVision, these cases feature top-tier patent litigation teams who have thoroughly developed the issues and their implications for the patent system. While monetary stakes alone shouldn’t drive procedural safeguards, the Federal Rules of Civil Procedure expressly consider the amount in controversy when determining proportional procedure – a principle that seems equally relevant when considering whether a one-word disposition is appropriate for multi-million dollar patent disputes.
The amicus brief once again invokes the words of the Federal Circuit’s first Chief Judge Howard Markey, who promised at the court’s founding: “In our Court there will be an opinion explaining enough to tell you what the law is in every case . . . We do not just render a one-worded decision and go away.” This proclamation, made at the First Annual Judicial Conference of the United States Court of Appeals for the Federal Circuit, 100 F.R.D. 499 (1983), stands in stark contrast to current practice.
Island IP identifies several specific harms flowing from unexplained decisions:
- Parties and the public are left without guidance on how the law is being applied;
- Panels miss the analytical discipline that comes from writing out their reasoning — leading to potential gaps in reasoning;
- The Supreme Court lacks a proper record for review;
- The development of patent law is distorted by the absence of precedential guidance;
- The practice biases results toward affirmance by making it easier to affirm without explanation; and
- The Federal Circuit’s role is reduced to mere docket management rather than law development.
Together these cases present a keen opportunity for the Supreme Court to address both district court appeals under 28 U.S.C. §1291 (Island IP) and USPTO appeals under 35 U.S.C. §144 (ParkerVision). Whether these arguments will persuade the Court to take up the Rule 36 issue remains to be seen. But in my opinion, Island IP has made the case that the no-opinion judgment practice has moved beyond a mere exercise of judicial discretion into an abuse that requires supervision and correction. Sometimes a relationship needs external intervention, perhaps it’s time for the Supreme Court to step in and restore meaningful dialogue to our patent jurisprudence.