The Federal Circuit’s Precedent/Outcomes Mismatch

By Paul R. Gugliuzza, Temple University Beasley School of Legislation Jonas Anderson, American University Washington College or university of Law and Jason Rantanen, College of Iowa Faculty of Law

Just lately, we wrote about the tiny range of mandamus choices on transfer of location that the Federal Circuit has specified as precedential and about how people precedential conclusions are unrepresentative of in general outcomes. Specially, the Federal Circuit has labeled only 15% of its venue mandamus orders as precedential. And, although the Federal Circuit grants location mandamus considerably less than a 3rd of the time, the courtroom has granted almost 80% of the petitions it has made the decision in precedential orders.

As a comparison, we needed to share some information on precedential view charges in common Federal Circuit appeals (as opposed to mandamus petitions). Our info make two factors distinct.

• To start with, thoughts in frequent appeals are extra than 2 times as possible to be precedential than orders on venue mandamus.
•  Second, the results documented in those precedential opinions—like precedential mandamus orders—are skewed towards circumstances in which the Federal Circuit disagrees with the choice below.

On the first place, here’s the breakdown of precedential views, nonprecedential viewpoints, and Rule 36 affirmances for all Federal Circuit appeals from 2008 by means of 2021.

Desk 1: Federal Circuit Panel Appeal Rulings, 2008 as a result of 2021

Table 2 beneath breaks the details down by tribunal of origin.

Table 2: Federal Circuit Panel Charm Rulings By Tribunal of Origin, 2008 as a result of 2021

These two tables make very clear that, over-all, 30% of Federal Circuit appeals are determined in a precedential belief. In district court docket cases—the most applicable comparator for location mandamus petitions—the figure is 42%.

Both way, the proportion of appeals settled in precedential views is substantially bigger than for location mandamus petitions. In addition, the Federal Circuit decides a lot more than a quarter of appeals in no-opinion affirmances—a system the courtroom does not utilize for mandamus petitions. If we excluded Rule 36 affirmances from our calculations, the discrepancies involving appeals and mandamus orders would be even larger.

On the next point about skewed results: Like with mandamus petitions, the benefits in precedential viewpoints disproportionately disagree with the reduced court docket or agency. Table 3 below stories the outcomes and modes of disposition of all Federal Circuit appeals (excluding a number of hundred appeals that had been dismissed or that had an unconventional outcome—namely, anything other than affirmed, reversed, vacated, and so on.) from 2008 through 2021.

Desk 3: Federal Circuit Panel Enchantment Rulings, Excluding Dismissals and Other Outcomes, 2008 through 2021

As the base row of the desk makes clear, overall, the Federal Circuit totally affirms in 78% of appeals. Nevertheless, as the first row of knowledge signifies, only 53% of precedential Federal Circuit opinions affirm the decrease tribunal 47% vacate or reverse, at minimum in aspect. By contrast, nonprecedential thoughts (the 2nd row of details on the desk) entirely affirm 81% of the time. And, as indicated towards the bottom of the desk, just about 30% of Federal Circuit appeals are determined in no-feeling Rule 36 affirmances, which, by definition, also entirely affirm throughout the board.

In limited, on the lookout only at precedential opinions, a single may possibly believe that, in any presented appeal, there’s about a 50-50 chance the Federal Circuit will at least partly disagree with the tribunal underneath. But, in reality, much less than a quarter of the Federal Circuit’s decisions disagree with the tribunal underneath in any respect.

The disparity between the results noted in precedential opinions versus total outcomes is similarly stark when the information is minimal to the major sources of Federal Circuit patent cases—appeals from the district courts, the PTO, and the ITC. From those three tribunals, blended, only 48% of precedential thoughts fully affirm. But the overall fully-affirmed charge in appeals from these tribunals is 73%. The figures under illustrate all those vast disparities.

Figure 1: Federal Circuit Precedential Rulings in DCT, PTO, and ITC Appeals, 2008 through 2021

Determine 2: Federal Circuit Nonprecedential Rulings in DCT, PTO, and ITC Appeals, 2008 by way of 2021

The skew of precedential viewpoints toward conclusions that disagree with the decreased tribunal give a deceptive sense of what Federal Circuit’s rulings seem like day in and working day out, just like the Federal Circuit’s precedential venue mandamus orders offer an inflated perception of the probability of mandamus staying granted. These results also raise attention-grabbing questions about what takes place to patent doctrine when it is formulated in instances that are not consultant of over-all results.

The data utilized in this write-up arrives from the Federal Circuit Dataset Undertaking, accessible at https://doi.org/10.7910/DVN/UQ2SF7 or empirical.law.uiowa.edu.