The Federal Circuit’s Precedent/Outcomes Mismatch

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

Lately, we wrote about the modest selection of mandamus selections on transfer of venue that the Federal Circuit has specified as precedential and about how people precedential decisions are unrepresentative of over-all outcomes. Exclusively, the Federal Circuit has labeled only 15% of its venue mandamus orders as precedential. And, however the Federal Circuit grants venue mandamus considerably less than a 3rd of the time, the court has granted practically 80% of the petitions it has made a decision in precedential orders.

As a comparison, we required to share some details on precedential impression fees in typical Federal Circuit appeals (as opposed to mandamus petitions). Our knowledge make two factors obvious.

• First, opinions in frequent appeals are far more than 2 times as probable to be precedential than orders on location mandamus.
•  2nd, the results noted in these precedential opinions—like precedential mandamus orders—are skewed towards circumstances in which the Federal Circuit disagrees with the final decision underneath.

On the initially place, here’s the breakdown of precedential opinions, nonprecedential views, and Rule 36 affirmances for all Federal Circuit appeals from 2008 by means of 2021.

Desk 1: Federal Circuit Panel Charm Rulings, 2008 by way of 2021

Table 2 down below breaks the facts down by tribunal of origin.

Table 2: Federal Circuit Panel Attraction Rulings By Tribunal of Origin, 2008 by way of 2021

These two tables make apparent that, overall, 30% of Federal Circuit appeals are determined in a precedential viewpoint. In district court docket cases—the most appropriate comparator for venue mandamus petitions—the figure is 42%.

Possibly way, the proportion of appeals solved in precedential thoughts is substantially greater than for location mandamus petitions. Also, the Federal Circuit decides much more than a quarter of appeals in no-impression affirmances—a mechanism the courtroom does not make use of for mandamus petitions. If we excluded Rule 36 affirmances from our calculations, the variations amongst appeals and mandamus orders would be even larger.

On the second level about skewed results: Like with mandamus petitions, the outcomes in precedential views disproportionately disagree with the lower court docket or company. Desk 3 beneath stories the results and modes of disposition of all Federal Circuit appeals (excluding a couple hundred appeals that had been dismissed or that experienced an uncommon outcome—namely, a little something other than affirmed, reversed, vacated, and so forth.) from 2008 through 2021.

Table 3: Federal Circuit Panel Charm Rulings, Excluding Dismissals and Other Outcomes, 2008 through 2021

As the base row of the table will make crystal clear, over-all, the Federal Circuit entirely affirms in 78% of appeals. But, as the to start with row of details implies, only 53% of precedential Federal Circuit views affirm the lessen tribunal 47% vacate or reverse, at least in portion. By distinction, nonprecedential viewpoints (the second row of info on the table) thoroughly affirm 81% of the time. And, as indicated toward the bottom of the desk, practically 30% of Federal Circuit appeals are decided in no-impression Rule 36 affirmances, which, by definition, also thoroughly affirm across the board.

In shorter, hunting only at precedential views, 1 may possibly consider that, in any given appeal, there is about a 50-50 probability the Federal Circuit will at least partly disagree with the tribunal below. But, in truth, less than a quarter of the Federal Circuit’s decisions disagree with the tribunal beneath in any respect.

The disparity in between the outcomes described in precedential views vs . general effects is similarly stark when the details is limited to the key resources of Federal Circuit patent cases—appeals from the district courts, the PTO, and the ITC. From people a few tribunals, mixed, only 48% of precedential views completely affirm. But the in general completely-affirmed charge in appeals from people tribunals is 73%. The figures beneath illustrate people extensive disparities.

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

Determine 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 reduced tribunal supply a deceptive feeling of what Federal Circuit’s rulings appear like day in and day out, just like the Federal Circuit’s precedential location mandamus orders supply an inflated perception of the likelihood of mandamus currently being granted. These conclusions also increase intriguing queries about what comes about to patent doctrine when it is produced in scenarios that are not consultant of in general outcomes.

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