July Oral Argument Recap

We are two weeks out from arguments in the Federal Circuit’s July sitting. As usual during the summer months, the Court heard somewhat fewer cases in July than during a typical sitting. The Court continued its COVID-19-era practice of submitting some cases on the briefs and holding oral argument by telephone in the remaining cases. In July, the Court canceled oral argument in 21 of the 38 cases (about 55%) originally scheduled for argument. As we’ve previously observed, that marks a reversal of the trend from the first three months of telephonic arguments, when the percentage of cases in which the Court canceled argument declined each month—from 64% in April to 54% in May and 35% in June.

Another notable trend is that the Court continues to cancel argument more often in appeals from the Patent Trial and Appeal Board than in appeals from district courts. For instance, in May, the Court canceled argument in 75% of its cases from the PTAB but only 47% of its cases from district courts. And in June, the Court canceled argument in 50% of its PTAB cases but only 29% of its district court cases. Likewise, in July, the Court canceled argument in 77% of its cases from the PTAB but only in 33% of its cases originating in district court. Perhaps this disparity can be attributed to the fact that many issues in PTAB appeals are reviewed for substantial evidence, a standard highly deferential to the agency’s decision and unfavorable for appellants. Thus, there may be fewer close cases from the PTAB where oral argument would help the Federal Circuit judges. By contrast, district court cases involve the entire spectrum of patent-law issues and are arguably more likely to raise novel legal issues that warrant oral argument.

Here are some additional statistics from the Court’s July sitting:

Total cases: 17 arguments (and 21 counseled cases submitted on the briefs)

Quickest case: Land Shark Shredding, LLC v. United States, Nos. 20-1230, 20-1231 (docketed Dec. 10, 2019; 211 days from docketing to argument)

PTAB cases: 3 arguments (and 10 cases submitted on the briefs)

District court cases: 6 arguments (and 3 cases submitted on the briefs)

Rule 36 affirmances: 5 (all in argued cases)

Number of argument days by judge:

• Prost: 4
• Newman: 3
• Mayer: 0
• Plager: 0
• Lourie: 2
• Clevenger: 1
• Schall: 1
• Bryson: 1
• Linn: 1
• Dyk: 1
• Moore: 2
• O’Malley: 4
• Reyna: 2
• Wallach: 0
• Taranto: 0
• Chen: 3
• Hughes: 3
• Stoll: 2