September 22, 2020 - Oral Argument Recap

September Oral Argument Recap

Now that we’re just over two weeks out from arguments in the Federal Circuit’s September sitting, it’s time for our monthly oral argument recap.  After taking Thursday and Friday off during its August session, the Court was back to hearing arguments every day during September court week, with a total of 10 panels.

Two statistics from the September sitting stood out to us.  First, as we previously mentioned, the Court canceled argument in only 22% of its September cases.  That’s lower than any previous month since the Court went “remote”—e.g., 36% in June, 55% in July, and 46% in August.  (Disclosure:  One of our cases was among those submitted on the briefs without argument in September.)

Second, the Court issued Rule 36 summary affirmances in a whopping 61% of its September argued cases, including 60% of argued district court cases and 67% of argued PTAB cases.  That’s much higher than the Ruloe 36 figures from June (29%), July (29%), and August (23%).  And it’s even higher than the Rule 36 rate from the pre-pandemic days when the Court heard oral argument in almost every counseled case.  According to our data, only 38% of all cases decided between November and March were disposed of under Rule 36.  The numbers were higher for district court cases (42%) and PTAB cases (58%), but still lower than the corresponding figures from this September.

Why did the Court cancel fewer arguments and issue more Rule 36 affirmances this month?  Your guess is as good as ours.  It will be interesting to see whether these trends continue in future months or whether September turns out to be an anomaly.  Remote arguments will continue in October (and perhaps beyond).  The Court has already canceled argument in 7 of its October cases.  But since more cases were initially scheduled for argument in October, and some panels may not have made their cancellation decisions yet, it’s probably too soon to compare October’s numbers to September’s.

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

Total cases: 28 arguments (and 8 counseled cases submitted on the briefs)

Oldest case: Free Stream Media Corp. v. Alphonso Inc., No. 19-1506 (docketed Feb. 4, 2019; 576 days from docketing to argument)

Quickest case: Amarin Pharma, Inc. v. Hikma Pharmaceuticals USA, No. 20-1723 (docketed Apr. 21, 2020; 134 days from docketing to argument)

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

District court cases: 15 arguments (and 2 cases submitted on the briefs)

Rule 36 affirmances: 17 (all in argued cases; 9 from district court, 4 from the PTAB, 2 from the CFC, and 2 from the CIT)

Number of argument days by judge:

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

Samuel B. Goldstein co-authored this article as an associate in our Appellate + Supreme Court practice before departing the firm for a judicial clerkship.