February 10, 2021 - Federal Circuit Insights

It’s Two Weeks After Your Argument, And You’ve Heard Nothing. What Does That Mean?

Since we started this blog, we have taken a look at win-loss percentages a number of times.  Now that we recently updated our statistics (sortable, here), we took another look.  This time we thought we’d add a twist to our calculations by answering the following question:  how much do a party’s odds change once you remove Rule 36 affirmances?  For those less familiar with the Court, Rule 36 affirmances are one word judgments that merely state “AFFIRMED.”  They usually happen a week or two after oral argument (but see here) and occasionally happen in un‑argued cases (see here).  By definition, excluding Rule 36s means the reversal rate will go up—after all, we’ve removed a significant percentage of affirmances.  But we wondered how much it goes up, and what type of appeal benefits (depending on your perspective) the most.

For this post, we took a look at patent appeals.  For a baseline, the statistics generally seemed in line with the last time we took a look here.  (We look at all, district court, and PTAB appeals—ITC appeals are included in the “all” category since there aren’t enough of them to make it worthwhile as a third category.)

As the chart above shows, the overall affirmance rate remains high.  But it is lower for district court appeals compared to PTAB appeals and for non-patent owner appeals compared to patent owner appeals.

Now let’s take a look when we take out the Rule 36s.  Right away, it’s clear the biggest change is for non‑patent owner appellants.  Overall, a defendant or IPR petitioner that appeals becomes the favorite once you’re a few weeks past oral argument and Rule 36s are no longer expected, obtaining some sort of relief 53% of the time overall and 60% of the time when looking at just district court appeals.

Now, our statistics are sortable, so you can look at other tribunals.  For example, if we look at non‑patent cases, the affirmance rate goes from 64% to 59% once Rule 36s are removed—a much smaller decrease.  In all likelihood the decrease is due to the fact that most Rule 36s happen on the Court’s patent docket, as more of that docket has oral arguments

That’s all for this week.  Next week we’ll take a look at whether any of these numbers are different if we only look at cases submitted since the Court went remote with telephonic arguments.  Until then, in the words of Effie:  “May the odds be ever in your favor.”  Suzanne Collins, The Hunger Games.