December 15, 2020 - Federal Circuit Insights

We Updated Our Stats and Looked at the Timing of Appeals

We updated our stats, so we now have over a year of data since we started collecting data from every Federal Circuit decision.  As such, we thought we might take a look at some of the timing data on Federal Circuit appeals.  As readers know, we’ve taken a look at win-lose statistics a few times (here and here).

So one interesting question is whether patent cases take longer to decide than non-patent cases.  I decided to focus on the median number of days rather than the average, to avoid outlier decisions from skewing the numbers.  From argument to decision, the Court takes about a month (38 days) for non-prec opinions and three months (88 days) for precedential ones.  Interestingly, if we look at just patent cases, then the time increases slightly for non-prec opinions (42 days) and decreases slightly for precedential ones (79 days).  For non-prec, the PTAB to district court breakdown is 38 days to 50 days respectively.  That’s not surprising:  given that PTAB cases generally have more narrow issues, it makes sense that non-prec PTAB decisions would be a bit quicker.  On the other hand, precedential PTAB cases took longer than district court ones (92 days compared 79 days).

I was also interested if some cases get scheduled quicker for argument than others.  One perception some people have is that the Court tries to balance the calendars—otherwise during the height of IPR appeals the monthly sittings would be nothing but PTAB cases.  Overall, it takes an average of 154 days and a median of 148 days from the filing of the appendix to oral argument for all cases.  Interestingly, the numbers are about the same for patent cases:  159 days average and 149 days median.  As for the perception that PTAB cases might take longer because there are so many of them?  Not really true.  The average is 161 days and the median is 150 days.  District court patent cases are about the same:  158 days average and 149 days median.  This means that the Court has a pretty balanced docket and does a really good job of getting all cases to argument at around the same pace.  Is anything quicker?  Yes, veterans cases that get argued (remember, many are pro se and don’t get argument) tend to be a bit faster—129 day average and 131 day median.

One final timing stat I decided to look at was days from notice of appeal to decision—as this likely also reflects things like extensions and other extended briefing.  I wondered if parties in district court patent cases might take longer.  Here, PTAB cases came in at 460 days average and 427 days median.  District court patent cases came in at 427 days average and 404 days median.  This tells us that there’s nothing to see here.  Both PTAB cases and district court patent cases are taking about the same amount of time—start to finish—and any delay in the PTAB cases is likely due to the 40 days that the Patent Office has to file the certified record before briefing starts.

If you’re interested in stats like this, you should also take a look at our sister blog—Left Coast Appeals—which has similar data on the Ninth Circuit.