February 3, 2021 - Oral Argument Recap

Who Gets Oral Argument (Revisited): January Argument Recap/February Argument Preview

Out with the old, and in with the new:  it’s Court week for the short February month, so we thought we’d revisit what happened at oral arguments last month and what’s happening now.

First, the past:  In the highly coveted first week of January arguments (who doesn’t love preparing for argument on New Year’s Day), the Court heard argument in 26 cases—having cancelled argument in 22 cases.  The 46% cancellation rate was on the high side, so about half the counsel got to enjoy a bit more bubbly than others as we closed the door on 2020.  And it’s higher than the argument cancellation rate in December, which was only 29% (39 argued cases, and 16 cancelled arguments).

As for who is getting argument cancelled:  when you look at the Court’s patent docket, PTAB cases were the relative losers—if you wanted oral argument (40% of those scheduled for argument were cancelled, compared to 29% for district court cases).  That’s pretty much in line with what we’ve seen in the past.  But really it was the rest of the Court’s docket—the non-patent cases—that took the brunt of the cancellations last month.

But as we’ve said before, and we’ll repeat again—the cancellations mostly seem to be pretty case-specific, other than some basic trends like district court cases being cancelled less frequently than others.

So looking at what’s going on in February, is it more of the same?  Sort of.  Those who wanted argument fared a bit better.  The Court cancelled argument in 14 out of 62 cases originally scheduled for oral argument (22.5%).  Interestingly, the cancellation rate remained relatively stable for district court (17%) and PTAB cases (36%), so the big difference was really in the non-patent docket of the Court faring better on getting oral arguments.

So what’s the takeaway?  The Court still cancels about a quarter to a half of oral arguments every month.  And while it’s clear that cancellations tend to be case-specific depending upon what’s scheduled and when, at least for patent cases, those originating from district courts tend to have more issues that the Judges think warrant oral argument compared to those from the PTAB.

January stats:

Total cases: 26 arguments (and 34 cases submitted on the briefs, of which 22 were originally set for argument)

Oldest case: SIPCO, LLC v. Emerson Electric Co., No. 18-1364 (1127 days)

Quickest case: Vargas v. Wilkie, No. 20-2289 (112 days)

PTAB cases: 9 arguments (and 7 counseled cases submitted on the briefs)

District court cases: 10 arguments (and 4 counseled cases submitted on the briefs)

Rule 36 affirmances: 9 (4 in District Court, 4 in PTAB, 1 in CAVC)

Number of argument days by judge:

  • Prost: 4
  • Newman: 0
  • Mayer: 1
  • Plager: 0
  • Lourie: 3
  • Clevenger: 1
  • Schall:  1
  • Bryson 2
  • Linn: 0
  • Dyk: 4
  • Moore: 2
  • O’Malley: 2
  • Reyna: 3
  • Wallach: 1
  • Taranto: 5
  • Chen: 3
  • Hughes: 2
  • Stoll: 2