The Federal Circuit decides appeals addressing patent law, government contracts, trade disputes, tax appeals, suits against the federal government, veterans’ benefits, and federal employment cases. Federal Circuitry takes a data-driven look at the Federal Circuit. Our <a href="/statistics" target="_self">Federal Circuit Statistics</a> empirically analyze appeal timing, outcomes, and other quantifiable aspects of the Court.  Our <a href="/trackers/en-banc-tracker" target="_self">En Banc Tracker</a> shows pending and past petitions where the Court has called for a response. Our <a href="/trackers/substantive-orders-tracker" target="_self">Substantive Order Tracker</a> allows you to search for less-discussed and hard-to-find orders that affect practice before the Court. Check back weekly for <a href="/topics/last-week-in-the-federal-circuit" target="_self">Last Week in the Federal Circuit</a> and monthly for our <a href="/topics/oral-argument-recap" target="_self">Oral Argument Recap</a>.<h2>About Morrison Foerster's Appellate + Supreme Court Practice</h2>Morrison Foerster’s market-leading <a href="https://www.mofo.com/capabilities/appellate-supreme-court.html">Appellate and Supreme Court practice</a> wins appeals with deep strategic thinking, clear writing, and forceful oral advocacy. Our work spans the Supreme Court of the United States, every federal court of appeals, and state appellate courts in California, New York, and elsewhere. And we handle appeals in every area of law—from intellectual property to class actions, arbitration to antitrust, environmental law to ERISA. We are consistently ranked as one of the top appellate and Supreme Court practices in the country by Chambers USA and Legal 500 USA, and our practice has been named to the National Law Journal’s Appellate Hot List multiple times.<h2>About Morrison Foerster's Patent Litigation Practice</h2>We are a global <a href="https://www.mofo.com/capabilities/patent-litigation.html">IP litigation</a> powerhouse, dedicated to fiercely protecting innovation in high-stakes and complex patent litigation matters. While we are skilled at resolving disputes short of trial, some cases do see the inside of a courtroom. When they do, our trial lawyers stand out for their superb knowledge of patent law, experience with judges in high-volume patent venues, facility with explaining cutting-edge technologies to juries, and history defending against patent assertion entities and other habitual plaintiffs. From cross-border matters and multiparty disputes to global litigation management and NPE litigations, we develop novel solutions to protecting and enforcing some of the most prized patents in the world.<h2>About Morrison Foerster</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Brian Matsui co-chairs Morrison Foerster’s Appellate and Supreme Court practice. Brian is a go-to appellate advocate for sophisticated clients in complex appeals. Brian has a nationwide appellate practice. He has argued many cases in federal and state appellate courts throughout the country, winning appeals involving federal preemption, securities litigation and enforcement, consumer class actions, and intellectual property. He has led appeals in the D.C., Second, Fourth, Fifth, Ninth, Eleventh, and Federal Circuits. His arguments include significant victories in class action appeals and in appeals for leading financial services companies, with multiple victories in the Ninth Circuit, where he clerked. Brian recently has gone five for six when representing appellants, including a precedential victory in the Ninth Circuit in a licensing dispute concerning alleged patent misuse. He also argued and won a D.C. Circuit appeal against the Securities and Exchange Commission (SEC) about the retroactivity of part of the Dodd-Frank Act. As a result of Brian’s win, the SEC had to change its enforcement practices against certain securities industry professionals.Clients frequently turn to Brian for his substantial experience with appeals in the Federal Circuit, praising him as “an invaluable advocate in patent matters” (Chambers USA). Brian has won 13 of his last 15 appeals in that Court. His arguments before the Federal Circuit include winning appeals from district courts, the Patent Trial and Appeal Board, and the International Trade Commission. He has handled appeals in a myriad of industries, including mobile devices, pharmaceuticals, medical devices, semiconductors, and software.Brian also plays a key role on trial teams, advising clients on both critical legal issues and appellate preservation. He recently argued and prevailed against a summary judgment invalidity motion in a case involving Chugai Pharmaceutical Co. Ltd.’s revolutionary antibody recycling technology, which ultimately led to a $775 million settlement on the eve of trial for Chugai.A former law clerk for the United States Supreme Court, Brian has authored many briefs in that Court, including on important constitutional and statutory interpretation issues. He often represents clients’ interests in amicus briefs in significant Supreme Court cases affecting the business community.Leading publications have recognized Brian for his appellate skills. The Legal 500 US recommends him for appellate litigation, and the National Law Journal named Brian a “Minority 40 Under 40.”Brian also dedicates significant time to pro bono matters. He argued and won two significant appeals—in the Second and Ninth Circuits—obtaining reversals of judgments that had denied private rights of action under the Child Welfare Act in precedential decisions. Brian also led the Morrison Foerster team who co-counseled a successful Eighth Amendment challenge to Florida’s imposition of a “life without the possibility of parole” sentence to a juvenile offender convicted of a non-homicide crime.For years, Brian chaired the ABA’s seven-person Standing Committee for Amicus Curiae Briefs. He served on the American Intellectual Property Law Association’s amicus committee and co-chaired the National Asian Pacific American Bar Association’s amicus committee. Brian served as an appellate lawyer representative for the Ninth Circuit. Brian also serves on the board of directors for the Lawyers’ Committee for Civil Rights Under Law.Before entering private practice, Brian clerked on the United States Supreme Court for Justice Anthony M. Kennedy. He also clerked for Judge Pamela Ann Rymer in the Ninth Circuit and Judge David F. Levi in the Eastern District of California.While in law school, Brian served as managing editor of Volume 51 of the Stanford Law Review and was elected to the Order of the Coif.<h4>Representative Oral Arguments</h4><ul><li><a href="https://oralarguments.cafc.uscourts.gov/default.aspx?fl=22-1260_02102023.mp3" target="_blank">SNIPR Technologies Ltd. v. Rockefeller University </a>(Fed. Cir.) Prevailed in a precedential decision reversing the Patent Office’s interpretation of the America Invents Act (AIA) that subjected patents post-dating the Act to pre-AIA interference proceedings. The decision revived five of SNIPR’s patents related to CRISPR technology.</li><li><a href="/resources/video-audio/220114-broadcom-corporation-v-renesas-matsui" target="_blank">Renesas Electronics Corporation v. Broadcom Corporation</a> (12:40) (Fed. Cir.) Successfully argued and briefed multiple appeals from an International Trade Commission (ITC) decision and several Patent Trial and Appeal Board decisions related to an ITC investigation initiated by Broadcom involving systems-on-chip powering automobile infotainment systems.</li><li><a href="/resources/video-audio/210706-cr-bard-v-medline-industries" target="_self">C.R. Bard Inc. v. Medline Industries, Inc.</a> (0:45) (Fed. Cir.) Won vacatur of three Patent Trial and Appeal Board decisions on obviousness.</li><li><a href="https://oralarguments.cafc.uscourts.gov/default.aspx?fl=21-1745_03102022.mp3" target="_blank">Advanced Voice Recognition Systems, Inc. v. Apple Inc.</a> (14:30) (Fed. Cir.) Secured a complete victory in appeal from Patent Trial and Appeal Board that all challenged patent claims were unpatentable.</li><li><a href="/resources/video-audio/200515-william-paulus-v-ocera-therapeutics-inc.html" target="_self">William Paulus v. Ocera Therapeutics, Inc.</a> (13:25) (9th Cir.) Successfully argued and briefed appeal in a putative shareholder class action involving a tender offer.</li><li><a href="/resources/video-audio/200410-kurtz-v-costco.html" target="_blank">Kurtz v. Costco Wholesale Corporation </a>(9:23) (2d Cir.) Successfully petitioned for review of a class certification decision, then argued and obtained a remand for the district court to reconsider its certification decision and an eventual reversal on an injunctive class certification decision.</li><li><a href="/resources/video-audio/161117-gregory-bartko-v-sec.html" target="_self">Gregory Bartko v. SEC</a> (0:53) (D.C. Cir.) Successfully argued and obtained precedential ruling that the Securities and Exchange Commission could not retroactively apply Dodd-Frank’s industry-wide sanctions on securities professionals for certain securities violations.</li></ul>

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Partner

Brian Matsui is a partner in Morrison Foerster’s Appellate and Supreme Court practice. For nearly 20 years, Brian has been a go-to appellate advocate for sophisticated clients in complex appeals nationwide. Clients turn to Brian for his substantial experience in patent appeals in the Federal Circuit. He has argued more than 10 times in that Court, winning appeals from both district courts and the Patent Trial and Appeal Board. Brian excels at applying significant legal principles to complex technologies in a way that distills them for the Court. He has done so for companies in a myriad of industries, including mobile device manufacturers, pharmaceutical companies, medical device companies, memory manufacturers, movie studios, and software companies.

Brian Matsui

Seth Lloyd, a member of Morrison Foerster’s Appellate and Supreme Court practice, has been counsel in more than a hundred appeals in federal and state courts nationwide. Seth has presented oral arguments in the U.S. Courts of Appeals for the D.C. Circuit, the Seventh Circuit, the Ninth Circuit, and the Federal Circuit, as well as in the New Jersey Appellate Division.Seth has particular experience in patent appeals before the Federal Circuit. He has authored successful briefs for both patentees and defendants on a wide range of technologies, from medical devices to pharmaceuticals to computer hardware and software. His practice includes appeals from district courts, the Patent Trial and Appeal Board, and the International Trade Commission. Seth also has argued five times in the Federal Circuit. His winning arguments include a successful reversal of three PTAB decisions in a consolidated appeal for a computer memory designer. Seth is co-chair of the Federal Circuit Bar Association’s Administrative Law & Regulatory Committee. And he is an Editor of Morrison Foerster’s <a href="https://federalcircuitry.mofo.com/" target="_blank">Federal Circuitry</a> blog, which takes a data-driven approach to analyzing the Federal Circuit and its decisions.Seth regularly practices in the United States Supreme Court. He has drafted petitions and amicus briefs at the certiorari stage, as well as party and amicus briefs at the merits stage. Seth also moots members of the bar for Supreme Court arguments through the Georgetown Supreme Court Institute and is a member of the Edward Coke Appellate Inn of Court.Seth’s clients and peers recognize his expertise. Legal 500 named Seth a Key Lawyer; Super Lawyers called him a Rising Star; and Best Lawyers in America added him to its Ones to Watch list, all for appellate practice. Before joining Morrison Foerster, Seth served as a law clerk for Judge Richard G. Taranto of the Federal Circuit. He earned his J.D. from Stanford Law School, where he worked on two successful certiorari petitions and one successful merits case through Stanford’s Supreme Court Litigation Clinic.Seth also holds a Ph.D. and M.S. in electrical engineering from Stanford University. During his graduate studies, he received the National Defense Science and Engineering Graduate Fellowship, published 10 peer-reviewed articles, and co-invented the subject matter of five U.S. patents.<h4>Appellate Arguments</h4><ul><li><a href="/resources/video-audio/220114-renesas-electronics-v-broadcom-corporation" target="_self">Renesas Electronics Corp. v. Broadcom Corp.</a> (00:10) (Fed. Cir.) Argued and won affirmance for inter partes review petitioner in challenge to electronic device claims</li><li><a href="/resources/video-audio/170609-netlist-inc-v-diablo-technologies" target="_self">Netlist, Inc. v. Diablo Technologies, Inc.</a> (02:56) (Fed. Cir.) Argued and won reversal for owner of computer memory patents in appeals from three consolidated inter partes reviews</li><li><a href="/resources/video-audio/200610-google-llc-v-netlist-inc" target="_self">Google LLC v. Netlist, Inc.</a> (13:15) (Fed. Cir.) Argued and won affirmance for owner of computer memory patents in consolidated appeals from decade-long reexamination</li><li><a href="/resources/video-audio/220309-apple-inc-v-mph-technologies" target="_self">Apple Inc. v. MPH Technologies Oy</a> (00:16) (Fed. Cir.) Argued for inter partes review petitioner in challenge to computer security claims</li><li><a href="/resources/video-audio/180808-netlist-inc-v-sandisk-llc" target="_self">Netlist, Inc. v. SanDisk LLC</a> (01:53) (Fed. Cir.) Argued for patent owner in consolidated appeals raising APA challenges to inter partes review decisions</li><li><a href="/resources/video-audio/201026-nicole-k-v-stigdon" target="_self">Nicole K. v. Stigdon</a> (00:16) (7th Cir.) Argued for children in Indiana foster care raising constitutional due process claims</li><li><a href="/resources/video-audio/200306-strike-3-holdings" target="_self">Strike 3 Holdings, LLC v. Doe</a> (21:40) (D.C. Cir.) Argued as court-appointed amicus defending an order refusing a subpoena to unmask an internet subscriber’s identity</li><li><a href="/resources/video-audio/161118-harris-v-mangum" target="_self">Harris v. Mangum</a> (00:02) (9th Cir.) Argued as court-appointed amicus defending indigent prisoner’s right to a guardian ad litem</li></ul><h4>Additional Representative Matters</h4><ul><li>SNIPR Technologies Ltd. v. Rockefeller University (Fed. Cir.) Revived five SNIPR patents related to CRISPR technology after prevailing in a precedential decision that reversed the Patent Office’s interpretation of the America Invents Act (AIA), under which post-AIA patents could be subjected to pre-AIA interference proceedings</li><li>Broadcom Corp. v. International Trade Commission (Fed. Cir.) Successfully defended ITC’s determination of no Section 337 violation in case involving multiple patents directed to system-on-chip technology for automobile infotainment systems</li><li>Chugai Pharmaceutical Co. v. Alexion Pharmaceuticals (D. Del.) Successfully beat back defendant’s push for summary judgment of invalidity for lack of written description on pharmaceutical genus claims, ultimately helping to secure a $775 million settlement for the patent owner</li><li>C.R. Bard Inc. v. AngioDynamics, Inc. (Fed. Cir.) Secured reversal of district court judgment of non-infringement, no willfulness, and invalidity, reviving Bard’s infringement case on three patents</li><li>Washington University v. Wisconsin Alumni Research Foundation (3d Cir.) Successfully defended trial victory for breach of patent licensing agreement and further won judgment entitling Washington University to prejudgment interest</li><li>Nevro Corp. v. Boston Scientific Corp. (Fed. Cir.) Secured reversal for Nevro of district court judgment of invalidity for indefiniteness</li><li>Federal National Mortgage Association v. Zabriskie (9th Cir.) Won reversal for Fannie Mae of a Fair Credit Reporting Act judgment</li><li>Henson v. Santander Consumer USA Inc. (S. Ct.) Represented U.S. Chamber of Commerce and others as amici supporting respondent in unanimous affirmance of Fair Debt Collection Act decision</li><li>BASF Corp. v. Johnson Matthey Inc. (Fed. Cir.) Won reversal of an invalidity ruling against patentee BASF, reviving its patent claims</li><li>C.R. Bard Inc. v. Medline Industries, Inc. (Fed. Cir.) Won vacatur for petitioner of three Patent Trial and Appeal Board decisions on obviousness for patents to medical device technology</li><li>Altayyar v. Etsy, Inc. (2d Cir.) Secured dismissal of securities fraud case for failure to adequately plead falsity</li><li>Bridge & Post, Inc. v. Verizon Communications, Inc. (Fed. Cir.) Secured dismissal because asserted patents claimed unpatentable subject matter</li><li>Sam Francis Foundation v. Christie’s, Inc. (S. Ct.) Successfully preserved Sotheby’s en banc win at the Ninth Circuit based on the dormant Commerce Clause</li><li>Phigenix, Inc. v. Genentech, Inc. (Fed. Cir.) Secured total victory of noninfringement for Genentech</li><li>Deason v. Fujifilm Holdings Corp. (New York Appellate Division, First Department) Secured reversal in major shareholder challenge to corporate acquisition</li><li>V.L. v. E.L. (S. Ct.) As counsel for children’s guardian ad litem, secured reversal of Alabama Supreme Court’s refusal to grant full faith and credit to Georgia judgment recognizing lesbian mother as legal parent</li></ul>

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Seth Lloyd is an associate in Morrison Foerster’s Appellate and Supreme Court Practice with broad experience briefing and arguing appeals. Seth has particular experience in patent appeals before the Federal Circuit. He has been a primary author of successful briefs on a wide range of technologies, from medical devices to chemistry to computer hardware and software. He also has successfully argued multiple times in that Court, including obtaining reversal of three Patent Trial and Appeal Board decisions in a consolidated appeal for a computer memory designer. Before joining Morrison Foerster, Seth served as a law clerk for Judge Richard G. Taranto of the Federal Circuit. He earned his J.D. from Stanford Law School and also holds a Ph.D. in electrical engineering from Stanford University.

Seth Lloyd is an associate in Morrison Foerster’s Appellate and Supreme Court Practice with broad experience briefing and arguing appeals. Seth has particular experience in patent appeals before the Federal Circuit. He has been a primary author of successful briefs on a wide range of technologies, from medical devices to chemistry to computer hardware and software. He also has successfully argued multiple times in that Court, including obtaining reversal of three Patent Trial and Appeal Board decisions in a consolidated appeal for a computer memory designer. Before joining Morrison & Foerster, Seth served as a law clerk for Judge Richard G. Taranto of the Federal Circuit. He earned his J.D. from Stanford Law School and also holds a Ph.D. in electrical engineering from Stanford University.

Seth Lloyd

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Federal Circuitry is a data-driven Federal Circuit blog. Our <a href="https://federalcircuitry.mofo.com/statistics">Federal Circuit Statistics</a> empirically analyze quantifiable aspects of the Court. Our <a href="https://federalcircuitry.mofo.com/trackers/en-banc-tracker">En Banc Tracker</a> highlights pending and past petitions. Our <a href="https://federalcircuitry.mofo.com/trackers/substantive-orders-tracker">Substantive Order Tracker</a> allows you to search less-discussed orders. Check back weekly for <a href="https://federalcircuitry.mofo.com/topics/last-week-in-the-federal-circuit" target="_self">Last Week in the Federal Circuit</a> and monthly for our <a href="https://federalcircuitry.mofo.com/topics/oral-argument-recap" target="_self">Oral Argument Recap</a>. Follow us on Twitter <a href="https://twitter.com/Fed_Circuitry" target="_blank">@Fed_Circuitry</a>.

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Many petitions for rehearing are filed; only the smallest handful are granted. Rather than track every filed petition, we track those that have a chance. Our database tracks petitions for rehearing once the Federal Circuit has called for a response (CFR). A CFR is the first real indication that the Court might have interest in the petition, as it indicates that at least one judge on the Court may be taking a second look. Our En Banc Tracker allows you to see the amount of time it takes for various cases to get a CFR, and you can sift through the data to see what types of cases have captured the potential attention of the Court. Our data goes back to January 2020.<div data-reactroot=""><iframe allowfullscreen="" frameBorder="0" height="2350" width="100%" src="https://public.tableau.com/views/RehearingCFRsandSubstantiveOrders/RehearingCFRs?:language=en&amp;:display_count=y&amp;:origin=viz_share_link&amp;:showVizHome=no&amp;:embed=yes&amp;:showShareOptions=false"></iframe><style media="(min-width:48.0625em)">#embed-wrapper-204954215{padding: 0 0 2350px;}</style></div>

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Many orders from the Federal Circuit are not reported but can affect practice and procedure before the Court. We track and reproduce those orders here, highlighting ones that may be of significant interest to those who have cases before the Federal Circuit.<div data-reactroot=""><iframe src="https://public.tableau.com/views/RehearingCFRsandSubstantiveOrders/SubstantiveOrders?:language=en&amp;:display_count=y&amp;:origin=viz_share_link&amp;:showVizHome=no&amp;:embed=yes&amp;:showShareOptions=false" width="100%" height="3030" allowfullscreen="" frameBorder="0"></iframe></div>

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Some of the big news a couple weeks ago was the Supreme Court’s decision to invite the Solicitor General (SG) to file a brief expressing the views of the United States in American Axle, a Section 101 case involving an industrial process for manufacturing. This action—commonly referred to as a CVSG (Call for the Views of the Solicitor General)—provides a strong indication that the Supreme Court is seriously considering granting review in a case.As readers no doubt know, the Supreme Court often CVSGs in patent cases before granting cert. The Court recently CVSG’d two 101 cases only to deny review last Term (discussed in our article <a href="https://federalcircuitry.mofo.com/topics/200714-supreme-court-review-sometimes-what-is-not-decided-matters-more-than-what-is.html">here</a>). Given the importance of CVSGs and the fact they are intermediate stopping points for many patent cert petitions that actually get granted, we decided to catch up with the co-chair of MoFo’s Appellate and Supreme Court practice, <a href="https://www.mofo.com/people/deanne-maynard.html">Deanne Maynard</a>, to discuss them. Before joining the firm, Deanne was an Assistant to the Solicitor General for five years, representing the United States in the Supreme Court.Brian Matsui: I know you’re well-versed in CVSGs, both from being in the SG’s office and in private practice when cases get CVSG’d. So generally speaking, what does it mean when the Supreme Court CVSGs?Deanne Maynard: In the simplest terms, it means the Supreme Court is interested but wants more guidance. Some Justices on the Court are considering granting the petition, but there may be something holding the Court back. So they invite the views of the SG. And although it’s called an “invitation,” the SG views it as an order to file a brief on the cert-worthiness of the case and the question presented.As for what it means, it often allows the Court to get the views of an “honest broker,” a non-party who doesn’t have its own axe to grind in the case but still knows and cares a lot about the question presented. And the SG can tell the Court whether the case is a good vehicle to resolve the question or if there might be some obstacle that might get in the way. That can be helpful for the Justices. Of course, in patent cases, the United States may have more of an interest in how the question comes out: the government issues patents, handles agency patent challenges, owns patents itself, and is sometimes sued on others’ patents.Brian: So how does the process work? The Court asks for a brief, and after some period of time, one is filed?Deanne: There’s no deadline for CVSG briefs. But often you can tell, depending on the time of year of the invitation order, when the SG might file the brief. Generally, the SG tries to file briefs in time for cert petitions to be considered for certain Conferences, where the Justices discuss the petitions and decide which ones to grant. So some briefs will be filed in time for the Court to consider them before it recesses in July. Others will be filed over the summer, in time for the long summer Conference in September. And then in December, the SG might file briefs so that they can be granted in time for them to be heard before the last oral argument in April.So for American Axle, it’s too soon for the SG to file a brief before the Court recesses this summer. That means the first possibility would be over the summer before the September Conference. The Office generally will try to file the brief by then. But since there’s no deadline, it could take longer. If we look at the 101 cases denied last Term, the Court CVSG’d one several months before the other. But the second invitation came before the SG had responded to the first, so the SG decided to file both briefs at the same time so the government could coordinate its views across the two cases.Brian: How does the SG go about figuring out what the views of the United States should be? Does the SG’s Office have patent expertise?Deanne: As soon as the SG gets an invitation, the Office sends a request for the views of every affected agency as well as various Justice Department divisions. In patent cases, that often includes at least the PTO, the Department of Commerce, and the FTC, which often has views on intellectual property issues relating to competition. Depending on the case, it may also include agencies like the FDA and NIH. For the DOJ, it would include several parts of the civil division, which often deals with government IP issues, and the antitrust division. These agencies and divisions will send written views to the SG on what they think the United States’ position should be, on both the cert-worthiness and the merits of the question presented. But ultimately, it’s the SG who will decide what the view of the United States should be, and who will resolve any competing interests within the government. The Office currently has the benefit of a Deputy Solicitor General, Malcolm Stewart, who has supervised the patent docket for over decade. Before filing an invitation brief, the Office often meets with counsel for the parties to the case. If either party requests a meeting, the Office will meet with both sides. But if neither party makes a request, the Office generally doesn’t reach out to them. The meeting is a chance for the parties to explain why the cert petition should be granted or denied. In addition to the Deputy SG, the Assistant to the SG assigned to the case will be at the meeting, as well as representatives from the interested federal agencies and DOJ divisions. The meetings are often set up so the Office will meet with each party separately, followed by a government-only meeting so the Office can discuss with the other government entities what position the SG’s brief should take.Brian: Does the Court pretty much always follow the SG’s recommendation?Deanne: It depends on what the SG recommends. Yes, the Court almost always grants cert if the SG recommends grant. It’s confirmatory, as the Justices were already interested.But if the SG recommends deny, then it might depend on why the SG says deny. Sometimes the SG’s brief might recommend deny but say that the issue itself is really important and should be reviewed, just not in this case. In that situation, the SG might identify some possible reason why the case isn’t the right vehicle to resolve the question presented and say the Court should wait for a later case. The Court might grant anyway.The Court also might grant review if the SG says the case was wrongly decided but cert should be denied. For example, the SG might say the issue won’t have any widespread significance or the disagreement in the lower courts might resolve itself. But because the Court was already interested in the case when it CVSG’d, it might grant anyway. Still, we never know for sure why the Court grants or denies review because those orders are unexplained.Brian: So what do we make of American Axle given the cert denials on the 101 cases last Term?Deanne: Obviously the Court is interested, given the CVSG in American Axle. And on a superficial level, three CVSGs in 101 cases over the past couple of years suggests the Court sees something of interest.But I’m not sure how much you can draw from the other CVSGs or the cert denials last Term. The SG recommended deny in both 101 CVSGs, but it identified and recommended granting a third petition addressing methods of treating diseases. Of course, the Court denied that one too, and there’s no way to know why. But given the difference between the mechanical arts issues in American Axle and methods of treating diseases, I don’t think the Acting SG (or the SG, if one is confirmed before the brief is filed) will feel constrained by the prior grant recommendation. That recommendation was pretty closely tied to patent eligibility questions related to methods of treating diseases, even though the brief noted broader confusion stemming from the Supreme Court’s 101 jurisprudence. And while the Deputy SG is the same, the Administration is different. And we don’t yet know if the Biden Administration will feel differently about these issues.One thing to keep an eye on is how the SG views American Axle from a simplicity of technology perspective. In recommending deny in one of the CVSGs last Term, the brief noted that the Supreme Court in particular had less experience addressing patent eligibility questions in the software context. The SG suggested taking a case involving industrial processes, which is more like the issues in American Axle. But now that a case actually is before the Court, it will be interesting to see if the Office has any concerns that the technology and issues aren’t the best vehicle to address some of the 101 confusion the previous SG identified.

Brian Matsui co-chairs Morrison Foerster’s Appellate and Supreme Court practice. Brian is a go-to appellate advocate for sophisticated clients in complex appeals nationwide. 

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Deanne Maynard, Washington, D.C.-based co-chair of our Appellate and Supreme Court practice, is one of the nation's most accomplished appellate advocates.

Deanne Maynard

Deanne Maynard | Appellate + Supreme Court Lawyer

For more than 20 years, Deanne Maynard, co-chair of Morrison Foerster’s Appellate and Supreme Court practice, has briefed and argued significant appeals in the United States Supreme Court and appellate courts across the country. She has argued 14 cases before the Supreme Court and filed over 100 briefs in that Court.

Deanne E. Maynard

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CVSG in American Axle and Cases in General: What Does It Mean? A Q&A With Deanne Maynard

CVSG in American Axle and Cases in General: What Does It Mean? A Q&A With Deanne Maynard

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Some of the big news a couple weeks ago was the Supreme Court’s decision to invite the Solicitor General (SG) to file a brief expressing the views of the United

Federal Circuit Insights

“The Federal Circuit – that’s the patent court, right?” That seems to be a common sentiment from non-Federal Circuit practitioners. And there’s certainly some truth to the sentiment. According to the Court’s own statistics, from October 1, 2019, to September 30, 2020, the Court terminated 1,568 cases; 1,020 of those (65%) originated in district court or the Patent & Trademark Office (though, as explained below, not all of those were patent cases). There’s no question that the largest segment of the Federal Circuit’s docket, and especially its published opinions, are patent cases.Still, that means more than a third of the Federal Circuit’s cases originate in other tribunals. What are those other tribunals? As <a href="https://federalcircuitry.mofo.com/statistics">our statistics</a> show, the Court of Federal Claims is the next largest source of cases for the Federal Circuit. Those cases can involve disputes over government contracts (which our colleagues cover at <a href="https://govcon.mofo.com/">Government Contracts Insights</a>). But they can also involve a variety of other types of claims for money damages against the United States, such as takings claims, tax disputes, or the fight over Obamacare’s insurance funding and Congress’s appropriations that reached the Supreme Court last term (decision <a href="https://www.supremecourt.gov/opinions/19pdf/18-1023_m64o.pdf">here</a>).Beyond the Court of Federal Claims, several other Article I tribunals feed cases to the Federal Circuit: the Merit Systems Protection Board (though the Board currently lacks any members), Court of Appeals for Veterans Claims, Court of International Trade, and International Trade Commission, to name just a few. That represents quite a range of topics, from employment law, to veterans’ benefits, to customs classifications, to more patent cases. In all, more than a dozen different Article I tribunals feed cases to the Federal Circuit spanning a diverse range of topics (even touching criminal justice through the Court’s review of the Department of Justice’s Bureau of Justice Assistance).Even appeals from district courts and the Patent & Trademark Office, the Federal Circuit’s typical bread and butter, go beyond patent law. If a district court action originally “arose under” patent law but the patent claims settled, appeals of non-patent issues generally would still go to the Federal Circuit. That’s why the Supreme Court was reviewing a Federal Circuit decision when it decided this term’s <a href="https://www.supremecourt.gov/opinions/20pdf/18-956_d18f.pdf">major copyright case</a>. And appeals from the Patent & Trademark Office include appeals from the Trademark Trial and Appeal Board.Nor are non-patent cases just an afterthought at the Court. Our <a href="https://federalcircuitry.mofo.com/statistics">statistics for Case Outcomes</a> show that non-patent cases draw close scrutiny from the judges. In fact, although the affirmance rate in our data is roughly 75% for patent cases, it’s only 63.7% for non-patent cases.So, if you mainly deal with patent cases at the Federal Circuit, why care about the rest of the Court’s docket? Because understanding that Federal Circuit judges are more than patent judges is important for understanding how judges may approach your case. As we discussed in our post “<a href="https://federalcircuitry.mofo.com/topics/Theres-a-new-President-How-could-that-affect-practice-in-the-Circuit.html">There’s a New President. How Could that Affect Practice in the Circuit?</a>,” many Federal Circuit judges come to the Court with non-patent law backgrounds. And even those with patent experience develop as more generalist judges given the Court’s wide-ranging docket. Thinking about how other areas of the law may connect with or influence patent law issues can make your case more persuasive. In the end, maybe the answer to whether the Federal Circuit is a patent court is “Yes, but …”

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How Well Do You Know the Federal Circuit’s Jurisdiction?

How Well Do You Know the Federal Circuit’s Jurisdiction?

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“The Federal Circuit – that’s the patent court, right?” That seems to be a common sentiment from non-Federal Circuit practitioners. And there’s certainly some t

The Supreme Court Term is winding down, with just one oral argument remaining and about two months before the last opinion release. Today, we’re checking in on the main Federal Circuit cases on the Court’s docket—including one breaking-news update.American Axle and Section 101Today’s big development was in American Axle & Manufacturing Inc. v. Neapco Holdings LLC, a case about patent eligibility under Section 101 (which we’ve discussed <a href="https://federalcircuitry.mofo.com/topics/Last-Week-in-the-Federal-Circuit-October-19-23-Still-More-Axes-to-Grind-in-American-Axle.html">before</a>). The Court called for the views of the Acting Solicitor General (a “CVSG”). That means the federal government will now weigh in on whether the Court should take up the questions here (about what subject matter is eligible for patenting and whether that issue is a question of law or fact).Just last Term, the government filed <a href="https://www.supremecourt.gov/DocketPDF/18/18-817/124768/20191206151701002_18-817%20-%20Hikma%20-%20CVSG%20-%20v28.pdf">a CVSG brief</a> urging the Court to grant cert in an appropriate case to clarify Section 101 doctrine. But the Court <a href="https://federalcircuitry.mofo.com/topics/200714-supreme-court-review-sometimes-what-is-not-decided-matters-more-than-what-is.html">denied</a> a bunch of Section 101 petitions in January 2020. We’ll see if anything changes this time around. There’s no formal deadline for the CVSG brief, but based on past practice, the brief (and the eventual decision on cert) will likely come in fall 2021 or winter 2021/2022.Minerva Surgical and assignor estoppelThe Court also recently held oral argument in Minerva Surgical Inc. v. Hologic Inc., which will decide the fate of the doctrine of patent assignor estoppel (see our earlier post <a href="https://federalcircuitry.mofo.com/topics/Assignor-Estoppel-for-the-Win-A-Quick-Look-at-the-Supreme-Courts-Grant-in-Minerva-and-Denial-of-the-Accompanying-Cross-petition.html">here</a>). That doctrine bars an inventor who has assigned a patent from later defending against an infringement suit by contesting the patent’s validity.At the April 21 argument, many of the Justices’ questions were about middle-ground solutions that would preserve the doctrine but only in limited form. The federal government, participating as amicus, had proposed one way to limit the doctrine. Several Justices (including the Chief and Justices Breyer, Sotomayor, and Kavanaugh) asked the parties specifically for their reactions to the government’s proposal. Other questions, including from Justices Kagan and Sotomayor, described scenarios where applying assignor estoppel seems particularly just or unjust. The Court may try to tailor the doctrine to capture the former while excluding the latter.But at the same time, some Justices signaled discomfort with tinkering with the doctrine. Justice Alito asked, “Why is this a question for us and not a question for Congress?” And Justice Gorsuch wondered what new questions would arise if the Court introduced a new version of the doctrine.At the end of the day, one thing was clear: The Justices have hard questions to grapple with here. Even Justice Breyer, often a champion of pragmatic solutions, said he was “finding trouble in finding the right way” to limit the doctrine rather than keep or abolish it wholesale.Arthrex and the constitutionality of PTAB judgesWe’re still waiting for the decision in United States v. Arthrex about whether administrative patent judges are constitutionally appointed. (We’ve covered Arthrex <a href="https://federalcircuitry.mofo.com/search/?s=arthrex">extensively</a> on this blog.) But in late April, we got a decision in Carr v. Saul, which presented a related issue: When a party believes an administrative judge is unconstitutionally appointed, must the party first raise that challenge before the agency before doing so in court?In Carr, addressing only the Social Security context, the Court answered “no”: Challengers who fail to raise Appointments Clause challenges before Social Security Administrative Law Judges do not forfeit their claims. The Court reasoned that the proceedings at issue were not “adversarial” enough to justify an “analogy to judicial proceedings,” agency adjudications are “generally ill-suited to address structural constitutional challenges,” and raising the challenge before the agency would have been futile.What does this mean to the patent world? If the Court finds a constitutional defect in Arthrex, the next logical question is the one in Carr—who can get relief for that kind of defect. But Carr, which analyzed only Social Security proceedings, doesn’t directly answer the question for patent proceedings. And the Court denied cert on that question in Arthrex. So if Arthrex goes in favor of the challengers, litigants (and eventually, the Federal Circuit) will be scrambling to figure out whether Carr’s holding about Social Security proceedings is distinguishable in the patent context. The issue may also arise in Federal Circuit appeals raising other types of constitutional challenges to the Patent Trial and Appeal Board’s authority. The government frequently argues forfeiture against such challenges if parties never raised them before the Board. The Federal Circuit may have to grapple with questions about Carr in those cases too.

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The Latest on Federal Circuit Cases before the Supreme Court

The Latest on Federal Circuit Cases before the Supreme Court

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The Supreme Court Term is winding down, with just one oral argument remaining and about two months before the last opinion release. Today, we’re checking in on 

It has been a little while since we took a look at what—from a statistics standpoint—went down at recent oral arguments (see last post <a href="https://federalcircuitry.mofo.com/topics/Who-Gets-Oral-Argument-Revisited--January-Argument-RecapFebruary-Argument-Preview.html" target="_blank">here</a>). Since the Federal Circuit went remote, there was an initial wave of a high percentage of appeals that would have gotten oral argument pre-pandemic that were decided on the briefs instead—with several sessions having a 40% or more cancellation rate for cases originally scheduled for argument. As we’ve now eclipsed the one year mark since telephonic arguments began, we thought we should look at how the most recent calendars have looked as far as cancelled arguments since the January session (which had 45% of arguments cancelled).<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/bltc4280a4c61bec783/62f58c7e19ee366ebba5b3be/capture_(2)3.jpg?format=auto&amp;quality=60" alt="Chart graph"/></div>As the chart above shows, the past four months have been relatively stable—with fewer arguments cancelled than earlier in the pandemic. And over the past three months in particular, that cancellation rate between district court and PTAB appeals has remained about even. Earlier argument sessions dating back to last year were more like the February cancellation rates, with appeals originating from the PTAB being cancelled nearly twice as often. What does this mean? Setting our usual caveats about sample size aside, it suggests that, as we’re a year into telephonic oral arguments, the Court has a pretty good idea of what arguments should be cancelled. And while we expect some fluctuations, our money is on fewer arguments being cancelled going forward compared to what happened when the Court first went remote.Finally, we took a recent look at Rule 36 dispositions in appeals with cancelled arguments. As usual, there were not many—only one or two per session: 1 in February, 2 in March, and 1 so far in April. The judges on the panels of those cases were pretty evenly distributed too: Judge Reyna on three, Judges Taranto and Stoll each on two, and Chief Judge Prost and Judges Mayer, Lourie, Clevenger, O’Malley, Chen and Hughes each on one.Here are some stats on the past few argument sessions:February statsTotal cases: 33 arguments (and 32 cases submitted on the briefs, of which 14 were originally set for argument)Oldest case: <a href="http://www.cafc.uscourts.gov/opinions-orders/19-1151.opinion.2-9-2021_1730132.pdf" target="_blank">Apple Inc. v. Uniloc 2017 LLC</a>, No. 19-1151 (831 days)Quickest case: <a href="http://www.cafc.uscourts.gov/opinions-orders/21-1031.rule_36_judgment.2-1-2021_1726176.pdf" target="_blank">Quantico Tactical, Inc. v. US</a>, No. 21-1031 (117 days)PTAB cases: 14 arguments (and 8 counseled cases submitted on the briefs)District court cases: 10 arguments (and 2 counseled cases submitted on the briefs)Rule 36 affirmances: 14Number of argument days by judge: <ul><li>Prost: 4</li><li>Newman: 2</li><li>Mayer: 3</li><li>Plager: 1</li><li>Lourie: 4</li><li>Clevenger: 2</li><li>Schall: 1</li><li>Bryson: 1</li><li>Linn: 0</li><li>Dyk: 4</li><li>Moore: 4</li><li>O’Malley: 4</li><li>Reyna: 3</li><li>Wallach: 1</li><li>Taranto: 3</li><li>Chen: 4</li><li>Hughes: 2</li><li>Stoll: 3</li></ul>March statsTotal cases: 42 arguments (and 21 cases submitted on the briefs, of which 14 were originally set for argument)Oldest case: <a href="http://www.cafc.uscourts.gov/opinions-orders/19-1365.rule_36_judgment.3-22-2021_1751309.pdf" target="_blank">Mass Engineered Design, Inc. v. Planar Systems, Inc.</a>, No. 19-1365 (810 days)Quickest case: <a href="http://www.cafc.uscourts.gov/opinions-orders/20-2241.opinion.3-4-2021_1742650.pdf" target="_blank">Lalliss v. DVA</a>, No. 20-2241 (182 days)PTAB cases: 18 arguments (and 7 counseled cases submitted on the briefs)District court cases: 13 arguments (and 4 counseled cases submitted on the briefs)Rule 36 affirmances: 13Number of argument days by judge:<ul><li>Prost: 3</li><li>Newman: 2</li><li>Mayer: 2</li><li>Plager: </li><li>Lourie: 3</li><li>Clevenger: 1</li><li>Schall: 1</li><li>Bryson:1</li><li>Linn: 2</li><li>Dyk: 3</li><li>Moore: 4</li><li>O’Malley: 3</li><li>Reyna: 4</li><li>Wallach: 3</li><li>Taranto: 5</li><li>Chen: 4</li><li>Hughes: 3</li><li>Stoll: 3</li></ul>April stats (so far)Total cases: 39 arguments (and 20 cases submitted on the briefs, of which 15 were originally set for argument)PTAB cases: 10 arguments (and 4 counseled cases submitted on the briefs)District court cases: 10 arguments (and 4 counseled cases submitted on the briefs)Number of argument days by judge:<ul><li>Prost: 4</li><li>Newman: 2</li><li>Mayer: 2</li><li>Plager: 1</li><li>Lourie: 4</li><li>Clevenger: 2</li><li>Schall: </li><li>Bryson: 1</li><li>Linn: 0</li><li>Dyk: 4</li><li>Moore: 4</li><li>O’Malley: 4</li><li>Reyna: 5</li><li>Wallach: 1</li><li>Taranto: 4</li><li>Chen: 3</li><li>Hughes: 4</li><li>Stoll: 3</li></ul>

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Revisiting Cancelled Oral Arguments

It has been a little while since we took a look at what—from a statistics standpoint—went down at recent oral arguments (see last post here). Since the Federal 

Revisiting Cancelled Oral Arguments

There’s a perception in the Federal Circuit bar that that Court has been scheduling cases for oral argument a bit quicker recently.  Now, on some levels, it’s all relative—the Federal Circuit has always been pretty quick in getting cases to argument.  But there definitely is a feeling that things are quicker now.  So with nothing better to do over the Easter weekend, I decided to see if that perception is a reality.  Spoiler alert:  it is.The last time I looked at timing was back in December, when I looked at all the blog’s data.  At that time, it took about 150 days or so from the filing of appendix to oral argument (see post <a href="https://federalcircuitry.mofo.com/topics/We-Updated-Our-Stats-and-Looked-at-the-Timing-of-Appeals.html">here</a>).  Now one caveat was that our data (sortable stats <a href="https://federalcircuitry.mofo.com/statistics">here</a>) tracks appeals once there’s a decision—precedential opinion, non-precedential opinion, or Rule 36.  So it’s not good for seeing if recently argued cases are being scheduled quicker than cases argued a year ago.This time, with the help of MoFo’s appellate paralegal Chad Borgman, I decided to look at individual calendars:  March 2021, April 2021, and May 2021.  And for comparison purposes, Chad and I looked at March 2020, April 2020, and May 2020.  People will probably remember that March 2020 was the last in-person argument session and April 2020 was the first telephonic session.  So what did we find?<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt595d7817a3700750/62f58d0be71af410b83c2a30/appealcharts.jpg?format=auto&amp;quality=60" alt="chart"/></div>The Court has been scheduling cases quicker to argument.  In a year-to-year comparison, appeals have been scheduled about a month quicker.  And even over the past three months in 2021, the time has been steadily decreasing—although one wonders if that’s a real trend or a blip.  One note:  I decided to use median days rather than average days, as there were some outliers on either end of the spectrum.  But overall, the average days comparison wasn’t all that different.So next question:  do some types of appeals take less time to get to argument than others?  I decided to look at PTAB appeals versus district court appeals.  Another general perception has been that, given the number of PTAB appeals the Court sees every year, those appeals take longer to get to oral argument.  That was somewhat true, at least in April and May 2020.  But in 2021 PTAB appeals are slightly quicker to oral argument than district court ones.<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt5e04f67a75776dc6/62f58d3199dab06ebd13fa61/appealcharts2.jpg?format=auto&amp;quality=60" alt="chart"/></div>Of course, next month things could be different.  But right now, it seems that appeals are being scheduled for argument at a fairly fast pace.  So if you just had an appendix filed in your appeal, best to be ready for argument soon.

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Will Your Appeal Have Argument Soon?

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There’s a perception in the Federal Circuit bar that that Court has been scheduling cases for oral argument a bit quicker recently.  Now, on some levels, it’s a

Will Your Appeal Have Argument Soon?

In a recent post, we took a <a href="https://federalcircuitry.mofo.com/topics/The-Lifespan-of-a-Rehearing-Petition.html">look</a> at data on rehearing petitions—specifically, the timing of calls for responses (CFRs).  Today, we dig further into that data to see if we can identify judges whose panels CFR more often.As you may remember, for a rehearing petition to succeed in the Federal Circuit, the Court first needs to CFR.  No response to a rehearing petition may be filed unless the Court orders one.  A CFR thus signals that at least one member of the Court is interested in the petition.The Court doesn’t publicize who issues CFRs.  But we can guess.  As we explained in our previous post, the Court’s internal operating procedures suggest early CFRs—within 10 business days of the petition—typically come from someone on the original merits panel.With that in mind, we looked at how often each judge appeared on a merits panel with an early CFR, which we’re defining as within 14 calendar days (to approximate 10 business days) of the filing of a petition for panel and/or en banc rehearing from November 2019 to March 2021.  Here’s what we saw:<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blte340eec36121dc57/62f5ddbd99dab06ebd13fb8b/chart330_sm.png?format=auto&amp;quality=60" alt="chart330"/></div>The second column shows how many times each judge was on a panel that issued a CFR (under our assumptions).  The third column shows how many of those cases the judge was a dissenter—which we assume makes it more likely that judge was interested in rehearing and thus responsible for the CFR.  And the last column takes the second column and subtracts cases in which someone else dissented—on the theory that the dissenting judge likely issued the CFR.  That last column is thus a rough guess for the cases in which each judge potentially issued the CFR—the obvious caveat being that it still could have been one of the other judges on that panel (or we could be wrong that the CFR came from the panel at all).Interestingly, several judges crop up in these cases more often than others.  Could that mean Judges Lourie, O’Malley, Stoll, and Newman are more likely to CFR close or interesting cases when they sit on the panel?Maybe, but we’ll have to take this with a big grain of salt (or several).  For one, even with almost 18 months’ data, our sample is small.  And we’re not controlling for who else was on a panel with a given judge.  Take Judges Lourie, O’Malley, and Stoll—they were all on 7 panels with early CFRs.  But if those data points were all from the same 7 cases where the panel was Judges Lourie, O’Malley, and Stoll, that may mean most of those CFRs came from just one of those three.  All of which just confirms, again, that we don’t actually know who on the panel issued these CFRs—or even whether the CFR definitely came from someone on the panel.  So it’s possible that even a judge who appears on this list 7 times actually issued 0 CFRs.  We also don’t know what idiosyncratic features might have driven the CFRs in these cases.  Just because a judge CFRs in several cases one year doesn’t mean the same will be true the next.  Also, as we explored recently, <a href="https://federalcircuitry.mofo.com/topics/How-Often-Do-Federal-Circuit-Judges-Sit.html">members of the Court hear different numbers of cases</a> (which presumably accounts for why senior judges were at the bottom of the table, for example).  Still, we’ll keep building our data and monitoring to see whether these early trends continue.

Seth Lloyd, a member of Morrison Foerster’s Appellate and Supreme Court practice, has been counsel in more than a hundred appeals in federal and state courts nationwide.

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Rehearing revisited: Do some judges CFR more often than others?

We Updated Our Stats and Looked at the Timing of Appeals

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In a recent post, we took a look at data on rehearing petitions—specifically, the timing of calls for responses (CFRs).  Today, we dig further into that data to

Rehearing revisited:  Do some judges CFR more often than others?

A couple weeks ago we wrote about how often Federal Circuit judges sit in a given year (see <a href="/topics/How-Often-Do-Federal-Circuit-Judges-Sit" target="_self">How Often Do Federal Circuit Judges Sit?</a>). Spoiler: they sit a lot. In that post, though, we looked at the data for each judge totaled across an entire calendar year. Today, we take a look at the data on a monthly basis. Just as a reminder, we’re looking at panel days for oral arguments, excluding panels convened to hear just one case (sometimes called plus panels). Those one-case panels might happen for arguments on a motion or when a case comes back after a remand. Unlike last time, though, we’re looking at the total panel days sat in a given month across all judges (active and senior). So, a typical panel sitting would add three to a month’s total (one unit for each judge).Here’s what our data looks like broken out by month:<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt4023af1fea8c3dac/62f595b0e717bf11519ad46b/federal-circuitry-judge-sittings-per-month-2018-2020.png?format=auto&amp;quality=60" alt="Chart Indicating Total Judge Sittings per Month 2018-2020"/></div>A couple of points jump out from this. First, although the Federal Circuit sits year round instead of recessing for the summer like its neighbor the D.C. Circuit, the total sittings in a month definitely drops in the summer, especially in August (when D.C. is notoriously empty).Second, the Court never really slowed down in 2020 despite the pandemic. Even in the early months of March and April, the Court continued to keep cases moving through to submission at roughly the same pace as prior years. The data above of course doesn’t separate out how many cases within a sitting were removed from the oral argument calendar and decided on the papers. But still, the Court’s ability to keep such a steady pace is a testament to the commitment of the judges, clerks, and court staff.Finally, it’s important to remember that the above data is aggregated across all judges. Thus, although the number of sittings seems to be relatively similar across the non-summer months, that may not be true for any given judge. To reach the average 35 sitting days per year that we saw last time (<a href="/topics/How-Often-Do-Federal-Circuit-Judges-Sit" target="_self">here</a>), some judges may sit four or five days in several months and then none in others, while other judges keep a more uniform rate of roughly three sittings each month of the year. All of which is just another reminder that you can never really be sure in advance who you’re going to see (or hear) on argument morning.

When Do Federal Circuit Judges Sit?

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When Do Federal Circuit Judges Sit?

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A couple weeks ago we wrote about how often Federal Circuit judges sit in a given year. Today, we take a look at the data on a monthly basis.

Well, that didn’t take long. As we noted in January, although the Federal Circuit had no vacancies during President Trump’s term, several judges were eligible or soon-to-be-eligible to create a vacancy for President Biden (see <a target="_blank" href="https://federalcircuitry.mofo.com/topics/Theres-a-new-President-How-could-that-affect-practice-in-the-Circuit.html">There’s a New President. How could that Affect Practice in the Circuit?</a>). Judge Wallach has now done just that, with the Court’s <a target="_blank" href="http://www.cafc.uscourts.gov/announcements">website</a> announcing he will take senior status at the end of May 2021.Judge Wallach’s open spot will give President Biden an intriguing opportunity: gender parity on the Federal Circuit. At the moment, seven of the active judges are male, five are female. So that’s easy math: fill Judge Wallach’s seat with a woman, and the Court will have an equal number of each (among active judges).That wouldn’t be a first for a federal court of appeals. President Trump’s addition of three women to the Eleventh Circuit already brought that court to parity. But it would be a first for the Federal Circuit. President Obama could have helped the Circuit reach that milestone. Of his seven(!) appointments though, only two were women, Judge O’Malley and Judge Stoll. By comparison, both of President George W. Bush’s appointees were women, Chief Judge Prost and Judge Moore.Of course, the experience the new judge will bring is important. Judge Wallach came to the Federal Circuit after serving sixteen years on the Court of International Trade. As readers know, the Circuit hears appeals from that specialized court. No doubt that factored into President Obama’s decision to nominate Judge Wallach. And President Biden may want to replace that expertise. But even if his nominee doesn’t, the Circuit may not lose Judge Wallach’s experience right away. Many of the senior judges continue to hear cases (see our previous post <a target="_blank" href="https://federalcircuitry.mofo.com/topics/How-Often-Do-Federal-Circuit-Judges-Sit.html">How Often Do Federal Circuit Judges Sit?</a>).What will Judge Wallach’s change in status mean for oral advocates? Well, if he sits less often, it could mean less grilling. Judge Wallach is a stickler for careful briefing. Many an advocate has spent several minutes of their argument time defending their brief, trying to satisfy the judge that their statements about the law or the record were accurate. That lesson from Judge Wallach should live on, no matter how often he continues to sit: an advocate’s credibility is key, and each member of any briefing team should take extra care not to squander it by overstatement.

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50-50 Federal Circuit?

There’s a new President. How could that affect practice in the Circuit?

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Well, that didn’t take long. As we noted in January, although the Federal Circuit had no vacancies during President Trump’s term, several judges were eligible o

50-50 Federal Circuit?

You’ve lost your case before a Federal Circuit panel and you file a rehearing petition.  When can you expect good news (or at least some news…)?Timing of rehearing decisionsFor a rehearing petitioner, the threshold positive sign to look for is a call for a response (or “CFR”).  Under the federal appellate rules, a party can’t file a response opposing a rehearing petition unless the Court requests one.  That request is a sign that at least one judge has some interest in the petition.  Even with a CFR, the overwhelming majority of petitions still get denied.  But since a CFR is a gating requirement for any successful rehearing petition, we took a look at when you might expect to receive a CFR to your rehearing petition.  (We examined petitions for panel and en banc rehearing since November 2019 that had a CFR.  You can follow these cases with our <a href="https://federalcircuitry.mofo.com/trackers/en-banc-tracker">En Banc Tracker</a>.)When will the Court make its decision?  We found the CFR comes, on average, about 20 days after the petition is filed.  Then, from the filing of the response to the decision on rehearing, we found the Court takes on average 40 days.Who’s issuing the CFRs?There are usually two types of CFRs (although it’s not apparent from the docket and a bit of an imperfect science).  CFRs that come early typically come from the panel that decided the appeal, as they get first crack at looking at any petition for rehearing, regardless of whether it is styled as a petition for panel rehearing or en banc.  See Internal Operating Procedures (IOP) ##12 & 14.2.  Under the Court’s IOPs, the panel has 10 business days to decide what to do, and during that time any judge on the panel can CFR.  See IOP ##12.1(b), 12.4(b).CFRs that come later, by contrast, typically come from a judge outside the panel.  Once the panel’s 10 business day period expires, the petition goes to the full Court for 10 business days, and any active judge on the Court can request a response.  See IOP #14.2.So with that in mind, we decided to take a look at whether and how often the panel versus non-panel members of the Court request a response—that is, take some interest in the case.  We thought panel decisions with dissents likely would get a CFR early by the panel, since the dissenting judge could request one. To test that hypothesis, we separated the CFRs we’ve collected into early (14 calendar days or less between petition and CFR) and late (15 days or more).  We chose that dividing line to approximate the 10-business-day line in the Court’s IOPs.  (But that approximation is imperfect because holidays can make 10 business days longer than 14 calendar days.  And, of course, we couldn’t exactly be certain that early CFRs came from the panel rather than someone from the Court at large.  The IOPs contemplate early circulation of a rehearing petition to the full Court if the panel affirmatively votes not to rehear the case early, but our speculation is that this doesn’t happen much.)Here is what we found:<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt79f5a23e4e0a7afa/627316bcb5ad5f2863c595c4/chart23321.png?format=auto&amp;quality=60" alt="Chart"/></div>So the $64 question is whether anything can be gleaned from this.  We have to caveat that the sample size is small, and we’re looking only at rehearing petitions that received a CFR.  But there were a few surprises.  A large portion of CFRs came early, and thus presumably from the panel that heard the case (43% of all the CFRs we collected).  The panel CFR’d in many cases despite a unanimous merits decision (13 of 19 CFRs).  And whether a member of the panel dissented from the merits decision didn’t seem to affect whether the CFR came early (from the panel) or late (from the rest of the Court):  CFRs in cases with panel dissents were evenly split between the two categories.  So surprisingly often, even when there was a panel dissent the petition went to the full Court before the response requests (half of CFRs with panel dissents; none of those petitions were granted).  Finally, and this is really almost certainly a small sample size thing (but still seems interesting), the sooner the CFR, the higher the grant rate.  We’ll continue tracking the data to see if it’s an anomaly, or something more.

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The Lifespan of a Rehearing Petition

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You’ve lost your case before a Federal Circuit panel and you file a rehearing petition.  When can you expect good news (or at least some news…)?
Timing of rehea

The Lifespan of a Rehearing Petition

Since we’re all about data at Federal Circuitry, we took a quick look at what our data show about how often Federal Circuit judges sit each year.  To quantify that, we looked at how many different panel days each judge heard argument for 2018, 2019, and 2020.  We excluded panels convened to hear only one case.  That can happen, for example, because of a rare argument on a motion or for plus panels, where one judge of a main panel is replaced for a single case (perhaps because of conflicts or when a case comes back after a remand).Here’s the result:<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/bltce05bf2347823871/627316bba1a1dd2aa9f6ca02/chart101.png?format=auto&amp;quality=60" alt="Chart Indicating Panel Days Per Year 2018-2020"/></div>For the twelve active judges, the data confirm what we often hear – the judges decide many cases a year.  Each active judge averaged about 35 panel days per year.  Since each panel generally decides 4-6 cases (argued and submitted), even on the low end that’s 140 cases per year, or around 12 a month.  That’s just another reminder of the importance of clear, strong appeal briefs—judges often have to understand years of litigation and complex issues in a relatively short time.Looking at specific judges, Chief Judge Prost sat the most days of any judge across this three-year span, followed by Judge Reyna and then Judge Lourie.  The raw numbers thus suggest you’re more likely to see (or lately, hear) one of those judges on argument morning.The data also give some details about which senior judges you might find yourself in front of.  Judge Clevenger sat the most full panel days of any senior judge over the last three years; Judges Schall and Bryson tied for second.  Judge Plager sat the least days, so advocates had to settle for seeing Judge Plager in his amazing courthouse portrait (with his cat).Check back soon for a follow-up post looking at monthly trends of when judges sit.

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How Often Do Federal Circuit Judges Sit?

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Since we’re all about data at Federal Circuitry, we took a quick look at what our data show about how often Federal Circuit judges sit each year.  To quantify t