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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What Makes a Case Exceptional?

Fifth Circuit Weighs In on Transfer Factors In High-Tech IP Case

Recently in the Federal Circuit: More on Indefiniteness in IPRs

Recently in the Federal Circuit: Reasonable Expectation of Success May Not Be So Spooky After All

Recently in the Federal Circuit: Broadening Claims in IPRs

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We decided to start the new year off with a little practice pointer. We noticed that the Court rejected a brief today (not ours) for failing to comply with several rules. One basis for the rejection is a rule that often is overlooked—the location of the Standard of Review. Many experienced advocates place the Standard of Review in a section before—rather than as part of—the Argument. The rejected brief did that today too. But among the reasons why the brief was rejected was this:The brief does not contain the standard of review, or the standard of review must appear within the argument of the brief, either in the discussion of each issue or under separate heading before discussion of the issues. Fed. R. App. P. 28(a)(8); Fed. R. App. P. 28.1(c)(1)-(2).As you can see, the Court references FRAP 28(a)(8), which reads (the reference to FRAP 28.1 just refers back to 28(a)):Briefs(a) Appellant’s BriefThe appellant’s brief must contain, under appropriate headings and in the order indicated:…(8) the argument, which must contain:(A) appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appeallant relies;(B) for each issue, a concise statement of the applicable standard of review (which may appear in the discussion of the issue or under a separate heaing placed before the discussion of the issues);Based on the citation to FRAP 28(a)(8), the Court seems to have concluded that it was not enough that the brief included the Standard of Review. The brief also had to include the Standard of Review within the Argument section—either under a separate heading or in the discussion of the issues. We haven’t seen this rejection before even though the Rule has been around for some time. Given the recent rejection, practitioners may want to review their templates and make sure their Standard of Review is located in the right place.

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. 

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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Starting 2021 With a Tip

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We decided to start the new year off with a little practice pointer. We noticed that the Court rejected a brief today (not ours) for failing to comply with seve

Starting 2021 With a Tip

Federal Circuit Insights

We updated our <a href="https://federalcircuitry.mofo.com/statistics">stats</a>, 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 (<a href="https://federalcircuitry.mofo.com/topics/201021-who-wins-who-loses-revisited.html">here</a> and <a href="https://federalcircuitry.mofo.com/topics/200714-who-wins-who-loses.html">here</a>).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).<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt82326a9562e09668/627316a28e09542a15b7deb7/chart11.png?format=auto&amp;quality=60" alt="Chart"/></div>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.<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt4be32556c6d04b7c/627316a3deee7329767e7670/chart21.png?format=auto&amp;quality=60" alt="Chart"/></div>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.

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We Updated Our Stats and Looked at the Timing of Appeals

We Updated Our Stats and Looked at the Timing of Appeals

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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 tak

Last week, Seth Lloyd and I noticed that there had been two more Rule 36s in appeals without oral argument from the Federal Circuit’s November sitting (<a href="https://federalcircuitry.mofo.com/topics/201204-november-oral-argument-recap.html">here</a>).  And then yesterday, Bloomberg’s Perry Cooper <a href="https://twitter.com/PerryECooper/status/1337051648741564418?s=20">tweeted</a> that two more Rule 36s were handed down from this month’s sitting in appeals without argument.  That got me thinking, how many times since the pandemic began has the Court Rule 36’d without argument?  And can anything be gleaned from those decisions?  Usually, one expects that if there’s no oral argument then the parties will get a short explanation as to why the Court ruled a certain way in a non-precedential decision.  But if there’s an argument, there’s perhaps less need for a written explanation:  the parties likely learned enough at oral argument from the judges’ questioning to understand the basis for the decision.  But here, in this subset of cases with no opinion or oral argument, some appellants may be left wondering “why did I lose?”So how many appellants did we find in that special category?  Nine.  Seven were in patent appeals—and those seven were pretty evenly divided between PTAB (three) and district courts (four).  One was a government contracts case.  And the last one was (at first glance) a little mysterious.Let’s take the two non-patent appeals first.  Neither case was a cancelled argument per se.  And the government contracts case likely has a straightforward reason for why the Court Rule 36’d without argument—the appellant contractor waived argument.  Given that the appellant didn’t see the need to argue, it seems entirely possible that the panel (Judges Bryson, Wallach, and Hughes) didn’t see a reason to provide written reasons for its disposition.  Maybe had the appellant not waived the oral argument, the Court would have held argument and Rule 36’d.  Or maybe it would have cancelled argument anyway and would have issued a non-precedential decision.  We’ll never know, but it seems possible—if not likely—that the appellant’s decision to waive argument played some role in the Court’s decision.As for the mystery case:  it was a pro se <a href="http://www.cafc.uscourts.gov/opinions-orders/20-1535.rule_36_judgment.9-14-2020_1651722.pdf" target="_blank">appeal</a>, so it made sense that there was no oral argument.  What made less sense was the affirmance by a Rule 36, as usually the Court issues a short non-prec opinion explaining the decision.  Wanting to know more, I looked at the docket.  What I found made the case both more and less mysterious.  The case was entirely under seal; I couldn’t see what documents (redacted or not) were filed and when.  Given the secrecy, it made more sense that the Court might Rule 36 rather than draft an entirely sealed decision.  (For those wondering, you can Google the parties and (perhaps) get some information about the case.)That leaves the seven patent cases.  All seven of these appeals had oral argument cancelled.  Not surprisingly, there wasn’t a clear pattern.  For the PTAB cases, two appeared to be substantial evidence challenges and one a claim construction challenge.  And they were split two-to-one between patent-challenger appellant and patent-owner appellant.  Interestingly, two of the district court cases were 101 appeals, where the patent owner had its claims determined ineligible on a motion to dismiss.  I suppose one could say it’s both surprising and unsurprising that the Court didn’t want to hear argument and write about another 101 appeal.  The last two were a mixed bag.  One was an attorney fees appeal, where a prevailing party wanted fees awarded.  And the last appeal had something to do with personal jurisdiction, but my five to ten minute read didn’t give me much insight into the issues, so I can’t say more.  Perhaps that’s why the panel decided both oral argument and a written decision were unnecessary.  Or perhaps I just should have had that second cup of coffee before looking at the briefs.Some final tidbits:<ul><li>Judge Lourie was on four Rule 36s in appeals without argument—all cancelled argument cases.  Judge Newman was next with three, and several other judges were on two such appeals.</li><li>Of the active judges, only Judge Chen has not been on a Rule 36 without argument since the pandemic began.</li><li>While the sample size is so small that it’s hard to suggest this is anything but anecdotal, it’s interesting that most of the Rule 36s without argument have occurred in the last three months—two each in October, November, and December.  By comparison, there were only three Rule 36s without argument in the first six months of telephonic arguments (April-September).  It may be that as the telephonic argument format has continued, judges have decided that some cases are so straightforward that argument wouldn’t assist the Court and the parties don’t need a written explanation.  If so, it seems likely that the Rule 36s without argument may continue.</li></ul>

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No Argument, No Opinion—a Quick Look at Unargued Rule 36 Decisions During the Pandemic

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Last week, Seth Lloyd and I noticed that there had been two more Rule 36s in appeals without oral argument from the Federal Circuit’s November sitting (here).  

No Argument, No Opinion—a Quick Look at Unargued Rule 36 Decisions During the Pandemic

At Federal Circuitry blog, we like to check in once in a while on what the Federal Circuit is doing in its orders that don’t get posted on the public website. Those orders often offer nuggets about practice at the Federal Circuit and sometimes even give insight into more substantive issues. So below we flag a few orders that caught our eyes.In looking at orders in the last month or so, we noticed a range of orders in pending cases following the Supreme Court’s certiorari grant in Arthrex (see <a href="https://federalcircuitry.mofo.com/topics/Supreme-Court-to-Review-Arthrex.html" target="_blank">Supreme Court to Review Arthrex: Big Deal or Ho Hum?</a> and <a href="https://federalcircuitry.mofo.com/topics/What-Does-the-Supreme-Courts-Grant-on-Social-Security-Cases-Have-to-Do-With-iArthrexi.html" target="_blank">What does the Supreme Court’s Grant in Two Social Security Cases Have to Do with Arthrex?</a>). In some, the Federal Circuit declined to halt proceedings even though Arthrex’s fate remains uncertain in the Supreme Court. For example, the Federal Circuit <a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt417e29c8fcf1d161/6273169b0d4d8e1d7f10f2a6/201021-finjan-stay-order.pdf">denied </a>an opposed stay request by an appellant from an inter partes review in appeal No. 19‑2151. The movant was a petitioner who argued for vacatur under the Federal Circuit’s decision in Arthrex but acknowledged that Federal Circuit precedent foreclosed that argument. Although the movant argued that the Supreme Court’s review had the potential to change that precedent, a per curiam order denied the motion.Along the same lines, in another per curiam <a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt59b20610750c2e87/6273169c8e09542a15b7deb3/201027-new-arthrex-remand-order.pdf">order </a>in appeal No. 20-1444, the Federal Circuit granted a patent owner’s motion to vacate and remand to the PTAB under Arthrex. Although the petitioner and the government opposed that relief, the Federal Circuit granted it less than a week after the parties had been notified of oral argument scheduling. Consistent with the stay denial in appeal No. 19‑2151, the Court treated the Federal Circuit’s Arthrex decision as dispositive despite the pending Supreme Court review.In two other cases, however, the Federal Circuit stayed cases based on the cert. grant in Arthrex. Both those cases seem to differ from the above because they involve unsettled questions about the effect of Arthrex. Thus in appeal No. 20-1196, about a week before the scheduled oral argument, the Federal Circuit sua sponte <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blta31cf23bac6f624f/6273169c4886af2aa2be10a6/201023-ttab-order.pdf" target="_blank">canceled </a>argument and ordered the case stayed pending the Supreme Court’s decision in Arthrex. The appeal was from the TTAB, not the PTAB, and the opening brief argued that Arthrex should apply to TTAB judges. And in appeal No. 19-2454, the Court <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt714360b789cdac25/627316a00d4d8e1d7f10f2aa/201023-mspb-arthrex-order.pdf" target="_blank">granted </a>the government’s unopposed stay request based on the Arthrex cert. grant and again canceled a scheduled oral argument. The appeal involved another unanswered question—whether the reasoning of Arthrex extends to the MSPB.Looking at these cases together, the Court appears to be continuing to apply its settled precedent on Arthrex when that precedent squarely applies to the facts of a given case. But it may be less likely to extend that settled precedent to new facts until it receives further guidance from the Supreme Court.<div><div><div id="_com_4" class="msocomtxt" language="JavaScript"></div></div></div><div id="_mcePaste" style="position: absolute;left: -10000px;top: 0px;width: 1px;height: 1px;overflow-x: hidden;overflow-y: hidden;">At Federal Circuitry blog, we like to check in once in a while on what the Federal Circuit is doing in its orders that don’t get posted on the public website. Those orders often offer nuggets about practice at the Federal Circuit and sometimes even give insight into more substantive issues. So below we flag a few orders that caught our eyes in the past couple weeks. In looking at orders in the last month or so, what caught our attention the most was a range of orders in pending cases following the Supreme Court’s certiorari grant in Arthrex (see <a href="https://federalcircuitry.mofo.com/topics/Supreme-Court-to-Review-Arthrex.html">Supreme Court to Review Arthrex: Big Deal or Ho Hum?</a> and <a href="https://federalcircuitry.mofo.com/topics/What-Does-the-Supreme-Courts-Grant-on-Social-Security-Cases-Have-to-Do-With-iArthrexi.html">What does the Supreme Court’s Grant in Two Social Security Cases Have to Do with Arthrex?</a>). In some cases, the Federal Circuit declined to halt proceedings even though Arthrex’s fate remains uncertain in the Supreme Court. For example, in one case, the Federal Circuit denied an opposed stay request by a petitioner/appellant from an inter partes review in appeal No. 19‑2151. The movant was a petitioner who argued for vacatur under the Federal Circuit’s decision in Arthrex but acknowledged that Federal Circuit precedent foreclosed that argument. Although the movant argued that the Supreme Court’s review had the potential to change that precedent, a per curiam order denied the motion. Along the same lines, in another per curiam order in appeal No. 20-1444, the Federal Circuit granted a patent owner’s motion to vacate and remand to the PTAB under Arthrex. Although the petitioner and the government opposed that relief, the Federal Circuit granted it less than a week after the parties had been notified of oral argument scheduling. Consistent with the stay denial in appeal No. 19‑2151, the Court treated the Federal Circuit’s Arthrex decision as dispositive despite the pending Supreme Court review. In two other cases, however, the Federal Circuit stayed cases based on the cert. grant in Arthrex. Both those cases seem to differ from the above because they involve unsettled questions about the effect of Arthrex. Thus in appeal No. 20-1196, about a week before the scheduled oral argument, the Federal Circuit sua sponte canceled argument and ordered the case stayed pending the Supreme Court’s decision in Arthrex. The appeal was from the TTAB, not the PTAB, and the opening brief argued that Arthrex should apply to TTAB judges. And in appeal No. 20-1444, the Court granted the government’s unopposed stay request based on the Arthrex cert. grant and again canceled a scheduled oral argument. The appeal involved another unanswered question—whether the reasoning of Arthrex extends to the MSPB. Looking at these cases together, it appears that the Court will continue to apply its settled precedent on Arthrex when that precedent squarely applies to the facts of a given case. But it may be less likely to extend that settled precedent to new facts until it receives further guidance from the Supreme Court.<div><div><div id="_com_1" class="msocomtxt" language="JavaScript"></div></div><div><div id="_com_4" class="msocomtxt" language="JavaScript"></div></div></div></div>

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Orders of Interest Roundup, Arthrex Style

Last Week in the Federal Circuit (July 6-10): Arthrex Strikes Again

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Excerpt: In a roundup of recent orders, we look at how the Federal Circuit is responding to the certiorari grant in Arthrex.

Orders of Interest Roundup, Arthrex Style

I was counsel of record on an <a href="https://www.supremecourt.gov/DocketPDF/19/19-840/143417/20200513125326824_Adler%20et%20al.%20Amicus%20Brief%20ISO%20Petitioners%205.13.2020.pdf" target="_blank">amicus brief</a> in California v. Texas for four law professors arguing that even if the Affordable Care Act’s individual mandate is unconstitutional, it can be severed from the rest of the statute. This post states my own views, not necessarily those of amicus brief’s signatories.The Biologics Price Competition and Innovation Act of 2009 (“BPCIA”) is looking alive and well after last week’s Supreme Court oral argument on the Affordable Care Act (“ACA”).If you didn’t realize the BPCIA was at issue in California v. Texas—the latest of many attempts to invalidate the Affordable Care Act—you are not alone. The BPCIA, a law allowing for FDA approval of “biosimilars” (less expensive versions of already-approved biologic medicines), seems far afield from the Affordable Care Act’s marquee provisions expanding health coverage and reforming health insurance markets.But the BPCIA was in fact Title VII, Subtitle A of the Affordable Care Act. That provenance has put the BPCIA at risk from the repeated, politically charged attempts to invalidate the entire ACA.The latest such case argued last week began after Congress amended the ACA in 2017. By then, the Supreme Court in NFIB v. Sebelius had already held that the Affordable Care Act’s “individual mandate” could be construed as a tax and upheld on that basis. But after the 2017 Congress reduced that tax to zero, several Republican states (later joined by the Trump Department of Justice) argued that the mandate could no longer be a tax provision and was now unconstitutional. The challengers further argued that the entire ACA was inseverable from the now-unconstitutional mandate and thus should fall.The challengers’ inseverability argument for total invalidation extends not just to the ACA’s reforms of the health insurance market (such as its prohibition of coverage denials based on pre-existing conditions) but also to what the Trump DOJ <a target="_blank" href="https://www.supremecourt.gov/DocketPDF/19/19-840/146406/20200625205555069_19-840bsUnitedStates.pdf">characterized </a>as the statute’s “comparatively ‘minor,’ ancillary provisions”—including the BPCIA.Manufacturers of biologics and biosimilars might be surprised by the characterization of the BPCIA as “minor” or “ancillary.” The FDA has approved at least 28 biosimilars since 2010.<a class="anchor" id="_ftnref1" name="_ftnref1" href="#_ftn1">[1]</a> It has been estimated that nine of these drugs alone are already creating more than $250 million in annual market savings.<a class="anchor" id="_ftnref2" name="_ftnref2" href="#_ftn2">[2]</a>In any event, after last week’s oral argument it appears that the BPCIA and the rest of the ACA’s provisions—whether characterized as major or minor—are safe. It has been widely expected that the Court’s three more liberal members, Justices Breyer, Sotomayor, and Kagan, would vote to leave the rest of the ACA intact even if the tax-less “mandate” were found unconstitutional. That means at least two of the Court’s six more conservative Justices would also need to support a holding that the “mandate” is severable from the rest of the statute for that position to win. Based on their comments at oral argument, it appears that at least Chief Justice Roberts and Justice Kavanaugh are likely to provide those two critical votes.For example, Chief Justice Roberts observed that the Court’s severability doctrine requires it to ask “whether Congress would want the rest of the law to survive if an unconstitutional provision were severed” and noted that “here, Congress left the rest of the law intact when it lowered the penalty to zero.” He said “[t]hat seems to be compelling evidence on the question.” Justice Kavanaugh also appeared to lean in favor of severability: “looking at our severability precedents, it does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the Act in place, the provisions regarding preexisting conditions and the rest.” Making case outcome predictions from oral argument can be perilous, but these statements struck many Court observers as quite definitive.Yale Law School Professor Abbe Gluck has called the Affordable Care Act “the most challenged—and the most resilient—statute in modern American history.”<a class="anchor" id="_ftnref3" name="_ftnref3" href="#_ftn3">[3]</a> It appears likely that the statute—and its subpart, the BPCIA—will show its resilience yet again when the Court rules in California v. Texas. Decision is expected by July 2021.<a class="offset" id="_ftn1" name="_ftn1" href="#_ftnref1">[1]</a> FDA, Biosimilar Product Information: FDA-Approved Biosimilar Products, <a href="https://www.fda.gov/drugs/biosimilars/biosimilar-product-information" target="_blank">https://www.fda.gov/drugs/biosimilars/biosimilar-product-information</a>.<a class="offset" id="_ftn2" name="_ftn2" href="#_ftnref2">[2]</a> Wayne Winegarden, Incenting Competition to Reduce Drug Spending: The Biosimilar Opportunity 4 (2019), <a href="https://www.pacificresearch.org/wp-content/uploads/2019/07/BiosimilarsCompetition_F.pdf">https://www.pacificresearch.org/wp-content/uploads/2019/07/BiosimilarsCompetition_F.pdf</a>.<a class="offset" id="_ftn3" name="_ftn3" href="#_ftnref3">[3]</a> Abbe R. Gluck, Affordable Care Act Entrenchment, 108 Georgetown L.J. 495 (2020), <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3561167">https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3561167</a>.

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Joe Palmore co-chairs Morrison Foerster’s Appellate and Supreme Court practice. Chambers USA describes him as “an outstanding oral advocate,” who is “calm, focused, effective and doesn’t back down,” and has “complete command of the facts.” Joe “writes great briefs” (Chambers USA), with one client recounting that “the Court mirrored the language he thoughtfully chose in its ultimate order” (Legal 500).

Joseph R. Palmore

Joseph R. Palmore is co-chair of the firm's Appellate and Supreme Court Practice Group and Managing Partner for the Washington, D.C. office. Before joining Morrison Foerster, Joe was an Assistant to the Solicitor General at the United States Department of Justice and the Deputy General Counsel of the Federal Communications Commission (FCC).

Joseph Palmore

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Healthcare, Biologics, and Severability: Will the ACA—and the BPCIA—Survive the Latest Challenge?

Healthcare, Biologics, and Severability: Will the ACA—and the BPCIA—Survive the Latest Challenge?

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I was counsel of record on an amicus brief in California v. Texas for four law professors arguing that even if the Affordable Care Act’s individual mandate is u

As readers know, we have written about Arthrex a lot. So what better way to start Monday than another short post? Today, the Supreme Court granted cert. in Carr v. Saul, No. 19-1442, and Davis v. Saul, No. 20-105—two cases involving the Social Security Act. What does that have to do with Arthrex? Here’s the question presented for both petitions:Whether a claimant seeking disability benefits under the Social Security Act forfeits an appointments-clause challenge to the appointment of an administrative law judge by failing to present that challenge during administrative proceedings.The issue in both Carr and Davis is whether Social Security claimants needed to raise their Appointments Clause challenge in the administrative agency.On its face, that is essentially the same as one of the questions that the government sought review of in Arthrex—arguing that patent owners forfeited their Appointments Clause challenge by not raising it in the PTAB. Here is what the government <a target="_blank" href="https://www.supremecourt.gov/DocketPDF/19/19-1458/148434/20200722154503654_19-1452%20et%20al.%20-%20Smith%20%20Nephew%20-%20Cert%20Response%20Memo.pdf">asked</a> the Supreme Court to review in Arthrex:Whether the court of appeals in Arthrex erred by adjudicating an Appointments Clause challenge that had not been presented to the agency.But unlike in the Social Security cases granted today, the Supreme Court did not grant review of the government’s forfeiture question in Arthrex. At first glance, that inconsistency now seems odd. The government in today’s Social Security cases even <a target="_blank" href="https://www.justice.gov/sites/default/files/briefs/2020/10/01/20-105_davis.pdf">noted</a> that “[t]he question presented in these cases overlaps with one of the questions presented in United States v. Arthrex, Inc., petition for cert. pending, No. 19-1434 (filed June 25, 2020).” And if the Supreme Court in Carr and Davis were to broadly hold that claimants forfeit their Appointments Clause challenges by not raising them in the Social Security Administration, wouldn’t that suggest that the Federal Circuit would need to reconsider its ruling that patent owners preserved appointments-clause challenges despite failing to raise them before the PTAB? (Of course, that assumes the Supreme Court holds there is an appointments-clause problem with PTAB judges in Arthrex.)Before you read too much into this—there are many differences between the Social Security cases and Arthrex. For starters, Carr and Davis aren’t about whether Social Security ALJs are constitutionally appointed; that issue was essentially decided by the Supreme Court in Lucia—which decided that Securities and Exchange Commission ALJs were inferior officers rather than employees, and thus needed to be appointed by a department head. The Social Security Administration fixed the constitutional problem identified in Lucia by having the head of the department ratify the ALJs’ appointment. (And it should be noted that the issue in Arthrex, in contrast, is whether the PTAB judges are inferior officers or principal officers, the latter requiring presidential appointment and Senate advice and consent.) So the only issue in Carr and Davis is the forfeiture issue. And there are other differences too: the Social Security Administration also authorized new hearings post-Lucia if a claimant raised an Appointments Clause challenge before the Agency. As the government also noted in its cert. briefing, courts of appeals have recognized that other “distinctive characteristics of Social Security proceedings justify” their no-forfeiture holdings.Finally, there may be an even more straightforward reason why the Supreme Court granted the forfeiture question in Carr and Davis but not in Arthrex. Even though the government won on the forfeiture issue in the courts of appeals, the government acquiesced to cert. in Carr and Davis—agreeing with the petitioner Social Security claimants that it was an important issue for the Supreme Court to decide. The government noted that there was an entrenched split in the circuits, which was unlikely to resolve itself without the Court’s intervention. And given the millions of disability cases and hundreds of thousands of Social Security ALJ hearings, the government noted that the issue would affect a profound number of cases. As important as PTAB cases are, the volume simply isn’t the same.So what’s our takeaway? Unfortunately, it’s more wait and see. The Court’s cert. denial on the forfeiture issue in Arthrex is a little more interesting now given the grant in Carr and Davis. And it seems possible that Carr and Davis could have some effect on the Arthrex cases depending upon what the Supreme Court does. But most likely, the Court just felt like it had to grant in Carr and Davis given the circuit split and number of cases that the circuit split was affecting.

What Does the Supreme Court’s Grant in Two Social Security Cases Have to Do With Arthrex?

As readers know, we have written about Arthrex a lot. So what better way to start Monday than another short post? Today, the Supreme Court granted cert. in Carr

What Does the Supreme Court’s Grant in Two Social Security Cases Have to Do With Arthrex?

At Federal Circuitry, we frequently update our statistics. We now have almost a year’s worth of data since we started our project of collecting every Federal Circuit decision and collating all of the Court’s substantive orders. In a <a href="https://federalcircuitry.mofo.com/topics/200714-who-wins-who-loses.html" target="_blank">post in July</a>, I took a look at some win-loss rates. One of the things I found interesting was that the data showed that in patent cases, patent owner appellants did noticeably worse than non-patent owner appellants. I thought it would be worth seeing if things have generally remained the same with about three more months of data.So have things changed? Not really for patent owners. Statistically, it’s still not great to be the patent owner in a Federal Circuit appeal. In July, I noted that patent owner appellants lose 79% of the time. With the additional data, patent owners still lose 79% of the time. The affirmance rates are about the same from both the PTAB (86% in July compared to 84% now) and district courts (71% in July compared to 73%). So that basically means that patent owners did a little better from the PTAB and a little worse from district courts over the past few months.Is the same true with non-patent owner appeals? Sort of. In July, we noted that non-patent owner appeals had a 54% affirmance rate, a 60% affirmance rate just taking PTAB appeals, and a 41% affirmance rate when PTAB appeals are removed. With the additional data, non-patent owners are still doing better than patent owners, but the gap has narrowed. The overall affirmance rate now is 62%, 67% just taking PTAB appeals, and 53% for non-PTAB appeals.Obviously, this means that non-patent owners did much worse than before in decisions over the last three months. Looking at only the newly added cases sheds some light on why these numbers changed. Over the last three months, non-patent owners lost nearly 72% of the time. And they lost a stunning 85% of the time in PTAB appeals. And while non-patent owners did better outside the PTAB (losing 63% of the time), that still is much worse than before.One other tidbit I found interesting. When looking at Board of Contract Appeals and Court of Federal Claims appeals, the affirmance rate is about 71%, which is nearly identical to the overall 71% affirmance rate in the Federal Circuit. But the Rule 36 rate is only 9%. By contrast, the Court’s overall Rule 36 rate is 24% and 34% for patent cases. There could be multiple explanations for this. It may be that BCA and CFC cases have been submitted on the briefs more frequently than other kinds of cases, which generally increases the likelihood that the Court will issue at least a short opinion. It also seems possible that, because there are less BCA and CFC cases at the Court, there may be less precedent on those cases, making it more likely that a case will raise an issue that the Court decides warrants an opinion. In a future post, we may try to take a closer look at those cases to see if we can find any interesting trends.Now’s the time when I’ll note the usual caveats that past outcomes don’t predict future results, and caution against reading too much into this—the more we parse the data, the smaller the sample size and the more likely that a couple case outcomes can skew the data. But if you’re like me and find this interesting, you can go to our <a target="_blank" href="https://federalcircuitry.mofo.com/statistics">statistics page</a>, and click on “case outcomes” and manipulate the data on your own.

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Who Wins, Who Loses Revisited

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At Federal Circuitry, we frequently update our statistics. We now have almost a year’s worth of data since we started our project of collecting every Federal Ci

Who Wins, Who Loses Revisited

Over the past several months, we’ve looked at <a href="https://federalcircuitry.mofo.com/topics/200714-supreme-court-review-sometimes-what-is-not-decided-matters-more-than-what-is.html" target="_blank">what Federal Circuit cases</a> the Supreme Court has and hasn’t reviewed, and <a href="https://federalcircuitry.mofo.com/topics/200930-how-the-federal-circuit-and-its-judges-fare-at-the-supreme-court.html" target="_blank">how often the Supreme Court</a> agrees with each Federal Circuit judge. Today, we got another data point with our first grant of a Federal Circuit case for the new Supreme Court term. The case is about the proper procedure for appointing administrative patent judges at the Patent Trial and Appeal Board.That issue is one Federal Circuit watchers are very familiar with, and we’ve written about it several time times (see <a href="https://federalcircuitry.mofo.com/topics/200713-last-week-in-the-federal-circuit-week-of-july-6-10-anthrex-strikes-again.html" target="_blank">here</a>, <a href="https://federalcircuitry.mofo.com/topics/200914-last-week-in-the-federal-circuit-september-7-11-another-arthrex-follow-on.html" target="_blank">here</a>, and <a href="https://federalcircuitry.mofo.com/topics/200320-do-we-already-know-the-federal-circuits-final-answer-in-arthrex.html" target="_blank">here</a>). As a short recap: last October in Arthrex, Inc. v. Smith & Nephew, Inc. the Federal Circuit held that the America Invents Act violated the Appointments Clause of the U.S. Constitution by giving the Secretary of Commerce, and not the President, authority to appoint the administrative patent judges who decide inter partes reviews. But the Federal Circuit blunted the effect of that holding by granting only a limited remedy—remand for a new hearing and a new decision from a new panel of judges—and by limiting who was entitled to that remedy—to only those who had received a final written decision from the Board before the Federal Circuit’s decision and had properly preserved an Appointments Clause challenge. The Federal Circuit has since extended Arthrex’s reach to other types of proceedings before the Patent Trial and Appeal Board while continuing to limit the remedy and the parties entitled to it.The Supreme Court has now agreed to consider both parts of the Federal Circuit’s decision based on two questions presented (Supreme Court lingo for the issues it will consider in a case):<ol start="1"><li>Whether, for purposes of the Appointments Clause, U.S. Const. Art. II, § 2, Cl. 2, administrative patent judges of the U.S. Patent and Trademark Office are principal officers who must be appointed by the President with the Senate’s advice and consent, or “inferior Officers” whose appointment Congress has permissibly vested in a department head.</li></ol> <ol start="2"><li>Whether, if administrative patent judges are principal officers, the court of appeals properly cured any Appointments Clause defect in the current statutory scheme prospectively by severing the application of 5 U.S.C. 7513(a) to those judges.</li></ol>The Supreme Court’s decision to review the Federal Circuit’s decision shouldn’t come as a major surprise and probably shouldn’t be taken as indicating how the case will come out. Although the success rate for certiorari petitions is extremely low, cases in which a federal appellate court strikes down all or part of a federal statute are much more likely to attract the Justices’ attention. Add on the fact that the Federal Circuit has exclusive jurisdiction over patent cases (so there’s no opportunity for a circuit split or further development in other courts) and that the Solicitor General of the United States was one of the petitioners (the SG has a much better success rate than other litigants) and you have a recipe for a strong chance of Supreme Court review. (The SG also asked the Supreme Court to review whether parties needed to raise their constitutional challenge in the PTAB first, but the Court declined to review that question presented.)Given the issues the Supreme Court has agreed to hear, the effect of the Court’s eventual decision on patent law could be relatively ho hum or far reaching. If the Court reverses the Federal Circuit on the first question, finding no Appointments Clause violation at all, it will largely be business as usual for Patent Office proceedings. The PTAB will continue to oversee and decide the same cases it does today, albeit the administrative patent judges would once again be protected under the Administrative Procedure Act from at-will removals. Cases remanded under Arthrex might be redecided by a new PTAB panel or perhaps could be returned to the original panel, which could reinstate its original Final Written Decision. If the latter, the Federal Circuit might end up getting back a bunch of cases that Arthrex had effectively taken off its docket.If instead the Supreme Court affirms the Federal Circuit on both issues, the result would also probably be business as usual. The window for Arthrex-affected decisions given the Federal Circuit’s limited remedy is largely closed at this point, with most affected cases already remanded to the Patent Office (which has effectively stayed them) or stayed at the Federal Circuit by agreement of the parties. Those case would proceed but likely no new cases (or very few new cases) would be affected.The most interesting bucket would be if the Supreme Court agrees with the Federal Circuit that there was an Appointments Clause violation but disagrees on the remedy. At the Federal Circuit, the patent owners argued that only Congress can fix the statute, which could mean an end to many AIA-created Patent Office proceedings until Congress adopts a fix (or the President, with advice and consent of the Senate, appoints PTAB judges). If the Supreme Court agrees, that could affect far more cases than Arthrex has depending on whether parties preserved an Appointments Clause challenge (although normal rules of finality would likely prevent reopening past cases). Of course, the Supreme Court could adopt a completely different remedy altogether, which might have a broad or narrow reach based on what the Court’s decision says.Arthrex likely will be argued in early 2021, and it should be decided by July 2021.

Supreme Court to Review Arthrex: Big Deal or Ho Hum?

Over the past several months, we’ve looked at what Federal Circuit cases the Supreme Court has and hasn’t reviewed, and how often the Supreme Court agrees with 

Supreme Court to Review Arthrex: Big Deal or Ho Hum?

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Federal Circuitry: Brief Insights (October 8, 2020)


It’s court week at the Federal Circuit, so we decided to take a brief look at what cases had their arguments cancelled in October, and how that compares to pre

Federal Circuitry: Brief Insights (October 8, 2020)

How well do Federal Circuit decisions hold up at the Supreme Court? And which Federal Circuit judges have their votes most often affirmed? With the new Supreme Court term around the corner, we dove into a decade’s worth of data to find out. The bottom line: the Federal Circuit holds its own at the Supreme Court.The Federal Circuit in the Supreme Court. The Federal Circuit’s relationship with the Supreme Court is unique. Unlike other courts of appeals, the Federal Circuit’s jurisdiction is defined exclusively by subject matter, not geography.[1] That means the usual rationale for Supreme Court review—resolution of a conflict between circuits—is often absent in cases decided by the Federal Circuit.Typically operating without the benefit of a circuit split, lawyers seeking review of Federal Circuit decisions frequently emphasize the importance of the issue and the gravity of the court of appeals’ supposed error. Such efforts are increasingly successful. As Adam Feldman has <a href="https://www.scotusblog.com/2018/12/empirical-scotus-the-heightened-importance-of-the-federal-circuit/">shown</a>, the proportion of the Supreme Court’s merits docket taken up by Federal Circuit cases has steadily increased since that circuit’s creation in 1982.Given its unique status, does the Federal Circuit fare worse than other circuits at the Supreme Court? After all, if the main rationale for reviewing Federal Circuit decisions is potential error correction (rather than resolution of a circuit split), one might think the reversal rate would be relatively high. But that is not so. In fact, the Federal Circuit’s success rate in the Supreme Court is slightly above average.Since October Term 2010, the Supreme Court affirmed 30.5% of the time when reviewing decisions of the various federal courts of appeals. In the 45 Federal Circuit decisions reviewed during the same period, the Supreme Court affirmed 31.1% of the time.What if we rank the circuits from most affirmed to most reversed over the same 10-year period? There are 13 circuits, so the median circuit is seventh. Where does the Federal Circuit rank? Seventh. Again, right in the middle of the pack. (Thanks to SCOTUSblog’s <a href="https://www.scotusblog.com/reference/stat-pack/">Stat Pack</a> for these numbers.)<div class="embedded-entry redactor-component block-entry" type="entry" data-sys-entry-uid="blt7e12c87688b2a833" data-sys-entry-locale="en-us" data-sys-content-type-uid="image_content" sys-style-type="block"><div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blta964808aa0db2f9c/62f5ab250f15291330337401/sc-chart-1.png?format=auto&amp;quality=60" alt="Chart"></div></div>How do the numbers look if we examine only patent cases? The Federal Circuit’s jurisdiction is specialized and eclectic—it hears appeals on government contracts, veterans’ benefits, takings claims, and other subjects. But the Circuit’s patent cases are of intense interest to many technology and life sciences companies, and are of increasing interest to the Supreme Court as well.Of the 45 Federal Circuit decisions reviewed by the Supreme Court during our study period, 31 were patent cases. How does the Federal Circuit compare to other circuits if we examine results in only those cases? The Supreme Court affirmed 32.3% of the time in the Federal Circuit’s patent cases. That’s slightly higher than the Federal Circuit’s affirmance rate across all cases but would still place it seventh among the circuits.So what of the perception that the Supreme Court grants review from the Federal Circuit to reverse? The data suggest that, whatever the Supreme Court may intend when it grants, that’s not how it plays out—or, at least, no more so than for other courts of appeals.Federal Circuit Judges in the Supreme Court. We also looked at how the votes of individual judges held up at the Supreme Court.Quick note on methodology. To make these calculations, we scored each case from the Federal Circuit reviewed by the Supreme Court over the last 10 years as an “agree” or “disagree” for relevant Federal Circuit judges. We scored as “agree”: being in the majority of a panel or en banc decision that was affirmed; dissenting from a panel or en banc decision that was reversed; or dissenting from denial of en banc review of a panel decision that was reversed. Mirror image actions were “disagree”: being in the majority of a panel or en banc decision that was reversed; dissenting from a panel or en banc decision that was affirmed; or dissenting from denial of en banc review of a panel decision that was affirmed.In a few cases, we looked past the actual decision under review and assigned “agree” or “disagree” based on the previous Federal Circuit decision that established the precedent binding the subsequent panel. So, for example, last Term in Thryv, Inc. v. Click-to-Call Technologies, LP, the Supreme Court reversed the Federal Circuit and held that the Patent Trial and Appeal Board’s IPR time-bar determinations are nonappealable. In assigning judges to the “agree” and “disagree” categories based on that decision, we looked to the Federal Circuit judges’ votes in Wi-Fi One, LLC v. Broadcom Corp. (en banc), rather than the decisions under direct review. Those decisions merely adhered to Wi-Fi One’s resolution of the relevant issue. In cases like that, it seems more accurate to attach significance to the votes of judges on the precedent-setting panel (or en banc court), not those of the later panel bound to follow the earlier decision.Finally, these results are subject to significant caveats, which we discuss below.On to the results. If we restrict the pool of Federal Circuit judges to only those who were active throughout the study period, thus excluding senior judges who sit on fewer cases and judges who joined the court after 2010, the judge with the highest “agree” percentage is Judge O’Malley, at 58.8%. She’s followed closely by Judges Newman and Moore, tied at 52%.<div class="embedded-entry redactor-component block-entry" type="entry" data-sys-entry-uid="blt7a196eae4cf1c3a9" data-sys-entry-locale="en-us" data-sys-content-type-uid="image_content" sys-style-type="block"><div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt2ab970eb8ac94a93/62f5ab4b5c954177895b0b86/sc-chart-2.png?format=auto&amp;quality=60" alt="Chart"></div></div>If we widen the lens to include both senior judges and judges who joined the court during the study period, we get a new top three (albeit based on a smaller set of cases): Judge Mayer at 75%, Judge Hughes at 70%, and Judge Stoll at 60%.<div class="embedded-entry redactor-component block-entry" type="entry" data-sys-entry-uid="bltafeb8e4b61adf9dc" data-sys-entry-locale="en-us" data-sys-content-type-uid="image_content" sys-style-type="block"><div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt26c4437d1735588a/62f5ab784b29b83d6a5cee1f/sc-chart-3.png?format=auto&amp;quality=60" alt="Chart"></div></div>Caveats. It would be a mistake to read too much into this judge-specific data. Looking only at cases reviewed by the Supreme Court leaves out the vast majority of circuit decisions—those where certiorari was denied or never sought. That means the lion’s share of a judge’s work is not reflected in our scoring. Also, a judge’s practice of noting their views on denial of en banc review also impacts their score. As we discussed in one of our previous <a href="/topics/Agreeing-to-Disagree-en-Banc-Style--How-Often-Do-Judges-Dissent-From-Denial-of-Rehearing-En-Banc" target="_self">posts</a>, Federal Circuit judges vary widely in whether they note such dissents. And judges might believe a panel decision is wrong yet still vote against en banc rehearing because, for example, they think en banc review is not a good use of the Court’s institutional resources. But they would not get “credit” in our scoring for agreeing with the Supreme Court if it eventually grants certiorari and reverses. Also, in some cases, the Federal Circuit applies another circuit’s precedent in whole or in part, yet our methodology includes such cases in the “agree”/“disagree” tally. E.g., Romag Fasteners, Inc. v. Fossil, Inc., 140 S. Ct. 1492 (2020).Finally, we intentionally labeled our categories with the nonjudgmental words “agree” and “disagree.” Some have argued that the generalist Supreme Court should be more deferential to the Federal Circuit on patent law questions. See, e.g., <a href="https://repository.law.umich.edu/articles/1207/">Rebecca S. Eisenberg, The Supreme Court and the Federal Circuit: Visitation and Custody of Patent Law, 106 Mich. L. Rev. First Impressions 28 (2007)</a>. So, at least some of the time, the fact that the Supreme Court disagrees with the views of a Federal Circuit judge with deep expertise in patent law may be an example of Justice Jackson’s quip about the Supreme Court: “We are not final because we are infallible, but we are infallible only because we are final.”Samuel B. Goldstein co-authored this article as an associate in our Appellate + Supreme Court practice before departing the firm for a judicial clerkship.[1] The D.C. Circuit’s jurisdiction is a geographic/subject-matter hybrid—it hears appeals from the District of Columbia and reviews certain agency proceedings.

How the Federal Circuit (and Its Judges) Fare at the Supreme Court

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How the Federal Circuit (and Its Judges) Fare at the Supreme Court

High Court Orders Rethink Of $9.7M Award After TransUnion

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How well do Federal Circuit decisions hold up at the Supreme Court? And which Federal Circuit judges have their votes most often affirmed? With the new Supreme Court term around the corner, we dove into a decade’s worth of data to find out.

How well do Federal Circuit decisions hold up at the Supreme Court? And which Federal Circuit judges have their votes most often affirmed? With the new Supreme Court term around the corner, we dove into a decade’s worth of data to find out