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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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

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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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

Federal Circuit Insights

Last week Federal Circuitry discussed injunctions and stays pending appeal (or mandamus), and, at the end of the week, an interesting mandamus <a href="http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/20-144.ORDER.9-18-2020_1655080.pdf" target="_blank">order</a> addressing a challenge to venue in the Eastern District of Texas was released. In the mandamus petition, the petitioner also sought a stay of the district court proceedings, which was denied as moot when mandamus was denied. That denial means that parties seeking stays pending appellate proceedings now have a 9% success rate. Of course, one could quibble that the latest order shouldn’t count as a true stay denial, as the Court didn’t even need to reach the issue. But we can leave that esoteric debate for another day. Take a look below at our quick take on injunctions and stays pending appeal, and our longer post about them <a href="https://federalcircuitry.mofo.com/topics/200917-the-hail-mary-seeking-an-injunction-or-stay-pending-appeal.html" target="_blank">here</a> (also check out our post about the mandamus order <a href="https://federalcircuitry.mofo.com/topics/last-week-in-the-federal-circuit-september-14-18-a-tale-of-two-mandamus-petitions.html" target="_blank">here</a>).<div style="max-width: 90%;width: 90%;"><div class="videoWrapper"><iframe src="https://www.youtube-nocookie.com/embed/KKq67asf1Aw?rel=0" frameborder="0" allow="accelerometer; autoplay; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="1" title="Brief Insights from Brian Matsui" title="iframe"></iframe></div></div>

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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Federal Circuitry: Brief Insights (September 25, 2020)

Last week Federal Circuitry discussed injunctions and stays pending appeal (or mandamus), and, at the end of the week, an interesting mandamus order addressing 

Federal Circuitry: Brief Insights (September 25, 2020)

At Federal Circuitry, sometimes we have simple ideas that prove not so simple. What we expect will be a few hours of data collection, number crunching, and analysis actually turns into far more work. This post is one of those instances. A few weeks ago, I had what others would now describe as the not-so-bright idea of seeing how movants fared in Federal Rule of Appellate Procedure 8 (or FRAP 8) motions in the Federal Circuit. I thought this might be “interesting” and “useful.” As readers know, FRAP 8 permits parties to seek an injunction or stay pending appeal. These motions are typically filed shortly after an appeal is docketed and are usually decided in short per curiam orders before briefs are filed. Oftentimes, the movant gets temporary relief while the motion is decided. To get relief pending the entire appeal, movants must show a likelihood of success on appeal, some immediate irreparable harm, that the balance of hardships favors the movant, and that the public interest would be served (or at least not harmed) by the interim relief. These motions are somewhat “exotic” in the sense that they don’t happen all that often. But they’re also important; sometimes interim relief is a critical part of making an appeal really “worth it”—such as to prevent the launch of a competing product or to prevent the disclosure of confidential information. In other words, sometimes there’s a bell that just can’t be unrung.Since we track substantive orders and other court data, I thought that looking at this data wouldn’t be a big lift. And because I wanted a somewhat decent sample size, I figured we should go back at least five years. Many hours later of having to look through orders and the underlying motions (because many orders themselves are non-specific), MoFo’s appellate paralegal Chad Borgman and I parsed through the 60 or so FRAP 8 motions we found over the past five years. (Did we miss one or two? Possibly. We found that, other than brute force PACER searches, there’s no easy way to collect this data.)What did we find? As expected, the odds are stacked against the movant. Movants get some relief only 16.7% of the time (10 out of 60 motions).<div class="embedded-entry redactor-component block-entry" type="entry" data-sys-entry-uid="blt488f2da372e8c0eb" 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/bltc77af0a7109cdcc5/62f5aaa1e71af410b83c2ac5/hailmary-1.png?format=auto&amp;quality=60" alt="Chart"></div></div>That was not surprising. After all, if the district court orders an injunction (such as to prevent ongoing infringement or to stop the launch of a competing drug product), the court of appeals isn’t likely to second guess the trial court’s determination before the appeal is even briefed, let alone argued.The next question is whether movants fare better in some kinds of appeals as opposed to others. Because we’re dealing with smaller sample sizes once we parse the data, the answer was a little less clear. Looking at the cases, I created six buckets: (1) patent injunctions/stays; (2) government contract cases; (3) motions to stay proceedings; (4) motions to prevent the disclosure/use of sensitive information; (5) pro se motions—typically government employees—all of which were denied; and (6) “other”—five cases that didn’t really fit into any categories, such as the amount of a supersedeas bond or a case involving VA regulations. We’ll discuss the first four categories.For the bread-and-butter patent docket, a movant’s overall success rate wasn’t all that different. Alleged infringers or patent owners sought injunctions or stays pending appeal 26 times. Their success rate: 15.4%. Nor did it seem to matter—from a pure numbers standpoint—whether the patent owner or alleged infringer was seeking relief under FRAP 8. Both alleged infringers and patent owners each obtained relief 15.4% of the time (13 motions, 2 granted). I also wondered if the success rate was higher for life sciences cases—not so much. It was 13.3%. But the sample size (15 motions) was so small that it’s hard to read too much into things. And—digging a little deeper—if anything, our small sample pointed in the opposite direction from what I would have expected. When a patent owner sought relief under FRAP 8 in a life sciences case, they obtained relief just 8.3% of the time.Compared to patent cases, we found fewer government contracts cases where a party sought a stay or injunction pending appeal. In these cases, a government contractor generally asks the Federal Circuit to prevent a rival contractor from performing under the contract or to prohibit the government from making a new award. To state the obvious, the lesson in these cases is similar to that in patent cases: you really want to win below, and, if you need interim relief from the Federal Circuit, you’re generally going to be out of luck. We found seven instances where a government contractor sought interim relief from the Federal Circuit. The number of times they appeared to get interim relief pending appeal: maybe one. Five times the government contractor was denied relief outright. One time, the Court expedited the briefing and argument (under a schedule agreed to by all the parties), which appeared to make the interim relief less necessary. And another time, partial relief was granted after oral argument. If we round up, that means interim relief is granted 14.3% of the time. But, looking at the cases, it kind of felt less than that. None of this suggests that no case would warrant an injunction pending appeal; the Court just hasn’t seen one recently.Equally grim is when parties seek to stay proceedings—such as to stay trial court proceedings pending a mandamus petition. When broadly looking at motions to stay trial court proceedings, we found 10 cases, and only one was granted. Now perhaps I’m being overly negative, because in several of these cases the need for relief pending appeal (or mandamus) effectively became moot—the Court denied the stay at the same time it denied the mandamus.So does anyone consistently win? In fact, yes: parties trying to prevent the disclosure or use of highly confidential, trade secret, or privileged information. We found four cases where this issue arose. And, from a pure numbers perspective, the moving party obtained interim relief in three—a 75% success rate. But really, the movants got the interim relief they needed in all four cases. In the case where the Court denied the FRAP 8 motion as moot, the Court simultaneously (and quickly) granted the mandamus petition to prevent the use of the confidential information. That seems like a win. Of course, if one wanted to be nitpicky, it could be pointed out that in a different case, the movant really got little more than a temporary stay that was dissolved when mandamus was denied. Even so, that was still interim relief during the pendency of the entire—albeit short—appellate proceedings.Just to recap, here’s a bar chart of the success rate for the various FRAP 8 motions:<div class="embedded-entry redactor-component block-entry" type="entry" data-sys-entry-uid="bltb4de28f5429db488" 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/bltc2bd20376652333a/62f5aaf0361754115f1e9b42/hailmary-2.png?format=auto&amp;quality=60" alt="Chart"></div></div>Sometime in the future, Federal Circuitry will revisit this data, as we’ll continue to track FRAP 8 motions and keep looking for any new or interesting trends.

The Hail Mary: Seeking an Injunction or Stay Pending Appeal

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The Hail Mary: Seeking an Injunction or Stay Pending Appeal

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At Federal Circuitry, sometimes we have simple ideas that prove not so simple. What we expect will be a few hours of data collection, number crunching, and analysis actually turns into far more work. This post is one of those instances

Next week is Court week.  Readers may remember that, after the Court released the September calendar, we <a href="https://federalcircuitry.mofo.com/topics/200722-september-calendar-released-expect-the-submission-trend-to-continue.html">predicted</a> that the submission trend would continue.  Were we right?  Sort of. Cases were submitted (including one of our cases, as appellee).  But far fewer cases were submitted for next week’s arguments than any of the Court’s previous telephonic sittings.  All told, the Court cancelled oral argument in just eight cases out of the thirty-six originally scheduled for argument.  Both the number of cases and the cancellation percentage (22%) were lower than any previous month since the Federal Circuit went “remote.” Once again, PTAB cases were the relative losers for argument—three of the nine PTAB cases (33%) had arguments cancelled, compared to two of the seventeen district court cases (12%).  But that 33% PTAB cancellation statistic is still much lower than the 77% figure in <a href="https://federalcircuitry.mofo.com/topics/200724-july-oral-argument-recap.html">July</a> and the 55% figure in <a href="https://federalcircuitry.mofo.com/topics/200821-august-oral-argument-recap.html">August</a>. <div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt8d44f17466fc3a43/62731683deee7329767e7668/arguedcases.png?format=auto&amp;quality=60" alt="Argued cases"/></div>We don’t know the reason why so few cases had cancelled arguments for September.  It could just be the mix of cases and panels in this particular month.  Or it could be consistent with our co-editor Seth Lloyd’s earlier <a href="https://federalcircuitry.mofo.com/topics/200706-fun-with-numbers-from-the-federal-circuits-first-three-months-of-telephonic-arguments.html">observation</a> that fewer cases being submitted might reflect the Court becoming “more comfortable with telephonic arguments over time” and “drift[ing] back to its usual practice of hearing argument in most cases where both parties are represented by counsel.”  Regardless, as remote arguments will continue in October, we will continue to look for trends.In addition to looking at how many arguments were cancelled, we decided to take another look at how appellees did when an argument was cancelled.  As we noted before, appellees do well (<a href="https://federalcircuitry.mofo.com/topics/200714-who-wins-who-loses.html">in general</a>) and particularly so when argument is <a href="https://federalcircuitry.mofo.com/topics/200706-fun-with-numbers-from-the-federal-circuits-first-three-months-of-telephonic-arguments.html">cancelled</a>.  But because the affirmance rate is not 100%, appellees are clearly losing some cases solely on the papers. As advocates, we became curious if anything could be discerned from those losses.  After all, some circuits are known to reverse or vacate decisions without argument (take the Sixth Circuit, for example), but many others are far more likely to hold argument when an appeal might lead to such a result.  Holding argument when the judgment below might be disturbed gives the appellee the opportunity to address any concerns the court might have and to respond to arguments the appellant might have refined in its reply.Hoping to find some answers, we looked beyond the data and took a deeper dive into the 12 cases in which the Court cancelled oral argument and did not affirm since the Federal Circuit started telephonic oral arguments.  But since Federal Circuitry takes a data-driven approach, here are some statistics first:<ul><li>Overall affirmance rate:  70.9%</li><li>Overall district court affirmance rate:  66.0%</li><li>Overall PTAB affirmance rate:  78.8%</li><li>Cancelled argument affirmance rate (to date):  88.2% (15 not decided)</li><li>Cancelled argument district court affirmance rate:  88.5% (4 not decided)</li><li>Cancelled argument PTAB affirmance rate:  88.1% (6 not decided)</li></ul>One thing that jumps out from these statistics is that the affirmance rate is pretty consistent across district court and PTAB appeals when oral arguments are cancelled.  That’s a contrast to the overall affirmance rates for all cases, where the PTAB is affirmed at a much greater rate.  Also, the 88% cancelled argument affirmance rate after five months of telephonic arguments is slightly lower than the 92% affirmance rate we <a href="https://federalcircuitry.mofo.com/topics/200706-fun-with-numbers-from-the-federal-circuits-first-three-months-of-telephonic-arguments.html">calculated</a> after just the first three months.  Our co-editor Seth wondered whether the then-undecided cases “may bring the affirmance average closer to the historical average,” since “delayed decisions may be more likely to involve some relief for the appellant.”  That appears to have happened to some extent—some of those cases have since been decided and did bring down the affirmance rate, but only by a bit.Diving a bit deeper into the cases themselves, we learned that several of these appellee “losses” had unique circumstances or were not losses at all.  Two were straight vacate and remands, and the third was similar to one.  <a href="http://www.cafc.uscourts.gov/opinions-orders/19-1956.opinion.7-28-2020_1626283.pdf" target="_blank">One</a> involved an Arthrex remand, so while the appellee “lost,” that result was preordained and oral argument couldn’t have changed that outcome.  Another was a <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blte0bc0f00531878ed/627316840cffdf1eb1369d9c/200721-court-of-appeals.pdf" target="_blank">per curiam</a> vacate and remand for the TTAB to decide the effect of the Supreme Court’s Booking.com decision, without substantively addressing any issues.  And in a <a href="http://www.cafc.uscourts.gov/opinions-orders/19-1838.opinion.6-17-2020_1605112.pdf" target="_blank">third</a> appeal, the Court vacated and remanded in a patent owner’s IPR appeal because the PTAB failed to consider secondary considerations evidence “[f]or reasons analogous to those expressed” in an earlier appeal between the same two parties.  In that case, the appellee had acknowledged that the PTAB’s treatment of secondary considerations was similar in both IPRs.Two other cases are, for all practical purposes, wins for the appellees.  In <a href="http://www.cafc.uscourts.gov/opinions-orders/19-1933.opinion.6-15-2020_1603407.pdf" target="_blank">Inserso</a>, the government was the appellee in a Court of Federal Claims appeal; the key takeaway for our purposes is this line:  “We agree that judgment in favor of the government is appropriate, but on a different ground.”  In other words, it’s hard to say the appellee didn’t win, because the Federal Circuit simply instructed the Court of Federal Claims to enter judgment (again) in the appellee’s favor.  Similarly, in <a href="http://www.cafc.uscourts.gov/opinions-orders/19-1557.opinion.5-20-2020_1590998.pdf" target="_blank">McRO</a>, the appellees did not really lose anything and appeared to get exactly what they wanted.  The Federal Circuit affirmed a district court’s grant of summary judgment of non-infringement for the defendants-appellees, and it vacated and remanded on counterclaims of invalidity.  Notably, after cancelling argument but before submitting the case, the Federal Circuit asked the parties to respond to written questions about how to address invalidity given non-infringement.  In responding to those questions, the defendants signaled a willingness to withdraw their counterclaims anyway.Of course, that leaves seven additional cases in which the appellees did apparently “lose”—five patent, one Court of Federal Claims, and one veteran’s.  It’s a bit harder to explain away the absence of argument without looking at the nitty gritty details.  Even doing so, we didn’t find much of a pattern; it may be that the panels just viewed them as straightforward cases.  Three of the patent cases involved incorrect claim constructions; one involved the PTAB’s failure to explain its reasoning; the last one involved a more nuanced issue on pre-suit damages (in a precedential opinion no less).  Interestingly, the Court of Federal Claims and veteran’s appeals were both precedential opinions. Overall, that means that out of the five precedential decisions in which the Court cancelled argument and did not affirm, three were non-IP appeals.  In fact, all three non-IP appeals with cancelled arguments and non-affirmances were precedential decisions.  Regardless, the key takeaway seems to be that when oral argument is cancelled, it’s very likely good news for the appellee.  But don’t entirely count those chickens before they hatch.Some parting tidbits:<ul><li>Judges O’Malley and Stoll each authored three of the eleven “signed” decisions, and Judge Taranto authored two.  So those three judges authored 72.7% of those decisions.</li><li>Only one case had a dissent, by Judge Reyna; see our earlier <a href="https://federalcircuitry.mofo.com/topics/200729-agreeing-to-disagree-how-often-do-judges-dissent.html">analysis</a> on Judge Reyna being a prolific dissenter.</li><li>Judge Lourie was on five of the twelve cases; see our earlier <a href="https://federalcircuitry.mofo.com/topics/200807-are-some-federal-circuit-judges-more-likely-to-decide-a-case-without-oral-argument.html">analysis</a> on Judge Lourie being one of the more likely judges to be on a panel cancelling oral argument.</li></ul><div>Samuel B. Goldstein co-authored this article as an associate in our Appellate + Supreme Court practice before departing the firm for a judicial clerkship</div>

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Observations on Cancelled Argument Cases: Appellees Always Win, Right? (Mostly)

Fun with Numbers from the Federal Circuit’s First Three Months of Telephonic Arguments

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Next week is Court week.  Readers may remember that, after the Court released the September calendar, we predicted that the submission trend would continue.  We

Observations on Cancelled Argument Cases: Appellees Always Win, Right? (Mostly)

As we mentioned in one of our previous <a target="_blank" href="https://federalcircuitry.mofo.com/topics/200803-last-week-federal-circuit-gambling-on-apa-challenge.html">posts</a>, the Federal Circuit recently denied a long-pending petition for rehearing en banc in <a href="https://www.cafc.uscourts.gov/opinions-orders/18-1763.order.7-31-2020_1628780.pdf" target="_blank">American Axle & Manufacturing v. Neapco Holdings</a>, a Section 101 case. More than 8 months after the filing of a rehearing petition, the original panel modified its opinion, and the en banc court evenly divided over whether to rehear the case. (A majority of eligible active judges must vote to take a case en banc, so if the Court is evenly divided, the en banc poll fails.)That piqued our curiosity about the Court’s other dissents from denials of en banc rehearing (sometimes called “dissentals”)—how often they occur, what types of cases are more likely to draw such dissents, and how such dissents affect the likelihood that the Supreme Court will grant review. So, as we often do here at Federal Circuitry, we dug into the data.Between January 1, 2015, and August 12, 2020, we counted 33 denials of en banc rehearing that drew at least one noted dissent. There were a few instances where multiple rehearing petitions raised the same issue; we combined those for purposes of our tabulation. Note also that Judge Stoll, the Court’s most recent appointee, joined the Court midway through 2015, so there were a few en banc polls in our data set in which she didn’t have an opportunity to participate.The following chart shows how many times each judge has dissented from denial of en banc rehearing and how many votes for en banc rehearing each judge’s panel majority opinions received. The chart omits rows for senior judges who did not author a panel majority opinion that garnered a dissent from denial of rehearing en banc (and columns for all senior judges, since senior judges cannot participate in the en banc process).<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt410074c1b062712c/62f66e786f3f3701d6ffcb4a/chart1.png?format=auto&amp;quality=60" alt="Chart"/></div>As you can see, the numbers vary widely among the judges. With 27 noted dissents from denial of en banc rehearing, Judge Newman had nearly twice as many such dissents as the next most prolific dissenter. Judges Wallach, O’Malley, and Reyna also recorded a fair number of such dissents—14, 11, and 11, respectively. (Those names may look somewhat familiar to those who read our <a href="https://federalcircuitry.mofo.com/topics/200729-agreeing-to-disagree-how-often-do-judges-dissent.html" target="_blank">earlier</a> post about how often judges dissent at the panel stage—Judges Newman and Reyna also were the source of most of the Court’s panel-stage dissents.) By contrast, Judges Taranto and Chen had no noted dissents from denials of rehearing en banc.On the other side of the ledger, panel majority opinions authored by Judge Dyk drew by far the most dissents from denial of en banc rehearing (29), while those from Judges Newman, Taranto and Chen garnered no such dissents. Another interesting statistic not captured in the above chart: of the 33 en banc denials with a dissent in our data set, 25 (about 75%) had either a concurring or dissenting opinion at the panel stage. These separate opinions perhaps signal to off-panel judges that a rehearing petition is worth a closer look.The next chart shows the distribution of the number of judges dissenting from any given denial of en banc rehearing. As we suspected, the Court is rarely evenly divided as it was in American Axle. More often, only 1, 2, or 3 judges have noted dissents. Of course, the number of judges needed to take a case en banc changes if some active judges do not participate, e.g., if they are recused from that case. For instance, if 1 of the Court’s 12 active judges is recused, 6 votes are enough to grant en banc rehearing.<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/bltccee9938a2740f6a/62f66ebfe717bf11519ad70e/chart2.png?format=auto&amp;quality=60" alt="Chart"/></div>We also looked at the types of cases and issues that drew dissents from denials of rehearing en banc. The chart below shows the number of cases in our data set from each originating tribunal.<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/bltbe1de1a126c38dd7/62f66f1134f523580f111bc9/chart3.png?format=auto&amp;quality=60" alt="Chart"/></div>District-court cases make up a disproportionate share of denials of en banc rehearing that garnered a dissent. Cases from district courts made up 37% of the Court’s docket in 2015 and 22% of the Court’s caseload in 2019, but they were 14 of the 33 (42%) cases in our data set. The high proportion of district-court cases is perhaps unsurprising. After all, litigating a district-court case through judgment and appeal is comparatively more expensive and time-consuming, which may lead parties to settle if the law or facts clearly favor one outcome. So the cases that remain and reach the Federal Circuit are more likely to have unsettled legal issues or complicated facts on which reasonable minds might disagree.By contrast, PTAB cases are underrepresented—they made up 24% of the Court’s docket in 2015 and 43% of the Court’s caseload in 2019, but only 7 of the 33 (21%) cases in our set of en banc denials with a dissent. The origins of the other cases that drew dissents from denials of rehearing en banc were fairly representative of the remainder of the Court’s docket.Our next chart shows the issues involved in the patent cases that resulted in dissents from denials of en banc rehearing.<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt281bb10490529084/62f66f62d3b8a570045693fc/chart4.png?format=auto&amp;quality=60" alt="Chart"/></div>The district-court cases concerned a variety of issues, the most common being patent eligibility under Section 101, damages issues, and indefiniteness. The PTAB cases, by contrast, all involved constitutional or statutory issues unique to the PTAB setting, like the constitutionality of the appointment process for administrative patent judges (Arthrex) and the propriety of using the broadest-reasonable-interpretation standard in IPRs (Cuozzo). And the one case from the ITC involved a statutory-interpretation issue that arises only in ITC proceedings.Finally, we examined how the cases in our data set fared when the losing party at the Federal Circuit sought review in the Supreme Court. Of our 33 cases, 25 have resulted in cert petitions thus far; of those, 7 were granted, 13 were denied, 3 are still pending, 1 was dismissed because the parties settled the underlying case, and 1 resulted in vacatur of the judgment below as moot. Thus, of the 20 cert petitions that have gotten a thumbs up or down from the Supreme Court, 35% were granted. That’s substantially higher than the proportion of all paid cert petitions that are granted—approximately 5%. Our data thus seem to confirm the conventional wisdom that a dissent from denial of en banc rehearing increases the likelihood that a case will get the attention of the Justices and their clerks.Of the 7 cases that have resulted in cert grants, the Supreme Court reversed the Federal Circuit in 5, affirmed in 1, and vacated the judgment as moot in 1. Interestingly, the 1 affirmance followed the closest en banc poll (6-5); the 5 cases resulting in reversals only garnered 1, 2, or 3 votes for rehearing en banc. And of the 5 reversals, Judge Newman dissented from denial of en banc rehearing in 4; Judges O’Malley and Wallach dissented in 2; and Judges Moore, Reyna, and Hughes dissented in 1 each.Samuel B. Goldstein co-authored this article as an associate in our Appellate + Supreme Court practice before departing the firm for a judicial clerkship.

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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Agreeing to Disagree, en Banc Style: How Often Do Judges Dissent From Denial of Rehearing En Banc?

Agreeing to Disagree, en Banc Style:  How Often Do Judges Dissent From Denial of Rehearing En Banc?

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The Federal Circuit often makes headlines when judges dissent from denial of rehearing en banc.  Our latest post explores which judges are most likely to dissen

So now that the Federal Circuit has wrapped up its fifth oral argument sitting by telephone, I thought it could be a good time to look again at what factors affect whether the Court holds a telephonic hearing or submits a case on the briefs (perhaps with a request to the parties for letter briefs on specific questions). We previously <a href="/topics/200706-fun-with-numbers-from-the-federal-circuits-first-three-months-of-telephonic-arguments.html">looked at</a> how a case’s merits relates to whether argument is cancelled and found, probably unsurprisingly, that the Court seems more likely to submit on the briefs if it is going to affirm. But a case’s merits doesn’t seem to be the only relevant factor. After all, the Court has continued to affirm without opinion under Rule 36 in cases argued telephonically, and if merits were the only factor cases affirmed in that manner would seem likely cases for submission on the briefs.I decided to take advantage of the data behind our <a href="/statistics">statistics</a> to see if I could tease out another factor—the effect of panel assignment on argument cancellation. Identifying trends here is tricky without more sophisticated tools like a regression analysis, because each panel typically has three judges yet it takes only one to request oral argument. Still, that means to submit without argument all three judges must have agreed, so looking at argument/submission frequency by judge gives at least a floor for how often a judge votes to submit without argument. And as the table below shows, it appears likely that some judges vote to cancel argument more frequently than others:<figure style = "float: left;display: flow-root;margin:0;width: 662%;max-width:100%;"><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt9c4a8103afbfd654/6273167a0cffdf1eb1369d94/200807-federalcircuitry-cancelarg-chart.jpg?format=auto&quality=60" class="img-responsive" inline="true" alt="Chart" type="asset" asset-alt="Chart" height="450" data-sys-asset-alt="Chart" data-sys-asset-position="left" sys-style-type="download" ></figure>For example, among active judges, Judge Lourie (27.8%) and Judge Chen (29.4%) had the lowest frequency of argued cases across the panels on which they sat.  On the other end, Chief Judge Prost (71.9%) and Judge Newman (66.7%) had the highest frequency, followed by Judge Stoll (62.9%) and Judge Dyk (58.5%).I also wondered whether anything could be gleaned from how often cases are argued based on which judge presides.  Although any judge can request argument regardless of who is presiding, it seems possible that the presiding judge makes the initial recommendation for a panel, which may amount to a thumb on the scale for or against argument.  The amount of data available for this metric depends significantly on the judge; Chief Judge Prost, for example, always presides when she is sitting so there’s lots of data for her, but several of the more recently appointed judges didn’t preside at all in the past five months (Taranto, Hughes, Stoll).  Looking at the data, we find the same judges again on either end of the spectrum in terms of lowest and highest frequencies of argued cases when presiding:  Judges Lourie (16.7%) and Chen (8.3%) on the low end and Chief Judge Prost (71.9%) and Judge Newman (64.3%) on the high end.  But when looking at only cases where they presided, both Judge Moore (21.7%) and Judge O’Malley (28.6%) had significantly lower frequencies of argued cases compared to their frequencies overall, whereas Judge Wallach (100%) had a much higher frequency (though he presided over only 5 cases during these months, so the sample size is very small).

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Are Some Federal Circuit Judges More Likely to Decide a Case Without Oral Argument?

Are Some Federal Circuit Judges More Likely to Decide a Case Without Oral Argument?

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Has it been a while since you heard a Judge Lourie pun?  As we explore in our latest post, that may be because he’s one of the Federal Circuit judges who, durin

The Federal Circuit is known for being a collegial court. So we decided to take a look at how often the judges disagree with one another. To do so, we looked under the hood at the data for our <a href="https://federalcircuitry.mofo.com/statistics">statistics</a>. Since we started tracking Federal Circuit cases, there have been 29 out of 534 cases with dissents, 30 dissents, and 28 dissenting opinions. How are there more dissents than cases with dissents, given that we are tracking three-judge panel decisions? In one case, both Judges Newman and Taranto separately dissented on different issues, so each were partly in the majority. And how are there fewer dissenting opinions than dissents? Judges Lourie and Hughes each dissented without a dissent opinion. There was also one case with a per curiam majority opinion in which Judge Newman partially dissented.After parsing the data, we created the following chart, which shows how many times each judge has dissented and how many times each judge has authored a majority opinion with a dissent. You can also see who has disagreed with whom. For example, Judges Lourie and Reyna have reached opposite conclusions in four cases. Note that the chart omits the case with a per curiam majority opinion and omits senior judges who have neither authored a dissent nor authored a majority opinion that garnered a dissent.<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt178541f104b96cf1/62f666557e18987096abc88a/federalcircuitry-dissent-chart2.jpg?format=auto&amp;quality=60" alt="Dissent Chart"/></div>For decisions from November 1, 2019 to July 28, 2020.Here are a few more observations:<ul><li>Over half (60%) of the dissents came from two judges: Judges Newman and Reyna each have nine.</li><li>While Judge Newman is tied for the most dissents, none of her majority opinions garnered a dissent. Judge Moore was the only other active judge to achieve that unanimity in authored opinions.</li><li>While most of the dissents were concentrated between two judges, the same was not true with respect to majority opinions with dissents. Half the active judges on the Court have between three to five majority opinions with dissents, and no judge had more than five majority opinions with dissent (Judge O’Malley having five).</li><li>Of the active judges, only three wrote no dissents: Chief Judge Prost and two of the Court’s newest members—Judges Chen and Stoll.</li><li>Of the senior judges, Judges Clevenger and Plager each dissented once and only Judge Bryson authored a majority opinion with a dissent.</li><li>Most of the dissents come from district court and PTAB cases (which were about evenly divided in number of dissents). There were dissents in five CFC cases and just one in a MSPB case. But there were no dissents from cases arising from any other part of the Court’s docket. Thus, even though non-patent cases made up roughly 40% of the decided cases, they made up only about 20% of cases in which there was a dissent.</li></ul>Editors’ note: This week we say goodbye to our appellate paralegal Holly Chaisson who will be attending law school in the fall. Holly was instrumental in the launch of this blog and the compilation and analysis of its data. Best of luck, Holly!Samuel B. Goldstein co-authored this article as an associate in our Appellate + Supreme Court practice before departing the firm for a judicial clerkship.

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Agreeing to Disagree: How Often Do Judges Dissent?

Agreeing to Disagree: How Often Do Judges Dissent?

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The Federal Circuit is known for being a collegial court. So we decided to take a look at how often the judges disagree with one another.

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September Calendar Released: Expect the Submission Trend to Continue

September Calendar Released: Expect the Submission Trend to Continue

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Yesterday, the Federal Circuit released its calendar for its September sitting, setting oral argument for 40 appeals. So if you were waiting for a case to be se

Since we began tracking cases late last year, we have been thinking about some of the common perceptions we sometimes hear about the Federal Circuit. For example, people sometimes say that patent owners do very well on appeal (although we hear the opposite too). Is that true? We took a look at the data to see. Since November, in decisions where the patent owner is an appellant and there is no cross-appeal, the Court affirms 79% of the time. Now, some readers may be thinking that the PTAB plays a big part of this high affirmance (loss) rate for patent owner appellants, and that’s certainly true. Taking just PTAB appeals by patent owners, the affirmance rate jumps to 86%. Yet stripping those PTAB appeals out makes the affirmance rate 71%. In other words, the patent owner is still losing 7 out of 10 times on appeal.Of course, for the perception to be a misperception, non-patent owners would have to be doing better. They are. Overall, non-patent owner appeals have a 54% affirmance rate, a 60% affirmance rate just taking PTAB appeals, and a 41% affirmance rate when PTAB appeals are removed. That last stat means that the non-patent owner appellant is getting some relief almost 6 out of 10 times in non-PTAB appeals.Statistics like these certainly don’t predict outcomes in future cases. And while we have a robust amount of data going back to November, the more you parse it the smaller the sample size becomes. We’ll keep looking at stats like these as the data set grows, and you can use our statistics pages to see what trends you might find on your own.

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Who Wins, Who Loses

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Since we began tracking cases late last year, we have been thinking about some of the common perceptions we sometimes hear about the Federal Circuit. For exampl

Who Wins, Who Loses

Last week, the Supreme Court closed the book on its October 2019 Term, issuing its final opinions after the Fourth of July holiday. For all the notable features of this term—including the Court’s first-ever telephonic arguments, numerous questions from Justice Thomas, and many high profile cases (almost all of which had the Chief Justice in the majority)—the Federal Circuit had a relatively quiet term at the Supreme Court. Yes, the Supreme Court reviewed four cases from the Federal Circuit (reversing or vacating in three), but none appears to have had a profound effect on practice before the Federal Circuit, particularly with respect to its bread-and-butter patent docket.Take, for example, <a href="https://www.supremecourt.gov/opinions/19pdf/18-801_o758.pdf" target="_blank">Peter v. NantKwest Inc.</a>: there, the Supreme Court reaffirmed the bedrock “American rule” that litigants must pay their own way with respect to attorney’s fees, unless some statute or contract provides otherwise. The Court rejected the Patent Office’s aggressive statutory interpretation argument that “expenses” included “attorney’s fees.” This never seemed like a close case—more of a layup. And indeed the Supreme Court was unanimous in its decision affirming the Federal Circuit. It was the second opinion from an argued case handed down this term (typically, the first several opinions are from some of the most straightforward cases on the docket).Not to diminish the other decisions this term, but there was no case that came close to the likes of Alice, KSR, eBay, Teva, Oil States, or Cuozzo. To be sure, <a href="https://www.supremecourt.gov/opinions/19pdf/18-916_new_g3bi.pdf" target="_blank">Thryv, Inc. v. Click-to-Call Technologies, LP</a> became a Cuozzo-lite follow-on—addressing whether the one-year time bar to file a petition for inter partes review after being served with a complaint was judicially reviewable (35 U.S.C. § 315(b)). The Court reiterated its holding in Cuozzo: that when Section 314(d) bars appeals of a decision whether to institute an inter partes review, that bar includes “matters closely tied to the application and interpretation of statutes related to the institution decision.” Applying that same holding, it held that Section 315(b)’s time bar “is integral to, indeed a condition of, institution” and thus final and not appealable under Section 314(d).Outside of patents, the Supreme Court addressed willful infringement in the trademark context in <a href="https://www.supremecourt.gov/opinions/19pdf/18-1233_5he6.pdf" target="_blank">Romag Fasteners, Inc. v. Fossil, Inc.</a> The Court concluded that—based on the text of the Lanham Act—a plaintiff need not prove willfulness to recover lost profits for false or misleading uses of a mark. By concluding that willfulness was no prerequisite to lost profits, the Supreme Court side-stepped the more significant issue as to what willfulness meant, which could have had implications far outside the Lanham Act. (As an aside, although Romag is a loss in the Federal Circuit’s win-loss column, that’s hardly fair: the Federal Circuit was applying Second Circuit law on the trademark issue reviewed by the Supreme Court.) And in its fourth and final case from the Federal Circuit, the Supreme Court held that the government had to reimburse health insurers that suffered losses when offering policies on exchanges under the Affordable Care Act in <a href="https://www.supremecourt.gov/opinions/19pdf/18-1023_m64o.pdf" target="_blank">Maine Community Health Options v. United States</a>.If anything, the cases the Supreme Court chose not to hear were in some ways more profound than the cases it actually heard. We know the Supreme Court took a very hard look at several 101 decisions when it Called for the Views of the Solicitor General (CVSG) in two cases. In Hikma Pharmaceuticals USA Inc. v. Vanda Pharmaceuticals Inc., the Court CVSG’d the question of whether methods of using drugs to treat medical conditions are patent eligible under Section 101. The <a href="https://www.supremecourt.gov/DocketPDF/18/18-817/124768/20191206151701002_18-817%20-%20Hikma%20-%20CVSG%20-%20v28.pdf" target="_blank">Solicitor General’s brief</a> agreed that the particular patent claims at issue are patent eligible, but noted that the Federal Circuit’s ruling “implicates important and recurring questions on which the [Supreme] Court’s recent Section 101 decisions have fostered substantial uncertainty.” The Solicitor General stated that the Supreme Court’s Mayo decision has “sent conflicting signals.” And he explained that the “confusion created by [the Supreme] Court’s recent Section 101 precedents warrants review in an appropriate case.” Although the Solicitor General suggested Hikma was not the right vehicle for review, he identified another more appropriate case that was already pending before the Supreme Court: Athena Diagnostics, Inc. v. Mayo Collaborative Services, LLC, No. 19-430. Given that the Supreme Court usually grants review when the Solicitor General, after being CVSG’d, recommends it, conventional wisdom suggested that Athena would be the next blockbuster 101 case. But, for reasons we can’t know, the Court ended up denying review in both Hikma and Athena.That leaves HP Inc. v. Berkheimer, which suffered the same fate on the same day as Hikma and Athena. The question presented in Berkheimer was “[w]hether patent-eligibility is a question of law for the court based on the scope of the claims or a question of fact for the jury based on the state of the art at the time of the patent.” When the Federal Circuit issued its Berkheimer decision, many practitioners began to wonder if 101 challenges were going to be more difficult to make on a motion to dismiss. In its CVSG <a href="https://www.supremecourt.gov/DocketPDF/18/18-415/124825/20191206211755583_18-415%20-%20HP%20v.%20Berkheimer.pdf" target="_blank">Berkheimer brief</a>, the Solicitor General reiterated the point he made in his Hikma brief: “The Court should grant review in an appropriate case to clarify the substantive Section 101 standards.” Once those standards were resolved, he explained, the Court could “then address any ancillary issues that remain”—which would presumably include whether patent eligibility is a question of law or fact. Most likely, once the Supreme Court decided to deny review in Hikma and Athena, there was no reason to grant review of the “ancillary” issue raised in Berkheimer.The Solicitor General’s Berkheimer brief offered one interesting tidbit. He cautioned against review in Berkheimer based, at least in part, on its subject matter. He noted that the claims were directed to “the software-system context.” And he suggested that other, “more familiar types of innovations—such as industrial processes or methods of medical treatment”—might be easier for the Supreme Court to distinguish between patent eligible and ineligible subject matter. To hammer the point home, he said: “courts (and this Court in particular) have less experience addressing such questions in the context of software systems.” Interestingly, the Federal Circuit has been considering for some time now a pending rehearing/en banc petition in American Axle & Manufacturing v. Neapco Holdings, a case in which a divided Federal Circuit panel struck down on 101 grounds patent claims to a method of manufacturing driveline propeller shafts. Depending on what happens at the Federal Circuit, perhaps a case like that involving the mechanical arts (a la KSR) could be a better vehicle for the Supreme Court to address these issues. Or perhaps, after having recently addressed 101 several times already, the Supreme Court just wants to take itself out of that business.So that’s a wrap for the October 2019 Supreme Court Term. We will have to wait and see if next year brings more excitement in reviewing Federal Circuit decisions. Just remember to unmute your telephone line and avoid flushing the toilet.

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Supreme Court Review: Sometimes What Is Not Decided Matters More Than What Is

Supreme Court Review: Sometimes What Is Not Decided Matters More Than What Is

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Last week, the Supreme Court closed the book on its October 2019 Term, issuing its final opinions after the Fourth of July holiday. For all the notable features