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 nationwide. 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 five 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 14 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 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.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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Of Counsel

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-839223549{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

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Out with the old, and in with the new:  it’s Court week for the short February month, so we thought we’d revisit what happened at oral arguments last month and what’s happening now.First, the past:  In the highly coveted first week of January arguments (who doesn’t love preparing for argument on New Year’s Day), the Court heard argument in 26 cases—having cancelled argument in 22 cases.  The 46% cancellation rate was on the high side, so about half the counsel got to enjoy a bit more bubbly than others as we closed the door on 2020.  And it’s higher than the argument cancellation rate in December, which was only 29% (39 argued cases, and 16 cancelled arguments).As for who is getting argument cancelled:  when you look at the Court’s patent docket, PTAB cases were the relative losers—if you wanted oral argument (40% of those scheduled for argument were cancelled, compared to 29% for district court cases).  That’s pretty much in line with what we’ve seen in the past.  But really it was the rest of the Court’s docket—the non-patent cases—that took the brunt of the cancellations last month.<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt1d336de8ca2ad2b6/627316b07198441d81b3a557/argchart2.png?format=auto&amp;quality=60" alt="Chart"/></div>But as we’ve said <a href="https://federalcircuitry.mofo.com/topics/201204-november-oral-argument-recap.html">before</a>, and we’ll repeat again—the cancellations mostly seem to be pretty case-specific, other than some basic trends like district court cases being cancelled less frequently than others.So looking at what’s going on in February, is it more of the same?  Sort of.  Those who wanted argument fared a bit better.  The Court cancelled argument in 14 out of 62 cases originally scheduled for oral argument (22.5%).  Interestingly, the cancellation rate remained relatively stable for district court (17%) and PTAB cases (36%), so the big difference was really in the non-patent docket of the Court faring better on getting oral arguments.So what’s the takeaway?  The Court still cancels about a quarter to a half of oral arguments every month.  And while it’s clear that cancellations tend to be case-specific depending upon what’s scheduled and when, at least for patent cases, those originating from district courts tend to have more issues that the Judges think warrant oral argument compared to those from the PTAB.January stats:Total cases: 26 arguments (and 34 cases submitted on the briefs, of which 22 were originally set for argument)Oldest case: <a href="http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1364.RULE_36_JUDGMENT.1-21-2021_1720172.pdf">SIPCO, LLC v. Emerson Electric Co.</a>, No. 18-1364 (1127 days)Quickest case: <a href="http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/20-2289.OPINION.1-6-2021_1712984.pdf">Vargas v. Wilkie</a>, No. 20-2289 (112 days)PTAB cases: 9 arguments (and 7 counseled cases submitted on the briefs)District court cases: 10 arguments (and 4 counseled cases submitted on the briefs)Rule 36 affirmances: 9 (4 in District Court, 4 in PTAB, 1 in CAVC)Number of argument days by judge:<ul><li>Prost: 4</li><li>Newman: 0</li><li>Mayer: 1</li><li>Plager: 0</li><li>Lourie: 3</li><li>Clevenger: 1</li><li>Schall:  1</li><li>Bryson 2</li><li>Linn: 0</li><li>Dyk: 4</li><li>Moore: 2</li><li>O’Malley: 2</li><li>Reyna: 3</li><li>Wallach: 1</li><li>Taranto: 5</li><li>Chen: 3</li><li>Hughes: 2</li><li>Stoll: 2</li></ul>

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

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

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

Oral Argument Recap

Thanksgiving has come and gone, and we’ve all hopefully had a chance to ponder what we’re thankful for (including that a wild 2020 is about to close). Next week marks the start of the Federal Circuit’s last oral argument session of 2020. Lucky for those Monday-morning advocates, the Court’s session starts on December 7 and not the Monday after Thanksgiving—as it did for those who argued in the Supreme Court this week (or those at the Federal Circuit last year). But don’t worry, 2021 will include the Federal Circuit’s “coveted” January 4 and July 6 oral argument days; something to look forward to!So before December arguments kick off, how did the November sitting turn out statistically? Well, there was an uptick in the percentage of arguments cancelled compared with September and October—the Court ended up cancelling scheduled arguments in 19 out of 55 cases, or 34.5%. As we reported previously (see <a href="https://federalcircuitry.mofo.com/topics/October-Oral-Argument-Recap.html" target="_blank">October Oral Argument Recap</a>), September and October saw cancelled argument percentages in the low 20s.  But although November went up, it’s still on the low side for the year, and much lower than the first few months of telephonic arguments when the Court was cancelling roughly half of scheduled arguments (see <a href="https://federalcircuitry.mofo.com/topics/200724-july-oral-argument-recap.html" target="_blank">July Oral Argument Recap</a>).At the same time as the percentage of cancelled arguments went up, the percentage of argued cases affirmed without an opinion under Rule 36 went down.  So far, the November sitting produced 13 affirmances via Rule 36, but only 11 of those were in argued cases, or just 30.6%. That’s much lower than in October and September (48% and 61%, respectively). That may suggest that judges are still figuring out what works best—holding argument and then issuing an affirmance without opinion, or cancelling argument and drafting a short affirmance. Or it may just be noise—the numbers here are all still pretty small.Those two cases where the Court affirmed without opinion and without argument were also noteworthy. Although we’ve seen one or two of those already this year, they’re still pretty rare. The ones last month came from two different panels—one from Panel J (Newman, Moore, and Hughes), and one from Panel D (Moore, Reyna, and Taranto). In fact, the Rule 36 affirmance from Panel D issued just four minutes (at 10:07 am) after the case was formally submitted on the briefs (at 10:03 am) on the morning of the originally scheduled argument. The Court definitely didn’t leave anyone waiting for its decision on that one!Looking forward to December, the Court cancelled argument in 16 out of 55 cases originally scheduled for oral argument (29%), which is pretty on par with November. The Court also looks to be continuing its trend of cancelling appeals from the PTAB at a higher rate than appeals from district court—so far, it has cancelled argument in 6 out of 15 PTAB appeals but only 4 out of 18 district court appeals. Check back next month for a full run-down of December.Finally, here are some additional statistics from the November sitting:Total cases: 36 arguments (and 19 counseled cases submitted on the briefs)Oldest case: In re: Advanced Media Networks, LLC, No. 19-1766 (docketed April 12, 2019; 573 days from docketing to argument).Quickest case: Baggage Airline Guest Services v. Roadie, Inc., No. 20-1540 (docketed Mar. 6, 2020; 241 days from docketing to argument)PTAB cases: 7 arguments (and 6 counseled cases submitted on the briefs)District court cases: 11 arguments (and 3 counseled cases submitted on the briefs)Rule 36 affirmances: 13 (11 in argued cases, 2 in counseled cases submitted on the briefs; 5 from district court, 4 from the PTAB, and 1 each from the MSPB, ITC, CAVC, and BCA)Number of argument days by judge:<ul><li>Prost: 3</li><li>Newman: 3</li><li>Mayer: 0</li><li>Plager: 0</li><li>Lourie: 4</li><li>Clevenger: 1</li><li>Schall: 2</li><li>Bryson 1</li><li>Linn: 0</li><li>Dyk: 4</li><li>Moore: 3</li><li>O’Malley: 4</li><li>Reyna: 4</li><li>Wallach: 3</li><li>Taranto: 4</li><li>Chen: 3</li><li>Hughes: 3</li><li>Stoll: 3</li></ul>

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.

November Oral Argument Recap

Thanksgiving has come and gone, and we’ve all hopefully had a chance to ponder what we’re thankful for (including that a wild 2020 is about to close). Next week

November Oral Argument Recap

Before October is out the door, we wanted to take a moment to review the Federal Circuit’s sitting earlier this month.Looking at statistics from the October sitting, the same two things we noticed last month stood out to us again.  First, the Court continues to cancel far fewer arguments now than it did earlier this year.  We’ve seen the rate of argument cancellations plummet from 55% in July and 46% in August to 22% in September and, now, 21% in October.Second, as the number of cancelled arguments stays low, the Court number of Rule 36 summary affirmances stays high.  This month, 48% of the argued cases were summarily affirmed—which is not quite as high as last month’s 61% whopper, but still higher than pre-pandemic times (38% from November to March) and earlier in the pandemic (less than 30% from June through August).We thought that this might reflect the Court’s increasing comfort with telephonic arguments, which may have led it to hold argument even in cases that aren’t particularly close.  But a peek ahead at the November sitting suggests the first trend—the low cancellation rate—may not have been a real trend after all.  A much higher portion of the arguments in November, 59%, have already been cancelled.  As to those November cases, a few things to note:<ul><li>PTAB cases remain the relative losers on the oral argument front, getting cancelled in 6 out of 13 cases (46%).  That’s generally consistent with what we’ve seen throughout the pandemic.</li><li>District court, Court of Federal Claims, and Board of Contract Appeals cases fared much better—if you want argument—getting cancelled at a 21% rate (4 out of 19).</li><li>Veterans cases came in at 50-50, with 4 cases argued and 4 cases cancelled.</li></ul>We’ll have to wait and see which was the blip in the radar:  the low cancellation rates in September and October or the higher rate in November.Here are some additional statistics from the Court’s October sitting:Total cases: 33 arguments (and 7 counseled cases submitted on the briefs) Oldest case: Military-Veterans Advocacy v. Secretary of Veterans Affairs, No. 19-1600 (docketed Feb. 24, 2019; 591 days from docketing to argument).Quickest cases: NetSoc, LLC v. Quora, Inc., No. 20-1430 , and NetSoc, LLC v. Oath Inc., No. 20-1437 (docketed Jan. 31, 2019; 249 days from docketing to argument)PTAB cases: 6 arguments (and 2 cases submitted on the briefs)District court cases: 15 arguments (and 3 cases submitted on the briefs)Rule 36 affirmances: 16 (all in argued cases; 5 from district court, 5 from the PTAB, 2 from the CFC, 2 from the CAVC, 1 from TTAB, 1 from BCA).Number of argument days by judge:<ul><li>Prost: 4 </li><li>Newman: 3</li><li>Mayer: 0</li><li>Plager: 0</li><li>Lourie: 4</li><li>Clevenger: 1 </li><li>Schall: 0</li><li>Bryson: 1</li><li>Linn: 0</li><li>Dyk: 3 </li><li>Moore: 2        </li><li>O’Malley: 0</li><li>Reyna: 2 </li><li>Wallach: 3</li><li>Taranto: 3 </li><li>Chen: 2 </li><li>Hughes: 2 </li><li>Stoll: 3 </li></ul>

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October Oral Argument Recap

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Before October is out the door, we wanted to take a moment to review the Federal Circuit’s sitting earlier this month.
Looking at statistics from the October si

October Oral Argument Recap

Now that we’re just over two weeks out from arguments in the Federal Circuit’s September sitting, it’s time for our monthly oral argument recap.  After taking Thursday and Friday off during its August session, the Court was back to hearing arguments every day during September court week, with a total of 10 panels.Two statistics from the September sitting stood out to us.  First, as we previously <a href="https://federalcircuitry.mofo.com/topics/Observations-on-Cancelled-Argument-Cases--Appellees-Always-Win-Right--Mostly.html" target="_blank">mentioned</a>, the Court canceled argument in only 22% of its September cases.  That’s lower than any previous month since the Court went “remote”—e.g., 36% in <a href="https://federalcircuitry.mofo.com/topics/200619-oral-argument-recap-june-oral-argument-recap.html" target="_blank">June</a>, 55% in <a href="https://federalcircuitry.mofo.com/topics/200724-july-oral-argument-recap.html" target="_blank">July</a>, and 46% in <a href="https://federalcircuitry.mofo.com/topics/200821-august-oral-argument-recap.html" target="_blank">August</a>.  (Disclosure:  One of our cases was among those submitted on the briefs without argument in September.)Second, the Court issued Rule 36 summary affirmances in a whopping 61% of its September argued cases, including 60% of argued district court cases and 67% of argued PTAB cases.  That’s much higher than the Ruloe 36 figures from June (29%), July (29%), and August (23%).  And it’s even higher than the Rule 36 rate from the pre-pandemic days when the Court heard oral argument in almost every counseled case.  According to our data, only 38% of all cases decided between November and March were disposed of under Rule 36.  The numbers were higher for district court cases (42%) and PTAB cases (58%), but still lower than the corresponding figures from this September.Why did the Court cancel fewer arguments and issue more Rule 36 affirmances this month?  Your guess is as good as ours.  It will be interesting to see whether these trends continue in future months or whether September turns out to be an anomaly.  Remote arguments will continue in October (and perhaps beyond).  The Court has already canceled argument in 7 of its October cases.  But since more cases were initially scheduled for argument in October, and some panels may not have made their cancellation decisions yet, it’s probably too soon to compare October’s numbers to September’s.Here are some additional statistics from the Court’s September sitting:Total cases: 28 arguments (and 8 counseled cases submitted on the briefs)Oldest case: Free Stream Media Corp. v. Alphonso Inc., No. 19-1506 (docketed Feb. 4, 2019; 576 days from docketing to argument)Quickest case: Amarin Pharma, Inc. v. Hikma Pharmaceuticals USA, No. 20-1723 (docketed Apr. 21, 2020; 134 days from docketing to argument)PTAB cases: 6 arguments (and 3 cases submitted on the briefs)District court cases: 15 arguments (and 2 cases submitted on the briefs)Rule 36 affirmances: 17 (all in argued cases; 9 from district court, 4 from the PTAB, 2 from the CFC, and 2 from the CIT)Number of argument days by judge:<ul><li>Prost: 3</li><li>Newman: 3</li><li>Mayer: 0</li><li>Plager: 0</li><li>Lourie: 0</li><li>Clevenger: 1</li><li>Schall: 1</li><li>Bryson: 0</li><li>Linn: 2</li><li>Dyk: 3</li><li>Moore: 1</li><li>O’Malley: 4</li><li>Reyna: 4</li><li>Wallach: 0</li><li>Taranto: 3</li><li>Chen: 2</li><li>Hughes: 2</li><li>Stoll: 2</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>

September Oral Argument Recap

We are just over two weeks out from arguments in the Federal Circuit’s September sitting.  As usual, we provide some statistics from the Court’s argument sessio

September Oral Argument Recap

We are two weeks out from arguments in the Federal Circuit’s August sitting, so it is time for our monthly oral argument recap. As it has done for the past several years, the Court heard arguments on only three days in August, with a total of six panels.The Court canceled oral argument in 11 of the 24 cases (about 46%) originally scheduled for argument in August. That’s a somewhat lower cancellation rate than in July (55%), but a greater proportion of cancelled arguments than in June (35%). Another notable statistic: in August, the Court cancelled oral argument in about half its cases from both the PTAB and district courts. That marks a departure from the trend in previous months of telephonic hearings, in which the Court cancelled argument more often in PTAB appeals than in district-court appeals (as we pointed out <a target="_blank" href="https://federalcircuitry.mofo.com/topics/200724-july-oral-argument-recap.html">here</a>). Also of note, 5 of the Court’s 13 August arguments (about 38%) were in non-patent cases. That’s roughly in line with the 41% non-patent arguments figure from July but slightly higher than the 31% figure from June. Of course, the smaller sample size in August makes it a bit more difficult to attribute significance to these differences.Here are some additional statistics from the Court’s August sitting:Total cases: 13 arguments (and 11 counseled cases submitted on the briefs)Oldest case: Google LLC v. Blackberry Ltd., No. 19-1568 (docketed Feb. 21, 2019; 529 days from docketing to argument)Quickest case: Simpson Strong-Tie Company v. United States, No. 19-2403 (docketed Sept. 17, 2019; 322 days from docketing to argument)PTAB cases: 5 arguments (and 6 cases submitted on the briefs)District court cases: 3 arguments (and 3 cases submitted on the briefs)Rule 36 affirmances: 3 (all in argued cases from the PTAB)Number of argument days by judge:<ul><li>Prost: 2</li><li>Newman: 0</li><li>Mayer: 0</li><li>Plager: 0</li><li>Lourie: 2</li><li>Clevenger: 0</li><li>Schall: 0</li><li>Bryson: 1</li><li>Linn: 0</li><li>Dyk: 0</li><li>Moore: 2</li><li>O’Malley: 3</li><li>Reyna: 2</li><li>Wallach: 1</li><li>Taranto: 1</li><li>Chen: 2</li><li>Hughes: 0</li><li>Stoll: 2</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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August Oral Argument Recap

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Excerpt: We are two weeks out from arguments in the Federal Circuit’s August sitting. As usual, we provide some statistics from the Court’s argument session and

August Oral Argument Recap

We are two weeks out from arguments in the Federal Circuit’s July sitting. As usual during the summer months, the Court heard somewhat fewer cases in July than during a typical sitting. The Court continued its COVID-19-era practice of submitting some cases on the briefs and holding oral argument by telephone in the remaining cases. In July, the Court canceled oral argument in 21 of the 38 cases (about 55%) originally scheduled for argument. As we’ve <a href="https://federalcircuitry.mofo.com/topics/200722-september-calendar-released-expect-the-submission-trend-to-continue.html" target="_blank">previously</a> observed, that marks a reversal of the trend from the first three months of telephonic arguments, when the percentage of cases in which the Court canceled argument declined each month—from 64% in April to 54% in May and 35% in June.Another notable trend is that the Court continues to cancel argument more often in appeals from the Patent Trial and Appeal Board than in appeals from district courts. For instance, in May, the Court canceled argument in 75% of its cases from the PTAB but only 47% of its cases from district courts. And in June, the Court canceled argument in 50% of its PTAB cases but only 29% of its district court cases. Likewise, in July, the Court canceled argument in 77% of its cases from the PTAB but only in 33% of its cases originating in district court. Perhaps this disparity can be attributed to the fact that many issues in PTAB appeals are reviewed for substantial evidence, a standard highly deferential to the agency’s decision and unfavorable for appellants. Thus, there may be fewer close cases from the PTAB where oral argument would help the Federal Circuit judges. By contrast, district court cases involve the entire spectrum of patent-law issues and are arguably more likely to raise novel legal issues that warrant oral argument.Here are some additional statistics from the Court’s July sitting:Total cases: 17 arguments (and 21 counseled cases submitted on the briefs)Quickest case: Land Shark Shredding, LLC v. United States, Nos. 20-1230, 20-1231 (docketed Dec. 10, 2019; 211 days from docketing to argument)PTAB cases: 3 arguments (and 10 cases submitted on the briefs)District court cases: 6 arguments (and 3 cases submitted on the briefs)Rule 36 affirmances: 5 (all in argued cases)Number of argument days by judge:<ul><li>Prost: 4</li><li>Newman: 3</li><li>Mayer: 0</li><li>Plager: 0</li><li>Lourie: 2</li><li>Clevenger: 1</li><li>Schall: 1</li><li>Bryson: 1</li><li>Linn: 1</li><li>Dyk: 1</li><li>Moore: 2</li><li>O’Malley: 4</li><li>Reyna: 2</li><li>Wallach: 0</li><li>Taranto: 0</li><li>Chen: 3</li><li>Hughes: 3</li><li>Stoll: 2</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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July Oral Argument Recap

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We are two weeks out from arguments in the Federal Circuit’s July sitting. As usual during the summer months, the Court heard somewhat fewer cases in July than 

July Oral Argument Recap

We are two weeks out from arguments in the Court’s June sitting. Here is the after-action report:Total cases: 35 arguments (and 20 counseled cases submitted on the briefs)Oldest case: Peerless Industries, Inc. v. Crimson AV, LLC, No. 18-2021 (docketed May 30, 2018; 733 days from docketing to argument)Quickest case: Takeda Pharmaceuticals U.S.A. v. Alkem Laboratories Limited, No. 20-1545 (docketed Mar. 9, 2020; 91 days from docketing to argument)PTAB cases: 7 arguments (and 7 cases submitted on the briefs)District court cases: 17 arguments (and 7 cases submitted on the briefs)Rule 36 affirmances: 10 (and 1 in a case submitted on the briefs)Number of argument days by judge:<ul><li>Prost: 4</li><li>Newman: 4</li><li>Mayer: 1</li><li>Plager: 0</li><li>Lourie: 3</li><li>Clevenger: 1</li><li>Schall: 2</li><li>Bryson: 1</li><li>Linn: 0</li><li>Dyk: 4</li><li>Moore: 2</li><li>O’Malley: 3</li><li>Reyna: 3</li><li>Wallach: 2</li><li>Taranto: 3</li><li>Chen: 3</li><li>Hughes: 4</li><li>Stoll: 2</li></ul>Perhaps the most notable event during the Court’s June sitting was the late-Thursday-night cancellation of Friday arguments. The courthouse was closed Friday to permit officials to prepare for protests expected that weekend in Lafayette Square, a park adjacent to both the Federal Circuit and the White House. The Friday arguments were rescheduled for the following Wednesday. (Note: One of our editors, Seth Lloyd, was a recipient of the 10 PM email the night before oral argument saying argument was being rescheduled, which he said ended up being “no big deal” for his preparation.)The June sitting statistics also demonstrate the Court’s increased use of Rule 36 affirmances as its telephonic arguments continue. In the Court’s March sitting—its first round of telephonic arguments—it issued only five Rule 36 affirmances in argued cases. By contrast, the Court’s June sitting has resulted in ten Rule 36 affirmances after argument so far, double the March figure. Of those ten cases, four were from district courts, five came from the U.S. Patent and Trademark Office, and only one was a non-patent case.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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June Oral Argument Recap

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We are two weeks out from arguments in the Court’s June sitting. Here is the after-action report:
Total cases: 35 arguments (and 20 counseled cases submitted on