Is it Time to Abolish the Federal Circuit?

This week we will change things up a bit to allow me to do a little ranting on a topic I’ve been thinking about more and more over the last several years; namely, do we still need, or even want, a Federal Circuit?

Then recently I was having a conversation with several well-known observers of the Federal Circuit. They pointed out to me that in recent months very little of what the Federal Circuit is doing has anything to do with patents at all. If that is true, why do we need the Federal Circuit?

Is it Time to Abolish the Federal Circuit? So, rather than let the anecdotal lead me to a potentially inaccurate conclusion, I went to the Federal Circuit website and create a spreadsheet with every action the Federal Circuit has taken over the last six months, starting with April 1, 2024. And over the last six months, only 6.3% of Federal Circuit actions have been precedential patent decisions. And one of those allegedly precedential decisions was simply an order to rehear a case en banc. And during the last six months only 9.3% of actions by the Federal Circuit were non-precedential opinions in patent cases. So, that means that only 15.6% of what the Federal Circuit is engaged in doing relates to patent cases where any opinion, precedential or otherwise, is written. Rule 36—one sentence decisions affirming the court or tribunal below made up 9.1% of Federal Circuit actions, and 15.2% of actions were one-page orders accepting or ordering dismissal of the appeal either because the case settled or because a party did not file a brief. Meanwhile, 7.7% of Federal Circuit actions have been precedential decisions in non-patent cases, which leaves 52.4% of actions by the Federal Circuit over the last six months being non-patent non-precedential actions, orders or opinions. So even if we assume all Rule 36 decisions are in patent cases, that means only 24.7% of Federal Circuit actions relate to patent cases decisions, opinions or orders, while 60.1% of Federal Circuit actions relate to non-patent cases.

To put this into further perspective, since April 1, the Federal Circuit has issued only 36 precedential decisions in patent cases. The court currently has 12 full-time judges and 7 judges on senior status. However, Judge Newman has been indefinitely suspended, and while many in the industry are unaware, Judge Plager has similarly been sidelined by Chief Judge Moore, who has taken away his clerks, his office, and his computer, and has not assigned him any cases for several years. So, that means 11 full-time judges over this relevant time frame, and with each of six senior judges generally speaking doing one-third of a full-time case load, that leaves 13 full-time equivalent judges. What this translates to on a yearly basis is 5.5 precedential patent decisions per full-time equivalent judge.

If so little of what the Federal Circuit is doing relates to patents, why do we need or want a “patent court”?

Meanwhile, what decisions the Federal Circuit does issue are panel dependent and show not a care in the world about the court’s original mandate, which was to create a unified national patent law and recognize that at least some patents have to be valid and enforced. And now over the last two years we have an inexplicable usurpation of authority with the virtual impeachment of Judge Newman. If these judges are so unfamiliar with basic due process and the opportunity to be fairly heard why should anyone believe they are themselves competent to be judges on any level?

The Federal Circuit is a mess, and it is time to seriously question whether it is needed any more.

To hear this entire conversation, listen wherever you get your podcasts (links here) or visit IPWatchdog Unleashed on Buzzsprout.

Gene Quinn Gene Quinn is a patent attorney and a leading commentator on patent law and innovation policy. Mr. Quinn has twice been named one of the top 50 most influential people [...see more]

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Join the Discussion

6 comments so far.

Anon
October 6, 2024 06:49 am
Raymond Van Dyke,

That is precisely the point that I was going to add.

+1
Raymond Van Dyke
October 5, 2024 04:40 am
With the value of patents growing, litigation by big tech and others drove the cases to the Supreme Court, who chastised the Circuit Judges. Instead of creatively protecting their “turf,” patent jurisprudence, the judges meekly submitted, doing a disservice to us all and failing their mission. They have lost their bearing and are adrift of purpose it seems.
JTS
October 3, 2024 04:22 pm
Have been saying this for a long time. For one, the CAFC has no “competitor”; it’s holdings are not subject to criticism by a peer court. There’s not process of Darwinian competition among legal theories and no way for us to see how different legal rules play out in different circuits. We have no limited ability to learn and evolve patent law. For two, the most important thing for any appellate judge is sound legal reasoning skill. We should want patent issues decided by judges that have the skill to make decisions in all areas of law. Sometimes, being an “expert” in something creates blindspots. Three, there’s obviously a capacity problem when all appeals have to go through the same court.
Philip P. Mann
October 1, 2024 12:02 pm
Thank you, Mr. Quinn, for raising this important question — one that should, but likely won’t, be addressed seriously by Congress.

Based on forty years of actual experience rather than high hopes, it is clear that the Federal Circuit has failed in its principal mission to bring uniformity, clarity and predictability to patent law.

Under the leadership of Judges Markey and Rich, the Federal Circuit, over the first 15 years or so of its existence, did, indeed, largely achieve the goals intended and hoped for by the court’s founding. It was possible then to read the statutes and case law, have a reasonably clear view of how matters were likely to play out in court, and advise clients accordingly. Perhaps more importantly, it was also possible for newcomers with good ideas but little capital actually to develop new technologies without the near certainty that established powers would, when convenient, simply steal their ideas with little recourse.

Today the useful body of law created by the early CAFC has been cast aside and we are now left with the ludicrous reality that the Supreme Court has to be called in to resolve conflicts among the panels. That, combined with Rule 36 practice that enables the court simply to ignore its own precedent when convenient, means that the entire patent system is in the hands of a dozen or so mostly political hacks that neither care about creating a coherent body of law nor demonstrate the ability to do so. It would be funny if it did not result in serious harm for the people and businesses that have to live with the consequences of the court’s decisions.

One of my standard lines in a closing argument to a jury is that they, collectively, have more common sense than anyone else in the courtroom. Borrowing from that, it is likely that the hundreds of judges of the various circuit courts collectively have more wisdom than the small group now making up the Federal Circuit who, to date, have shown little evidence of either clear thought or honest adherence to principle.

Thanks again for your article. It is indeed time to consider this serious and important question.
concerned
October 1, 2024 05:28 am
My case had a precedential opinion, and my story was in the same book as Josh Malone’s story.

I never received my patent; however, I did receive three different reasons from three different groups as to why I should not receive a patent. If the court’s case law was so clear, these groups would not be all over the place in denying my application. Like the kindergarten game of tag at recess, just make up the rules as we go.

I was told that I met the law that had been written by Congress, so I am left with my own conclusion as to what really is going on.
Josh Malone
September 30, 2024 08:24 pm
Without the Federal Circuit, who will big tech rely on to make patents harder to enforce?