Timing Precedential Patent Decisions at the Federal Circuit
December 18, 2018

“When will the court decide my case?” This is one of the most frequent questions we hear once a case is argued before the Federal Circuit. Unfortunately for the inquirer, there is never a certain answer because there is no set time limit for the court’s decisions. While the court typically issues non-precedential decisions promptly within 1-30 days of argument, the time for issuance of precedential decisions varies greatly. This article summarizes data on time to decision for precedential patent cases from 2014 to 2017, including some of the factors that may impact time to decision such as the identity of the authoring judge and existence of a separate dissent or concurrence. Look for updated data in the Fourteenth Edition of Patents and the Federal Circuit.

I. Types of Decisions Issued By the Federal Circuit

The Federal Circuit’s opinions are generally divided between non-precedential and precedential decisions. The vast majority of the court’s opinions are non-precedential and can be further divided into the following three categories:

  1. Non-precedential Rule 36 summary affirmances: The court may choose to issue a 1-sentence summary affirmance in argued cases where any one of the five conditions enumerated in Fed. Cir. Rule 36 applies and a written opinion would not have precedential value. These decisions typically issue within 1 week of argument, and often within just a day. But like just about everything in law, there are exceptions to the 1-week rule of thumb for issuance of these affirmances.[i]
  2. Non-precedential decisions in non-argued cases: With the exception of frivolous appeals,[ii] the court consistently issues written opinions in cases that are not argued. These opinions tend to be 2-5 pages in length and are common in the court’s docket of pro se appeals from the U.S. Court of Veterans Claims and U.S. Merit System Protection Board.
  3. Non-precedential decisions in argued cases: These decisions may be similar in length and content to precedential decisions and typically issue within 1 month of the date argued.

There is good reason for the court taking longer to issue precedential decisions than the above types of non-precedential decisions. The Federal Circuit’s policy is to limit precedent to decisions that meet specific criteria, e.g., test cases, issues of first impression, new rules of law, clarification of an existing rule of law, actual or apparent conflicts in the court’s precedent, etc.[iii] “The purpose of a precedential disposition is to inform the bar and interested persons other than the parties.”[iv] To fulfill that purpose, “the authoring judge circulates the opinion and any concurring or dissenting opinions, with a transmittal sheet, to each judge” on the full court who then “will have seven working days (twelve working days for opinions circulated during the summer period) to review.”[v]

II. Time for Issuance of Precedential Patent Decisions

Below is a snapshot of the average time from argument to issuance of precedential decisions for patent cases at the Federal Circuit from 2014 to 2017. En banc decisions, decisions resulting from the return of a case after a Supreme Court order granting certiorari, vacating, and remanding (“GVR”), and decisions reissued in revised form after a panel grant of rehearing were excluded from the data set used to calculate time to decision.

As shown above, the average time to decision for each of these four years was: 127 days (2014); 120 days (2015); 109 days (2016); and 118 days (2017). Across all four years, the average time to decision at the Federal Circuit for precedential patent cases was 119 days (i.e., approximately 4 months) and the median was 98 days (i.e., approximately 3.3 months).

Outliers certainly exist and are not excluded from the above data set. The cases with the longest time from argument to decision in each of the four years covered were:

  • v. SAP AG[vi] (2014): 657 days;
  • JVC Kenwood Corp. v. Nero, Inc.[vii] (2015): 439 days;
  • Cardpool, Inc. v. Plastic Jungle, Inc.[viii] (2016): 334 days; and
  • Bosch Automotive Service Solutions, LLC v. Matal[ix] (2017): 533 days.

Often there is a ready explanation for decisions taking such a long time to issue from argument. For example, Bosch involved an appeal from the Patent Trial and Appeal Board’s (“PTAB”) denial of a motion to amend, which issued shortly after the Federal Circuit’s en banc decision on the PTAB’s standard for motions to amend in Aqua Products, Inc. v. Matal, suggesting that the panel may have held the decision until after Aqua Products was resolved.[x]

However, there is not always an obvious explanation for why particular decisions take substantially longer than average to issue. Although v. SAP AG[xi] covered multiple issues, including jurisdiction, venue, claim construction, and indefiniteness issues, the last of which drew a dissent from Judge Wallach, the court routinely decides cases of similar complexity in far less than 657 days.[xii] Both the JVC and Cardpool panels affirmed 3-0 in a straightforward single-issue decision, one from a grant of summary judgment (JVC) and the other from a denial of a motion under Fed. R. Civ. P. 60(b) (Cardpool). For the public, which is not privy to the judges’ deliberations, the reason some decisions take exceptionally long under the court’s standards is destined to remain unclear.

III. The Judge With the Most Precedential Patent Decisions From 2014 to 2017 Is . . .

Our data indicates that Judge Moore authored the most non-en banc precedential patent decisions from 2014 to 2017, with 45 decisions total. Chief Judge Prost closely followed with 44 decisions, 18 of which issued in 2014.[xiii] Judges Taranto, Dyk, Lourie, and Reyna each follows closely.

IV. Relative Time to Decision by Judge

The following chart illustrates how dissenting and concurring opinions impacted the time to decision for each of the six judges who authored the most precedential patent decisions between 2014 and 2017.

Even within this subset of the court, the average time to decision from argument varied greatly. For example, the average time to decision for Judge Reyna was more than twice that of Judge Taranto. A few other interesting trends to note:

  • Of these six judges, the length of time to decision for opinions authored by Judge Reyna appears to have been the most affected by the presence of a dissenting or concurring opinion. On average, his time to decision was around 152 days; with dissenting or concurring opinions, his average was extended by 76 days. By contrast, the presence of dissenting and concurring opinions added only 15 days to the time to decision for Judge Lourie.[xiv]
  • Judges Prost and Moore shared similar averages for their time to decision, i.e., around 104 and 109 days, respectively, after oral arguments.
  • Judges Taranto and Lourie had the fastest average times to decision (approximately 61 and 75 days, respectively).

It is important to note that this data set does not account for the relative complexity of the cases each judge decided. This data set also does not include the court’s non-patent cases, many of which involve complicated issues. It is entirely possible that a judge whose average time to decision for a precedential patent decision was relatively long may have a very short average time to decision for other areas’ of the court’s jurisprudence in the same time period.

V. So . . . What is the Answer? When will the Court Decide My Case?

The answer we give to that original question of “When will the court decide my case?” is always “it depends.” Once enough time has elapsed to make a non-precedential decision unlikely, the answer we give is “approximately 3 months,” but with a big asterisk. Our 3-month approximation is consistent with the 98-day median for our data adjusted for the fact that our data includes outliers like elcommerce. The asterisk is necessitated by wide variability possible around that median. The make-up of the panel and the likelihood of a separate opinion can give you some pointers on whether to adjust up or down from that median, but not much more.

Please look for our data through 2018, including statistics on en banc decisions, in the Fourteenth Edition of Patents and the Federal Circuit (Bloomberg Law, to be published Sept. 2019) by Robert L. Harmon, Cynthia A. Homan, and Laura A. Lydigsen.[xv]

[i] E.g., Nos. 16-2249 (12 days), 17-2571 (15 days), 16-2560 (18 days).

[ii] See, e.g., Arunachalam v. Fremont Bancorp., 672 Fed. Appx. 994 (Fed. Cir. 2017).

[iii] Federal Circuit Internal Operating Procedure (“IOP”) #10, ¶ 4 (Nov. 14, 2008). For a complete listing of the fourteen types of dispositions that qualify for precedential treatment, see IOP # 10, ¶ 4(a)-(o).

[iv] IOP #10, ¶ 2 (Nov. 14, 2008).

[v] Id. at ¶ 5. With respect to non-precedential opinions, “the authoring judge sends the opinion and any concurring or dissenting opinions to the administrative services office (ASO) for copying and delivery to the clerk for issuance.” Id.

[vi] 745 F.3d 490 (Fed. Cir. 2014).

[vii] 797 F.3d 1039 (Fed. Cir. 2015).

[viii] 817 F.3d 1316 (Fed. Cir. 2016).

[ix] 878 F.3d 1027 (Fed. Cir. 2017) (citing Aqua Prods., Inc. v. Matal, 872 F.3d 1290 (Fed. Cir. 2017) (en banc)).

[x] 878 F.3d at 1346.

[xi] 745 F.3d 490.

[xii] Judge Pauline Newman authored the majority opinions in elcommerce, JVC, and Cardpool.

[xiii] Our data indicates that 11 of Chief Judge Prost’s 2014 precedential patent decisions issued after she succeeded former Chief Judge Rader on May 31, 2014.

[xiv] These calculations were determined by taking each judge’s average time to decision with a dissent or concurrence and subtracting the judge’s overall average time to decision.

[xv] The authors would like to thank the many attorneys of Brinks Gilson & Lione who have contributed to updating Patents and the Federal Circuit between 2014 and the present. The data they compiled over the years served as the foundation for this article. In addition, thanks goes to William H. Burgess.

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