The Landscape of Modern Patent Appeals
67 Am. U. L. Rev. 985 (2018).
*Professor, Ferguson-Carlson Fellow in Law, and Director of the Innovation, Business and Law Program, University of Iowa College of Law. A project of this nature would not be possible without the support of many others. Thanks to Alexander M. Zajicheck and Tyler W. Olson for their assistance in creating the Compendium interface; Rhonda DeCook and Louis Constantinou for their critical role in bringing this project to its current state; and Sarah Jack, Brett Winborn, Alex Lodge, and Rajul Patel for reading and coding the thousands of Federal Circuit decisions and helping to edit this Article. Only routine research support and resources from the University of Iowa have been used in the creation of the Compendium to date. Thanks also to David Schwartz, Paul Gugliuzza, Chris Seaman, and Mark Lemley (among many others) for feedback on the Compendium and earlier drafts of this Article.
Quantitative studies of the U.S. Court of Appeals for the Federal Circuit’s patent law decisions are almost more numerous than the judicial decisions they examine. Each study painstakingly collects basic data about the decisions—case name, appeal number, judges, precedential status—before adding its own set of unique observations. This process is redundant, labor-intensive, and makes cross-study comparisons difficult, if not impossible. This Article and the accompanying database aim to eliminate these inefficiencies and provide a mechanism for meaningful cross-study comparisons.
This Article describes the Compendium of Federal Circuit Decisions (“Compendium”), a database created to both standardize and analyze decisions of the Federal Circuit. The Compendium contains an array of data on all documents released on the Federal Circuit’s website relating to cases that originated in a federal district court or the U.S. Patent and Trademark Office (USPTO)—essentially all opinions since 2004 and all Rule 36 affirmances since 2007, along with numerous orders and other documents.
This Article draws upon the Compendium to examine key metrics of the Federal Circuit’s decisions in appeals arising from the district courts and USPTO over the past decade, updating previous work by scholars who studied similar populations during earlier time periods and providing new insights into the Federal Circuit’s performance. The data reveal, among other things, an increase in the number of precedential opinions in appeals arising from the USPTO, a general increase in the quantity—but not necessarily the frequency—with which the Federal Circuit invokes Rule 36, and a return to general agreement among the judges following a period of substantial disuniformity. These metrics point to, on the surface at least, a Federal Circuit that is functioning smoothly in the post-America Invents Act world, while also hinting at areas for further study.