Last week I took a look at affirmance rates—both in general and excluding Rule 36s (see It's Two Weeks After Your Argument, And You've Heard Nothing. What Does That Mean). This week I decided to see what things have been like for cases submitted since the Federal Circuit went to telephonic arguments. My first thought was that the affirmance rates would be about the same for appeals during the current era of the telephonic argument compared to our overall numbers. Although I wondered if our sample size would to be too small, MoFo's appellate paralegal, Chad Borgman, found that over 500 appeals (including more than 250 patent appeals) have been decided in cases submitted since the pandemic forced the Court to go remote.
So what did I find out: not to bury the lede, but the numbers were not what I expected. The significant gap in affirmance rates when comparing patent owner appeals and non-patent owner appeals mostly disappeared—that is, a significantly higher percentage of appeals are being affirmed, with non-patent owners being the relative losers. (I offer a possible explanation that may make this a phantom, timing-based disparity, with one big "but see" at the end.)
My first reaction was: wow, these affirmance rates are way higher than I expected—particularly for IPR petitioners in PTAB appeals who now lose more than patent owners. By comparison, here are the numbers we crunched last week, which looks at all appeals decided from November 2019 to February 2021:
So what explains the difference? Are cases being affirmed more since the Court went remote? Possibly. But one alternative—and perhaps likely—explanation is that, despite our sample size being decent-sized, looking at appeals based upon submission date skews more toward affirmances. In other words, if we're looking at appeals submitted and decided over slightly less than a year, the cases submitted and decided in the past few sessions (think the December and January sessions) likely skew toward affirmance. Those decisions may be Rule 36s (which by definition are affirmances) or short non-prec opinions in unargued cases (which tilt toward affirmance).
Just to finish the analysis, I took out Rule 36s from the data. The affirmance rate of course shifts downward, because you're taking out a chunk of affirmances.
But not surprisingly, the rates don't shift all that dramatically. There have been fewer Rule 36s since the Court went remote, as about a quarter to a half of oral arguments get cancelled each month (with cancelled argument cases being prime candidates for Rule 36 affirmances and instead often resulting in non-prec affirmances (see our post No Argument, No Opinion—A Quick Look At Unargued Rule 36 Decisions During The Pandemic)).
By now you may be wondering if there's anything to glean from these numbers... The stats suggest a higher affirmance rate, but there's an explanation that suggests that the actual affirmance rate may not, in fact, be higher.
That's fair: about halfway through writing this post, I had my own doubts. But one additional stat maybe suggests that the higher affirmance rate for patent appeals may not be entirely explained by mere timing issues: the affirmance rate for non-patent cases. As I noted last week, the affirmance rate for non-patent cases is 63.7% and 59.1% once Rule 36s are removed. Based on the above, one would expect that rate to be higher. Not so. It's a little lower: since the Court went remote, non-patent cases have been affirmed 62.8% of the time and 58.9% of the time with Rule 36s. And while that, too, might be explained (after all, non-patent cases, on average tend to be decided quicker) it at least lends some support to the hypothesis that patent cases are being affirmed at a slightly higher rate since the Court went remote.
Originally Published by Morrson Foerster, February 2021
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