Is it time to abolish the Federal Circuit?
Recently, I had a conversation with a few well-known Federal Circuit observers. They told me that the Federal Circuit has been doing very little in recent months to do with patents. If this is true, then why do we have the Federal Circuit?
So instead of letting the anecdotal information lead me to a potentially incorrect conclusion, I went on the Federal Circuit website to create a spreadsheet listing every action taken by the Federal Circuit over the last six month, starting April 1, 2024. In the last six-month period, only 6.3% were precedential decisions on patents. One of these allegedly precedential decisions consisted in a simple order to rehear an entire case. In the last six-month period, only 9.3% were non precedential opinions in cases of patents. This means that only 15,6% of the Federal Circuit’s work is devoted to patent cases in which an opinion, whether precedential or not, is written. Federal Circuit actions consisting of Rule 36–one-sentence decisions affirming the court below or tribunal were 9.1%. 15.2% of Federal Circuit actions were orders of one page accepting or ordering dismissal because the case was settled or a party failed to file a brief. In the meantime, 7.7% of Federal Circuit decisions were precedential in non-patent case, leaving 52.4% as non-patent nonprecedential orders, opinions, or actions. Even if we assume that all Rule 36 decisions relate to patent cases, this means that only 24.7% are Federal Circuit actions, which include opinions, orders or decisions. Meanwhile, 60.1% are Federal Circuit actions relating to non-patent case. The court has 12 full-time and 7 senior judges. Judge Newman was suspended indefinitely, but many in the industry were unaware that Judge Plager had also been sidelined, as Chief Judge Moore had taken away his office and computer, as well as his clerks. He hasn’t assigned him any cases in several years. This translates to 5.5 precedential patent decisions per full-time equivalent judge on a yearly basis. 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. In the last two decades, we have seen an inexplicable usurpation with the virtual impeachment 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 an expert on patent law, innovation policy and patent law. Mr. Quinn was twice named as one of the 50 most influential people in the world
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