Academic journal article American University Law Review

The Landscape of Modern Patent Appeals

Academic journal article American University Law Review

The Landscape of Modern Patent Appeals

Article excerpt

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 postAmerica Invents Act world, while also hinting at areas for further study.


Statistics about the U.S. Court of Appeals for the Federal Circuit are plentiful. Reliable, transparent, and clear statistics are not.1 This Article and its accompanying database aim to change the status quo by providing a high quality, publicly accessible, and user-friendly source for quantitative data about the Federal Circuit. Drawing upon this powerful database, named the Compendium of Federal Circuit Decisions2 ("Compendium"), this Article provides key metrics to help answer questions about how the Federal Circuit is responding in the post-America Invents Act3 world of patent law.

The Compendium was created to solve two problems plaguing empirical studies of the Federal Circuit. First, almost every study of Federal Circuit decisions painstakingly recreates a basic set of data- case name, appeal number,judges, precedential status-before adding its own set of unique observations.4 This process is redundant and labor-intensive, taking time and resources away from the actual focus of the study.5 Second, variations in data sources and nomenclature among researchers make it challenging, and sometimes impossible, to conduct cross-study comparisons.6 While researchers often desire to reproduce each other's results or combine their data sets with previous ones to produce more complex analyses, the fact that researchers collect data from different sources and record it in different ways makes it difficult for subsequent researchers to perform these tasks.7

The Compendium addresses these issues by providing a high-quality, well-documented data set together with a standardized data recordation framework. That data set includes information about every document released on the Federal Circuit's website-most notably, opinions and Federal Circuit Rule 36 affirmances. Information about each document is recorded in a series of searchable fields, and data can be easily exported for further analysis. In an effort to maximize transparency and encourage collaboration, this data set is available for future researchers to draw upon and, ideally, contribute to. …

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