The Federal Circuit's Summary Affirmance Habit

By Hoffman, Andrew | Brigham Young University Law Review, March 1, 2018 | Go to article overview

The Federal Circuit's Summary Affirmance Habit


Hoffman, Andrew, Brigham Young University Law Review


To say the United States Court of Appeals for the Federal Circuit ("Federal Circuit") is unique among appellate courts is an understatement. whereas other federal courts of appeals are limited by region and function as courts of general jurisdiction, the Federal Circuit's docket is governed primarily by subject matter.1 Although the Federal Circuit's jurisdiction encompasses adjudicatory authority in such areas as government contracts and labor disputes, it was primarily founded to oversee the development of patent law.2

In the 1970s, the Carter administration recognized that confusion in patent law was crippling the country's economic growth.3 inconsistency among the regional circuits revealed the need for uniformity and consistency.4 The solution to these problems was the creation of a national court with exclusive subject matter jurisdiction over patent appeals.

Yet since its creation in 1982, the Federal Circuit has been a source of controversy, with lawyers, academics, and judges criticizing the court's alleged inconsistencies.5 Many of these criticisms are related to the development of patent doctrine and the decisionmaking of individual judges.6 Little has been written concerning the court's procedural habits. Among the court's interesting procedural behaviors is its regular use of Rule 36 summary affirmance, or affirmance of the lower court without an opinion.7 While academics have considered the court's summary affirmance rate from a statistical viewpoint,8 the reasons for and practical implications of this practice have garnered much less attention.9

In this Comment, I analyze the Federal Circuit's Rule 36 practice and plausible explanations for the court's proportionally high use of summary affirmance. The court may very well be using summary affirmance properly in response to a growing and complex caseload. But based on a review of summarily affirmed cases, this seems unlikely. Rather, it appears that the Federal Circuit is using Rule 36 improperly and, consequently, hindering the development of patent law.10 Although summary affirmance is a necessary tool the Federal Circuit should arguably employ to handle its case load,11 I argue the court should avoid shying away from unresolved questions and instead look to other solutions that would have lessdamaging effects on development of the law.

This Comment proceeds in five parts. In Part I, I provide background on the progression of patent law over the last half-century and point out questions left unanswered by recent statutory reform. Although I focus on questions created by the America Invents Act, the discussion that follows is applicable to all legal questions presented before the Federal Circuit. in Part ii, i discuss summary disposition generally and detail the primary benefits and drawbacks of the Federal Circuit's use of Rule 36. Specific cases are explored as a means of revealing the potentially damaging effects of summary affirmance. in Part iii, i explore plausible explanations for why summary affirmance is being used at such a high rate. Some alternative means of controlling the court's docket are considered in Part iv. Part v concludes.

I. Background

The creation of the Federal Circuit came after a decade of heated debate. An overburdened judiciary and a need for greater uniformity in certain areas of federal law prompted discussion of creating a new federal court of appeals.12 Yet there were concerns that a specialized court would become subject to tunnel vision, produce less than thorough opinions, and be at risk of capture by interest groups.13 Ultimately, Congress decided to merge the United States Court of Customs and Patent Appeals and the appellate division of the United States Court of Claims to create a court with specialized subject matter jurisdiction, including jurisdiction over all patent appeals from the district courts.14

Congress hoped that endowing the court with exclusive jurisdiction over patent appeals would bring about uniformity in the law. …

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