The Federal Circuit had done a nice job summarizing their outcomes for the past year. Looking at cases decided on the merits, patent cases arising from district court were affirmed 55% of the time; affirmed-in-part 24% of the time; and reversed 19% of the time.
Max,
While the reversal rate is low, in how many cases did the CAFC change the claim construction , regardless of overall outcome. I
I believe that is where the belief in high reversal rates from the CAFC comes from.
I support a more limited ability of the CAFC to review claim construction.
“Juries doing claim construction?
LOL”
Mooney understanding the recent history of pre-Markman patent law?
LOL
Juries used to do claim construction all the time – it was no big deal.
While juries aren’t always technically minded, they managed to produce better results than some of what we’ve seen from the bench – or from a cruder file wrapper sniffing approach.
Yes, Malcolm, I think that is right. Of course the district courts get it wrong sometimes, but federal district court judges are generally very smart, and they have the best and the brightest recent law grads working in chambers.
The new patent bill is going to mandate that claim construction and questions relating to infringement and validity are for the Fact Finder [Judge or Jury], thereby eliminating the need for District court ot CAFC Judges to decide/review these issues as “matters of law”.
I am inclined to like this idea. It would certainly make litigation quicker and less expensive.
Juries doing claim construction?
LOL.
Dear Angry Attorney,
I completely agree with you.
I thought you were angry about “this”:
“The new patent bill is going to mandate that claim construction and questions relating to infringement and validity are for the Fact Finder [Judge or Jury], thereby eliminating the need for District court ot CAFC Judges to decide/review these issues as ‘matters of law’.”
“this” is fine by me because I’ve been told that juries generally like independent inventors.
“The bottom line is that reversals are hard to win. No matter how great you think your appellate argument is, don’t forget that the judges are very inclined to affirm. I think that is true even with de novo review, where there is supposed to be no deference given to the decision below.”
Could it be that district court judges are more often correct than not? 😉
These stats are helpful to practitioners, even though it is true that each case presents its own issues. The bottom line is that reversals are hard to win. No matter how great you think your appellate argument is, don’t forget that the judges are very inclined to affirm. I think that is true even with de novo review, where there is supposed to be no deference given to the decision below.
“I have my doubts about how helpful these stats are to patent practitioners.”
They aren’t helpful because each case has unique facts and the facts are key.
It’s helpful to the Federal Circuit, however, insofar as it shows that they are not dramatically different from other Courts of Appeals.
I have my doubts about how helpful these stats are to patent practitioners.
For instance, what’s it tell you about your chances in CAFC when the 2008 data show 1% of cases from USDC are dismissed and 37% reversed, whereas from administrative courts the figures are 12% dismissed and 8% reversed? It tells you nothing. The reversal rate for patent cases could range from 1% to 100%.
One graph shows that 7% of patent infringement cases in 2008 were dismissed (compared to 1% of civil cases from USDCs generally). This suggests a huge skewing of the data on the basis of subject matter.
“Angry Attorney, hey, lighten up – don’t be angry Just learn to deal with it. You’ll thank me in the morning.”
Nope. I’ll remain angry at the USPTO for, well, everything, the CAFC for Bilski, SCOTUS for KSR and Ebay, at “Patent Reform,” and at those dunces Rai and Lemley.
😀
In truth, I’m not opposed to some form of patent reform. I have no problems with more chances for peer review (even though that’s proven to be fairly worthless) or to invalidate claims after issue. I have no problems with requiring software patents to actually disclose the algorithm to be considered to be enabled, rather than the current way of simply stating the results (although i think putting code itself in the app is kind of pointless. what’s useful is the algorithm, not the way it’s implemented in one programming language).
I would also have no problem with a Bill of Attainder disbarring MM 😉
My point is that it wasn’t settled till the Markman case got to the supreme court. I would have expected such a fundamental question to have been to the supreme court already, long before then. I agree that claim construction has to be done in context. because the notional addressee is the PHOSITA, not a judge. So, there is plenty of scope for adducing evidence about the (fact) mindset of the PHOSITA. But then comes the question “What is the true construction of the claim?” which is a matter of law. It’s been like that in England since….100 years or so (at least). Is it really the case, that a Bill will be put to Congress making claim construction a matter of fact?
Max3 said:
“I had always wondered why Westview had to defend, all the way up to SCOTUS, on the issue whether construing the claim was law or fact. Always seemed self-evident to me to be a matter of law. But, I see that SCOTUS and I now stand corrected, by STUART.”
Your sarcasm aside, the reason this issue was litigated “all the way up to SCOTUS” was because of this little thing called the Constitution of the United States, which we still pretend to follow. The Seventh Amendment of said Constitution says: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” As the Markman Court noted, it was only in the middle 1700’s that English law courts had jurisdiction to hear patent infringement cases, and the historical record from that period was sparse. See Markman v. Westview Instruments, 517 U.s. 370, 378-83 (1996) (Part II.C). In the context of the U.S. legal system, it actually made sense to litigate the issue.
Besides, there’s a good argument that claim construction is factually intensive, usually involving dueling expert testimony. Some of us see the issue as a mixed question of law and fact, especially because the viewpoint of the PHOSITA is necessary to counter the claimant/lexicographer’s self-interested construction. I would argue determining the PHOSITA is pretty much a factual issue.
I don’t see where the “affirmed 55%” number comes from on the linked page at the CAFC. Could somebody post a more specific link? Thanks.
Thank you STUART:
“The new patent bill is going to mandate that claim construction and questions relating to infringement and validity are for the Fact Finder [Judge or Jury], thereby eliminating the need for District court ot CAFC Judges to decide/review these issues as ‘matters of law’.”
Fine by me. Juries generally like independent inventors.
Angry Attorney, hey, lighten up – don’t be angry Just learn to deal with it. You’ll thank me in the morning.
I had always wondered why Westview had to defend, all the way up to SCOTUS, on the issue whether construing the claim was law or fact. Always seemed self-evident to me to be a matter of law. But, I see that SCOTUS and I now stand corrected, by STUART.
“The new patent bill is going to mandate that claim construction and questions relating to infringement and validity are for the Fact Finder [Judge or Jury], thereby eliminating the need for District court ot CAFC Judges to decide/review these issues as “matters of law”.”
That would actually result in a lot more patents NOT being held invalid, which is probably not the goal of those for ‘patent reform’ (e.g. patent right evisceration).
The new patent bill is going to mandate that claim construction and questions relating to infringement and validity are for the Fact Finder [Judge or Jury], thereby eliminating the need for District court ot CAFC Judges to decide/review these issues as “matters of law”.
In short, the role of the CAFC will be like all other appellate courts: review of legal issues and the occasional challenge to ‘clearly erroneous’ fact findings below.
The ratio of precedential decisions to nonprecedential decisions and Rule 36 orders in patent cases is higher than what I would have guessed.
Does anyone have any thoughts as to what might be included in the “other” slice of the chart on the left?
Isn’t this actually an indication of good “quality” at District Court level. I had gained the impression (from this blog) that reversals were the rule rather than the exception, at the CAFC. But the statistics seem to prove the opposite. With 80% of cases affirmed, at least in part, what more can the CAFC do, to enhance legal certainty?
Or are the stats fooling me?
For those who firmly believe in the plaintiff’s “right to choose,” it would be nice to know which, if any, judges/districts/circuits got reversed significantly more often than others.
Given that some of the non-merit cases such as the settled cases and at least most of the mediated cases may well have been affirmed by the Federal Circuit if brought, the actual effective affirmance rate is much higher, e.g. around 85%.
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