Over the past decade, the Federal Circuit has released thousands of patent case opinions. For today’s study, I focused on patent opinions released since January 1, 2000. And, I limited my search only to those opinions with Westlaw Headnotes. Westlaw consistently provides Headnotes for published CAFC decisions and for a small number of unpublished opinions that Westlaw deems important. For each opinion, I looked to see whether a dissent was filed and, if so, who filed the dissent. I also excluded en banc opinions from this particular study and instead focused on three-member panels.
Of the approximately 2000 panel decisions in my sample, 13.5% included a dissent.
For those who follow Federal Circuit decisionmaking, it will not be surprising that Judge Newman filed the most dissenting opinions. Of the 471 decisions in my sample associated with Judge Newman, she dissented in roughly 17%. What may be surprising is that Chief Judge Rader has been the least likely dissenter of the appellate judges.
As the charts below suggest, Chief Judge Rader’s low dissent count does not mean he builds unanimous coalitions. Rather, it appears that Chief Judge Rader is skilled at building majority coalitions. The first chart below shows the percent of panel opinions associated with a particular judge where a dissent was filed. The final chart just considers opinions with a dissent and reports the percent of those opinions where a particular judge is in the majority. As the final chart shows, in cases with a split decision, Judge Newman is rarely in the majority while Judge Rader is almost always in the majority.
In the social dynamic of panel opinions, there are particular structures that tend to lead to dissent. In Chief Judge Rader’s case, more than 85% of his dissents were filed when at least one of Judges Lourie, Prost, or Bryson was on the three-member panel.
Using a slightly different dataset, Professor Cotropia (Richmond) found that the Federal Circuit is more likely to dissent than are other circuits — especially in patent cases. Christopher A. Cotropia, “Determining Uniformity Within the Federal Circuit By Measuring Dissent and En Banc Review,” 43 LOY. L.A. L. REV. 801, 811 (2010). Cotropia suggests that “A likely explanation [for the high level of dissent] is that the repeated exposure to the same subject matter results in more diverse viewpoints. The deeper one gets into a particular subject, the more likely they develop their own opinions and the further developed and more nuanced these opinions become.”
“I think Newman just likes to be different. She’s a bit like Lady Gaga in that respect. At some point in the near future, Newman will likely begin a Federal Circuit hearing by “hatching” out of a giant translucent egg. ”
Their big courtroom would sell out for people to see that.
I think Newman just likes to be different. She’s a bit like Lady Gaga in that respect. At some point in the near future, Newman will likely begin a Federal Circuit hearing by “hatching” out of a giant translucent egg.
Pauline Newman has been the only technically qualified person on the court for a long time. I think that, as a scientist, she most often correctly interprets exactly what the law actually says, but that isn’t the way the common law actually works. The system of precedent (or stare decisis, Americans preferring the Latin term) inherently says that previous decisions and decisions above are right, even when they are clearly wrong, and that’s hard for a scientist to buy into.
Apparently he doesn’t know that. OTOH, I’m not sure that it’s a very sensible line of attack, although it might look good on appeal.
What is even more interesting is the percentage of Newman dissents in which Justice Clevenger authoerd the majority opinion? If you look closely at these opinions you will find the Justice Newman most often stated the correct application of the law, and understood the responsibility and role of the district court and judges.
There is a MAJOR assumption here that she will not change (evolve) her legal views at all. ever.
No there isn’t. How often she dissents has nothing to do with her “legal views”, because it’s about how often she agrees with people. I’m sure the rest of the panel will change more than her over time, since the actual people involved will change over time.
It’s a very minor assumption to say that she’ll continue to agree with people at about the same rate as she has over the past five years. It’s a huge assumption to say that she’ll suddenly start dissenting enough to not only reach Newman’s levels but also overcome the five years of statistics that she’s already accumulated that lag way behind Newman.
Moore would have to dissent on fully 20% of her panels to catch Newman, if Newman retired today and Moore served as long on the bench. That’s a tall order no matter what you think of her, since it’s more than twice the highest rate that anybody other than Newman has managed.
My main assumption, which I stand by, is that the previous poster does not understand how percentages work. Or dissents, probably.
“They’re cumulative percentages. There is no “catching up”. She’ll probably end her career with her numbers right around where they are now.”
There is a MAJOR assumption here that she will not change (evolve) her legal views at all. ever.
Moore, more than anyone else, has shown that this assumption is baseless.
She will catch up with Newman in no time.
They’re cumulative percentages. There is no “catching up”. She’ll probably end her career with her numbers right around where they are now.
“however it also restrict people”
No duh – its very nature is to exclude.
HOWEVER, after the limited time, the restriction is completely lifted and what once was restricted is open to everyone forever.
And even when it is restrictive, it is still shared and open for view, discussion, and an aim to work around and work better.
Protection and invigoration – How freaking awesome!
Mooney hates Newman.
Mooney, is that you?
Here is a similar story
What the court is saying in these problem-to-be-solved-as-motivation cases is that if in hindsight it looks like it would have been easy to combine a couple of simple mechanical devices to get the invention before the court, then no patent for you, regardless of the fact that no one else had thought to make such a combination despite the fact that the references were known and regardless of any objective indicia of non-obviousness, such as the fact that after the inventor first put the combination it became very popular. That kind of stuff won’t prevent summary judgment.
Patent is a way to protect Intellectual property, however it also restrict people to share their ideas and information.
It would be interesting if there were data on the subject matter of the dissent. If as suggested by Paul F Morgan, the reason Rader dissents is almost always related to claim construction that would be significant.
You mean sweet lulz when you were smacked down at appeal if you didn’t establish a prima facie case? Surely you know it IS the examiner’s burden to establish.
Kimberly Moore was nominated in 2006. Her article with Mark Lemley on the “abuse” of continuation application practice (link to heinonline.org) is academic drivel at its worst and helped bring about Dudas’ now-dead-thank-God claims and continuation rules. IMHO, she doesn’t deserve to be mentioned in the same breath as Judge Newman, let alone sit on the same court. So the thought of her eventually taking over from Judge Newman as the dissent queen is pleasing, because it means that she won’t be inflicting her views on the patent community.
I’m interested in taking the analysis to another level
In how many of Newman’s dissents is she suggesting invalidating the patent at issue and how many is she contesting the majority decision which is invalidating?
My bet would be that it’s 100% one-way. Even when Newman dissents potentially favorably, such as in the Wyeth v Teva injunction decision from last year she does so whilst turning a knife in the back of the challenger
When will the day come that someone questions the impartiality of a member of the bench who refuses on priniciple to consider one side of the arguments presented
I could call it the two-command “email” a phone recording to a friend phone feature.
Hey guys tell me what you think about this inventionlol I just accidentallied.
So, the idea is, either the phone, or the network the phone is attached to records a call you designate either by pressing a button or specifying an option on your phone, and then it sends it to a person you designate either during the call or after the call. It is essentially a way of cutting someone in on a 3way call when they’re busy etc. Really helpful in conversations with your extended family where you’re always repeating things other people said to other people and the same thing is happening to you. Note that what often happens is a game of “telephone” where everyone messes up the details, so this prevents that. What do you guys think? Bazillion dollar idea? Note that I disclosed it publicly here. So I get like a year to file unless the congressional bill passes right?
I’m debating it, but I’m thinking I might donate this one to the public.
“I was sorely tempted to respond that I didn’t think it was my burden”
lulz
“I’ll bet that in 99% of the cases where she dissented, Judge Newman actually got it right and her colleagues screwed up.”
Ummm . . . NOT!!! You need to re-read the USSC decision in Bilski.
So this guy sent in an amendment where he argued that I didn’t meet the burden of establishing a prima facie case.
I was sorely tempted to respond that I didn’t think it was my burden and then to ignore whether I had met his arbitrary and capricious standards for finding a prima facie case.
O the lulz that would ensue. Sweet sweet lulz indeed.
For how long has Moore been there? She will catch up with Newman in no time.
“I’ll bet that in 99% of the cases where she dissented, Judge Newman actually got it right and her colleagues screwed up.”
I’ll take that bet. How much money are we talking and how shall we determine the winner?
I’ll bet that in 99% of the cases where she dissented, Judge Newman actually got it right and her colleagues screwed up.
Why can’t we all just get along?
As your Jan. 25 blog on Arlington Indus., Inc. v. Bridgeport Fittings, Inc. (Fed. Cir. 2011)vividly demonstrates with its panel of Rader (author), Lourie (dissenting in part), and Moore, there is far more than a “social dynamic of panel opinions [with] particular structures that tend to lead to dissent” going on. Let’s not beat around the bush with politically-correct academic euphemisms. There is an openly expressed unbridgeable gulf going on between drastically different views of proper claim interpretation between Fed. Cir. judges.
I wonder for the longer tenured justices whether their dissent trends were the same earlier in tenure v later tenure.
Is it possible, if not just as likely, that rather than being good or bad at consensus building, some judges are just more or less likely to write a dissent when they disagree with the majority? Some judges might just view dissents as more valuable, more worth their time.
CAFC dissents remind me that there is no such thing as “patent law”; just simply random panel draws.
Newman. Such a rebel.
Sorry, that’d be eight of the nine, to make 88.8%.
I don’t know why I had seven of nine on my mind. Yet another thing science will never be able to explain.
In Chief Judge Rader’s case, more than 85% of his dissents were filed when at least one of Judges Lourie, Prost, or Bryson was on the three-member panel.
Assuming a random distribution, Rader would have shared almost exactly half of his panels with at least one of those three judges.
I’m guessing from those graphs that you found all of nine Rader dissents, and there happened to be a way that seven of them clustered. I’m not sure how significant a conclusion we can draw from those numbers.
The “headnotes only” criterion is an odd one to use.
Published decisions mean something, not just because the panel has decided that the opinion is publication-worthy, but also because the opinion has circulated through the rest of the court and still issued as it did.
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