Monday, August 22, 2016

Federal Circuit - Comment on IP Watchdog - Rule 36 Judgment: The growing problem of one word affirmance

Have you noticed how often the US Supreme Court disagrees with the Federal Circuit on patent cases? Some years they never agree! For example, Bleich et al. The Federal Circuit Under Fire notes the Supreme Court disagreed with the Federal Circuit on all six cases in 2013. The disagreements have continued. Despite this unsettling fact patent attorneys primarily turn to the Federal Circuit for guidance, because it has had exclusive jurisdiction over all patent appeals in the US since 1982 so has published the vast majority of the US patent law decisions that matter today.

Gene Quinn's article Rule 36 Judgment: The growing problem of one word affirmance by the Federal Circuit highlights the Federal Circuit is increasingly giving no explanation to support affirmances in 43% of the trial court decisions and nearly 50% of the USPTO decisions. Perhaps the Federal Circuit should at least cite the court decision(s) and give a pithy analysis of the law to the key facts it considered in affirming the decision below. Otherwise, this high rate of Rule 36 affirmance is reducing the primary source of case law for many practitioners.

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