Tuesday, June 24, 2014

Is The Federal Circuit Patent-Friendly?

As a technology lawyer, I frequently hear complaints (generally from the defense bar) that the Federal Circuit is "so patent friendly."  There's a recent post by Timothy Lee at Vox.com about how the Supreme Court has to rein in the rogue Federal Circuit. Mr. Lee is apparently pretty vociferous about his opinion too, sharing it on the Washington Post and ArsTechnica. Many people share Mr. Lee's opinion, but why?

I did find one guy who at least said, wait a minute.  Are they really that patent-friendly? So are they?

So here's the simple question: Is the Federal Circuit patent-owner friendly like many people say? There seems to be a simple way to find out. Rather than ponder and wonder, why don't we just take a look at how the Federal Circuit actually rules on patent cases.  So I decided to do just that.

It was a bigger task than I envisioned, but I went to the Federal Circuit website and downloaded every patent-related decision they handed down so far this month (June). Then I read each one and simply determined whether (1) the lower court ruled in favor of the patent-owner or the accused-infringer, and (2) whether the Federal Circuit ruled in favor of the patent-owner or the accused-infringer. The results might surprise you, although they didn't surprise me.

In June of 2014 (through today, so far), the Federal Circuit has handed down 18 patent-related cases. So of those 18 cases, how many times did the Federal Circuit hold for the patent-owner?

Once. That's right, once. The score this month is 17-1 in favor of the accused-infringer.

So far, the actual evidence seems pretty overwhelming. For a court that is so patent-friendly, they sure seem to hide it well. If the patent-owner is likely to lose at a rate of 17-1, where is this so-called bias? And if there is in fact a bias, which side does it favor?

I plan to expand my research and check out more cases over a longer period, although it takes a fair amount of work. The Federal Circuit really likes its per curium Rule 36 affirmances, which of course don't say anything about the lower decision.