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Jul 08, 2007



So, by the looks of those stats, it appears the District Court gets it right most of the time. Or at least a portion of the issue is dealt with correctly (The affirmed-in-part portion)

I assume the appeals that are terminated are settlements?

Why is it that patent appeals are less likely to settle?

My hunch on this is that these cases are usually so technical and highly complex that both sides feel they have a better chance of snowing the judge than in many other types of cases.

I may be wrong, but is there, really, a better explanation?

--Jack Payne

I think that the reason that patent cases are unlikely to settle during an appeal is that, if they were going to settle, they would have settled at the district court stage. Bringing a Federal Circuit appeal is relatively cheap, compared to the underlying litigation, so the cost savings of settling during the appeal is not great and the effect can be tremendous. The perception, at least [although these figures make me wonder . . .] is that the reversal rate for Markmans is so great that going to the Federal Circuit is basically jump ball. The only reason I can see that would really drive a settlement during the relatively long appeals process is the painful pendency of an injunction.

Just my 2 cents, tho.

I didn't see any stats on how quickly cases are resolved. The letter Chief Judge Michel recently wrote to Congress re pending patent reform legislation said stats show that it is on average nine months from appeal to opinion in patent cases, which was a surprise to me, so I was hoping to see some stats on that subject.

I'd concur with R. Cauley on the "less likely to settle" reasoning. It seems that the costs of litigation are heavily front-loaded, such that the marginal cost of an appeal isn't really that great in the grand scheme of things. There's so much cost in arguing the Markman and doing discovery that the cost of an appeal is no deterrent after the District Court proceedings.


Don't forget some CAFC judges don't really have great patent & technical experience; a lot of patent law is being changed (e.g. injunction); some positions that a lot of people called long shots have been won (again injunction). That kind of record (basically uncertainty) doesn't lend itself to stimulating settlement.

Interesting that of the patent cases that don't settle, the Fed Cir only affirms 60% across the board. I don't have the statistics to hand, but as I understand it general court of appeals affirmance rates in the regional circuits are 75-80%. Of course, patent appeals may be more complex and multi-part, something that would tend to drive the affirmance numbers down.

With claim construction being a pure question of law (at least for now), it's no wonder that losing parties are willing to spend the relatively little amount of money to appeal and take another shot at what is often the dispositive issue. Why settle when the Feds don't have to give any deference to the lower court's claim construction and, as a result, affirm less frequently?

My impression as to why the Federal Circuit's reversal rate is so high is the de novo review of claim construction -- indeed, I thought the reversal rate on Markman was over 50%.

Affirmed-in-part numbers are high because appellants are now filing more complex appeals.

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