Last year, the global COVID-19 pandemic created unprecedented challenges for American courts. By making several changes, however, the U.S. Court of Appeals for the Federal Circuit was able to largely continue its operations. The most visible of these changes was that the Court began to hear all arguments telephonically, with some early denials of at least some parties’ requests for an oral hearing. Another less visible shift was that the Court issued summary affirmances in cases in which there was no oral argument.
At the same time, the number of appeals to the Court dipped this year, perhaps as a result of broader economic uncertainty. The largest drop was in post-grant review cases from the U.S. Patent and Trademark Office. The number of appeals from the PTO reached an all-time high in 2019 at more than 650 appeals. In 2020, that number was less than 550 appeals, which may reflect a settling of expectations since the number of post-grant institutions remained steady from FY2018 to FY2019. Despite having fewer appeals, there was an increase in the pendency time of appeals in post-grant review cases from the PTO, reaching an all-time average high of slightly more than 17 months from docketing of the appeal until the opinion was filed. Additionally, the Court issued the fewest precedential opinions in post-grant review cases in the last five years, by percentage. Most cases were decided by non-precedential opinions.
On the merits, there were significant decisions in 2020. But perhaps the most important cases dealt with the aftermath of the Arthrex decision, where the Federal Circuit held that the Administrative Patent Judges who decide post-grant review cases were unconstitutionally appointed. The Federal Circuit denied en banc rehearing in the case, but the Supreme Court has granted certiorari with a decision expected by mid-2021. The Supreme Court’s decision in the case this term could have large implications for the PTO.
Besides Arthrex, we have chosen other important Federal Circuit cases to review from 2020, including ones that cover standing, real-party-in-interest, estoppels, scope of judicial review, and waiver. Also, for the first time, we have expanded our coverage beyond appeals from the PTO to include appeals from the U.S. International Trade Commission.
The summaries and statistics in this review are the results of a collaborative process. We thank our co-authors—Deirdre Wells, Kristina Caggiano Kelly, Pauline Pelletier, Trey Powers, William Milliken, Anna Phillips, Dallin Glenn, and Kathleen Wills.
Thank you for your interest. Please feel free to reach out to either of us if you have questions or wish to discuss the future of Federal Circuit appeals.
This article appeared in the Federal Circuit Appeals from the PTAB and ITC: Summaries of Key 2020 Decisions report. To view the graphs "Data and Trends: AIA PTAB Appeals to the Federal Circuit," please click here.