This week we will change things up a bit to allow me to do a little ranting on a topic I’ve been thinking about more and more over the last several years; namely, do we still need, or even want, a Federal Circuit?

Then recently I was having a conversation with several well-known observers of the Federal Circuit. They pointed out to me that in recent months very little of what the Federal Circuit is doing has anything to do with patents at all. If that is true, why do we need the Federal Circuit?

So, rather than let the anecdotal lead me to a potentially inaccurate conclusion, I went to the Federal Circuit website and create a spreadsheet with every action the Federal Circuit has taken over the last six months, starting with April 1, 2024. And over the last six months, only 6.3% of Federal Circuit actions have been precedential patent decisions. And one of those allegedly precedential decisions was simply an order to rehear a case en banc. And during the last six months only 9.3% of actions by the Federal Circuit were non-precedential opinions in patent cases. So, that means that only 15.6% of what the Federal Circuit is engaged in doing relates to patent cases where any opinion, precedential or otherwise, is written. Rule 36—one sentence decisions affirming the court or tribunal below made up 9.1% of Federal Circuit actions, and 15.2% of actions were one-page orders accepting or ordering dismissal of the appeal either because the case settled or because a party did not file a brief. Meanwhile, 7.7% of Federal Circuit actions have been precedential decisions in non-patent cases, which leaves 52.4% of actions by the Federal Circuit over the last six months being non-patent non-precedential actions, orders or opinions. So even if we assume all Rule 36 decisions are in patent cases, that means only 24.7% of Federal Circuit actions relate to patent cases decisions, opinions or orders, while 60.1% of Federal Circuit actions relate to non-patent cases.

To put this into further perspective, since April 1, the Federal Circuit has issued only 36 precedential decisions in patent cases. The court currently has 12 full-time judges and 7 judges on senior status. However, Judge Newman has been indefinitely suspended, and while many in the industry are unaware, Judge Plager has similarly been sidelined by Chief Judge Moore, who has taken away his clerks, his office, and his computer, and has not assigned him any cases for several years. So, that means 11 full-time judges over this relevant time frame, and with each of six senior judges generally speaking doing one-third of a full-time case load, that leaves 13 full-time equivalent judges. What this translates to on a yearly basis is 5.5 precedential patent decisions per full-time equivalent judge.

If so little of what the Federal Circuit is doing relates to patents, why do we need or want a “patent court”?

Meanwhile, what decisions the Federal Circuit does issue are panel dependent and show not a care in the world about the court’s original mandate, which was to create a unified national patent law and recognize that at least some patents have to be valid and enforced. And now over the last two years we have an inexplicable usurpation of authority with the virtual impeachment of Judge Newman. If these judges are so unfamiliar with basic due process and the opportunity to be fairly heard why should anyone believe they are themselves competent to be judges on any level?

The Federal Circuit is a mess, and it is time to seriously question whether it is needed any more.

To hear this entire conversation, listen wherever you get your podcasts (links here) or visit IPWatchdog Unleashed on Buzzsprout.