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Roy E. Hofer practices at the Law Offices of Roy E. Hofer in Chicago, Illinois. Joshua H. James, a third-year student at Indiana University Maurer School of Law, contributed to this article.
The January/February 2010 issue of Landslide® magazine published the article, “Supreme Court Reversal Rates: Evaluating the Federal Courts of Appeals.”1 In that article, the ratio of cases reversed (or vacated) over the cases reviewed by the Supreme Court for each federal court of appeals was calculated in order to compare the “performance” of each court for October Terms 1999–2008. These calculations showed that the Federal Circuit had the highest reversal rate (83.3 percent) of any of the federal courts of appeals. Based on a typical law school grading curve, the Federal Circuit received a “D” grade and would have received an even worse grade for its patent-related cases, which had a reversal rate of about 92.3 percent.
In the past four terms, 2 16 Federal Circuit cases were reviewed by the Supreme Court. Table 1 shows the dispositions of these cases for each term.3 During the past four terms, the reversal rate for the Federal Circuit is about 53.1 percent. This is a significant improvement over its 83.3 percent reversal rate over the previous 10 terms.
When these results are combined with the results of the previous 10 terms to determine the Federal Circuit’s reversal rate from the October Term 1999 to date, the reversal rate for this time period, involving 46 cases, is about 72.8 percent. Table 2 compares the actual number of cases reversed, the total cases reviewed, and the corresponding percentages for these time periods. Assuming the reversal rates for the other federal courts of appeals remained the same during the past four terms, the Federal Circuit rate would fall between the Sixth Circuit (72.9 percent) and the Fifth Circuit (72.5 percent) and put the Federal Circuit in the “B-/C+” grade range.
In the past four terms, nine Federal Circuit patent-related cases, shown in table 3, were reviewed by the Supreme Court. The reversal rate for these nine patent-related cases has been excellent—about 27.8 percent.
When these results are combined with the results of the previous 10 terms to determine the Federal Circuit’s reversal rate for patent-related cases from October Term 1999 to date, the reversal rate for this period, involving 22 cases, is about 65.9 percent. Assuming the reversal rates for the other federal courts of appeals remained the same during the past four terms, the Federal Circuit rate for patent-related cases would fall between the Third Circuit (68.2 percent) and the District of Columbia Circuit (64.5 percent) and put the Federal Circuit in the “B” grade range for its patent-related cases.
In sum, in the past four terms the Federal Circuit has fared much better in the Supreme Court on patent-related cases because it went from having only one case affirmed during 10 terms to having 6.5 cases affirmed during the past four terms. However, the affirmances are not a perfect representation of Supreme Court approval. For example, in Bilski v. Kappos, the Supreme Court affirmed the Federal Circuit’s final holding but rejected the machine-or-transformation test as the sole eligibility test.4 Nonetheless, the drastic change in the reversal rates shows that the Supreme Court is agreeing with the Federal Circuit more often on patent-related cases.
1. Roy E. Hofer, Supreme Court Reversal Rates: Evaluating the Federal Courts of Appeals, 2:3 Landslide 8 (Jan/Feb 2010).
2. The past Supreme Court Term ended on June 28, 2013.
3. These statistics were obtained from the Granted/Noted Cases Lists published by the Supreme Court for each October Term. Each list includes information about each case granted certiorari by the Supreme Court: the court from which the case was appealed, the date that certiorari was granted, the final disposition, and the date of the final disposition. The lists are published dating back to October Term 2008 at www.supremecourt.gov/orders/orders.aspx. In Ass’n for Molecular Pathology v. Myriad Genetics, Inc., the Supreme Court affirmed one Federal Circuit holding and reversed another, so the Federal Circuit earned 0.5 in the “Affirmed” column and 0.5 in the “Reversed” column for this case.
4. 130 S. Ct. 3218 (2010).