December 18, 2012 Articles

Federal Circuit Appeals: Selectivity Remains the Name of the Game

Patent cases are tried in federal district courts across the United States, but always end up in the same place.

By Emily J. Tait

Recognizing the increasing role of patents in a technology-based global economy, the U.S. Supreme Court has decided more than a dozen patent cases since 2005, and several more cases are in the Court’s pipeline. Of course, before reaching the Supreme Court, patent cases must be tried and appealed. Patent cases are tried in federal district courts across the United States, which have vastly different levels of experience handling such matters.

On appeal, however, these cases end up in the same place: the U.S. Court of Appeals for the Federal Circuit. Patent appeals typically involve issues that are legally and technically complex, presenting unique challenges to a party that finds itself in the unenviable position of an appellant. Indeed, these complexities—and the sheer number of issues tried—can make it very difficult to present “clean” issues on appeal. Yet, when facing a highly specialized appellate tribunal, an advocate cannot ignore the fundamental axioms of good appellate practice in the hope that a judge with extensive experience and knowledge will have a greater ability to “get” every single one of his or her client’s arguments. On the contrary, Federal Circuit judges will be immediately suspicious of a brief that presents too many issues on appeal, and they will be readily able to identify and dispose of weak arguments. Therefore, the importance of selecting your issues wisely and narrowly cannot be overstated.

In recent years, patents (and patent litigation) have dominated headlines and the U.S. court system. Whether and to what extent patents serve to further innovation or stifle competition continues to be a source of passionate disagreement, but all sides can agree that patent litigation is big business, and that is unlikely to change anytime soon. In fact, a study by PricewaterhouseCoopers reports that 2011 set a record for the most patent cases filed in a year (4,015), marking a 22 percent increase from 2010. See PricewaterhouseCoopers, 2012 Patent Litigation Study: Litigation Continues to Rise amid Growing Awareness of Patent Value (2012). In a similar vein, the New York Times recently reported that “$20 billion was spent on patent litigation and patent purchases in the last two years—an amount equal to eight Mars rover missions.” See Charles Duhigg & Steve Lohr, “The Patent, Used as a Sword,” N.Y. Times, Oct. 7, 2012. The same article noted that 2011 marked the first time that technology powerhouses Apple and Google spent more on “patent lawsuits and unusually big-dollar patent purchases” than on research and development efforts.

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