2016/2017 Federal Circuit Year in Review

November 2, 2017

We are pleased to present Gibson Dunn’s fifth “Federal Circuit Year In Review,” providing a statistical overview and substantive summaries of the 124 precedential patent opinions issued by the Federal Circuit over the 2016-2017 year. This term was marked by one en banc decision, a case of first impression regarding the post-AIA on-sale bar (Helsinn Healthcare S.A. v. Teva Pharm. USA, Inc., 855 F.3d 1356 (Fed. Cir. 2017)), and significant decisions in patent law jurisprudence with regard to subject matter eligibility (McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016) and Elec. Power Grp. v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2017)), the scope of covered business method review (Secure Axcess, LLC v. PNC Bank Nat’l Ass’n, 848 F.3d 1370 (Fed. Cir. 2017) and Unwired Planet, LLC v. Google Inc., 841 F.3d 1376 (Fed. Cir. 2016)), and the Federal Circuit’s jurisdiction to review findings related to the PTAB’s decision to institute IPR (Husky Injection Molding Sys., Ltd. v. Athena Automation Ltd., 838 F.3d 1236 (Fed. Cir. 2016)).  The issues most frequently addressed in precedential decisions by the Court over the last year were: claim construction (39 opinions); obviousness (36 opinions); infringement (26 opinions); anticipation (18 opinions); and written description, enablement, or definiteness (18 opinions).

The Year In Review provides a concise, substantive analysis of the Court’s precedential patent decisions. The easy-to-use Table of Contents is organized by issue, so that the reader can easily identify all of the relevant cases bearing on the issue of choice.

Use the Federal Circuit Year In Review to find out:

  • Which issues have a better chance on appeal based on the Federal Circuit’s history of affirming or reversing that issue in the past, including the real rate of affirmance on claim construction.
  • The average length of time from issuance of a final decision in the district court and docketing at the Federal Circuit to issuance of a Federal Circuit opinion on appeal.
  • What the likelihood of success is at the Federal Circuit if you are a patentee or the opponent based on the issue being appealed.
  • The Federal Circuit’s history of affirming or reversing cases from a specific district court.
  • How likely a particular panel will be to render a unanimous opinion or a fractured decision with a majority, concurrence, or dissent.
  • The Federal Circuit’s affirmance/reversal rate in cases from the district court, ITC, and the PTO.

The Year In Review provides a statistical analysis of how the Federal Circuit has been deciding precedential patent cases, such as affirmance and reversal rates (overall, by issue, and by District Court), average time from lower tribunal decision to key milestones (oral argument, decision), win rate for patentee versus opponent (overall, by issue, and by District Court), decision rate by Judge (number of unanimous, majority, plurality, concurring, or dissenting opinions), and other helpful statistics. The Year In Review is an ideal resource for practitioners seeking an objective report on the Court’s decisions.

Please click here to view the FEDERAL CIRCUIT YEAR IN REVIEW

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding developments at the Federal Circuit.  Please contact the Gibson Dunn lawyer with whom you usually work or the authors of this alert:

Mark A. Perry – Washington, D.C. (+1 202-887-3667, [email protected])
Michael Sitzman – San Francisco (+1 415-393-8200, [email protected])
Blair A. Silver – Washington, D.C. (+1 202-955-8500, [email protected])

Please also feel free to contact any of the following practice group co-chairs or any member of the firm’s Appellate and Constitutional Law or Intellectual Property practice groups:

Appellate and Constitutional Law Group:
Mark A. Perry – Washington, D.C. (+1 202-887-3667, [email protected])
James C. Ho – Dallas (+1 214-698-3264, [email protected])
Caitlin J. Halligan – New York (+1 212-351-4000, [email protected])
Nicole A. Saharsky – Washington, D.C. (+1 202-887-3669, [email protected])

Intellectual Property Group:
Josh Krevitt – New York (+1 212-351-4000, [email protected])
Wayne Barsky – Los Angeles (+1 310-552-8500, [email protected])
Mark Reiter – Dallas (+1 214-698-3100, [email protected])

© 2017 Gibson, Dunn & Crutcher LLP

Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.