How Well Do You Know the Federal Circuit’s Jurisdiction?

Morrison & Foerster LLP - Federal Circuitry
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Morrison & Foerster LLP - Federal Circuitry

“The Federal Circuit – that’s the patent court, right?” That seems to be a common sentiment from non-Federal Circuit practitioners. And there’s certainly some truth to the sentiment. According to the Court’s own statistics, from October 1, 2019, to September 30, 2020, the Court terminated 1,568 cases; 1,020 of those (65%) originated in district court or the Patent & Trademark Office (though, as explained below, not all of those were patent cases). There’s no question that the largest segment of the Federal Circuit’s docket, and especially its published opinions, are patent cases.

Still, that means more than a third of the Federal Circuit’s cases originate in other tribunals. What are those other tribunals? As our statistics show, the Court of Federal Claims is the next largest source of cases for the Federal Circuit. Those cases can involve disputes over government contracts (which our colleagues cover at Government Contracts Insights). But they can also involve a variety of other types of claims for money damages against the United States, such as takings claims, tax disputes, or the fight over Obamacare’s insurance funding and Congress’s appropriations that reached the Supreme Court last term (decision here).

Beyond the Court of Federal Claims, several other Article I tribunals feed cases to the Federal Circuit: the Merit Systems Protection Board (though the Board currently lacks any members), Court of Appeals for Veterans Claims, Court of International Trade, and International Trade Commission, to name just a few. That represents quite a range of topics, from employment law, to veterans’ benefits, to customs classifications, to more patent cases. In all, more than a dozen different Article I tribunals feed cases to the Federal Circuit spanning a diverse range of topics (even touching criminal justice through the Court’s review of the Department of Justice’s Bureau of Justice Assistance).

Even appeals from district courts and the Patent & Trademark Office, the Federal Circuit’s typical bread and butter, go beyond patent law. If a district court action originally “arose under” patent law but the patent claims settled, appeals of non-patent issues generally would still go to the Federal Circuit. That’s why the Supreme Court was reviewing a Federal Circuit decision when it decided this term’s major copyright case. And appeals from the Patent & Trademark Office include appeals from the Trademark Trial and Appeal Board.

Nor are non-patent cases just an afterthought at the Court. Our statistics for Case Outcomes show that non-patent cases draw close scrutiny from the judges. In fact, although the affirmance rate in our data is roughly 75% for patent cases, it’s only 63.7% for non-patent cases.

So, if you mainly deal with patent cases at the Federal Circuit, why care about the rest of the Court’s docket? Because understanding that Federal Circuit judges are more than patent judges is important for understanding how judges may approach your case. As we discussed in our post “There’s a New President. How Could that Affect Practice in the Circuit?,” many Federal Circuit judges come to the Court with non-patent law backgrounds. And even those with patent experience develop as more generalist judges given the Court’s wide-ranging docket. Thinking about how other areas of the law may connect with or influence patent law issues can make your case more persuasive. In the end, maybe the answer to whether the Federal Circuit is a patent court is “Yes, but …”

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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