By Kevin E. Noonan --
The annual report from the Director of the Administrative Office of the U.S. Courts, James C. Duff, was released last week. Entitled "Judicial Business of the United States Courts," this document (weighing in at 416 pages and containing hundreds of pages of tabulated information) contained a few interesting items of information for anyone trying to assess whether the patent system is "broken" in the federal courts.
Appeals at the Federal Circuit are down 13%, a figure consistent with the decrease in appellate filings in the regional circuit courts of appeal (-12.3%). In fact, filings for 2007 were at about the same level as in 2003. This decrease is not due to patent filings, however, but rather to other areas of the Court's jurisdiction (like the Merit Systems Protection Board and Court of Appeals for Veterans Claims). In the twelve month period ending September 30, 2007, the Court heard a total of 73 appeals, deciding 34 after oral hearing and 38 on the briefs. The report also compared the Court's review of district court and BPAI decisions between 2006 and 2007:
Two thirds of CAFC appeals were decided within five months in 2007, and 100% of appeals decisions rendered within eight months of filing.
In the district courts there was an overall decrease in civil lawsuit filings of 0.8%. Federal question jurisdiction cases rose by 3.4%, and cases with U.S. as plaintiff or defendant rose by 5.8%; diversity of citizenship cases fell by 9.6% (this mostly due to consolidation of personal injury lawsuits involving asbestos and diet drugs in the Eastern District of Pennsylvania). In the district courts during this period, the following statistics for patent cases were reported:
Since 2003, all intellectual property lawsuits increased by 1,848 (which pales in comparison to the increase of 16,305 personal injury cases during the same period). The report provides a historical comparison on the number of patent lawsuits commenced in each year since 2003:
Using the same statistics, the report shows the judicial districts having the most patent activity in 2007:
During the period, there were 2,762 pending patent lawsuits, of which 1,945 showed no court action during the reporting period. Of the remaining cases, there were 409 actions after pretrial activities were complete, 31 bench trial verdicts, and 63 jury trial verdicts. 3.4% of all patent cases went to trial, compared with 1.7% of trademark cases, 1.0% of copyright cases, 46.7% of personal injury cases, and an overall rate of 4.1% of all civil litigation. Interestingly, there were no patent cases reported in the 27 civil cases that took more than 20 trial days (the majority of civil cases, 1,227 of 3,387 total cases, took between four and nine trial days).
Finally, the number of patent cases pending more than three years increased, from 353 in 2006 to 408 in 2007; during the same period, trademark (113 in 2006, 121 in 207) and copyright (107 cases in each year) showed a substantially unchanged number of cases having greater than a three-year pendency.
The report confirms some generally-held opinions, such as the high number of patent cases brought in the Eastern District of Texas, but there are some results that run contrary to the prevailing wisdom. Although Texas' Eastern District tops the list of pending patent dockets, there are significant numbers of suits pending in other jurisdictions. The number of patent cases, at either the district court or appellate levels, is not exploding, nor has the case load of the Federal Circuit shown any dramatic increase; indeed, the number of cases considered by the Court has actually gone down. It is also somewhat surprising that the reversal rate for decisions of the district court is as low as 17%, after there being years where the rate was in excess of 40%, and that the reversal rate of the BPAI is identically low. The latter statistic may reflect the reality that the Federal Circuit appeals route under 35 U.S.C. § 141 is infrequently taken, or that the Board decides not to budge over issues that it believes it has sound arguments that will prevail on appeal.
The complete report can be downloaded here.