Experts, Generalists, Laypeople -- and the Federal Circuit

Abstract

A natural experiment is currently unfolding in the patent world. The same validity issues are sent to a diverse range of adjudicators: administrative patent judges, with technical and scientific expertise; district court judges, who range from classic legal generalists to de facto patent law specialists; and juries, composed of layperson novices. The findings made at the trial level, regardless of forum, are in turn reviewed by a singular controlling entity — the Court of Appeals for the Federal Circuit. This Article capitalizes on the current adjudicatory structure of patent law, analyzing more than two thousand Federal Circuit orders and opinions — each hand-coded for validity findings and their disposition on appeal issue-by-issue. The result is a uniquely complete and clear dataset, offering a window into these tribunals’ different mutual relationships — and one into the varying effects of expertise and specialization in the patent world overall. A straightforward empirical analysis of the data, moreover, challenges several longstanding and widespread anecdotal assumptions about patent adjudication. In brief, the data suggest that the Federal Circuit affirms findings made by the PTAB reliably more often than findings made by district court judges — particularly when the findings involve questions of fact rather than questions of law. Whether the district court judge (or district itself) has more prior experience with patent cases appears to be irrelevant. Whether the finding was made by a jury, on the other hand, is highly relevant, with those findings affirmed at the highest rate of all. Moreover, PTAB findings that invalidate patent claims are affirmed more often than findings that uphold patent claims. No similar pattern exists in district court appeals. And the underlying technological subject matter of the patent at issue does not seem to perceptibly influence results on appeal for either.