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Federal Circuit Opinions Surge as Virus Worries Cancel Arguments

April 16, 2020, 10:30 AM

The Federal Circuit’s record oral argument cancellation caused by the coronavirus has an upside for lawyers who complain the court doesn’t issue enough opinions.

The U.S. Court of Appeals for the Federal Circuit always writes an opinion to explain its reasoning when it doesn’t hear oral argument in a case, according to internal practice. So after the court canceled half the arguments scheduled for April, opinions skyrocketed—as many as 11 in one day, up from the usual maximum of four or five, totaling 37 for the week of April 6 alone.

Having an opinion instead of an order without explanation may help future litigants argue cases and lead to permanent changes in the way the court does business.

“It is useful to the parties to know which part of the agency/district court’s ruling was adopted by the court—and which parts were not,” patent professor Sarah Rajec of the College of William and Mary Law School said. “This is particularly true if it might affect future, related patents with similar claim terms, for example.”

Reduced Calendar

The surge also may be a result of the judges and their clerks using time to write opinions that they would have otherwise spent preparing for oral arguments.

But nine of the 37 opinions released on the week of April 6 were in cases that were removed from the argument calendar. The court issued nonprecedential opinions affirming the court below in each case.

Had the cases been argued, the court might have resorted to the controversial practice of affirming without an opinion under its Rule 36. But the Federal Circuit generally writes opinions in cases where there are no arguments.

The court has already started to cancel arguments scheduled for its May sitting, so there also will likely be more opinions next month, too.

Road Map

Even though nonprecedential opinions aren’t persuasive to the court, they could be useful to litigants. Opinions give the litigants some flavor of what the judges are thinking that they might otherwise get at oral argument.

“Parties always complain that getting a Rule 36 order gives them nothing to argue with when they seek Supreme Court review,” patent professor Dennis Crouch of the University of Missouri School of Law said. The explanation even a short opinion offers “gives them more leverage in a cert petition,” he said.

There is also potential value to parties in future disputes before the court. The same patent is often litigated over the course of many lawsuits, so parties with similar cases could use the analysis as a road map in the future, Rajec said.

But nonprecedential opinions might not be written with as much care and could create confusion with past opinions, patent litigator Matthew J. Dowd of Dowd Scheffel PLLC said. “Even nonprecedential opinions can create unnecessary tension in the law, if not written carefully,” he said.

Future Changes?

The temporary change could lead to long-lasting change at the court.

It could modify its internal rule to allow orders without opinions even in cases without argument, which would be a “big deal,” Crouch said.

Or, it could issue brief opinions in cases where it would otherwise have issued an order.

“If, during these strange times, the court finds it can dispose of fairly simple affirmances with a paragraph or two, perhaps it will move to doing that more often once in-person oral arguments resume,” Rajec said.

The court could also limit the number of arguments.

“It’s possible the current experience could cause some judges to reconsider the usefulness of having oral arguments in every counseled case, which could lead to less arguments and more opinions in the long term,” Morrison & Foerster LLP attorney Seth W. Lloyd said.

To contact the reporter on this story: Perry Cooper in Washington at pcooper@bloomberglaw.com

To contact the editors responsible for this story: Roger Yu at ryu@bloombeglaw.com; Keith Perine at kperine@bloomberglaw.com

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