No-Opinion Federal Circuit Orders Face Long Shot at High Court

The Federal Circuit’s mechanism for disposing of cases without an opinion continues to stir controversy with no resolution in sight, despite multiple bids for the US Supreme Court to police the practice.

“Rule 36" judgments allow the US Court of Appeals for the Federal Circuit to summarily affirm a lower court or administrative decision without explaining its reasoning. In the intellectual property realm, critics have argued they violate Patent Act requirements and can stymie the types of arguments that arise in patent litigation.

“There’s a perception on the defense side of the bar that this creates an opening for plaintiffs ...