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An Efficient Federal Circuit

The Court of Appeals for the Federal Circuit can affirm a lower court decision without opinion by following Federal Circuit Rule 36.

That Rule states (in part):

Rule 36. Entry of Judgment – Judgment of Affirmance Without Opinion

The court may enter a judgment of affirmance without opinion, citing this rule, when it determines that any of the following conditions exist and an opinion would have no precedential value:

(a) the judgment, decision, or order of the trial court appealed from is based on findings that are not clearly erroneous;…(emphasis added)

The full text of a typical Rule 36 affirmance looks something like this:

ON APPEAL from the United States District Court for the Western District of Washington

in CASE NO. 07-CV-1660.

This CAUSE having been heard and considered, it is


Per Curiam (BRYSON, GAJARSA, and PROST, Circuit Judges.)

AFFIRMED. See Fed. Cir. R. 36

What, then, to make of Sensormatic Elec., LLC v. Von Kahle? This is an order that looks like a Rule 36 affirmance, which doesn’t follow the Rule 36 form. 

Here’s the full text:


Before BRYSON, LINN, and DYK, Circuit Judges.


          The judgment in this case is affirmed. With respect to the inequitable conduct claim, we uphold the district court’s ruling of no inequitable conduct based on the court’s finding that the inventors did not act with the intent to deceive the Patent and Trademark Office; we do not address the question whether the information that was not disclosed was material. With respect to the public use issue, we uphold the district court’s conclusion that the appellant Phenix failed to prove by clear and convincing evidence that the invention was in public use more than one year before the filing date for the patent; we do not address the question whether any alleged use of the invention during the period prior to the filing date of the patent fell within the experimental use exception to the public use doctrine.

So what to make of that?  Is it an order of summary affirmance, but lacking in form?  Is it one of the shorter per curiam opinions in Federal Circuit history?

It strikes me that this is actually a substantive opinion, styled as an order.  On one hand, I would hate to see a proliferation of nonprecedential opinions like this.  On the other, when it is clear to the appellate court that there is a single element dispositive of each claim, easily addressed without opinion, it contributes to the greater efficiency of the federal court system to issue these orders. See FRCP 1: [These rules] “should be construed and administered to secure the just, speedy, and inexpensive determination of every action.”

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  1. March 30, 2010 at 1:08 PM

    >I would hate to see a proliferation of nonprecedential opinions like this.

    I’m guessing you think lots of *classic* Rule 36 affirmances (affirmance without any discussion whatsoever) is also bad, for the same reason: precedent is a good thing. In other words, it’s not the hybrid Rule 36 1/2 affirmance in particular that you don’t like — it’s Rule 36s of any kind.

    I look at a lot of BPAI decisions that are appealed to the Fed. Cir., and I find that many (majority?) of those are Rule 36 affirmances. Perhaps that’s intentional — the idea being that those sorts of cases are very fact-specific, and thus not very useful as precedent. After all, that’s why run-of-the-mill BPAI decisions are not precedential.

    • March 30, 2010 at 6:41 PM

      Yes, that’s correct. I’m not a fan of Rule 36 affirmances at all. On the other hand, I think they’re probably a necessity with the volume of cases that now pass through the court system.
      Given that Rule 36 affirmances are likely with us for the long haul, I suppose a 36-1/2 is an improvement, if only because there’s at least some hint to the prosecuting attorneys of the world regarding what made the case come out the way it did (i.e. what did the judges think was important).

      Thanks for your comment,

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