Appeal
Seventeen judges reported that their cases were resolved by summary judgment or
jury trial, and most of these cases were appealed to the Federal Circuit (12 of 17,
or 71%). The percentage of appealed cases was only slightly higher for more experienced
judges (8 of 11, or 73%) than for less experienced judges (4 of 6, or
67%). One of the appeals in the former group was later withdrawn after settlement.
Of the eleven appeals that moved forward, each did so following a final judgment.
The judges reported that the claim construction was an issue on appeal in
most of these cases (8 of 11, or 73%). The claim construction was an issue on appeal
in all seven cases (100%) involving more experienced judges, but in only one
of the four cases (25%) involving less experienced judges.47
In about a third of the appealed cases (4 of 11, or 36%), the claim construction
was the primary issue on appeal. In an equal number of cases (4 of 11, or 36%),
the responding judge did not know the primary issue on appeal. In three cases
(27%), the claim construction was not the primary issue on appeal.48
The claim constructions had differing outcomes on appeal. Of those resolutions
that were reported, three cases with appealed claim constructions later settled
before an appellate court decision, two cases’ constructions were affirmed,
two were reversed in whole or in part, one construction was resolved as a result of
an appeal in a related case, one case is still pending, and one case’s resolution was
reported as unknown. Both cases in which the construction was reversed were
remanded.
