In late October, we published our CAFC Intelligence report, the second annual report covering the patent-related CAFC appeals originating from patent litigation cases from three different venues, district courts, USPTO’s proceedings, and the ITC. Besides analyzing high-level statistics related to filing trends, originating courts, and outcomes, this report provides the evaluation and rankings of all stakeholders participating in CAFC cases by activity and performance. We have covered the filing trends in Patexia 156 and some of the very best law firms in Patexia 161. Today we will reveal the names of some of the best CAFC attorneys litigating, earning their mention in this article for their high activity or top performance.
The CAFC 2022 Report studies a five-year period from Jan., 1, 2017, through Dec., 31, 2021, using the latest case updates from Sept., 25, 2022. We gathered data from three different sources in order to compile a complete database of all patent-related CAFC appeals. During the period of our study, 4,363 appeals were filed, and as of Sept., 25, 2022, 4,002 of them have been terminated. The following chart summarizes the outcomes of these 4,002 appeals according to our analysis:
As seen above, almost half of the appeals, or 45.7%, end up affirming the lower court’s decision, while about one-third, or 33.9%, are dismissed for different reasons. Less than 10% of the appeals receive partial orders (e.g., Affirmed-in-Part, Reversed-in-Part, Vacated-in-Part, Remanded-in-Part, etc.). Lastly, completely “Reversed” decisions comprise only 1.75% of the total. These numbers show that obtaining a reversal or partial judgment that returns the case to the lower court proves to be a difficult task. However, the chance of victory for the appellant becomes greater if there are errors in the procedure of the lower court, especially when they are significant enough to have affected the outcome of the case.
Our source for assigning a case was CAFC documents. Therefore we rely only on the documents issued by CAFC and publicly available through the PACER website to see who has been involved in a case. In addition to using computer algorithms for cleaning and normalizing the names based on different variables, such as emails, firms, etc., we also reached out directly to every attorney we identified through the PACER website and CAFC documents. We provided them with a link to their unique profile page, where they could review and verify all the CAFC cases assigned to them. Once they updated their profile, one of Patexia’s staff members again reviewed the changes and ensured they were in line with our policy. Overall, 5,558 attorneys were named on one or more CAFC appeals. Out of a total of 5,558 attorneys, 3,858 represented appellees, while 3,785 represented appellants. On average, each attorney was involved in 4.1 CAFC cases; however, a handful of attorneys have been highly active in the period of our study, representing their clients in a large percentage of all cases. By analyzing the outcomes of the single cases, we evaluated these attorneys by their performance (the ranking methodology is covered at the end of this article).
In the following table, you will find a list of some of the very best CAFC attorneys, being mentioned either for their high activity or for their top performance (being named on this list means the attorney was in the top 5% out of 5,558 attorneys):
The full CAFC Intelligence report goes further by providing the complete rankings of all 20 judges, 3,110 companies, 5,558 CAFC attorneys, and 1,124 law firms that participated in the appeals filed during the past five years. By identifying the originating courts, the report analyzes the yearly filing trends as well as the outcomes grouped by ITC, USPTO, or district courts. For the first time this year, we have dedicated a section to significant lateral moves since the publication of our first CAFC report in 2021.
The CAFC 2022 Report was our second report covering all patent-related cases brought before the Court of Appeals for the Federal Circuit. As for ANDA, IPR, Patent Prosecution, Patent Litigation, Trademark, and ITC Intelligence reports, we continued to use the feedback provided by the CAFC community to find the best and fairest methods for evaluating the performance of companies, attorneys, law firms, and judges aiming to represent the reality the closest possible.
The number of cases that companies and their representing attorneys/firms and judges were involved in as appellants, appellees, or both, comprise the corresponding Activity Score. The majority of the CAFC community has argued that more recent activity it’s a better indicator of activity for an entity. Therefore, as in other reports, we have slightly reduced the weight of cases filed in older years. This ultimately makes it possible for an attorney with 5 cases in 2022 to rank higher than another attorney with the same number of cases but distributed throughout the past five years. Furthermore, to avoid large gaps between entities with more cases than the average, we calculated the activity score as a logarithmic function. This ultimately makes the comparison be- tween entities with different activity levels easier.
Appellants and Appellees were scored for various CAFC outcomes, described above. The table below summarizes the case outcomes and the scores assigned to each party involved:
The Success Score score is calculated as the sum of all points, wins or partial points given in the case of partial wins depending on the final order. Because attorneys and firms are closely involved in the cases on behalf of their clients and often play a substantial role in the case’s outcome, they were scored and ranked for Success in exactly the same way as their client (Appellee or Appellant) for all scorable outcomes. As a result, the in-part outcomes were difficult to differentiate to understand which side came out better with the decision. Meanwhile, the results were clear for the rest of the outcomes, so we allocated points accordingly.
Given the different levels of activity among entities, comparison between them is not possible only using the success score. Therefore, similar to our other IP Insight reports, we added the Performance Score, calculated as a weighted average of activity and success scores. This additional scoring metric helps account for what most clients look for in an attorney: extensive experience and a high success rate in terminated cases.
Stay tuned, as in the following weeks we plan to cover more statistics related to IP litigation trends in anticipation of our upcoming Patent Litigation Intelligence Report which will be released in January 2023.