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[klaviernista]

Is anyone aware of statistics showing the avarage time it takes the CAFC to issue a decision post oral argument?

I ask because last year, several of my colleagues and I represented a client on a pro bono basis in her appeal to the CAFC.  It is now well over 1 year since the opening briefs were filed, almost 9 months since oral arguments were conducted, and we have no decision! 

Thanks in advance,

-Klav

[horsechute]

Is anyone aware of statistics showing the avarage time it takes the CAFC to issue a decision post oral argument?

"My keen research assistant Patrick Barnacle pulled up records on 56 ex parte patent appeals that have been decided by the Court of Appeals for the Federal Circuit since March 2005. All of these cases arise from rejections sustained by the USPTO's internal Board of Patent Appeals and Interferences (BPAI). We are working to create a more complete database. In the meantime, I wanted to report some preliminary results on timing." .........

"Once oral arguments (if any) are complete, the Federal Circuit is rather quick at issuing an opinion. The median decision was issued 47 days after the oral arguments. (Again, a skewed average of 86 days is driven by the handful of en banc decisions) 30% of the decisions came within one week of oral arguments - most of those took one to two days."

Source: Patently-O: Patent Law Blog

June 2, 2009

[klaviernista]

Thanks.  Do you have any similar stats for non-IP appeals to the CAFC?

[horsechute]

No, sorry.

[jamestyler]

If it's been that long since argument, then any statistics probably will not be all that useful.  Perhaps your decision is tied up by the dissenting opinion of a judge on the panel?  That may be a reason for the delay. 

[klaviernista]

Jamestyler:

Could be.  The case has the potential to have a huge impact for spouses of government employees who retired within the last 15-17 years.  It also has the potential to open the door to a multitude of appeals through the Office of Personnel Management, the Merit Systems Protection Board and, ultimately, the CAFC.  Those factors alone may be why the court is taking so long to decide.  But still, it is now 15 months since the opening briefs were filed, 10+ months since oral argument, and no decision.  At this rate, our client may pass away before she gets any closure on this issue.

-Klav

[klaviernista]

Not to resureect a dead thread, but I thought I would provide an update.  It is now 1.5 years since opening briefs were filed, 13 monoths since oral arguments, and 12 months since supplemental briefs were filed.  Still no decision.  Our client may literally pass away before she receives any closure on this issue.

[klaviernista]

In case anyone cares, we finally received a decision from the CAFC in our pro bono case.  The reason for the almost 2 year delay is now abundantly clear. The court decided, sua sponte, to consider our case en banc.  Unfortunately that consideration did not come out in our favor.  Despite convincing 2 of the 3 judges on the oral argument panel, we lost the case 8-2.  The third judge on our panel did not take part in the decision, most likely because he is on senior status (which I believe eliminates his vote in en banc rulings).

The circumstances of this case make the court's decision particularly frustrating.  Not only because I feel the court got the opinion clearly wrong, but also because all the judges who participated in both the opinion and oral argument found in our favor.  I also feel that the court came to its conclusion for the wrong reason.  That is, rather than find that  that the government's existing practices were inconsistent and invalid under federal statute (a holding I feel the evidence and legislative history clearly supports), the court appears to have been swayed by the potential for significant amounts of litigation that may result from a ruling in our favor.

Regardless, I am happy for our client in some respects.  At least she has closure on this issue and will be able to move on with her life.