'Judicial Hyperactivity' in the Federal Circuit: An Empirical Study

Abstract

This article presents an empirical study that supports the hypothesis that the United States Court of Appeals for the Federal Circuit — which has exclusive jurisdiction over patent appeals — engages in what William C. Rooklidge and Matthew F. Weil call “judicial hyperactivity.” According to Rooklidge and Weil, an appellate court engages in “judicial hyperactivity” when it “lose[s] track of the important distinction between trial and appellate roles and engages in . . . a form of decision-making at odds with traditional notions of appellate review.” They argue that the Federal Circuit engages in judicial hyperactivity by improperly acting as an advocate and as a fact-finder. Other commentators have criticized the Federal Circuit for engaging in judicial hyperactivity because of the court’s high reversal rate for claim-construction decisions.

This Article presents an empirical study to determine whether the Federal Circuit’s reversal rate is significantly greater than that of other circuits of the United States Court of Appeals. If the Federal Circuit’s reversal rates are significantly greater than those of other circuits, then this fact would tend to demonstrate that the Federal Circuit is a more judicially hyperactive court than other circuits. And if the Federal Circuit’s reversal rates in patent cases are significantly greater than those of other circuits, then this fact would tend to demonstrate that the Federal Circuit is judicially hyperactive particularly in patent cases. The results of this study tend to show that the Federal Circuit’s reversal rates are indeed greater than those of the other circuits studied — both for patent cases and non-patent cases combined, as well as patent cases individually — thus supporting the hypothesis that the Federal Circuit in patent cases is more judicially hyperactive than other circuits.

Keywords: reversal rate, Federal Circuit, patent, judicial hyperactivity, empirical

JEL Classification: K40, K41