The Court of Appeals for the Federal Circuit’s Impact on Patent Litigation

Abstract

More than 20 years after the establishment of the Court of Appeals for the Federal Circuit (CAFC), research has yet to explain accurately the new court’s impact on patent litigation, patenting, and inventive activity. To address this shortcoming in the literature, we analyze a novel data set that permits us to consider separately the issues of validity and infringement in comparing the tendencies of the CAFC with those of its predecessor appeals courts. Our analysis of district and appellate decisions spanning 1953–2002 yields a recasting of the “pro‐patent” nature of the CAFC: while it has been significantly more reluctant than its predecessors to affirm decisions of invalidity, it has not been more reluctant to affirm “not infringed” decisions. Because of the CAFC’s tendencies, district courts have decided patents to be invalid significantly less often, patentees have appealed decisions of invalidity significantly more often, and infringement has become the more frequently decisive inquiry.