“In an appeal from an inter partes review decision of unpatentability, a losing Patent Owner-Appellant is more than three times as likely to receive a one-word summary affirmation than a losing Petitioner-Appellant. The Federal Circuit issues these one-word summary affirmations under Federal Circuit Rule 36.
This Court has already requested briefing on a related question regarding Federal Circuit Rule 36(e) in Straight Path IP Group, LLC v. Apple Inc., et al., Sup. Ct. No 19-253. The Questions Presented below address disparities of outcomes for Patent Owners versus Petitioners, but they may be considered companion issues.
1. Can a court ever choose to write reasoned opinions for one class of losing appellants and not another under the Due Process and Equal Protection Clauses; and if so, how disparate can the issuance rates of reasoned opinions, versus summary affirmations, be for different classes of appellants?
2. Is the Public entitled to reasoned opinions when the absence of those opinions diminishes the Public’s right of access to the courts and ultimately results in the erosion of the Rule of Law?”