How Successful Are Federal Circuit Cert Petitions in Patent Cases?

When a party is unhappy with the decision of an appellate court, they can petition the U.S. Supreme Court to hear their case by filing a writ of certiorari. While the Supreme Court is not obligated to hear these types of cases, they typically only do so if a case has national significance.

Each term, the Supreme Court receives about 7,000 to 8,000 cert petitions. However, they only grant and hear oral arguments in about 80 cases. This translates to a grant rate of 1% or less. Since 2015, there have been 611 Federal Circuit patent cases with cert petition outcomes. Out of those cases, the Supreme Court granted 51 (8%) cases, while it denied 560 (92%).

Finnegan managing partner James Barney told IAM that, “If a case was heard en banc and there was a split within the Federal Circuit in terms of a majority opinion and then a dissenting opinion, that could also be something that you can raise at the Supreme Court,” he said.

Overall, James believes it’s still a long shot to get a cert petition granted. “Unless there's a circuit split or an issue of immediate importance, we may be in an era for the next few years where the Supreme Court may not be looking to grant cert on appeals from the Federal Circuit,” he says.

Read “How Successful Are Federal Circuit Cert Petitions in Patent Cases?”