"Judicial Hyperactivity" in the Federal Circuit: An Empirical Study Contrasting the Federal Circuit’s Reversal Rates with Reversal Rates of Other Circuits

Ted L. Field, South Texas College of Law

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 empirical research that contrasts the Federal Circuit’s reversal rates with those of other circuits to help determine whether the Federal Circuit engages in judicial hyperactivity to a greater extent than other circuits. If the Federal Circuit’s reversal rates are significantly higher than those of other circuits, then this fact would tend to demonstrate empirically that the Federal Circuit is a more judicially hyperactive court than other circuits.

The results of this study tend to show that the Federal Circuit’s reversal rates are indeed higher than those of the other circuits studied, thus supporting the hypothesis that the Federal Circuit is more judicially hyperactive than other circuits. The Federal Circuit’s overall reversal rate was statistically significantly greater than the overall reversal rate of the representative regional circuits taken as an aggregate. Moreover, the Federal Circuit’s reversal rates for the individual standards of review exceeded those of the representative regional circuits. In particular, the difference between the Federal Circuit’s reversal rate for the de novo standard of review and that of the representative regional circuits treated as an aggregate was statistically significant. Additionally, for three procedural postures studied—summary judgment, judgment as a matter of law, and preliminary injunction—the Federal Circuit’s reversal rate was statistically significantly greater than that of the representative regional circuits taken as an aggregate. Thus, the results of this study indicate that the hypothesis that the Federal Circuit’s reversal rate is higher than that of the regional circuits should be accepted. Therefore, these results tend to empirically confirm that the Federal Circuit has engaged in a greater degree of judicial hyperactivity than the representative regional circuits studied.