This Article adds to the empirical literature examining how the Federal Circuit treats patent-law issues internally by comparing the decision making of the Federal Circuit with that of other courts of appeals. It does so by measuring two statistics from overall written opinions: the percentage of dissents and the percentage of en bane reviews. The data is taken from the Third, Fifth, Ninth, Tenth, District of Columbia, and Federal Circuits between 1998 and 2009. The data in the study show that the Federal Circuit has the second-highest percentage of dissents among the circuits studied (behind only the Ninth Circuit) and that it has a percentage of en bane review statistically indistinguishable from three of the other circuits studied. Based on these results, the Federal Circuit does not appear to be a court of a single-mind, as some commentators have suggested, at least as compared to other circuits. Rather, there is a good deal of dissent compared to other courts of appeals. This suggests that there are diverse views among Federal Circuit judges and that these judges are willing to play an active and vocal role in the law's development.

Document Type


Publication Date