The Federal Circuit

The Court of Appeals for the Federal Circuit (CAFC, often called 'the Federal Circuit') is a specialized U.S. appellate court established by the Federal Courts Improvement Act of 1982. It was created by merging the former Court of Customs and Patent Appeals (CCPA) and the appellate division of the Court of Claims. It has exclusive appellate jurisdiction over a defined set of federal cases, including all appeals from district court cases involving patent law (arising under 28 U.S.C. § 1295). Before the Federal Circuit was created, patent appeals went to the regional circuit courts of appeals (e.g., 9th Circuit for California, 2nd Circuit for New York), which applied inconsistent standards across the country — making the outcome of patent litigation dependent in part on where you filed the case. Congress created the Federal Circuit specifically to bring uniformity and stability to US patent law. The Federal Circuit is headquartered in Washington, D.C., and has 12 active circuit judges and a number of senior (semi-retired) judges who still hear cases. The Federal Circuit also has jurisdiction over cases involving international trade (from the Court of International Trade), government contracts, federal employees, veterans benefits, and certain other federal claims — but patent law is by far its highest-profile and most-developed area of jurisprudence. The Federal Circuit's decisions are binding on all U.S. district courts in patent cases. Only the U.S. Supreme Court is above the Federal Circuit in patent cases. The Supreme Court grants certiorari in Federal Circuit patent cases relatively rarely — roughly 2–5 times per year — but those decisions, like Alice v. CLS Bank, KSR v. Teleflex, and eBay v. MercExchange, can dramatically reshape patent law.

The Federal Circuit applies different standards of review depending on the type of question being reviewed: (1) Claim construction (de novo with deference to factual findings): The Federal Circuit reviews the legal conclusion of claim construction — what a disputed patent claim term means — without any deference to the district court or PTAB (de novo review). However, after Teva Pharmaceuticals v. Sandoz (S.Ct. 2015), when the claim construction turns on factual determinations (like the meaning of a term to a person skilled in the art, based on extrinsic evidence), those underlying factual findings are reviewed for clear error. In practice, this means the Federal Circuit frequently reverses claim construction rulings, even from experienced patent judges, because the de novo standard allows it to substitute its own judgment on legal questions. (2) Obviousness (de novo for legal conclusion; clear error for factual findings): Under Graham v. John Deere, obviousness is a legal conclusion reviewed de novo, based on four factual inquiries (scope of prior art, differences from prior art, POSITA level, secondary considerations). The factual findings are reviewed for substantial evidence (from a jury) or clear error (from a bench trial or PTAB). (3) Anticipation (factual question): Whether a prior art reference anticipates a claim is a factual question reviewed for substantial evidence or clear error. (4) Injunctions (abuse of discretion): The Federal Circuit reviews district court injunction decisions for abuse of discretion — a more deferential standard. (5) Claim validity (PTAB): On appeal from the PTAB, factual findings are reviewed for substantial evidence, legal conclusions de novo. The practical consequence: because claim construction and the legal question of obviousness are reviewed de novo, the Federal Circuit reverses on these grounds fairly often — one study found the Federal Circuit reversed or vacated district court patent decisions in roughly 25–30% of appeals in contested patent cases.

An en banc decision is one made by the full court — all active Federal Circuit judges — rather than the standard three-judge panel. En banc review is used to (a) reconsider a prior Federal Circuit precedent, (b) resolve circuit-internal conflicts when different three-judge panels have reached conflicting conclusions on the same legal question, or (c) address important questions of exceptional importance. A three-judge panel cannot overrule a prior Federal Circuit precedent — only an en banc court can do so. The process: a party petitions for en banc rehearing after an adverse panel decision; the court takes a poll of all active judges; if a majority vote to hear en banc, the case is reheard by all active judges. En banc decisions require a majority of all active judges. Major en banc decisions include: Festo Corp. v. Shoketsu (prosecution history estoppel and DOE, 2000 en banc, then reviewed by S.Ct. 2002); Phillips v. AWH Corp. (claim construction methodology, 2005 en banc); Therasense v. Becton Dickinson (inequitable conduct standard, 2011 en banc); Akamai Technologies v. Limelight Networks (induced infringement and divided infringement standard, 2012 en banc, 2015 en banc); Williamson v. Citrix (means-plus-function claim construction, 2015 en banc in part). En banc decisions are rare — the Federal Circuit issues only a handful per year — but they represent the court's definitive statements on contested points of patent law.

Yes — Federal Circuit decisions can be appealed to the U.S. Supreme Court by petition for a writ of certiorari. The Supreme Court is not required to hear any appeal from the Federal Circuit; it grants certiorari in its discretion. In practice, the Supreme Court grants certiorari in Federal Circuit patent cases roughly 2–5 times per year, out of the hundreds of Federal Circuit patent decisions issued annually. The Supreme Court typically grants certiorari when: (a) there is a conflict among circuits (though in patent law this rarely exists given the Federal Circuit's exclusive jurisdiction); (b) the Federal Circuit has decided an important question of federal law that the Supreme Court believes was decided incorrectly; (c) the Federal Circuit has repeatedly reached conclusions that conflict with Supreme Court precedent; or (d) the question has significant practical importance. The Supreme Court's willingness to review Federal Circuit patent decisions has notably increased since 2007 — in the period 2007–2024 the Supreme Court reversed or vacated the Federal Circuit in the majority of patent cases it heard (eBay, KSR, Bilski, Myriad, Alice, Nautilus, Octane Fitness, Halo Electronics, TC Heartland, Oil States, Arthrex, Amgen v. Sanofi are all reversals or significant modifications of Federal Circuit positions). This unusually high reversal rate reflects both the Supreme Court's skepticism of some Federal Circuit doctrines (particularly on § 101 eligibility and the standard for enhanced damages) and the Federal Circuit's role as a specialized court that sometimes develops doctrine in isolation from mainstream legal analysis. To appeal: file a petition for certiorari within 90 days of the Federal Circuit's decision (or within 90 days of denial of en banc rehearing).

After a PTAB ex parte appeal decision affirming an examiner's rejection of a patent application, the applicant has two paths to judicial review: (1) Federal Circuit appeal under 35 U.S.C. § 141(a): file within 63 days of the PTAB decision; no new evidence allowed — the Federal Circuit reviews only the administrative record; much faster (typically 12–18 months to decision); lower cost; the Federal Circuit applies de novo review to legal questions but substantial evidence to PTAB's factual findings; appropriate when the issue is legal (claim construction, whether the prior art teaches the claimed invention on the record), the record is well-developed, and you want a fast, lower-cost resolution. (2) Civil action in the U.S. District Court for the Eastern District of Virginia under 35 U.S.C. § 145: file within 63 days of the PTAB decision; NEW EVIDENCE is allowed — this is the key difference; the district court conducts a de novo review of the record, including new evidence submitted by the applicant; much more expensive (full district court litigation); takes 2–4 years typically; the applicant can introduce new expert declarations, experimental data, or claim construction arguments not in the record; the applicant pays the USPTO's attorney fees if it loses (35 U.S.C. § 145 requires applicant to pay all USPTO expenses, including attorneys' fees, regardless of outcome — a significant deterrent); appropriate when the applicant needs to introduce new evidence to overcome the PTAB's factual findings, when the prior record is inadequate, or when the applicant needs expert testimony that was not introduced during prosecution. Most PTAB appellants choose the Federal Circuit appeal — it's faster and cheaper. The § 145 civil action is reserved for cases where the applicant genuinely needs new evidence that was not in the prosecution record. Strategic note: the § 145 action requires paying the USPTO's costs — this creates a powerful financial deterrent that makes the Federal Circuit appeal the default choice for most applicants.