Through August 18th, the Federal Circuit sought comments on amendments to its Rule 47.6 and new local Rule 32.1. Debate over citation of nonprecedential rulings engendered this. The comments I filed addressed the lack of standards for deeming a ruling as nonprecedential. Rules in other Circuits articulate a basis for the nonprecedential designation, and so, why not the Federal Circuit rule. It says nonprecedential rulings are those not adding significantly to the body of law. That is a truism, not a standard. More preferably, an amended rule would give guidance, to which all panels would adhere, about why rulings are designated nonprecedential, or not.
Other Circuits deem precedential an opinion that clarifies a rule of law previously announced by the court, or that calls attention to an existing rule of law that appears to have been generally overlooked, or that involves an issue of continuing public interest. D.C. Circuit Rule 36(a)(2), IOP 47.5.1(a) (5th Cir.), Seventh Circuit Rule 53(c)(ii) and IOP 260(a)(3) (6th Cir.); see also N.J. Court R. 1:36-2(d) which sets seven Guidelines For Publication.
An amended rule with minimum standards for designating a decision as nonprecedential could mitigate some effects of unrestrained discretion. Scholars and petitioners for certiorari have noted that a panel may deviate from precedent, then cloak that with a nonprecedential designation. Also, the malleability of the language, and of the distinction between issues of law and fact, offer appellate panels tremendous leeway in rewriting around precedent.
A perceived aspect is the notion that big law firms and noted clients set the precedent of the patent Court. That perception required some research, since, unlike precedential rulings, the nonprecedential rulings of the Federal Circuit do not identify counsel of record. An unscientific study of Federal Circuit rulings in the first quarter of 2005, in which district court decisions were reviewed, disclosed that most all published, precedential opinions involve large law firms. Review of dockets for the nonprecedential rulings in March 2005 shows that most were argued by smaller, regional law firms. This promotes the perception that the way the Federal Circuit listens to, or treats, cases as involving precedential issues, or not, may vary depending on whether counsel has many patent appeals, or just one, before it.
Adding standards to the amended rule will defeat misperceptions about whether anomalous or atypical rulings are buried with a nonprecedential designation, or about whether the issues in the case, or the counsel who argue it, set the precedent of this Court. I’ll be interested to see what the Circuit reports about the sum of the submitted comments.