If the IP bar is governed by an aristocracy, then it would have to include those on the Federal Circuit Court of Appeals. Others too may hold rank on this social register.
The CAFC recently proposed to amend its rules that concerned opinions it deems non-precedential. One comment filed with the rules panel was that the CAFC rules give little insight about what makes a case precedential, vel non. Would a unique issue, decided in mere workmanlike fashion, be non-precedential; would a stellar review, involving a pedestrian issue of claim construction, deserve the banner of precedential authority. Another matter left to the vagaries of discretion.
One theory, based on observation rather than linear proof, is that precedential rulings typically involve large, well-known law firms representing the appellant. So too with the lesser side of the docket, where the non-precedential decisions of the CAFC name small firms as counsel for the appellant. The theory derived from this is that small firms present less significant issues, or that their arguments result in insignificant CAFC rulings. Use your own imagination to postulate how the theory applies when large law firms appear for an appellant before the CAFC.
Just take the rulings in January 2007. Appellants’ counsel in the non-precedential decisions had names such as Cislo & Thomas (14 attorneys), Lambert & Associates (4 attorneys), Matthews, Lawson (13 attorneys), and Yetter & Warden (22 attorneys). The largest firm in the 2007 non-precedential group was Middleton & Reutlinger (47 attorneys). Compare that against the firms named as appellants’ counsel in the precedential rulings: Robins Kaplan, Baker & Botts, Fulbright & Jaworski, Leydig Voit, Morrison & Foerster, Sidley & Austin – all large firms. Among the 2007 setters of precedent for appellants at the CAFC in January, the firm of Moses & Singer (@90 attorneys) was about the smallest. The one exception was 35+ attorney firm representing appellant in the Intl Electronic case, in which the “court takes umbrage” and puts all “members of the bar …on notice” that sanctions may be imposed for appealing a non-final order. Everyone needed to know that precedent.
It’s just an theory derived from observations, drawn upon meager statistics. Still, would it be just for the appeals presented by large firms to be favored, or for the issues pleaded by small firms to be disdained or given second rank. The case and the issues, not the counsel, should make a CAFC case important enough to be accorded the treatment given to precedential decisionmaking.