Success at the (Usually) Highest Patent Court in the Land

In Analytics, Courts, US Courts of Appeal by Adam FeldmanLeave a Comment

The Supreme Court may be the “highest Court in the land” but the last stop for many patent, veterans, tax, and various other categories of claims is often the Federal Circuit Court of Appeals. The Federal Circuit is a specialized nationwide appeals circuit that hears cases by claim type rather than appeals from a certain geographic region. To compete in this space, some firms have developed niche practices often competing for top person-power. There is a split in firms geared at undertaking top cases in this mainly technological realm usurped by the Federal Circuit between boutique firms wholly focusing on patent law, and big firms that have specialized practices for such cases.

In the past year the Federal Circuit released over 850 opinions and orders in cases. Rather than looking at all firms that practiced before the Federal Circuit over the past year, I scaled this analysis to some of the top competing firms in this court. Fortunately, The Vault puts out ratings by practice area. According to their rankings, the top 10 2021 law firms for intellectual property are Fish & Richardson, Finnegan Henderson, Quinn Emanuel, Kirkland & Ellis, Morrison & Foerster, Cooley, WilmerHale, Wilson Sonsini, Fenwick & West, and Knobbe Martens.

Just as there is no easy way to rate the top 10 firms in this area, rating their relative success is no easy matter either. To do this I examined their clear wins in cases before the Federal Circuit over the past year (from March 10, 2020 through March 10, 2021). This left the following number of decisions per firm.

Along with their involvement in cases on the merits, Quinn Emanuel, Fish & Richardson, and Finnegan Henderson each authored an amicus brief in a case before the Federal Circuit over the past year as well (Fish & Richardson in Immunex Corporation v. Sandoz Inc., Finnegan Henderson in Euzebio v. McDonough, and Quinn Emanuel in Sanford Health Plan v. United States) that was listed on a decision.

31 of the decisions for these firms were unsigned or per curiam. The vast majority of those decisions were summary affirmances. The next graph shows the number of signed opinions from the various judges on the Federal Circuit for these majority decisions.

Obviously there is substantial variation in the number of opinions authored by these judges ranging from 13 at the high end to two at the low end.  Several of the judges also wrote secondary opinions in these cases. Judge Newman had five secondary opinions, Judge Reyna had two, and Judges Prost, Dyk, and Moore each had one.

I removed all non-final, interlocutory decisions and all decisions that did not dictate a clear victorious party. Deciding on the victorious party was not always as easy as looking at the court’s decisions though.  The case McRO, Inc. v. Bandai Namco Games America Inc. involving WilmerHale provides an example of where the court did not provide a clear winner. Here the decision of the court states, “We affirm the district court’s judgment that the Developers did not infringe the ‘278 patent. We vacate the district court’s judgment that the Developers were entitled to summary judgment that the ‘278 patent is invalid for lack of enablement. Without holding that the Developers could not make such a showing, we remand the case for such further proceedings as are appropriate, considering the Developers’ offer to withdraw their invalidity counterclaims.”  While this decision provides a conclusion to certain aspects of the case it leaves other aspects open for the lower court to interpret and resolve.

Now for the firms’ winning rates in these cases:

The three firms with the highest win rates are Morrison & Foerster at 100%, Cooley LLP at 83.33%, and Fish & Richardson at 70.59%.  Kirkland & Ellis and Fenwick & West are the other two firms among this group with over 50% win rates over the last year.  Morrison & Foerster’s wins come in the four cases: Google LLC v. Netlist, Nevro Corp. v. Boston Scientific Corporation, C R Bard Inc. v. AngioDynamics, Inc, Route1 Inc. v. AirWatch LLC.


Adam runs the litigation consulting company — Optimized Legal Solutions LLC. For more information write Adam at afeldman@thejurislab.com.

Find him on Twitter: @AdamSFeldman

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