While scholarly efforts to explore reasons for a legal opinion's "influence" are long-standing, a recent paper takes a more focused approach. Specifically, in What Makes Federal Circuit Opinions Influential?, Jason Reinecke (Wisconsin) explores this question in the specific context of patent opinions and their influence at the Federal Circuit.
To be sure, debates on how to assess and operationalize "influence" in this context endure. While noting these debates, this paper settles on case citations as a "a common, useful, and reasonable metric to measure an opinion’s influence, even if imperfect."
Setting aside measurement error debates, the paper draws from a hand-coded dataset that includes "2,675 panel-level final written decisions and Rule 36 summary affirmances issued by the Federal Circuit between January 1, 2014, and May 31, 2021, that resulted in the disposition of at least one issue that could be classified as a pro-patentee ruling, a pro-challenger ruling, or a mixed ruling."
While the analyses are exclusively descriptive, two core findings emerge. First, and unsurprisingly, "some judges are more likely than others to issue binding opinions favoring patent owners (and others favoring patent challengers)." Second, and comparatively more surprising, the paper notes how similarly "mixed" panels "(i.e., panels with at least one pro-patentee judge and at least one pro-challenger judge) decide cases." The paper's abstract follows.
