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Are the Fed. Circuit’s Rule 36 Judgments Always a Bad Thing?

The Federal Circuit has been widely criticized for the practice, under its Rule 36, of affirming lower court and USPTO PTAB decisions without any opinion.  This post highlights two recent Rule 36 affirmances of holdings of patent-ineligibility under 35 U.S.C. § 101.  I should stress that I don’t disagree that the court generally owes its litigants an explanation of its decisions, and may even be bound to do so by statute. But I want to suggest that the two cases discussed below demonstrate that there are areas of patent law, even relating to applying the Mayo/Alice patent-eligibility test, whose contours are well-enough defined and do not need elucidation. The Federal Circuit’s Rule 36 provides as follows: Rule 36. Entry of Judgment – Judgment of Affirmance Without Opinion The court may enter a judgment of affirmance without opinion, citing this rule, when it determines that any of the following conditions exist…

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