It’s not often that I get upset over an adverse result in court.  It goes with the territory, and the only way never to lose is never to accept a challenge in the first place.

However, my equanimity in this regard is being tested — sorely.  And the source of my vexation is the Federal Circuit and its reliance on Federal Circuit Rule 36.  This little gimmick enables the court to issue a “summary affirmance” that lets it sidestep difficult issues on appeal and simply affirm a decision it likes without actually having to explain why the decision is correct.  This comes in handy — particularly when the lower decision isn’t correct, but the court likes the outcome anyway.

Last week I delivered an oral argument to the court in connection with our appeal in Hangartner v. Intel (CAFC Case No. 15-1293).  Fewer than 48 hours later we received a Rule 36 summary affirmance telling our client he lost but never explaining why.

What is troubling is that the panel apparently agreed during oral argument that the lower court’s stated basis for the claim construction it adopted was grammatically incorrect and contrary to well established cannons of  claim construction.  Undeterred by that minor inconvenience, the panel then began speculating whether the prosecution history — that was not in the record and was not before the court — might nevertheless support a construction that would let Intel off the hook.  In short, the panel started exploring arguments that even Intel never made.

Now to get to the point I’m trying to make:  We have a case here where all are apparently in agreement that the lower court’s stated basis for its decision is wrong. Nevertheless, the Federal Circuit elected to uphold that decision, despite recognizing the error below.  While it is entirely possible that alternate grounds might support the lower court’s decision, is it asking too much that the Federal Circuit simply write down and tell us what those alternate grounds are?  Or are these people too important and busy to do the job they were appointed to do? (At our expense, no less.)

Not only is my client kept in the dark as to why he lost, there is no way for us to assess whether the panel’s apparent finding of alternate grounds is, in fact, sound.  Nor can we seek meaningful review, either by the court in banc, or at the Supreme Court.  A cynic might suspect that the outcome had more to do with who the players are, and what the court’s agenda is, than with facts and what purports to be “the law.” Widespread use of Federal Circuit Rule 36 does little to allay such suspicions.

So what do you think?  Anyone else think the court has gone too far with this Rule 36 business?  This is not the first time it’s happened to us, though it is perhaps the most blatant abuse.  Hence my decision to speak up.

Recognizing that as participants and advocates in the case our views might be slightly biased, links to the opening, response and reply briefs are provided.  A link to the oral argument appears above.  You are of course free to draw your own conclusions.