Statistics on Federal Circuit decisions
Assuming that appellate review of claim construction is consistent
with Priest and Klein's case selection model predicting a 50% appellate affirmance rate, the 60% affirmance rate of claim constructions would not be extraordinary.
However, the Priest and Klein model does not appear to be a viable
model for appellate affirmance rates. n74 Instead of a 50% affirmance rate by appellate courts in the United States, the affirmance rate has consistently been around
80%. n75 For 2001 and 2002 the average affirmance rate for all the
Circuits of the United States Courts of Appeals [*1393] was 90.4%n76 and 90.5%, n77 respectively, based on the data collected by the Administrative Office of the United States Courts ("Administrative Office").
Likewise, the Administrative Office reported an affirmance rate of 84% for the Federal Circuit Court of Appeals in 2002. n78 In addition, an independent study of every patent case that
went to trial from 1983 to 1999 found that the overall affirmance rate by the Federal Circuit for all issues in patent cases was 78%. n79 These overwhelming statistics demonstrate that the case selection model is ineffective in predicting appellate affirmance rates.