EFF Making Mountains out of (CAFC) Molehills

Seems to be CAFC month around here. One more viewpoint in the debate from Jason Rantanen at the PatentlyO blog: the CAFC's record isn't that bad.

In particular, Rantanen takes issue with how the EFF appears to be keeping score. By noting that the CAFC has lost decisions unanimously, Vera Ranieri of the EFF claims that the CAFC is now "0-45". Well, yes, but. Rantanen points out that SCOTUS denies more cert petitions than it grants, and frankly it's rare for SCOTUS to take a petition if it's just going to uphold the decision. Overall, he calculates the SCOTUS reversal rate at 72%. I suspect that in this respect the CAFC is better than the 6th or 9th Circuits, both of which have a long history of having their decisions overturned.

And even if we restrict ourselves to petitions that were granted, Rantanen further notes that:

out of the 13 patent cases arising from the Federal Circuit since Bilski v. Kappos, the Supreme Court has affirmed the outcome in whole or part 7 times

That's not a bad rate, really, so maybe the EFF should tone it down a notch.