Rule 36

Rule 36 is an often-used rule of procedure by the U.S. Court of Appeals for the Federal Circuit to rule against an appellant affirming the decision below, without issuing an explanation. The entire appellate decision by the Federal Circuit under this rule is just one word: "Affirmed".

A study found that patent owners, typically small inventors, are nearly four times as likely to be subjected to a Rule 36 order than an opponent of a patent, typically a large corporation, is. As explained by JDSupra:

“

When patent owners appeal PTAB decisions to the Federal Circuit, 67% of subsequent opinions are one-line Federal Circuit Rule 36 (“Rule 36”) summary affirmance orders, but when petitioners appeal, that number is a mere 18%. Chestnut Hill Sound Inc. v. Apple Inc., 774 F. App’x 676 (Fed. Cir. 2019), petition for cert. filed (U.S. Nov. 6, 2019) (No. 19-591).

”

The full text of Rule 36 states:

“

FEDERAL CIRCUIT RULE 36 Entry of Judgment (a) 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 and an opinion would have no precedential value: (1) the judgment, decision, or order of the trial court appealed from is based on findings that are not clearly erroneous; (2) the evidence supporting the jury’s verdict is sufficient; (3) the record supports summary judgment, directed verdict, or judgment on the pleadings; (4) the decision of an administrative agency warrants affirmance under the standard of review in the statute authorizing the petition for review; or (5) a judgment or decision has been entered without an error of law. (b) Separate Judgment. The clerk of court will not prepare a separate judgment when a case is disposed of by order without opinion. The order of the court serves as the judgment when entered.

”