Matthew Dowd

Matthew Dowd Offers Insight on Rule 36 After Recent Federal Circuit Decision

In a recent article published on MLex (LexisNexis), Matthew Dowd was asked to comment on the Federal Circuit’s use of its Rule 36 one-line affirmances. There has been a steady drumbeat of complaints about Rule 36, where litigants—often patent owners appealing from the PTAB—complain that they lose with a Rule 36 affirmance, without a detailed explanation.

Despite “being on the wrong side” of a Rule 36 affirmance and recognizing some problems with the Rule, Mr. Dowd discussed the advantages of the court’s approach.

Mr. Dowd explained: “Would you rather have the opportunity to go into court, look the judges in the eye, talk to them and make your case in person? Or would you prefer to . . . forgo [oral arguments] and get a written decision that will say little more than what the lower tribunal did. To me it’s that simple.”

While Rule 36 very clearly has downsides, Dowd believes that any tradeoffs made in getting rid of the rule would not be worth it. At the end of the day, the ability to have in-person oral arguments surpass the sting of a Rule 36 ruling.

Mr. Dowd’s comments are based on his significant experience as an appellate advocate at the Federal Circuit. He has argued over 25 appeals at the Federal Circuit and brief many more. He has also written about the Rule 36 issue before: