IN THE SUPREME COURT OF THE UNITED STATES. No. LIGHTING BALLAST CONTROL LLC, Applicant, v. UNIVERSAL LIGHTING TECHNOLOGIES, INC., Respondent.

Transcription

1 IN THE SUPREME COURT OF THE UNITED STATES No. LIGHTING BALLAST CONTROL LLC, Applicant, v. UNIVERSAL LIGHTING TECHNOLOGIES, INC., Respondent. APPLICATION TO THE HON. JOHN G. ROBERTS, JR., FOR AN EXTENSION OF TIME WITHIN WHICH TO FILE A PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT Pursuant to Rule 13(5) of the Rules of this Court, applicant hereby moves for an extension of time of 29 days, to and including Friday, June 20, 2014, for the filing of a petition for writ of certiorari to review the decision of the United States Court of Appeals for the Federal Circuit dated February 21, 2014 (Exhibit 1). The jurisdiction of this Court is based on 28 U.S.C. 1254(1). 1. The date within which a petition for writ of certiorari would be due, if not extended, is May 22, This case presents the same question as Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., No , in which the Court granted certiorari on March 31, Specifically, it concerns whether patent claim construction is a purely legal issue that is reviewed de novo on appeal, including any fact-based questions underlying the claim construction, or whether such factual determinations must be reviewed for clear error under Federal Rule of Civil Procedure 52. Indeed, this is

2 the case that the respondents in Teva urged the Court to await instead of granting certiorari in that case. 3. In this case, the Federal Circuit granted rehearing en banc to reconsider its roundly criticized rule that patent claim construction is a purely legal issue that is reviewed de novo on appeal a rule that derives from its decision in Cybor Corp. v. FAS Technologies, Inc., 138 F.3d 1448 (Fed. Cir. 1998) (en banc). Twenty-one separate amicus briefs were filed; sixteen of them, including a brief by the United States, urged the court to overrule the so-called Cybor rule. Yet in a 6-4 vote, the en banc court upheld the rule, largely based not on the merits of the rule but on grounds of stare decisis. 4. In so holding, the en banc court affirmed the panel s reversal of a claim construction by the district court that had resulted in a multi-million dollar judgment for applicant. That claim construction turned on the assessment of expert testimony concerning the patent claim at issue. Had the panel applied clear-error review rather than the Cybor-mandated de novo review, there is little doubt that it would have upheld the district court s eminently plausible findings concerning that expert testimony and, consequently, upheld the district court s critical claim construction. 5. This case also presents two other potential questions for the Court s review. First, if the Court holds in Teva that claim construction is a purely legal issue, as is currently the rule in the Federal Circuit per Cybor, then this case implicates a clear and acknowledged circuit split over whether a court of appeals 2

3 may review a purely legal challenge rejected at summary judgment but not later raised in a motion under Federal Rule of Civil Procedure 50. Second, the case presents the question whether there is a futility exception for objections to jury instructions under Federal Rule of Civil Procedure 51, an issue on which the circuits are likewise split. 6. Applicant s Counsel of Record in this case, Paul D. Clement, Esq., was only recently retained and was not involved in proceedings before the Federal Circuit or district court. Mr. Clement must familiarize himself with the complex and lengthy proceedings below and with the arguments presented before the district court, court of appeals panel, and en banc court of appeals. Furthermore, between now and the current due date of the petition, Mr. Clement has substantial briefing obligations in this Court in Christie v. National Collegiate Athletic Ass n, No , New Jersey Thoroughbred Horsemen s Ass n, Inc. v. National Collegiate Athletic Ass n, No , and Sweeney v. National Collegiate Athletic Ass n, No (brief in opposition to petition for certiorari due May 14); R.J. Reynolds Tobacco Co. v. Brown, No (reply to petition for certiorari due May 19); and R.J. Reynolds Tobacco Co. v. Walker, No (reply to petition for certiorari due May 19). In addition, less than a week after the current due date of the petition, the reply to the petition for certiorari in Republic of Argentina v. NML Capital, Ltd., No , is due at the Court (May 27), and the brief for petitioner on the merits in Integrity Staffing Solutions, Inc. v. Busk, No , is due (May 28); Mr. Clement is counsel of record in both cases. Finally, between now and the current 3

4 due date of the petition, Mr. Clement has four oral arguments in the federal courts of appeals. 7. In the proceedings below, the en banc Federal Circuit affirmed the panel s decision reversing the district court s claim construction. Accordingly, an extension of time will not prejudice respondent. For the foregoing reasons, applicant hereby requests that an extension of time to and including June 20, 2014, be granted within which applicant may file a petition for writ of certiorari. Respectfully submitted, Andrew J. Dhuey 456 Boynton Avenue Berkeley, CA Robert P. Greenspoon FLACHSBART & GREENSPOON, LLC 333 N. Michigan Ave., 27th Floor Chicago, IL Paul D. Clement Counsel of Record George W. Hicks, Jr. BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C (202) pclement@bancroftpllc.com Counsel for Applicant Lighting Ballast Control LLC May 9,

5 IN THE SUPREME COURT OF THE UNITED STATES No. LIGHTING BALLAST CONTROL LLC, Applicant, v. UNIVERSAL LIGHTING TECHNOLOGIES, INC., Respondent. CERTIFICATE OF SERVICE I, Paul D. Clement, a member of the Supreme Court Bar, hereby certify that three copies of the attached Application to Chief Justice John G. Roberts, Jr., for an Extension of Time to File a Petition for Writ of Certiorari to the United States Court of Appeals for the Federal Circuit were served on: Steven J. Routh Orrick, Herrington & Sutcliffe LLP Columbia Center th Street, N.W. Washington, D.C (202) Counsel for Respondent Service was made by first-class mail on May 9, Paul D. Clement Counsel of Record BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C