On Monday, Apple Inc. filed a supplemental brief arguing that the federal government’s opposition to certiorari in a patent case disregards precedent and ignores the fact that the question presented is only going to recur absent resolution. The dispute is between Apple and Qualcomm Inc. over Apple’s alleged infringement of Qualcomm patents and involves an appeal to the Federal Circuit from an inter partes review decision upholding those patents’ validity.
As previously reported, Apple asked the Supreme Court to review the case on the basis that the Federal Circuit’s decision, dismissing the suit for want of constitutional standing, was misguided. The appellate court held that Apple offered no evidence showing that the patents’ invalidity would reduce its licensing payments to Qualcomm. Without justiciable controversy, the Federal Circuit declined Apple’ appeal and left the inter partes review decision in place in what it called a case-specific determination.
The Solicitor General’s brief came after the parties completed merits briefing and after several amici supported Apple’s position.
This week’s supplemental brief argues that the government’s recommendation to deny certiorari “is based on a regrettable disregard of this Court’s governing precedent.” The filing points out that the solicitor general failed to rely on or even cite relevant precedent and construed the most recent case so narrowly it was rendered “virtually meaningless in the portfolio licensing context.”
Apple also claims that the government’s assertion that it could have introduced “certain hypothetical categories of evidence” in support of standing, is wrong because no such evidence is necessary under Supreme Court precedent.
The brief specified that the circumstance Apple found itself in does not inherently diminish its standing. Specifically, the Federal Circuit’s opinion hinged on the fact that “‘validity of the challenged patents would not impact Apple’s ongoing payment obligations’ given other patents in the portfolio,” a situation which many other patent licensees deal with, Apple says.
As such, the response ventures that at a minimum, “the government’s brief demonstrates the sharp disagreement over an important issue with broad real-world impact.”
Apple is represented by Wilmer Cutler Pickering Hale and Dorr and Fish & Richardson P.C., and Qualcomm by Baker Botts L.L.P.
