Here's the motion for leave:
Case: 13-1307 Document: 123 Page: 1 Filed: 10/22/2014
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CERTIFICATE OF INTEREST
Pursuant to Federal Rule of Appellate Procedure 26.1 and Federal Circuit
Rule 47.4, counsel for amicus curiae, Boston Patent Law Association, certifies the
following:
1. The full name of every party or amicus represented by me is: Boston
Patent Law Association.
2. The name of the real party in interest (if the party named in the
caption is not the real party in interest) represented by me is: None.
3. All parent corporations and any publicly held companies that own 10
or more of the stock of the party or amicus curiae represented by me
are: None.
4. The names of all law firms and the partners or associates that
appeared for the party or amicus now represented by me in the trial
court or agency or are expected to appear in this court are:
Erik Paul Belt, Esq.
Jennifer Itzkoff, Esq.
McCarter & English, LLP
265 Franklin Street
Boston, MA 02110
(617) 449-6500
Dated: October 21, 2014
Erik Paul Belt
Case: 13-1307 Document: 123 Page: 2 Filed: 10/22/2014
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MOTION OF AMICUS CURIAE BOSTON PATENT LAW ASSOCIATION
FOR LEAVE TO FILE BRIEF OF IN SUPPORT OF PLAINTIFFAPPELLANT
KEURIG, INCORPORATED
Pursuant to Federal Rule of Appellate Procedure 35, and Federal Circuit
Rule 35(g), the Boston Patent Law Association (“BPLA”), as amicus curiae in
support of Plaintiff Cross-Appellant I/P Engine, Inc.’s petition for rehearing en
banc, respectfully moves for leave to file an amicus brief. The BPLA’s brief
accompanies this motion. Plaintiff Cross-Appellant I/P Engine, Inc. and
Defendant-Appellant Google, Inc. have consented to the filing of this brief. 1
The BPLA is a nonprofit association of intellectual property attorneys and
professionals who serve a broad range of clients that rely on the patent system,
such as inventors, corporations, investors, universities, and research hospitals.
These clients operate in an equally broad range of industries, including life
sciences, high-tech, and traditional manufacturing. The BPLA provides
educational programs and forums for the interchange of ideas and information
concerning patent, trademark, and copyright laws. The BPLA also seeks to
promote and strengthen patent and other intellectual property rights because strong
intellectual property rights play a significant role in fostering a prosperous,
innovative, and thriving nation. The BPLA’s interest in this matter arises from its
1 Over the years, the BPLA has submitted numerous amicus briefs to this
Court, the Supreme Court, and other appeals and district courts around the country.
All of those briefs have been accepted by the courts and, in several instances, cited
with approval.
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concern that the panel majority in its per curiam decision disregarded the jury’s
findings of fact and substituted its own hindsight judgment in the determination of
the patent’s validity. The decision appears to make a de novo review of the jury’s
factual findings. Moreover, the concurring opinion seems to develop new grounds
for invalidating the patent that were not previously argued or developed by the
parties. The BPLA believes that this decision, if applied more broadly, will
weaken patent rights, thereby discouraging innovation and hindering economic
development.
It is appropriate for the Court to consider the arguments of a party that “ha[s]
specialized knowledge which may be beneficial to the [C]ourt in the resolution of
this case.” Hage v. U.S., 35 Fed. Cl. 737, 742 (Fed. Cl. 1996) (permitting filing of
amicus curiae brief). See also Cyan v. Commodity Futures Trading Comm’n, 125
F.3d 1062, 1063 (7th Cir. 1997) (it is appropriate for a court to consider an amicus
curiae brief “when the amicus has unique information or perspective that can help
the court beyond the help that the lawyers for the parties are able to provide”). The
BPLA has specialized knowledge that will assist the Court in considering certain
issues that the other parties may not fully explain. The attached amicus brief
provides detailed information regarding how the panel’s decision strays from
observing the important role the jury plays during a trial to determine the
credibility of the witnesses and the strength of the evidence, and the natural
Case: 13-1307 Document: 123 Page: 4 Filed: 10/22/2014
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division created by our adversary system between the trial court and the courts of
review. Given the importance that strong patents have in promoting innovation,
investment in technology, and economic development, the brief also details how
the panel’s decision contributes to weakening and devaluing patents, which could
in turn have broad sweeping negative effects on the U.S. economy. As such, the
BPLA presents certain historical, legal, and policy arguments that the parties have
not or may not otherwise present in full.
For the reasons set forth above, the BPLA respectfully requests that the
Court grant leave to file the attached amicus curiae brief.
Respectfully submitted,
Erik Paul Belt, Esq.
Jennifer Itzkoff, Esq.
McCarter & English, LLP
265 Franklin Street
Boston, MA 02110
(617) 449-6500
Counsel for Amicus Curiae, Boston Patent
Law Association
October 21, 2014
