This is the only post before I do a full analysis of the Reines opinion, but word needs to get out: it’s wrong. I’m shocked — baffled is a better word actually — at what the Court did.
I’ll begin with this passage from the Court’s “en banc” opinion (more on that later) since it’s the easiest thing to deconstruct for you so far. The court wrote:
It [the email in Ex. 38] suggested that his special relationship with the court should be taken into account. Respondent touted his role as chair of this court’s Advisory Council, and stated that his “stature” within the court had helped “flip” a $52 million judgment in favor of his client and that he “would love to help [the recipient of his message] do the same.” Reines Ex. 38.
The court did not quote email exhibit 38. In fact, the Court both misrepresents what the email says, and its “interpretation” makes absolutely no sense. Here is the material text of Exhibit 38:
Paul, I saw the unfortunate verdict in ND Cal in the Power Integrations case. I call to offer assistance in two ways. I can help in the district court. No one knows this court better or has a better relationship with the bench. I have chaired the ND Cal Patent Rules committee for many years and am viewed as an authority on all-things-patent by this bench. You will have maximum credibility. Second, I am a leading Federal Circuit advocate. Just yesterday Chief Judge Rader sent me an email reporting how impressed the Federal Circuit judges were in appeals I argued Tuesday. In one of those cases I helped flip a $52 million verdict. I would love to help you do the same. Yesterday’s email [from Chief Judge Rader] is below. Please keep it to Fairchild. I have served the Federal Circuit as Chair of its Advisory Council for many years. That obviously speaks to my stature at that court.
Where to begin. Putting to the side the fact that it obviously doesn’t say what the court said — he did not say his stature helped flip a jury verdict — it also cannot be reasonably read that way: he refers to an oral argument that had just occurred two days prior, and says he helped flip the verdict. Wow! How did he know 2 days after argument that the case had been reversed?
It hadn’t been two days. He had “flipped” the verdict in a JMOL before the district court. The Federal Circuit’s characterization of the evidence — and this seems to be the key piece — is flatly wrong. This is outrageous.
And there is more.