Do No-Opinion Judgments by the Federal Circuit Violate Due Process?

Straight Path IP Group, LLC, Petitioner v. Apple Inc. (on petition for writ of certiorari 2019)

The patentee straight path provides the court with the following question:

Petitioner holds four patents that claim a new method for establishing point-to-point communications over a computer network. The validity of these patents was sustained by the Patent Trial and Appeal Board (“PTAB”) and by two decisions of the Court of Appeals for the Federal Circuit. Claiming infringement of its patents, petitioner sued Apple and Cisco Systems in the Northern District of California, the defendants’ home district. In an unreported decision, the District Judge granted summary judgment to Apple and Cisco Systems. He ruled that statements made by petitioner’s counsel during oral argument in one of petitioner’s successful appeals to the Federal Circuit narrowed the petitioner’s patent claims so that the Apple and Cisco systems did not infringe petitioner’s patents. The District Court decision raised only issues of law. Petitioner appealed to the Federal Circuit with a 54-page principal brief and a 38-page Reply Brief. Apple’s and Cisco Systems’ briefs totaled 110 pages. Less than two weeks after oral argument, a Federal Circuit panel issued a decision that stated, in toto, “AFFIRMED. See Fed. Cir. R. 36.”

The Question Presented is: Whether Rule 36(e) of the Federal Circuit’s Rules of Procedure violates the Fifth Amendment by authorizing panels of the Federal Circuit to affirm, with no explanation whatever, a District Court judgment resolving only issues of law.

Read the petition here.

36 thoughts on “Do No-Opinion Judgments by the Federal Circuit Violate Due Process?

  1. 9

    Bobby “Say Anything” Greenspoon: Rule 36 as written violates due process because it permits affirmance in conditions that undisputedly require reversal

    This is the st-u-p-i-d-e-s-t thing I’ve read in probably two weeks but I’m probably forgetting a bunch of stuff that Bildo wrote.

    1. 9.1

      I am actually amused every time that I see Malcolm use the “Bildo” reference as it only shows his own Trump-like nature.

      Such petty action as not even being able to reference an actual moniker is sooo Malcolm.

  2. 8

    I think this issue mainly boils down to how much power appeals courts have and their actually making mistakes just like every other decision making body. But with that being said, I really do think that if one of the parties really wants a formal written out decision then they should be able to obtain one even if it is all but a carbon copy of the opinion/decision below signed by the judges of the appeals court. If for literally no other more mundane of a reason than they’re having to pay so much money to appeal.

  3. 7

    I filed an amicus for US Inventor and eleven affected inventors in a cert proceeding last year that also attached Rule 36:

    link to supremecourt.gov

    Our argument was:

    1) Rule 36 as written violates due process because it permits affirmance in conditions that undisputedly require reversal;

    2) Rule 36 does not even resolve the “private” law (much less the public law), since many times such a judgment does not create issue preclusion; and

    3) Rule 36 systematically and incorrectly biases outcomes in favor of affirmance, because it prohibits “vote fluidity,” recognized as a beneficial aspect of appellate deliberation.

    The Court nonetheless denied cert.

    1. 7.1

      Are you really that surprised that the Supreme Court did not take an opportunity to strengthen the system that may have reflected a PRO-Patent view….?

      The Supreme Court has had a LONG history of being anti-patent. What would possess you to think otherwise here? (that is not to say that you should not have tried – kudos to you for doing that)

    2. 7.2

      Yes I’m aware of your amicus brief; however, it is missing a constitutional argument; under USSC case law a party to a proceeding in federal court under Art.III is entitled to opinion ; since a final agency adjudication is arising from Art.I branch, a Rule 36 affirmance is a due process violation ; I did not see you make this or a separation of powers argument in your amicus brief.

    3. 7.3

      Robert Greenspoon! Funny name for an even funnier guy. My goodness but the patent maximalists NEVER cease to amuse. Can attorneys get any d-u-m-b-e-r??

      1. 7.3.1

        How the F is such a vapid ad hominem comment permitted?

        Even from Malcolm, this is especially mindless.

        Malcolm, are your feelings that out of control?

  4. 6

    Regardless of the rules, the CAFC is doing yet another disservice to patent law by refusing to resolve important issues. These are questions that need to be answered, particularly in the face of meritorious reasoning.

    Yet another reason to return patent appellate jurisdiction to all of the circuits: the CAFC is apparently overworked.

    1. 6.1

      You have an answer in search of a problem, to which, your answer has no guarantee of being an answer, as well as you ignore all of the historical problems associated with your answer (and to which, it is more than likely that those historical problems would be exacerbated with this new problem.

      No. Better to deal with this issue once, than to deal with it circuit by circuit.

      Granted (separately) I am no fan of the current fire-hosed Simians in the cage, and have advocated that Congress reformulate the CAFC (after applying their Constitutional power of jurisdiction stripping of the non-original jurisdiction of patent appeals from the Supreme Court).

      1. 6.1.1

        I …have advocated that Congress reformulate the CAFC (after applying their Constitutional power of jurisdiction stripping of the non-original jurisdiction of patent appeals from the Supreme Court).

        Man, that’s some serious cryb@by stuff right there. You must burn through the diapers and kleenex like there’s no tomorrow.

        1. 6.1.1.1

          It is unclear how your expression of feelings relates to any of the cogent points that I have expressed.

          Maybe you misunderstand the concept of this blog being that people express their (hopefully cogent) views on the law and an actual dialogue ensues.

          You seem stuck on making insults based on your feelings — how very Trump of you.

          1. 6.1.1.1.1

            cogent [<—- snicker]

            You truly have no self-awareness whatsoever.

            1. 6.1.1.1.1.1

              … and there is that number one meme of Accuse Others…

  5. 5

    Every party in federal court is entitled to an opinion; if the prior judgement is a final agency adjudication, Rule 36 affirmance is improper and a due process violation. An agency adjudication under Art. I is not a opinion under Art. III

    1. 5.1

      How do you come to that conclusion? I’d love to see a decision (at any federal court level) that addresses that issue.

  6. 4

    I think it’s a fair point that in some rare cases, the application of Rule 36 might violate someone’s due process rights.

    But the Rule itself doesn’t violate Due Process.

    1. 4.1

      Not sure that you are applying the “as applied” rationale correctly.

      There is no difference in how the Rule is “being applied.”

      But there is a structural defect in results when the (same) “as applied” has a variable fact pattern below.

      The variability is below and NOT in the application of the Rule at the appeal level.

      1. 4.1.1

        Not sure that you are applying the “as applied” rationale correctly.

        I wouldn’t worry about it. The odds of me being wrong and you being right are close to zero.

        More important, I wasn’t “applying” any “rationale”. I was just observing that the Rule itself is not unconstitutional. Can it be applied in a manner that violates someone’s due process rights? Sure. Does that happen a lot? No. Is it any different from the reams of cases which include a sentence “We’ve considered the other arguments and find them lacking”, where it’s not clear whether those other arguments were, in fact, considered, or why they failed? I don’t think so.

        This whole kerfuffle is and has been a boring waste of time and that’s not going to change. Losers are gonna complain. Especially the big losers. And gosh knows there are a lot of them in the patent bar (including a lot of right wing losers, which are the worst kind).

        1. 4.1.1.1

          The odds of me being wrong and you being right are close to zero.

          It’s Opposite Day (as a typical offshoot of Malcolm’s number one meme of Accuse Others…)

          Your comments on “the rule itself” are flawed for the points in my counter above.

          You really don’t get this Con Law thing at all, do you?

    2. 4.2

      “I think it’s a fair point that in some rare cases, the application of Rule 36 might violate someone’s due process rights.”

      I’m confused as to how you would ever be able to figure out when this has happened if they don’t issue an opinion.

      1. 4.2.1

        I have outlined a few hows already 6 — the better point here though is that this is NOT an “as applied” condition, since the application itself is not changed; but rather, this is a systemic condition, based on factors extrinsic to the actual application.

        Malcolm should (but apparently does not) recognize this as a certain type of Constitutional problem.

  7. 3

    I did not see in the petition itself the actual words allegedly orally argued by the patent owner’s attorney that the D.C. judge assertedly used to narrow its claim interpretation – the asserted key issue here?
    The prior PTAB decision and thus its appeal would have been a BRI claim interpretation, if that was significant.
    Although I find it hard to believe the Sup. Ct. is ever going to strike down summary affirmances in general, there is a narrower issue here.

    1. 3.1

      Also, is this really a purely legal issue here?

      1. 3.1.1

        From pages 10-11 of the brief, in a nutshell, the position is:

        Yet the Federal Circuit failed to address either of the appeal’s difficult legal issues, and it did not provide a hint of why it affirmed the district court decision. Invoking a Local Rule on which it has increasingly relied notwithstanding a chorus of criticism, it told petitioner that it lost its appeal only “because I said so.”

        Counsel perhaps should have driven the nail home: when multiple (and multiply different) reasoning is available from below, the Congress-dictated action of review and opinion is defeated with a blanket Rule 36 affirmance.

        Perhaps this is covered elsewhere (caveat: I have not yet fully read through the petition), but the petition misses a chance to sink in a clear take-away that it could later develop into a strong position.

        As to Paul’s question of “is this really purely a matter of law?” – is there a reason why you would see this differently?

        1. 3.1.1.1

          … not liking the structure of the arguments of the brief… why lead with the weakest point? Where is the urgency to the deprivation of due process?

  8. 2

    NO. See Fed. Cir. R. 36.

    1. 2.1

      Um, did you read the Question Presented? The challenge is to Rule 36 itself. Which like any statute, a fortiori any rule made pursuant to a statute, is subservient to the Constitution.

  9. 1

    It seems that the Fed Circuit could avoid this entire problem (and all of the complaints that come from it) by writing a short opinion that basically says that they adopt or agree with the opinion written by the District Court. If they don’t agree with that reasoning, then they should be addressing it with a full opinion (precedential or nonprecedential).

    1. 1.1

      As for Due Process, does it require more than notice and the opportunity to be heard? I’m not aware of any decisions that say it requires more. If they’re out there, would someone please identify them.

      1. 1.1.1

        From what I gather from the writings of Prof. Crouch (and others), the due process concern arises in those cases in which a plurality if possible reasonings exist in the decision below, and the Appeal mere affirmance provides no basis as to which (and possibly all, but importantly, possibly only one) item of reasoning is to be considered dispositive.

        Given that the US system allows for ‘arguments in the alternative,’ not actually putting on the record the reasoning of the appellate court is problematic (especially for any result of the court that may see further action — either in an administrative agency, or in further court action). In such cases, particular notice may full well be said to be lacking.

        Note that the “sub” argument of a path from the administrative agency is made explicit as to not be in play with this case.

        1. 1.1.1.1

          Does “notice” require a party be told why a decision was made or does “notice” just mean that the party needs to be told about the proceeding before it occurs? The latter interpretation would fit with the “opportunity to be heard” phraseology that often comes up with Due Process challenges. If it only requires notice beforehand, then the reason for the decision is not necessary. That’s a rather unsatisfactory result, but it would comport nicely within Rule 36.

          1. 1.1.1.1.1

            Notice must be sufficient for purpose.

            Do you have a citation for the sufficiency of “just being told about the proceeding?”

            As to the points I provide, that “opportunity to be heard may well fall to the next action (at the administrative agency or higher court of appeal) to which the particular notice “of what” is critical (and critically lacking).

            I think that your mere told about the proceeding is far too constrained of an interpretation.

    2. 1.2

      Re: “..the Fed Circuit could avoid this entire problem (and all of the complaints that come from it) by writing a short opinion that basically says that they adopt or agree with the opinion written by the District Court.”
      Yes, but isn’t that what a Rule 36 Affirmance inherently is? Does it really need to be spelled out?
      Also, as to situations of “alternative arguments” if any one of them that is fully case dispositive is sustained on appeal, appeals do not require dealing with all of the others, which are effectively moot at that point.

      1. 1.2.1

        Here are a couple of dictionary definitions of the word “affirm” as Affirmed” is used here:
        “to confirm or ratify, [as in] the appellate court affirmed the judgment of the lower court.”
        “(of an appellate court) to determine that the action of the lower court shall stand.”

      2. 1.2.2

        Yes, but isn’t that what a Rule 36 Affirmance inherently is?

        No.

        Does it really need to be spelled out?

        Yes.

        See 1.1.1. (We also do not get to your “any one of them that is fully case dispositive is sustained on appealprecisely because the appeal
        F
        A
        I
        L
        S
        is actually — and explicitly (which is the crux of the matter — sustained on appeal. Rule 36 simply does not spell that out with the particular notice function. When more than one line of reasoning exists below, it is simply problematic that the appeals court is silent as to which IS sustained. As I noted, it may well be that ALL lines of reasoning provide that “sustained,” but critically, it ALSO may well be that NOT ALL lines of reasoning may provide that “sustained,” and it may well be very important to know (hence, notice), which particular line of reasoning IS the one (if there be but one) that does provide the “sustain.”

Leave a Reply

Your email address will not be published. Required fields are marked *

You can click here to Subscribe without commenting

Add a picture