The Brandeis Brief in Patent Cases

by Dennis Crouch

Louis D. Brandeis was a famous lawyer long before becoming a Supreme Court Justice. In the 1908 case of Muller v. Oregon, Brandeis represented the State of Oregon defending the state’s rule restricting the number of hours that women could work in certain industries.  In defense of the law, Brandeis filed a brief that presented social science research and empirical evidence to support the argument that long working hours had negative effects on women’s health and family life.  That evidence helped sway the court and also spawned the “Brandeis brief” — an approach that continue to be a popular mechanism for attempting to influence the Supreme Court. Brandeis briefs typically include lots of facts and claims about how the world works and ask the court to use those facts in its interpretation of the law.  One key problem with this approach is that it does not follow the usual rules of evidence required for factual findings.  And, when the Supreme Court adopts the findings, then the facts suddenly become the law and binding precedent.  Thus, Muller v. Oregon, the Supreme Court precedentially concluded that it was uniquely risky for women to work long hours and that their natural caregiver role would be improperly disrupted.  Today, we might recognize that those conclusions included inherent cultural biases rather than stemming from the nature of women.

A major problem with this sort of evidentiary submission directly to the Supreme Court is that it is unchecked and admittedly biased — these are sent to the court in briefs advocating a particular point of view and without the ordinary judicial evidentiary process.  But, proponents of Brandeis briefs argue that the rules don’t apply to these “legislative facts” because the evidence is being used to interpret the law rather than make case-specific factual conclusions.  This is much the same approach as the Court uses to determine historical facts for originalist decisions.  But, many historians would agree that history as defined in Supreme Court cases appears to be cherry-picked in order to achieve a particular results.

In patent cases, we often have Brandeis briefs on the policy impact of certain choices.  In addition, we also regularly see attempts to explain the science to the justices in ways that help lead them to a particular conclusion.  In Amgen, for instance, Nobel Prize winner Gregory Winter submitted a brief explaining that antibody design is extremely unpredictable and, because of that, broad functional claims should not be allowed.   Amgen contended that some of the evidence Winter relied upon had been excluded by the trial court, and thus should not be reintroduced to the Court. But, the practice is likely to persist.

62 thoughts on “The Brandeis Brief in Patent Cases

  1. 13

    “Winter submitted a brief explaining that antibody design is extremely unpredictable and, because of that, broad functional claims should not be allowed”

    Hmm, if it’s antibody-design, there must necessarily be some decent predictability present, otherwise, it wouldn’t be called antibody design. “Antibody random experimentation’.

    Perhaps Dr. Winter didn’t realize also, that claims are limited by the spec.

    1. 13.1

      … and as noted, (no real detective work necessary), let’s see if his signature is on the oath for his own patent efforts — and similar claims of the type he would decry.

  2. 12

    Oops. She was appointed in California. My bad.

    Regardless, first Muslim judge on an appellate court in the US.

  3. 11

    Here’s another opportunity for a “Brandeis Brief”: The U.S. Solicitor General has filed an amicus brief with the Supreme Court urging the grant of Teva Pharmaceuticals’ cert petition objecting to the Fed. Cir. establishing patent infringement proofs by “skinny labels.” {This was my racetrack pick for cert grant, and this SG input does improve the long odds against it.]

  4. 10

    There’s also a very big difference between “legislative facts” cited in court decisions based on: (1) assertions of factual matters that are inaccurate and easily disproven, and (2) facts that claim to have been derived from research and analysis, which are far more difficult to disprove or discredit.

    Perhaps the most famous example of (2) is footnote 11 in Brown v. Board of Education (1954), in which the Supreme Court cited psychological studies on the impacts of racial segregation in outlawing school segregation under the Equal Protection clause. Reliance on those studies was heavily criticized by many who thought the citation diluted what should have been a straightforward and unanimous rebuke of racial segregation under the Equal Protection clause, without any suggestion that the outcome depended on these external studies.

    But a lot has happened in the ensuing decades, and category (2) has grown steadily and is now far more dangerous with courts citing “studies” that are notoriously difficult to attack. It often takes years before studies are debunked even in the “hard” sciences and medicine, and the current replication crisis is only confirming the widespread nature of problems in papers even from the most prestigious sources. Even worse, many of the papers in category (2) cited to courts today in amicus briefs, when you look behind them, appear to be junk papers commissioned for the sole purpose of later being cited in court briefs. Federal courts should consider this stuff with extreme caution, and with a very big grain of salt.

    1. 10.1

      If you want to see a plethora of false studies masquerading as portraying reality, note how Dr. James Lindsay came to prominence.

      Academic papers have LONG been captured by philosophies divorced from any sense of reality.

      This is also one reason why I have in the past promulgated that legal academics should have an even more onerous ethics bar than practitioners, as these BOTH ‘educate’ attorneys AND attempt to influence law directly through the Amicus system.

      1. 10.1.1

        Hilarious (and revolting) to see the blog’s biggest gaslighter back on his toadstool and preaching about honesty and credibility. This is the same guy who can’t admit that software is instructions. The same guy who can’t admit the facts in Mayo v Prometheus. The same guy who can’t admit the fact that you can’t have a working eligibility test in the US without comparing the claims to the prior art.

        In short, we have this blog’s most consistent l i a r (alongside Night W i per) puffing himself up as an authority on accuracy.

        Just another one of Dennis Crouch’s favorite little f a s c i s t s.

        1. 10.1.1.1

          Your emotive rants are well-noted Malcolm for Accusing Others Of That Which Malcolm Does.

          Here, in spades.

        2. 10.1.1.2

          As long as Malcolm is going off the deep end in response to a perfectly legitimate point on the level of ethical constraints that those who affect law should be beholding to,….

          How Bill Maher defines ‘woke’

          https://youtube.com/shorts/tzwC-10O0cw?feature=share

          Maher – that darn tootin Far Right b1g0t….

  5. 9

    Great article Prof. Crouch. I had no idea of the history behind amicus briefs and it is important to know especially the historical risks of bias.

  6. 8

    And this point of view is why we have a declining population. Work work work at the expense of the family and our health.

  7. 7

    I recall reading that the SCOTUS Justices were being criticized for adopting arguments from amicus briefs that they did not bother to fact check them for what were mere unsupported allegations. I would hope that Supreme Court clerks would be more diligent.

    1. 7.1

      I expect the clerks are no more diligent than their bosses, which in most cases is only as diligent as you need to be to keep the Grand Old Party and those glorious white daddies relevant while pursuing the somewhat unpopular agenda of returning to a pre-Civil War society.

    2. 7.2

      IIRC, there were some nasty allegations repeated in a Justice Gorsuch dissent in a patent case that turned out to be factually inaccurate and easily disprovable, and were lifted directly from a brief citing a blog (not this one) but that were not verified and taken as true.

  8. 6

    DC: “ Thus, Muller v. Oregon, the Supreme Court precedentially concluded that it was uniquely risky for women to work long hours and that their natural caregiver role would be improperly disrupted. EVEN MORE THAN A CENTURY AGO MANY INTELLIGENT PEOPLE RECOGNIZED THAT THIS REASONING WAS DRIVEN BY inherent cultural biases rather than stemming from the nature of women.”

    Fixed for accuracy. You have a Supreme Court filled with men who belong to a religion that doctrinally places men above women for all intents and purposes and … what a shocking result. Nobody could have predicted it.

    1. 6.2

      Which party was the first to appoint a woman to the Supreme Court? I know many like to pretend RBG was the first woman on the court, but Sandra Day O’Connor was first.

      Where does Islam doctrinally place women? Judaism? Before you protest that there are no Muslims on the Supreme Court, I remind you that Biden appointed the first Muslim (woman) to an appellate court.

      I am an old-fashioned feminist. I believe women should be able to do whatever they want and not be judged, including being a wife and mother.

      1. 6.2.1

        Oops. She was appointed in California. My bad.

        Regardless, first Muslim judge on an appellate court in the US.

  9. 5

    DC: “Amgen contended that some of the evidence Winter relied upon had been excluded by the trial court, and thus should not be reintroduced to the Court.”

    Was it excluded under Daubert, or for some other reason? I’m not arguing that it matters (I doubt that Amgen thinks the reason for excluding matters), just curious about the specifics of the evidence that was excluded and the reasons for excluding it.

  10. 4

    We saw this in Oil States with Lemley’s amicus brief regarding whether patents could be invalidated at the Court of Chancery. The opinion was based on Lemley’s assertions that were disputed by the dissent.

    So, perhaps the most important case in 200 years of patent law was decided by an academic paper with no peer review and no consequences for unethical conduct. And where the dissent disputed Lemley’s assertions.

  11. 3

    Gregory Winter is a hypocrite. Here is a broad claim from an early U.S. Patent of his, 5,225,539. Note the functional language. Or, perhaps he changed his mind…

    1. An altered antibody or antigen-binding fragment thereof, wherein a variable domain of the antibody or antigen-binding fragment has the framework regions of a first immunoglobulin heavy or light chain variable domain and the complementarity determining regions of a second immunoglobulin heavy or light chain variable domain, wherein said second immunoglobulin heavy or light chain variable domain is different from said first immunoglobulin heavy or light chain variable domain in antigen binding specificity, antigen binding affinity, species, class or subclass.

    1. 3.1

      doubtful that the inventor wrote the claim. The attorneys hired by the company that owned the patent wrote the claim. Anyway, irrelevant to the decision by the supreme court. You can always find an old patent that is probably invalid–doesn’t prove anything.

      1. 3.1.1

        Winter was one of the first involved in the recombinant production of antibodies. He was very much aware of what was being claimed. I am sure I can find many more examples, and more recent.

        It is extremely relevant. If he had to testify under oath, with the threat of cross examination, I doubt he would make such a sweeping claim.

        1. 3.1.1.1

          “ If he had to testify under oath, with the threat of cross examination, I doubt he would make such a sweeping claim.”

          Your kidding, right?

          1. 3.1.1.1.1

            Easy check to see if he signed the oath to that application (with claims).

            What (ever) reason would you think otherwise, Malcolm?

              1. 3.1.1.1.1.1.1

                Doesn’t take “Perry Mason,” and the suggestions for that (as well as questioning PM’s post) are asinine.

                1. NPtC,

                  Cannot bring myself to embrace the 1984ing of the quite apparent lack to portray it as a strong suit.

      2. 3.1.2

        As for “litig8or,” that’s twice out of two quick swings for you that both miss.

        0-2 is the count for your at-bat here.

  12. 2

    One of my favorite (/s off) findings of fact in a Supreme Court decision:

    We have described the concern that drives this exclusionary principle as one of pre-emption. See, e.g., Bilski, supra, at 611–612 (upholding the patent “would pre-empt use of this approach in all fields, and would effectively grant a monopoly over an abstract idea”). Laws of nature, natural phenomena, and abstract ideas are “ ‘ “the basic tools of scientific and technological work.” ’ ” Myriad, supra, at ___ (slip op., at 11). “[M]onopolization of those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it,” thereby thwarting the primary object of the patent laws. Mayo, supra, at ___ (slip op., at 2); see U. S. Const., Art. I, §8, cl. 8 (Congress “shall have Power . . . To promote the Progress of Science and useful Arts”). We have “repeatedly emphasized this . . . concern that patent law not inhibit further discovery by improperly tying up the future use of” these building blocks of human ingenuity. Mayo, supra, at ___ (slip op., at 16) (citing Morse, supra, at 113).

    Might tend to impede innovation more than it would tend to promote it? That sounds like a finding of fact to me. Where did they ever derive that from?

    1. 2.1

      Might includes might not.

      It is far less any such “funding of fact” and far more reflective of improper future projective conjecture (violating the No Advisory Opinions, much less actual standing requirements).

      Sadly, Congress sits, fractured and captured.

      Good research project for the Prof: dig into what finally set Congress awake in order to develop the Act of 1952.

      1. 2.1.1

        While “funding” was an odd “auto-correct,” it is a touch amusing and brings to mind the always-correct adage of “follow the money.”

      2. 2.1.2

        Worrying about precedent is not an “Advisory Opinion” when, as in the cited cases, the parties before the Court had a live and justiciable case or controversy ripe for the Court’s decision.

      1. 2.3.1

        You have to understand that the folks who believe that there should be no limits on eligible subject matter don’t have enough intelligence to remember beyond yesterday or predict anything beyond tomorrow. They are greedy short sighted toxic people and their “common sense” tells them only that they will benefit from the result quickly and everybody else can hang.

        1. 2.3.1.1

          Lovely one-bucket of yours. Did you notice that it is full or your own anti-patent animus?

          How you must
          H
          A
          T
          E
          your very existence, being a patent attorney.

      2. 2.3.2

        From the arguments of the parties as presented to the Court and also common sense.
        LOL. First, arguments aren’t facts. Second, arguments regarding a certain set of facts don’t lead to the sweeping generalization about all technologies made by the Supreme Court.

        As for common sense, the Supreme Court wouldn’t know common sense if it bit then in the asz. Regardless, whether a patent “might tend to impede innovation more than it would tend to promote it” is something that has to be done on a case by case situation.

        Moreover, that exceptionally ambiguous finding isn’t being treated like the wishy-washy statement it is. Rather, the Courts have converted “might tend to” into “necessarily” and “basic tools of scientific and technological work” into just about anything under the sun made by man.

        The Supreme Court’s assertion about “imped[ing] innovation more than it would tend to promote it” is the lynchpin to its entire holding. Had the Court found otherwise (i.e., that these types of patents promoted innovation more than they impeded it), does anyone reasonably think the Supreme Court would have came out the same way. They used the term “promote” because that is the terminology in the US Constitution. The impeding innovation more than promoting it is the Constitutional basis for their arguments.

        The “monopolization of those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it” is a direct quote from Mayo, which was not accompanied by any citation whatsoever. They didn’t cite to any portion of the record or any findings from the lower courts. The lynchpin to the Supreme Court’s holding is a finding of fact that has zero support. Rather, it was pulled out of thin air by the Supreme Court.

        1. 2.3.2.1

          “ The “monopolization of those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it” is a direct quote from Mayo, which was not accompanied by any citation whatsoever.”

          Remind everyone what Mayo was about and remind everyone about Prometheus’ theory of infringement (i.e., what did one need to do in order to infringe Prometheus’ claim).

          Then revisit that quote and tell everyone why you disagree with it. Go ahead! You’re a very serious person.

        2. 2.3.2.2

          “ the Courts have converted “might tend to” into “necessarily” and “basic tools of scientific and technological work” into just about anything under the sun made by man.”

          L I A R.

          I mean, this is in the context of a discussion about evidence and you are spewing total g a r b a g e.

            1. 2.3.2.2.1.1

              How many patents granted in the last five years? How many of those patents were in the fields where most of the “inventing” is the application of logic to data? Tell me the number and then cry your pitiful again while we all watch.

              L I A R S can’t handle the truth. And you are one of the most notorious.

    2. 2.4

      >Might tend to impede innovation more than it would tend to promote it? That sounds like a finding of fact to me. Where did they ever derive that from?

      Yup. I agree. And I think it is important to see that the Scotus then concludes that therefore granting the claims is unconstitutional because of their finding of fact.

      Outrageous.

  13. 1

    See (generally) Amicus Briefs (notably, as the late Ned Heller would add, the dissembling of Lemley)

    1. 1.1

      Was just coming here to say that. Lemley – scholarly articles about the law – or survey data (the patent system is broken! Everybody says so! Thickets! The end of innovation!) – then subsequently cited to SCOTUS as reliable source material. I recall that Microsoft case amicus brief – software is like a building blue print – it does nothing – and thinking how do people get away with this? Rest assured that SCOTUS will not stop the practice because they are smarter than all the rest of us – and can discern – the astroturf from the horsehocky – and they don’t need adversarial cross examination that a court of record (at least one with some humility) would use to determine the admissibility as evidence.

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