The recent case of Purdue Pharma v. Collegium Pharmaceutical, Case no. 23A766, highlights the importance of adhering to the Supreme Court’s rules and presenting compelling reasons when requesting an extension of time to file a petition for certiorari. The Supreme Court’s denial of Purdue’s request for a 30-day extension serves as a reminder that even in cases involving significant legal questions, the Court expects parties to follow its procedural rules and provide strong justifications for any deviations.
Rule 13.5 of the Supreme Court Rules states that an application for an extension of time “must be filed with the Clerk at least 10 days before the date the petition is due, except in extraordinary circumstances.” In this case, Purdue’s counsel, Jennifer Swize of Jones Day, filed a 30-day extension request one day after the petition was due, rendering it untimely. The explanation provided for the delay – that Purdue’s General Counsel and Chief Patent Counsel were involved in preparing for and participating in a trial during the week before the deadline – does not appear to meet the “extraordinary circumstances” threshold required by the rule.
A swift 1-line order from Supreme Court Chief Justice John Roberts immediately denied the extension request — sending a message that parties must take the Court’s rules seriously and plan accordingly to meet filing deadlines. It is not enough to simply assert that the issues at stake are important; even well known counsel must demonstrate that they have been diligent in their efforts to comply with the Court’s procedures.
Ironically, the underlying Federal Circuit decision that Purdue sought to challenge, Purdue Pharma L.P. v. Collegium Pharmaceutical, Inc., No. 2022-1482 (Fed. Cir. Nov. 21, 2023), dealt with the consequences of the USPTO’s failure to adhere to the statutory one-year deadline for inter partes review (IPR) proceedings. In that case, the Federal Circuit held that the USPTO retains the authority to issue a final written decision even after the deadline has passed, as long as the statute does not specify a consequence for non-compliance with the timing provisions. [Read Prof Holman’s Discussion of the Case]. The contrast between the Federal Circuit’s approach to the USPTO’s missed deadline and the Supreme Court’s strict enforcement of its own filing deadlines is somewhat striking, but the circumstances are quite different.
Missing Fed. Cir. rules dates is also dangerous.
Also, a requisite 35 USC 142 “Notice of Appeal” “IN the Patent and Trademark Office” “directed to the Director” “..in no case less than 60 days..” [after the date of the PTO decision]. [I prevented an opponent from appealing once by catching their violation of that statute.]
snifff – is that malpractice in the air?
The Supreme Court isn’t always strict about the Rule 13.5 deadline. But motions for retroactive extensions are a bit much, and the justification offered is weak.