Case: 17-2579 Document: 74 Page: 1 Filed: 09/04/2018
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`UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`
`Appeal Nos. 2017-2579, -2580
`
`
`
`
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`BRADIUM TECHNOLOGIES LLC,
`Appellant,
`
`
`v.
`
`ANDREI IANCU, Director, U.S. Patent
`and Trademark Office,
`
`
`
`
`
`Intervenor.
`
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`
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`
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`USPTO DIRECTOR’S OPPOSITION TO APPELLANT’S MOTION FOR
`LEAVE TO FILE SUPPLEMENTAL BRIEF
`
`This case involves an appeal from two related inter partes review
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`proceedings before the Patent Trial and Appeal Board. The Board issued its Final
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`Written Decisions in July 2017. Briefing in this appeal has been complete for over
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`three months. Nevertheless, Bradium now seeks to inject a constitutional argument
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`based on the Appointments Clause that Bradium did not raise before the Board or
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`before this Court during the parties’ briefing. Consistent with this Court’s
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`precedent, Bradium’s failure to raise the Appointments Clause argument before the
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`Board necessitates a finding that the argument has been waived. Thus, this Court
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`should deny Bradium’s motion for leave to file a supplemental brief.1
`
`
`1
`The Director notes that Bradium filed a motion for leave to file a
`supplemental brief without also filing a copy of the proposed supplemental brief, in
`contravention of this Court’s instructions. See U.S. Court of Appeals for the
`1
`
`
`
`Bradium Exhibit 2034
`Unified Patents Inc. v. Bradium Technologies LLC
`IPR2018-00952
`Page 1 of 8
`
`
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`UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`
`Appeal Nos. 2017-2579, -2580
`
`
`
`
`
`BRADIUM TECHNOLOGIES LLC,
`Appellant,
`
`
`v.
`
`ANDREI IANCU, Director, U.S. Patent
`and Trademark Office,
`
`
`
`
`
`Intervenor.
`
`
`
`
`
`
`
`USPTO DIRECTOR’S OPPOSITION TO APPELLANT’S MOTION FOR
`LEAVE TO FILE SUPPLEMENTAL BRIEF
`
`This case involves an appeal from two related inter partes review
`
`proceedings before the Patent Trial and Appeal Board. The Board issued its Final
`
`Written Decisions in July 2017. Briefing in this appeal has been complete for over
`
`three months. Nevertheless, Bradium now seeks to inject a constitutional argument
`
`based on the Appointments Clause that Bradium did not raise before the Board or
`
`before this Court during the parties’ briefing. Consistent with this Court’s
`
`precedent, Bradium’s failure to raise the Appointments Clause argument before the
`
`Board necessitates a finding that the argument has been waived. Thus, this Court
`
`should deny Bradium’s motion for leave to file a supplemental brief.1
`
`
`1
`The Director notes that Bradium filed a motion for leave to file a
`supplemental brief without also filing a copy of the proposed supplemental brief, in
`contravention of this Court’s instructions. See U.S. Court of Appeals for the
`1
`
`
`
`Bradium Exhibit 2034
`Unified Patents Inc. v. Bradium Technologies LLC
`IPR2018-00952
`Page 1 of 8
`
`
`
`Case: 17-2579 Document: 74 Page: 2 Filed: 09/04/2018
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`
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`In a nearly identical case, this Court found that a party waived an
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`Appointments Clause argument that was first raised in a supplemental brief. In re
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`DBC, 545 F.3d 1373, 1377-81 (Fed. Cir. 2008). There, the appellant argued that
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`that the decision of the Board should be vacated because two of the administrative
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`patent judges that heard the case were unconstitutionally appointed by the Director.
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`Id. at 1377-78. This Court found waiver based on the appellant’s failure to raise
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`the argument before the Board, stating that “[i]t is well-established that a party
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`generally may not challenge an agency decision on a basis that was not presented
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`to the agency.” Id. at 1378 (citing Woodford v. Ngo, 548 U.S. 81, 90 (2006)). As
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`this Court explained, the general rule serves two primary purposes – it gives the
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`agency the opportunity to correct its own mistakes, and it promotes judicial
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`efficiency because claims are more efficiently resolved before an agency than
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`through litigation in court. Id. at 1378-79.
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`
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`Here, the same logic applies. Bradium should have raised its Appointments
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`Clause argument before the Board during the inter partes review proceedings.
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`Instead, Bradium waited until briefing was complete in this appeal to raise the
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`argument. Bradium’s choice to first raise the issue before this Court deprived the
`
`
`Federal Circuit CM/ECF FAQ’s,
`http://www.cafc.uscourts.gov/sites/default/files/cmecf/FAQ_-_Rev_Aug15.pdf at
`12 (explaining that a motion for leave to file a supplemental brief must be
`accompanied by the proposed supplemental brief).
`2
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`
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`Bradium Exhibit 2034
`Unified Patents Inc. v. Bradium Technologies LLC
`IPR2018-00952
`Page 2 of 8
`
`
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`Case: 17-2579 Document: 74 Page: 3 Filed: 09/04/2018
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`Board of the opportunity to address the issue and does not promote judicial
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`economy. See DBC, 545 F.3d at 1378-79. Moreover, Bradium’s motion
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`disregards this Court’s rule that “arguments not raised in the opening brief are
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`waived.” SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed.
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`Cir. 2006).
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`
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`Bradium argues that this Court has identified exceptions to the general
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`waiver rule, and that this case falls into one or more of the exceptions. Bradium
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`Mot. at ¶¶ 10-11. The Court in DBC acknowledged that there are exceptions to the
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`waiver rule, stating that it had to “consider whether this is one of those exceptional
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`cases that warrants consideration of the Appointments Clause issue despite its
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`tardy presentation.” DBC, 545 F.3d at 1379-80 (noting that the Court can review
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`an untimely constitutional challenge in “rare cases”).
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`
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`While Bradium contends that an Appointments Clause challenge is “a
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`serious issue of public policy” that justifies an exception to the waiver rule, this
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`Court has disagreed. DBC, 545 F.3d at 1380 (stating that “we do not view the
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`circumstances of this case to warrant such an exceptional measure”). In declining
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`to exercise its discretion to hear an Appointments Clause challenge for the first
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`time on appeal, the Court emphasized the appellant’s failure to raise the
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`Appointments Clause issue before the Board, even though the issue could have
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`been raised. Id. (“We are not persuaded to overlook DBC’s lack of diligence to
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`3
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`Bradium Exhibit 2034
`Unified Patents Inc. v. Bradium Technologies LLC
`IPR2018-00952
`Page 3 of 8
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`
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`Case: 17-2579 Document: 74 Page: 4 Filed: 09/04/2018
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`present an issue of which it was, or should have been, aware.”). Here, the
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`circumstances are no different. Bradium had an opportunity to raise the issue
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`before the Board, and failed to do so. This Court should not excuse Bradium’s
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`lack of diligence and allow the Appointments Clause issue to be introduced at such
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`a late stage of the appeal.
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`
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`Bradium asserts that the Supreme Court has recognized that Appointments
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`Clause challenges qualify as a rare case that justifies an exception to the waiver
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`rule. Bradium Mot. at ¶ 12 (quoting Freytag v. Comm’r, 501 U.S. 868, 879
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`(1991)). But the Court in DBC considered the same case law and still declined to
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`excuse the waiver, explaining that the “Supreme Court has never indicated that
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`such challenges must be heard regardless of waiver.” DBC, 545 F.3d at 1380.
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`
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`Finally, Bradium states that it was made aware of the Appointments Clause
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`issue only following the Supreme Court’s Lucia decision and article published on
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`Law360.com that discusses an Appointments Clause challenge in another appeal
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`pending before this Court. Bradium Mot. at ¶ 14; see also id. at ¶ 8. Bradium’s
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`lack of prior knowledge of a potential Appointments Clause argument does not
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`excuse its failure to raise the issue before the Board. DBC, 545 F.3d at 1380. And
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`Bradium has offered no explanation for why the Supreme Court’s decision in
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`Lucia serves as a justification for allowing its untimely Appointments Clause
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`challenge. Cf. Kyocera Wireless Corp. v. Int’l Trade Comm’n, 545 F.3d 1340,
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`
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`4
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`Bradium Exhibit 2034
`Unified Patents Inc. v. Bradium Technologies LLC
`IPR2018-00952
`Page 4 of 8
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`Case: 17-2579 Document: 74 Page: 5 Filed: 09/04/2018
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`1352 (Fed. Cir. 2008) (rejecting a party’s attempt to raise an untimely obviousness
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`defense based on the Supreme Court’s KSR decision). Even if the intervening
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`Lucia decision served as legitimate basis for allowing Bradium to file a
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`supplemental brief, Bradium offers no explanation why it waited more than two
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`months after Lucia was decided to file the current motion.2
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`CONCLUSION
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`Accordingly, the Director respectfully requests that this Court deny
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`Bradium’s Motion for Leave to File a Supplemental Brief.
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`September 4, 2018
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`Respectfully submitted,
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`
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`/s/ Michael S. Forman
`JOSEPH MATAL
`Acting Solicitor
`
`THOMAS W. KRAUSE
`Deputy Solicitor
`
`MICHAEL S. FORMAN
`BRIAN RACILLA
`Associate Solicitors
`Mail Stop 8
`P.O. Box 1450
`
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`2
`Alternatively, Bradium proposes that the Court stay this appeal pending a
`resolution of the Appointments Clause issue in another case, and then apply that
`result in this case. Bradium Mot. at ¶ 9. In addition to introducing unnecessary
`delay in resolution of the appeal, the alternative proposal again seeks to allow
`Bradium to improperly rely on an argument that it has waived.
`5
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`Bradium Exhibit 2034
`Unified Patents Inc. v. Bradium Technologies LLC
`IPR2018-00952
`Page 5 of 8
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`Case: 17-2579 Document: 74 Page: 6 Filed: 09/04/2018
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`Alexandria, Virginia 22313-1450
`(571) 272-9035
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` Attorneys for the Director
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`of the United States Patent and
`Trademark Office
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`6
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`Bradium Exhibit 2034
`Unified Patents Inc. v. Bradium Technologies LLC
`IPR2018-00952
`Page 6 of 8
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`Case: 17-2579 Document: 74 Page: 7 Filed: 09/04/2018
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`CERTIFICATE OF COMPLIANCE
`I hereby certify pursuant to Fed. R. App. P. 27(d)(2)(A) and 32(g)(1) that the
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`foregoing motion complies with the type volume limitation. The total number of
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`words in the foregoing motion is 1,242, as calculated by Microsoft Word 2016.
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`/s/ Michael S. Forman_____________
`MICHAEL S. FORMAN
`Associate Solicitor
`United States Patent & Trademark Office
`Mail Stop 8
`P.O. Box 1450
`Alexandria, Virginia 22313-1450
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`
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`Bradium Exhibit 2034
`Unified Patents Inc. v. Bradium Technologies LLC
`IPR2018-00952
`Page 7 of 8
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`
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`Case: 17-2579 Document: 74 Page: 8 Filed: 09/04/2018
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`CERTIFICATE OF SERVICE
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`I hereby certify that on September 4, 2018, I electronically filed the
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`foregoing USPTO DIRECTOR’S OPPOSITION TO APPELLANT’S MOTION
`
`FOR LEAVE TO FILE SUPPLEMENTAL BRIEF with the Court’s CM/ECF
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`filing system, which constitutes service, pursuant to Fed. R. App. P. 25(c)(2) and
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`Fed. Cir. R. 25(e).
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`/s/ Michael S. Forman_____________
`MICHAEL S. FORMAN
`Associate Solicitor
`United States Patent & Trademark Office
`Mail Stop 8
`P.O. Box 1450
`Alexandria, Virginia 22313-1450
`
`
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`Bradium Exhibit 2034
`Unified Patents Inc. v. Bradium Technologies LLC
`IPR2018-00952
`Page 8 of 8
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