`
`IN THE
`Supreme Court of the United States
`________________
`APPLE INC.,
`Petitioner,
`v.
`VIRNETX INC., LEIDOS, INC.,
`
`Respondents.
`
`
`APPLICATION TO THE HON. CHIEF JUSTICE JOHN G. ROBERTS, JR.
`FOR A 60-DAY EXTENSION OF TIME WITHIN WHICH TO FILE
`A PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
`COURT OF APPEALS FOR THE FEDERAL CIRCUIT
`
`
`
`
`
`
`
`
`
`Pursuant to Rule 13.5 of the Rules of this Court, Applicant Apple Inc. (Apple)
`
`moves for an extension of time of 60 days, up to and including December 30, 2019,
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`within which to file a petition for a writ of certiorari.
`
`1. Applicant will seek review of the judgments in VirnetX Inc. v. Cisco
`
`Systems, Inc., 767 F.3d 1308 (Fed. Cir. 2014) (VirnetX I), and VirnetX Inc. v. Cisco
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`Systems, Inc., No. 18-1197 (Fed. Cir. Aug. 1, 2019) (VirnetX II). A copy of the
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`decision in VirnetX I, dated September 16, 2014, is attached as Exhibit 1. A copy of
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`the decision in VirnetX II, dated January 15, 2019, is attached as Exhibit 2. A copy
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`of the Federal Circuit’s subsequent order denying Apple’s Petition for Rehearing
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`and Rehearing En Banc in VirnetX II, dated August 1, 2019, is attached as Exhibit
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`3. The current deadline for filing a petition for writ of certiorari is October 30, 2019.
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`This application is filed more than 10 days before the date the petition is due. See
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`Sup. Ct. R. 13.5. The jurisdiction of this Court is based on 28 U.S.C. § 1254(1).
`
`
`
`
`
`
`2. This case arises from a long-running, multi-patent, and multi-proceeding
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`dispute. VirnetX Inc. (VirnetX) sued Apple in August 2010 for allegedly infringing
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`four of VirnetX’s patents. The underlying controversy has since led to judgments
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`totaling more than a billion dollars and has spawned numerous parallel proceedings
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`in both federal court and the Patent Office. Notably, the Patent Office has held all
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`of the patent claims asserted against Apple to be unpatentable; some of these
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`decisions have been affirmed by the Federal Circuit, while others are at various
`
`stages before the Patent Office or on appeal.
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`3. Good cause exists for an extension because of the press of business on
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`other pending matters that have thus far affected counsel’s availability and will
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`continue to do so. The undersigned has been responsible for a petition for writ of
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`certiorari in DISH Network L.L.C. v. Krakauer, No. 18-1518 (4th Cir.), filed in this
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`Court on October 15, 2019; oral argument in Ward v. Apple Inc., No. 18-16016 (9th
`
`Cir.), heard on October 16, 2019; an opening brief in Bio-Rad Laboratories, Inc. v.
`
`10x Genomics, Inc., Nos. 19-2255 & 19-2285 (Fed. Cir.), due October 18, 2019; a
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`reply brief in Arconic Inc. v. APC Investment Co., No. 19-55181 (9th Cir.), due
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`November 5, 2019; and an answering brief in Egenera, Inc. v. Cisco Systems, Inc.,
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`No. 19-2015 (Fed. Cir.), due November 19, 2019. In addition, co-counsel Mark S.
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`Davies is responsible for a brief in opposition in Amarin Pharma, Inc. v.
`
`International Trade Commission, S. Ct. No. 19-152, due November 4, 2019; a
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`response/reply in Variety Stores, Inc. v. Walmart Inc., No. 19-1601 (4th Cir.), due
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`November 8, 2019; a brief in opposition in Regents of the University of Minnesota v.
`
`
`
`
`2
`
`
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`LSI Corp., S. Ct. No. 19-337, due November 14, 2019; and an opening brief in CCC
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`Information Services Inc. v. Tractable Inc., No. 19-1997 (7th Cir.), due December 6,
`
`2019.
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`4. An extension is warranted because this case presents fundamental and
`
`complex issues of patent law — including the Federal Circuit’s interpretation of this
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`Court’s requirement, set forth in Garretson v. Clark, 111 U.S. 120 (1884), that
`
`patent damages must always be apportioned to reflect the value of the patented
`
`invention. The questions presented in Apple’s petition will have a significant impact
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`on U.S. patent law’s careful balancing between the private interests of the patentee
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`and the public interest in promoting innovation. See Motion Picture Patents Co. v.
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`Universal Film Mfg. Co., 243 U.S. 502, 511 (1917). An extension of time will help to
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`ensure that the petition effectively presents the important issues raised by these
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`complex, interrelated cases.
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`5. For the foregoing reasons, Applicant hereby requests that an extension of
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`time be granted, up to and including December 30, 2019, within which to file a
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`petition for writ of certiorari.
`
`
`
`
`
`
`October 17, 2019
`
`
`
`
`Respectfully submitted,
`
`_____________________________________
`E. Joshua Rosenkranz
`Counsel of Record
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`51 West 52nd Street
`New York, NY 10019
`(212) 506-5380
`jrosenkranz@orrick.com
`
`
`3
`
`
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