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`Case: 20-135 Document: 69 Page: 1 Filed: 12/29/2020
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`2020-135
`United States Court of Appeals
`for the Federal Circuit
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`IN RE: APPLE, INC.,
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`Petitioner,
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`On Petition for a Writ of Mandamus to the
`United States District Court
`for the Western District of Texas
`No. 6:19-cv-00532-ADA, Hon. Alan D. Albright
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`BRIEF AMICUS CURIAE OF US INVENTOR, INC. IN SUPPORT
`OF PETITION FOR REHEARING AND REHEARING EN BANC
`
`
`
`CHRISTOPHER M. FIRST
`ALDEN G. HARRIS
`HEIM, PAYNE & CHORUSH LLP
`1111 Bagby Street, Suite 2100
`Houston, TX 77002
`(713) 221-2000
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`
`
`Counsel for Amicus Curiae US Inventor, Inc.
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`Dated: December 23, 2020
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`Case: 20-135 Document: 69 Page: 2 Filed: 12/29/2020
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`FORM 9. Certificate of Interest
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`UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
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`CERTIFICATE OF INTEREST
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`Form 9 (p. 1)
`July 2020
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`Case Number
`Short Case Caption
`Filing Party/Entity
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`Instructions: Complete each section of the form. In answering items 2 and 3, be
`specific as to which represented entities the answers apply; lack of specificity may
`result in non-compliance. Please enter only one item per box; attach
`additional pages as needed and check the relevant box. Counsel must
`immediately file an amended Certificate of Interest if information changes. Fed.
`Cir. R. 47.4(b).
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`I certify the following information and any attached sheets are accurate and
`complete to the best of my knowledge.
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`Date: _________________
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`Signature:
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`Name:
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`2020-135
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`In re Apple, Inc.
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`US Inventor, Inc.
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`Christopher M. First
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`/s/Christopher M. First
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`12/23/2020
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`
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`Case: 20-135 Document: 69 Page: 3 Filed: 12/29/2020
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`FORM 9. Certificate of Interest
`
`1. Represented
`Entities.
`Fed. Cir. R. 47.4(a)(1).
`Provide the full names of
`all entities represented
`by undersigned counsel in
`this case.
`
`Form 9 (p. 2)
`July 2020
`
`2. Real Party in
`Interest.
`Fed. Cir. R. 47.4(a)(2).
`Provide the full names of
`all real parties in interest
`for the entities. Do not
`list the real parties if
`they are the same as the
`entities.
`
`3. Parent Corporations
`and Stockholders.
`Fed. Cir. R. 47.4(a)(3).
`Provide the full names of
`all parent corporations
`for the entities and all
`publicly held companies
`that own 10% or more
`stock in the entities.
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`☐ None/Not Applicable ☐ None/Not Applicable
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`Additional pages attached
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`4
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`4
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`US Inventor, Inc.
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`None.
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`Case: 20-135 Document: 69 Page: 4 Filed: 12/29/2020
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`FORM 9. Certificate of Interest
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`Form 9 (p. 3)
`July 2020
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`4. Legal Representatives. List all law firms, partners, and associates that (a)
`appeared for the entities in the originating court or agency or (b) are expected to
`appear in this court for the entities. Do not include those who have already
`entered an appearance in this court. Fed. Cir. R. 47.4(a)(4).
`None/Not Applicable
`Additional pages attached
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`5. Related Cases. Provide the case titles and numbers of any case known to be
`pending in this court or any other court or agency that will directly affect or be
`directly affected by this court’s decision in the pending appeal. Do not include the
`originating case number(s) for this case. Fed. Cir. R. 47.4(a)(5). See also Fed. Cir.
`R. 47.5(b).
`None/Not Applicable
`
`Additional pages attached
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`6. Organizational Victims and Bankruptcy Cases. Provide any information
`required under Fed. R. App. P. 26.1(b) (organizational victims in criminal cases)
`and 26.1(c) (bankruptcy case debtors and trustees). Fed. Cir. R. 47.4(a)(6).
`None/Not Applicable
`Additional pages attached
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`Christopher M. First
`
`Heim, Payne and Chorush LLP
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`Alden G. Harris
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`Heim, Payne and Chorush LLP
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`4
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`4
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`Case: 20-135 Document: 69 Page: 5 Filed: 12/29/2020
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`TABLE OF CONTENTS
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES
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`STATEMENT OF INTEREST
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`STATEMENT OF AUTHORSHIP & FUNDING
`
`I.
`
`INTRODUCTION
`
`II. ARGUMENT
`
`C.
`
`B.
`
`Intervention Promotes Neither
`A. Mandamus
`“Convenience” Nor “Justice” .................................. 4
`Litigants Pursue Mandamus for Reasons Other
`than Convenience ................................................... 7
`Forcibly Relocating All Patent Litigation to
`Corporate Headquarters Flouts Precedent and
`Denies Reality ...................................................... 10
`1. Misapplication of Mandamus Review ........ 10
`2. A Corporation’s Sheer Size Should Not
`Override the Sound Discretion of the Trial
`Judge ........................................................... 12
`III. CONCLUSION
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`CERTIFICATE OF COMPLIANCE
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`ii
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`ii
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`iii
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`1
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`2
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`3
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`4
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`15
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`16
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`Case: 20-135 Document: 69 Page: 6 Filed: 12/29/2020
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`TABLE OF AUTHORITIES
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`Cases
`In re Apple, Inc.,
`581 F. App'x 886 (Fed. Cir. 2014) ......................................................... 13
`In re Telebrands Corp.,
`No. 16-106 (Fed. Cir. 2015) ..................................................................... 5
`In re Telebrands Corp.,
`No. 18-140 (Fed. Cir. 2018) ..................................................................... 5
`In re Volkswagen AG,
`371 F.3d 201 (5th Cir. 2004) ................................................................... 7
`In re Volkswagen of Am., Inc.,
`545 F.3d 304, 315 (5th Cir. 2008)
`cert. denied, 555 U.S. 1172 (2009) ........................................................ 10
`Stewart Org., Inc. v. Ricoh Corp.,
`487 U.S. 22 (1988) ................................................................................. 11
`Statutes
`28 U.S.C. §1404........................................................................................... 3
`Other Authorities
`Bowman Heiden, Patent “Trespass” and the Royalty Gap,
`34 SANTA CLARA HIGH TECH. L.J. 179 (2018) ......................................... 9
`MAGNA CARTA
`(1215) ....................................................................................................... 3
`Strategic Legal Bullying,
`13 N.Y.U. J. L. & BUS. 137 (2016) ........................................................... 8
`Rules
`Fed. R. Civ. P. 1 .......................................................................................... 3
`
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`
`iii
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`Case: 20-135 Document: 69 Page: 7 Filed: 12/29/2020
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`STATEMENT OF INTEREST
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`US Inventor is an inventor-led and -funded nonprofit advocacy
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`organization. We represent more than 10,000 independent inventors
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`with the small businesses they founded, own, and operate. We seek to
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`educate lawmakers, agencies, and courts on matters affecting our
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`members. We are neither lawyers nor lobbyists, merely inventors who
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`have been harmed by unintended consequences of policies from the past.
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`Our members would rather tinker in our garages or launch new
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`products, but we recognize policymakers and courts benefit from knowing
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`our experiences and viewpoints as they make and apply patent law. US
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`Inventor supports the efforts of the “little guy” inventors: seeking reliable
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`patent protection for our inventions, creating jobs, and promoting
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`innovation. Our experience with innovation, patents, and creating small
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`businesses affords a unique perspective on the important issues
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`presented in this appeal.
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`1
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`Case: 20-135 Document: 69 Page: 8 Filed: 12/29/2020
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`STATEMENT OF AUTHORSHIP & FUNDING
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`Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(e),
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`Amicus Curiae US Inventor, Inc. states no party or its counsel authored
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`this brief in whole or part; no party or its counsel contributed money
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`intended to fund preparing or submitting the brief; and no person other
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`than amicus, its members or counsel contributed money intended to fund
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`preparing or submitting this brief.
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`
`
`2
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`Case: 20-135 Document: 69 Page: 9 Filed: 12/29/2020
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`I.
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`INTRODUCTION
`
`The Magna Carta admonished thirteenth-century jurists “to no one
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`deny or delay right or justice.” MAGNA CARTA 1215 cl. 40 (Eng.). The rules
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`governing the Federal Judicial system echo this—courts must “secure the
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`just, speedy, and inexpensive determination of every action and
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`proceeding.” Fed. R. Civ. P. 1. Specifically, the transfer statute permits
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`change of venue only for “the convenience of parties and witnesses, in the
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`interest of justice.” 28 U.S.C. §1404(a). These principles of swift and
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`inexpensive justice are easy to agree with but are sometimes difficult to
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`implement.
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`This Court’s recent §1404 jurisprudence falls short of the dual aims
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`of “convenience” and “justice.” In re Apple is the crest of a wave of
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`reversals eroding the deference afforded to district courts’ §1404 rulings.
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`As a result, mandamus petition practice has exploded. This Court issued
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`about ten times as many §1404 mandamus decisions as the Fifth Circuit
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`since 2008,1 even though the Fifth Circuit’s overall caseload is 493%
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`
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`1 Pet. for Reh’g 2, Dkt. No. 59.
`3
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`Case: 20-135 Document: 69 Page: 10 Filed: 12/29/2020
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`higher than the Federal Circuit’s.2 This drastic increase in filing stems
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`from the Court’s treatment of mandamus petitions on patent venue
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`issues, which amounts to de facto interlocutory review. Rather than
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`promote convenience, this once unheard-of use of mandamus injects cost
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`and delay, barring individual inventors and small companies from equal
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`access to justice.
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`US Inventor writes to respectfully urge the Court to restore
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`efficiency and access to justice by granting the petition for rehearing en
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`banc and reaffirming deference to district courts’ evidentiary decisions
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`on §1404 motions.
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`II. ARGUMENT
`
`Intervention
`A. Mandamus
`“Convenience” Nor “Justice”
`Mandamus practice under §1404 is costly. One example: Josh
`
`Promotes
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`Neither
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`Malone, member of this amicus, spent hundreds of thousands of dollars
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`litigating venue as an independent inventor going up against a billion-
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`
`
`2 UNITED STATES COURTS, U.S. COURT OF APPEALS FOR THE FEDERAL
`CIRCUIT FEDERAL JUDICIAL CASELOAD STATISTICS B-8 (March 31, 2019),
`https://www.uscourts.gov/statistics/table/b-8/federal-judicial-caseload-
`statistics/2019/03/31
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`4
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`Case: 20-135 Document: 69 Page: 11 Filed: 12/29/2020
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`dollar company. Mr. Malone filed in the Eastern District of Texas—where
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`he lived, birthed his invention, and stood the most to lose. The defendant,
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`who had deliberately copied his invention, spared no expense to move the
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`matter out of Texas to its preferred venue. Mr. Malone and his licensee
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`incurred more than $500,000 in expenses defending serial venue
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`challenges from a large corporation, including multiple transfer-related
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`mandamus petitions before this court, even though he simply filed where
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`he lived.3 He prevailed each time, but every instance injected additional
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`unnecessary cost and delay. Years later, Mr. Malone prevailed in the
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`case.4 AIPLA statistics suggest a typical Federal Circuit appeal costs
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`about $200,000 per side.5 These burdens come on top of the already high
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`
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`3 See In re Telebrands Corp., No. 18-140 (Fed. Cir. 2018); In re
`Telebrands Corp., No. 16-106 (Fed. Cir. 2015).
`4 Ruth Simon, Four-Year Water Balloon Fight Ends With $31
`Million Truce, Wall Street Journal (May 20, 2019, 5:47 PM),
`https://www.wsj.com/articles/four-year-water-balloon-fight-ends-with-
`31-million-truce-11558388873 (“The balloon battle highlights the legal
`pitfalls for inventors, who can find themselves enmeshed in costly patent
`disputes. Mr. Malone said that he [and the licensee] spent about $20
`million in legal fees during nearly four years of litigation.”)
`5 American Intellectual Property Law Association, 2019 Report of
`the Economic Survey 50-52 (2019) [hereinafter “AIPLA Survey”]
`(describing costs of litigation by stage).
`5
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`Case: 20-135 Document: 69 Page: 12 Filed: 12/29/2020
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`cost of litigating §1404 in the district court, layered over the many legal
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`hurdles inventors face before a patent even issues. These expenses are a
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`drop in the bucket for large corporations, yet effectively deter small
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`businesses from pursuing all but company-saving infringement cases.
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`Based on statistical data compiled for this brief, when this Court
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`grants mandamus, it adds an average delay of more than six months to
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`the schedule of a given case. In re Apple admonished the district court for
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`“barrel[ing] ahead on the merits in significant respects” and expressed
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`agreement with “Apple’s concern over the rapid progression of this case.”
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`No. 20-135, Dkt. 55, at 5 (Fed. Cir. 2020). If district courts were to delay
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`virtually every patent case pending a §1404 decision, that practice would
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`inject still more cost and delay even into cases in which mandamus has
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`been neither sought nor obtained.
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`Since 2008, petitioners have sought transfer to the Northern
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`District of California (“NDCA”) as much as the next ten forums
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`combined.6 Many of these petitions originated in Texas courts. NDCA is
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`one of the most expensive litigation venues in the United States; patent
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`6 Pet. for Reh’g 15.
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`6
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`Case: 20-135 Document: 69 Page: 13 Filed: 12/29/2020
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`litigation in NDCA costs about 33% more, on average, than patent
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`litigation in Texas (between $100,000 to $1,700,000 more per side
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`depending on the size of the case).7 Granting mandamus imposes still
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`more cost and delay on top of the cost and delay already incumbent in the
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`mandamus process.
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`B. Litigants Pursue Mandamus for Reasons Other than
`Convenience
`Each factor of the Fifth Circuit’s venue test targets reduced cost or
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`delay. In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004). Yet §1404
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`mandamus petitions typically impose hundreds of thousands of dollars in
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`new costs and inject months of additional delay. Even if granting
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`mandamus reduces cost or inconvenience for some witnesses, these gains
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`cannot plausibly outweigh the immense burdens encouraged by this
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`Court’s recent jurisprudence. As a result, §1404 mandamus practice has
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`made patent litigation less convenient, not more.
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`Since accused infringers cannot expect, on average, to reduce costs
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`or delay by seeking mandamus review of §1404 convenience decisions,
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`why do they do it? It is simple: many §1404 mandamus petitions arise for
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`
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`7 AIPLA Survey, supra, at I-141, I-143-45.
`7
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`Case: 20-135 Document: 69 Page: 14 Filed: 12/29/2020
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`reasons unrelated to convenience. One such reason may be because
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`patentee win rates are significantly lower in NDCA than in other patent-
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`heavy fora.8 Another reason for seeking mandamus review may be the
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`costs and delays themselves—accused infringers are often large
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`companies better equipped to bear these burdens. Delaying the case,
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`increasing costs, and outspending the patentee all create leverage, which
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`these companies can exert to obtain a more favorable settlement.9
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`Whatever the motivations of mandamus petitioners, the results of
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`their efforts are clear. Barriers to entry in patent litigation have
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`increased, making it harder than ever for small companies and individual
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`inventors to assert their rights. Even as the number of patents granted
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`annually has increased, the number of patent cases filed annually has
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`declined:
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`
`
`8 Pet. for Reh’g 15 n.8 (NDCA-26%; CDCA-36.4%; DDE-45.3%;
`EDTX-40.3%; WDTX-33.3%).
`9 David Orozco, Strategic Legal Bullying, 13 N.Y.U. J. L. & BUS. 137,
`156-57 (2016) [hereinafter “Orozco”] (“[T]hese rent-seeking activities
`impose transfer costs, greatly weaken the small party’s negotiating
`power, and greatly increase the likelihood of a settlement advantageous
`to the legal bully.”).
`
`8
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`Case: 20-135 Document: 69 Page: 15 Filed: 12/29/2020
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`It is more difficult and unappealing to enforce one’s patent than it has
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`ever been before.
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`The high costs and risks associated with enforcing one’s patent rights
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`has led to the rise of so-called “efficient infringement,” in which large,
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`powerful infringers “refuse or delay negotiation and/or payment” of
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`patent royalties and “resort to ‘diversionary tactics’ in litigation,” thereby
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`“using the courts or agencies to obtain better terms and conditions than
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`could be achieved through good faith negotiations.”10 Scholars note that
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`“litigation time reduces the litigation payoff of the patent owner.” Id.
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`
`
`10 Bowman Heiden, Patent “Trespass” and the Royalty Gap, 34
`SANTA CLARA HIGH TECH. L.J. 179, 212 (2018).
`9
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`Case: 20-135 Document: 69 Page: 16 Filed: 12/29/2020
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`Even “Boris Teksler, Apple’s former patent chief, observes that ‘efficient
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`infringement’, where the benefits outweigh the legal costs of defending
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`against a suit, could almost be viewed as a
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`‘fiduciary
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`responsibility’, at least for cash-rich firms that can afford to
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`litigate without end.”11 This Court’s increased use of mandamus
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`encourages these tactics, hurts small businesses, and erodes the rule of
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`law and fair access to justice.
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`C. Forcibly Relocating All Patent Litigation to Corporate
`Headquarters Flouts Precedent and Denies Reality
`1. Misapplication of Mandamus Review
`In most cases, small businesses file in the forum that will allow
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`them access to justice that is fair, timely, and efficient. Fifth Circuit
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`precedent defers to a plaintiff’s choice of venue, which it factors into the
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`evidentiary burden on a §1404 motion. In re Volkswagen of Am., Inc., 545
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`F.3d 304, 315 (5th Cir. 2008) (en banc), cert. denied, 555 U.S. 1172 (2009).
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`Volkswagen held that the movant’s “good cause” burden “reflects the
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`appropriate deference” to this factor. Id. In evaluating whether a movant
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`
`
`11 “The trouble with patent-troll-hunting,” The Economist (Dec. 14,
`2019), https://www.economist.com/business/2019/12/14/the-trouble-with-
`patent-troll-hunting (emphasis added).
`10
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`Case: 20-135 Document: 69 Page: 17 Filed: 12/29/2020
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`has met that burden, Supreme Court precedent allows trial judges wide
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`discretion because they are best situated to evaluate the record. Stewart
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`Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988). Indeed, the Fifth Circuit
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`has “never relied on [misapplication of law to fact] as a basis for granting
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`a petition for mandamus.” Apple, Dkt. 55, at 32 (Moore, J., dissenting).
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`The decision here reflects the trend in this Court’s recent §1404
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`mandamus jurisprudence. The district court used its discretion to find
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`Apple had not met its “significant burden.” The majority held that this
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`was not just wrong, but that it was so “patently erroneous” to warrant
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`reversal, rather than remand. That the trial judge and one-third of the
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`panel believed not just that mandamus review was not warranted, but
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`that the ruling was substantively correct, underscores the impropriety
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`of granting mandamus relief on a discretionary issue like convenience.
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`Apple, Dkt. 55, at 33 (Moore, J., dissenting) (“Though the standard of
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`review is not de novo, because the majority has approached the case as
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`though it is, let me add—I agree with the district court and I would have
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`denied transfer de novo.”).
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`Put simply: how could mandamus be warranted when multiple
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`federal judges agree the underlying ruling was correct? This is not the
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`11
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`Case: 20-135 Document: 69 Page: 18 Filed: 12/29/2020
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`purpose for which mandamus was intended. This Court should reaffirm
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`its commitment to the discretion of trial court judges, who are best
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`positioned to make determinations about the credibility and weight of
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`evidence.
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`2.
`
`A Corporation’s Sheer Size Should Not Override the Sound
`Discretion of the Trial Judge
`Apple—a massive company with a sizable footprint in Texas—is
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`well-established here.12 Apple extracts talent, tax incentives, and other
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`resources from Texas, including the Western District specifically.13 Yet
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`
`
`12 Apple to Build New Campus in Austin, Apple Newsroom
`(December 13, 2018), https://www.apple.com/newsroom/2018/12/apple-
`to-build-new-campus-in-austin-and-add-jobs-across-the-us/
`(“Apple’s
`newest Austin campus will be located less than a mile from its existing
`facilities. The 133-acre campus will initially accommodate 5,000
`additional employees, with the capacity to grow to 15,000, and is expected
`to make Apple the largest private employer in Austin … Austin
`already represents the largest population of Apple employees outside
`Cupertino.”) (Emphasis added).
`13 Apple Expands in Austin, Apple Newsroom (December 13, 2018),
`https://www.apple.com/newsroom/2019/11/apple-expands-in-austin/
`(“With the construction of our new campus in Austin now underway,
`Apple is deepening our close bond with the city and the talented
`and diverse workforce that calls it home … Apple is steadily
`growing in Austin with approximately 7,000 employees in the city —
`more than a 50 percent increase in the past five years alone.”) (Emphasis
`added).
`
`12
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`
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`Case: 20-135 Document: 69 Page: 19 Filed: 12/29/2020
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`Texas is “inconvenient” for such massive corporations in one specific
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`aspect: patent litigation. This sizable presence is why Apple and others
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`cannot—and do not—challenge the propriety of venue, but merely the
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`convenience. Compare §1400(b) with §1404.14
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`Yet for years, large corporations like Apple have repeatedly sought,
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`and often received, extraordinary relief from this Court. They allege that
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`litigating in Texas Federal District Courts is not just inconvenient, but
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`that the decisions of its Article III judges are so egregious that they
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`require mandamus intervention.15 These challenges arise even though
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`§1404 denials usually turn on the movant’s failure to meet the high
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`
`
`14 See also Dennis Crouch, Who Says its Not Convenient?
`Mandamus on 1404(a) Convenience, PatentlyO (December 10, 2020),
`https://patentlyo.com/patent/2020/12/convenient-mandamus-
`convenience.html (“In this case, it is clear that W.D. Texas is a proper
`venue for Apple; It also seems like it is pretty darn convenient. Apple has
`8,000+ employees in the district and maintains its second-largest
`headquarters outside of Cupertino. One of the accused products is made
`in the district. And, even if Apple needs to fly-in witnesses it will be OK
`because the company is in the process of building its own 192 room hotel
`in the district.”).
`15 See, e.g., In re Apple, Inc., 581 F. App'x 886, 893 (Fed. Cir. 2014)
`(Bryson, J., dissenting) (“The only explanation for the majority's decision
`[] is that…the majority in fact has chosen simply to substitute its
`judgment for that of the district court as to whether transfer should be
`ordered.”)
`
`13
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`Case: 20-135 Document: 69 Page: 20 Filed: 12/29/2020
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`evidentiary standard imposed by Fifth Circuit precedent. But the mere
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`fact that a massive company also has a large presence elsewhere should
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`not override the sound discretion of trial judges.
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`Because trial judges are best positioned to weigh the evidence,
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`stripping them of their discretion causes puzzling results. Take here: the
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`record shows Apple has an enormous presence in Texas. It manufactured
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`one of the accused products in the Western District. Apple is even
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`building its own hotel on campus in the Western District, to make
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`traveling to Texas even more convenient for its employees. And yet, the
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`majority reversed the trial judge’s discretionary denial of Apple’s attempt
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`to flee the district where it maintains its second largest presence. As the
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`dissent noted, “the majority’s criticism amounts merely to a
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`disagreement with the district court’s weighing of its thorough fact
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`findings.” Apple, Dkt. 55, at 32. This result, and others like it, are
`
`puzzling not just to other Federal Circuit judges, but the bar at large.16
`
`
`
`16 Dennis Crouch, Federal Circuit Usurps Judge Albright’s Judicial
`Power,
`PatentlyO
`(November
`10,
`2020),
`https://patentlyo.com/patent/2020/11/federal-albrights-judicial.html
`(“The majority opinion here nitpicks its way through Judge Albright’s
`
`
`14
`
`
`
`Case: 20-135 Document: 69 Page: 21 Filed: 12/29/2020
`
`
`
`III. CONCLUSION
`
`US Inventor, Inc. and its members respectfully urge this Court to
`
`reconsider its approach to mandamus for convenience transfers. This
`
`plea comes when many small businesses in America are teetering on the
`
`brink and need access to justice. Depriving trial courts of their sound
`
`discretion to rule on matters like convenience directly increases costs of
`
`litigation—not just when mandamus is granted, but in patent litigation
`
`nationwide.
`
`
`
`Dated: December 23, 2020
`
`
`
`Respectfully submitted,
`
`
`
`
`/s/Christopher M. First
`CHRISTOPHER M. FIRST
`ALDEN G. HARRIS
`HEIM, PAYNE & CHORUSH LLP
`1111 Bagby Street, Suite 2100
`Houston, TX 77002
`(713) 221-2000
`
`Counsel for Amicus Curiae
`
`
`
`
`case-management style and opinion in a way that goes beyond even
`typical de novo review of claim construction on an issue that is
`traditionally fully within the district court’s discretion.”).
`15
`
`
`
`Case: 20-135 Document: 69 Page: 22 Filed: 12/29/2020
`
`FORM 19. Certificate of Compliance with Type-Volume Limitations
`
`Form 19
`July 2020
`
`UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATIONS
`
`Case Number:
`
`2020-135
`
`Short Case Caption:
`
`IN RE: APPLE, INC.
`
`Instructions: When computing a word, line, or page count, you may exclude any
`items listed as exempted under Fed. R. App. P. 5(c), Fed. R. App. P. 21(d), Fed. R.
`App. P. 27(d)(2), Fed. R. App. P. 32(f), or Fed. Cir. R. 32(b)(2).
`
`The foregoing filing complies with the relevant type-volume limitation of the
`Federal Rules of Appellate Procedure and Federal Circuit Rules because it meets
`one of the following:
`
`✔
`
`the filing has been prepared using a proportionally-spaced typeface
`and includes __________ words.
`2,555
`
`the filing has been prepared using a monospaced typeface and includes
`__________ lines of text.
`
`the filing contains __________ pages / __________ words / __________
`lines of text, which does not exceed the maximum authorized by this
`court’s order (ECF No. __________).
`
`12/23/2020
`Date: _________________
`
`Signature:
`
`/s/Christopher M. First
`
`Name:
`
`Christopher M. First
`
`Save for Filing
`
`
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