Amicus Curiae Brief — Argentum Pharmaceuticals LLC, Petitioner v. Novartis Pharmaceuticals Corporation

No. 20-779

In The

ARGENTUM PHARMACEUTICALS LLC,

Petitioner,

v.

NOVARTIS PHARMACEUTICALS CORPORATION,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Federal Circuit

BRIEF OF JONATHAN STROUD AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

Jonathan Stroud

5109 Sherier Pl. NW

Washington, D.C., 20016

jonrstroud@gmail.com

(202) 805-8931

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION

AND

SUMMARY

OF

ARGUMENT ......................................................... 2

ARGUMENT................................................................ 4

I.
THE FEDERAL CIRCUIT’S NARROWING

APPELLATE

STANDING

RULES

FRUSTRATE ARTICLE III POLICING OF

THE AGENCY ...................................................... 4

A.
The Federal Circuit’s Patent-Specific Appellate

Standing Rules ................................................. 4

B.
The Routine Curbing of Review for Direct

Competitors ....................................................... 9

C.
The Circuit’s Rules Have Led to Inconsistent

Results in Competitor Appeals from the Same

Dispute ............................................................ 12

CONCLUSION .......................................................... 14

(i)

ii

TABLE OF AUTHORITIES

CASES

ABS Global, Inc. v. Cytonome/ST, LLC,

No. 2019-2051 (slip op.) (Fed. Cir. Jan. 6,

2021) .......................................................................... 8

Adidas AG v. Nike, Inc.,

963 F.3d 1355 (Fed. Cir. 2020) ................................. 7

Amerigen Pharm. Ltd. v. UCB Pharma GmBH,

913 F.3d 1076 (Fed. Cir. 2019) ................................. 6

Bresnick v. U.S. Vitamin Corp., 139 F.2d 239

(2d Cir. 1943) (Hand, J.) ........................................... 9

Cardinal Chem. Co. v. Morton Int’l, Inc.,

508 U.S. 83 (1993)..................................................... 5

Clinton v. City of New York, 524 U.S. 417 (1998) ....... 4

Consumer Watchdog v. Wis. Alumni Research

Found., 753 F.3d 1258 (Fed. Cir. 2014) ............... 4, 6

E.I. DuPont de Nemours & Co. v. Synvina C.V.,

904 F.3d 996 (Fed. Cir. 2018) ................................... 7

eBay Inc. v. MercExchange, L.L.C.,

547 U.S. 388 (2006)................................................... 4

General Electric Co. v. Raytheon Techs. Corp.,

fka United Technologies Corporation,

140 S.Ct. 2820 (2020) (denial of cert) ................ 1, 12

iii

General Electric Co. v. Raytheon Techs. Corp.,

No. 2019-1319 (slip op.) (Fed. Cir. Dec. 23,

2020) .................................................................... 1, 12

General Electric Co. v. United Techs. Corp.,

928 F.3d 1349 (Fed. Cir. 2019) ........................... 1, 12

Grit Energy Sols., LLC v. Oren Techs., LLC,

957 F.3d 1309 (Fed. Cir. 2020) ................................. 7

Holmes Grp., Inc. v. Vornado Air Circulation

Sys., 535 U.S. 826 (2002) .......................................... 5

JTEKT Corp. v. GKN Auto. LTD.,

898 F.3d 1217 (Fed. Cir. 2018), cert. denied,

139 S. Ct. 2713 (2019) .............................................. 7

Knorr-Bremse Systeme Fuer Nutzfahrzeuge

GmbH v. Dana Corp., 383 F.3d 1337 (2004) ........... 5

Lear, Inc. v. Adkins, 395 U.S. 653 (1969) .................... 8

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)................................................... 6

Massachusetts v. EPA, 549 U.S. 497 (2007) ................ 4

MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118 (2007)............................................... 5, 6

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ........ 4, 6

WPEM, LLC v. SOTI Inc., 2020-1483,

2020 WL 7238458 (Fed. Cir. Dec. 9, 2020) ............ 10

iv

STATUTES

28 U.S.C. § 1295(a)(4)(A) ............................................. 7

35 U.S.C. § 283 ........................................................... 11

35 U.S.C. § 284 ........................................................... 11

35 U.S.C. § 319 ............................................................. 4

35 U.S.C. § 329 ............................................................. 4

OTHER AUTHORITIES

Christopher R. Leslie, The Anticompetitive

Effects of Unenforced Invalid Patents, 91

MINN. L. REV. 101 (2006) .................................. 10, 11

Matthew Dowd & Jonathan Stroud, Standing to

Appeal at the Federal Circuit: Appellants,

Appellees, and Intervenors, 74 Catholic

University Law Review 661 (2018) .................... 1, 12

Matthew Dowd & Jonathan Stroud, Will the

Federal Circuit Consider the Competitor

Standing Doctrine? LAW360 (Dec. 18, 2018) ........ 12

Michael J. Burstein, Rethinking Standing in

Patent Challenges, 83 GEO. WASH. L. REV. 498

(2015) ................................................................. 10, 12

v

Ryan Fitzgerald, No Leg to Stand On: How the

Federal Circuit Improperly Restricted the

Application of the Competitor Standing

Doctrine to Patent Challengers When

Establishing Article III Standing Upon

Appealing an Inter Partes Review, MINN. LAW

REV. De Novo Blog (posted Nov. 25, 2019) ............ 12

S. REP. NO. 110-259 (2008) ........................................... 4

1

INTEREST OF AMICUS CURIAE1

Amicus is the Chief Intellectual Property

Counsel of Unified Patents, LLC, a membership

organization dedicated to deterring nuisance

settlements based on patent claims that should not

have issued. Unified is itself a frequent amicus on

patent issues, including this one. 2 See 27. Here,

amicus writes the Court in his personal capacity, to

expand upon and share the perspective of a writer,3

professor, and member of the bar concerned with

consistency in applying this court’s justiciability

doctrines.

1 Counsel of record for all parties received timely advance

notice of the intent to file this brief and consented to the filing of

the brief. S. Ct. R. 37(2)(a). No counsel for any party authored this

brief in whole or in part, and no person or entity other than

amicus curiae or its counsel made a monetary contribution

intended to fund the brief’s preparation or submission.

2 Brief of Unified Patents, LLC; Engine Advocacy; Cable

Television Laboratories, Inc.; The R Street Institute; and The

Niskanen Center as Amici Curiae in Support of Petitioner,

General Electric Co. v. United Tech. Corp., No. 19-1012 (U.S. Mar.

16, 2020), 2020 WL 12898, cert. denied, General Electric Co. v.

Raytheon Techs. Corp., fka United Technologies Corporation, 140

S.Ct. 2820 (2020).

3 See, e.g., Matthew Dowd & Jonathan Stroud, Standing to

Appeal at the Federal Circuit: Appellants, Appellees, and

Intervenors, 74 Catholic U. L. Rev. 661 (2018).

2

INTRODUCTION

AND SUMMARY OF ARGUMENT

Amicus urges that, where Congress has spoken, a

dissatisfied party to an administrative dispute

between direct competitors has the right to appeal the

decision denying the relief it requested. The Federal

Circuit’s current appellate standing standard is

unduly narrow, is of recent vintage, and continues to

be inconsistently applied. This conflicts with other

circuits and this Court’s precedent. It has provoked

fractured and inconsistent opinions. It has been the

subject of previous petitions for certiorari.4 And it has

recently produced irreconcilable results for disputes

between those same competitors on appeal from the

same general dispute. 5 This Court’s intervention is

needed.

Congress gave these administrative patent

review proceedings, inter partes review (“IPR”) and

post-grant review (“PGR”), appellate review for any

party dissatisfied by the government’s decision. This

is the only regular Article III review of the process and

was a carefully considered choice by Congress. It is

4 See, e.g., General Electric Co. v. Raytheon Techs. Corp., fka

United Technologies Corporation, 140 S.Ct. 2820 (2020) (denial of

cert).

5 Compare General Electric Co. v. United Techs. Corp., 928

F.3d 1349, 1353–54 (Fed. Cir. 2019) (determining there was no

“concrete and imminent injury to GE,” and that GE asserted “only

speculative harm”), cert denied sub nom. General Electric Co. v.

Raytheon Techs. Corp., fka United Techs. Corp, 140 S.Ct. 2820

(2020), with General Electric Co. v. Raytheon Techs. Corp., No.

2019-1319 (slip op.) at 2 (Fed. Cir. Dec. 23, 2020) (“Because

General Electric alleged sufficient facts to establish that it is

engaging in activity that creates a substantial risk of future

infringement, GE has standing to bring its appeal.”)

3

both fair and ensures legal consistency of the

administrative process. By unduly circumscribing

judicial review for one side, the Federal Circuit has

impeded the effective functioning of this system and

hidden otherwise appealable concerns from Article III

review.

As is often the case in a free market, private

competitors are normally best positioned to invest the

time and money to pursue and point out

administrative errors—they have the incentive, the

resources, and the knowhow. They also suffer when

patents crowd the market in which they operate—

whether they are poised to infringe or not. By

effectively requiring competitors to admit planned

infringement to justify judicial review, the Federal

Circuit has discouraged the most likely would-be

patent challengers from using the streamlined

administrative review proceedings that Congress

sought to promote.

The Federal Circuit’s rule has bred uncertainty

as to who can obtain Article III review of agency

rulings and has preventing market competitors clearly

locked in wide-ranging disputes from any Article III

recourse. It has led to an intra-Circuit split of opinion

as to one set of competitors—GE and UTC. Those

conflicting opinions demonstrate that even within the

Federal Circuit, the idiosyncratic appellate standing

standard will continue to be inconsistently applied

absent this Court’s review.

4

I.

ARGUMENT

The Federal Circuit’s Narrowing Appellate

Standing Rules Frustrate Article III Policing

of the Agency

A.
The

Federal

Circuit’s

Appellate Standing Rules

Patent-Specific

The Federal Circuit’s restrictive approach to

standing undermines the uniform development of

patent law that the Federal Circuit is charged with

promoting and limits their ability to effectively police

administrative agencies.

When Congress modified post-grant procedures

in 2011, they granted “a party dissatisfied” with the

results the right to appeal PTAB decisions. 35 U.S.C.

§§ 319, 329.

The statutory appeal right was a considered

choice. Earlier administrative reviews had failed, at

least in part due to pre-AIA restrictions on appellate

rights. As the Judiciary Committee explained, “a

challenger that lost at the USPTO under

reexamination had no right to appeal … either

administratively or in court. Restrictions such as

these made reexamination a much less favored

avenue to challenge questionable patents than

litigation." S. REP. NO. 110-259, at 18-19 (2008)

(emphasis added). Congress sought to ensure

administrative challenges met with full Article III

review. When Congress provides such a full-throated

grant of appellate review, certain standing

requirements, “namely immediacy and redressability,

as well as prudential aspects that are not part of

Article III—may be relaxed.” Consumer Watchdog v.

5

Wis. Alumni Research Found., 753 F.3d 1258, 1261

(Fed. Cir. 2014) (citing Massachusetts v. EPA, 549 U.S.

497, 517–18 (2007).

And this Court dictates that Congress has a role

to play in defining when a litigant has suffered an

injury-in-fact. See Spokeo, Inc. v. Robins, 136 S. Ct.

1540, 1549 (2016) (“Congress is well positioned to

identify intangible harms that meet minimum Article

III requirements”). Congress would have expected its

broad judicial-review grant to apply to all cases

meeting the usual well-established standing

doctrines—including competitor standing.

Standing based on competitive harm, too, has

long been well-established. See, e.g., Clinton v. City of

New York, 524 U.S. 417, 433 (1998).

But the Federal Circuit has adopted a forpatents-only approach to appellate standing that

unduly and unfairly constrains judicial review of

PTAB ruling. 6 It has forced patent challengers to

6 As noted previously, this Court has regularly admonished

that patent law should not diverge from the general rules

governing Article III courts, absent statutory instructions

otherwise. See, e.g., eBay Inc. v. MercExchange, L.L.C., 547 U.S.

388, 391, 394 (2006) (four-factor test for granting permanent

injunctions in other areas of law “apply with equal force to

disputes arising under the Patent Act”); Holmes Grp., Inc. v.

Vornado Air Circulation Sys., 535 U.S. 826, 832–34 (2002)

(rejecting that the term “arising under” in the statute granting

the Federal Circuit exclusive jurisdiction over patent appeals

should be interpreted differently than that phrase is interpreted

in other jurisdictional statutes). Indeed, “[p]atent law is not an

island separated from the main body of American jurisprudence.”

Knorr-Bremse Systeme Fuer Nutzfahrzeuge GmbH v. Dana Corp.,

6

concede current or planned willful infringement to

maintain Article III review. The Circuit demands a

legal nexus between the patent claims and potential

infringement,

often

ignoring

or

discounting

motivating competitive harm from blocking patents,

licensing opportunities, or other market harms the

Circuit is less comfortable with than direct patent

infringement.

But this Court’s decisions on validity challenges

have long-rejected what the Federal Circuit now

requires—allowing only would-be challengers at or

near the point of infringement access to Article III

courts. See, e.g., Cardinal Chem. Co. v. Morton Int’l,

Inc., 508 U.S. 83, 95–98 (1993) (finding of noninfringement does not moot validity challenge);

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118,

128–29 (2007) (infringer need not put itself at risk of

infringement litigation before filing declaratory

judgment). That a “plaintiff must destroy a large

building, bet the farm, or (as here) risk treble

damages” to have standing in district court “finds no

support in Article III,” MedImmune, 549 U.S. at 134.

The same holds for an appellant seeking the Article III

review of agency action provided for by Congress. If

left intact, the Federal Circuit’s contrary rules and

their application will harm not only competitors but

will also insulate such decisions from Article III

review.

383 F.3d 1337, 1351 (2004) (en banc) (Dyk, J., concurring in part

and dissenting in part).

7

As the Federal Circuit most recently articulated

it, their patent-specific application of appellate

standing, despite the jurisdiction conferred by 28

U.S.C. § 1295(a)(4)(A), is driven by the ‘the irreducible

constitutional minimum of standing.’” Amerigen

Pharm. Ltd. v. UCB Pharma GmBH, 913 F.3d 1076,

1082 (Fed. Cir. 2019) (quoting Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992)). Consistent with

this Court’s recent decisions, this means appellants

must “have (1) suffered an injury in fact, (2) that is

fairly traceable to the challenged conduct of the

[appellee], and (3) that is likely to be redressed by a

favorable judicial decision.” Spokeo, Inc. v. Robins, 136

S. Ct. 1540, 1547 (2016), as revised (May 24, 2016).

And “where Congress has accorded a procedural right

to a litigant, such as the right to appeal an

administrative decision” some requirements of

standing—but not the requirement of injury in fact—

“may be relaxed.” Consumer Watchdog v. Wis. Alumni

Research Found., 753 F.3d 1258, 1261 (Fed. Cir. 2014).

The primary—really the only—way the Circuit

currently recognizes such standing absent suit or

concession of direct infringement is through reliance

on “potential infringement liability as a basis for

injury in fact.” JTEKT Corp. v. GKN Auto. LTD., 898

F.3d 1217, 1221 (Fed. Cir. 2018) (emphasis added),

cert. denied, 139 S. Ct. 2713 (2019). Other commercial

harms are often discounted or ignored.

To do so, parties must establish—generally on

appeal for the first time, unless the party is wellheeled and can establish it in below or in district court

as part of a broader dispute—"that it has concrete

plans for future activity that creates a substantial risk

8

of future infringement or would likely cause the patentee to assert a claim of infringement.” See JTEKT

at 1221.

All attempts at reliance on the competitor

standing have been rebuffed; the Federal Circuit

seems much more comfortable with the patent

infringement analysis it so often applies; that, it has

applied inconsistently, and has expanded upon in

tortuous ways that have simply served to complicate

the issue. For example, the Circuit later explained

that “to establish the requisite injury in an appeal

from a final written decision in an inter partes review,”

“[a]n appellant need not face ‘a specific threat of

infringement litigation by the patentee[.]’” Adidas AG

v. Nike, Inc., 963 F.3d 1355, 1357 (Fed. Cir. 2020)

(quoting E.I. DuPont de Nemours & Co. v. Synvina

C.V., 904 F.3d 996, 1004 (Fed. Cir. 2018)). “Instead, ‘it

is generally sufficient for the appellant to show that it

has engaged in, is engaging in, or will likely engage in

activity that would give rise to a possible infringement

suit.’” Id. (quoting Grit Energy Sols., LLC v. Oren

Techs., LLC, 957 F.3d 1309, 1319 (Fed. Cir. 2020)).

The Circuit has now regularly discounted or

ignored evidence other than direct monetary damages

concessions, in effect forcing parties to concede both

infringement and damages before meriting appellate

review. Parties are generally reluctant to do so, for

reasons obvious to all.

They have also leaned on and extended mootness

and the voluntary cessation doctrine to avoid even

addressing questions of standing; for instance, this

Court found a covenant not to sue in a trademark case

mooted an appeal; as recently as the day before this

9

brief was filed, the Federal Circuit dismissed another

appeal from an administrative appeal as moot, but

really for lack of standing premised on their

“disavowal of [the] right to appeal the district court’s

noninfringement judgement.” See ABS Global, Inc. v.

Cytonome/ST, LLC, No. 2019-2051 (slip op.) at 6 (Fed.

Cir. Jan. 6, 2021). The panel predictably confined

their analysis to infringement liability alone.

B.
The Routine Curbing of Review for Direct

Competitors

This plainly frustrates competitor’s ability to

seek appellate review of hard-fought disputes. But

competitors are generally best positioned to police

each other’s patents; there is little societal benefit to

forcing them into litigation or concession before they

can do so. Competitors routinely have strong incentive

to question administrative errors; with an erroneously

granted patent claim removed from the marketplace,

the competitor can generate revenue, freely license,

and increase market share. See, e.g., Lear, Inc. v.

Adkins, 395 U.S. 653, 670 (1969) (licensee may be the

only ones with enough economic incentive to challenge

validity); Michael J. Burstein, Rethinking Standing in

Patent Challenges, 83 Geo. Wash. L. Rev. 498, 545-46

(2015) (discussing cost-benefit analysis for competitors

challenging invalid patents). The invalidation of an

asset may create direct marketing effects, reduce the

stock price of a competitor, or otherwise resolve

disputes. And competitors are likely to have the best

technical knowledge relevant to assessing patent

validity. Unduly limiting their right to appeal makes

little sense.

10

The Federal Circuit’s rule is based on the patentmyopic assumption that a company is injured by a

questionable patent only if it is already—or is very

close to—infringing. See, e.g., AVX Corp. v. Presidio

Components, Inc., 923 F.3d 1357, 1365 (Fed. Cir. 2019)

(suggesting only those “currently using the claimed

features or nonspeculatively planning to do so” can be

harmed by a patent). But business disputes are far

more complex than a simple infringement analysis.

The competitive harm from a questionable patent

starts upstream, long before litigation or any concrete

plan of infringement, much less a past infringing act.

Why else would competitors spend hundreds of

thousands or millions of dollars in fees and costs and

years of effort on these challenges?

A patent distorts the market by its very nature,

even if it is never asserted or infringed. It is, at bottom,

a time-limited grant of market exclusivity. It can

operate like a scarecrow, deterring competitors and

follow-on products. Christopher R. Leslie, The

Anticompetitive Effects of Unenforced Invalid Patents,

91 MINN. L. REV. 101, 115–16 (2006) (citing Bresnick

v. U.S. Vitamin Corp., 139 F.2d 239, 242 (2d Cir. 1943)

(Hand, J.)). “[I]nvalid patents can create unacceptable

litigation risks for potential entrants, raise entry

costs, delay entry, deter customers and business

partners from contracting with new entrants, and

impose inefficiencies while distorting innovation.”

Leslie, supra, at 114.

And if a company invests time and money to

develop a product and is later found liable for patent

infringement, it can make or break a business. See,

e.g., 35 U.S.C. § 284 (treble damages for willful

11

infringement); id. at § 283 (enjoining future conduct).

The risk of being sued, irrespective of ultimate

liability, has clear—if hard to articulate—substantial

market risk.

Even if no suit is imminent, and even if a patent

is clearly unpatentable in light of this court’s more

recent rulings, later litigation costs in this field are

staggering. See, e.g., WPEM, LLC v. SOTI Inc., 20201483, 2020 WL 7238458, at *1 (Fed. Cir. Dec. 9, 2020)

(upholding an award of roughly $180,000 in attorney’s

fees for a simple suit that was found frivolous). Selfreported patent litigation costs routinely run into the

tens of millions of dollars, and even the costs of

administrative challenges average in the hundreds of

thousands per side each. See AM. Intellectual Prop.

Law Ass’n, 2017 Report of the Economic Survey 43

(2017) (reporting the median cost of patent litigation

in the tens of millions of dollars, and for post-grant

proceedings before the Patent Office, each side as

$200,000 through the end of motion practice, $250,000

through the PTAB hearing, and $350,000 through

appeal). The risk of litigation alone has substantial

competitive cost.

Petitioner, previous petitions to this Court, and

previous amici have noted how the Federal Circuit’s

patent-specific standing decisions conflict with other

circuits’ decisions and this Court’s precedent, as have

12

many commentators, including amicus. 7 That divide

in authority warrants this Court’s review.

C.
The Circuit’s Rules Have Led to Inconsistent

Results in Competitor Appeals from the Same

Dispute

Fierce competitors know that post-grant

procedures are important parts of commercial

disputes. They can help establish freedom to operate

(or freedom of significant remunerative risk) before

bringing a potentially infringing product to market.

The USPTO’s review procedures are one path to do so.

But their tortured standing and mootness rulings

have complicated resolution of those disputes.

In General Electric Co. v. United Techs. Corp.,

928 F.3d 1349, 1353–54 (Fed. Cir. 2019) (“GE I”)

7 See, e.g., Matthew Dowd & Jonathan Stroud, Standing to

Appeal at the Federal Circuit: Appellants, Appellees, and

Intervenors, 74 Catholic University Law Review 661 (2018)

(reviewing the newly developed standards and cases generally);

Matthew Dowd & Jonathan Stroud, Will the Federal Circuit

Consider the Competitor Standing Doctrine? LAW360 (Dec. 18,

2018) (reviewing competitor standing directly, and noting again

that Federal Circuit may be “taking an overly patent-focused

view and not looking to nonpatent precedent,” and “has struggled

with determining what constitutes Article III standing for

purposes of appealing a PTAB decision”); Burstein, supra, at 500

(“Federal Circuit … has crafted patent-specific standing rules

that are more restrictive than those called for under the Supreme

Court’s broader standing precedents”); Ryan Fitzgerald, No Leg

to Stand On: How the Federal Circuit Improperly Restricted the

Application of the Competitor Standing Doctrine to Patent

Challengers When Establishing Article III Standing Upon

Appealing an Inter Partes Review, MINN. LAW REV. De Novo Blog

(posted Nov. 25, 2019).

13

(Reyna, J.; Hughes, J.; Taranto, J.)., the Federal

Circuit, determining there was no “concrete and

imminent injury to GE,” and that GE asserted “only

speculative harm”), over a strongly worded

concurrence from Judge Hughes, who felt bound by the

Court’s recent precedent on appellate standing, which

he criticized. General Electric sought and was denied

certiorari last term. General Electric Co. v. Raytheon

Techs. Corp., fka United Techs. Corp, 140 S.Ct. 2820

(2020).

That case is largely irreconcilable with his

subsequent ruling in General Electric Co. v. Raytheon

Techs. Corp., No. 2019-1319 (slip op.) at 2 (Fed. Cir.

Dec. 23, 2020) (“GE II”), where a slightly different

panel of judges found that, “[b]ecause General Electric

alleged sufficient facts to establish that it is engaging

in activity that creates a substantial risk of future

infringement, GE has standing to bring its appeal.”

(Hughes, J.; Reyna, J.; Lourie, J.).

To be sure, counsel pled additional facts below

(after having the previous appeal dismissed and

investing time and money in appealing and then

seeking certiorari on this very issue, and then adding

that fact discovery to a related district court case

between the competitors).

Judge Hughes, now in the authoring role, took

pains to note in GE II that it was the additional

attorney argument and record evidence that carried

the day; but the distinctions dissolve under the

comparison before us—the competitor party had

standing in both cases; it was in the Court’s

14

application of their unduly restrictive standing rule

that robbed GE of standing in the earlier appeal.

That GE had to effectively concede future

infringement in an unrelated district court case to

finally vault this hurdle should likewise give this

Court pause. See GE II at n. 2 (“GE’s concession that

Raytheon would accuse its preferred nextgeneration engine of infringing the ’920 patent, and

that GE continues to develop this design, GE may be

now infringing the ’920 patent by its method of

designing the engine”) (emphases added).

Thus, appellant GE had standing in GE I, they

simply ran afoul of the Circuit’s narrow view of what

is required under their circuit-specific test and were

dismissed. That they then met that higher standard

in GE II under virtually identical circumstances

should give this Court pause.

If parties as

sophisticated and well-heeled as GE can run afoul of

these rules, others certainly stand little chance.

CONCLUSION

The Court should grant the petition for writ of

certiorari.

Respectfully submitted,

Jonathan Stroud

5109 Sherier Pl. NW

Washington, D.C., 20016

jonrstroud@gmail.com

(202) 805-8931

January 2021