Amicus Curiae Brief — Lynk Labs, Inc., Petitioner v. Samsung Electronics Co., Ltd., et al.

No. 25-308

IN THE

LYNK LABS, INC.,

v.

Petitioner,

SAMSUNG ELECTRONICS COMPANY, LTD. ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FEDERAL

CIRCUIT

AMICI CURIAE BRIEF OF

INTELLECTUAL PROPERTY AND

INNOVATION SCHOLARS IN SUPPORT OF

PETITIONER

Raffi Melkonian

Counsel of Record

Josh Woods

Eric B. Boettcher

WRIGHT CLOSE BARGER & GUZMAN LLP

One Riverway, Suite 2200

Houston, Texas 77056

(713) 572-4321

melkonian@wrightclosebarger.com

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iv

INTERESTS OF AMICI AND

RULE 37.6 DISCLOSURE ......................................... 1

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT ............................................................... 7

I.

The Law Of Statutory Interpretation

Increasingly Emphasizes Adherence To

Text. .................................................................. 7

II.

Properly-Applied Textualism Neatly

Resolves This Case......................................... 10

III.

A.

The Meaning Of This Statutory

Language Does Not Turn On

Case-Specific Facts.............................. 11

B.

Using The Tools Of Textual

Analysis, Section 311(b) Excludes

Still-Pending Patent Applications ...... 11

1.

Established Principles Of

Textualism Require

Reversal. ................................... 12

2.

The Federal Circuit

Deviated From Textualist

Principles .................................. 18

This Case Presents An Important Issue

Of Interpretation And This Court’s

Guidance Will Be Impactful. ......................... 20

iii

A.

The Published Circuit Decision

Below Will Affect Cases Having

National Importance. .......................... 21

B.

The Clarity Of The Error Below

Provides An Opportunity For

Impactful Guidance. ............................ 23

CONCLUSION ......................................................... 25

iv

TABLE OF AUTHORITIES

Cases

Addison v. Holly Hill Fruit Prods.,

322 U.S. 607 (1944) ................................................ 9

Azar v. Allina Health Servs, Inc.,

587 U.S. 566 (2019) ................................................ 8

Bd. of Governors of Fed. Rsrv. Sys. v. Dimension Fin.

Corp.,

474 U.S. 361 (1986) .................................... 8, 19, 20

Bittner v. United States,

598 U.S. 85 (2023) ............................................ 7, 16

City of Chicago, Illinois v. Fulton,

592 U.S. 154 (2021) ........................................ 16, 17

Cocona, Inc. v. VF Outdoor, LLC,

No. 16-CV-02703-CMA-MLC, 2018 WL 10910847

(D. Colo. Mar. 19, 2018) ....................................... 22

Dubin v. United States,

599 U.S. 110 (2023) ................................................ 8

Erlenbaugh v. United States,

409 U.S. 239 (1972) .............................................. 13

Fischer v. United States,

603 U.S. 480 (2024) .......................................... 7, 17

FTC v. Simplicity Pattern Co.,

360 U.S. 55 (1959) .................................................. 9

v

Garland v. Cargill,

602 U.S. 406 (2024) ................................................ 7

Holy Trinity Church v. United States,

143 U.S. 457 (1892) ................................................ 9

Ingenico Inc. v. IOENGINE, LLC,

136 F.4th 1354 (Fed. Cir. 2025) ........................... 20

Kroy IP Holdings, LLC v. Groupon, Inc.,

146 F.4th 1360 (Fed. Cir. 2025) ........................... 22

Lackey v. Stinnie,

604 U.S. 192 (2025) ................................................ 9

Lockhart v. United States,

577 U.S. 347 (2016) ................................................ 8

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ................................................ 8

Lynk Labs, Inc. v. Samsung Elecs. Co., Ltd.,

125 F.4th 1120 (Fed. Cir. 2025) ..... 11-14, 16, 18-19

Microsoft Corp. v. Proxyconn, Inc.,

789 F.3d 1292 (Fed. Cir. 2015) ............................. 22

New Prime Inc. v. Oliveira,

586 U.S. 105 (2019) .............................................. 20

Pension Ben. Guar. Corp. v. LTV Corp.,

496 U.S. 633 (1990) ........................................ 18, 19

Qualcomm Inc. v. Apple Inc.,

24 F.4th 1367 (Fed. Cir. 2022) ............................. 18

Rodriguez v. United States,

480 U.S. 522 (1987) ........................................ 18, 19

vi

Samantar v. Yousuf,

560 U.S. 305 (2010) .............................................. 12

SAS Inst., Inc. v. Iancu,

584 U.S. 357 (2018) .............................................. 14

Southwest Airlines Co. v. Saxon,

596 U.S. 450 (2022) ................................................ 8

United States v. Hohri,

482 U.S. 64 (1987) ................................................ 21

United States v. Morton,

467 U.S. 822 (1984) .............................................. 12

Univ. of Tex. Sw. Med. Ctr. v. Nassar,

570 U.S. 338 (2013) .............................................. 14

Wachovia Bank v. Schmidt,

546 U.S. 303, (2006) ............................................. 13

Weber, Inc. v. Provisur Techs., Inc.,

92 F.4th 1059 (Fed. Cir. 2024) ............................. 14

Yates v. United States,

574 U.S. 528 (2015) .............................................. 16

Statutes

28 U.S.C. § 1295 ....................................................... 21

35 U.S.C. § 102 ............................................. 13, 16, 17

35 U.S.C. § 122 ......................................................... 15

35 U.S.C. § 153 ......................................................... 17

35 U.S.C. § 311 .......................................... 4, 10, 12-20

vii

Regulations

37 C.F.R. § 1.11 ......................................................... 17

Other Authorities

Statutory Interpretation and the Rest of the Iceberg:

Divergences Between the Lower Federal Courts and

the Supreme Court,

68 Duke L.J. 1 (2018) ........................................... 23

The Paradoxical Impact of Scalia’s Campaign

Against Legislative History,

105 Cornell L. Rev. 1023 (2020) ........................... 23

INTERESTS OF AMICI AND RULE 37.6 DISCLOSURE 1

Amici are professors of law, economics, and business at universities throughout the United States who

have no personal interest in the outcome of this case

but have a vital professional interest in seeing the jurisprudence of the laws of statutory interpretation

and intellectual property develop in a way that facilitates their just administration. As explained in this

brief, the decision below is a black-and-white departure from textualist adherence to statutory language

based on agency and policy preferences, undermining

patentees’ rights to rely on what statutes say and presenting an ideal vehicle for disapproving such policydriven statutory interpretation in every area of law.

Amici scholars submit that their perspective, based on

their collective scholarship and legal expertise, will be

of assistance to the Court in deciding this matter. 2

Ted Sichelman is Judith Keep Professor of Law at

the University of San Diego School of Law. His scholarship has been highly cited, and he was named the

11th most cited IP & Cyberlaw Scholar in the U.S. in

the Leiter Rankings. His publications include the

16th, 7th, 8th, and 47th most-cited law journal articles published in 2009, 2010, 2011, and 2014,

1

Counsel on the cover of this brief states that no counsel for

any party authored this brief in whole or in part and no such

counsel or party or anyone other than amici or their counsel

made a monetary contribution to fund the preparation or

submission of the brief. Sup. Ct. R. 37.6. The parties received

timely notice through their counsel of record of the intention

to file this brief as provided by Rule 37.2.

2

Amici each join this brief in the personal capacity and not on

behalf of their respective institutions.

2

respectively, according to HeinOnline as of August

2020. He has participated in many cases in this Court

as counsel or amicus, including drafting or co-drafting

amicus briefs in Bilski v. Kappos (2010), in which the

Court’s decision largely tracked the brief’s recommendations and reasoning. He founded, ran, and designed software for a venture capital-backed software

and services company later acquired by a publicly

traded company, and is a named inventor on several

issued and filed patents and applications for patent.

Emily Michiko Morris is David L. Brennan Endowed Chair and Associate Director of the Center for

Intellectual Property Law & Technology at the University of Akron School of Law. She is an experienced

teacher and scholar in specializing in patent law, particularly as it relates to biotechnology and university

research, and is an expert on intellectual property and

regulatory issues related to the pharmaceutical industry. Her research also focuses on comparative law and

comparative intellectual property law. Professor Morris’ work has been published in books and leading

journals, such as the Connecticut Law Review, the

Stanford Technology Law Review, and the Harvard

Journal of Gender and Law. Professor Morris is also

Associate Faculty Chair at IPPI: The IP Policy Institute at The University of Akron School of Law in

Washington, D.C. Professor Morris has been the recipient of numerous grants and awards, including a

three-year, $250,000 fellowship as an Eastern Scholar

at the Shanghai University of Political Science and

Law, where she lived and worked for a year as a visiting professor. She has also taught as a visiting or

guest professor at other universities in a number of

other countries.

3

Joshua Kresh is Research Professor and the Executive Director of IPPI: The IP Policy Institute with

The University of Akron School of Law. He was previously Managing Director and Interim Executive Director of C-IP2 at Antonin Scalia Law School, George

Mason University. Prior to joining the academy, he

was an associate with DLA Piper in Washington, D.C.,

where he practiced patent litigation. Joshua received

his law degree with honors from The George Washington University Law School, and he holds master’s and

bachelor’s degrees in computer science from Brandeis

University. Joshua is the Chair of AIPLA’s Patent Litigation Committee and is on the board of the Giles

Rich American Inn of Court. He is a registered patent

attorney with the U.S. Patent and Trademark Office.

He previously served on the Intellectual Property

Committee for the U.S. Court of Federal Claims Advisory Council.

Mark F. Schultz is the Goodyear Endowed Chair

in Intellectual Property Law and Faculty Director of

the IP Policy Institute at the University of Akron

School of Law. His research examines how patent and

other IP institutions influence innovation and investment, with particular focus on life sciences and emerging technologies. He previously practiced technology

and IP law and clerked for Judge Daniel Friedman on

the U.S. Court of Appeals for the Federal Circuit, and

he has served as an expert advisor to the OECD,

WIPO, and policymakers in the United States and

abroad.

SUMMARY OF ARGUMENT

Amici file this brief in support of the petitioner to

highlight the growing gap—typified, if not epitomized,

by the decision below—between this Court’s ever-

4

increasing emphasis on adherence to the words in

statutes and lower courts’ inclination to depart from

them.

This Court’s recent jurisprudence leaves no doubt

that lower courts and administrative agencies must

adhere to the text of statutes when interpreting them.

By adopting a clearly textualist approach, this Court

has rejected alternatives centered on policy-based reasoning, legislative intent and history, and agency discretion. Despite the Court’s clear pronouncements,

many lower courts and agencies continue in many

cases to follow these rejected alternatives to reach incorrect results.

In this case, the U.S. Patent & Trademark Office

(USPTO), acting through the Patent Trial and Appeal

Board (PTAB), and the U.S. Court of Appeals for the

Federal Circuit engaged in policy-based reasoning

and legislative reconstruction to effectively import a

new term, “application(s) for patent,” into Section

311(b) of the Patent Act, 35 U.S.C. § 311. Specifically,

this section states that in USPTO inter partes review

proceedings, the validity of a patent may be challenged “only on the basis of prior art consisting of patents or printed publications” (emphases added). Nowhere does the term “application(s) for patent” (or

“patent application(s)”) appear in the provision.

Rather than adhering to the text of the provision,

the USPTO and Federal Circuit relied on policy and

legislative history—the Federal Circuit largely adopting the agency’s espoused policy positions, without expressly acknowledging that fact—to interpret the section as encompassing “applications for patent,” a separate category of prior art from “patent” or “printed

publication.” Because the language “application(s) for

5

patent” or “patent application(s)” appears in numerous other sections of the Patent Act (e.g., Sections 100,

102, 111, 120, 122, 154, 371, 374), including those related to prior art and validity (e.g., Sections 100, 102),

but not Section 311(b), any textualist approach would

immediately yield the conclusion that the term cannot

be imported into Section 311(b).

This case is an ideal vehicle for the Court to decisively reaffirm to lower courts and agencies that it will

not tolerate policy-driven and similar approaches to

statutory interpretation that essentially ignore or distort the plain text of the statute, for at least four reasons. First, the statutory provision at issue in this

case can be interpreted without resort to the specific

facts of this case and does not raise the major questions or other related doctrines. As such, it presents a

pure issue of law solely based on the text of the statute. Second, it is a black-and-white case in that a textualist approach clearly commands a single result,

whereas approaches centered on policy and legislative

history do not. Third, it involves a lower court, the

Federal Circuit, that is central not only to intellectual

property law, but also to international trade law (including tariffs), as well as to actions filed directly

against the federal government—all areas of great national importance. And it involves inter partes review,

a relatively recent Congressional innovation that has

become a central aspect of high-stakes patent litigation. Fourth, the importance and simplicity of the issues in this case will result in an impactful opinion by

this Court that will be highly influential and widely

cited by lower courts and agencies.

This brief proceeds as follows. Part I summarizes

this Court’s recent cases adopting a textualist approach to statutory interpretation, including its

6

rejection of approaches centered on policy analysis

and legislative history. Part II describes concisely how

the USPTO and Federal Circuit failed to adhere to a

textualist approach. Part III explains how this case is

an ideal vehicle for this Court not only to correct the

Federal Circuit and USPTO, but also to send an emphatic message to lower courts and agencies.

7

ARGUMENT

I.

The Law Of Statutory Interpretation

Increasingly Emphasizes Adherence To

Text.

This Court’s recent jurisprudence leaves no doubt

that lower courts and administrative agencies must

adhere to the text of statutes when interpreting them.

Most recently in Fischer v. United States, the Court

rejected an “expansive interpretation” of a statute

that was “untether[ed]” from the text and would

thereby “override Congress’s careful delineation of”

the “varying” consequences of “disparate types of conduct” throughout its provisions. 603 U.S. 480, 491–95

(2024). Similarly, in Garland v. Cargill, the Court

held that it was improper to “rewrite” a statute

“merely because it draws a line more narrowly than

one of its conceivable statutory purposes might suggest” and rejected a statutory interpretation “keyed”

to a criterion that “Congress did not write.” 602 U.S.

406, 423, 427–28 (2024).

Also, in Bittner v. United States, the Court reaffirmed that “[w]hen Congress includes particular language in one section of a statute but omits it from a

neighbor, we normally understand that difference in

language to convey a difference in meaning.” Following this principle, the Court rejected an interpretation

that increased a penalty for “each account not timely

or accurately disclosed,” because “[t]he word ‘account’

d[id] not even appear” in the statute in relation to the

“category of cases” before the Court. 598 U.S. 85, 92–

94 (2023).

In Dubin v. United States, the Court explained

that interpretation “should . . . reflect the distinction

8

between” categories “that Congress sought to distinguish” and so rejected a “sweeping reading” of statute

that went “well beyond ordinary understandings of”

the statute’s language. 599 U.S. 110, 114, 120, 127–

128 (2023) (quotation marks omitted). See also Southwest Airlines Co. v. Saxon, 596 U.S. 450, 463 (2022)

(declining “to elevate vague invocations of statutory

purpose over the words Congress chose”); Lockhart v.

United States, 577 U.S. 347, 356 (2016) (rejecting statutory interpretation that failed to “preserv[e] some

distinction between the categories” Congress enumerated).

By adopting a clearly textualist approach, this

Court has rejected alternatives centered on policybased reasoning, legislative intent, and broad administrative discretion. “The ‘plain purpose’ of legislation . . . is determined in the first instance with reference to the plain language of the statute itself.” Bd. of

Governors of Fed. Rsrv. Sys. v. Dimension Fin. Corp.,

474 U.S. 361, 373 (1986). Thus, the Court has made

clear that statutory interpretation “begins and ends

with the text,” and that neither perceived statutory

purpose nor arguments rooted in legislative history

may supply what Congress did not enact.

After all, “legislative history is not the law.” Azar

v. Allina Health Servs, Inc., 587 U.S. 566, 579 (2019)

(quotation omitted). The Court has emphasized that

fidelity to the text is required even where policy arguments might point in a different direction and that

courts must interpret statutes “based on traditional

tools of statutory constructions, not individual policy

preferences.” Loper Bright Enters. v. Raimondo, 603

U.S. 369, 403 (2024). These principles reflect the separation-of-powers concerns at the heart of the Court’s

interpretive methodology: where the enacted text

9

speaks, judicial inquiry is bounded by what Congress

actually wrote—not by what courts or agencies believe

Congress might have wanted to achieve. A. SCALIA &

B. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 57 (2012) (hereinafter SCALIA & GARNER)

(“First, the purpose must be derived from the text, not

from extrinsic sources such as legislative history.”).

This commitment to textualism necessarily cabins

the interpretive discretion of lower courts, like the

Federal Circuit here, and agencies, like the USPTO

here. When Congress has spoken with specificity, the

judiciary and agencies are not permitted to supplement or narrow the enacted text simply because “experience may disclose that” the statute should have

been made more comprehensive. Addison v. Holly Hill

Fruit Prods., 322 U.S. 607, 617 (1944). Instead, courts

must apply statutory language as written, giving effect to the distinctions, exceptions, and limitations

that Congress chose. Where the text is clear, that command forecloses any sort of “atextual judicial supplementation.” Lackey v. Stinnie, 604 U.S. 192, 205

(2025); see SCALIA & GARNER 11–13 (criticizing the

now-defunct reasoning of Holy Trinity Church v.

United States, 143 U.S. 457 (1892), that the “spirit” of

a statute may prevail over its text). And where the

text is ambiguous, the inquiry still proceeds through

traditional textual tools—context, structure, canons,

and the statute as a whole—not through appeals to

policy preferences, agency wishes, or assumptions

about what Congress might have intended when in

fact it “studiously omitted” particular words from a

statute. FTC v. Simplicity Pattern Co., 360 U.S. 55, 67

(1959). In short, the modern doctrine does not merely

favor text; it assigns the primacy of text as the controlling rule of decision.

10

II.

Properly-Applied Textualism Neatly Resolves This Case.

The Court of Appeals for the Federal Circuit did

not adhere to textualist principles in reaching its decision in this case. As noted in Part I, Section 311 of

the Patent Act, 35 U.S.C. § 311, solely refers to “patents” and “printed publications” as permissible categories of prior art for inter partes review (IPR) actions

and does not include the term “applications for patent,” used extensively throughout the Act.

Under § 311, correctly construed, published patent

applications may only be considered as prior art in

IPR proceedings as “printed publications,” not as a

separate category of prior art. The important upshot

is that the earliest relevant date of a published patent

applications in IPR proceedings is its publication date

and not its filing date or other dates prior to publication.

The Federal Circuit’s contrary interpretation

reads key phrases in isolation instead of construing

the statute as a whole. It also relies on a broad sense

of statutory purpose, thereby overriding the details of

the express limitations Congress put in place. Applying established textualist principles makes the errors

in the Federal Circuit’s interpretation crystal clear.

These errors merit this Court’s attention in part

because the statutory question is so cleanly presented.

The interpretive dispute is antecedent to all factual

disputes, allowing this Court to provide guidance to

lower courts and agencies on a pure question of statutory interpretation.

11

A.

The Meaning Of This Statutory

Language Does Not Turn On CaseSpecific Facts.

The only relevant facts are undisputed—i.e., that

the only invalidity grounds in dispute depend on a

published patent application (the “Martin” reference)

that is not prior art as of its publication date but

would be prior art if afforded priority as of its filing

date. Lynk Labs, Inc. v. Samsung Elecs. Co., Ltd., 125

F.4th 1120, 1123–24 (Fed. Cir. 2025) (“Relevant here

are Samsung’s first six grounds of unpatentability,

each of which relied on . . . ‘Martin.’”); see also id. at

1124 n.3.

The entire dispute as presented to this Court is

simply whether § 311 allows published patent applications to be considered prior art in an inter partes review as of their filing date. The Court can therefore

correct the Federal Circuit’s error of statutory interpretation and reverse without the need to consider

any of the technical and factual disputes characteristic of patent litigation.

B.

Using The Tools Of Textual Analysis, Section 311(b) Excludes StillPending Patent Applications.

The meaning of § 311(b) is readily resolved

through standard textual analysis. Section 311(b) permits the PTAB to rely only on “prior art” that consists

of “patents or printed publications” in an IPR and excludes other forms of prior art, even when they would

otherwise qualify under other sections of the Patent

Act. The familiar tools of construction reveal no basis

for the Federal Circuit’s contrary approach.

12

1.

Established Principles Of

Textualism Require Reversal.

Several textualist principles point to the same interpretation of § 311(b), and none contradict it. That

disputed subsection specifically provides:

A petitioner in an inter partes review

may request to cancel as unpatentable 1

or more claims of a patent only on a

ground that could be raised under section 102 or 103 and only on the basis of

prior art consisting of patents or

printed publications.

35 U.S.C. § 311(b) (emphasis added). Read as a whole,

the plain meaning of the language “prior art consisting of . . . printed publications” embraces references

that are prior art to the patent in dispute by virtue

of having been published in print. The Federal Circuit

went awry, first and foremost, by eschewing this holistic reading and construing key phrases in isolation.

It first considered whether the Martin reference

was a printed publication and then, separately,

whether it was prior art, Lynk Labs, 125 F.4th at

1125–26. But this approach is contrary to this Court’s

consistent guidance. “[W]e do not . . . construe statutory phrases in isolation; we read statutes as a whole.”

Samantar v. Yousuf, 560 U.S. 305, 319 (2010) (quoting

United States v. Morton, 467 U.S. 822, 828 (1984)). As

Petitioner argued before the Federal Circuit, a published patent application is always a “printed publication,” but is only “prior art” in an IPR as of its publication date.

The textual conclusion is confirmed by examining

the only provision that meaningfully defines “printed

13

publications”—§ 102, the very section to which

§ 311(b) expressly refers. There is no dispute that the

two sections are in pari materia. Lynk Labs, 125 F.4th

at 1125–32 (relying heavily on § 102 to construe §

311). And “statutes addressing the same subject matter generally should be read ‘as if they were one law.’”

Wachovia Bank v. Schmidt, 546 U.S. 303, 315–16,

(2006) (quoting Erlenbaugh v. United States, 409 U.S.

239, 243 (1972)).

The Federal Circuit attempted to interpret § 311

in view of § 102 but did so improperly. Specifically, the

Federal Circuit held that “under § 102(e)(1), even if a

patent application was published after a claimed invention, it may serve as prior art to the invention if

the application was filed before the invention.” Lynk

Labs, 125 F.4th at 1126. Yet, § 102(e)(1) does not mention “patents or printed publication”—it deals exclusively with an “application for patent,” a separate category of prior art absent from § 311(b). 35 U.S.C. §

102(e)(1) (2006 ed.) (“the invention was described in

— (1) an application for patent, published under section 122(b), by another filed in the United States before the invention by the applicant for patent) (emphasis added).

Section 311(b) requires that prior art in IPRs both

“could be raised under section 102 or 103 and only . . .

consist[] of patents or printed publications” 35 U.S.C.

§ 311(b) (emphasis added). Reading this passage as a

whole, prior art under § 102(e)(1), which is limited to

“application[s] for patent,” cannot serve as a basis for

prior art available in IPRs under § 311(b). Rather, under § 311(b), the only basis for considering an application for patent as prior art is as a “printed publication”

under § 102(a) or § 102(b). As is clear from the lengthy

discussion in Petitioner’s certiorari petition, printed

14

publications in these sections can only be used as of

the date of publication, not the date of filing or an earlier date. “The touchstone of whether a reference constitutes a printed publication is public accessibility.”

Lynk Labs, 125 F.4th at 1125 (quoting Weber, Inc. v.

Provisur Techs., Inc., 92 F.4th 1059, 1067 (Fed. Cir.

2024)).

Applying established canons of construction reinforces this interpretation. The simplest textual objection to the Federal Circuit’s interpretation is the

canon expressio unius est exclusio alterius. Section

311(b) lists two categories of prior art and not others,

but the Federal Circuit’s reading deprives Congress’s

omission of any reference to patent applications from

having any effect.

According to the Federal Circuit’s reading, the language “patents or printed publications” functions as if

Congress had enacted the much broader phrase “patents, printed publications, and patent applications.”

But if Congress had intended IPRs to consider patent

application references that are prior art only by virtue

of their filing date, it would have been expected to include “prior art . . . consisting of patent applications”

in § 311(b)’s enumerated list, just as it did by listing

“prior art consisting of patents.” “‘Congress’ choice of

words is presumed to be deliberate’ and deserving of

judicial respect.” SAS Inst., Inc. v. Iancu, 584 U.S.

357, 364 (2018) (quoting Univ. of Tex. Sw. Med. Ctr.

v. Nassar, 570 U.S. 338, 353 (2013)).

The expressio unius “doctrine properly applies . . .

when . . . the thing specified . . . can reasonably be

thought to be an expression of all that shares in the

grant or prohibition involved.” SCALIA & GARNER 107.

Here, the phrase “patents or printed publications”

15

meets that requirement because the statute is an expressly exhaustive list of the prior art that can be considered in an IPR. 35 U.S.C. § 311(b) (“only on the basis”).

Moreover, § 311(b) is not sui generis. Rather than

invent a new way to categorize prior art, it reproduces

certain categories of prior art set down in § 102 and

used throughout the Patent Act (“patents” and

“printed publications”) and excludes other categories

of prior art in § 102 (“applications for patent”). The

enumeration of two of the established categories of

prior art pointedly implies that omitted categories are

excluded. And, as to patent applications specifically,

Congress has shown that it knows how to refer to

them clearly when it intends to. The language “application(s) for patent” or “patent application(s)” appears

numerous times in the Patent Act (e.g., Sections 100,

102, 111, 120, 122, 154, 371, 374)—including those related to prior art and validity (e.g., Sections 100,

102)—but not in Section 311(b).

Particularly telling is 35 U.S.C. § 122(e)(1), another section in which Congress lists types of prior art.

In that section, however, Congress listed “patent application” expressly—in addition to “printed publications”: “Any third party may submit for consideration

and inclusion in the record of a patent application, any

patent, published patent application, or other printed

publication of potential relevance to the examination . . . .” 3 This makes § 311(b) particularly ripe for

application of the negative implication canon. “When

Congress includes particular language in one section

3

Section 122(e)(1) has no direct application here because it

does not relate to IPRs—it governs preissuance submissions

by third parties while a patent application is pending.

16

of a statute but omits it from a neighbor, we normally

understand that difference in language to convey a

difference in meaning (expressio unius est exclusio alterius).” Bittner, 598 U.S. at 94. The omission of patent applications from § 311(b) is meaningful and

demonstrates that in an IPR the PTAB may not consider patent applications as prior art as of their filing

date.

The canon against surplusage demands the same

result. That principle “frequently . . . prevents not the

total disregard of a provision, but instead an interpretation that renders it pointless.” SCALIA & GARNER

176. Indeed, “[t]he canon against surplusage is strongest when an interpretation would render superfluous

another part of the same statutory scheme.” City of

Chicago, Illinois v. Fulton, 592 U.S. 154, 159–60

(2021) (quoting Yates v. United States, 574 U.S. 528,

543 (2015)).

The interpretation of § 311(b) adopted by the Federal Circuit is just such an interpretation—it so

broadens the effect of “printed publications” that the

phrase swallows everything included not only under

“applications for patent” but even under “patents,”

rendering the latter utterly superfluous. The Federal

Circuit separated out the question of whether a reference qualifies as a printed publication from whether

it counts as prior art. It reasoned that § 311(b) allows

a reference that counts as a “printed publication” to

claim priority under any applicable provision of § 102,

not just the provisions in § 102(a) and (b) that pertain

to printed-publication prior art. Lynk Labs, 125 F.4th

at 1130. It therefore wrongly concluded that because

published patent applications (1) qualify as printed

publications and (2) qualify as prior art as of their filing date under § 102(e)(1), they can be considered as

17

prior art in an IPR as of that filing date. Id. This may

have well been the intent of the drafters, but this

Court has made amply clear that purpose cannot override the plain language of the statute. Fischer, 603

U.S. at 491–95.

If that atomized approach to interpretation were

correct, however, then the separate inclusion of “patents” in § 311(b) would have no function. Just like

published patent applications, issued patents are also

necessarily printed publications. 4 So if—as the Federal Circuit held—the phrase “printed publications” in

§ 311(b) allowed published patent applications to

serve prior art in an IPR as of their filing date under

§ 102(e)(1), then it must do the same for patents under

§ 102(e)(2). Accordingly, the separate, express inclusion of “patents” alongside “printed publications”

would add nothing.

The Federal Circuit’s interpretation must therefore be rejected for “render[ing] superfluous” not only

“another part of the same statutory scheme” but also

another part of the very same clause. Fulton, 592 U.S.

at 159–60. Only the correct reading gives independent

effect both to “patents” and “printed publications.”

The superfluity can easily be avoided simply by recognizing that “prior art consisting of patents or printed

publications” allows a reference to be considered in an

IPR only as of a priority date that it can claim by

4

By statute and rule, patents are both printed and made available to the public once issued. 35 U.S.C. § 153 (“[I]ssued” patents “shall be recorded in the Patent and Trademark Office.”); 37 C.F.R. § 1.11(a) (“The specification, drawings, and

all papers relating to the file of . . . a patent . . . are open to

inspection by the public, and copies may be obtained.”).

18

virtue of being either a patent or printed publication—

not by virtue of being a patent application.

2.

The Federal Circuit Deviated

From Textualist Principles

The Federal Circuit committed two main errors in

interpreting § 311. First, as discussed earlier, it read

the term “printed publications” in isolation rather

than as part of the phrase “prior art . . . printed publication[s],” as Lynk Labs urged. Lynk Labs, 125 F.4th

at 1125. Second, it relied on a broad Congressional

purpose which it drew in significant part from legislative history.

Specifically, the Federal Circuit sought to bolster

its atextual reading by relying on a broad sense of the

purpose of § 311(b), drawn primarily from legislative

history. That court reasoned that the statute’s purpose was “to provide a cheaper and less time-consuming alternative to challenge patent validity on certain

issues.” Lynk Labs, 125 F.4th at 1132 (quoting Qualcomm Inc. v. Apple Inc., 24 F.4th 1367, 1376 (Fed. Cir.

2022)). From that premise, the court concluded that

§ 311(b)’s limitation to “patents or printed publications” should be read broadly—such that published

patent applications qualify despite being omitted from

that list.

But “no legislation pursues its purposes at all

costs.” Pension Ben. Guar. Corp. v. LTV Corp., 496

U.S. 633, 646–47 (1990) (quoting Rodriguez v. United

States, 480 U.S. 522, 525–26 (1987)). And here, it is

crystal clear that § 311(b) expressly restricts the types

of validity challenges that can be channeled into its

accelerated procedures, so nothing can properly be inferred from the Federal Circuit’s assessment of the

19

statute’s overarching purpose. It would “frustrate[]

rather than effectuate[] legislative intent simplistically to assume that whatever furthers the statute’s

primary objective must be the law.” Id. at 647 (quoting

Rodriguez, 480 U.S. at 525–26); see SCALIA & GARNER

11–13 (explaining that the “spirit” of a statute may

not prevail over its text).

The Court also relied on legislative history to infer

“a broad division between prior art that may be asserted in these post-grant proceedings and prior art

that may not: printed documents versus sale and public use, respectively.” Lynk Labs, 125 F.4th at 1132. It

concluded that the purpose of this division was to admit only “the types of references that ‘are normally

handled by patent examiners,’ while” excluding those

that “require substantial discovery or factfinding.” Id.

(citations omitted).

Legislative history is not the right place to look for

“[t]he ‘plain purpose’ of legislation,” which “is determined in the first instance with reference to the plain

language of the statute itself.” Dimension Fin. Corp.,

474 U.S. at 373; see also SCALIA & GARNER 56 (“[P]urpose must be derived from the text, not from extrinsic

sources such as legislative history.”).

Assuming Congress’s purpose was to allow PTAB

to consider written materials that do not require extensive discovery or factfinding, that supposed policy

does not support the Federal Circuit’s position. Congress plainly did not pursue this purpose to its logical

endpoint. If ease of handling were the touchstone,

then any prior-art reference documented in writing

would be fair game for inter partes review—including

written proof of prior use or prior sales. Yet no one

reads § 311(b) to sweep that broadly, and the Federal

20

Circuit has already acknowledged that some invalidity grounds based on written evidence lie outside its

scope. See Ingenico Inc. v. IOENGINE, LLC, 136 F.4th

1354, 1367 (Fed. Cir. 2025).

Accordingly, the mere fact that patent applications

are written references that are easy to handle in an

IPR says little if anything about how § 311(b) should

be interpreted. And this case exemplifies the danger

of attempting to “pave over bumpy statutory texts”

with “cold logic”—doing so “risk[s] failing to ‘tak[e] . . .

account of’ legislative compromises essential to a law’s

passage.”. New Prime Inc. v. Oliveira, 586 U.S. 105,

120 (2019) (quoting Dimension Fin. Corp., 474 U.S. at

374).

III.

This Case Presents An Important Issue Of

Interpretation And This Court’s Guidance

Will Be Impactful.

In addition to presenting a clean vehicle for correcting a pure error of interpretation, this case presents an important opportunity to direct lower courts.

First, the Federal Circuit has a uniquely nationwide

role, so ensuring that it interprets statutes according

to settled principles is especially important. The specific statutory question regarding the scope of IPRs is

also of nationwide significance because IPRs have become a ubiquitous feature of patent litigation across

the nation.

Second, because applying traditional tools of statutory construction makes this case clearcut, it provides an opportunity for the Court to give guidance on

issues of interpretation with broad application. This

will assist lower courts far beyond the confines of patent law.

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A.

The Published Circuit Decision Below Will Affect Cases Having National Importance.

The Federal Circuit is unique among federal courts

of appeals (save perhaps for the D.C. Circuit) in the

nationwide significance of its decisions. Both within

patent law and without, it has jurisdiction over appeals from all district courts, limited only by the subject matter of the appeals. 28 U.S.C. § 1295(a)(1) (patent claims); id. § 1295(a)(2) (Little Tucker Act

claims). It also has jurisdiction over appeals from several specialized tribunals, each of which has effectively nationwide jurisdiction over specialized subject

matter, including the Court of Federal Claims, the

Court of International Trade, and Patent and Trademark Trial and Appeals Boards (PTAB and TTAB). 28

U.S.C. § 1295(a)(3)–(10).

This nationwide character is central to the mission

and purpose of the Federal Circuit. This Court has

noted the importance of “the Federal Circuit” in meeting “the ‘special need for nationwide uniformity’ in

certain areas of the law.” United States v. Hohri, 482

U.S. 64, 71 (1987). But this nationwide character is

also a two-edged sword. When the Federal Circuit

goes astray in its interpretation of statutes, the effects

are felt in every corner of the nation. By the same token, correcting the Federal Circuit in this case is a

matter of nationwide significance, including beyond

the dispute at issue in this case. Ensuring the Federal

Circuit adheres to rigorous textualism is critical for

ensuring the sound development of all the specialized

fields of law committed to its supervision.

The narrow question at issue is also of nationwide

significance. Inter partes review has become an

22

extremely consequential feature of patent litigation

across the nation. Shortly after “IPRs were created,

they . . . rapidly bec[a]me a popular vehicle for challenging the validity of issued patents.” Microsoft Corp.

v. Proxyconn, Inc., 789 F.3d 1292, 1306–07 (Fed. Cir.

2015). Indeed, “popular . . . is an understatement. . . .

[T]he number of IPR petitions filed in 2013 to 2015 . . .

more than tripled from 514 to 1737.” Cocona, Inc. v.

VF Outdoor, LLC, No. 16-CV-02703-CMA-MLC, 2018

WL 10910847, at *2 (D. Colo. Mar. 19, 2018). The

number of petitions for inter partes review “[i]n a typical year” ultimately settled “between 1,000 and

2,000.” Kroy IP Holdings, LLC v. Groupon, Inc., 146

F.4th 1360, 1364 n.5 (Fed. Cir. 2025) (Dyk, J., dissenting). And it remains in that range today. See U.S. Patent & Trademark Office, Patent Trial and Appeal

Board, Trial Statistics at 5 (Sept. 30, 2025) (1362 IPRs

filed in fiscal year 2025) 5; U.S. Patent & Trademark

Office, Patent Trial and Appeal Board, Trial Statistics

at 5 (Sept. 30, 2024) (1250 IPRs filed in fiscal year

2025). 6

In sum, IPRs are now a commonplace part of patent litigation, and they have significant impacts both

on its ultimate outcome and, increasingly, on the procedural course of litigation. The scope of IPRs is therefore an incredibly important question for patent litigation, and the Federal Circuit’s mistake will distort

litigation across the nation if not corrected.

5

Available at https://www.uspto.gov/sites/default/files/documents/Trial_StatsFY25_Q4.pdf.

6

Available at https://www.uspto.gov/sites/default/files/documents/ptab_aia_fy2024__roundup.pdf.

23

B.

The Clarity Of The Error Below

Provides An Opportunity For Impactful Guidance.

Finally, this Court’s guidance on basic questions of

statutory interpretation will prove valuable far outside the bounds of patent law. This case provides a

neat vehicle to showcase rigorous textualist analysis.

It presents a pure question of interpretation, without

any need for the Court to get bogged down in facts or

technical minutiae.

The errors that the Federal Circuit made, reading

key phrases in isolation from the rest of the statutory

text and relying on legislative history to infer statutory purpose, are clear for the reasons described

above. They are, however, also commonplace. SCALIA

& GARNER 167 (“Perhaps no interpretive fault is more

common than the failure to follow the whole-text

canon.”); id. at 18 (“[P]urposivism” has recently “been

called “the basic judicial approach these days.”). And

many inferior courts continue to employ non-textualist approaches to interpretation. See, e.g., Aaron-Andrew P. Bruhl, Statutory Interpretation and the Rest

of the Iceberg: Divergences Between the Lower Federal

Courts and the Supreme Court, 68 Duke L.J. 1, 65

(2018) (summarizing how the Supreme Court and

lower courts tend to deploy different interpretive

methodologies); Stuart Minor Benjamin & Kristen M.

Renberg, The Paradoxical Impact of Scalia’s Campaign Against Legislative History, 105 Cornell L. Rev.

1023, 1068, 1082 (2020) (describing inconsistent adoption of textualist principles by lower courts).

This affords the Court an opportunity to provide

instruction on statutory interpretation that can guide

all lower courts, reducing the kinds of errors to which

24

judges are most prone. The Court should forestall

such errors by instructing courts on what to consider

and showing that any doubt about the statute’s meaning can be resolved using clear textualist canons, such

as the negative implication canon and the presumption against superfluities.

25

CONCLUSION

To correct a clear error on a question of pure statutory interpretation, the Court should grant the petition.

Respectfully submitted,

Raffi Melkonian

Counsel of Record

Josh Woods

Eric B. Boettcher

WRIGHT CLOSE BARGER &

GUZMAN LLP

One Riverway,

Suite 2200

Houston, Texas 77056

(713) 572-4321

melkonian@wrightclosebarger.com