# Petition for Writ of Certiorari — Turn-Key-Tech, LLC v. National Film Laboratory, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 1063

## Text

Supreme Cowt.! .
y™ FILED

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~~ No, 931138 FEB 3 - 2008

OFFICE OF Tht Ci sik
IN THE

Supreme Court of the United States |

TuRN-Key-TEcu, LLC,
- Petitioner,
v.

NaTIONAL FILM LaBoratory, INC. (D/B/A Crest NATIONAL OPTICAL

Mep1A), Music City Optica Mepia, inc., HoLLywoop REcorDs,

INc., ConcorD Disc MANUFACTURING Corp., KRAUSS MAFFEI
CORPORATION, AND KRAUS MaFFEI KUNSTSTOFFTECHNIK GMBH,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS FOR THE FEDERAL CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Of Counsel: Boris ZELKIND

Counsel of Record
Patricia A. SHACKELFORD
ZELKIND & SHACKELFORD LLP

Davip C. FREDERICK
RICHARD H. STERN
KELLOGG, HuBER, HANSEN,

Toop & Evans, P.L.L.C. Sorrento Towers North
1615 M Street, N.W. 5355 Mira Sorrento Place
Suite 290

Suite 400
Washington, D.C. 20036
(202) 326-7900

San Diego, CA 92121
(858) 558-6745

Counsel for Petitioner
— g RECEIVED
COUNSEL PRESS
(800) 274-3321 + (800) 359-6859 FERS - 2004

OFFICE OF THE CLERK
SUPREME COURT, US.

QUESTION PRESENTED

The Federal Circuit affirmed the District Court’s
summary judgment of noninfringement on new grounds based
on the Federal Circuit’s own interpretation of a non-disputed
patent claim element, which was first raised sua sponte at
oral argument and never addressed by the parties or the
District Court below. The question presented is:

Whether this Court should limit the Federal Circuit’s
practice, which is in conflict with other appellate court
holdings that sua sponte rulings on mixed questions of fact
and law without notice and hearing violate a litigant’s
substantial rights, of entering judgments based on its
sua sponte interpretations of patent claims.

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RULE 29,6 CORPORATE
DISCLOSURE STATEMENT

Petitioner Turn-Key-Tech, LLC has no parent corporation

and no publicly held company owns 10 percent or more of
Turn-Key-Tech, LLC’s stock.

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TABLE OF CONTENTS

EE vias b seks ter sacons sd neens

Rule 29.6 Corporate Disclosure Statement .......

eee evens ees

Table of Cited Authorities .....................

cans brad cess dn ni sine es

Ne vin wee du oo

SE ee

SOs Co

Constitutional Provision Involved ..............

Ce nak hehe we ees

Reasons for Granting the Petition ..............

I.

The Federal Circuit’s Practice Of Issuing
Sua Sponte Constructions Of Patents Without
Giving Affected Parties Notice And An
Opportunity To Be Heard Is Inconsistent With
This Court’s Decisions And Those Of Other
Courts As To When Sua Sponte Rulings May
| Pree ee eee

Page

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Conclusion

iv

Contents

The Federal Circuit Has Developed A
Weli-Entrenched Practice Of Deciding
Patent Claim Construction Cases On A
Sua Sponte Basis ..................

The Federal Circuit’s Practice As
Applied In This Case Deprives
Petitioners Of Substantial Rights In
Conflict With This Court’s Decisions

re ee ee eR OER OS IETS eee i a ee teas oe

The Federal Circuit’s Judgment
Conflicts With Numerous Court
Decisions Hotding That Mixed
Questions Of Fact And Law Such As
Patent Claim Construction May Not Be
Decided By Courts Through Sua Sponte
We eeger eens se

This Case Is An Ideal And Important
Vehicle For Deciding Whether The
Federal Circuit’s Practice Is Permissible
In Patent Cases....................

Be ee eee ee 8 MO, ROPER Re eee ie an eile el gir a aes Oe

Page

1]

19

24

26

AD Ni kG ERLE tH

TABLE OF CITEDAUTHORITIES

Page
FEDERAL CASES
Arcadia, Ohio v. Ohio Power Co., 498 U.S. 73 (1990)
Pe ee re ee et ne ee ee 15
Bendet v. Sandoz Pharm. Corp., 308 F.3d 907
gl ee ores ee rere yee oy en 20
Boddie v. Connecticut, 401 U.S. 371 (1971) ...... 14
Canaan Prods., Inc. v. Edward Don & Co., 388 F.2d
a | eer Serre eka 6
Carducci v. Regan, 714 F.2d 171 (D.C. Cir. 1983)... 22
Clorox Co. Puerto Rico v. Proctor & Gamble
Commercial Co., 228 F.3d 24 (1* Cir. 2000) ... 20
Cybor Corp. v. FAS Technologies, Inc., 138 F.3d 1448
qs te. Pepweeererrerrrrr ss) te) 17, 18
Dickinson v. Zurko, 527 U.S. 150 (1999) ........ 9
Exxon Chem. Patents, Inc. v. Lubrizol Corp., 64 F.3d
eke, Es i.) meer he rucs 8
Exxon Chem. Patents, Inc. v. Lubrizol Corp.,
137 F.30 1475 (Ped. Cor. VOR) wont accc cade 14
Franklin v. Oregon State Welfare Div., 662 F.2d 1337
‘cg Ae: ) ne eer err ere ry 21

ee

Wi

Cited Authorities

Page
Glaxo Group Ltd. v. TorPharm, Inc., 153 F.3d 1366

BPN Oe WPI ls 84x he ee ee 18
Graham v. John Deere Co., 383 U.S. | (1966) .... 17
Hartmann v. Prudential Ins. Co. of America, 9 F.3d

EOE GA BID ois bewkewcanecex, 23-24
Hoechst Celanese Corp. v. BP Chems. Ltd., 78 F. -

cit a |) err annie ae 6
In re Arthur Treacher’s Franchisee Litigation,

689 F.2d 1137 (3" Cir. 1982) ................ 23
In re Cortright, 165 F.3d 1353 (Fed. Cir. 1999) ... 9
Juidice v. Vail, 430 U.S. 327 (1977) ............ _15
Kamen v. Kemper Financial Servs., Inc., 500 U.S.

via Sh | Ee EN ne, Al ok 15
Kolstad v. American Dental Ass’n, 527 U.S. 526

PRE GS sic sso a as ee ee 16
Landon v. Plasencia, 459 U.S. 21 tee 19
Lankford v. Idaho, 500 U.S. 110(1991) ......... 19

Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737 (1976)

Vil

Cited Authorities

Page
Lufkins v. Leapley, 965 F.2d 1477 (8" Cir. 1992) .. 13
Mannesman Demag Corp. v. M/V Concert Express,
rei MB ee a | eae 20
Markman vy. Westview Instruments, Inc., 52 F.3d 967
(Fed. Cir. 1995), aff’d, 517 U.S. 370 (1996) ... = 25
Markman vy. Westview Instruments, Inc., 517 U.S. 370
PN Ut ceca akan eae erate ere 4,16, 17, 18
Massey v. Congress Life Ins. Co., 116 F.3d 1414
‘Rig ef 2 Eee ear ere ey erreur 21
Modine Mfg. Co. v. U.S. Int'l Trade Comm'n, 75 F.3d
1545 (Fed. Cir. 1996), abrogated on other
grounds, Festo Corp. v. Shoketsu Kinzoku Kogyo
Kabushiki Co., 234 F.3d 558 (Fed. Cir. 2000)
Fe AT POL OPEN Te eae STE 6
Mullane v. Central Hanover Bank & Trust Co.,
(gtk Me fk) | rrr ee ewer are te 14

Nelson v. Adams USA, Inc., 529 U.S. 460 (2000) .. 13, 14, 20
Nolen v. Gober, 222 F.3d 1356 (Fed. Cir. 2000) ... 23

Otis Elevator Co. v. George Washington Hotel Corp.,
gee’ Fi i | Breer 20-21

Vil

Cited Authorities
Page
Principal Mutual Life Ins. Co. y. Charter Barclay

Hosp., Inc., 81 F.3d 53 (7" Cir. 1996) ......... 13
Rochin v. California, 342 U.S. 165 (1952) ....... 14
Rodime PLC v. Seagate Tech., Inc., 174 F.3d 1294

(Fed. Cir. 1999) ..... Sete ere ee ro 8
Seal-Flex, Inc. v. Athletic Track & Court Constr.,

172 F.3d 836 (Fed. Cir. 1999) ............... 9,10
Shockley v. Jones, 823 F.2d 1068 (7" Cir. 1987)... aa
Snider v. Melindez, 199 F.3d 108 (2d Cir. 1999)... 20
Steel Co. v. Citizens for a Better Env t, 523 U.S. 83

SFE caesar ee awe Ca eee ee 15
Stewart Title Guar. Co. v. Cadle Co., 74 F.3d 835

(Fo Ge WE is eeepc eos 13, 23
Stoyanov v. Immigration & Naturalization Serv.,

172 F.3d 731 (9" Cir. 1999) ................. 22-23
Thomas R.W. v. Massachusetts Dept of Educ.,

130 F.3d 477 (1" Cir. 1997) ................. 13

U.S. Indus. Chems., Inc. v. Carbide & Carbon Chems.
Corp., 315 U.S. 668 (1942) ................. 17

ix

- Cited Authorities

Page

United States v. Burke, 504 U.S. 229 (1992) ... 15-16, 19

United States v. Feola, 420 U.S. 671 (1975) ......

United States v. James Daniel Good Real Property,
pie Ee St |) Sn near eerie

Williams v. Chrans, 894 F.2d 928 (7" Cir. 1990) ..
STATE CASES

Brown y. Triple “D” Drilling Co., 585 P.2d 987
OE 2 rrr errr ees eee eer coe

Cortina v. Cortina, 98 So.2d 334 (Fla. 1957) .....
Gall v. Scroggy, 725 S.W.2d 867 (Ky. Ct. App. 1987)

PEE. 2p ek een ch ens cea ekees Coreeees
Holzer v. Jochim, 557 N.W.2d 57 (N.D. 1996) ....

Kerrigan, Estess, Rankin & McLeod v. State,
711 So.2d 1246 (Fla. Dist. Ct. App. 1998) .....

Storer Communications of Jefferson County, Inc. v.
Oldham County Bd. Of Educ., 850 S.W.2d 340
Cy, CL Bg. TOE) ona cen cate cdecssins

19

14

23

21

Cited Authorities

Page
UNITED STATES CONSTITUTION
Be 2,14
STATUTE
Oe a BEE his kde see eek whole 2
OTHER AUTHORITIES
Gregory D. Leibold, Jn Juries We Do Not Trust:
Appellate Review of Patent Infringement
Litigation, 67 U. Colo. L. Rev. 623 (1996) ..... 1]

William C. Rooklidge & Mathew F. Weil, Judicial
Hyperactivity: The Federal Circuit's Discomfort
with Its Appellate Role, 15 Berkeley Tech. L.J. 725
SE eek ey ea eek ura 9,11

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TABLE OF APPENDICES

Appendix A — Opinion Of The United States Court
Of Appeals For The Federal Circuit Dated
September 8, 2003 .. 2... cece ese e ere enene

Appendix B — Judgment Of The United States
District Court For The District Of California Filed
OC ee eee ee ee

Appendix C — Order Of The United States District
Court For The Central District Of California Filed
June 6, 2002 And Entered June 10, 2002 ......

Appendix D — Order Construing Claims Of U.S.
Patent 4,422,998 Or The United States District
Court For The Central District Of California Dated
January 8, 2002 And Filed January 18, 2002 ...

Appendix E — Order Of The United States Court
Of Appeals For The Federal Circuit Denying
Petition For Rehearing Dated And Filed October
Rp. ee Pee Oe re rere Poe re ree Tee

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39a

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Turn-Key-Tech, LLC, respectfully petitions for a writ of
certiorari to review the judgment of the United States Court of
Appeals for the Federal Circuit in this case.

INTRODUCTION

This case involves an egregious exercise of a court’s power
to definitively resolve a case by issuing a sua sponte ruling on
an issue not raised in the District Court or argued by either party
on appeal. Without giving petitioner any notice that it intended
to foreclose petitioner’s suit for patent infringement against
respondents and an opportunity to present arguments against
the court’s newfound theory, the Federal Circuit sua sponte
affirmed summary judgment against petitioner on an alternate
ground that had not been briefed by the parties or passed on by
the District Court. That decision runs counter to numerous
decisions of this Court holding that a party’s substantial rights
may not be adjudicated by a court in a sua sponte ruling without
notice and an opportunity to be heard. It also directly conflicts
with the decisions of seven other circuits which hold that a court
may not sua sponte grant summary judgment against a party
without affording that party notice of the grounds for judgment
and an opportunity to present evidence and argument.
The Federal Circuit’s decision here was not an isolated error,
but rather the latest manifestation of an accepted practice of
issuing sua sponte claim constructions that has drawn dissent
from a distinct minority on the court. Because the question
presented goes fundamentally to the manner of how patents are
adjudicated and there is no expectation that the Federal Circuit
will reverse itself on its own, this Court’s review is necessary.

OPINIONS BELOW

The court of appeals’ opinion (App. 1a-8a) is not officially
reported. It is reported unofficially at 74 Fed. Appx. 58, 2003
WL 22097823. The court of appeals’ order denying rehearing

2

(App. 72a-73a) is unreported. The final judgment of the district
court and its underlying claim construction and summary
judgment orders (App. 9a-10a, 39a-71a, 11a-38a) are not
reported.

JURISDICTION

The court of appeals entered its judgment on September 8,
2003. Petitioner, Turn-Key-Tech, LLC (“Turn-Key”), timely
filed a petition for rehearing, which was denied on October 14,
2003. The Chief Justice subsequently extended the time within
which to file a petition for a writ of certiorari to and including
February 3, 2004. App. No. 03A526. This Court has jurisdiction
under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the Constitution provides, in
pertinent part: “No person shall be. . . deprived of life, liberty,
or property, without due process of law. . . .”

STATEMENT

Although the question presented does not require the Court
to grasp the technology underlying this patent infringement
dispute, the consequences of the Federal Circuit’s erroneous
sua sponte ruling is best understood against the backdrop of
Turn-Key’s underlying claim of infringement. The invention of
the Sorensen patent (U.S. Pat. No. 4,422,998, App. 74a-92a) is
an improved method or process for making injection molded
plastic articles, such as the compact discs (“CD”) and digital
versatile discs (“DVD”’) that are the subject of the infringement
claim in this case. Sorensen’s invention introduced to the field
of injection molding the new concept of using a substantially
enclosed mold that permits a finished plastic article to be
removed from the mold without fully opening the mold.

3

Sorensen accomplished this by providing an enclosed
passageway or “guide conduit” formed in the mold as the two
halves of the mold separate slightly. The finished CD or other
plastic article then exits the mold via the guide conduit. Without
use of the invention, manufacturers of CDs have to open molds
fully and use expensive and complicated robotic arms to reach
into the opened molds to extract the discs. Sorensen’s invention
makes such equipment unnecessary and permits much faster,
and thus more efficient and economical, production of molded
articles.

In May 2001, Sorensen’s exclusive licensee, Turn-Key, filed
three complaints in the Central District of California against
the respondent manufacturers of CDs and DVDs, accusing them
of infringing the patent. The fourth and fifth respondents, the
disc manufacturing equipment! suppliers for the three firms that
Turn-Key sued, brought an action for a declaratory judgment of
non-infringement and invalidity. All four cases were
consolidated.

The guide conduit of the claimed molding process is
claimed in paragraph (d) of claim 1:

(d) Separating the two mold parts . . . to create
a substantially enclosed guide conduit . . . ;

The removal of the plastic article via the guide conduit is
claimed in paragraphs (e) and (f) of claim 1:

(e) Ejecting the plastic product into said guide
conduit; and

1. The disc manufacturing equipment that the respondents
respectively sell or use include the CD-94 mold. The infringement issue
is whether the CD-94 mold, when used in its normal manner, carries out
the patented process. That in turn depends, in this case, on whether the
CD-94 mold uses a guide conduit as described in the patent.

4

(f) Guiding and transporting the ejected product
from between the mold parts through the guide
conduit.

In January 2002, after a “Markman hearing,” the district
court issued an order construing the claims. (App. 39a-7 1a).
Based entirely on the claim construction order’s interpretation
of the term “guide conduit” of paragraph (d), respondents moved
for summary judgment of noninfringement. They asserted that
the machines that they respectively sold or used did not contain
a “substantially enclosed guide conduit,” as that term was
construed by the District Court. In June 2002, the court granted
the motion and subsequently entered judgment holding that
respondents do not infringe the patent. (App. 11a-38a, 9a-10a).
The court made no findings regarding any aspect of the case or
the patent other than paragraph (d) of claim 1. Among
other things, the court did not address whether the molded
product was ejected into the guide conduit, as described in
paragraph (e) of the claim.’ (App. lla-38a).

Turn-Key timely appealed the judgment to the Federal
Circuit. In its briefs, Turn-Key argued that the judgment was
based on an erroneous interpretation of the term “guide conduit”
in paragraph (d) of claim 1. Turn-Key argued that under a proper
claim construction, the respondents’ process included the guide
conduit of the claimed invention and, thus, infringed the patent.

2. The name refers to this Court’s decision in Markman v. Westview
Instruments, Inc., 517 U.S. 370, 388-89 (1996) (holding that issues of
claim construction are matters more suitable for determination by judge
than by jury).

3. The only discussion of the ejection step below was in the
Markman phase of the District Court proceedings and concerned whether
ejection included pulling the article from the mold as contrasted with
forcefully pushing or discharging it out. (App. at 62a-64a, 63a n.8).

ere

5

Respondents in turn argued in their brief only that the district
court properly interpreted paragraph (d) and that, under that
claim construction, they did not infringe. None of the parties
briefed other issues, such as how ejection of the article is
accomplished under paragraph (e) and whether the respondents’
process ejects CDs and DVDs in that same way.

At the end of oral argument of the appeal, Turn-Key was
asked for the first time whether infringement would occur if a
new interpretation were given to the language of paragraph (e)
of the claim. The new interpretation, never asserted before the
District Court by any party, never addressed by the District Court,
and never before suggested by any party, became the basis of
the Federal Circuit’s opinion. (App. 5a).

On September 8, 2003, the Federal Circuit affirmed the
District Court’s decision of noninfringement in favor of
respondents. (App. 1a-8a). The Federal Circuit agreed with
Turn-Key that the District Court had misinterpreted the patent
by inserting into paragraph (d) an extraneous limitation about
the guide conduit. (App. 4a). But the Federal Circuit found the
error to be “harmless” because of the court’s new, sua sponte
interpretation of paragraph (e). (App. 5a, 8a). Paragraph (e)
requires that the molded articles be ejected into the guide
conduit. According to the Federal Circuit, that paragraph requires
the two mold halves to first finish separating before the molded
article can be ejected into the guide conduit. (App. 5a).
But without input or briefing from the parties, the Federal Circuit
misunderstood the patented method, which actually ejects the
article into the guide conduit before the two mold parts finish
separating. The respondents practice their molding method in
the same way, by ejecting CDs and DVDs before the mold parts
finish separating, but under the Federal Circuit’s sua sponte
construction such ejection was not covered by the patented
method.

6

Turn-Key petitioned for rehearing, pointing out that the
district court had never considered the new claim interpretation
and that Turn-Key had never had an opportunity to brief the
new issue. Turn-Key also pointed out that the court’s novel,
sua sponte claim construction excluded from the scope of the
claim the very process described in the patent specification,
contrary to established canons of patent claim construction.‘
The Federal Circuit denied rehearing on October 6, 2003.
(App. 72a-73a).

REASONS FOR GRANTING THE PETITION

I. THE FEDERAL CIRCUIT’S PRACTICE OF
ISSUING SUA SPONTE CONSTRUCTIONS
OF PATENTS WITHOUT GIVING AFFECTED
PARTIES NOTICE AND AN OPPORTUNITY TO
BE HEARD IS INCONSISTENT WITH THIS
COURT’S DECISIONS AND THOSE OF OTHER
COURTS AS TO WHEN SUA SPONTE RULINGS .
MAY PROPERLY BE ISSUED

The Federal Circuit held that Turn-Key’s patent had not
been-infringed based upon a sua sponte claim construction ruling

4. See, e.g., Modine Mfg. Co. v. U.S. Int’l Trade Comm’n, 75 ¥.3d
1545, 1550 (Fed. Cir. 1996) (“a claim interpretation that would exclude
the inventor’s device is rarely the correct interpretation; such an
interpretation requires highly persuasive evidentiary support”), abrogated )
on other grounds, Festo Corp v. Shoketsu Kinzoku Kogyo Kabushiki i
Co., 234 F.3d 558 (Fed. Cir. 2000); Canaan Prods., Inc. v. Edward Don i
& Co., 388 F.2d 540, 544 (7th Cir. 1968) (“The terms [patentee] uses
should be interpreted to read upon the structure he describes in the
patent.”); see also Hoechst Celanese Corp. v. BP Chems. Ltd., 78 F.3d
1575, 1581 (Fed. Cir. 1996) (““We share the district court’s view that it
is unlikely that an inventor would define the invention in a way that
excluded the preferred embodiment, or that persons of skill in this field
would read the specification in such a way.”).

7

regarding claim terms not disputed by the parties on appeal.
The court failed to afford Turn-Key adequate notice of the newly
identified claim construction issue and a meaningful opportunity
to be heard on that issue. That ruling is thus fundamentally
flawed and must be vacated. The decision below is merely the
latest in a long series of decisions in which the Federal Circuit
has arrogated to itself the authority to decide how to construe a
patent, without regard to what the Patent Office originally
concluded in patenting the invention or what the parties
themselves might argue in support of or opposition to a claim
of infringement. Because patents represent valuable property
interests recognized explicitly in the Constitution, and because
the Federal Circuit’s practice of deciding patent cases with
sua sponte rulings impinges on a patent holder’s substantial
rights, the petition should be granted and the decision below
vacated. The issue presented in this case goes to the heart of the
patent dispute resolution process designed by Congress.

A. The Federal Circuit Has Developed A Well-
Entrenched Practice Of Deciding Patent Claim
Construction Cases On A Sua Sponte Basis

The decision below represents simply the latest in a line of
cases in which the Federal Circuit has reached out to determine
issues of claim construction not raised or briefed by any of the
parties on appeal. Although the prevalence of that approach is
difficult to quantify, a number of published decisions in recent
years reveals a substantial gap between a clear majority of the
judges on the court and a vocal, if unheeded, minority. On a
recurring basis, the Federal Circuit routinely feels itself
unconstrained by any authority from engaging in sua sponte
claim construction without permitting input from the parties or
consideration in the first instance by the district court charged
with developing a factual record to inform the construction of
the patent. A distinct minority of judges on the Federal Circuit

8

has complained in published dissenting or concurting opinions
about that practice, but has been unable to garner enough votes
to force an en banc reassessment of the court’s rule and thus
has been functionally muzzled by a clear majority that sees no
difficulty in deciding fundamental issues of patent claim
construction without briefing or argument from the parties. In
adopting its practice, however, a majority on the Federal Circuit
has never articulated a justification for it or a source of judicial
authority for deciding such important property interests without
giving the affected parties an opportunity to be heard on the
precise point of law or fact at issue.

In Exxon Chem. Patents, Inc. y; Lubrizol Corp., 64 F.3d
1553, 1557-61 (Fed. Cir. 1 995), for example, the Federal Circuit
adopted a claim construction that was advanced by neither party
on appeal. See 64 F.3d at 1569 (Nies, J -, dissenting). As Judge
Nies observed in dissent in that case, “[b]y advocating a different
interpretation of the claim sua sponte, the majority required
Exxon to litigate during trial not only its opponent’s position
but also the unknowable position of the [Federal Circuit].” Jd.
But the Federal Circuit has demonstrated that it does expect
litigants to anticipate such unknowable positions. A few years
later, the court showed that its sua sponte approach to claim
construction in the Exxon case was not an isolated instance.
In Rodime PLC v. Seagate Tech., Inc., 174 F.3d 1294 (Fed. Cir.
1999), the Federal Circuit took precisely the same approach.
The court there reversed the district court on an issue of claim
construction that neither party had raised or briefed on appeal.
See id. at 1302.

The Federal Circuit’s sua sponte claim construction practice
is not limited to appeals from district courts in patent
infringement cases. It extends as well to the court’s appellate
review of Patent Office refusals to issue patents to applicants.
In a setting comparable to that of this case, the Federal Circuit

9

reversed the agency’s rejection of aclaim to a method to “restore
hair growth” on the basis of a sua sponte claim construction.
In re Cortright, 165 F.3d 1353, 1359 (Fed. Cir. 1999).
The agency rejected the claim based on its interpretation of
“restore hair growth” as a total, rather than partial, cure of
baldness as understood by a person of ordinary skill in the art.
The Federal Circuit conducted its own prior art search and found
a number of patents, not considered by the Office or the applicant
~ in the proceedings below, which supported the court’s conclusion
that a person of ordinary skill would interpret the phrase to mean
a partial cure of baldness. Jd. at 1356-59; see William C.
Rooklidge & Mathew F. Weil, Judicial Hyperactivity:
The Federal Circuits Discomfort with Its Appellate Role,
15 Berkeley Tech. L.J. 725, 730-31 (2000) (“Judicial
Hyperactivity”). The court therefore reversed the agency
determination of unpatentability. The Office sought rehearing,
on the ground that proper appellate review of agency action
must be on the basis of the record before the agency,
cf. Dickinson v. Zurko, 527 U.S. 150 (1999) (requiring APA-
based appellate review of Patent Office determinations), but
the Federal Circuit denied rehearing. Judicial Hyperactivity,
supra at 731-34.

The discomfort with the Federal Circuit’s prevailing practice
among a distinct minority of the judges came into full view in
Seal-Flex, Inc. v. Athletic Track & Court Constr., 172 F.3d 836
(Fed. Cir. 1999) (per curiam), which addressed a sua sponte
construction of a patent offered by Judge Rader. The Federal
Circuit had decided the case in a per curiam decision, noting
that “where, as here, the parties agree to a particular construction
of the claims which is adopted by the district court, and neither
party disputes that construction on appeal, this court declines
to raise an issue sua sponte which the parties have not presented
on appeal.” Jd. at 842. In a separate opinion, however, Judge

10

Rader concurred in the result based upon his sua sponte claim
construction analysis. /d. at 847-51. Ina separate concurrence,
Judges Bryson and Newman strenuously disagreed with Judge
Rader’s approach and stressed their Joint opinion that the Federal
Circuit should not engage in sua sponte claim construction
(id. at 851-52):

The requirement that appellate courts normally limit
themselves to issues that the parties have preserved
below and raised on appeal serves important interests
of both trial and appellate processes. The trial process
benefits from a preservation-of-error requirement
because it frees trial courts to focus on the factual
and legal issues the parties identify as being in
dispute, without having to worry that a misstep on
an issue not disputed or objected to by the parties
will result in a reversal. The requirement benefits
the appellate process by letting appellate courts focus
on issues that the trial courts have expressly ruled
on and that the parties have briefed on appeal, rather
than having to venture opinions regarding issues that
have never been briefed, argued, or even adverted
to in the course of the proceedings.

Thus, on those occasions when the Federal Circuit panel is
composed of judges from the minority on that court which
disapproves of the practice of sua sponte appellate claim
construction, the litigants may be protected from the unfairness
that the practice creates. On most other occasions, however,
as in the present case, litigants are vulnerable to being deprived
of notice and an opportunity to be heard on claim construction.
A party’s property rights to have a patent adjudicated in
accordance with due process standards should not rest on the
fortuity of drawing a panel that consists of at least two members
of the minority of Federal Circuit judges who believe that

1]

sua sponte rulings of patent claim construction issues are
improper.

The Federal Circuit’s internal debate and split over
sua sponte claim constructions has not gone unnoticed by
commentators. They have sharply criticized the Federal Circuit’s
predominant view that such sua sponte rulings are a proper
exercise of judicial power. As one commentator observes,
“Now the bar is left to wonder why and when the court will
consider arguments raised for the first time on appeal and
arguments not made by either party but concocted by the court
itself.” Judicial Hyperactivity, supra at 736-39, 745-47. Another
commentator criticizes the Federal Circuit’s sua sponte ruling
practice because it alters fundamentally the role of judge and
jury in patent infringement cases. “[I]f the Federal Circuit
persists in applying its own interpretation of the claims to the
facts without a new trial, there truly is no remaining purpose
for a jury in this process.” Gregory D. Leibold, /n Juries We Do
Not Trust: Appellate Review of Patent Infringement Litigation,
67 U. Colo. L. Rev. 623, 670 (1996).

B. The Federal Circuit’s Practice As Applied In This
Case Deprives Petitioners Of Substantial Rights In
Conflict With This Court’s Decisions

1. In this case, the Federal Circuit applied its sua sponte
claim construction practice by devising a wholly new
construction of the patent and deciding based on that
construction that the patent had not been infringed.
That conclusion occurred after the Federal Circuit was persuaded
by Turn-Key that the District Court had erroneously rejected
Turn-Key’s infringement claim based on paragraph (d) of claim
1. Thus, Turn-Key’s substantial property rights in its claim of
infringement against respondents were adversely affected by
the Federal Circuit’s sua sponte ruling concerning the claim

12

~

construction of the “ejection” step of paragraph (e) of claim |
of the patent. Turn-Key was denied both reasonable notice and
any meaningful opportunity to respond to the Federal Circuit’s
newly raised issue of claim construction, one that was not raised
or briefed by the parties on appeal, nor ever argued to or
addressed by the District Court. Turn-Key had appealed the
District Court’s summary judgment ruling based on the District
Court’s erroneous construction of the term “guide conduit” in
paragraph (d) of claim 1 of Turn-Key’s patent. The parties’
briefing addressed only that specific claim element and the
propriety of the District Court’s interpretation of that claim
element. The Federal Circuit agreed with Turn-Key that the
District Court erred in construing the term “guide conduit” by
importing an extraneous limitation. But then the Federal Circuit
also determined that a different claim element, “ejection”
(and its timing in relation to mold opening), which was not in
dispute on appeal and which was not raised or briefed by the
parties, was determinative of the case.

The Federal Circuit did not provide any indication to
Turn-Key prior to oral argument that this new issue was under
judicial consideration. The Federal Circuit did not request
supplemental briefing about the claim element that it, and not
the parties, felt was dispositive of the matter. The Federal
Circuit’s only indication that it was considering an entirely
different claim construction issue from the one raised by the
parties occurred in the final two minutes of rebuttal in the oral
argument. Not realizing that the court’s decision would turn on
an undisputed issue on appeal, Turn-Key spent the entirety of
its written submissions and Opening argument, and the majority
of its rebuttal argument, addressing issues relating to the
interpretation of the term “guide conduit” of paragraph (d) of
claim 1, upon which the underlying summary judgment motion
and the resulting District Court decision was based.

ok WW wena 4A

13

The mere asking of three questions at the end of oral
argument did not provide Turn-Key with reasonable notice that
paragraph (e) of claim 1 would be subjected to interpretation
by the Federal Circuit on this appeal and furthermore would
provide the basis for the court’s affirmance of the
noninfringement judgment. Those questions amounted to
nothing more than a glimpse into the panel’s thinking and
certainly did not afford Turn-Key a proper and fair opportunity
to respond to or put forth its best evidence regarding the newly
raised issues of claim construction and infringement.’

In that respect, the Federal Circuit’s error was closely
analogous to the one corrected by this Court in Nelson v. Adams
USA, Inc., 529 U.S. 460 (2000). There, this Court reversed a
Federal Circuit judgment that an officer was immediately liable,
upon the filing of an amended pleading, for an attorney fee award
against the officer’s company in a patent infringement case.
As this Court made clear, “due process does not countenance
such swift passage from pleading to judgment in the pleader’s
favor.” Id. at 465. Because the officer there “was never afforded
a proper opportunity to respond to the claim against him,” this
Court held that “due process affords him” the “right to contest
on the merits” the substance of his argument. Jd. at 468, 472.

2. The Federal Circuit’s decision to rule sua sponte on the
patent construction and infringement claims was inconsistent

5. Asa general rule, federal appellate courts do not consider points
raised for the first time at oral argument, in order to avoid the injustice
and surprise that such a situation presents. See, e.g., Thomas R.W. v.
Massachusetts Dep't of Educ., 130 F.3d 477, 480 (1st Cir. 1997);
Principal Mutual Life Ins. Co. v. Charter Barclay Hosp., Inc., 81 F.3d
$3, 56 (7th Cir. 1996); Stewart Title Guar. Co. v. Cadle Co., 74 F.3d
835, 836-38 (7th Cir. 1996); see also Lufkins v. Leapley, 965 F.2d 1477,
1485 (8th Cir. 1992) (Heaney, J., dissenting); Williams v. Chrans, 894
F.2d 928, 932 n.1 (7th Cir. 1990). The same reasoning applies here.

14

with this Court’s decisions in analogous areas of law. As a matter
of elemental due process, this Court has long held that the
Constitution, at a minimum, requires prior notice and an
opportunity to be heard. Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950); Boddie v. Connecticut,
401 U.S. 371, 377 (1971); United States v. James Daniel Good
Real Property, 510 US. 43, 53 (1993). These procedural due
process safeguards are deeply rooted in our judicial system.
Rochin v. California, 342 U.S. 165, 170-171 (1952). The Federal
Circuit denied Turn-Key those procedural safeguards when it
affirmed the finding of non-infringement based entirely upon
its sua sponte claim construction without input from the parties.
See Nelson, 529 U.S. at 468 (party must be “afforded a proper
opportunity to respond to a claim” before it is adjudicated against
that party); Mullane, 339 U.S. at 314 (“{t]he notice must be of
such nature as reasonably to convey the required information”);
Boddie, 401 U.S. at 377 (“persons forced to settle their claims
of right and duty through the judicial process must be given a
meaningful opportunity to be heard.”).°

6. Turn-Key’s opportunity under appellate rules of procedure to
request a rehearing (which it, in fact, did) cannot substitute for the type
of process necessary to present its arguments on the issue of claim
construction to counter the sua sponte decision of the court. As is the
case with the vast majority of all such petitions, the rehearing petition
here was summarily denied. (App. 72a-73a). Because there is such a
heavy presumption against the likelihood that a rehearing petition will
have merit, arguments that might have carried more substantial weight,
if not carried the day, simply are not given the same credence as if they
had been presented when the case was still being briefed, argued, and
considered for decision by the panel. As the federal courts of appeals
have recognized, a summary denial of a rehearing petition does not
constitute a decision on the merits of the arguments raised in the petition.
Exxon Chem. Patents, Inc. v. Lubrizol Corp., 137 F.3d 1475, 1479-80
(Fed. Cir. 1998) (collecting cases). Thus, a summary denial of a rehearing
petition does not provide the opportunity to be heard required by the
Fifth Amendment.

15

To safeguard inadvertent intrusions by courts on litigants’
substantial rights, this Court has been careful to employ and
sanction sua sponte rulings only in situations where due process
rights were not implicated — indeed, only where the very power
of the court is at issue. See, e.g., Liberty Mut. Ins. Co. v. Wetzel,
424 U.S. 737, 740 (1976) (determination that court lacks
jurisdiction over case); Juidice v. Vail, 430 U.S. 327, 331 (1977)
(issue of party’s standing to litigate also an appropriate subject
for sua sponte rulings because it goes to constitutional power
of court to exercise judicial power). That limitation is
appropriate, for where the court itself lacks power to determine
the rights of parties, the court must acknowledge that fact even
on its own motion. See Steel Co. v. Citizens for a Better Envt,
523 U.S. 83, 94 (1998) (“Without jurisdiction the court cannot
proceed at all in any cause. Jurisdiction is power to declare the
law, and when it ceases to exist, the only function remaining to
the court is that of announcing the fact and dismissing the
cause.”’).

The second area in which this Court has upheld the practice
of issuing sua sponte rulings is when a court considers purely
legal issues underlying or governing the dispute that the parties
have brought directly to that court. As this Court explained in
Kamen v. Kemper Financial Servs., Inc., “[w]hen an issue or
claim is properly before the court, the court is not limited to the
particular legal theories advanced by the parties, but rather
retains the independent power to identify and apply the proper
construction of governing law.” 500 U.S. 90, 99 (1991).
Thus, issues about the validity or even applicability of the law
that has been assumed by the parties to apply to the issue at
hand can properly be ruled on by a court sua sponte. Arcadia,
Qhio v. Ohio Power Co., 498 U.S. 73, 77 (1990) (Court
sua sponte found statute not applicable to dispute where parties
did not question applicability of statute); United States v. Burke,

16

504 U.S. 229, 246 (1992) (Scalia, J., concurring) (arguing for
sua sponte consideration of validity of statute allegedly
governing dispute); see also Kolstad v. American Dental Ass n,
527 U.S. 526, 540 (1999) (issue of proper legal standards for
imputing liability to employer in punitive damages context was
“so integral to decision of the case that they could be considered
‘fairly subsumed’ by the actual questions presented” and thus
appropriate for sua sponte consideration). But that does not mean
that a court is free, as the Federal Circuit erroneously thought
here, to issue a ruling on a wholly different claim term from
that which the parties appealed to the court.

3. The Federal Circuit’s error is particularly plain in view
of this Court’s recognition that an issue of patent claim
construction is a mixed question of fact and law. Moreover, an
issue of claim construction does not go to the court’s power to
hear the case. Accordingly, claim construction falls into neither
of the two categories judicially recognized as appropriate for
sua sponte consideration.

That claim construction is a mixed fact/law issue was made
clear in this Court’s decision in Markman vy. Westview
Instruments, Inc., 517 U.S. 370 (1996). Even as the Court was
holding that patent claims should be decided by judges, not
juries, it explained that claim construction is ceded to a judge
“notwithstanding its evidentiary underpinnings,” id. at 390, only
because judges are more suited than juries to interpret complex
legal instruments (id. at 388):

We said in Miller v. Fenton, 474 US. 104, 114
(1985), that when an issue “falls somewhere between
a pristine legal standard and a simple historical fact,
the fact/law distinction at times has turned on a
determination that, as a matter of the sound
administration of justice, one judicial actor is better

on

17

positioned than another to decide the issue in
question.” So it turns out here, for judges, not juries,
are the better suited to find the acquired meaning of —
patent terms.

Id. at 388 (citation omitted).

Before so concluding, the Court repeatedly referred to the
evidentiary proof and expert testimony often needed to aid claim
construction. E.g., id. at 378 (“receipt of evidence”),
385 (“evidentiary proof’), 387 (“aided by expert testimony”);
see also id. at 386 (“ultimate issue of mixed fact and law’’).
In recognizing that claim construction involves determination
of a mixed fact/law question having factual and evidentiary
underpinnings, the Court adopted a similar standard to the one
set out for “obviousness” in Graham y. John Deere Co.,
383 U.S. 1, 17 (1966) (holding obviousness an issue of law
subject to factual inquiries into scope and content of prior art,
differences between prior art and claims at issue, and level of
ordinary skill in pertinent art). See also U.S. Indus. Chems.,
Inc. v. Carbide & Carbon Chems. Corp., 315 U.S. 668, 678
(1942) (court often must receive expert testimony to ascertain
meaning of technical or scientific terminology so that court is
aided in its understanding of patent).

4. Notwithstanding this Court’s clear statements in its
Markman opinion that a patent claim presents a mixed question
of fact and law, the Federal Circuit has construed Markman to
mean that judges may decide a patent claim as an issue of pure
law — and that misreading has become accepted dogma for the
Federal Circuit. Thus, in Cybor Corp. v. FAS Technologies, Inc.,
138 F.3d 1448 (Fed. Cir. 1998) (en banc), the court chose to
read the foregoing passage from this Court’s Markman decision
as “addressing under which category, fact or law, claim
construction should fall and not whether it should be classified

Nt

18

as having two components, fact and law.” /d. at 1455.’
Based on that misreading of Markman, the Federal Circuit
erroneously perceived this Court ‘as reaffirm[ing] that, as a
purely legal question, we review claim construction de novo on
appeal including any allegedly fact-based questions relating to
claim construction.” /d. at 1456.8 The Federal Circuit’s
misunderstanding of Markman has thus led it to the erroneous
view that it has the authority to make sua sponte claim
construction determinations — as though the words of a patent
claim exist in a vacuum untethered to the practical context of
the device being described and the art surrounding the invention.
See Glaxo Group Ltd. v. TorPharm, Inc., 153 F.3d 1366, 1373-
74 (Fed. Cir. 1998) (reaffirming Federal Circuit’s reading of
Markman to hold that court can consider alternate grounds for
summary judgment because claim construction raises “question
of law’”’).

7. Compare Markman, 517 U.S. at 384 n.10 (stating that Court is
not deciding case on basis of “law/fact distinction” because it has “more
specific reason for decision” — which is that judges are better suited
than juries to interpret complex legal instruments).

8. That reading of this Court’s decision in Markman sparked
disagreement among some of the Federal Circuit judges. Judge Bryson,
for example, perceived that this Court left room for the Federal Circuit
to take into account a district court’s “superior access to one of the
pertinent tools of construction,” facts that might be developed to show
the meaning of the patent language. Cybor Corp., 138 F.3d at 1463
(Bryson, J., concurring). Chief Judge Mayer (joined by Judge Newman)
read Markman as “stopp[ing] short of authorizing us to find facts de
novo when evidentiary ¢@isputes exist as part of the construction of a
patent claim and the district court has made these findings without
committing clear error.” /d. at 1464 (Mayer, C.J., concurring); see also
id. at 1473-78 (Rader, J., concurring in part and dissenting in part).

19

C. The Federal Circuit’s Judgment Conflicts With
Numerous Court Decisions Holding That Mixed
Questions Of Fact And Law Such As Patent Claim
Construction May Not Be Decided By Courts
Through Sua Sponte Rulings

1. Numerous Supreme Court Justices — including Justices
Stevens, O’Connor, Scalia, and Ginsburg — have deplored the
type of practice applied by the Federal Circuit in this case.
They have stressed that sua sponte rulings, when made without
the necessary procedural safeguards, are contrary to the
adversarial nature of our judicial system. For example, Justice
Stevens has noted that sua sponte rulings issued without notice
and a hearing deprive a court of the benefits of the adversary
process, which plays a critical role in our system of justice.
Lankford v. Idaho, 500 U.S. 110, 127 (1991). Justice Scalia has
stated that “[t]he rule that points not argued will not be
considered is more than just a prudential rule of convenience;
its observance, at least in the vast majority of cases, distinguishes
our adversary system of justice from the inquisitorial one.”
Burke, 504 U.S. at 246 (Scalia, J., concurring). Those views are
in accord with the position taken by Justice Stewart, who
described the refusal to consider issues neither briefed nor argued
by counsel as “the most basic principle of our adversary system
of justice.” United States v. Feola, 420 U.S. 671, 697 (1975)
(Stewart, J., dissenting). The importance of giving counsel a
reasonable opportunity to comment on an issue that has been
raised sua sponte by the court stems from “[o]Jur belief that
debate between adversaries is often essential to the truth-seeking
function of trials.” Lankford, 500 U.S. at 127; see also Landon
v. Plasencia, 459 U.S. 21, 36-37 & n.9 (1982) (O’Connor, J.)
(opinion for the Court noting that if “hearing is to ensure fairness,
it must provide [affected party] an opportunity to present her
case effectively” before issues are resolved without proper

20

briefing and argument). And Justice Ginsburg’s opinion for the
Court in Ne/son stressed the due process error of “adding ...a
party and simultaneously amending the judgment to obiigate
him individually” without affording him an opportunity to be
heard. 529 U.S. at 465.

2. The Federal Circuit’s decision also conflicts with the
consistently applied procedural rule that a party’s claim — here,
Turn-Key’s infringement claim — shall not be dismissed on the
merits sua sponte “without at least giving plaintiffs notice of
the proposed action and affording them an Opportunity to address
the issue.” Clorox Co. Puerto Rico v. Proctor & Gamble
Commercial Co., 228 F.3d 24, 30 (1st Cir. 2000). Yet that is
exactly what the Federal Circuit did. The court affirmed a ruling
of summary judgment against Turn-Key on an alternative round
created sua sponte by the appeals court without affording
Turn-Key notice and “an opportunity to address the issue.” Jd.
When considering the type of mixed questions of law and fact
that arise in summary judgment motions, numerous federal
circuits have rejected that type of approach as violating a basic
right of due process reflected in the Federal Rules of Civil
Procedure. See, e.g., id. at 30; Bendet v. Sandoz Pharm. Corp.,
308 F.3d 907, 912 (8th Cir. 2002) (“A district court may grant
summary judgment sua sponte only if the ‘party against whom
judgment will be entered was given sufficient advance notice
and an adequate opportunity to demonstrate why summary
judgment should not be granted.’”) (citation omitted);
Mannesman Demag Corp. v. M/V Concert Express, 225 F.3d
587, 595 (Sth Cir. 2000) (“A court may grant summary judgment
sua sponte but must provide adequate notice and an opportunity
to respond akin to that required by Fed. R. Civ. P. 56(c).”);
Snider v. Melindez, 199 F.3d 108, 114-15 (2d Cir. 1999)
(reversing sua sponte direction of entry of a “strike” in judgment
dismissing prisoner’s complaint); Otis Elevator Co. v. George

21
Washington Hotel Corp., 27 F.3d 903, 910 (3d Cir. 1994)
(holding that court “may not grant summary judgment sua sponte
unless the court gives notice and an opportunity to oppose
summary judgment”).

The Federal Circuit’s sua sponte judgment directing entry
of summary judgment against Turn-Key without affording Turn-
Key notice and an opportunity to oppose such a ruling on the
wholly new ground concocted by the court unquestionably runs
afoul of a rule followed in at least seven other circuits. As the
Ninth Circuit has explained, a court “may dismiss an action on
its own motion for failure to state a claim, but only after the
court takes the proper procedural steps.” Franklin v. Oregon
State Welfare Div., 662 F.2d 1337, 1340-41 (9th Cir. 1981)
(explaining that process includes “notify[ing] the plaintiff of
the proposed action and afford[ing] him an opportunity to submit
written argument in opposition”); see also Massey v. Congress
Life Ins. Co., 116 F.3d 1414, 1417 (11th Cir. 1997) (“courts
have strictly enforced the requirement that a party threatened
by summary judgment must receive notice and an opportunity
to respond”) (collecting cases).

—

3. The Federal Circuit’s judgment conflicts more generally
with numerous lower courts at both the federal and state levels
that have addressed the proper scope of sua sponte rulings in a
variety of substantive contexts. Where a sua sponte ruling affects
substantial property interests without affording the affected party
both reasonable notice and an opportunity to be heard, courts
have held that such rulings violate a litigant’s due process rights.
See, e.g., Brown v. Triple “‘D” Drilling Co., 585 P.2d 987, 990
(Kan. 1978) (finding that a sua sponte trial court order reinstating
an action on a promissory note against one of the defendants
did not afford the defendant due process of law); Kerrigan,
Estess, Rankin & McLeod vy. State, 711 So.2d 1246, 1248-49
(Fla. Dist. Ct. App. 1998) (per curiam) (holding that trial court

i iis

fe

sua sponte ruling that law firm’s contingency fee contract was
unenforceable violated firm’s rights to adequate notice and an
opportunity to be heard); Grissom v. Grissom, 886 S.W.2d 47,
57-58 (Mo. Ct. App. 1994) (reversing trial court sanctions
imposed sua sponte on two attorneys for failing to meet certain
pleading requirements on the ground that sua sponte sanctions
order in this context failed to afford the attorneys due process
rights of notice and a hearing). In Grissom, one of the attorneys
was not present and therefore had no notice of a possibility of
sanctions; the other attorney was present at the hearing, but only
became aware of the proposed sanctions minutes before the
hearing and had only fifteen minutes to prepare his arguments.
The Missouri Court of Appeals held that such notice was
inadequate and, further, that any argument that occurred at the
hearing on the issue of sanctions was not meaningful given the
short notice afforded counsel. Grissom, 886 S.W.2d at 57-58.

The positions of those state courts — that a litigant’s
substantial rights on mixed questions of fact and law may not
be adjudicated through sua sponte rulings — mirrors the position
taken by federal courts of appeals that have addressed analogous
claims in a variety of circumstances. The D.C. Circuit, for
example, has declined to address sua sponte a putative
constitutional violation of an employee’s complaint about a
reassignment. As then-Judge Scalia wrote for the court,
“[t]he premise of our adversarial system is that appellate courts
do not sit as self-directed boards of legal inquiry and research,
but essentially as arbiters of legal questions presented and argued
by the parties before them.” Carducci v. Regan, 714 F.2d 171,
177 (D.C. Cir. 1983). In similar fashion, the Ninth Circuit has
held that the Board of Immigration Appeals (“BIA”) overstepped
constitutional boundaries when it raised and decided sua sponte
the issue of an asylum seeker’s credibility. Stoyanov v.
Immigration & Naturalization Serv., 172 F.3d 731, 734-35

2

wy)

(9th Cir. 1999). The court found that the BIA’s sua sponte
credibility ruling violated Stoyanov’s right to due process. /d.

Even the Federal Circuit itself has reprimanded a lower
court for exceeding constitutional limitations with a sua sponte
ruling. In Nolen v. Gober, the Court of Appeals for Veteran
Claims sua sponte had reconsidered the issue of whether the
veteran’s claim was well grounded, rather than directly
addressing the veteran’s contentions regarding the merits of his
disability claim. 222 F.3d 1356, 1360 (Fed. Cir. 2000).
The Federal Circuit noted that the decision of the Court of
Appeals for Veteran Claims that the claim was not well grounded
— an issue which neither party raised nor briefed — implicated
‘fundamental principles of fairness.” Jd. at 1360-61.°

As Judge Posner has observed for the Seventh Circuit,
“[o]ur system unlike that of the Continent is not geared to having
judges take over the function of lawyers.” Hartmann y.
Prudential Ins. Co. of America, 9 F.3d 1207, 1214 (7th Cir.

9. Numerous other state courts, both of last resort and appellate,
as well as federal appellate courts, have ruled that sua sponte orders
violate due process. See, e.g., Stewart Title, 74 F.3d at 836-37; Holzer v.
Jochim, 557 N.W.2d 57, 58-59 (N.D. 1996); Storer Communications of
Jefferson County, Inc. v. Oldham County Bd. of Educ., 850 S.W.2d 340,
341-42 (Ky. Ct. App. 1993); Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky.
Ct. App. 1987); see also In re Arthur Treacher s Franchisee Litigation,
689 F.2d 1137, 1148-49 (3rd Cir. 1982) (Third Circuit found that district
court did not properly exercise its discretion when it sua sponte without
notice ordered different relief which franchisor had not requested and
to which franchisee had no opportunity to defend, argue, or present
evidence); Shockley v. Jones, 823 F.2d 1068, 1072-73 (7th Cir. 1987)
(dismissal under Rule 12(b)(6) without notice or hearing is improper
because it is a decision on the merits with full res judicata effect); Cortina
v. Cortina, 98 So.2d 334, 336-37 (Fla. 1957) (Chancellor’s sua sponte
modification of child support decree without notice and hearing was
voidable on appeal).

24

1993). In his view, permitting appellate courts to decide cases
on issues not raised or briefed by the parties would effectively
eliminate the adversary system of justice in the federal courts.
Id. at 1215.

D. This Case Is An Ideal And Important Vehicle For
Deciding Whether The Federal Circuit’s Practice
Is Permissible In Patent Cases

The court below issued an unpublished, memorandum
decision definitively acknowledging that the district court had
erred in rejecting petitioner’s claims on the one issue presented
by the parties for review to the Federal Circuit. On its own,
without notice to the parties, the court reached out to affirm the
District Court’s judgment of noninfringement based on its
sua sponte consideration of a different element of the patent
claim. As a legal issue, therefore, the case presents the question
of the propriety of sua sponte rulings in a neat, clean vehicle
uncluttered by other collateral issues. This Court can decide
whether the Federal Circuit appropriately exercised its authority
and then vacate and remand the case for a proper consideration
of petitioner’s case (including briefing and argument).
In reaching a decision on the question presented, the Court need
not understand the science or engineering underlying the patent
itself but rather must determine simply whether claim
construction is suitable for a sua sponte ruling.

This case also presents an ideal vehicle because the issue is
one of claim construction, which this Court has stressed is a
mixed question of law and fact. To properly interpret claim
language, a court must have a full understanding of the technical
teaching of the patent. However, the Federal Circuit does not
and cannot be expected to have a working knowledge of every
possible field of invention. It is the role of the parties and their
witnesses to supply the court with the information necessary

Pe

for it to understand the invention and make an educated
interpretation of the patent claims. But the Federal Circuit should
not be empowered to disregard those critical advocacy functions
in determining the existence of a patent or an infringement of
it. Without a proper recognition that the parties’ advocacy efforts
illuminate the court’s decision-making, there is a substantial
risk (as exemplified in this case) that the court will not recognize
the true scope or meaning of the claim terms in light of the
written specifications viewed from the perspective of one of
ordinary skill in the art. See Markman v. Westview Instruments,
Inc., 52 F.3d 967, 979-80, 986 (Fed. Cir. 1995), aff'd, 517 U.S.
370 (1996). Thus, this case also presents this Court with an
opportunity to clarify that the Federal Circuit’s reading of
Markman is erroneous and the likely cause of its misapplication
of judicial authority to issue sua sponte rulings.

Whether the Court also chooses to issue any broader
pronouncement about the general propriety of a court’s issuing
sua sponte rulings is a question the Court need not confront at
the certiorari stage. What is evident from the reported cases and
commentaries is that the Federal Circuit’s practice of issuing
sua sponte claim construction rulings in patent cases appears to
be by far the most consistent and prevalent use of sua sponte
authority among all the courts in the Nation in an area of
litigation involving the substantial constitutional rights of a party.
Thus, it is especially appropriate for this Court to rein in the
Federal Circuit as an excessive abuser of judicial authority to
decide matters without further hearing or argument from the
parties.

For that reason as well, this case also raises important
questions about the administration of justice for the patent
system, devised to protect one of the most significant
constitutional rights enjoyed under the Constitution — the right
to protect the fruits of one’s creative genius with a patent.

26

But that right is substantially devalued when a patent holder
claiming infringement has no assurance of being able to present
arguments to the court of last resort in the vast bulk of all patent
cases because of the Federal Circuit’s assumption of authority
to issue sua sponte claim construction rulings. Given the Federal
Circuit’s exclusive jurisdiction over appeals in patent cases, this
Court should therefore grant review to correct the court of
appeals’ errant approach, which encroaches impermissibly on
the rights of litigants in patent cases.

CONCLUSION

The petition for a writ of certiorari should be granted.
In the alternative, the Court may wish to reverse summarily or
to grant, vacate, and remand with instructions to remand the
case for further proceedings in the District Court.

Respectfully submitted,

Of Counsel: Boris ZELKIND
Counsel of Record

Patricia A. SHACKELFORD
ZELKIND & SHACKELFORD LLP
Sorrento Towers North

5355 Mira Sorrento Place
Suite 290

San Diego, CA 92121

(858) 558-6745

Davip C. FREDERICK
RICHARD H. STERN
KELLOGG, HuBER, HANSEN,
Topp & Evans, P.L.L.C.
1615 M Street, N.W.
Suite 400
Washington, D.C. 20036
(202) 326-7900

Counsel for Petitioner

February 3, 2004

APPENDIX

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APPENDIX A — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE FEDERAL CIRCUIT
DATED SEPTEMBER 8, 2003

UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

02-1613, -1614, -1615, -1616
TURN-KEY-TECH, LLC,
Plaintiff-Appellant,
v.

NATIONAL FILM LABORATORY, INC.
(doing business as Crest National Optical Media),
MUSIC CITY OPTICAL MEDIA, INC.,
HOLLYWOOD RECORDS, INC., CONCORD DISC
MANUFACTURING CORP., KRAUSS MAFFEI
CORPORATION, and KRAUSS MAFFEI
KUNSTSTOFFTECHNIK GMBH,

Defendants-Appellees.
DECIDED: September 8, 2003

Before MAYER, Chief Judge, BRYSON, and LINN, Circuit
Judges.

LINN, Circuit Judge.

Turn-Key-Tech, LLC (“Turn-Key”) appeals from
decisions of the United States District Court for the Central

2a

Appendix A

District of California, which granted summary judgment in
favor of all named defendant manufacturers and sellers of
injection mold systems, holding that the accused systems do
not utilize the process claimed in U.S. Patent No. 4,422,998
(“the ‘998 patent”). We affirm.

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The °998 patent is directed to a controlled ejection
method for injection molding. Claims 1 and 2 provide:

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1. A method of cyclic injection molding of plastic
where the mold comprises two parts which are
separated by a parting surface and at least one
cavity situated internally to the boundaries of the
parting surface, and wherein each production cycle
comprises the steps of:

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(a) Combining the two mold parts by
moving, in a predetermined direction, the
mold parts in relation to each other:

(b) Injecting plastic in a fluid state into a
cavity situated within the parting surface:

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(c) Solidifying the injected plastic in the
cavity, thereby creating a plastic product;

(d) Separating the two mold parts by
moving, in a direction opposite to the
predetermined direction, said mold parts
in relation to each other to create a

Sitde R Le MASINI BAT on ON RK dake 200 alse

3a

Appendix A

substantially enclosed guide conduit having
contours defined by the regions of the parting
surface and the internally positional cavity/
ies that are exposed subsequent to separation
and leading in a direction substantially
perpendicular to said predetermined
direction;

(e) Ejecting the plastic product into said
guide conduit; and

(f) Guiding and transporting the ejected
product from between the mold parts through
the guide conduit.

2. A method according to claim 1, wherein step (f)
comprises the step of:

(g) Transporting the ejected product through
the guide conduit at an orientation directed
by the contours of the guide conduit.

°998 patent, col. 5, |. 27-col. 6, |. 21.

Defendant Kraus Maffei Corp. manufactures and sells an
injection molding machine with a mold set (“CD-94 mold’)
designed to manufacture an optical disc. The other defendants
use that machine to manufacture CDs and DVDs. The district
court described in its opinion the composition and operation of
the CD-94 mold, and none of the parties raises any disputed
issues of material fact regarding the district court’s description

of the device used to perform the accused process.

a ee

4a
Appendix A

The primary dispute in this case focuses on the construction
of the term “guide conduit” found in limitation (d) of claim 1,
in such cases, “[w]here the parties do not dispute any relevant
facts regarding the accused product ... but disagree over
possible claim interpretations, the question of literal
infringement collapses into claim construction and is amenable
to summary judgment.” General Mills, Inc. v. Hunt- Wesson, Inc.,
103 F.3d 978, 983 (Fed. Cir. 1997) (citing Athletic Alternatives,
Inc. v. Prince Mfg., Inc., 73 F.3d 1573, 1578 (Fed. Cir. 1996)).
In its claim construction ruling, the district held that the
“substantially enclosed guide conduit” is “a tube or channel
that is almost entirely closed in from the outside environment,
and that carries materials from one place to another and that
helps to direct the materials’ progressive motion.” The district
court later clarified its claim construction, holding that “the guide
conduit itself nevertheless must help to Carry and direct the
molded product’s progressive motion.” Based on that modified
construction, the district court granted defendants’ motions for
summary judgment of non-infringement, concluding that the
guide rails, kicker plate, and discharge chute of the CD-94 mold
do not comprise a guide conduit as construed by the court.

We hold that the district court erred in its interpretation of
guide conduit. A review of the claim language, written
description, and prosecution history show that a guide conduit
is simply a passageway through which a plastic product is
moved. The plain language of the claims describes the guide
conduit as an area within the mold. The district court’s definition
attributes a function to the guide conduit, namely that it direct
the material’s motion. That is an added limitation not found in
the claim language or properly imposed by the intrinsic record.

SR

Sa
Appendix A

Even though the district court unduly narrowed the guide
conduit limitation, summary judgment of non-infringement
is nonetheless appropriate in this case because under the
correct claim construction, the CD-94 mold still does not
have a guide conduit as defined by the claims. See Zelinski
v. Brunswick Corp., 185 F.3d 1311, 1316 (Fed. Cir. 1999)
(affirming grant of summary judgment of non-infringement
despite district court’s unduly narrow claim construction).
Because the CD-94 mold lacks a guide conduit, the defendant
manufacturers and users of the CD-94 mold do not practice
the claimed method of injection molding. To the extent that
there is a passageway through which a plastic product is
moved, that passageway is not formed by “[s]eparating the
two mold parts” as required by the claims. The cavity created
by the separation of the mold parts is not a guide conduit.
Part (e) of claim 1 requires that the plastic product be ejected
“into said guide conduit.” The plastic product is already in
the cavity upon separation. Moreover, the guide conduit must
“lead[ ] in a direction substantially perpendicular to said
predetermined direction.” The cavity created by separating
the two mold parts in the device used in the accused process
only leads in a direction parallel to the predetermined
direction. It is not until the product begins moving in a
perpendicular direction that it enters the guide conduit.
In the CD-94 mold, the plastic product moves perpendicularly
into a discharge chute with the assistance of the guide rails.
Neither the guide rails nor the discharge chute are created by
the separation of the mold parts. Thus, use of the CD-94
mold does not involve a guide conduit as described in the
method claim, and no reasonable juror could conclude
otherwise.

6a
Appendix A

With respect to infringement under the doctrine of
equivalents, the parties dispute whether the amendment to
claim 1 constituted a narrowing amendment and triggered
prosecution history estoppel. The original claims did not
require that the guide conduit be “substantially enclosed.”
Specifically, the relevant June 10, 1983 amendment to claim
1 provided:

(d) Separating the two mold parts by moving, in
a direction opposite to the predetermined
direction, said mold parts in relation to each other
to create a substantially enclosed guide conduit
having contours defined by the regions of the
parting surface and the internally positional
cavity/ies that are exposed subsequent to
separation and leading in a direction substantially
perpendicular to said predetermined direction;

(e) Ejecting the plastic product into [a] said guide
conduit [which leads in a direction substantially
perpendicular to said predetermined direction];
and

(f) Transporting the ejected product through the
guide conduit[, the contours of said conduit,
substantially being defined by regions of the
parting surface and the internally positioned
cavity/ies, which are exposed subsequent to
separation].

We agree with the district court that this is a narrowing
amendment. The original claim did not require that the guide

7a
Appendix A

conduit be substantially enclosed. Turn-Key admits that the
amendment narrowed the claim in that respect, but argues
that the claim was broadened because the amended claim
removed a limitation that substantially all of the contours of
the guide conduit be defined by regions of the parting and
cavity surfaces. We disagree. There is little meaningful
difference between the language “the contours of said guide
conduit substantially being defined by the regions of the
parting surface ...” and “a substantially enclosed guide
conduit having contours defined by the regions of the parting
surface. .. .”” Regardless whether the claim was broadened
in any way, the claim was narrowed with respect to the new
requirement that the guide conduit be substantially enclosed.
Prosecution history estoppel was triggered with respect to
that limitation. See generally Festo Corp. v. Shoketsu Kinzoku
Kogyo Kabushiki Co., 535 U.S. 722, 737-40 (2002) (noting
that narrowing amendments may give rise to a rebuttable
presumption of prosecution history estoppel) (citing Warner-
Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 33
(1997)). Other than arguing that the claim was not in fact
narrowed, Turn-Key did not present any argument to this
court that it overcame any presumption of surrender.

Even if Turn-Key could rebut any presumption of
surrender, no reasonable juror could conclude that the accused
CD-94 mold operates in the same way as the claimed
invention. The claims require that the mold parts separate to
create a substantially enclosed guide conduit. While the use
of guide rails and a discharge chute may perform the same
function and achieve the same result as the claimed process,
they do so in a different way. Because the way in which the
accused device operates is different from the method claimed,

8a

Appendix A

the differences are not insubstantial, the claims cannot be
infringed under the doctrine of equivalents, and no reasonable
juror could conclude otherwise.

II

The district court misconstrued the term “guide conduit.”
That error, however, was harmless because under the correct
claim construction, the CD-94 mold lacks a guide conduit.
Without a guide conduit, the defendant users and
manufacturers of the CD-94 mold do not practice the claimed
method. Therefore, summary judgment of non-infringement,
both literally and under the doctrine of equivalents was
appropriate.

9a

APPENDIX B— JUDGMENT OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF
CALIFORNIA FILED AUGUST 9, 2002

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CV 01-4158 LGB (MCx)
CV 01-4165 LGB (MCx)
CV 01-4536 LGB (MCx)
CV 01-5314 LGB (MCx)

IN RE: TURN-KEY-TECH MATTERS AND ALL
CONSOLIDATED ACTIONS

This Document Relates to: All Actions
JUDGMENT

Pursuant to this Court’s June 10, 2002 summary judgment
order regarding non-infringement of U.S. Patent 4,422,998 and
August 9, 2002 order granting Defendants Hollywood Records
and Krauss Maffei Kunststofftechnik’s motion for summary
judgment, Defendant National Film Laboratory Inc., dba Crest
National Optical Media’s motion to voluntarily dismiss its
remaining counterclaims without prejudice pursuant to Fed. R.
Civ. P. 41(a) (2), and Defendants Krauss-Maffei, Krauss Maffei
Kunststofftechnik, Concord Disc Manufacturing Corp., Music
City Optical Media, Inc., and Hollywood Records, Inc.’s motion
to dismiss all remaining counterclaims and claims without

10a

Appendix B

prejudice pursuant to Fed. R. Civ. P. 41(a) (2), ITIS HEREBY
ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:

1) Defendants have not infringed and do not infringe the
4,422,998 patent;

2) Plaintiff Turn-Key-Tech shall take nothing by its
complaint; and

3) This judgment hereby terminates Case Nos. CV 01-
4158, CV 01-4165, CV 01-4536, and CV 01-5314.

IT ISSO ORDERED.

Dated: August 9, 2002

s/ Lourdes G. Baird
LOURDES G BAIRD
United States District Judge

lla

APPENDIX C — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE CENTRAL DISTRICT
OF CALIFORNIA FILED JUNE 6, 2002 AND
ENTERED JUNE 10, 2002

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CV 01-4158 LGB (MCx)
CV 01-4165 LGB (MCx)
CV 01-4536 LGB (MCx)
CV 01-5314 LGB (MCx)

IN RE: TURN-KEY-TECH MATTERS AND ALL
CONSOLIDATED ACTIONS,

This Document Relates to: All Actions

ORDER GRANTING DEFENDANTS CREST, KM,
CONCORD, AND MC’S MOTIONS FOR
SUMMARY JUDGMENT

I. INTRODUCTION

In these consolidated cases, Turn-Key-Tech
(“Turn-Key’’) accuses National Film Laboratories, Inc. d.b.a.
Crest National Optical Media (“Crest”), Krauss-Maffei
Corporation (“KM”), Concord Disc Manufacturing
Corporation (“Concord”), Music City Optical Media Inc.,
(“MC”), and Hollywood Records of patent infringement.
Specifically, it alleges that these Defendants have been
practicing a process claimed in U.S. Patent 4,422,998 patent
(“the 998 patent”) which was issued to Jens Ole Sorensen
on December 27, 1983. Turn-Key brings the instant actions
as the exclusive licensee of the 998 patent which expired

12a
Appendix C

on April 22, 2002. The Court held a Markman hearing on
January 14, 2001 and issued its order (“Markman Order’)
construing the contested patent claims on January 18, 2001.
Defendants KM, Crest, Concord, and MC now bring two
motions for summary judgment regarding literal
non-infringement and non-infringement under the doctrine
of equivalents. Because both motions for summary judgment
make essentially similar arguments, the Court collectively
deals with them here.

For reasons set forth below, the Court GRANTS
Defendants’ motions for summary judgment.

Il. FACTUAL AND PROCEDURAL BACKGROUND

Turn-Key accuses Defendants of infringing the ’998
patent. Specifically, at issue in the ’998 patent are Claims 1,
2,5, and 16. The following facts are taken from the Markman
Order. Moreover, undisputed facts regarding Defendants’
allegedly infringing product, the CD-94 mold, are delineated
here as well.

A. Background on the Patent

The °998 patent entitled “Controlled Ejection Method
for Injection Molding” was issued to Sorensen on December
27, 1983 and relates to the field of injection molding plastics.
Injection molding is a manufacturing process used to make
plastic products by injecting fluid plastic into a mold cavity
and allowing the plastic to solidify into the general shape of
the mold cavity to produce the plastic part. Once the product
is removed from the mold, the process continuously repeats.

13

3a
Appendix C

Sorensen stated that the method protected by the ’998 patent
constituted an improvement from prior art in terms of the
orientation, speed of injection, and the sterility involved. ’998
patent at Col. 1. 11. 27-30. The method, moreover, could be
performed basically without the need of auxiliary moving
parts or vulnerable stationary elements such as pins and
blades. /d. at 11.

B. Claim 1 of the ’998 Patent

Though Claims 1, 2, 5, and 6 of the ’998 patent are
specificaly at issue in the present litigation, Claim 1 is the
only independent claim in the 998 patent. Moreover, because
the Court finds an analysis of Claim 1(d) to be dispositive
for purposes of the instant motions, only Claim 1 is directly
addressed here. Claim | reads:

[] a method of cyclic injection molding of plastic
where the mold comprises two parts which are
separated by a parting surface and at least one
cavity situated internally to the boundaries of the
parting surface, and wherein each production cycle
comprises the steps of:

(a) Combining the two mold parts by
moving, in a predetermined direction,
the mold parts in relation to each other;

(b) Injecting plastic in a fluid state into
a cavity situated within the parting
surface;

14a

Appendix C

(c) Solidifying the injected plastic in
the cavity, thereby creating a plastic
product;

(d) Separating the two mold parts by
moving, in a direction opposite to the
predetermined direction, said mold parts
in relation to each other to create a
substantially enclosed guide conduit
having contours defined by the regions
of the parting surface and the internally
position[ed] cavity/ies that are exposed
subsequent to separation and leading in
a direction substantially perpendicular
to said predetermined direction;

(e) Ejecting the plastic product into said
guide conduit; and

(f) Guiding and transporting the ejected
product from between the mold parts

through the guide conduit.

Exhibit 2 to Decl. of Robinson in Support of KM’s Motion,
998 patent at Col. 5 11. 27-38, Col. 6 11. 1-16.

C. Claim Interpretation Law

In Markman vy. Westview Instruments, Inc., 517 U.S. 370
(1996), the Supreme Court held that the interpretation of a
patent claim is a matter of law exclusively within the
scope of the court and is not a factual question for the jury.

lSa

Appendix C

Id. at 372. The Markman decision suggested that trial courts
could consider various types of evidence when interpreting
a patent, including expert testimony. See id. at 388-90. Shortly
after the Supreme Court handed down Markman, the Federal
Circuit expanded on the Court’s dicta concerning evidence
available to trial courts in interpreting patent claims.
See Vitrionics Corp. v. Conceptronic, Inc., 90 F.3d 1576,
1581-83 (Fed. Cir. 1996). The Federal Circuit held that if
intrinsic evidence can, by itself, resolve ambiguity in a patent
term, then a court may not rely on extrinsic evidence, such
as expert testimony, to construe the term. /d. at 1583. Trial
courts may use extrinsic evidence only when intrinsic
evidence fails to illuminate the meaning of the disputed claim.
Id. Moreover, extrinsic evidence cannot broaden the reach
of a claim or contradict explicit language. /d. Thus, courts
can only examine extrinsic evidence if the evidence does
not contradict the claim language, the specification, or the
prosecution history but instead supplements it. /d. at 1584-85.

The Federal Circuit detailed a hierarchy of specific types
of evidence that courts may consider. Thus, when interpreting
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0} yanbosqns posodra ase yey) s21/AjA8d pouontsod
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Peuyep sunojuod Surry ympuoo apm posojoua Ajjen
-“UBISQNS B 9JVIIO 0} JIIO YOR 0} UONEIas WI SIEd Pyou!
pies ‘uonsosIp pouruLayapesd 243 04 ay1s0ddo uonsazIp
8 uy ‘Buaow Aq syed pjow om aq) Bunesedag (p)
onpoid pepjow 8 Sunes25 Aqaey)
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‘soejins Zunsed ayy wiqiim poe
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J2q30 YB
0} uONnBpPI UI sured pjow sy ‘uON.eNp pounuIepeld
B ut ‘Zuraow Aq syed pjow omy ayy BunnquIoD (8)
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-edos ase qoiqm sured om) sosuduzoo pou aq) az2ym
onsed jo Supjour uoysefay ost yo poyyom vy

NOILNHANI AHL dO AUVWWAWNS

- ‘$8uimusp
pus suonducsap yuonbesqns 243 wos yuzedds 2101099q
TI GORUSAUT 3Yy} JO SodejUBAPS pus s}De/GQO syn
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NOLLNGANI AHL AO SLOafdoO

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peAojdus aaey spomew samO “AyIqes UONoOnposd
SONpss pus UMOP IeIM YoY ‘suid apind Jo spies apind
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Luv aomd AO NOISSNDsIG

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NOLLNAANI JHL 4O ATs

INIGIOW NOILIAENI
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Appendix F

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Ul SOMIABS JO JUNOUTE AUB YIM SMOI [BONTIA JO JUNOUTS
Aue 208jd 03 2]qQtssod ‘asmmoo jo ‘st 31 Ing “OM} JO SMOI
[e-IIA OM) UI PoUONtsod O78 SINIAGS 3p ZT “OL UI
‘uonwiedo Suyyoed Aseo
105 9 HOnposd ayy Ajddns 03 sapso uy ‘zz sympuoo apm
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“209 om Aq pojsoJIp | UONTUIUO Jy) “WWouTUOTATS
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2y} OUT pozoofe are g s;Onposd aq ywI aUTN IU WOI,{
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Appendix F

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(2) days urosoqm ¢ mare}> 0} 8uIpsoooR poyow y “y
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ay) Aq payceuip uonmusuO UB Fe IINpUuCD apms
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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_1069%3A1. Public record. Not legal advice.