When You Need A Friend At Court

Posted on | January 12, 2009 | No Comments

Everyone needs friends.  And what better time to have a friend with you is there than when arguing at the Federal Circuit, especially if your friend is also a "friend of the court," or amicus curiae?

I have worked on quite a few amicus briefs, both in private practice and during law school while working at the Washington Legal Foundation.  They are (usually) fun to write and are (usually) great to have on your side because they can make arguments or points that you can't or won't (or don't have room to include).

However, I never gave much thought to finding an amicus to join my side in an appeal until my opponents in a pending Federal Circuit case started trolling around looking for one (or two, or three….) to help them.  More on that in a later post, but that process got me thinking about who is filing these briefs and how to go about getting them to help you.

According to Wikipedia, amicus curiae (pl. amici curiae), or friend of the court, is a practice from ancient Roman law where non-parties to a case could voluntarily offer the court additional information, insight, or explanation on the case, or on the policy or wider implications of a particular ruling. 

Rule 29 of the Federal Rules of Appellate Procedure generally allow participation of an amicus by leave of court, and the Federal Circuit regularly allows them.  Indeed, a review of the decisions in Seagate, Bilski, and Egyptian Goddess shows quite a few in each.

I went through the last couple years of CAFC patent decisions and looked at the amicus participants, whom I could break down into some groups.

One group of amicus filers are trade organizations and groups, such as the Generic Pharmaceutical Association, National Association of Chain Drug Stores, and Pharmaceutical Research & Manufacturing Alliance, just to name a few.  Most are obviously industry specific, but they are a good place to start, especially if your opponent is not in the same industry;

Some companies also like to file amicus briefs, so we have seen Apple, Sprint, Electrolux, Nike, etc.  Think about companies that might want to same result as you–or fall into "the enemy of my enemy is my amicus" category;

The PTO, ITC and some government groups, as well as individuals filing pro se.

One final group, which probably includes the entities who participate the most, are bar organizations and IP groups.  If you are looking for an amicus help, don't forget to check out local or state bar associations or property law associations.  Many probably don't regularly do amicus briefs, so it might take some calling around, convincing…and maybe a donation.

For CAFC cases I identified a few repeat filers, which I have listed below.  For each I looked to see if they posted online some information or procedures for requesting amicus help.

American Intellectual Property Law Association (AIPLA): information and procedures for requesting amicus participation by AIPLA can be found here.

Federation Internationale des Conseils en Propriete Industrielle (FICPI): I couldn't find anything online, but the contact information can be found here.

United Inventors Association: I couldn't find anything online, but the contact information can be found here.

Washington Legal Foundation: I couldn't find anything online, but the general website address is  here.

Federal Circuit Bar Association: information and procedures for requesting amicus participation by FCBA can be found online here.

Intellectual Property Owners Association: information about the IPO's amicus committee, including a list of member, can be found  here.

Electronic Frontier Foundation: Contact information for EFF can be found at the Staff page of the Contact us page here.

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