Federal Circuit’s Unique Preclusion Principle

I previously wrote about Chrimar’s petition for writ of certiorari on the Federal Circuit’s unique doctrine of retroactive revocation of final judgments.  The basics are: Once affirmed on appeal, a PTAB decision cancelling patent claims will effectively reverse and vacate any prior judicial final decisions of liability and damages so long as some aspect of the prior infringement lawsuit is still pending (typically in the form of a pending appeal on other grounds).

Whether the Federal Circuit may apply a finality standard for patent cases that conflicts with the standard applied by this Court and all other circuit courts in non-patent cases.

Petition for Certiorari.

The court’s approach was originally solidified in Fresenius USA, Inc. v. Baxter International, 721 F.3d 1330 (Fed. Cir. 2013).  That decision is now one of the most cited Federal Circuit opinions of the past decade.

Now, three amicus briefs have been filed in support of the petition:

• US Inventor: The “Court’s Fresenius line of precedent … improperly usurps a procedural issue from the regional circuits.” [Brief]
• The Naples Roundtable: “The Federal Circuit’s self-coined “Fresenius/Simmons preclusion principle” is unique to patent law, is contrary to the preclusion principles of other circuits, and is contrary to the Restatement of Judgments. The Fresenius/Simmons preclusion principle undermines the finality of prior judicial judgments. Finality of judgments is critical to the purpose of the civil judicial system—namely, conclusively and effectively resolving disputes between parties. Finality is essential to provide closure and certainty to both litigants and society, and prevents waste of judicial resources. [Brief]
• National Small Business Ass’n, Center for Individual Freedom, and Conservatives for Property Rights, et al.:  “When an issue is definitively resolved in a case and memorialized in a final judgment, that makes resolution of the issue final between the parties. The issue cannot not be relitigated even if another portion of the case, regarding different issues, gets reopened, as on remand after appeal. That is the law in all areas of U.S. law except for patent law in the Federal Circuit.” [Brief]

The arguments her have substantial legal merit.  Two problems (1) the Supreme Court has a history of treating preclusion differently for patent law with the idea that courts should not enforce a patent after it has been found invalid; (2) in this case the patent claims have been found invalid — and so a win here for Chimar is simply about timing of judicial process and not about rewarding merit (unless you are of the opinion that PTAB wrongly invalidated the claims).