Sometimes observers can glean the significance of a legal issue by the lawyers who sign on to represent a party in an appellate dispute.
That’s the case with Lighting Ballast Control v. Universal Lighting Technologies, a huge patent decision last month from the U.S. Court of Appeals for the Federal Circuit that many intellectual property lawyers believe is destined for U.S. Supreme Court review.
On March 25 the Fort Worth trial lawyers who represented Lighting Ballast in a patent infringement case in the Northern District of Texas trial court (and later challenged a 15-year-old Federal Circuit precedent that allows the appellate court to engage in de novo review of crucial claims construction decisions made by trial courts) announced that Paul Clement and George W. Hicks Jr., partners in Washington, D.C.’s Bancroft, will present their client’s appeal to the Supreme Court.
On Feb. 21 the Federal Circuit issued an en banc opinion in Lighting Ballast, preserving the de novo review established in 1998′s Cybor Corp. v. FAS Technologies. The appeal attracted the attention of 38 groups, including major technology companies, intellectual property attorneys, academics and the U.S. government, leading to 21 amici briefs filed in the case. [See "Federal Circuit Retains Power in Patent Disputes," Texas Lawyer, March 3, 2014, page 1.]
When “highly competent attorneys like Paul Clement and George Hicks are interested” in presenting Lighting Ballast’s petition for writ of certiorari to the high court, it confirms that the case is a big deal, said David Skeels, a partner in Fort Worth’s Friedman Suder & Cooke who represents Lighting Ballast.
Skeels noted that Clement is a former U.S. solicitor general who’s argued more than 70 cases before the high court and Hicks is a former law clerk for U.S. Supreme Court Chief Justice John G. Roberts Jr.
“And this went both ways. Appellate counsel were contacting us wanting to take the case,” Skeels said.
Clement was presenting an argument before the high court on March 25 and couldn’t be reached for comment, according to his assistant. Hicks did not return a call for comment.
Jon Suder, another partner in Friedman Suder & Cooke who also represents Lighting Ballast, said that, while the case has been well briefed in the lower courts, his client’s decision to sign up Clement and Hicks on March 21 increases the chances that the high court will take the case.
“There are nuances in getting the Supreme Court’s attention. And there are other cases that are before the Supreme Court that are dealing with the issue of deference. And we want to make sure ours is the case that the court takes,” Suder said. The cert petition is due on May 22, Suder noted.
Steven Routh, a partner in the Washington, D.C., office of Orrick, Herrington & Sutcliffe who represents Universal Lighting Technologies, did not immediately return a call for comment.