ParkerVision Files Reply in U.S. Supreme Court Cert. Petition Calling for End to Federal Circuit’s Use of Rule 36 in PTAB Appeals

Kasowitz Benson Torres, on behalf of ParkerVision, Inc., a leader in advanced wireless solutions, today announced that it has filed a reply brief in support of a petition for certiorari to the U.S. Supreme Court in a high-stakes patent case against TCL Industries Holdings Co., Ltd. (“TCL”) and LG Electronics Inc. (“LGE”). The petition, No. 24-518, shows that the Federal Circuit’s use of one-word affirmances under Rule 36 in Patent Trial and Appeal Board (PTAB) appeals violates Section 144 of the Patent Act, which requires the court to issue an “opinion” in such appeals.
 
The case has garnered widespread support from inventors’ groups, patent holders, and other stakeholders in the patent system, with thirteen amici across nine briefs calling for Supreme Court review. Professor Mary Ann Glendon of Harvard Law School was also among the amici, arguing that opinion-writing is an essential check on judicial power.
 
Former Federal Circuit judges Paul Michel and Kathleen O’Malley have even weighed in, expressly supporting ParkerVision’s position. Judge Michel has stated: “The Federal Circuit’s regular practice of issuing judgments without opinions in appeals from PTAB reviews contravenes the literal terms of Section 144, which contains no exceptions and warrants immediate Supreme Court scrutiny.” And Judge O’Malley has stated that “the ParkerVision case is of particular concern” because the Federal Circuit there used Rule 36 to affirm a PTAB patent invalidation that arose from inter partes review (IPR), an administrative proceeding where “guardrails against unduly depriving a party of property rights break down.” “In those cases, the Federal Circuit should provide greater oversight,” she explained.
 
ParkerVision’s certiorari briefing also uncovered overlooked historical evidence that reinforces the need for review. The briefing, for example, details that Judge Giles S. Rich, an architect of modern patent law, so strongly opposed rubber-stamp decisions that, in April 1973, he mocked the concept of summary affirmances by drafting a sarcastic “test” ruling questioning whether such decisions met judicial standards.  ParkerVision’s petition echoes Judge Rich’s concerns and demonstrates that Rule 36 contradicts the Federal Circuit’s mission to provide opinions in patent-agency appeals.
                
Further, as ParkerVision’s reply brief highlights, the brief in opposition filed by respondents (TCL and LG) did not dispute the merits of ParkerVision’s petition.
  
The Supreme Court’s decision in this case could reshape how patent appeals are handled, ensuring greater transparency, accountability, and due process in the U.S. patent system.

A copy of the reply may be found here.
 
The Kasowitz Benson Torres team representing ParkerVision, Inc. is led by Special Counsel Amit R. Vora and includes Counsel Clarine Nardi Riddle and associate Paul C. Tsavoussis.