Amicus briefs and AIPLA: an inside look

AIPLA is facing the daunting task of having three Amicus briefs due in a very short period – two to the US Supreme Court and one to the en banc Federal Circuit. Amicus briefs are one of the more visible advocacy functions the Association performs, and so it seems appropriate to tell you a bit about the cases.

The three potential cases are (1) Gunn et al v Minton concerning jurisdiction over legal-malpractice suits involving patent law; (2) Bowman v Monsanto , reviewing the Federal Circuit’s decision on the exhaustion doctrine for second-generation, genetically-modified seeds; and (3) CLS Bank v Alice, where the Federal Circuit will again wrestle with patentability under 35 USC § 101 for a computer system that assists with closing financial transactions.

The Gunn brief  was filed on the Monday after Thanksgiving, and the other two are due in January—a lot of work in a short time period.

This made me think that it would be a good time to demistify the Amicus process at AIPLA. I say demistify because many people have asked about the process, so here goes.

A case usually comes to AIPLA’s attention for Amicus briefs when: (1) A party asks the Association to participate, (2) one of our substantive committees or an AIPLA member calls it to the attention of the Amicus Committee, (3) the Supreme Court grants c ertiorari and it is relevant to our membership, or (4) an appellate court such as the Federal Circuit grants either en banc review or rehearing on an intellectual property issue.

The first stop in the Association is the AIPLA Amicus Committee . As an aside, unlike most AIPLA committees, the membership of this one is by appointment only. One-third of Amicus Committee members are appointed each year by the President-Elect for a three-year term, so that one-third of the Committee rotates off each year.

Having just completed appointing this year’s Amicus Committee class, I can say that it’s frankly a huge effort to make sure that the composition is balanced (such as for specialty, geographical location, diversity and industry).

The Amicus Committee does a substantive review of the issues, working with Jim Crowne on AIPLA staff, and the substantive AIPLA committees to gain as broad an understanding as possible on the issues being briefed. It then develops a recommendation for what positions the Association should take on the case.

The substantive positions will reflect past resolutions and positions taken by the Board of Directors , if there are any. If the Amicus Committee’s recommendation is to participate in a case, it also recommends which side of the case should be supported, or in some instances to not file in favor of a side. This can be very important because the due date for a brief is based upon this decision.

Recommendations to participate are always reviewed by the Board, and sometimes a recommendation not to participate also is reviewed by the Board. Although the Board is deferential to the Amicus Committee’s recommendation, that recommendation is not dispositive of what the Board will do and typically the Board engages in a thorough debate.

Generally, the Board divides the case into parts and considers whether to even participate. If it decides to do so, the Board will then decide what position to take on each of the various issues presented.

It also will approve a brief writer if one is recommended by the Amicus Committee. Each of these decisions requires a super majority vote of two-thirds of the Board. If two-thirds of the Board do not agree, no brief will be filed.

Assuming the Board decides to go forward with a position, the brief writer then works with AIPLA staff (particularly Jim Crowne) to make sure that the brief reflects the Board’s views. A draft brief is then sent to the Board, where it must again be approved by a super majority vote before it can be filed.

And, yes, there have been isolated instances where the Board cannot reach the super majority level, and as a result, an already prepared brief has not been filed.

The Board may make modifications or suggest additional revisions at this point, and usually empowers a Review Committee to make sure that the final revisions are accurately embodied in whatever is filed.

Sometimes while this process is going on, we are asked what position AIPLA will take in its amicus brief. As you can see from the various steps I have just outlined, the position literally is not set until the final decision brief is approved for filing.

Until then, the Association’s position can change and it’s not even certain that AIPLA will file a brief. This is a process that takes weeks, if not months, to accomplish for each brief.

Working on multiple briefs potentially due around the same time is quite a challenge. I, of course, say “potentially” because it’s entirely possible that the Board may decide not to file one or more of them. But for now, work is progressing at the Board, reviewing the Amicus Committee recommendations.

I hope to share additional updates as we move through the process, but in the meantime, I invite any comments or questions that you might have regarding the process itself.

Thanks for reading.