January 26, 2015
By John Council, Texas Lawyer
In light of a big patent decision changing the appellate review standard for claims construction disputes, the U.S. Supreme Court today remanded three cases back to the U.S. Court of Appeals for the Federal Circuit—one of them a hard-fought Texas case.
One of the cases vacated and remanded to the Federal Circuit on Jan. 26 was Lighting Ballast Control v. Universal Lighting Technologies, in which a Texas litigant had hired appellate wizards Paul Clement and George Hicks Jr. to make their case before the high court.
Lighting Ballast Control LLC found significant amici support in its quest to take away the Federal Court’s ability to use a “de novo” standard in reviewing factual determinations made by trial court judges when determining the key words in a patent.
The Federal Circuit held onto that standard in an en banc ruling last year in Lighting Ballast—a decision that was appealed to the high court. But the high court got rid of the Federal Circuit’s ability to easily second-guess trial court factual determination in patent cases by replacing it with a “clear error standard” via its Jan. 20, 7-2 decision in Teva Pharmaceuticals USA v. Sandoz.
David Skeels, a partner in Fort Worth’s Friedman Suder & Cooke who represented Lighting Ballast at trial, said his client was prepared to argue that the high court should do away with de novo review, but Teva Pharmaceuticals beat them to the punch.
“That suits us just fine. Our hats are off to Teva,” said Skeels, who said his client will use Teva Pharmaceuticals to reclaim trial claim construction rulings it won nearly seven years ago from a trial court at the Federal Circuit.
But even though they didn’t get to argue the case before the U.S. Supreme Court, Skeels said it was worth it to hire Clement and Hicks to file the petition for a writ of certiorari with the high court—which was technically granted in the court’s Jan. 26 order remanding Lighting Ballast to the Federal Circuit.
“Their reputation was well deserved. They were fabulous to work with,” Skeels said of Clement and Hicks.
Steven Routh, a partner in Orrick, Herrington & Sutcliffe who represents Universal Lighting Technologies, did not immediately return a call for comment.