Amicus Briefs in Support of EcoFactor; Two Cert. Petitions in Cases Involving Questions of Extraterritorial Damages

As previously noted, the Federal Circuit will be rehearing en banc EcoFactor, Inc. v. Google LLC, on the question of “the district court’s adherence to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in its allowance of testimony from EcoFactor’s damages expert assigning a per-unit royalty rate to the three licenses in evidence in this case.”  An earlier post linked to Google’s brief and the amicus briefs filed in support of Google (one of which I joined).  EcoFactor’s corrected brief and three amicus briefs in support of EcoFactor are now available on Pacer as well.  Here they are, below.  If any more come in, or if any of the below are replaced with corrected copies, I will add them to the list:

PLAINTIFF-APPELLEE ECOFACTOR, INC.’S CORRECTED NON-CONFIDENTIAL EN BANC RESPONSE BRIEF

EN BANC REHEARING BRIEF OF AMICUS CURIAE ALLIANCE OF U.S. STARTUPS & INVENTORS FOR JOBS (“USIJ”) IN SUPPORT OF APPELLEE, ECOFACTOR

BRIEF OF THE NEW CIVIL LIBERTIES ALLIANCE AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLEE

BRIEF FOR PROFESSOR MICHAEL RISCH AND THE GROUP OF INTERESTED PRACTITIONERS AS AMICUS CURIAE IN SUPPORT OF ECOFACTOR

The New Civil Liberties Alliance brief is limited to arguing that Judge Pauline Newman should be part of the en banc panel.

While on the topic of briefs, I should note as well that the plaintiff in Brumfield v. IBG has filed a cert. petition with the U.S. Supreme Court.  Brumfield is a case in which the Federal Circuit concluded that U.S. courts may award damages for losses suffered abroad by reason of conduct occurring within the United States in violation of 35 U.S.C. § 271(a)—but on the facts of the case, concluded that the plaintiff hadn’t proven any such damages (see discussion here).  The cert. petition mostly focuses on other issues, however, though it does argue that “after ruling in [original plaintiff] TT’s favor that TT could obtain damages based on foreign conduct for infringement under 35 U.S.C. § 271(a), the Federal Circuit raised and decided the issue of causation (i.e., whether there was a 'casual connection' between infringement under § 271(a) and the 'foreign conduct for which proposal seeks royalty damages.' (Pet. App. 52a). This issue was never argued by the parties or decided by the district court below. (CAFC App. 18-20). By deciding it for the first time on appeal, the Federal Circuit denied TT’s due process rights to be heard” (p.39).  The responsive brief is due on March 20.  And while on the topic of extraterritorial damages and cert. petitions, Hytera has filed a cert. petition in a case in which the Seventh Circuit held that the federal Defend Trade Secrets Act (DTSA) extends civil liability for extraterritorial trade secret misappropriation, where "an act in furtherance of the offense was committed in the United States."  Hytera disagrees with the lower court’s interpretation of the quoted language, arguing that the statutory term “offense” means “criminal offense,” not “civil offense,” such that extraterritorial liability extends only to criminal trade secret misappropriation in violation of the Economic Espionage Act.  The question presented is “Does the private right of action for trade secret misappropriation created by the Defend Trade Secrets Act of 2016 rebut the presumption against extraterritorial application of U.S. law?"  A response is due February 10. 

I will be discussing both Brumfield and Hytera in my lecture at Ludwig Maximillians University in Munich next week.  More information forthcoming tomorrow.