No.

22-246

In the Supreme Court of the

United States
CENTRIPETAL NETWORKS, INC.,
Petitioner,
v.
CISCO SYSTEMS, INC.,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF OF THE COMMITTEE FOR JUSTICE

AND CONSERVATIVES FOR PROPERTY
RIGHTS AS AMICI CURIAE
IN SUPPORT OF PETITIONER

MATTHEW J. DOWD
Counsel of Record
ROBERT J. SCHEFFEL
DOWD SCHEFFEL PLLC
1717 Pennsylvania Ave. NW
Suite 1025
Washington, D.C. 20006
(202) 559-9175
[email protected]

Counsel for Amici Curiae

 TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE .................................... 1
SUMMARY OF THE ARGUMENT ................................ 2
ARGUMENT ....................................................................... 3
I. As Property Rights Established by the
Constitution, Patents and Copyrights Enable
Innovators to Compete and Reshape Markets ......... 3
A. The Intellectual Property Clause Embodies
the Founding-Era Understanding of Patent
and Copyright Rights ............................................. 4
B. Modern Innovation Requires Reliable
Intellectual Property Rights ................................. 6
II. The Federal Circuit’s Erroneous Analysis and
Application of 28 U.S.C. § 455 Raise Questions
of Exceptional Importance .......................................... 9
A. Section 455 Provides a Reasoned Safeguard
to Ensure that Speedy and Inexpensive
Justice is Accomplished ......................................... 9
B. The Federal Circuit’s § 455 Analysis Creates
Conflicts with Decisions of This Court and
Other Courts of Appeals ...................................... 11
III. This Case Presents an Ideal Vehicle to Clarify
the Law and Correct an Injustice Suffered by
an American Innovator .............................................. 14
A. Centripetal Networks Is a Verified Success
Story of the American Intellectual Property
System ................................................................... 14
B. The Outcome Here Will Disproportionately
Harm Smaller Innovators and Will Create a
Free Pass for Willful Infringers ......................... 16
CONCLUSION .................................................................. 19

(i)
 TABLE OF AUTHORITIES

Cases Page(s)
Adams v. Burke.,
84 U.S. (17 Wall.) 453 (1873)............................................. 5
Arnett v. Kennedy,
416 U.S. 134 (1974) ............................................................ 9
Baldwin Hardware Corp. v. Franksu Enterprise
Corp.,
78 F.3d 550 (Fed. Cir. 1996) ........................................... 13
Bonito Boats, Inc. v. Thunder Craft Boats, Inc.,
489 U.S. 141 (1989) ............................................................ 7
Bridges v. California,
314 U.S. 252 (1941) .......................................................... 10
Caperton v. A. T. Massey Coal Co.,
556 U.S. 868 (2009) .......................................................... 10
Diamond v. Chakrabarty,
447 U.S. 303 (1980) ............................................................ 7
Eldred v. Ashcroft.,
537 U.S. 186 (2003) ........................................................ 4, 5
Festo Corp. v. Shoketsu Kinzoku Kogyo Ka-
bushiki Co..,
535 U.S. 722 (2002) ............................................................ 7
Goldstein v. California,
412 U.S. 546 (1973) ............................................................ 7
Horne v. Department of Agriculture,
135 S. Ct. 2419 (2015) ........................................................ 8
In re Certain Underwriter,
294 F.3d 297 (2d Cir. 2002) ............................................. 13

(ii)
In re Literary Works in Electronic Databases
Copyright Litigation,
509 F.3d 136 (2d Cir. 2007) ............................................... 9
James v. Campbell.,
104 U.S. 356 (1881) ............................................................ 8
Kidder, Peabody & Co. v. Maxus Energy Corp.,
925 F.2d 556 (2d Cir. 1991) ............................................. 10
Liljeberg v. Health Services Acquisition Corp.,
486 U.S. 847 (1988) .............................................. 12, 13, 18
Republican Party of Minnesota v. White,
536 U.S. 765 (2002) .......................................................... 10
United States v. Atwood,
941 F.3d 883 (7th Cir. 2019) ........................................... 12
United States v. Cerceda,
172 F.3d 806 (11th Cir. 1999) ......................................... 13
United States v. Williams,
949 F.3d 1056 (7th Cir. 2020) ................................... 10, 11
Wheaton v. Peters,
33 U.S. 591 (1834) .............................................................. 4
Withrow v. Larkin,
421 U.S. 35 (1975) ............................................................ 10

Constitution and Statutes

U.S. Const. art. I, § 8, cl. 8................................................... 4
28 U.S.C. § 455 ............................................................ passim
28 U.S.C. § 455(a) ......................................................... 11, 12
28 U.S.C. § 455(f) ........................................................ passim
35 U.S.C. § 154 ...................................................................... 6
Act of May 31, 1790, 1 Stat. 124 .......................................... 5
Act of April 10, 1790, 1 Stat. 109 ......................................... 5

(iii)
Rules
Fed. R. Civ P. 1................................................................... 10
Sup. Ct. R. 37.2 ..................................................................... 1
Sup. Ct. R. 37.6 ..................................................................... 1

Other Authorities
5 Writings of Thomas Jefferson
(Washington ed. 1871)....................................................... 7
Adam Mossoff,
Exclusion and Exclusive Use in Patent Law,
22 Harv. J. Law & Tech. 321 (2009) ................................ 5
The Federalist No. 43 (Modern Library ed.
2001) .................................................................................... 5
H.R. Rep. No. 93-1453, as reprinted in
1974 U.S.C.C.A.N. 6351 .................................................... 9
Profile Cisco Systems, Forbes,
https://www.forbes.com/companies/cisco-sys-
tems/ ................................................................................. 16
President George Washington, First Annual Ad-
dress to Congress (Jan. 8, 1790) ...................................... 4
Ryan T. Holte, The Misinterpretation of eBay v.
MercExchange and Why: An Analysis of the
Case History, Precedent, and Parties,
18 Chapman L. Rev. 677 (2015) ..................................... 18

(iv)


INTEREST OF AMICI CURIAE1

Amici curiae are the Committee for Justice and
Conservatives for Property Rights. Amici are non-profit
organizations that each have an interest in ensuring that
the judicial process operates to achieve justice and protect
property rights.
The Committee for Justice (“CFJ”) is a non-profit
legal and policy organization founded in 2002. It is
dedicated to promoting the rule of law and preserving the
Constitution’s protection of individual liberty, including
the fundamental civil right to the fruits of one’s own labor.
CFJ believes that the Constitution’s protection of
intellectual property and physical property has helped to
make the United States the most prosperous society in
the history of the world.
Conservatives for Property Rights is a coalition of
organizations that stand for private property rights,
whatever the type of property. Conservatives for
Property Rights believes that property rights are divinely
endowed and that private property is essential to the
functioning of free enterprise, human flourishing,
discovery and creativity, and the exercise of ordered
liberty.
Consistent with their missions, CFJ and
Conservatives for Property Rights file amicus curiae

1
Pursuant to Supreme Court Rule 37.2, counsel of record for all
parties received notice at least 10 days prior to the due date of
Amici curiae’s intent to file this brief. Respondent provided written
consent to the filing of this brief through electronic mail, and
Petitioner consented through their letter of blanket consent filed
with the Court. Pursuant to Supreme Court Rule 37.6, Amici curiae
state that no counsel for any party authored this brief in whole or in
part and that no entity or person, aside from amici curiae, its
members, and its counsel, made any monetary contribution toward
the preparation or submission of this brief.

(1)
 2

briefs in important cases and educate the American public

and policymakers about the benefits of individual liberty,
property rights, and the proper roles of our federal courts
and administrative agencies.
SUMMARY OF THE ARGUMENT
Protections for intellectual property, including
patents and copyrights, serve to vindicate the
fundamental civil right that inventors and authors have to
the fruits of their labors. This is how the Founders
understood these rights at the time they adopted the
Constitution with its Patent and Copyright Clauses, and
this Court has applied the same understanding.
With their constitutional basis, intellectual property
rights serve to encourage investment of resources and
creative efforts into beneficial innovation and creative
works. Intellectual property rights work to reward
inventors and creators so that they can reap the benefits
of their investments. Intellectual property rights also
seek to mitigate the damage associated with willful
infringers—those who intentionally co-opt others’
innovation without providing appropriate compensation.
Of course, intellectual property rights only work
when those rights can be reasonably enforced through the
judicial process, with a meaningful remedy. If a patent
owner cannot obtain reliable redress for infringement
through the judicial process, then the patent becomes an
ornamental wall-decoration of little value.
The present case implicates important issues at the
intersection of maintaining confidence in the judicial
process while respecting fundamentally important
intellectual property rights. The question presented by
Petitioner is specific to the interpretation and application
of 28 U.S.C. § 455, which works to ensure judicial
impartiality. But the decision of the court of appeals goes
too far and has broader implications. It will undermine
 3

confidence in the judicial process and importantly will

harm the innovation community, particularly the small to
mid-sized entities that frequently must confront willful
infringement committed by larger, better-resourced
competitors.
The outcome of vacatur here represents another
example of incumbent technology companies using all
means possible to avoid paying for their use of the
inventions and technology of smaller innovators. The
current outcome enables large incumbent companies to
trample on innovators’ intellectual property rights and to
avoid compensating the owners of patents and other
intellectual property. Vacating an otherwise valid
decision of patent infringement will impose significant
costs on not only Centripetal Networks but also other
emerging innovators who must battle companies—many
with nearly limitless resources—simply to be
compensated for the unauthorized use of their valuable
inventions.
ARGUMENT
I. As Property Rights Established by the
Constitution, Patents and Copyrights Enable
Innovators to Compete and Reshape Markets
Intellectual property is rooted in the Constitution as
the fuel that feeds our Nation’s innovation economy. As
such, intellectual property must be treated as a
fundamental property right, consistent with the
Constitution and the understanding of the founding era.
Intellectual property rights also incentivize innovators to
create new technology and creative works, which in turn
disrupt entrenched markets—but only if those property
rights are respected and the judicial system offers an
efficient remedy for infringement.
 4

A. The Intellectual Property Clause Embodies

the Founding-Era Understanding of Patent
and Copyright Rights
The Constitution provides Congress with the power
“[t]o promote the Progress of Science and useful Arts, by
securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and
Discoveries.” Art. I, § 8 cl. 8. The Patent and Copyright
Clauses grant the only individual rights in the original
Constitution.
The Patent and Copyright Clauses empower
Congress to protect an individual’s fundamental civil right
to the fruits of his or her labor. See Wheaton v. Peters, 33
U.S. 591, 658 (1834) (“That every man is entitled to the
fruits of his own labour must be admitted[.]”). Certainly,
protecting such a fundamental civil right serves the
purpose of furthering the arts and sciences, but this Court
has warned against interpreting the Clauses’ purpose in a
manner that unduly minimizes or eliminates the
fundamental right they empower Congress to protect.
See, e.g., Eldred v. Ashcroft, 537 U.S. 186, 212 n.18 (2003).
At the Nation’s outset, George Washington
addressed Congress in January 1790 and, excited by the
expected societal benefit, urged Congress to act by
passing legislation to put into effect the Patent and
Copyright Clauses. President Washington told Congress,
“there is nothing which can better deserve [Congress’s]
patronage than the promotion of Science and Literature.”
President George Washington, First Annual Address to
Congress (Jan. 8, 1790).2 Within four months of his
address, Congress established a system to protect patents

2
See Transcript, January 8, 1790: First Annual Message to
Congress Transcript, University of Virginia, Miller Center,
https://millercenter.org/the-presidency/presidential-
speeches/january-8-1790-first-annual-message-congress.
 5

and copyrights that, in many respects, remains in place

today. See Act of Apr. 10, 1790, 1 Stat. 109; Act of May 31,
1790, 1 Stat. 124.
Importantly, the first four patent statutes, adopted in
1790, 1793, 1836, and 1870, defined patents as property
rights in substantive terms, “securing the same rights to
possession, use, and disposition traditionally associated
with tangible property entitlements.” Adam Mossoff,
Exclusion and Exclusive Use in Patent Law, 22 Harv. J.
Law & Tech. 321, 340–41 (2009) (collecting the statutory
provisions, and citing Adams v. Burke, 84 U.S. (17 Wall.)
453 (1873)). Nineteenth-century courts continued to
follow the view, as espoused by Congress, that patents as
property secured “substantive rights,” including the
“right to manufacture, the right to sell, and the right to
use” their inventions. Id. at 341.
Along similar lines, the Founders viewed the
Copyright Clause as empowering Congress to protect an
author’s right to the fruits of his or her labor, even if the
Clause also includes the stated purpose of furthering the
“Science,” understood today as arts and literature. James
Madison’s comments on the Copyright Clause in The
Federalist focus on the practical advantages of the Clause
for the public at large. See The Federalist No. 43, at 274
(Modern Library ed. 2001) (“The utility of this power will
scarcely be questioned.”). Yet Madison also took pains to
emphasize that “[t]he public good fully coincides . . . with
the claims of individuals.” Id. In other words, he viewed
no inconsistency between the Copyright Clause having
the stated purpose of furthering “Science” and, at the
same time, empowering Congress to protect fundamental
property rights of individual authors. In recognizing
Madison’s views, this Court has rejected the argument
that copyright law must serve exclusively public, as
opposed to private, goals. See Eldred, 537 U.S. at 212
n.18.
 6

Even today, patents and copyrights have the

characteristics of private property rights. Under the
current Patent Act, for instance, patent rights include the
fundamental “right to exclude,” which is the sine qua non
of a property right. See 35 U.S.C. § 154 (“Every patent
shall . . . grant to the patentee, his heirs or assigns, of the
right to exclude others from making, using, offering for
sale, or selling the invention throughout the United States
or importing the invention into the United States, and, if
the invention is a process, of the right to exclude others
from using, offering for sale or selling throughout the
United States, or importing into the United States,
products made by that process, referring to the
specification for the particulars thereof.”).
The property-right nature of intellectual property—
including its genesis in the Constitution—must be a
fundamental consideration when devising policies that
may impact intellectual property rights. This includes
due process considerations associated with judicial
proceedings. Legislative and judicial decisions must be
cognizant of any decision-making’s impact on these
constitutional rights. Otherwise, willful infringers may, to
the detriment of individual rights, be allowed to trample
on the fundamental civil rights guaranteed by the
Intellectual Property Clause and made effective through
the Patent and Copyright Acts.
B. Modern Innovation Requires Reliable
Intellectual Property Rights
Concomitant with the private-rights aspect of
intellectual property is its utilitarian role. This Court has,
time and again, recognized the importance of reliable
intellectual property rights for incentivizing societal
progress.
As a tool to encourage and promote innovation, the
exclusive right of a patent and its “boundaries should be
 7

clear,” as this Court explained in Festo Corp. v. Shoketsu

Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 730–31
(2002) (citing Bonito Boats, Inc. v. Thunder Craft Boats,
Inc., 489 U.S. 141, 150 (1989)). The Court continued and
observed:
This clarity is essential to promote progress, because
it enables efficient investment in innovation. A patent
holder should know what he owns, and the public
should know what he does not. . . . [I]nventors . . . rely
on the promise of the law to bring the invention forth,
and the public . . . should be encouraged to pursue in-
novations, creations, and new ideas beyond the inven-
tor’s exclusive rights.
Id. Indeed, the original Patent Act embodied Thomas
Jefferson’s philosophy that “ingenuity should receive a
liberal encouragement.” Diamond v. Chakrabarty, 447
U.S. 303, 308–09 (1980) (quoting 5 Writings of Thomas
Jefferson 75–76 (Washington ed. 1871)).
Similarly, copyrights encourage the production of
creative works—literature, art, movies, music. Copyright
protection acts as the fuel for the engines of creativity.
The exclusive rights associated with copyrights work to
ensure that free riders cannot later pirate creative efforts
without acknowledging the value of the property right.
Copyrights respect the fundamental nature of an
individual’s labors and thus incentivize individuals to
create something that did not exist, but for that
individual’s creative labors. See Goldstein v. California,
412 U.S. 546, 555 (1973) (“[T]o encourage people to devote
themselves to intellectual and artistic creation, Congress
may guarantee to authors and inventors a reward in the
form of control, over the sale or commercial use of copies
of their works.”).
Patents and copyrights achieve their innovation-
incentivizing roles primarily through the force of the
 8

exclusive right contemplated by the Founders and

specified in the Constitution. This Court has recognized
the same. E.g., Horne v. Dep’t of Agric., 135 S. Ct. 2419,
2427 (2015) (stating that a patent “confers upon the
patentee an exclusive property in the patented invention”
(quoting James v. Campbell, 104 U.S. 356, 358 (1882))).
The right to exclusivity is what ultimately enables a
patentee or a copyright owner to reap the full reward of
his or her innovative efforts.
If patent and copyright owners cannot exclude
infringers (as the Constitution contemplated), then
infringers will continue to pirate others’ innovations
without fully compensating up-and-coming inventors and
creators. The lack of a reliable and timely remedy
reduces the likelihood that investors will fund the
innovation our Nation needs to remain competitive. The
lack of a reliable and timely remedy for infringement also
undermines confidence in the patent and copyright
systems.
Of course, confidence in the intellectual property
system necessarily depends on confidence in the judicial
system. The former cannot exist without the latter,
especially in a modern innovation-based society. If the
judicial process is not fair and impartial—or does not
appear to be fair and impartial—then intellectual
property owners will lack any confidence that their
patents and copyrights can be effectively enforced against
infringers.
Justice must also be efficient and timely. If a smaller
patent owner is required to devote enormous resources to
patent-enforcement litigation, only to have a successful
action thrown out on specious grounds that have no
impact on the case’s merits, then the net result is a serious
diminution in the value of the patent rights—not just for
the specific case at issue but for patent owners writ large.
 9

It becomes a situation where “justice delayed may well be

justice denied.” Arnett v. Kennedy, 416 U.S. 134, 221
(1974).
II. The Federal Circuit’s Erroneous Analysis and
Application of 28 U.S.C. § 455 Raise Questions of
Exceptional Importance
In the present case, under the aegis of upholding
judicial impartiality, the Federal Circuit vacated the trial
court’s ruling of willful patent infringement. The court’s
analysis and application of 28 U.S.C. § 455 in this case
creates substantial uncertainty and apparent conflicts
with the decisions of this Court and other courts of
appeals. Ensuring confidence in the judicial process is the
ultimate goal of § 455, but if that statute is interpreted and
applied in a manner that undermines the reliable
enforcement of intellectual property rights (enshrined in
the Constitution), then the ultimate objective of § 455 is
missed.
A. Section 455 Provides a Reasoned Safeguard to
Ensure that Speedy and Inexpensive Justice is
Accomplished
Judicial impartiality and the appearance thereof form
foundational principles of the U.S. legal system. Without
the judicial system appearing impartial, litigants can have
little confidence of achieving justice, including innovative
companies seeking to enforce their intellectual property
rights. Congress and the courts have adopted various
safeguards to ensure that impartial justice is achieved, in
a timely and efficient manner.
Section 455 was “designed to ‘promote public
confidence in the impartiality of the judicial process.’” In
re Literary Works in Elec. Databases Copyright Litig.,
509 F.3d 136, 140 (2d Cir. 2007) (quoting H.R. Rep. No.
93-1453, reprinted in 1974 U.S.C.C.A.N. 6351, 6355).
Furthermore, § 455(f) was enacted to address a situation
 10

where a judge discovers a financial interest after the court

has devoted substantial time and resources to the case.
See Kidder, Peabody & Co. v. Maxus Energy Corp., 925
F.2d 556, 561 (2d Cir. 1991) (“We think that section 455(f)
directly applies to this situation. Nearly three years of the
litigants’ time and resources and substantial judicial
efforts have been devoted to the litigation.”).
At the same time, it is understood and accepted that
“[t]here is a ‘presumption of honesty and integrity in
those serving as adjudicators.’” Caperton v. A. T. Massey
Coal Co., 556 U.S. 868, 891 (2009) (Roberts, C.J.,
dissenting) (quoting Withrow v. Larkin, 421 U.S. 35, 47
(1975)). As is plain, “[a]ll judges take an oath to uphold
the Constitution and apply the law impartially, and we
trust that they will live up to this promise. Id. (citing
Republican Party of Minn. v. White, 536 U.S. 765, 796
(2002) (Kennedy, J., concurring) (“We should not, even by
inadvertence, ‘impute to judges a lack of firmness,
wisdom, or honor.’” (quoting Bridges v. California, 314
U.S. 252, 273 (1941))).
Furthermore, the appearance of judicial impartiality
is not—and cannot be—the only consideration when
ensuring justice after the courts and the parties have
expended substantial time and resources on legal matters.
Time and expense are separate and important factors, on
par with the “justness” of a process. Fed. R. Civ. P. 1
(“[The Rules] should be construed, administered, and
employed by the court and the parties to secure the just,
speedy, and inexpensive determination of every action
and proceeding.”).
For that reason, Congress and this Court have
instructed that time and expense considerations are
equally important when assessing whether a judicial
process satisfies due process and its impartiality
requirement. See 28 U.S.C. § 455(f); United States v.
 11

Williams, 949 F.3d 1056, 1063 (7th Cir. 2020) (“Not every
violation of § 455(a) warrants a drastic remedy, like a new
trial.”).
Such considerations are particularly important when
adjudicating property rights, rooted in the Constitution
such as patent rights. Vacating a complete adjudication
of patent claims, which resulted here in a finding of willful
infringement and damages of over a billion dollars, is an
extraordinarily drastic result for what appears to be one
of the slightest of violations of § 455.
B. The Federal Circuit’s § 455 Analysis Creates
Conflicts with Decisions of This Court and
Other Courts of Appeals
The Federal Circuit’s decision warrants review and
this Court’s clarification on two issues. The first is
whether a blind trust satisfies the statutory requirement
of § 455(f). The second is whether the appeals court’s
harmless-error analysis comports with this Court’s
precedent. Both issues are of exceptional importance.
On the first issue, this Court has not answered the
question of whether a “blind trust” satisfies the statutory
requirement to “divest.” See 28 U.S.C. § 455(f). As
Petitioner explains, there are good reasons to hold that
the statute permits divestiture via a blind trust,
particularly in this case. See Pet. 16. A blind trust divests
an individual of any power of control, distribution, or
disposition over the property contained in the trust. Such
a position would seem to satisfy the objective of the
statute. And the late Judge Henry Coke Morgan, Jr. in
the present case used the blind trust in a manner that
appeared to moot any question of impartiality.
Specifically, the controlling language of § 455(f)
requires that a judge, after an unexpected discovery of
stock ownership by a family member late in the
adjudication of a case, “divests himself or herself of the
 12

interest that provides the grounds for the

disqualification.” Petitioner reasonably argues that the
proper interpretation of this provision would require the
divesting of all cognizable interests in stock of a party,
where cognizable interests consist of those which the
judge controls or knows of. When stock exists in a blind
trust, the beneficiary has neither knowledge nor control
of the trust’s holdings. It should therefore not be a
cognizable interest within the meaning of § 455(f), and
thus a blind trust appears to satisfy § 455(f). At a
minimum, the Court ought to resolve this question to
provide clarification for well-intentioned judges stuck
between the choice of using a blind trust and of selling the
stock after having knowledge of the decision in the case.
On the second issue, the appeals court’s harmless-
error analysis is unmoored from the framework this
Court offered in Liljeberg v. Health Acquisition Corp.,
486 U.S. 847 (1988). There, the Court recognized that a
judge’s violation of § 455(a) is assessed for harmless error.
In determining whether a § 455 violation is harmless,
courts consider: (1) the risk of injustice to the parties in
the particular case, (2) the risk that the denial of relief will
produce injustice in other cases, and (3) the risk of
undermining the public’s confidence in the judicial
process. Liljeberg, 486 U.S. at 864; United States v.
Atwood, 941 F.3d 883, 885 (7th Cir. 2019).
From the perspective of rights-holders (including
patent owners), it is hard to conceive of an outcome more
unjust than the present one. Here, the risk of injustice to
the patent holder is enormous. Cisco is a big company
with substantial resources at its disposal, while
Centripetal is a small innovator. After expending untold
resources to secure a judgment of willful infringement,
that work is tossed aside, despite the acceptance by the
parties involved that the identified violation could not
have had any adverse effect on the result of the
 13

infringement finding. Such an outcome will not strike a

proper balance, as is required by Liljeberg and other
appellate cases. See In re Certain Underwriter, 294 F.3d
297, 304–05 (2d Cir. 2002); Baldwin Hardware Corp. v.
Franksu Enter. Corp., 78 F.3d 550, 555–56 (Fed. Cir.
1996) (substantial judicial time was expended by the time
the discovery of a conflicting interest came during the
trial).
Moreover, the six-week trial involved incredibly
complex technology. Any decision forcing a patent owner
to relitigate a case that involves highly technical subject
matter must adequately address the issue of trial
complexity. See, e.g., United States v. Cerceda, 172 F.3d
806, 815 (11th Cir. 1999) (en banc) (per curiam) (“[T]he
government would face great hardship if forced to
conduct a new trial . . . because of the complexity of the
case (a 78-count, complex white-collar prosecution the
trial of which lasted two-and-a-half months).”). In this
instance, the technical nature of the trial should weigh
strongly towards a ruling of harmless error.
As to the public’s confidence in the judicial process,
the vacatur decision accomplishes the exact opposite of
what the appeals court apparently intended to achieve.
The public will have little confidence in a judicial process
when an appeals court discards the results of a fairly
litigated trial, lasting six weeks, involving hundreds of
exhibits and thousands of record pages, merely because
the presiding trial judge discovered, after the fact, that
his spouse owned a trivial amount of stock of the losing
party. This outcome will leave the public scratching its
collective head, wondering what other minor missteps can
undo just and speedy trials proving willful infringement
by dominant industry giants who face dynamic
competition from small innovators on account of their
patent rights.
 14

III. This Case Presents an Ideal Vehicle to Clarify the

Law and Correct an Injustice Suffered by an
American Innovator
This case presents exceptionally important questions
about balancing the interest of ensuring the appearance
of an impartial judicial process with ensuring that justice
is achieved. In this case, justice was denied, and a small
innovator’s expenditure of substantial resources was
rendered a nullity by the appeals court’s decision to vacate
the district court’s ruling of patent infringement. The
case is an ideal vehicle to decide the proper balance
between applying 28 U.S.C. § 455(f) and achieving justice
with respect to property rights, including patent rights.
A. Centripetal Networks Is a Verified Success
Story of the American Intellectual Property
System
Petitioner Centripetal Networks is the type of
success story that the Founders could have envisioned
when drafting and adopting the Patent Clause. The quid
pro quo of the patent system encouraged Centripetal to
innovate and disclose its inventions. In exchange,
Centripetal was awarded several patents granting it the
right to exclude others from using its inventions, unless
being fairly compensated.
Centripetal was founded in 2009 by Steve Rogers, a
pioneer of intelligence-based cyber defense with
extensive experience developing secure communications
systems, including for the U.S. Air Force. Centripetal
invested in R&D and its business for several years before
selling its internet-security products and services to its
first customer in 2015. Since then, Centripetal has
become a trusted leader in internet security with its
patented technology and its CleanINTERNET® service
that protects against network infiltration and data
exfiltration by cybercriminals.
 15

In years past, innovation like that of Steve Rogers

and his company would have been praised throughout the
country. Individuals such as Thomas Edison, Alexander
Graham Bell, Nikola Tesla, and others exemplify the
continuing thread of creative development that turned the
United States into an innovation powerhouse of the 19th
and 20th centuries. Earlier in our Nation’s history were
the likes of Benjamin Franklin (a prolific inventor),
Thomas Jefferson (known for his many inventions,
including the original “polygraph”), and Abraham Lincoln
(the only President named as an inventor on a patent).
More recently, luminaries such as Stephanie Kwolek (the
inventor of Kevlar) and Jennifer Doudna (an inventor of
Nobel Prize-winning CRISPR technology) have
maintained the common thread of innovation running
through our Nation’s history.
The Nation’s economic progress rests on the
continued beneficial disruption caused by the innovation
of individual inventors and smaller companies. Patents
can act as an effective counterbalance to over-
concentrated market power and stagnation attributable
to entrenched incumbents. Patents enable new
innovators to disrupt the market with their out-of-the-box
thinking (just as Centripetal has done). Patents also
encourage investments in developing technologies and
companies. Notably, Amazon’s current empire traces its
roots to its early “1-Click” patent, which gave it a
competitive edge over other online sellers, as well as
traditional brick-and-mortar retailers. Google also
started its rise to dominance based on computer-search
innovation that was protected by U.S. patents, including
some filed by its founders Larry Page and Sergey Brin.
In recent years, however, there has been a
remarkable decline in the respect for innovators and
patent rights. Where there was once praise for those who
earned patents, there is now palpable disdain, with
 16

accusations of “patent trolls” and “patents kill.” The

current narrative is a far cry from the Founders’ view of
patents being important property rights that emerged
from one’s individual labors and were critical to
promoting technological and societal progress.
The outcome in this case, if not reconsidered, will
unfortunately add to the decline in the respect for
intellectual property rights—both as a property right and
as a tool to incentivize innovation. While the appeals
court’s attempt to ensure absolute judicial impartiality
was well-intentioned, the outcome defeats § 455(f)’s
overall objective of providing justice that is “speedy” and
“inexpensive.” The appeals court’s vacatur of the decision
finding willful infringement unnecessarily delayed and
will cause another obstacle to protecting innovation.
B. The Outcome Here Will Disproportionately
Harm Smaller Innovators and Will Create a
Free Pass for Willful Infringers
The outcome here will disproportionately harm
smaller and emerging innovators. The widespread
ownership of market-dominating companies like Cisco
increases the risk that otherwise-valid findings of patent
infringement, including willful infringement, will be
undone by unknown ownership of trivial amounts of stock
that had no effect on a judge’s decision-making process.
In 2018, after learning that Cisco was using its
technology without paying, Centripetal sued Cisco for
patent infringement, seeking redress for the apparent
unauthorized use of Centripetal’s inventions. At a six-
week trial in 2020, Cisco was found to be a willful
infringer, and it was ordered to compensate Centripetal
$3.2 billion for its unauthorized use of Centripetal’s
patents. While that is a substantial dollar award, Cisco
has a market capitalization of over $165 billion with annual
revenue of over $50 billion, based on public reports.
 17

Profile Cisco Systems, Forbes,

https://www.forbes.com/companies/cisco-systems/.
That might have been a reasonable outcome, but the
appeals court vacated the liability decision based on, in its
opinion, the trial judge’s violation of 28 U.S.C. § 455. Cisco
convinced the appeals court that the trial judge should
have recused himself because he learned—after the trial
and after writing most of the ruling against Cisco—that
his spouse owned less than $5,000 worth of Cisco stock
and because putting the stock in a blind trust was not an
adequate divestment. Recusal and vacatur of the
infringement decision were required, in Cisco’s view,
despite the significant investment of time and resources
by the trial court and the parties and despite the fact that
the judge had already decided nearly every issue and
drafted the large majority of the opinion.
Centripetal’s case is a poster child of a willful
infringer using an apparent technicality to avoid or delay
liability for willful patent infringement. Four years after
being sued, Cisco was able to undo the district court’s
ruling after a six-week bench trial, based on its judicial-
recusal argument. Cisco suffered no actual harm here
based on the alleged § 455 violation, as Cisco
acknowledged on appeal. The appeals court did not rule
on the merits of Cisco’s willful patent infringement, and it
did not even entertain any discussion of the issue during
oral argument. The end result is that any justice
Centripetal can receive for Cisco’s willful infringement
will be delayed at least several more years.
Without doubt, Cisco should be permitted to establish
genuine error with the trial court’s decision on the merits.
If there is error in the ruling that Cisco willfully infringed
Centripetal’s patents, then the appeals court can make the
appropriate rulings. But liability for willful infringement
should not be evaded through an unduly narrow reading
 18

of § 455 and a flawed application of the Liljeberg

harmless-error analysis. It is difficult enough for
emerging innovators to succeed in markets occupied by
entrenched market-dominant companies. Vacating an
otherwise valid decision of patent infringement will deter
emerging innovators from trusting the legal system,
where they must battle corporations with nearly limitless
resources.
The strategy of delay and avoidance is far too
frequent when it comes to patent infringement by larger
companies. That strategy has been facilitated by a string
of decisions by the appeals courts that have weakened the
exclusive patent right. See, e.g., Ryan T. Holte, The
Misinterpretation of eBay v. MercExchange and Why:
An Analysis of the Case History, Precedent, and Parties,
18 Chapman L. Rev. 677, 682 (2015) (explaining how
courts are “improperly following Justice Kennedy’s
concurrence” in eBay Inc. v. MercExchange, L.L.C., 547
U.S. 388 (2006), as “precedent” and how eBay “has been
misinterpreted by trial courts and others for a variety of
reasons”). After eBay, there is a smaller likelihood of
obtaining an injunction, even after a complete
adjudication of infringement. This new trend runs
counter to the intent of the Constitution, with its emphasis
on the “exclusive” right.
A typical strategy by infringers is to prolong
litigation and make it more expensive, in part by
launching multiple attacks against patents through the
Patent Trial and Appeal Board’s (“PTAB”) post-grant
review process. In the current dispute, Cisco has used the
PTAB’s lower burden of proof to cancel patent claims and
circumvent the district court adjudication of them.
Centripetal’s district court action against Cisco started in
February 2018, alleging patent infringement of eleven
patents. Rather than adjudicate all patents in the district
court proceeding, Cisco sought the relief of the PTAB and
 19

its lower evidentiary burden. As of the filing of this brief,

Cisco has filed at least fifteen petitions at the PTAB for
inter partes review, amounting to attacks on ten of
Centripetal’s eleven patents asserted in its district court
action against Cisco.
Most recently, in June 2022, Cisco again expanded
the litigation battlefield and joined an existing inter
partes review of one of the patents it was found to have
willfully infringed in the present case. Cisco is thus
seeking a second bite at the apple, which will likely further
delay final resolution for Centripetal. The PTAB process
has become a major tool for large companies to make
patent enforcement more expensive than it should be.
Cisco’s continued attack through the PTAB may well
render the district court trial a nullity when combined
with the appeals court’s unnecessary vacatur of the willful
infringement ruling.
CONCLUSION
For the foregoing reasons, Amici the Committee for
Justice and Conservatives for Property Rights submit
that this Court should grant the writ of certiorari.

Respectfully submitted.
MATTHEW J. DOWD
Counsel of Record
ROBERT J. SCHEFFEL
DOWD SCHEFFEL PLLC
1717 Pennsylvania Ave.,
NW
Suite 1025
Washington, D.C. 20006
(202) 559-9175
[email protected]

OCTOBER 2022