©2013. Published in Landslide, Vol. 5, No. 5, May/June 2013, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
This discussion by Hayden W. Gregory, the Section's Legislative Consultant and author of "From the Hill" is the first of a two-part series. The next issue of Landslide magazine will feature a discussion on the range of important IP issues that the Section has addressed in its amicus filing.
May It Please the Court
The ABA-IPL Section and Amicus Briefs
It is this latter activity—advice to the courts—that is the topic of this discussion.
Since the ABA-IPL Section is an entity of the ABA, it should come as no surprise that any commentary or recommendations to governmental policy makers that the Section wishes to offer must first be approved or cleared within the Association. There are two main avenues through which this can be accomplished. The first is by approval of the comments and/or the policy and substance of the comments by the ABA Houses of Delegates (HOD) or Board of Governors. Such approval establishes the policy as ABA policy, and comments and recommendations to governmental policy makers are then made in the name of the Association. The second is by a process known as “Blanket Authority.” An ABA Section that elects to go this route to provide comments to a governmental body must first circulate the comments to other ABA entities. If none object to the submission of the comments, clearance is granted to offer the comments on behalf of the Section only, with an accompanying disclaimer that the views have not been adopted by the Association.
The Blanket Authority or clearance-not-approval process may be used for comments to Congress or to executive agencies, but it is not available to authorize filing of an amicus brief with a court. ABA policy is for “the Association to file amicus curiae briefs sparingly and only when the brief would constitute a significant contribution to the issue or issues involved.” As a result, when the ABA-IPL Section wishes to be heard by way of an amicus brief, it must take the steps required to file that brief as an ABA brief, signed by the ABA president on behalf of the entire Association. The first such step is to establish Association policy that supports the views to be expressed in the brief. In most cases, this means approval by the ABA House of Delegates of a resolution adopting the necessary policy. Once the supporting policy is in place, the Section prepares a draft brief, which must be approved by the ABA Board of Governors before it can be filed with the court in question. In making a decision on approving a brief, the Board of Governors relies heavily on the expertise and guidance of the ABA Standing Committee on Amicus Curiae Briefs (“the Standing Committee”). The rules of the Standing Committee call for the Section to submit at least two revisions of the brief based on successive reviews by the Committee.
These many prerequisites to filing an amicus brief in the Supreme Court or in the Federal Circuit1 can be very demanding, especially since they almost always must be met under strict and often short time limits. However, they are well worth the effort. The requirement of House of Delegates adoption of policy to support the brief means that, before offering policy recommendations to the HOD, the Section will carry out a process of issue analysis and recommendation formulation that focuses on identifying the critical issues of the case in question and providing the most appropriate legal response. As the brief is being developed, the multi-stage review and comment of the Standing Committee, which is populated by ABA lawyers with extensive experience and expertise at the highest level of appellate advocacy, adds another quality dimension to the final product. The demanding review and approval process that all ABA briefs must successfully navigate no doubt produces a better final product, and courts’ awareness that the ABA is very selective in its amicus filings contributes to a respectful judicial reception.
The Section of Intellectual Property Law has an enviable record of success when it moves to file an ABA amicus brief, in both obtaining approval by the House of Delegates of the underpinning policy2 and by the ABA Standing Committee and the Board of Governors of the brief itself. In the past 12 years, 19 ABA briefs promoted and developed by the Section have been filed.3 On no occasion has the Section failed to succeed in obtaining HOD approval of necessary policy, or ABA approval of the brief to be filed.
The Section’s success in its amicus activities is due in no small part to the skill, commitment, and tenacity of its three delegates to the ABA House of Delegates. Beginning as soon as a case with significant IP issues has been identified as a likely target of an ABA amicus brief and the Section Council has adopted policy to support the brief, the three ABA-IPL delegates develop a strategic plan for successfully moving the policy through the House of Delegates. The first step in this process is the identification of other Sections of the ABA that are likely to be interested in the legal issues involved and to take part in the HOD deliberations when the Section’s proposal is considered. In the House of Delegates, as in any democratic legislative body, the broader the support within the members of the body, the greater the chances a measure will pass. Special effort is therefore directed to obtaining formal co-sponsorship of other ABA entities, particularly other Sections with subject matter interests that intersect with those of ABA-IPL.
Avoidance of formal opposition is equally important. The ABA House of Delegates very much favors the development of consensus positions, and there is strong institutional pressure for a sponsoring Section to work with potential opponents. It is not expected that all potential opponents will be turned into co-sponsors, but failure to head off formal opposition is a sign that a proposal may be in trouble, and often leads to a decision of the sponsoring entity to withdraw the proposal before presentation to the HOD. The Section addresses within its own body—and advances forward within the ABA—checks and balances that ensure that a strong voice is heard when the ABA speaks as a whole.
1. ABA policy is that a brief will rarely be filed other than in the court of last resort, the U.S. Supreme Court. However, the policy does recognize that special considerations may justify filing in another appellate court that may be a court of last resort, such as the Federal Circuit in patent appeals.
2. On occasions, ABA policy already exists that supports filing an amicus brief in a case in question. However, in the great majority of cases, new policy is required. Even when applicable policy already exists, new policy is frequently needed to focus more sharply on the precise questions presented in the appeal, or to address additional issues not covered in existing ABA policy.
3. A total of about 110 ABA amicus briefs have been filed during this 12-year period, and thus the ABA-IPL Section’s share is a respectable 17 percent of all ABA briefs. Thirteen of the ABA-IPL sponsored briefs have been filed in the U.S. Supreme Court. All but two of these were merits briefs; those two were in support of granting a petition for certiorari. Six merits briefs have been filed in the Federal Circuit.