Solicitor General Office Admits It Misled Court in Patent Case

The US Solicitor General apologized for misleading the justices in a 2017 patent case, saying the US Patent and Trademark Office didn’t alert the federal government’s top Supreme Court lawyer about the mistake.

The admission came in a long-running patent dispute between athletic apparel giants Nike and Adidas but the misrepresentation occurred years earlier in an argument over the validity of so-called inter partes review, which allows the USPTO to reconsider already issued patents.

Had the solicitor general been aware of the circumstances it would have clarified the issue for the justices, the government said in a brief May 23. “We regret any misimpression inadvertently created by the answer that was given.”

This isn’t the first time the solicitor general has corrected statements made to the justices, both in briefs and during arguments.

Whistleblower Dispute

The government’s mea culpa in the Nike v. Adidas comes out of a separate whistleblower dispute involving an administrative patent judge.

Judge Michael Fitzpatrick raised concerns about attempts to expand the number of judges in the Nike case after the original panel had already come to a decision. Notably, he complained that the Solicitor General had incorrectly told the justice in yet another IP dispute argued in 2017, Oil States Energy Services v. Greene’s Energy Group, that expansion didn’t occur after the so-called institution stage—that is, abefore the panel considered the merits.

In ruling in Fitzpatrick’s favor in May, the Merit Systems Protection Board—which handles disputes involving federal employees—noted that management didn’t agree with the judge’s categorization because the decision in the Nike case was not yet final. The PTO did not alert the solicitor general’s office to the potential mistake.

In it’s brief, the solicitor general’s office suggested they agreed with Fitzpatrick.

“If this Office had been aware of the expansion of the panel in this case, counsel for the government would have made clear that the relevant answer during the Oil States argument referred to completed cases and would have avoided any suggestion that expansions were limited to the institution stage,” it said.

Confession of Error

How long it takes the government to correct such mistakes varies greatly.

Days after arguments over the validity of President Donald Trump’s controversial travel ban, then-Solicitor General Noel Francisco notified the court that he’d inadvertently given the justices the wrong date of a statement intended to show that the ban wasn’t motivated by religious animus.

The “President has made crystal clear on September 25th that he had no intention of imposing the Muslim ban,” Francisco said during the April 25, 2018 arguments in Trump v. Hawaii. “I intended to refer to the President’s statement on January 25, 2017,” Francisco told the justices in a May 1 letter.

Critics of the ban argued the statement was still misleading because it fell far short of being “crystal clear” that the ban was intended to target Muslims. Nevertheless, the justices sided with the Trump administration’s narrowed version of the ban, saying it had “a legitimate grounding in national security concerns, quite apart from any religious hostility.”

It took more than a decade for the government to correct the record in an immigration case finding that mandatory detention for certain immigrants awaiting deportation didn’t violate due process.

The court’s 2003 decision in Demore v. Kim was based in part on the fact that detentions were typically brief. Pointing to statistics compiled by the Executive Office for Immigration Review, the court said that in the longest cases—those in which there is an appeal—the detention lasts “about five months.”

In 2016, then-acting-Solicitor General Ian Heath Gershengorn notified the justices that “EOIR made several significant errors in calculating those figures.” Detention in cases involving an appeal took closer to a year.

“The government recognizes its special obligation to provide this Court with reliable and accurate information at all times,” Gershengorn said in his 2016 letter. “The government sought to carry out that obligation in good faith in this case, and we greatly regret the necessity for this letter.”

Longer still, it took nearly five decades for then-acting Solicitor General Neal Katyal to “confess” that the Justice Department knew of information that undermined the potential security threat behind the internment of more than 100,000 Japanese-Americans during World War II. “But the Solicitor General did not inform the Court of the report, despite warnings from Department of Justice attorneys that failing to alert the Court ‘might approximate the suppression of evidence,’” Katyal wrote in 2011.

“Today, our Office takes this history as an important reminder that the ‘special credence’ the Solicitor General enjoys before the Supreme Court requires great responsibility and a duty of absolute candor in our representations to the Court,” he said.

—With assistance from Riddhi Setty