IN THE SUPREME COURT OF THE UNITED STATES
`
`19A427
`
`APPLE INC.,
`
`v.
`
`VIRNETX INC., LEIDOS, INC.,
`
`Petitioner,
`
`Respondents.
`
`OPPOSITION TO AN APPLICATION FOR AN EXTENSION OF TIME
`IN WHICH TO FILE A PETITION FOR A WRIT OF CERTIORARI
`TO THE U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT
`
`To the Honorable John G. Roberts, Jr., Chief Justice of the United States
`
`and Circuit Justice for the United States Court of Appeals for the Federal Circuit:
`
`Applicant Apple Inc. ("Apple") seeks a 60-day extension of the time, to and
`
`including December 30, 2019, to file a certiorari petition seeking review of an
`
`unpublished summary affirmance issued by the court of appeals nine-and-a-half
`
`months ago on January 15, 2019. Respondents VirnetX Inc. ("VirnetX") and
`
`Leidos, Inc. ("Leidos") respectfully request that the Court limit any extension to 35
`
`days, to and including December 6, 2019.
`
`1.
`
`This case is nearly ten years old. It has been plagued by efforts to
`
`delay its resolution-efforts sufficiently problematic that the district court, citing
`
`
`
`19A427
`
`APPLE INC.,
`
`v.
`
`VIRNETX INC., LEIDOS, INC.,
`
`Petitioner,
`
`Respondents.
`
`OPPOSITION TO AN APPLICATION FOR AN EXTENSION OF TIME
`IN WHICH TO FILE A PETITION FOR A WRIT OF CERTIORARI
`TO THE U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT
`
`To the Honorable John G. Roberts, Jr., Chief Justice of the United States
`
`and Circuit Justice for the United States Court of Appeals for the Federal Circuit:
`
`Applicant Apple Inc. ("Apple") seeks a 60-day extension of the time, to and
`
`including December 30, 2019, to file a certiorari petition seeking review of an
`
`unpublished summary affirmance issued by the court of appeals nine-and-a-half
`
`months ago on January 15, 2019. Respondents VirnetX Inc. ("VirnetX") and
`
`Leidos, Inc. ("Leidos") respectfully request that the Court limit any extension to 35
`
`days, to and including December 6, 2019.
`
`1.
`
`This case is nearly ten years old. It has been plagued by efforts to
`
`delay its resolution-efforts sufficiently problematic that the district court, citing
`
`
`
`2
`
`Apple's "gamesmanship," found this case "exceptional"; enhanced damages; and
`
`awarded attorney's fees. C.A. App. 64-65; see C.A. App. 57. As the district court
`
`observed, Apple "repeatedly sought to * * * stay the litigation" in favor of other
`
`"proceedings * * * even after receiving adverse rulings" from the district court and
`
`"even after few, if any, relevant facts had changed since its last request." C.A.
`
`App. 57. Apple also delayed proceedings through conflicts "it created" by hiring
`
`VirnetX's former appellate counsel and jury consultant. C.A. App. 64-65.
`
`Even in the court of appeals, the pattern continued. The parties agreed that
`
`Apple would seek only one 60-day extension to file its opening brief (to which
`
`VirnetX would not object), and would seek no further extensions. See C.A. Dkt. 34,
`
`Ex. A. After seeking and obtaining the extension, Apple moved to stay the appeal
`
`so as to delay the filing of its opening brief indefinitely. See C.A. Dkt. 32; see also
`
`Wilton Indils., Inc. v. United States, 310 F. App'x 366, 367 (Fed. Cir. 2008) (a
`
`"motion for a stay is in essence another motion for an extension of time"). On the
`
`merits, the court of appeals eventually issued the decision below, summarily
`
`affirming without an opinion, just one week after hearing oral arguments. Apple
`
`then sought delay again: It used its rehearing petition as a sixth stay request,
`
`asking for the appeal to be stayed pending resolution of unspecified appeals from
`
`Patent Office proceedings. C.A. Dkt. 82, at 16-17; see also C.A. Dkt. 34, at 1
`
`(collecting earlier requests). After that request was denied, Apple unsuccessfully
`
`moved to vacate the denial of rehearing, for leave to file a second rehearing
`
`
`
`3
`
`petition, and to stay the mandate indefinitely pending resolution of unspecified
`
`Patent Office proceedings and appeals therefrom. See C.A. Dkt. 105.
`
`Apple seeks delay because-as it told the court of appeals-it hopes that
`
`proceedings in the Patent Office and any ensuing appeals will eventually result in
`
`invalidation of the asserted patent claims. Apple thus tells this Court that the
`
`"Patent Office has held all of the patent claims asserted against Apple to be
`
`unpatentable." Apple Application 2. Apple does not mention that the Federal
`
`Circuit has in three separate cases overturned Patent Office decisions purporting
`
`to invalidate patent claims undergirding the judgments in this case. See VirnetX
`
`Inc. v. Apple Inc., 931 F.3d 1363, 1380 (Fed. Cir. 2019); VirnetX Inc. v. Mangrove
`
`Partners Master Fund, Ltd., - F. App'x -, 2019 WL 2912776, at *1 (Fed. Cir.
`
`July 8, 2019); VirnetX Inc. v. Cisco Sys., Inc., 776 F. App'x 698, 700 (Fed. Cir.
`
`2019). Apple overlooks that the Federal Circuit long ago upheld the validity of the
`
`patents at issue in this case. See VirnetX Inc. v. Cisco Sys., Inc., 767 F.3d 1308,
`
`1323-1324 (Fed. Cir. 2014) (attached as Apple Application Ex. 1). Nor does Apple
`
`suggest that it will ask this Court to review the Federal Circuit's validity ruling.
`
`As a result, the entire judgment in this case remains supported by patent claims
`
`upheld by the Federal Circuit on appeal. C.A. Dkt. 101, at 19-21 & n.1; see C.A.
`
`Dkt. 92, at 4-10. Having had a decade to challenge patent validity, Apple is not
`
`entitled to further delay. In view of Apple's pattern of delay, and the outsized
`
`
`
`4
`
`effect of a longer extension, respondents respectfully request that Apple's
`
`extension of time be limited to 35 days. 1
`
`2.
`
`The absence of "good cause" for a 60-day extension is underscored by
`
`Apple's failure to identify any issue that plausibly warrants this Court's review.
`
`The sole issue Apple identifies concerns "the Federal Circuit's interpretation of
`
`this Court's requirement, set forth in Garretson v. Clark, 111 U.S. 120 (1884), that
`
`patent damages must always be apportioned to reflect the value of the patented
`
`invention." Apple Application 3. Apple overlooks that, when the Federal Circuit
`
`addressed apportionment in this case five years ago, it "agree[ d] with Apple"
`
`concerning Garretson's apportionment requirement. VirnetX Inc. v. Cisco Sys.,
`
`Inc., 767 F.3d 1308, 1327 (Fed. Cir. 2014); see also id. at 1328-1329, 1331-1334
`
`("agree[ing]" with additional Apple arguments). 2 Apple does not explain how it
`
`may seek review of an apportionment issue on which it prevailed.
`
`The Federal Circuit's most recent decision-the only other one from which
`
`Apple may seek review-says nothing about apportionment. The Federal Circuit
`
`1 January 8, 2020, is the last distribution date for paid petitions to be considered at
`a conference in January. The next conference is not until February 21. An
`extension much beyond December 6, 2019, would leave respondents with little time
`to prepare a brief in opposition and still have the petition considered at a January
`conference.
`2 The Federal Circuit disagreed with Apple's damages arguments only on a fact(cid:173)
`bound issue unrelated to apportionment-whether the district court had "abused
`its discretion" in determining that six prior licenses were sufficiently "comparable"
`to be admitted into evidence. 767 F .3d at 1330-1331. Apple did not seek further
`review of that decision, either in the court of appeals or this Court.
`
`
`
`5
`
`affirmed without an opinion because the issues were so straightforward that "an
`
`opinion" addressing Apple's challenges "would have no precedential value." Fed.
`
`Cir. R. 36; see Apple Application Ex. 2 (citing Federal Circuit Rule 36). Despite
`
`the Federal Circuit's admonition against seeking rehearing en bane of unpublished
`
`decisions, Practice Note to Fed. Cir. R. 35, Apple sought rehearing en bane. The
`
`full court denied Apple's request, with no judge requesting a vote on whether to
`
`grant rehearing en bane. Compare Apple Application Ex. 3, with Fed. Cir. IOP
`
`14.l(f) (order denying rehearing must state if vote is requested). Apple does not
`
`explain how the unpublished decision below presents any issue warranting this
`
`Court's review. See Sup. Ct. R. 10. Given that the Federal Circuit's earlier
`
`decision in this case "agree[d] with" Apple's apportionment arguments, and that
`
`the Federal Circuit's most recent decision affirmed without an opinion, it is hard to
`
`see how Apple's petition could present any apportionment issue with any
`
`significance beyond this case. That further weighs against Apple's request for a
`
`60-day extension in this already much-delayed case.
`
`3.
`
`Rehearing was denied on August 1, 2019. Neither of the two counsel
`
`listed on Apple's application mentions other commitments for two-thirds of the
`
`standard 90-day period for seeking this Court's review. See Apple Application 2-3.3
`
`The underlying decision, moreover, was issued more than nine months ago. Apple
`
`Application Ex. 2. That decision was a summary affirmance. Because the issues
`
`3 Mr. Davies mentions no commitments in October either. See Apple Application 2.
`
`
`
`6
`
`were so straightforward that "an opinion" addressing Apple's challenges "would
`
`have no precedential value," Fed. Cir. R. 36, Apple had little reason to await the
`
`inevitable denial of rehearing before considering any effort to seek this Court's
`
`review. Apple does not require an extension, to nearly a year after the Federal
`
`Circuit issued its summary affirmance, to seek review. Under the circumstances,
`
`respondents respectfully submit that a 35-day extension would be amply sufficient.
`
`Donald Urrabazo
`URRABAZO LAW, P.C.
`2029 Century Park East
`Suite 1400
`Los Angeles, CA 90067
`(310) 388-9099
`durrabazo@ulawpc.com
`
`The Watergate, Suite 660
`600 New Hampshire Ave., N.W.
`Washington, D.C. 20037
`(202) 556-2000
`jlamken@mololamken.com
`
`Counsel for Respondent Leidos, Inc.
`
`Counsel for Respondent VirnetX Inc.
`
`October 18, 2019
`
`
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