Return Mail, Inc. v. Postal Service (17-1594)

argument 17-1594

Return Mail, Inc. v. Postal Service

Supreme Court of the United States 1h 0m 6 speakers 8 chapters transcribed 4 days ago official recording ↗

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What is the legal definition of “person” and does it include the government?

John G. Roberts 0:00

Your argument this morning in Case 17-1594, Return Mail, Inc. v. the United States Postal Service. Ms. Brinkman.

Ms. Brinkman 0:08

Mr. Chief Justice, I may please the Court. The term person in this case does not extend to include the government for three reasons. First, the other branches rely on the Dictionary Act definition of person and this Court's presumptive definition of person to not include the government. That is a stable framework that's critical to that communication between the branches. Second, the estoppel that was enacted by Congress specifically references the jurisdiction of the District Court and the International Trade Commission, not the Court of Federal Claims, where the government's patent litigation takes place, reinforcing the definition of person not to include the government. That was a linchpin to the structure that Congress set up.

Ms. Brinkman 0:57

It created a new adversarial administrative process, and part of that balance was to ensure that patent holders that were subject to that new adversarial process could then be protected from having to go back and relitigate in court, in district court or the International Trade Commission.

Unknown 1:14

Your position is that the estoppel provision is the lynchpin you just said, but your position would be the same even if there were no estoppel

Ms. Brinkman 1:25

provision. Is that not so? That is correct, Your Honor. It's just the linchpin to the balance. It's a reinforcement. The Dictionary Act definition and the presumptive definition would do the work here because that is the reliance by Congress and the give and take before the branches so Congress knows how the word person is going to be interpreted when they use it. So the linchpin part of the estoppel, though, reinforces that because it only refers specifically to the district court and the International Trade Commission. And the third point I wanted to make, Your Honor, was that this does not exclude the government from going after bad patents. To the contrary, the government is different, has the most powerful tools to do that.

Ms. Brinkman 2:06

First, the Patent and Trademark Office Director has the power to sua sponte, initiate ex parte reexaminations, and can go after patents after they've been issued.

Elena Kagan 2:18

Would the government or the Postal Service be able to initiate ex parte reexaminations? Re-examination because under your theory, person doesn't include the Postal Service. How do you punish them if they send a letter saying, there was this prior art, do you want to look at this?

Ms. Brinkman 2:38

The statute does not preclude a communication, Section 303, that allows the sua sponte re-examination by the government through the PTO. It does not preclude someone bringing a matter to the attention of the

Elena Kagan 2:52

director. But someone is not? according to you, a person is not the government. So where does the government get its permission? In the form of the government, in the form of the Postal Service, where does it get the permission to initiate that process?

Ms. Brinkman 3:07

Well, there are two different ways that an ex parte reexamination can be initiated by a person or sua sponte by the director of the PTO. And the way Congress set up the structure for the government to go after bad patents was through the sua sponte director. as far as, that's 303. 301, where a person can bring it, request it. The same starting point would be here under the presumptive definitions that it likely would be construed not to include the government. There's a different history to that provision than the three AIA provisions, the American Events Act that was enacted in 2011. The re-examination provision was enacted back in 1980. And it is different because it's not an adversarial process at all.

Ms. Brinkman 3:58

All that happens is that a person can ask that it be initiated. But then it's very different. It's much like the original issuance of a patent. It's a back and forth with an examiner.

Samuel A. Alito 4:09

Do you think it would be proper for the Postal Service or some other federal agency to contact the PTO ex parte and say, hey, why don't you sua sponte look into the validity of this patent. Is that what you're saying, that would be proper?