Dubose loses at CAFC

From Western Plastics v. Dubose we agree with the district court that DuBose did not set forth evidence to meet the high standard of establishing that the patent applicant intended to deceive the Patent Office, as required to sustain an inequitable conduct defense. Relevant to recusal

Circuit Judge Newman and Circuit Judge Stoll are recused, taking no position in this decision. Chief Judge Moore and Circuit Judge Chen replaced Circuit Judge Newman and Circuit Judge Stoll on the panel following the court’s initial December 17, 2021 judgment. DuBose raised a potential conflict of interest in its petition for rehearing. That potential conflict was identified to the court more than a month after argument and, in fact, after a judgment was entered against DuBose. Counsel had all of the necessary facts at the time of argument and should have brought the potential conflict to the court’s attention at that time. Delays under these circumstances are the “most egregious.” Pendergraft v. Network of Neighbors, Inc., 745 F. App’x 517, 520 (5th Cir. 2018). As other circuit courts have described, a litigant “should not be permitted to sandbag” the court while “hoping for a satisfactory resolution, but retaining a ground of attack on the judge’s ruling.” El Fenix de Puerto Rico v. The M/Y Johanny, 36 F.3d 136, 141 n.6 (1st Cir. 1994) (quoting James W. Moore & Jo D. Lucas, Moore’s Federal Practice ¶ 63.07 (2d ed. 1993)); see also, e.g., Burke v. Regalado, 935 F.3d 960, 1053 (10th Cir. 2019) (“Most circuits require that [a motion for recusal] be brought ‘at the earliest moment after knowledge of the facts demonstrating the basis for such disqualification.’ . . . This requirement guards against a party’s withholding ‘a recusal application as a fall-back position in the event of adverse rulings on pending matters.’”) (first quoting Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1410 (5th Cir. 1994); and then In re IBM Corp., 45 F.3d 641, 643 (2d Cir. 1995)). We expect parties and counsel who appear before this court to have the utmost candor including in issues of potential conflict.





Elsewhere

Some background is helpful to put the relevant events in perspective. In response to the COVID-19 pandemic, this court issued administrative orders in 2020 that prohibited public access to the National Courts Building and suspended all in-person oral arguments. (...) When this court resumed allowing counsel in the courthouse for argument in September 2021, we kept in place the restrictions on public access to the National Courts Building, see Administrative Order 2021-10, and put in place strict protocols governing appearances at oral argument in order to protect the health and safety of the court and its staff, the bar, and the public. (...)

Under the in-person argument protocols in effect during the events here, “[o]nly arguing counsel and no more than one attendee whose presence is necessary to assist or supervise arguing counsel (e.g., a client, lawyer sitting second chair, or paralegal)” were “permitted access to the National Courts Building and the courtroom.” The Revised Protocols also required all persons entering the building to complete Form 33C declaring under penalty of perjury that the individual was “scheduled to appear in person for argument at the National Courts Building in Washington, D.C. either as (a) arguing counsel or (b) to assist or to supervise arguing counsel” and that the individual was either fully vaccinated for COVID-19 or received a negative test result for COVID-19 that was administered within 48 hours of the argument scheduled in the argued matter. To ensure compliance with the Revised Protocols, the court required that arguing counsel also complete Form 33A, certifying that “I understand and agree that, as an officer of the court, I am personally responsible for ensuring all individuals attending argument with me have also read and will comply with the Revised Protocols,” and that “I further understand and agree that it is my responsibility to ensure that all individuals attending argument with me remain in compliance with the Revised Protocols while in the National Courts Building.” In completing that form, arguing counsel also certified that he or she understood that “failure to abide by any of” the provisions certified in the form “may subject [him or her] to discipline.” (...) Federal Rule of Appellate Procedure 46(c) provides that “[a] court of appeals may discipline an attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with any court rule.” We have also adopted Federal Circuit Attorney Discipline Rules, which make clear that “[a]n act or omission by an attorney that violates the Federal Rules of Appellate Procedure, the Federal Circuit Rules, these rules, or orders or instructions of the court . . . may be the basis for discipline.” Fed. Cir. Att’y Disc. R. 2(d). Although the Revised Protocols are not incorporated by reference or otherwise in any rule of this court, they are instructions of this court and help define conduct becoming a member of this court’s bar. Accordingly, we are authorized to impose sanctions on an attorney whose actions or omissions violate the Revised Protocols. Turning to the disciplinary matters at hand, we conclude that the fact that the arguing partner was accompanied by the special counsel and the non-arguing partner clearly violated the Revised Protocols. The Revised Protocols were perfectly clear that “[o]nly arguing counsel and no more than one attendee whose presence is necessary to assist or supervise arguing counsel” were “permitted access to the National Courts Building and the courtroom.” The language of Form 33C, which Respondents readily understood was required when in the building, further reinforced these access restrictions. That form required a declaration under penalty of perjury that the individual was “scheduled to appear in person for argument at the National Courts Building in Washington, D.C. either as (a) arguing counsel or (b) to assist or to supervise arguing counsel.” This language, together with the language of the Revised Protocols just quoted, put all here on clear notice that the non-arguing partner and special counsel could not be in the building as spectators or additional attendees there to assist or supervise arguing counsel. If there was some ambiguity or reasonable basis for confusion, we would be inclined to resolve that in Respondents’ favor. See United States v. Brown, 72 F.3d 25, 29 (5th Cir. 1995); In re Ruffalo, 390 U.S. 544, 556 (1968) (White, J., concurring). However, there was no ambiguity in the protocols.2