NOTE: This disposition is nonprecedential.

@Hniteh gmth QEuurt of appeals:
for the erheral QEirtuI't

LEADER TECHNOLOGIES, INC.
Plaintiff-Appellant,

V.

FACEBOOK, INC.
Defendant-Appellee,

2011-1366

Appeal from the United States District Court for the
District of Delaware in Case No. 08-CV-0862, Judge
Leonard P. Stark.

ON MOTION

Before LOURIE, MOORE, and WALLACH, Circuit Judges.

PER CURIAM.
0 R D E R

The court has received a renewed motion for leave to
ﬁle an amicus curiae brief from Lakshmi Arunachalam,
Ph.D. The underlying appeal for which Dr. Arunachalam
wishes to serve as amicus curiae was Leader T echs., Inc.
v. Facebook, Inc. A jury in that case found that Facebook
proved that Leader’s US. Patent 7,139,761 was invalid
due to the on-sale bar of 35 U.S.C. § 102(b). The district
court judge denied a motion for judgment as a matter of

 

 

LEADER TECH V. FACEBOOK 2

law. This court unanimously affirmed the district court’s
judgment, with opinion. Leader Techs., Inc. 0. Facebook,
Inc., 678 F.3d 1300 (Fed. Cir. 2012).

An earlier such amicus curiae brief was denied entry
by the court as moot because the court had already denied
Leader’s petition for rehearing. It also exceeded the word
count for amicus briefs set forth in Federal Circuit Rule
35(g) and was untimely, having been ﬁled over two weeks
after the prescribed time for ﬁling an amicus brief.

While the court normally does not provide a written
opinion when denying admission of an amicus brief in
violation of several rules of the court, the allegation of
ethical impropriety in the latest brief justifies a response.

It should be emphasized that the Leader Tech. appeal
to this court is over. A decision has been rendered and a
petition for rehearing en banc has been denied. The same
defects in the prior amicus brief denied entry persist.
Moreover, an additional defect has been noticed in that
Federal Rule of Appellate Procedure 29(c)(5) requires that
an amicus brief contain a certification that the purported
amicus has no ﬁnancial ties to any party in the case. No
such certification appears in any brief Dr. Arunachalam
ﬁled with this court. The court is entitled to adherence to
its rules, and any purported amicus is charged with
learning the court’s rules and conforming to them if she
has any claim to serving as a friend of the court in resolv-
ing the cases before it, including timely submission. That
has not occurred here.

In sum, it would be virtually unprecedented for a
court to reverse a decision after it had been rendered, and
a petition for rehearing denied, based on an amicus curiae
brief ﬁled out of time and otherwise not in conformity
with court rules.

The latest brief argues that the judges of this court
had a conﬂict of interest in the Leader Tech. case because

 

3 LEADER TECH V. FACEBOOK

of ownership of Facebook stock. That is incorrect. No
judge on this three-judge panel owns or has owned Face-
book stock. The brief argues that mutual funds owned by
judges on the panel have owned or do own Facebook stock.
But that is not a conﬂict of interest.

Canon 3 C (3)(c)(i) of the Code of Conduct for United
States Judges expressly provides that “ownership in a
mutual or common investment fund that holds securities
is not a ‘financial interest’ in such securities unless the
judge participates in the management of the fund.” Such
a provision is intended to provide a safe harbor for judges
to maintain investments. Without such a provision,
judges would be constantly recusing themselves from
cases brought before them, hampering the administration
of justice. It should be noted that with almost all publicly
available mutual funds judges have no say in the man-
agement of the funds and no knowledge of the securities
held by the fund, until reports are issued by the fund
months after its reporting period has closed.

Allusions to asserted ethical improprieties in connec-
tion with the Leader Tech. case are unfounded. Asserting
that the court’s decision was “conveniently” issued within
hours of Facebook’s IPO Road Show, and that the denial
of the rehearing petition was “suspiciously timed” within
hours of Leader’s chairman’s appearance on a Fox News
interview, the brief refers to coincidences that were not
known to the judges of the court. The court issues deci-
sions as promptly as possible, often based on express
deadlines set out in our internal procedures, without any
consideration of external events. Whatever activities
occurred outside this court involving parties to this or any
other case have no inﬂuence on the timing of the court’s
actions.

Finally, arguments in the brief that particular judges
and officers of the court have gone to law school with or
spoken together at continuing legal education conferences

LEADER TECH V. FACEBOOK 4

with lawyers or witnesses involved in this case and hence
that such contacts raise conﬂicts are similarly unsound.
Judges come from the legal community and therefore
know many lawyers well. They do not recuse themselves
from cases just because they are acquainted with lawyers
who come before them. Moreover, judges are encouraged
to participate in extrajudicial activities in furtherance of
legal education. “A judge may speak, write, lecture,
teach, and participate in other activities concerning the
law, the legal system, and the administration of justice.”
Canon 4 A (1) of the Code of Conduct for United States
Judges. In doing so, judges necessarily encounter lawyers
and teachers. In organizing a court’s own judicial confer-
ence, every circuit invites lawyers to participate in their
non-judicial activities. These activities do not themselves
constitute improper contacts that raise ethical violations.

For reasons stated above, the motion to have Dr.
Arunachalam’s brief entered into the court records is once
again DENIED.

IT Is ORDERED THAT:
(1) The motion is denied.

FOR THE COURT

August 10, 2012 /s/ Jan Horbaly
Date Jan Horbaly
Clerk

cc: Paul J. Andre, Esq.
Thomas G. Hungar, Esq.
Lakshmi Arunachalam, Ph.D.

FILED
us. COURT OF APPEALS FOR

THE FEDERAL cmcurr
AUG 1 0 2012

JAN HOHBALY
CLERK

