Wi-Lan v. LG

A Non-Precedential, Precedential Opinion that “takes a guess” on sister circuit

Wi-Lan, Inc. v. LG Electronics, Inc., __ F.3d __ (Fed. Cir. 2012)(Clevenger, J.), decided last Friday, continues to generate interest. Why should a case be nominated as “precedential” when it is “a guess” as to how a sister circuit would interpret that sister circuit’s law?

The real precedent for the future interpretation of a sister circuit’s law comes from the opinions of that sister circuit; even if the Federal Circuit’s opinion is a correct estimation as to how the sister circuit would rule (guess or otherwise), that estimation is immediately obsolete when there is a subsequent decision by the sister circuit on all fours or otherwise upsets the rationale for the Federal Circuit’s prediction of sister circuit law.

That the result in this case is “a guess” is explained in the opinion dubitante, Wi-Lan v. LG, __ F.3d at __ (Reyna, J., dubitante).

From the Opinion Dubitante: “[N]o gates [leading] to secure blue water.” “The majority embarks on a winding course as it explores Ninth and other regional circuit case law, and evidentiary rules. At the start of its journey, the majority recognizes, ‘The parties do agree that the Ninth Circuit has not spoken squarely on this issue..’

“Still, the majority discerns a trend in the law and on that basis takes a guess that the Ninth Circuit, if its hand were at the helm, would [decide as the decision reached in this case].

“I examine the trend and find in it no gates that lead to secure blue water. Indeed, I find that even a route that lies opposite the route charted by the majority is as good a route as any.

“Thus, while instinct tells me the majority could be correct, I am concerned that our heading is not based on an accurate bearing. As I cannot prove or disprove our result, I go along with the majority-but with doubt.”

Wi-Lan v. LG,__ F.3d at __ (Reyna, J., dubitante)(emphasis added; footnote and citation omitted).

About Harold Wegner (756 Articles)



Foley & Lardner LLP


Harold C. Wegner is a partner in the international law firm of Foley & Lardner LLP, where he is actively engaged in cutting edge domestic and international patent issues. Domestically, Prof. Wegner focuses upon appellate patent issues as well as reexamination and other complex matters at the U.S. Patent and Trademark Office. Globally, Prof. Wegner crafts strategies for multinational and particularly Chinese and Japanese patent enforcement and management.

Prof. Wegner is the former director of the Intellectual Property Law Program at the George Washington University Law School, where he had been a professor of law; he continues his affiliation with George Washington as member of the Dean’s Advisory Board. He has been a visiting professor at Tokyo University and spent several years as a Mitarbeiter at the Max Planck Institute for Intellectual Property Law in Munich followed by service as a Kenshuin at the Kyoto University Law Faculty.

Prof. Wegner holds degrees from Northwestern University (B.A.) and the Georgetown University Law Center (J.D.). He started his career as a patent examiner. In 1980 he founded his own law firm; in 1994 he merged his practice into the Foley firm.