An empirical study of certain settlement-related motions for vacatur in patent cases

Indiana Law Journal

Volumn 88, Issue 3, 2013, Pages 919-979

  Bock, Jeremy W ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 84879993046     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (201)

1. Vacatur is "[t]he act of annulling or setting aside." BLACK'S LAW DICTIONARY 1688 (9th ed. 2009).
2. See, e.g., Jill E. Fisch, Rewriting History: The Propriety of Eradicating Prior Decisional Law Through Settlement and Vacatur, 76 CORNELL L. REV. 589, 593 (1991) ("[T]he effect of vacatur on the litigation process extends beyond judicial waste; it perverts the judicial decision into a negotiable commodity, engendering distortion of, and disrespect for, the role of the courts.");
3. see also Rex R. Perschbacher & Debra Lyn Bassett, The End of Law, 84 B. U. L. REV. 1, 54-55 (2004) ("[C]ourts have, in essence, 'rediscovered' the vacatur procedure... and have created something very different and potentially dangerous to law.");
4. Daniel Purcell, Comment, The Public Right to Precedent: A Theory and Rejection of Vacatur, 85 CALIF. L. REV. 867, 916 (1997) ("[A] litigant has no right to be free of a nondefective adverse judgment."). (Pubitemid 127436815)
5. See Sarah Rudolph Cole, Managerial Litigants? The Overlooked Problem of Party Autonomy in Dispute Resolution, 51 HASTINGS L. J. 1199, 1227-28 (2000) ("According to Judge Winter of the Second Circuit, a decision not to vacate a judgment wastes both the litigants and the court's resources by requiring the continuation of litigation that could have been settled.... By contrast, Judge Easterbrook, analyzing the same problem, came to the opposite conclusion. ").
6. See, e.g., Stephen R. Barnett, Making Decisions Disappear: Depublication and Stipulated Reversal in the California Supreme Court, 26 LOY. L. A. L. REV. 1033, 1073 n. 221 (1993) (empirical study of stipulated reversals in California appellate courts concluding that stipulated reversal is not an important factor in promoting settlement).
7. See, e.g., Pauline T. Kim, Margo Schlanger, Christina L. Boyd & Andrew D. Martin, How Should We Study District Judge Decision-Making?, 29 WASH. U. J. L. & POL'Y 83, 87 (2009) ("[I]n the relatively scant empirical literature on district courts, little attention has been paid to how their institutional features shape judges' decision-making. Empirical studies of district courts have tended unreflectively to borrow models developed to study the appellate courts....");
8. Judith Resnik, Managerial Judges, 96 HARV. L. REV. 374, 418 (1982) [hereinafter Resnik, Managerial Judges] ("[Wjhat works for the courts of appeals cannot simply be transplanted into trial courts.").
9. See, e.g., U. S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U. S. 18, 28 (1994) ("[T]he judicial economies achieved by settlement at the district-court level are ordinarily much more extensive than those achieved by settlement on appeal.").
10. Stanford IP Litigation Clearinghouse, STAN. L. SCH., http://www.law. stanford.edu/program/centers/iplc.
11. The IPLC is presently operated by a private company, Lex Machina, Inc. in Palo Alto, California. (For more information on the company, see LEX MACHINA, https://lexmachina.com.) The dataset for the empirical study reported in this Article was compiled primarily through the IPLC.
12. Docket Navigator is provided by Hopkins Bruce Publishers Corp., in Abilene, Texas. See DOCKET NAVIGATOR, https://docketnavigator.com.
13. PACER, which is an acronym for Public Access to Court Electronic Records, is an electronic service provided by the federal judiciary that allows users to obtain case information from federal appellate, district, and bankruptcy courts. PACER, http://www.pacer.gov.
14. See Jay P. Kesan & Gwendolyn G. Ball, How Are Patent Cases Resolved? An Empirical Examination of the Adjudication and Settlement of Patent Disputes, 84 WASH. U. L. REV. 237, 259 (2006) (empirical study of patent cases filed in 1995, 1997, and 2000, finding that "approximately 80% of patent cases settle").
15. Vacatur "clears the path for future relitigation of the issues between the parties and eliminates a judgment." United States v. Munsingwear, Inc., 340 U. S. 36, 40 (1950);
16. see also Rumsfeld v. Freedom NY, Inc., 329 F.3d 1320, 1332 (Fed. Cir. 2003) ("[A] vacated judgment has no preclusive force either as a matter of collateral or direct estoppel or as a matter of the law of the case." (citation omitted) (internal quotation marks omitted)).
17. 9Collateral estoppel, also known as issue preclusion, may bar relitigation of an issue if: (1) the issue is identical to one decided in a prior action; (2) the issue was actually litigated in the prior action; (3) the resolution of the issue was essential to a final judgment in the prior action; and (4) the party defending against issue preclusion had a full and fair opportunity to litigate the issue in the prior action. Shell Petroleum, Inc. v. United States, 319 F.3d 1334, 1338 (Fed. Cir. 2003).
18. Collateral estoppel may be used to establish: (1) invalidity, see, e.g., Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U. S. 313 (1971) (holding that any subsequent defendant may reap benefit of prior invalidity decision under principles of collateral estoppel); (2) unenforceability
19. see, e.g., Pharmacia & Upjohn Co. v. Mylan Pharm., Inc., 170 F.3d 1373, 1379 (Fed. Cir. 1999) ("An unrelated accused infringer may likewise take advantage of an unenforceability decision under the collateral estoppel doctrine."); (3) noninfringement
20. see, e.g., Molinaro v. Fannon/Courier Corp., 745 F.2d 651, 655 (Fed. Cir. 1984) (affirming district court's grant of summary judgment of noninfringement based on collateral estoppel);
21. and (4) claim constructions, see, e.g., TM Patents, L. P. v. IBM Corp., 72 F. Supp. 2d 370, 375-79 (S. D. N. Y. 1999) (according collateral estoppel effect to a claim construction order).
22. The judiciary's preference for settlement is succinctly expressed in "the familiar axiom that a bad settlement is almost always better than a good trial." In re Warner Comm'ns Sec. Litig., 618 F. Supp. 735, 740 (S. D. N. Y. 1985);
23. see also Judith Resnik, Mediating Preferences: Litigant Preferences for Process and Judicial Preferences for Settlement, 2002 J. DISP. RESOL. 155, 159 ("[J]udges have put their institutional authority behind settlement as the mode of disposition to be preferred.").
24. See, e.g., David A. Hoffman, Alan J. Izenman & Jeffrey R. Lidicker, Docketology, District Courts, and Doctrine, 85 WASH. U. L. REV. 681, 705-06 (2007) ("[Scholars have been insufficiently attendant to the shaming sanctions that judges face if they fall too far behind on their docket. In essence, Congress (through the Administrative Office) publishes a list naming judges whose dockets are too full. Such dilatory judges face the gentle ribbing of their fellows at the judicial lunch table and the harsh glare of the media spotlight.").
25. Judge Richard Posner of the Seventh Circuit, who often sits by designation at the trial court level, summarizes this dynamic as follows: District judges often have heavy dockets; a single judge in an urban district will have several hundred cases pending before him. Most of these will be settled or abandoned without the judge's intervention. But enough will remain that require court action to induce the judge to attend to them lest his backlog become unmanageable. He cannot be cavalier in disposing of these cases, as then his reversal rate would rise to an embarrassing level. So backlog pressure keeps him working hard and reversal threat keeps him working carefully-though an alternative strategy is to push the parties to settle, since settlements reduce backlog without risk of reversal. RICHARD A. POSNER, How Judges Think 141 (2008).
26. See, e.g., Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U. S. 313, 343 (1971) ('"A patent by its very nature is affected with a public interest.... The far-reaching social and economic consequences of a patent, therefore, give the public a paramount interest in seeing that patent monopolies spring from backgrounds free from fraud or other inequitable conduct and that such monopolies are kept within their legitimate scope.'"
27. (quoting Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U. S. 806, 816 (1945))).
28. See, e.g., Lear, Inc. v. Adkins, 395 U. S. 653, 674 n. 19 (1969) (noting "the public's interest in the elimination of specious patents").
29. See, e.g., Cardinal Chem. Co. v. Morton Int'l, Inc., 508 U. S. 83, 100 (1993) ("[O]ur prior cases have identified a strong public interest in the finality of judgments in patent litigation. ").
30. In 2011, the median cost of patent litigation for cases having: (i) less than $1 million at risk was $650, 000; (ii) $1-$25 million at risk was $2.5 million; and (iii) more than $25 million at risk was $5 million. LAW PRACTICE MGMT. COMM., AM. INTELLECTUAL PROP. LAW ASSOC., REPORT OF THE ECONOMIC SURVEY 35 (2011).
31. See, e.g., Blonder-Tongue, 402 U. S. at 338 ("In each successive suit the patentee enjoys the statutory presumption of validity, and so may easily put the alleged infringer to his expensive proof. As a consequence, prospective defendants will often decide that paying royalties under a license or other settlement is preferable to the costly burden of challenging the patent."). Experienced patent jurists at the district court level, such as Leonard Davis of the Eastern District of Texas and T. S. Ellis, III, of the Eastern District of Virginia, have expressed similar concerns about the distortion of patent litigation by its sheer cost.
32. See, e.g., Memorandum Opinion and Order at 5
33. Raylon LLC v. Complus Data Innovations, No. 6:09-cv-00355-LED (E. D. Tex. Mar. 9, 2011), ECF No. 147 (Davis, J.) ("[T]his Court has some concerns about plaintiffs who file cases with extremely weak infringement positions in order to settle for less than the cost of defense.... Such a practice is an abuse of the judicial system and threatens the integrity of and respect for the courts.");
34. T. S. Ellis, III, Distortion of Patent Economics by Litigation Costs, in 5 CASRIP PUBLICATION SERIES: STREAMLINING INT'L INTELLECTUAL PROPERTY 22, 23(1999), available at http://www.law.washington. edu/casrip/symposium/Number5/ pub5atcl3.pdf ("[B]urgeoning litigation costs have distorted patent markets by significantly discouraging potential patent challenges, hence distorting competition to a degree beyond that justified by the intrinsic strength or merit of the patent.").
35. See, e.g., Kathleen M. O'Malley, Patti Saris & Ronald H. Whyte, A Panel Discussion: Claim Construction from the Perspective of the District Judge, 54 CASE W. RES. L. REV. 671, 682 (2004) ("Patent litigation is like the neurosurgery of litigation: it is hard scientifically and it is hard legally. Trial court judges kill themselves on a trial.... Every single issue is raised; every one is preserved." (statement of Judge Patti Saris of the District of Massachusetts)).
36. See generally 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 2863 (2d ed. 1995) (observing that when parties request vacatur in connection with settlement, "[t]he question involves a balancing of the desire to encourage voluntary settlements and reduce appeals with the public interest in preserving the judgment to enhance judicial economy by allowing it to be used for issue preclusion purposes and in avoiding the possibility that repeat litigants effectively may control the development of the law by erasing unfavorable judgments").
37. Cf Richard A. Posner, The Summary Jury Trial and Other Methods of Alternative Dispute Resolution: Some Cautionary Observations, 3 U. CHI. L. REV. 366, 393 (1986) ("[T]he federal courts have been an arena of massive experimentation in judicial administration.... Very few of these experiments have been conceived or evaluated in a scientific spirit and this may help explain why the federal courts remain in a state of crisis. Maybe a dose of social science is the thing, or one of the things, that the system needs.").
38. Patent assertion entities (PAEs) are firms whose business model focuses on purchasing and asserting patents. Colleen V. Chien, From Arms Race to Marketplace: The Complex Patent Ecosystem and Its Implications for the Patent System, 62 HASTINGS L. J. 297, 300 (2010) [hereinafter Chien, Arms Race] (defining PAEs);
39. see also FED. TRADE COMM'N, THE EVOLVING IP MARKETPLACE: ALIGNING PATENT NOTICE AND REMEDIES WITH COMPETITION 8 n. 5(2011), available at http://www.ftc.gov/os/2011/03/110307patentreport.pdf (using similar definition of PAEs).
40. Leahy-Smith America Invents Act, Pub. L. No. 112-29, § 19, 125 Stat. 284, 333 (2011)
41. (codified at 35 U. S. C. § 299).
42. "A 'final decision' generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U. S. 229, 233 (1945) (citation omitted).
43. FED. R. CIV. P. 60 (b) (6).
44. The grounds for relief from a final judgment under Fed. R. Civ. P. 60 (b) are: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under [FED. R. CIV. P.] 59 (b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.
45. FED. R. CIV. P. 60 (b). Of the six enumerated reasons, only the Rule 60 (bX6) "catch-all" could potentially accommodate a motion to vacate an otherwise proper ruling after the entry of final judgment. The other enumerated reasons in Rule 60 (b) (1) - (5) relate to situations where the judgment is in some way defective or no longer appropriate, and thus warrant vacatur for reasons other than simply to facilitate settlement.
46. See, e.g., Liljeberg v. Health Servs. Acquisition Corp., 486 U. S. 847, 863-64 (1988) (observing that Rule 60 (b) (6) "does not particularize the factors that justify relief, but we have previously noted that it provides courts with authority adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice, while also cautioning that it should only be applied in 'extraordinary circumstances'" (internal citations omitted) (quotation marks omitted));
47. see also Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 118 n. 2 (4th Cir. 2000) (observing that "the difference between Rule 60 (b) (6) and Rules 60 (b) (1) - (5) is that 'extraordinary circumstances' are required to bring the [Rule 60 (b) (6)] motion within the 'other reason' language of that Rule" (alteration in original) (internal quotations omitted)
48. (citing Liljeberg, 486 U. S. at 863 n. 11));
49. see also 12 JAMES WM. MOORE, MOORE'S FEDERAL PRACTICE: CIVIL § 60.48 (Daniel R. Coquillette, Gregory P. Joseph, Sol Schreiber, Georgene M. Vairo & Chilton Davis Varner eds., 3d ed. 2012);
50. FED. R. CIV. P. 54 (b) provides, in pertinent part: [A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.
51. FED. R. CIV. P. 54 (b).
52. An "interlocutory order" is "[a]n order that relates to some intermediate matter in the case; any order other than a final order." BLACK'S LAW DICTIONARY 1207 (9th ed. 2009).
53. See, e.g., Dana v. E. S. Originals, Inc., 342 F.3d 1320, 1323-25 (Fed. Cir. 2003) (applying Eleventh Circuit law in holding that partial summary judgment orders satisfied legal prerequisites for applying collateral estoppel). Whether a ruling is entitled to collateral estoppel effect is a procedural issue, such that a district court would apply the law of its regional circuit-rather than Federal Circuit law-in analyzing whether the doctrine is applicable in a given case.
54. See Bayer AG v. Biovail Corp., 279 F.3d 1340, 1345 (Fed. Cir. 2002) ("Because the application of collateral estoppel is not a matter within the exclusive jurisdiction of this court, this court applies the law of the circuit in which the district court sits...." (internal citation omitted)). Some circuits have a stricter view of the finality requirement for collateral estoppel than others.
55. Compare Golman v. Tesoro Drilling Corp., 700 F.2d 249, 253 (5th Cir. 1983) ("An order granting partial summary judgment is interlocutory; it has no res judicata or collateral estoppel effect.")
56. with Lummus Co. v. Commonwealth Oil Ref. Co., 297 F.2d 80, 89 (2d Cir. 1961) (Friendly, J.) ("'Finality'... may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again. ").
57. For this reason, Federal Circuit Judge Timothy Dyk has observed that the goal of uniformity in patent law may be better served by having the Federal Circuit apply its own rules on collateral estoppel. See, e.g., Vardon Golf Co. v. Karsten Mfg. Corp., 294 F.3d 1330, 1336 (Fed. Cir. 2002) (Dyk, J., concurring) ("There is simply no reason why an earlier patent judgment should have one consequence in the Third Circuit and another in the Seventh Circuit, for example. Such an approach encourages the very forum shopping that our regional circuit law approach was designed to prevent.").
58. Compare Louisville Bedding Co. v. Pillowtex Corp., 455 F.3d 1377, 1379 (Fed. Cir. 2006) ("A district court's denial of a motion under [Rule] 60 (b) (6) is not a procedural issue unique to patent law, and thus we will apply the law of the regional circuit court.... Moreover, the underlying reasons for Louisville's Rule 60 (b) (6) motion... do not uniquely implicate patent law." (citation omitted))
59. with Fiskars, Inc. v. Hunt Mfg. Co., 279 F.3d 1378, 1381 (Fed. Cir. 2002) ("[W]hen a district court's Rule 60 (b) ruling turns on substantive matters that pertain to patent law, we review the ruling under Federal Circuit law because 'we perceive a clear need for uniformity and certainty in the way the district courts treat [the] issue.'" (second alteration in original)
60. (quoting Broyhill Furniture Indus., Inc. v. Craftmaster Furniture Corp., 12 F.3d 1080, 1083 (Fed. Cir. 1993))).
61. 513 U. S. 18 (1994).
62. The Supreme Court and the courts of appeal derive their power to vacate judgments from 28 U. S. C. § 2106, which states: The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.
63. U. S. C. § 2106 (2006).
64. See, e.g., Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 117 (4th Cir. 2000) (observing that "the holding of Bancorp extends only to appellate court vacatur");
65. see also Dana v. E. S. Originals, Inc. 342 F.3d 1320, 1328 (Fed. Cir. 2003) (Dyk, J., concurring) ("[B]y its terms, Bancorp does not apply to district courts but rather only to the Supreme Court and to courts of appeals."
66. (citing Valero, 211 F.3d at 117-20)).
67. Bancorp, 513 U. S. at 29.
68. See Valero, 211 F.3d at 118-19 ("[T]he particular considerations adopted by the Court in Bancorp derived exclusively from the extraordinary and equitable nature of the relief of vacatur, rather than... from any power or ability unique to the appellate courts.").
69. See Ackermann v. United States, 340 U. S. 193, 200 (1950) (holding that petitioner was not entitled to relief under Rule 60 (b) (6) because of his "voluntary, deliberate, free, untrammeled choice... not to appeal").
70. See, e.g., Marseilles Hydro Power LLC v. Marseilles Land & Water Co., 481 F.3d 1002, 1003 (7th Cir. 2007) ("The Court in Bancorp said that the court of appeals can remand a case even in the absence of [exceptional] circumstances, which would make no sense if the district court could not vacate its judgment in that absence." (internal citation omitted));
71. Am. Games, Inc. v. Trade Prods., Inc., 142 F.3d 1164, 1169 (9th Cir. 1998) ("According to the post-[Bancorp] Ninth Circuit decisions, the district court below could have vacated its own judgment using [an] equitable balancing test even if [the parties] had mooted their case by settlement.").
72. *7 (D. Mass. Dec. 23, 2010) ("Although the court has the power to modify the orders at issue, there is little authority describing when, if ever, the court should exercise this power to grant vacatur of a non-final order in connection with settlement.").
73. Pre-Bancorp cases are not instructive because in that era, the Federal Circuit had an established practice of vacating the judgment under review whenever the parties settled on appeal. See, e.g., Laber v. Merit Sys. Prot. Bd., 982 F.2d 519, 520 (Fed. Cir. 1992) ("When parties settle while a case is on appeal, the proper course is not to dismiss. It is to vacate the trial tribunal's decision and to remand to the trial tribunal with instructions to dismiss."). This practice is disallowed under Bancorp and is no longer in use at the Federal Circuit.
74. See, e.g., Ohio Willow Wood Co. v. Thermo-Ply, Inc., 629 F.3d 1374 (Fed. Cir. 2011) (remanding case for limited purpose of allowing district court to consider parties' settlement-related motion for vacatur);
75. Ericsson, Inc. v. InterDigital Commc'ns Corp., 418 F.3d 1217, 1224 (Fed. Cir. 2005) ("We have reversed the district court's decision allowing Nokia to intervene to seek reinstatement of the vacated orders-[I]t is not necessary for us to address whether the district court's original vacatur order in light of the settlement was proper under [Bancorp].").
76. See, e.g., Tessera, Inc. v. ITC, 646 F.3d 1357, 1371 (Fed. Cir. 2011) (holding that expiration of patents during litigation caused mootness by happenstance, and applying Bancorp to vacate a portion of the ITC's final determination relating to expired patents)
77. cert, denied, 132 S. Ct. 2702 (2012);
78. Tafas v. Kappos, 586 F.3d 1369, 1371 (Fed. Cir. 2009) (denying vacatur because "the agency [(the losing party)] itself has voluntarily withdrawn the regulations and thus set the stage for a declaration of mootness");
79. Kaw Nation v. Norton, 405 F.3d 1317 (Fed. Cir. 2005) (vacating decision of Interior Board of Contract Appeals under Bancorp in light of "exceptional circumstances" arising from the potential effect of judgment on the party that objected to circumstances that caused mootness, and uncertainty regarding the Board's authority to resolve the dispute);
80. Aqua Marine Supply v. AIM Machining, Inc., 247 F.3d 1216 (Fed. Cir. 2001) (denying vacatur where appeal was mooted by settlement).
81. See, e.g., Ericsson, 418 F.3d at 1224 ("Without intervention, there is no proper party with standing to be afforded relief under Rule 60 (b). Therefore, it is not necessary for us to address whether the district court's original vacatur order in light of the settlement was proper under [Bancorp].").
82. FED. R. CIV. P. 24 (a) (2). A third party's interest in preserving the collateral estoppel effect of a ruling is not deemed a protectable interest for purposes of intervention as of right.
83. See, e.g., Korczak v. Sedeman, 427 F.3d 419, 420 (7th Cir. 2005) ("The opportunity to use a judgment in a suit to which one is not a party to gain an advantage in a suit to which one is a party is valuable, but the denial of the opportunity is not a sufficient injury to confer standing.");
84. Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1513 (11th Cir. 1996) ("[The potential intervenor's] interest in the collateral estoppel effect of the jury's verdict in this case is too collateral, indirect, and insubstantial to support intervention as of right."). More generally, the relationship between intervention and Article III standing remains unsettled.
85. See, e.g., Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941, 946 (7th Cir. 2000) ("[A]t some fundamental level the proposed intervenor must have a stake in the litigation. Some disagreement remains among the circuits about how Article III standing rules intersect with the requirements for Rule 24 intervention. This remains a question that the Supreme Court has not resolved." (citations omitted));
86. FED. R. CIV. P. 24 (b) (1) (B) ("On timely motion, the court may permit anyone to intervene who... has a claim or defense that shares with the main action a common question of law or fact.").
87. See, e.g., Purcell, 85 F.3d at 1513 (noting that "public policy values... are furthered by permitting parties to settle a case without the interference of interlopers");
88. see also FED. R. CIV. P. 24 (b) (3) ("In exercising its discretion [to grant permissive intervention], the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights.").
89. 342 F.3d 1320, 1327-29 (Fed. Cir. 2003) (Dyk, J., concurring).
90. 629 F.3d 1374, 1376-77 (Fed. Cir. 2011) (Moore, J., concurring).
91. Dana, 342 F.3d at 1320-23.
92. Ohio Willow Wood Co. v. Thermo-Ply, Inc., 629 F.3d 1374, 1376-77 (Fed. Cir. 2011) (Moore, J., concurring).
93. U. S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U. S. 18, 29 (1994).
94. Bancorp was decided in November 1994. The earliest post-Bancorp case (for which an opinion is electronically available on Lexis), where the Federal Circuit appears to follow Bancorp's suggestion and remands a case to a subordinate tribunal for it to consider a vacatur motion, is Dyncorp v. O'Leary, No. 94-1493, 1995 U. S. App. LEXIS 449 (Fed. Cir. Jan. 4, 1995).
95. See Ohio Willow Wood, 629 F.3d at 1375.
96. On remand, the district court in Ohio Willow Wood denied vacatur even though it would void the parties' settlement. Ohio Willow Wood Co. v. Thermo-Ply, Inc., 769 F. Supp. 2d 1065, 1070-71 (E. D. Tex. 2011).
97. When the parties resumed their appeal, the district court's judgment was summarily affirmed. Ohio Willow Wood Co. v. Thermo-Ply, Inc., 440 F. App'x 926 (Fed. Cir. 2011).
98. Ohio Willow Wood, 629 F.3d at 1376. (Moore, J., concurring). Viewing Judge Moore's concurrence as "placing an appellate thumb on the scale of the remand order before it reaches its destination", another member of the panel, Federal Circuit Judge Pauline Newman, wrote separately to stress that Judge Moore's concurrence was not part of the remand order.
99. For generalized information about the Federal Circuit's Appellate Mediation Program, see Mediation, U. S. CT. APPEALS FOR FED. CIRCUIT, http://www.cafc. uscourts.gov/mediation/mediation. html.
100. Appellate Mediation Program Guidelines, U. S. CT. APPEALS FOR FED. CIRCUIT (Sept. 4, 2012), http://www.cafc.uscourts.gov/mediation/guidelines.html § 8 ("Neither the US Court of Appeals for the Federal Circuit nor its Mediation Program takes a position of whether the motion for vacatur should be granted.").
101. The IPLC database, which was the primary source of cases for this study, contains patent cases filed beginning January 1, 2000. Stanford IP Litigation Clearinghouse, supra note 8.
102. See, e.g., TM Patents L. P. v. IBM Corp., 72 F. Supp. 2d 370, 375-79 (S. D. N. Y. 1999) (according collateral estoppel effect to claim construction order);
103. see also Dana v. E. S. Originals, Inc., 342 F.3d 1320, 1323-25 (Fed. Cir. 2003) (applying Eleventh Circuit law in holding that partial summary judgment orders satisfied legal prerequisites for applying collateral estoppel).
104. See, e.g., Kay-R Elec. Corp. v. Stone & Webster Constr. Co., 23 F.3d 55, 59 (2d Cir. 1994) ("[I]t is clear that for collateral estoppel to bar a party on an issue, the issue in dispute must actually have been litigated and actually decided.... The denial of a motion for summary judgment is not such.").
105. See Markman v. Westview Instruments, Inc., 517 U. S. 370, 372 (1996) (holding that "the construction of a patent, including terms of art within its claim, is exclusively within the province of the court").
106. See, e.g., United States v. Young, 804 F.2d 116, 118 (8th Cir. 1986) ("A fact established in prior litigation not by judicial resolution but by stipulation has not been 'actually litigated' and thus is the proper subject of proof in subsequent proceedings." (citation omitted)).
107. The Federal Circuit further refined this rule in Hartley v. Mentor Corp., 869 F.2d 1469, 1471 (Fed. Cir. 1989), holding that, in determining whether issue preclusion may arise from a stipulated judgment, "the primary consideration is the intent of the parties."
108. Dana v. E. S. Originals, Inc., 342 F.3d 1320, 1320 (Fed. Cir. 2003).
109. Appellate Mediation Program Guidelines, supra note 87 ("The United States Court of Appeals for the Federal Circuit established an appellate mediation program pursuant to Federal Rule of Appellate Procedure 33, which commenced on October 3, 2005.").
110. Because the Ohio Willow Wood order does not address the merits of the vacatur motion, see Ohio Willow Wood Co. v. Thermo-Ply, Inc., 629 F.3d 1374, 1375 (Fed. Cir. 2011)
111. See PETER S. MENELL, LYNN H. PASAHOW, JAMES POOLEY & MATTHEW D. POWERS, PATENT CASE MANAGEMENT JUDICIAL GUIDE 2-6(2009), available at http://papers. ssrn. com/sol3/papers.cfm?abstract-id=1328659 ("[T]he structure and operation of an accused device is often undisputed, so that determination of infringement will collapse into a question of claim construction.... Claim construction is the foundation for analysis of both infringement (has the patentee claimed broadly enough?) and invalidity (has the patentee claimed too much?)." (citation omitted)).
112. See, e.g., RF Delaware, Inc. v. Pac. Keystone Techs., Inc., 326 F.3d 1255, 1260-61 (Fed. Cir. 2003) (analyzing Eleventh Circuit law and denying application of collateral estoppel to claim construction ruling).
113. Whether a claim construction ruling may be accorded collateral estoppel effect is an issue for which at least two petitions for interlocutory appeal were filed in recent years. In 2009, the Federal Circuit granted a petition for interlocutory appeal on this issue. See Shire LLC v. Sandoz, Inc., 345 F. App'x 535, 535 (Fed. Cir. 2009).
114. However, the parties settled shortly thereafter and dismissed the appeal. See Shire LLC v. Sandoz, Inc., 368 F. App'x 116 (Fed. Cir. 2009). In 2010, another petition for interlocutory review was filed, but the Federal Circuit denied that petition.
115. See ICU Med., Inc. v. Rymed Techs., Inc., 364 F. App'x 622, 623 (Fed. Cir. 2010).
116. See, e.g., TM Patents, L. P. v. IBM Corp, 72 F. Supp. 2d 370, 377 (S. D. N. Y. 1999) ("[T]he results of the Markman hearing in the [prior] action were sufficiently 'final' to permit application of collateral estoppel-even though the matter to which they were necessary was never reduced to a final judgment after verdict.");
117. see also Edberg v. CPI-The Alternative Supplier, Inc., 156 F. Supp. 2d 190, 196 (D. Conn. 2001) ("[A]s the TM Patents court noted, the mere fact that plaintiffs settled the prior case does not give this Court's prior [claim construction] rulings any less preclusive effect.");
118. Abbott Labs. v. Dey, L. P, 110 F. Supp. 2d 667, 669-71 (N. D. Ill. 2000) (analyzing requirements for issue preclusion and concluding that they were satisfied for purpose of according preclusive effect to prior claim construction ruling).
119. See, e.g., Kollmorgen Corp. v. Yaskawa Elec. Corp, 147 F. Supp. 2d 464, 468-70 (W. D. Va. 2001) (denying collateral estoppel effect to claim construction order);
120. see also Graco Children's Prods., Inc. v. Regalo Int'l, LLC, 77 F. Supp. 2d 660, 663 (E. D. Pa. 1999) ("[T]he [Supreme] Court in Markman did not guarantee that collateral estoppel would apply in every case, and this Court will not extend the Supreme Court ruling to mean as much, especially where, as here, the circumstances of the instant action require that a different result be reached.").
121. The difference in the grant rates is not statistically significant: using Fisher's exact test, the two-tailed p-value is 0.553. Fisher's exact test is useful for significance testing where the dataset is relatively small such that the Chi-square test may not return accurate results. Rick Routledge, Fisher's Exact Test, in 3 ENCYCLOPEDIA OF BIOSTATISTICS 1961, 1961-62 (Peter Armitage & Theodore Colton eds., 2d ed. 2005), available at http://online Iibrary.wiley.com/doi/10.1002/0470011815.b2al0020/full. The significance levels used throughout this Article are as follows: if the p-value is less than 0.05 (5%), the result is deemed statistically significant; if it is less than 0.01 (1%), the result is deemed highly statistically significant.
122. DAVID FREEDMAN, ROBERT PISANI & ROGER PURVES, STATISTICS 482 (4th ed. 2007). Two-tailed p-values are reported in this Article because it is more conservative (that is, less likely to indicate statistical significance) than a one-tailed result.
123. See generally R. MARK SIRKIN, STATISTICS FOR THE SOCIAL SCIENCES 210-12 (3d ed. 2006).
124. See, e.g., Liljeberg v. Health Servs. Acquisition Corp., 486 U. S. 847, 863-64 (1988) (observing that Rule 60 (b) (6) "does not particularize the factors that justify relief, but... it provides courts with authority 'adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice', while also cautioning that it should only be applied in 'extraordinary circumstances'" (citations omitted)).
125. See, e.g., Avondale Shipyards, Inc. v. Insured Lloyd's, 786 F.2d 1265, 1269 (5th Cir. 1986)
126. ("Not only is [an interlocutory] order not appealable, but it remains within the plenary power of the district court to revise or set aside in its sound discretion without any necessity to meet the requirements of Fed. R. Civ. P. 60 (b).");
127. see also Persistence Software, Inc. v. Object People, Inc., 200 F. R. D. 626, 627 (N. D. Cal. 2001) ("The standard for granting a motion to vacate under Rule 54 (b) is less rigid than that under Rule 60 (b) governing vacation of final judgments.").
128. But see Siemens Med. Sys., Inc. v. Nuclear Cardiology Sys, Inc., 945 F. Supp. 1421, 1435 (D. Colo. 1996) ("Although Rule 54 (b) provides that an order that is not explicitly made final is subject to later revision, it would be pedantic to contend that all interlocutory orders are therefore 'tentative' in any real sense.").
129. FED. R. CIV. P. 60 (b) (5) provides: "On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reason[]:... [If] the judgment...is based on an earlier judgment that has been reversed or vacated-" (emphasis added).
130. In order for the t-test to produce reliable results, each constituent set should contain at least thirty observations. Carmen R. Wilson Van Voorhis & Betsy L. Morgan, Understanding Power and Rules of Thumb for Determining Sample Sizes, 3 TUTORIALS QUANTITATIVE METHODS FOR PSYCHOL. 43, 48 tbl.3(2007), available at http://www.tqmp.org/Content/vol03-2/p043/p043.pdf.
131. "Hedonic adaptation" refers to the tendency to return to a baseline emotional state after a positive or a negative experience. Shane Frederick & George Loewenstein, Hedonic Adaptation, in WELL-BEING: THE FOUNDATIONS OF HEDONIC PSYCHOLOGY 302, 302 (Daniel Kahneman, Ed Diener & Norbert Schwarz eds., 1999) ("Hedonic adaptation refers to a reduction in the affective intensity of favorable and unfavorable circumstances.").
132. For example, in CollegeNET, Inc. v. XAP Corp., No. 3:03-cv-01229-BR (D. Or.), the patentee
133. CollegeNET, moved for settlement-related vacatur of an invalidity judgment that had been accorded collateral estoppel effect in a concurrent case, CollegeNET, Inc. v. ApplyYourself, Inc., No. 3:02-cv-00484-HU (D. Or.). Opinion and Order at 2-6
134. CollegeNET, Inc. v. XAP Corp., No. 3:03-cv-01229-BR (D. Or. June 8, 2009), ECF No. 927.
135. CollegeNET, Inc. v. ApplyYourself, Inc., No. 3:02-cv-00484-HU (D. Or. June 10, 2009)
136. ECF No. 741. The ApplyYourself court granted the Rule 60 (b) (5) motion. Order at 2-3
137. CollegeNET, Inc. v. ApplyYourself, Inc., No. 3:02-cv-00484-HU (D. Or. June 12, 2009), ECF No. 743.
138. Allan Block Corp. v. Cnty. Materials Corp., No. 0:05-cv-02879-JNE-JJG (D. Minn. Mar. 15, 2010)
139. ECF No. 462. In the other case, the Federal Circuit affirmed the judgment. Judgment at 1
140. Avid Identification Sys., Inc. v. Phillips Elecs. N. Am. Corp., No. 2:04-cv-00183-TJW (E. D. Tex. Aug. 2, 2010), ECF No. 483 (on appeal, the case was docketed as Avid Identification Sys., Inc. v. Crystal Imp. Corp.).
141. See supra note 78. See Ohio Willow Wood Co. v. Thermo-Ply, Inc., 769 F. Supp. 2d 1065, 1066-71 (E. D. Tex. 2011)
142. aff'd, 440 F. App'x 926, 926 (Fed. Cir. 2011).
143. U. S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U. S. 18, 28 (1994) (emphasis in original).
144. In a study of 2300 cases filed between January 2000 and March 2008 involving high-tech patents (that is, those covering hardware, software, and financial inventions), the average suit duration was less than 15 months. Colleen V. Chien, Of Trolls, Davids, Goliaths, and Kings: Narratives and Evidence in the Litigation of High-Tech Patents, 87 N. C. L. REV. 1571, 1593, 1595, 1605 tbl.6 (2009).
145. See, e.g., Judith Resnik, Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century, 41 UCLA L. REV. 1471, 1491 (1994) [hereinafter Resnik, Whose Judgment?] ("When the judicial opinion becomes available as a 'bargaining chip', the purchasing power of litigants grows." (footnote omitted)); (Pubitemid 24818387)
146. See, e.g., Mark D. DeBofsky, Mediating in the Appellate Court, 34 LITIG. 47, 51 (2008) ("[A]s long as the lower court is willing to go along, many mediators use the possibility of vacatur as a settlement tool." (emphasis in original)).
147. In some cases, a district court will provide a window during which settling parties may reopen a case after termination in the event the settlement fails. See, e.g., Cupid Founds., Inc. v. Jupi Corp., No. 2:07-cv-05506-JLL-CCC (D. N. J. Apr. 5, 2010), ECF No. 83 (providing sixty-day window). In 6.3% of the cases in the dataset (5 out of 79), the vacatur motion was filed after the date on which litigation terminated.
148. See, e.g., George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. LEGAL STUD. 1, 17 (1984) ("In litigation, as in gambling, agreement over the outcome leads parties to drop out.... Where either the plaintiff or defendant has a 'powerful' case, settlement is more likely because the parties are less likely to disagree about the outcome.").
149. Order at 1, Allan Block Corp. v. Cnty. Materials Corp., No. 0:05-cv-02879-JNE-JJG (D. Minn. Mar. 15, 2010), ECF No. 462.
150. Judgment at 1, Avid Identification Sys., Inc. v. Phillips Elecs. N. Am. Corp., No. 2:04-cv-00183-TJW (E. D. Tex. Aug. 2, 2010), ECF No. 483 (on appeal, the case was docketed as "Avid Identification Sys., Inc. v. Crystal Imp. Corp. ").
151. See, e.g., Aqua Marine Supply v. AIM Machining, Inc., 6247 F.3d 1216, 1220 (Fed. Cir. 2001) ("While in some circumstances the opposing party's lack of interest will not bar adjudication on the merits, the outcome is different when the appellant is responsible for the opposing party's lack of continued interest, for example, as here by a settlement." (internal citation omitted)).
152. But see Avid Identification Sys., Inc. v. Crystal Imp. Corp., 603 F.3d 967, 971-72 (Fed. Cir. 2010) ("A live controversy still exists because [the accused infringer] remained free under the settlement agreement to oppose this appeal on the merits. That it chose not to submit a brief does not deprive this court of jurisdiction over the issues on appeal." (internal citation omitted)).
153. While it would have been ideal to compile the litigation history on a claim-by-claim basis rather than on the patent as a whole, finding reliable claim information is difficult because the identity of the asserted claims is usually not available in a public filing until the parties prepare substantive briefs for claim construction or summary judgment, which will not exist for cases that were filed recently or that terminated prior to the claim construction briefing stage. In contrast, compiling the litigation history at the patent level can be performed more reliably because the asserted patents are listed in the complaint or in the answer (as counterclaims). Also, any lack of precision that may result from focusing on the patent, as opposed to each individual claim, is mitigated by the fact that the rulings of interest that are targeted for vacatur are generally those that may have collateral estoppel effect, which may apply to unadjudicated claims so long as those claims present issues identical to the ones that were adjudicated. See Bourns, Inc. v. United States, 537 F.2d 486 (Ct. Cl. 1976).
154. Bourns, as a decision issued by the Court of Claims, a predecessor court of the Federal Circuit, is treated as Federal Circuit precedent. See South Corp. v. United States, 690 F.2d 1368, 1369 (Fed. Cir. 1982) (en banc).
155. See, e.g., Resnik, Whose Judgment?, supra note 173, at 1488 ("The very existence of a reported opinion might also be seen as an encumbrance, influencing behavior. One can therefore assume that not all litigants care equally about the existence of recorded judicial opinions and that repeat players are more likely than one-shotters to be proponents of vacatur.").
156. An unenforced, invalid patent helps to "maintain an illegitimate monopoly" for the patent holder without having to bring suit. Christopher R. Leslie, The Anticompetitive Effects of Unenforced Invalid Patents, 91 MINN. L. REV. 101, 103 (2006).
157. Bresnick v. U. S. Vitamin Corp., 139 F.2d 239, 242 (2d Cir. 1943) (Hand, J.) ("We have disposed of the patent as a whole because it has seemed to us proper that it should not remain in the art as a scarecrow.").
158. See FED. R. CIV. P. 60 (b) (5);
159. See 35 U. S. C. § 286 (2006).
160. The three classifications are largely modeled after those defined in Colleen V. Chien, Predicting Patent Litigation, 90 TEX. L. REV. 283, 314 n. 209(2011), with certain modifications for purposes of the vacatur dataset. The patentee classification was based on the first-named plaintiff (or defendant in a declaratory judgment action) listed in the caption of the vacatur motion or the associated order (if the motion itself was unavailable). Foreign entities were classified using the same criteria as domestic entities. None of the first-named patentees in the dataset were universities.
161. See, e.g., John R. Allison, Mark A. Lemley & Joshua Walker, Extreme Value or Trolls on Top? The Characteristics of the Most-Litigated Patents, 158 U. PA. L. REV. 1, 32 (2009) [hereinafter Allison et al., Extreme Value] (observing that PAEs "account for only about 16% of the once-litigated patents, [but] represent over 80% of the suits filed involving the most-litigated patents and own more than 50% of the most-litigated patents themselves").
162. The categories were defined specifically for this Article in light of the inadequacies of the U. S. Patent and Trademark Office's classification system, as noted by other scholars. See, e.g., John R. Allison & Mark A. Lemley, Who's Patenting What? An Empirical Exploration of Patent Prosecution, 53 VAND. L. REV. 2099, 2114 (2000) ("[W]e did not find [the PTO classification system] particularly reliable.... [W]e came upon numerous instances of what appear to us to be wrong or arbitrary classification decisions.... [T]he PTO system groups together technologies that may have very different characteristics.").
163. See Allison et al., Extreme Value, supra note 207, at 18 ("Mechanical inventions make up only 8% of the most-litigated patents, but 53% of the once-litigated patents-").
164. See Allison et al., Extreme Value, supra note 207, at 20 ("Notably absent from this list [of most-litigated patents] is the semiconductor industry-");
165. see also John R. Allison, Mark A. Lemley, Kimberly A. Moore & R. Derek Trunkey, Valuable Patents, 92 GEO. L. J. 435, 474 (2004) ("While semiconductor patents constitute a substantial fraction of all patents issued, they are far less likely to be litigated than any other type of patent. Only 8.2% of the semiconductor patents in our sample study were litigated, compared with 24.3% of the nonsemiconductor patents." (footnotes omitted)).
166. Allison et al., Extreme Value, supra note 207, at 18-20.
167. John R. Allison, Mark A. Lemley & Joshua Walker, Patent Quality and Settlement Among Repeat Patent Litigants, 99 GEO. L. J. 677, 680 (2011) [hereinafter Allison et al., Repeat Litigants] ("[T]he most-litigated patents that go to judgment are far more likely to be held invalid or not infringed-Once-litigated patents win in court almost 50% of the time, while the most-litigated-and putatively most valuable-patents win in court only 10.7% of the time.").
168. Prepared Statement of the Federal Trade Commission Before the Special Committee on Aging of the United States Senate on Barriers to Generic Entry: Hearing Before the S. Spec. Comm. on Aging, 109th Cong. 10(2006), available at http://www.ftc.gov/os/2006/07/ P052103BarrierstoGenericEntryTestimonySenate07202006.p df ("The [Federal Trade] Commission studied all patent litigation initiated between 1992 and 2000 between brand-name drug manufacturers and Paragraph IV generic challengers, and found that the generics prevailed in cases involving 73 percent of the challenged drug products." (footnote omitted)).
169. The intervenor appealed the grant of vacatur, but voluntarily dismissed its appeal after settling with the patentee. Order, CollegeNET, Inc. v. XAP Corp., No. 3:03-cv-01229-BR (D. Or. Oct. 1, 2009), ECF No. 934 (dismissal of appeal);
170. Appellants ApplicationsOnline, LLC's and The Common Application, Inc.'s Statement of Issues for Appeal at 2-3
171. CollegeNET, Inc. v. XAP Corp., No. 3:03-cv-01229-BR (D. Or. July 10, 2009), ECF No. 932 (issues appealed). As a result, an opportunity was lost for the Federal Circuit to directly consider the merits of a district court's decision to grant settlement-related vacatur.
172. Resnik, Managerial Judges, supra note 6, at 402 n. 115 ("Because most pretrial conferences are off the record, little documentation is available.").
173. Agere Sys. Inc. v. Atmel Corp., No. 2:02-cv-00864-LDD (E. D. Pa. June 30, 2006), ECF No. 435 (motion to intervene by Rohm Company, Ltd., filed under seal). That the patentee, Agere, and the potential intervenor, Rohm, were likely engaged in adversarial negotiations around the time of the intervention attempt, and were subsequently involved in arbitration, was revealed in a complaint that Agere later filed at the International Trade Commission to assert one of the patents that benefitted from the grant of vacatur.
174. Infineon Techs. N. Am. Corp. v. Mosaid Techs. Inc., No. 5:02-cv-05772-JF (N. D. Cal. July 31, 2006), ECF No. 116 (motion to intervene by Micron Technology, Inc.).
175. Avid Identification Sys. v. Phillips Elecs. N. Am. Corp., No. 2:04-cv-00183-TJW (E. D. Tex. Dec. 23, 2008), ECF No. 462 (motion to intervene by Allflex USA, Inc.).
176. CollegeNET, Inc. v. XAP Corp., No. 3:03-cv-01229-BR (D. Or. May 1, 2009), ECF No. 917 (motion to intervene by ApplicationsOnline, LLC and The Common Application, Inc.).
177. Ohio Willow Wood Co. v. Thermo-Ply, Inc., 629 F.3d 1374, 1376 n. 1 (Moore, J., concurring).
178. Examples from the dataset: Scheduling Order, CollegeNET, Inc. v. XAP
179. and Civil Minutes, Infineon Techs. N. Am. Corp. v. Mosaid Techs., Inc., No. 5:02-cv-05772 (N. D. Cal. July 24, 2006), ECF No. 111.
180. Example from the dataset: Order, PBI Performance Prods., Inc. v. Norfab Corp., No. 2:05-cv-04836-HB (E. D. Pa. June 26, 2008), ECF No. 117 (order unsealing joint motion for vacatur). The joint motion for vacatur in this case included the settlement agreement as an attachment. Joint Motion for Vacatur of the August 29, 2007 Order Invalidating U. S. Patent No. 6, 624, 096 for Obviousness at 10
181. PBI Performance Prods., Inc. v. Norfab Corp., No. 2:05-cv-04836-HB (E. D. Pa. June 9, 2008), ECF No. 113-1.
182. In one case in the dataset, the parties withdrew their vacatur motion after the court ordered them to justify their motion as well as their request to seal. See Assented-To Motion to Withdraw Pending Motions, Skyline Software Sys., Inc. v. Keyhole Corp., No. 06-cv-10980 (D. Mass. Feb. 11, 2008), ECF No. 95 (withdrawal of vacatur motion);
183. Procedural Order, Skyline Software Sys., Inc. v. Keyhole Corp., No. 06-cv-10980 (D. Mass. Feb. 5, 2008), ECF No. 93 (order requesting justification to seal).
184. See U. S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U. S. 18, 25 (1994);
185. E.g., Jeffrey A. Lefstin, Claim Construction, Appeal, and the Predictability of Interpretive Regimes, 61 U. MIAMI L. REV. 1033, 1037 (2007) ("[C]omputing claim construction reversal rates has been a popular sport: numerous studies have reported claim construction reversal rates from about 25% to 50%. Based on these statistics, the notion that the reversal rate is 'too high' has become firmly ingrained in the minds of commentators, practitioners, and judges alike...." (footnotes omitted)). In the dataset, the de novo review of claim construction rulings was mentioned in at least 5 vacatur motions and in one of the few orders where the court provided a reasoned analysis of its decision to grant vacatur.
186. See, e.g., Order, Klein v. Nat'l R. R. Passenger Corp., No. 2:04-cv-00955 (E. D. Pa. Aug. 6, 2009), ECF No. 225 (granting vacatur and ordering removal of rulings from Lexis and Westlaw). In Klein, a personal injury case filed against Amtrak, the confidential settlement included a provision that called for the vacatur of certain published opinions and their removal from Lexis and Westlaw.
187. Shannon P. Duffy, After Settlement, Opinions Erased in Amtrak Case, LEGAL INTELLIGENCER, Aug. 19, 2009, at 1 ("[A] spokeswoman for Westlaw, said [the judge's] request to remove the opinions would 'absolutely' be honored, and that any instance in which a judge vacates a published opinion automatically leads to its withdrawal from Westlaw's database. Calls to Lexis were not returned by press time.").
188. See, e.g., Docket Entry Text, SourceOne Global Partners, LLC v. KGK Synergize, Inc., No. l:08-cv-07403 (N. D. Ill. Jan. 18, 2012), ECF No. 165 ("The agreed joint motion to vacate... is granted.... [M]emorandum opinion and order (doc. #117) is hereby vacated; the Clerk of the Court is instructed to remove that memorandum opinion and order, and the accompanying minute order (doc. 16), from the docket.").
189. Cf. Mark L. Kovner, Colin R. Kass & Avery W. Gardiner, Applying the Noerr Doctrine to Pharmaceutical Patent Litigation Settlements, 71 ANTITRUST L. J. 609, 629 n. 54 (2003) ("[T]he fact that a settlement is 'so ordered' does not necessarily save it from antitrust liability.").
190. See, e.g., Allen-Bradley Co. v. Kollmorgen Corp., 199 F. R. D. 316, 318 (E. D. Wis. 2001) ("In terms of judicial economy, the difference between vacatur after judgment and vacatur before judgment, but after a Markman hearing and order, is only one of degree.").
191. *7 (E. D. Tex. Feb. 11, 2009) ("[T]he parties have failed to show an equitable entitlement to an 'extraordinary remedy' of vacatur. The only reason presented... is that the parties have entered into a settlement agreement. Granting a vacatur... would effectively result in the exact same relief that Bancorp holds is inappropriate.");
192. Order, PBI Performance Prods. Inc. v. Norfab Corp., No. 2:05-cv-04836 (E. D. Pa. June 25, 2008), ECF No. 115, at 1 (citing Bancorp in denying vacatur).
193. See, e.g., Allen-Bradley, 199 F. R. D. at 320 ("[The] claim construction order, like nearly all court decisions and orders, affects interests beyond those of the parties in the present action. The benefits of settling the present action are, in short, outweighed by the systemic costs that would be incurred by vacating the court's order.");
194. *6 (N. D. Cal. Apr. 23, 2008) ("[T]he court entertained several rounds of briefing,... heard an hour of oral argument, and spent several days drafting the [summary judgment] opinion. The public paid for this use of court resources through its tax dollars. Vacatur would render that expenditure a waste-").
195. Ameranth, Inc. v. Menusoft Sys. Corp., 2012 U. S. App. LEXIS 849 (Fed. Cir. Jan. 13, 2012).
196. Motion for Leave to File Brief of Amicus Curiae Profitstreams, LLC, Ameranth, Inc. v. Menusoft Sys. Corp., No. 2:07-cv-271-DF (E. D. Tex. Nov. 4. 2011), ECF No. 333;
197. Motion by Non-Party Seamless N. Am., LLC for Leave to File Amicus Curiae Brief, Ameranth, Inc. v. Menusoft Sys. Corp., No. 2:07-cv-271-DF (E. D. Tex. Nov. 11, 2011), ECF No. 334.
198. Paintiff Ameranth's Opposition to Non-Party Seamless N. Am., LLC's Motion for Leave to File Amicus Curiae Brief at 10-11
199. Ameranth, Inc. v. Menusoft Sys. Corp., No. 2:07-cv-271-DF (E. D. Tex. Nov. 15, 2011), ECF No. 336 (emphasis added).
200. Order, Ameranth, Inc. v. Menusoft Sys. Corp., No. 2:07-cv-271 (E. D. Tex. Feb. 6, 2012), ECF No. 355 (granting vacatur).
201. See, e.g., Ericsson, Inc. v. InterDigital Commc'ns, 418 F.3d 1217, 1222, 1224 (Fed. Cir. 2005) (reversing district court's grant of intervention because "[third-party objector's] motion to intervene failed to satisfy the Fifth Circuit requirement that there be an existing suit in which to intervene" and, on that basis, deeming it unnecessary to reach merits of district court's vacatur ruling).