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Amicus Briefs Filed with Supreme Court Support Certiorari in Soverain v. Newegg

Wednesday, November 27, 2013

With Petition Pending, Soverain Seeks to Correct the Public Record

Soverain Software acknowledges strong amicus support for its petition for certiorari in Supreme Court case no. 13-477, which seeks review of the appellate court decision in the patent suit Soverain Software v. Newegg on the issues of property rights, validity of patents, obviousness, and the scope of the legal system. The appellate court reversed Chief Judge Leonard Davis, who correctly ruled that Soverain’s patents were not invalid and were infringed by Internet retailing giant Newegg. The amicus briefs are written by leaders in intellectual property, technology, investing and academia who urge the Supreme Court to grant certiorari.

“These amicus briefs demonstrate the broad importance of Soverain v. Newegg, and the urgent priority for the Supreme Court to grant certiorari,” said Soverain President Katharine Wolanyk. “Patent protection is vital to a thriving economy and the Seventh Amendment guarantees the right to a jury trial. Judge Davis ruled that Newegg had not met its burden of proof, saying ‘I don’t think it’s a close call on obviousness.’ So it was error for the Federal Circuit to assume the role of the jury, reverse the decision and invalidate Soverain’s patents,” said Wolanyk.

Fellow technology company i4i Limited Partnership, which prevailed in its Supreme Court patent litigation suit against Microsoft in 2011, filed an amicus brief because, in i4i’s view, the appellate court decision in Soverain’s case directly undermines the Supreme Court’s opinion in the i4i case. In that case, the Court reaffirmed the clear and convincing burden of proof that a challenger to a patent must meet in order to prove invalidity. “This attack on patent-holders and the adverse implications from the change proposed by Newegg are unprecedented, and would deal a devastating blow to any U.S. patent-holder, large or small,” said Loudon Owen, Chairman of i4i. “The proposed change would alter the law and effectively eviscerate the patent system.”

Professors Eileen Herlihy of Boston University School of Law and Adam Mossoff of George Mason University School of Law also filed an amicus brief. Professor Herlihy’s legal scholarship focuses on the historical precedent for jury trials in patent litigation matters. “It is critically important that this Court grant certiorari in this case because the consequences of leaving the Federal Circuit's error uncorrected are far-reaching. The existing decision will lead to problems in the area of obviousness, by undermining the role of the jury in this important area of patent law related to patent validity,” said Professor Herlihy. “In addition, the Federal Circuit's error in this case in applying the Seventh Amendment is part of a continuing pattern of error that threatens to pervade patent law. For this reason, it is vitally important that this Court take this case to provide guidance to the Federal Circuit concerning Seventh Amendment rights.”

An amicus brief was also filed by MDB Capital Group, an intellectual property-driven public venture bank that invests in and assists early stage companies with innovative technology. MDB’s proprietary IP intelligence platform enables it to identify and measure the strength of emerging technologies. “Patent law exists to encourage innovation. The Federal Circuit’s decision, however, frustrates that purpose,” said Christopher Marlett, Co-Founder and CEO of MDB Capital Group. “By eroding the predictability of the bounds of patent law protection for inventions, the decision injects additional uncertainty and risk into an endeavor that is already fraught with risk: investment in new and evolving technologies.”

In conjunction with its appeal to the Supreme Court, Soverain is seeking to correct the public record of inaccurate statements relating to its business and patents. Toward that end, Soverain’s President continued her correspondence with U.S. House Judiciary Committee Chairman Bob Goodlatte.

Soverain also took note of Newegg’s comments after it lost the TQP Development trial yesterday. “As Newegg continues to smear patent owners and discredit other people’s intellectual property, another jury has found it to be an infringer of valid patents. Litigating on ‘principle’ rather than merit is a form of litigation abuse, and shows that defendants can also be trolls,” said Wolanyk. “Licensing patented technology has been a cornerstone of American business since the Constitution established a patent system and it is time for Newegg to reconsider its strategy.”

The amicus briefs, information on Soverain v. Newegg, and letters to Chairman Goodlatte can be found on Soverain’s website at


Soverain Software LLC provides ecommerce software and services for enterprises, focusing on the publishing, news syndicate and digital content industries. Soverain’s enterprise software product Transact has been in continuous use for 18 years, used by over 1,000 companies in over 25 countries, including well-known companies such as Time-Warner, AT&T, Sony, Disney, BusinessWeek and Reuters. Our patented Internet commerce technology benefits both merchants and consumers by enabling secure and flexible online transactions.

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