On November 21, 2012, Shilling Construction Company, Inc. ("Shilling") timely submitted an Application for Leave to File an Amicus Brief in Opposition to Plaintiffs' Motion to Vacate Claim Construction Order. (ECF 136.) On December 7, 2012, plaintiffs timely filed an opposition to Shilling's amicus motion. (ECF 140.) The court has decided the motion without a hearing. In this order, the court GRANTS Shilling's Application (Motion) for Leave to File an Amicus Brief ("motion"), as explained below.
In the underlying pending patent infringement action, plaintiffs and defendants have reached a settlement. (Pls.' Mot. to Vacate at 2, ECF 133.) As part of their settlement, the parties agreed to move this court to vacate its May 15, 2012 claim construction order (ECF 112). (Id.) As agreed, plaintiffs filed their motion to vacate on November 16, 2012 (ECF 133), and defendants filed a statement of non-opposition to the vacatur on November 19, 2012 (ECF 135). Shilling seeks amicus status to file a brief in opposition to the motion to vacate. Shilling is a defendant in a similar case before the Eastern District of Oklahoma; that case was brought by the same plaintiffs, and concerns the same patent as in the action before this court. (ECF 136 at 2.) The Oklahoma court granted Shilling's motion to stay that case pending the outcome of this court's claim construction order. (Id.)
In their opposition to Shilling's amicus motion, plaintiffs argue the court should deny Shilling's motion because Shilling's brief would not aid the court in deciding the underlying motion to vacate. (ECF 140 at 2.) Plaintiffs argue Shilling's brief would be unhelpful because it addresses a standard irrelevant to the motion to vacate. (Id.) Plaintiffs aver Shilling's focus on the standard articulated in U.S. Bancorp v. Bonner Mall Partnership, 513 U.S. 18, 26, 29 (1994), for vacating final judgments as an "extraordinary remedy," is irrelevant because a claim construction order is interlocutory.
Even assuming without deciding at this point that plaintiff is correct, that Bancorp's standard is inapplicable to resolution of the motion to vacate, Shilling's participation will assist the court in deciding the motion to vacate. A district court has broad discretion regarding the appointment of amici. Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995); In re Roxford Foods Litig., 790 F. Supp. 987, 997 (E.D. Cal. 1991). "An amicus brief should normally be allowed" when, among other considerations, "the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide." Cmty. Ass'n for Restoration of Env't (CARE) v. DeRuyter Bros. Dairy, 54 F. Supp. 2d 974, 975 (E.D. Wash. 1999) (citing Northern Sec. Co. v. United States, 191 U.S. 555, 556 (1903)). Here, because plaintiffs' motion to vacate is unopposed by any party in this action, Shilling's brief may serve to highlight any countervailing considerations with respect to the motion. Additionally, Shilling is involved in similar litigation with plaintiffs in Oklahoma that may be affected by this court's ruling on the motion to vacate, and is therefore uniquely situated to provide a perspective the parties before the court are unable to provide.
Accordingly, the court hereby GRANTS Shilling's Application for Leave to File an Amicus Brief in Opposition to Plaintiffs' Motion to Vacate Claim Construction Order. Shilling is directed to file on the docket its amicus brief, in the form presented on November 21, 2012, by the close of business on December 27, 2012. Replies are due one week thereafter, by January 3, 2013.
UNITED STATES DISTRICT JUDGE
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