Article suggestion: Denial of Access to the Courts and the USPTO

by Bill Vobach

The Federal Circuit recently took a case en banc in Taylor v. McDonough, which was argued earlier this month. The court’s sua sponte order of en banc review asked the parties to discuss a decades-old Supreme Court opinion that has never been cited by the Federal Circuit (as far as I can tell) — namely Christopher v. Harbury. The Christopher v. Harbury case concerns a cause of action termed “denial of access to the courts.” The Supreme Court characterized “denial of access to the courts” claims as follows:

This Court’s prior cases on denial of access to courts have not extended over the entire range of claims that have been brought under that general rubric elsewhere, but if we consider 413*413 examples in the Courts of Appeals[7] as well as our own, two categories emerge. In the first are claims that systemic official action frustrates a plaintiff or plaintiff class in preparing and filing suits at the present time. Thus, in the prisonlitigation cases, the relief sought may be a law library for a prisoner’s use in preparing a case, Bounds v. Smith, 430 U. S. 817, 828 (1977)Lewis v. Casey,518 U. S. 343, 346-348 (1996), or a reader for an illiterate prisoner, id., at 347-348, or simply a lawyer, ibid. In denial-of-access cases challenging filing fees that poor plaintiffs cannot afford to pay, the object is an order requiring waiver of a fee to open the courthouse door for desired litigation, such as direct appeals or federal habeas petitions in criminal cases,[8] or civil suits asserting family-law rights, e. g., Boddie v. Connecticut, 401 U. S. 371, 372 (1971) (divorce filing fee); M. L. B. v. S. L. J., 519 U. S. 102, 106-107 (1996) (record fee in parental-rights termination action). In cases of this sort, the essence of the access claim is that official action is presently denying an opportunity to litigate for a class of potential plaintiffs. The opportunity has not been lost for all time, however, but only in the short term; the object of the denial-of-access suit, and the justification for recognizing that claim, is to place the plaintiff in a position to pursue a separate claim for relief once the frustrating condition has been removed.

The second category covers claims not in aid of a class of suits yet to be litigated, but of specific cases that cannot now 414*414 be tried (or tried with all material evidence), no matter what official action may be in the future.[9] The official acts claimed to have denied access may allegedly have caused the loss or inadequate settlement of a meritorious case, e. g., Foster v. Lake Jackson, 28 F. 3d 425, 429 (CA5 1994)Bell v. Milwaukee, 746 F. 2d 1205, 1261 (CA7 1984) (“[T]he cover-up and resistance of the investigating police officers rendered hollow [the plaintiff’s] right to seek redress”), the loss of an opportunity to sue, e. g., Swekel v. River Rouge, 119 F. 3d 1259, 1261 (CA6 1997) (police coverup extended throughout “time to file suit . . . under . . . statute of limitations”), or the loss of an opportunity to seek some particular order of relief, as Harbury alleges here. These cases do not look forward to a class of future litigation, but backward to a time when specific litigation ended poorly,[10] or could not have commenced, or could have produced a remedy subsequently unobtainable.[11] The ultimate object of these sorts of access claims, then, is not the judgment in a further lawsuit, but simply the judgment in the access claim itself, in providing relief obtainable in no other suit in the future.

Christopher v. Harbury, 536 U.S. 403, 412 (2002).

So, a potentially interesting article might address any PTO policies that cause sufficient delay to prevent a patentee from seeking redress for infringement in a timely manner, i.e., loss of opportunity to sue. The SAWS program is something that comes to mind. Perhaps there are other programs or practices, as well. How this cause of action interplays with an administrative takings claim might also be of interest. Would a takings claim provide the same, better, or worse remedy?

You can listen to the Supreme Court oral argument of Christopher v. Harbury [here].

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