Article suggestion: Challenging attorney fee awards in other than the Federal Circuit

This is probably one of those posts where I will stick my foot in my mouth for not knowing enough about the subject matter. Nevertheless, I have been listening to some recordings of oral arguments recently where constitutional challenges have been made to the award of attorneys’ fees. I believe at least two of the oral arguments focused on the winning litigant failing to sufficiently disclose attorney time records for inspection by the non-prevailing party. The appellants raised due process concerns when the respective courts failed to let each non-prevailing party inspect the time records. That caused me to wonder whether a party must appeal a constitutional issue to the Federal Circuit or whether the appeal of that issue could be lodged with the regional circuit court of appeal. It might make for an interesting article as to whether an appeal limited to constitutional issues can be brought in the regional circuit court of appeal when a patent case is involved.

One of the cases recently decided by the Federal Circuit was MAX SOUND CORPORATION v. GOOGLE LLC, No. 2018-1039 (Fed. Cir. Mar. 12, 2019). During that oral argument, Judge Moore made the following comment about due process and access to detailed billing records for the attorney’s fee issue:

You can listen to the entire oral argument here:

You can read the court’s Rule 36 judgment [here].

The Federal Circuit apparently felt that the appellant had waived the due process issue in this case. That makes for an interesting data point in the Federal Circuit’s Rule 36 odyssey. The Federal Circuit apparently is now quite comfortable deciding constitutional issues, like waiver of due process, by summary affirmance Rule 36 judgments.

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