There was a powerhouse gathering of four former solicitors general today at the National Press Club, where the group discussed, among other things, the need for the United States to interject its voice more than it does in patent litigation in the U.S. Court of Appeals for the Federal Circuit.
The gathering was the first ever for the four SGs who served between 1997 and Jan. 2009. The lawyers were participating in a Federal Circuit symposium sponsored by the Federal Circuit Bar Association and The George Washington University Law School.
The United States is not a party in many patent cases in the Federal Circuit, but the Supreme Court frequently asks for SG opinions when a petition from the Federal Circuit is filed in these cases, Waxman noted.
“The SG doesn’t have a very good amicus practice in the Federal Circuit, even in the en banc stage, and I think that’s a mistake. I think it would benefit the Federal Circuit to hear the views of the United States more often than it does,” said Waxman, a partner at Wilmer Cutler Pickering Hale and Dorr who was solicitor general between 1997 and 2001.
King & Spalding’s Clement, and Garre, who has joined the faculty of The George Washington University Law School, said the SG’s office would “welcome” the opportunity to participate in a greater role as an amicus in the Federal Circuit, particularly at the en banc stage.
Phillips asked the former SGs about the difference between arguing for the government and representing private clients before the Supreme Court. For one, the lawyers say they’ve tucked away their morning coats—the traditional garb of the Solicitor General. “It was somewhat liberating to actually be able to vary your wear all the way from dark gray to sort of medium gray,” Waxman said of going into private practice.
Explaining the evolution of the government’s position to a cabinet member, Waxman said, is much different than articulating position with the general counsel of a major corporation. Telling a general counsel that the company’s case is not the right vehicle to take an issue to the Supreme Court is a “conversation you can have only once with a particular client,” Waxman said.
“And the answer is, ‘That’s fine, we’re going to talk with Mr. Olson,’” Waxman said. Olson responded: “And I will take that call.”