When Does “Without Delay” Mean “In Writing?”

Since late 2008 and 2009, it has become more common for Federal Circuit to grant petitions for mandamus that seek to overturn district court denials of venue-transfer motions. E.g., In re Nintendo Co., 589 F.3d 1194 (Fed. Cir. 2009); In re Hoffmann-La Roche, Inc., 587 F.3d 1333 (Fed. Cir. 2009); In re Genentech, Inc., 566 F.3d 1338 (Fed. Cir. 2009); In re TS Tech USA Corp., 551 F.3d 1315 (Fed. Cir. 2008).

The Federal Circuit’s recent grant of the mandamus petition in In re Link_A_Media, Misc. No. 990 (Dec. 2, 2011) can be seen as the next item in an emerging pattern. What’s interesting about In re Link_A_Media is not, however, the grant of the mandamus petition; it’s the order that issued two weeks later. (Order, Dec. 16, 2011).

The parties settled the case the day before the Federal Circuit issued the order granting mandamus. They telephoned the Federal Circuit clerk’s office, and notified an “an unidentified individual” about the settlement. After learning of the mandamus order, the parties moved to vacate that order. In denying the motion to vacate, the Federal Circuit stated that the notice of settlement should have been made in writing:

If the parties had entered into a settlement agreement before issuance of our decision, it was counsel’s duty to formally inform this court in writing of the agreement. [citing Arizonans for Official English v. Arizona, 520 U.S. 43 (1997)]

Although Arizonians for Official English does not state that notice of settlement must be written (as opposed to telephonic), In re Link_A_Media stands as a reminder to counsel that sometimes (or often) a phone call to the clerk’s office is not enough.

Posted on January 26, 2012, in Patent, Procedure and tagged . Bookmark the permalink. Comments Off on When Does “Without Delay” Mean “In Writing?”.

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