Wi-Lan, Inc. v. LG Electronics, Inc., __ F.3d __ (Fed. Cir. 2012)(Clevenger, J.), decided last Friday, continues to generate interest. Why should a case be nominated as “precedential” when it is “a guess” as to how a sister circuit would interpret that sister circuit’s law?
The real precedent for the future interpretation of a sister circuit’s law comes from the opinions of that sister circuit; even if the Federal Circuit’s opinion is a correct estimation as to how the sister circuit would rule (guess or otherwise), that estimation is immediately obsolete when there is a subsequent decision by the sister circuit on all fours or otherwise upsets the rationale for the Federal Circuit’s prediction of sister circuit law.
That the result in this case is “a guess” is explained in the opinion dubitante, Wi-Lan v. LG, __ F.3d at __ (Reyna, J., dubitante).
From the Opinion Dubitante: “[N]o gates [leading] to secure blue water.” “The majority embarks on a winding course as it explores Ninth and other regional circuit case law, and evidentiary rules. At the start of its journey, the majority recognizes, ‘The parties do agree that the Ninth Circuit has not spoken squarely on this issue..’
“Still, the majority discerns a trend in the law and on that basis takes a guess that the Ninth Circuit, if its hand were at the helm, would [decide as the decision reached in this case].
“I examine the trend and find in it no gates that lead to secure blue water. Indeed, I find that even a route that lies opposite the route charted by the majority is as good a route as any.
“Thus, while instinct tells me the majority could be correct, I am concerned that our heading is not based on an accurate bearing. As I cannot prove or disprove our result, I go along with the majority-but with doubt.”
Wi-Lan v. LG,__ F.3d at __ (Reyna, J., dubitante)(emphasis added; footnote and citation omitted).