Is Being A "Friend of the Court" Intervening?

There is a simple answer to the title question: No.

Being amicus curiae, or a "friend of the court," gives someone who is not a party to the case the ability to file a brief on some part of the controversy. This is often done in appellate cases and, in particular, in cases that have important policy considerations. It is less common in trial courts. The court has the discretion to permit someone to file as an amicus curiae. In contrast, someone with a demonstrable interest in the subject matter of a case can sometimes intervene on behalf of one side or the other. Intervenors become parties to the case, essentially additional plaintiffs or defendants. We see intervenors often in trade cases where either the foreign producers or domestic industry might intervene as plaintiffs or defendants to support the government decision, for example.

Corning Gilbert, Inc. v. United States poses an interesting question with respect to the status of amicus curiae in denied protest cases at the Court of International Trade. The underlying issue is the denial by Customs and Border Protection of a protest against the exclusion of merchandise found to infringe a U.S. patent in violation of 19 U.S.C. sec. 1337 (so-called "section 337"). Section 337 cases are initially decided by the International Trade Commission.

As is normally the case in a challenge to a denied protest, the importer is the plaintiff and the United States is the defendant. The case is before the Court for de novo review, meaning that the Court of International Trade is acting as a trial court and will render a decision based on the record made before it rather than reviewing the decision from Customs and Border Protection.

Note that the patent holder is not a party to the case. That may seem odd given that the purpose of section 337 is to protect U.S. patent holders (and others) from unfair competition by imports. The whole case seems to be about the patent holder's rights. Except that it is not.

This case is really about protecting the importer from an improper exercise of authority by Customs and Border Protection in the exclusion of merchandise. In other words, the case is no longer about the patent holder (as it was at the International Trade Commission). Still, it seems clear that the patent holder might have something useful to tell the Court. And, in this case, the patent holder tried to exercise that opportunity by seeking permission to be an amicus party. Clearly, the patent holder would be arguing that the merchandise was properly excluded per the ITC order.

An important piece of background information is that the law specifically precludes intervenors in denied protest cases. 28 U.S.C. § 2631(j)(1)(A). So the patent holder had no opportunity to become an actual party. That left it with intervention as its only option.

But, the Court of International Trade noted its concern that status as amicus curiae might be used as an inappropriate alternative to intervention. That seemed to be the case because the patent holder wanted permission to file briefs in all motions and the ultimate disposition in the case, which is a acting a lot like a party. Given that, the Court denied the motion but stated that when, and if, the Court finds input from the patent holder on a given issue may be helpful, it will request a brief.

It is important to note that this does not create a blanket rule against amici in de novo customs litigation. That remains in the sound discretion of the trial court and other judges of the Court of International Trade have permitted amici  in these cases, including in section 337 cases. What it does mean, though, is that the question is likely to get more attention now than prior to this decision.


Sarah said…
I don’t see how being a friend of the court is really intervening. I can see why certain individuals would label it as such, but I don’t see how being a friend of the court is negative in any manner.

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