Whether the Federal Circuit improperly supplanted the jury's fact-finding role and violated due process by granting a new trial on damages in a patent case based on a narrow interpretation of expert testimony standards

No question identified. : A copy of the Federal Circuit’s judgment is attached. App. la-48a. The jurisdiction of this Court would be invoked under 28 U.S.C. § 1254(1). 1. This case concerns Applicant’s patent: U.S. Patent No. 8,378,327. This patent is directed to the operation of smart thermostats in computer-networked heating and cooling systems. 2. Before trial, the district court denied Google LLC’s (“Google”) Daubert motion to exclude the testimony of EcoFactor’s damages expert. After trial, Google filed a motion for a new trial on damages, arguing that the testimony of EcoFactor’s damages expert was unreliable. The district court denied the motion. On appeal, in 2024, the Federal Circuit affirmed the district court’s denial of the motion for a new trial with a single dissent. Thereafter, in 2025, the Federal Circuit sitting en banc reversed its former decision, granting the motion for a new trial on damages. App. la-48a. In so ruling, the Federal Circuit deviated from the commonly-accepted precedent applied by other circuits regarding the harmless error doctrine and the application of standards under Federal Rule of Civil Procedure 702, creating unique carve-outs for patent law from other areas of jurisprudence. 3. The Federal Circuit limited en banc review to the issue of whether the district court adhered to Federal Rule of Evidence 702 and Daubert in its allowance of testimony from EcoFactor’s damages expert assigning a per-unit royalty rate to three licenses that were admitted in evidence without objection. App 4a-5a. While the Federal Circuit correctly stated that the decision of a trial court to admit expert testimony should be reviewed for an abuse of discretion, it failed to properly apply that standard. Instead, the Federal Circuit supplanted the jury as finder of fact, dismissing the entirety of an expert’s opinions because it found one allegedly critical fact relied upon by the expert to be unsupported. The Federal Circuit then inverted the harmless error standard in its application, placing the burden on the non-complaining party to prove the absence of prejudice or harm. . Applicant may file a petition for certiorari that would ask this Court whether a violation of the 7+ Amendment occurred where the Federal Circuit supplanted the jury as the find of fact in reexamining the verdict. Applicant may further ask this Court whether a due process violation has occurred where the Federal Circuit’s grant of a new trial turned on a question that was not included in the scope of the en banc’s ordered briefing and Applicant did not have an opportunity to be heard as to this issue. Applicant may also ask this Court whether Federal Rule Evidence 702 and the harmless error standard should be applied to patent cases like any other federal case. . An extension of time is requested because Applicant’s counsel had and have multiple other pending professional obligations that will interfere with counsel’s ability to file the petition on August 19, 2025. Those professional obligations include a trial that started on July 14, 2025 in the matter of Headwater Research v. Verizon, 2:23-cv-352 (E.D. Tex) (originally scheduled for June 23 and July 7 start dates), another trial starting on August 14, 2025 (Headwater Research, LLC v. AT&T Inc et al, 2:24-cv-228 (E.D. Tex)), and hearings on August 6, 2025 (Headwater Research, LLC v. Samsung Electronics Co., Lid., et al., 2:24-cv-228 (E.D. Tex.)); August 13, 2025 (Longitude Licensing Limited v. Amazon.com, Inc., 8:23-cv-039 (C.D. Cal.)); and August 29, 2025 (XR Communications v AT&T Inc. (2:23-cv-202 (E.D. Tex.)). Google LLC has indicated that it does not oppose the requested extension. For these reasons, Applicant requests that the time to file a petition for certiorari be extended from August 19, 2025 to September 19, 2025. Respectfully submitted, /s/ Brian D. Ledahl BRIAN D. LEDAHL ADAM HOFFMAN Russ AUGUST & KABAT 12424 WILSHIRE BOULEVARD, 12TH FLOOR August 8, 2025 Los ANGELES, CA 90