Case 8:12-cv-01589-SDM-MAP Document 32 Filed 03/05/13 Page 1 of 4 PageID 508

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

MADSTAD ENGINEERING, INC., a Florida corporation, and MARK STADNYK, an individual, Plaintiffs, v. U.S. PATENT AND TRADEMARK OFFICE, TERESA STANEK REA, 1 in her official capacity as Acting Director of U.S. PATENT AND TRADEMARK OFFICE, and the UNITED STATES OF AMERICA, Defendants. No. 8:12-cv-01589-SDM-MAP

DEFENDANTS NOTICE OF SUPPLEMENTAL AUTHORITY

Defendants hereby submit a Notice of Supplemental Authority to alert the Court to new authority bearing on the issues raised in Defendants pending Motion to Dismiss (ECF. No. 29). On February 26, 2013, the Supreme Court issued a ruling in Clapper v. Amnesty Intl USA, 568 U.S. __, 2013 WL 673253 (Feb. 26, 2013), in which it overruled the Second Circuits ruling in Amnesty Intl USA v. Clapper, 638 F.3d 118 (2d Cir. 2011),

Under 35 U.S.C. 3, the powers and duties of the U.S. Patent and Trademark Office are vested in an Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office. Effective February 1, 2013, David J. Kappos resigned as Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office, and Teresa Stanek Rea became the Acting Under Secretary of Commerce for Intellectual Property and Acting Director of the U.S. Patent and Trademark Office. Accordingly, the named defendant for the subject civil action has changed. Fed. R. Civ. P. 25(d)(1).

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and held that the plaintiffs lacked Article III standing because their alleged future injuries were not certainly impending, Clapper, 2013 WL 673253 at *3, and that the plaintiffs allegation of present injury to protect against the possible future injury could not satisfy the requirements of Article III, id. The plaintiffs in Clapper attorneys and human rights, labor, legal, and media organizations, id. at *6 challenged Section 702 of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. 1881a, on the grounds that they frequently communicate with individuals who are likely targets of surveillance. Id. at *3, *6. The plaintiffs like Plaintiffs here advanced two theories of standing: first, that future harm was likely because of the reasonable likelihood that their communications would be the subject of surveillance; and second, that they had suffered present injury in order to avoid that likely future harm. Id. at *3, *6. The Supreme Court rejected both theories. First, the Court emphasized that in order for a possible future injury to convey standing, the injury must be certainly impending. Id. at *7. In so holding, the Court rejected the objectively reasonable likelihood standard applied by the Second Circuit. Id. at *8. The Court concluded that because the future event that the plaintiffs feared was speculative, the threatened injury was not certainly impending. Id. at *8-*11. Second, and of particular relevance to the pending motion in this case, the Court rejected the plaintiffs argument that they had standing as a result of present injury or harm incurred in preparation for the speculative future event. Id. at *11. It is worth quoting the Courts reasoning on this point at some length, as it is directly applicable to the case at hand:

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The Second Circuits analysis improperly allowed respondents to establish standing by asserting that they suffer present costs and burdens that are based on a fear of surveillance, so long as that fear is not fanciful, paranoid, or otherwise unreasonable. [Amnesty Intl USA v. Clapper, 638 F.3d at 134]. This improperly waters down the fundamental requirements of Article III. Respondents contention that they have standing because they incurred certain costs as a reasonable reaction to a risk of harm is unavailing because the harm respondents seek to avoid is not certainly impending. In other words, respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending. . . . Any ongoing injuries that respondents are suffering are not fairly traceable to 1881a. If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear. As Judge Raggi accurately noted, under the Second Circuit panels reasoning, respondents could, for the price of a plane ticket, . . . transform their standing burden from one requiring a showing of actual or imminent . . . interception to one requiring a showing that their subjective fear of such interception is not fanciful, irrational, or clearly unreasonable. [Amnesty Intl,] 667 F.3d at 180 (internal quotation marks omitted). Thus, allowing respondents to bring this action based on costs they incurred in response to a speculative threat would be tantamount to accepting a repackaged version of respondents first failed theory of standing. Id. (internal citations omitted). While the particular facts of Clapper are different from the facts here, the Courts analysis is directly on point. Like the plaintiffs in Clapper, Plaintiffs here base their argument for standing on a speculative future injury that is not certainly impending. And, like the plaintiffs in Clapper, Plaintiffs here allege that they are suffering present harm to prepare for this speculative future event. But the Supreme Court has now made it abundantly clear that such allegations are not sufficient to provide this Court with Article III jurisdiction where the underlying threatened event for which plaintiffs are planning is, as is indisputably the case here, not certainly impending. Respectfully submitted this 5th day of March, 2013,

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RAYMOND T. CHEN Solicitor SCOTT C. WEIDENFELLER AMY J. NELSON Associate Solicitors U.S. Patent & Trademark Office

STUART F. DELERY Principal Deputy Assistant Attorney General JOHN R. GRIFFITHS Assistant Branch Director United States Department of Justice Civil Division, Federal Programs Branch

/s/Scott D. Levin SCOTT D. LEVIN /s/Matthew A. Josephson MATTHEW A. JOSEPHSON Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch