Guide to filing constitutionality lawsuits

You-Do-It Guide to Filing
Constitutionality Lawsuits

Gregory Aharonian


Article 1, Section 8, of the U.S. Constitution states in part: "The Congress shall have power ... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;".

This clause of the Constitution is the foundation of our patent and copyright laws, which Congress has created over the last two hundred years in the form of Title 17 of the United States Code (the copyright laws) and Title 35 of the United States Code (the patent laws). But laws can be stated imperfectly, and some laws can't anticipate all of the future, so courts have spent the last two hundred years interpreting and applying the patent and copyright laws, courts such as the federal District Courts and their Circuit Court of Appeals (a group of geographically related District Courts form a "circuit"), the Court of Appeals of the Federal Circuit (a court specializing in patent appeals), the Court of Federal Claims (a court specializing in money claims against the Federal government, for example, patent fee diversion), and the Supreme Court.


So problems with patent and copyright laws ultimately are constitutional law problems. There are at least two ways to address such problems for any specific patent or copyright law in question. The first is to convince Congress to change the specific law (for example, the term of copyright protection as specified in the law was changed when Congress decided to harmonize our term of copyright with those of other countries).

The second way is to file a civil lawsuit challenging the constitutionality of the law in question, asking the court to declare the law unconstitutional. If successful, the result tends to force Congress to pass a new law that complies with the court's opinion. This Web page is an introduction to filing such constitutionality lawsuits. The information was prepared by a non-lawyer, and it is meant to help educate you so that if you decide to challenge a patent or copyright law, you will be able to interact more effectively with a lawyer. But if you are willing to learn and research, the courts do allow citizens on their own to file constitutionality lawsuits (filed "pro-se"), popularly known in the filings by criminals in jail ("jailhouse lawyers") trying to get out of jail.

The best way to learn how to file constitutionality lawsuits is to read the lawsuit filings of other people. I have gathered together a collection of such files, and use them to illustrate the various aspects of preparing your filing. If you know of sources of texts to other filings, please let me know. Prof. Linda Krieger of the UC Berkeley School of Law has a series of Powerpoint slides reviewing the basic of civil lawsuits.


Your entry into the legal system starts at the federal District Court level. The federal rules on how the courts have to handle such lawsuits are in Title 28 of the United States Code. For some of the examples below, I base my comments on the practices of the United States District Court for the Northern District of California, which covers the city of San Francisco where I live. (One comment to the USDCNDCA - your URLs are very user-unfriendly). The Court has facilities in San Francisco, San Jose and Oakland. Rulings of the USDCNDCA are appealed to Ninth Circuit Court of Appeals, and appeals from the Ninth are made to the Supreme Court.


Constitutionality lawsuit filings require a court-provided cover sheet. The current fee for filing such a lawsuit is $150. Section Five of the cover sheet is where you specify the Nature of Suit, which includes one box, Property Rights, where you have one of three choices: 820 Copyrights, 830 Patents, 840 Trademarks. There are a variety of civil lawsuit court rules which govern how you file your lawsuit, and how your lawsuit proceeds through the local court. There are also federal rules that apply to all lawsuits - the Federal Rules of Civil Procedure (FRCP).


Constitutionality lawsuits are mostly an exchange of motions and orders between the court, the plaintiffs and defendants - prepare to buy a filing cabinet for all of the paperwork. As an example of this exchange of written materials, and the timeline for such a lawsuit, you can take a look at the court docket for Eldred v. Reno or court docket for SCO v. IBM.


Constitutionality lawsuits typically have at least eight sections:

Other types of civil lawsuits have other sections: A good example of this layout can be seen in the initial complaint in the case of Eldred v. Reno/Ashcroft. In some complaints, there are additional sections (for example, a list of case law the Plaintiff is relying upon). In other complaints, some of the sections are combined (for example, combining Jurisdiction and Venue with Parties). Two key things to remember is that 1) the courts expect a certain amount of standard information in the Complaint, Parties, Jurisdiction and Venue, and Standing sections, and 2) the Background section should have as little argumentation as possible - that is for the Counts section, where you have much more literary freedom. In the other sections, you are just setting the stage for your arguments, and you should stick to legal conventions as much as possible. You don't want a court rejecting your lawsuit over minor details. At the bottom of this Web page are links to the texts of a variety of (mostly) constitutionality lawsuits. They are all worth reading.

A few conventions. Typically, printed text is double spaced and the type should not be smaller than 12-point Times New Roman, and most pages should not have more than 28 lines per page. Papers submitted to the court should be on top-centered, two-hole punched, 8-1/2 inch by 12 inch white opaque paper of original or recycled bond quality with numbered lines. All paragraphs in the complaint are numbered sequentially, starting from "1". I am in the process of preparing a Word template that has all of these requirements, plus others. Check the local court rules for the exact requirements. Click here for more local court rules examples.