Shukh v. Seagate: Fired Inventors and their Former Employers

Alexander Shukh v. Seagate (Fed. Cir. 2015)

Mr. Shukh sued his former employer Seagate asking for a correction of inventorship under 35 U.S.C. § 256 as well as breach of contract and discrimination associated with his firing.

Because Shukh had already assigned-away his ownership rights to the patents, the District Court ruled that the Shukh’s standing for the inventorship claim hung on his alleged reputational harm due Seagate’s failure to list him as a co-inventor on six different patents. The district court also dismissed the state law allegations for failure to state a claim. At the close of discovery, the district court then dismissed the case on summary judgment – finding that Shukh had not produced evidence to prove the reputational harm.

On appeal, the Federal Circuit has vacated the lower court’s summary judgment –

Today, we hold that concrete and particularized reputational injury can give rise to Article III standing. As we noted in Chou, “being considered an inventor of important subject matter is a mark of success in one’s field, comparable to being an author of an important scientific paper.” 254 F.3d at 1359. We reasoned that “[p]ecuniary consequences may well flow from being designated as an inventor.” Id. This is particularly true when the claimed inventor is employed or seeks to be employed in the field of his or her claimed invention. For example, if the claimed inventor can show that being named as an inventor on a patent would affect his employment, the alleged reputational injury likely has an economic component sufficient to demonstrate Article III standing.

We find that there is a question of material fact as to whether Dr. Shukh’s omission as a named inventor on the disputed patents caused him reputational injury. Dr. Shukh presented evidence such that a trier of fact could conclude that this omission injured his reputation in at least two ways: first, it harmed his reputation as an inventor in the field of semiconductor physics, and second, it contributed to his reputation for poor teamwork due in part to his accusations that others were stealing his work. Moreover, Dr. Shukh presented evidence from which a trier of fact could conclude that these reputational harms had economic consequences—namely, that Dr. Shukh was unable to find employment after he was terminated from Seagate.

This case highlights a troubling issue for inventors. The difficulty for inventors is that an inventor does not automatically have standing to sue for being improperly excluded from being listed as an inventor. Rather, the inventor must be able to allege additional cognizable harm before the court will hear the case.

Hereby Assign: Shukh’s employment contract with Seagate included a statement that he “hereby assign[s]” his future invention rights to Seagate. Although these contracts are generally interpreted by state-law, the Federal Circuit issued a 1991 patent-specific ruling that this clause results in an automatic assignment of rights. Filmtec Corp. v. Allied-Signal, Inc., 939 F.2d 1568 (Fed. Cir. 1991). The Filmtec outcome should be contrasted with agreements where employees “agree to assign.” In the agreement-to-assign case, legal title does not shift until the inventor actually does assign after inventing. In his appeal, Shukh asked the Federal Circuit to overrule Filmtec – which it refused to do here on stare decisis grounds. “[W]e cannot overrule that holding without en banc action.”

The suggestion for en banc action has some strong backers. In his dissenting opinion in Stanford v. Roche, Justice Breyer challenged the Federal Circuit rule. Relying upon history and tradition, Justice Breyer wrote that the initial “hereby-assign” employment contract as creating equitable title in the invention whose legal title does not automatically transfer.

Given what seem only slight linguistic differences in the contractual language, this reasoning seems to make too much of too little. Dr. Holodniy executed his agreement with Stanford in 1988. At that time, patent law appears to have long specified that a present assignment of future inventions (as in both contracts here) conveyed equitable, but not legal, title. See, e.g., G. Curtis, A Treatise on the Law of Patents for Useful Inventions §170, p. 155 (3d ed. 1867) (“A contract to convey a future invention . . . cannot alone authorize a patent to be taken by the party in whose favor such a contract was intended to operate”); Comment, Contract Rights as Commercial Security: Present and Future Intangibles, 67 Yale L. J. 847, 854, n. 27 (1958) (“The rule generally applicable grants equitable enforcement to an assignment of an expectancy but demands a further act, either reduction to possession or further assignment of the right when it comes into existence”).

Under this rule, both the initial Stanford and later Cetus agreements could have given rise only to equitable interests in Dr. Holodniy’s invention. And as between these two claims in equity, the facts that Stanford’s contract came first and that Stanford subsequently obtained a postinvention assignment as well should have meant that Stanford, not Cetus, would receive the rights its contract conveyed.

In 1991, however, the Federal Circuit, in FilmTec, adopted the new rule quoted above—a rule that distinguishes between these equitable claims and, in effect, says that Cetus must win. The Federal Circuit provided no explanation for what seems a significant change in the law. Nor did it give any explanation for that change in its opinion in this case. The Federal Circuit’s FilmTec rule undercuts the objectives of the Bayh-Dole Act. While the cognoscenti may be able to meet the FilmTec rule in future contracts simply by copying the precise words blessed by the Federal Circuit, the rule nonetheless remains a technical drafting trap for the unwary. It is unclear to me why, where the Bayh-Dole Act is at issue, we should prefer the Federal Circuit’s FilmTec rule to the rule, of apparently much longer vintage, that would treat both agreements in this case as creating merely equitable rights.

The majority in Stanford v. Roche did not particularly address the issue.

58 thoughts on “Shukh v. Seagate: Fired Inventors and their Former Employers

  1. 6

    THIS WORKED Wonderfully

    The alleged inventor may send a letter to the USPO (and probably any foreign filings) for inclusion in the patent file explaining there is a dispute regarding correct inventorship; and as an extensive detailed report as he desires. The USPTO actually clearly encourages informing the PTO of such issues. Therefore, the inventor is not doing anything unethical or illegal.

    The first step is to do it with one patent and then suggest to the employer that he review the file. Without being told, they will realize that a similar report could eventually appear in every patent, continuations, division, etc. They then cannot ethically sell (and maybe not license) the patent without informing the potential receiver that the patent’s validity is challenged. In addition, a potential licensee might negotiate a lower fee if there is the potential of disruption of the assumed protection of the patent.

    In addition, this information in the file could be an excellent asset for any competitor wanting to go ahead and use the knowledge within the patent without obtaining a license; or is a victim of an infringement charge.

    Next, the inventor has the option of posting a legal notice in an appropriate publication listing the patent numbers at issue and a message about the dispute; and then sending a copy of the paper to the boss. This can really raise very loud, long and repeated screaming and cursing back at headquarters and with their lawyers.

    If the company knows that the inventor has good documentation and witnesses he could negotiate an excellent settlement. At this point, it may be difficult for the company to correct the patents without essentially admitting that they were fraudulently obtained (an other reason for invalidity). A big cash settlement may be the best option.

    If any of you know the inventor’s lawyer please forward this item to her.

    1. 6.1

      Yes, that IS one tactic that has been used. But re: “..the inventor is not doing anything unethical or illegal.” ? Maybe not, but if he or she does not have solid evidence of co-invention of what is NOW being claimed then his or her attorney who is filing such inadequately supported allegations in the PTO may be.
      Also if the co-invention claims are unfounded yet cause a palpable loss of patent value there may be a potential cause of action called “tortuous interference with business relationships” to think about? Also, assuming the employment agreement to assign employee future inventions while employed holds up in the subject state, will “assignor estoppel” interfere with alleged-co-inventor efforts to mess with their former employers patent enforcement? Plus, to actually succeed in proving improper inventorship with a legal challenge, there is great difficulty in providing “clear and convincing evidence” against the issued patent validity and in addition overcoming the case law requirements for inventorship allegations to require corroboration – that is, they cannot be based solely on the testimony of the alleged inventor. Etc.

      Nevertheless, especially since under the AIA inventorship can now be easily corrected without any longer requiring any statement as to whether the original inventorship designation error was innocent or not, it would seem to behoove the patent owner in most cases to seriously consider that if the basis for it is viable?

    2. 6.3

      I R S, III, I am all but sure that Seagate could care less about the validity of the patent in this case. It is just one of thousands it holds, and the others are probably sufficient for its business purposes.

      What appears to have happened is that the guy wore out his welcome at Seagate; and that his complaint about not being a named co-inventor on one patent, right or wrong, was just the last straw.

  2. 5

    Naturally, no US court would stop to consider whether Congress intended to comply with the USA’s international obligations under the Paris Convention, Article 4ter.

    This simply says that “The inventor shall have the right to be mentioned as such in the patent.”

    No ifs, no buts. It doesn’t say “The inventor shall have the right to be mentioned as such in the patent if he would otherwise suffer reputational damage.”

    Nor does 35 USC 256 as enacted by Congress say that. It just requires “proof of the facts and such other requirements as may be imposed”.

    OK, “other requirements” could be imposed. But before imposing one which violates the USA’s treaty obligations, shouldn’t the courts ask themselves whether that was the Congressional intention?

    1. 5.1

      Congress did not have an intention with the treaty…

      (treaties are the stuff of the executive, and as Ned has pointed out, effectively treaties are not typically self-enacting)

      1. 5.1.1

        The executive signs treaties. Since they are not self-enacting, it requires Congress to pass a corresponding law.

        Typically, therefore, the executive only signs treaties that it is confident that Congress will enact. Or more likely, after Congress already has enacted an appropriate law. If Congress turned around and said ‘no’, then there would be a problem.

        Congress enacted this particular treaty obligation (Paris Art. 4ter) by passing 35 USC 256. Is there any evidence that it only meant to comply with Paris in some cases and not others?


          Ipman, treaties can be self-executing if they are phrased that way and ratified that way.

          Just for example, consider the law of war treaties.


              Because of your statement here:

              “The executive signs treaties. Since they are not self-enacting, it requires Congress to pass a corresponding law.”


          IP Man,

          You’re correct that Congress must agree (concur) in any treaty made by the President, namely two thirds of the Senate “present.” Article II, Section 2, Clause 2 (the “Treaty Clause”). But as many would be surprised to hear, many of the U.S.’s international obligations are not done through the Treaty Clause because the requirement that two thirds of the Senate must “concur.” Instead, many of these are done through executive order.


            Thanks for that, EG. I accept that in general there may be more than one way for the USA to implement a treaty obligation.

            However, the fact remains that this particular treaty obligation was not implemented by executive order. It was implemented the enactment of 35 USC 256 by Congress, in conjunction with various other provisions of 35 USC. Is there any evidence that Congress didn’t intend to comply fully with the treaty?


              You mean besides the actual words of the law passed by Congress…?

              After all, look at how long it took us to implement various portions of the Berne treaty.

              (I think that you are assuming far too much in the passing of the law as some type of “Congress must mean to implement ALL of the treaty” – I don’t think it’s proper to assume that conclusion; now if you can map the treaty element to an actual part of what Congress did enact, then you may have a point. I haven’t seen you do that yet, though)


                In other words…

                Congress enacted this particular treaty obligation (Paris Art. 4ter) by passing 35 USC 256.


                But importantly here, maybe not.

                Is 256 the mirror image of 4ter? If not, then why not?

                (Mind you, I don’t know as I have not checked, but I am pointing out that if language other than the mirror language was used, then a very real argument can be made that our Congress did want something different.

                1. The reason the wording of 35 USC 256 doesn’t exactly mirror Paris 4ter is other parts of 35 USC effectively require that the inventor should be mentioned. Indeed, pre-AIA it required that the inventor should be the applicant.

                  However, this leaves a gap if someone files a patent application with the incorrect inventorship. To comply with Paris 4ter, the USA has to provide a way for the true inventor or co-inventor to exercise the right to be mentioned. Congress did that by enacting 35 USC 256.

                  Not sure why you mention Berne? For about a century, US copyright law was not compliant with Berne, and so the USA didn’t join. Then Congress decided to amend the law to remove the incompatibilities, with the intention of joining.

                2. I mention it because it contains an analogous case of a possible “assumption” which would have been in error given the long gap and the eventual closing of that gap.

                  Bottom line: you cannot assume of impute “intent” to Congress absent actual affirmative intent. Not even “it makes sense” does NOT equate to intent.

                  It just does not.

                  Our sovereign – and the respect for what any one sovereign may or may not choose demands such.

                3. Anon, there was a long gap (100+ years) during which Congress clearly had no intention of joining Berne, and the USA did not do so.

                  There was almost no gap at all between them changing the law to comply with Berne and the USA joining.

                  How is that analogous to the present issue?

                4. The analogy is on the original treaty having a gap between more than one set of Congress actions – parts of Berne were enacted over time. It’s as if “it would make sense” if the first part did it all, but that’s just not how Congress did it. This just goes to show that you cannot impute “intent,” or as you are doing, assume intent and then ask for “proof” otherwise.

                  You need to show the intent directly.


              IP Man,

              You’re most welcome. But as anon correctly points out Congress too tends not to rely upon the express mechanism of the Treaty Clause. I can’t put my finger on a specific example, but I know I saw/heard the Congress may approve of the treaty but not through a two thirds Senate concurrence. Also, even if the Treaty Clause is followed to the letter, the treaty itself is not self enacting, which is why Congress had to enact 35 USC 256 in your example, and which, again, may not necessarily reflect a following the exact terms of the Treaty Clause.


                So we’re agreed that Congress enacted 35 USC 256 because the Paris Convention is not self-enacting. It then seems irrelevant to wonder whether they relied on the Treaty Clause.

                But no-one has answered my question about whether there’s any evidence that Congress didn’t intend to implement the Paris obligation in full.

                1. IPMan,

                  Your assumption is in the wrong direction – given the fact that any such assumption to have effect requires the treaty to state such (see Ned’s note); and given the observation I made that ANY change in language is easily seen as an expression that Congress wanted something different, the “assumption” of wanting the treaty implemented in full is just not a valid assumption to make. That path of logic might be a valid assumption if we had a system of de facto implementation.

                  We do not.

                2. Anon, I think it’s you that has it the wrong way round. Ned suggested that a treaty might be self-executing if it was phrased that way and ratified that way. My point is that this particular treaty (the Paris Convention) isn’t phrased and ratified that way. It’s not self-executing. You’re absolutely right: you don’t have de facto implementation in this case.

                  Nor was Art 4ter implemented by an executive order. So how was it implemented? It was implemented by Congress in 35 USC.

                  Sure, Congress has the power not to comply with the treaty, if that’s what it wants. But for a change in language to signal that Congress wanted something different, you can’t just say “it’s differently worded”. The language needs to be clear.

                  So I’ll ask you yet again: where is the clear language that says that Congress wanted something different? All I’m seeing in 35 USC 256 is that Congress wanted an inventor to have the right to be mentioned in the patent if he could prove that it had been wrongly filed without him. Differently worded than Art 4ter, yes. But no sign of a different intention.

                3. Sorry IPMan, but it is you that needs to be able to explain a difference in language absent clear and unequivocal intent.

                  If the intent was there, the language would not be changed as no change would be necessary.

                  A change means that different words (and different effect) was desired.

                  It is as simple as that (I’m sure that I can find the statutory construction doctrine for you, but I just don’t feel like it at the moment)

                4. Anon, you’re arguing that the difference of words between 35 USC 256 and the Paris Convention means that Congress didn’t intend to comply with Paris.

                  How does the wording of 35 USC lead you to the conclusion that Congress intended that an inventor should be denied the right to be mentioned in his patent if he fails to show reputational damage? Since you think the precise wording is important, please quote it.

                5. The burden is on you to show intent.

                  It still is.

                  I merely offered you the rather plain notion that if Congress changed the words from the words of the treaty that it is a valid point that they did so deliberately.

                  That’s just ordinary statutory interpretation.

                  Again, the onus is on you and you simply cannot assume that the intent was there. Any spectrum of a portion of a treaty may be enacted, and it very much matters the alignment of the two different things.

                6. I’m just reading the words that Congress enacted. You’re arguing that they didn’t fully mean what they said. For that, the burden is on you.

                7. IPMan,

                  You are not paying attention.

                  Read again what I actually wrote at (and your reply) as well as my replies 10/5 at 2:01 and 9:06.

                  You yourself admit that Congress used different words, so you are NOT “just reading the words that Congress enacted” and I am NOT arguing that “they didn’t fully mean what they said

                  Instead I am the one that is arguing that the words of Congress means exactly what the words of Congress means. The plain fact that those words of Congress are different than the words of the treaty means that the burden is on you (yes, still).

                  You are the one that needs to somehow morph the meaning of the different words chosen to arrive back at any words in a treaty. You just don’t get to assume that different words DON’T mean something different. If Congress did want the same words, they had every prerogative to use the same words. If they did not use the same words (as the treaty), then the default is that they introduced that difference for a reason.

                  This is standard statutory construction stuff my friend.

                8. “Instead I am the one that is arguing that the words of Congress means exactly what the words of Congress means.”

                  OK, then please answer my question. Where do the words of Congress say that the inventorship can only be corrected if the inventor can show reputational damage?

                  This is the issue where the words of Congress agree with the intention behind Paris 4ter (albeit with different language), but the result produced by the court doesn’t.

                  You’re very keen on the precise words of Congress. As I’ve already asked, please quote them.

                9. (albeit with different language)

                  Why the different language?

                  You are STILL making an assumption about intent with two different sets of words.

                  You are the one admitting this – there is no need for me to be precise about those words or to quote them.

                  What do the differences entail?

                  This – still – has the onus on you to substantiate your desire to bring the intent of one set of words (the treaty) into the intent of a different set of words (those of Congress).

                  I am not impressed with your level of effort to avoid substantiating the fact that you are making an assumption of intent with your professed admission of different words.

                10. I note that you are consistently failing to answer my question:

                  How do the words of Congress support the notion that they intended that there should be no correction of the inventorship if the inventor fails to show reputational damage?

                  Do you deny that Congress intended that inventorship should be correctable?

                  Do you contend that they intended reputational damage to be a limitation on that?

                  As to why the language is different, I’ve already answered that. Other parts of 35 USC already effectively require that the inventor should be mentioned, so the only gap to be filled by 35 USC 256 is to enable correction if that goes wrong.

                11. You are still not reading what I am actually writing.

                  I need not answer your question, nor delve into the exact words myself.

                  You are the one who wanted to carry intent from one set of words written by the executive over to a different (your admission) set of words by a different player.

                  The onus is – and remains – on you to show that “intent” survives the change in words.

                  Your onus, not mine.

                  All I need to is point out the axiom of claim construction and use your own admission to simply illustrate that you have not as yet done anything more than “assume.” Well, you did take a first step and offer the timing and piece part explanation, which may – but importantly, may not – show a transfer of intent. But we don’t know that for sure do we, as you have not shown it.

  3. 4

    Interesting post, Dennis. Two thoughts:

    1. I find it interesting that Breyer seems to be inconsistent in his approach toward “magic words” in legal documents. In Roche he didn’t care for the distinction between “hereby assign” versus “agree to assign language”, but more recently he was on board with the distinction between contracts that say a royalty is being paid after a patent expires (unenforceable against the licensee upon patent expiry) versus contracts that say the royalty payment is being amortized beyond patent expiry.

    2. Some of the patents at issue here have counterpart applications elsewhere. If those jurisdictions provide for the listing of inventors on patents (Israel, for example, give the inventor the right be listed as such even if he has no ownership interest in the patent), it might prove less expensive for Shukh to get his name listed via one of the non-US patents than to litigate in the USA. Obviously, that won’t help him vis-a-vis the US patents.

  4. 3

    Isn’t their a question of validity if an inventor is improperly excluded? Regardless of ownership, I thought in the US the actual inventors must be named.

    1. 3.1

      35 USC 282:
      (b) Defenses.— The following shall be defenses in any action involving the validity or infringement of a patent and shall be pleaded:
      (2) Invalidity of the patent or any claim in suit on any ground specified in part II as a condition for patentability.

      Then 35 USC 102
      (f) he did not himself invent the subject matter sought to be patented.

      Which applies to misjoinder [not an inventor and gets added] or nonjoinder [inventor and not joined].

      Federal Circuit on issue:

      If failure to comply with section 102(f) is proven by clear and convincing evidence, the claims of a patent will be held invalid. See Pannu v. Iolab Corp., 155 F.3d 1344, 1349, 47 USPQ2d 1657, 1661 (Fed.Cir.1998) (setting forth this standard in the context of nonjoinder). However, when a party has been misjoined or nonjoined, a patent may be saved from invalidity by operation of 35 U.S.C. § 256. See id. at 1350, 155 F.3d 1344, 47 USPQ2d at 1662.

      Solomon v. Kimberly-Clark Corp., 216 F.3d 1372, 1381 (Fed. Cir. 2000)

      Then Correctable by 35 USC 256 (a) USPTO or
      (b) Patent Valid if Error Corrected.— The error of omitting inventors or naming persons who are not inventors shall not invalidate the patent in which such error occurred if it can be corrected as provided in this section. The court before which such matter is called in question may order correction of the patent on notice and hearing of all parties concerned and the Director shall issue a certificate accordingly.

      1. 3.1.1

        slaf, you are quoting from 256 that went into effect for “proceedings commenced on or after September 16, 2012.”

        The new statute omitted “without deceptive intent.”

        There seems to be a lot of shenanigans that went on here at Seagate but not by Shukh. I wonder if it makes a difference to equity who is trying to correct the inventorship.


          More than just “omitted” Ned.

          It purposefully sought out and obliterated every instance of that phrase.

          Have you ever asked yourself, “Why?”

    2. 3.3

      Not only that, but even AIA applications require an inventorship oath or declaration made under penalty of perjury. 35 USC 115 as amended.

      1. 3.3.1

        One point here Paul is that Corp can proceed without the inventor and without an actual inventor oath under the AIA.

      2. 3.3.2

        Another point here comes from the timing of the Stanford v Roche case and the passage of the AIA after the Supreme decision.

  5. 2

    Dennis, thanks for the discussion of Filmtec. As Paul Morgan notes, the real question regarding assignments is whether Federal or State law controls. I am pretty sure, as I recall researching the issue at the time, that California law followed the historical common law rule that a present assignment of a future right is only an equitable assignment.

    I wonder if Dr. Shukh will ask for en banc review because if he wins he might eventually obtain part ownership of the Seagate patent at issue.

    1. 2.1


      The five patents, filed at various times, have multiple named inventors, in one case 10, some in common, but many not. There are multiple claims in each. If Dr. Shukh was a joint inventor of at least one claim, then he would have an undivided interest in an entire patent.

      However, my understanding is that if Dr. Shukh wins, it means that there was not common ownership of the inventions at the time they were made. Thus, pre-AIA 102(e) (application filed by another and patented or published), 102(f) (invention of another), and 102(g) (first to invent) come into play as prior art since 103(c) (102(e, f, and g) are not prior art if owned by the same person or subject to an obligation of assignment to the same person) doesn’t apply.

      On the other hand, Eli Lilly and Co. v. Aradigm Corp (CAFC 2004 via Google Scholar) contains a statement I don’t understand: “In a section 256 action alleging nonjoinder, however, the plaintiff does not have to put its patent assets at risk,” at page 1367.

      Is this true?

    2. 2.2

      Ned, better check if you are still practicing in CA, since my recollection of that Jan./Feb. 2011 ABA IPL “LANDSLIDE” magazine article was assertion of a position that application of CA law would have changed the result in the Stamford case in their favor?

      1. 2.2.1

        Paul, I think you are right there. Applying Cal law would have resulted in a Stanford victory. I have no clue why Stanford never raised this issue.

        But I can tell you that when I was at Seagate, one of our major Silicon Valley litigation firms, in at least two difference cases, told us that made no difference what law applied, when, in fact, it was outcome determinative. And it was not that we as inside counsel did not try to convince senior management otherwise. But, politics is what it is.

  6. 1

    Yes, unfortunately Stamford in their case failed to even argue that a California law applies to California employment agreements, and that there is no longer a federal common law of contracts that a Fed. Cir. panel is free to impose over state law after the 1938 Erie v. Tomkins Sup. Ct. decision, as noted in the Jan./Feb. 2011 ABA IPL “LANDSLIDE” magazine starting on p.24. It is an extensive legal research article on inconsistencies and conflicts in Fed. Cir. cases with basic Sup. Ct. principles on the [normal, unless Federally essential] utilization of state law versus “federal common law.”
    It would seem that an issue like “reputational injury” would also require application of state law.

    1. 1.1

      Whether you can recover for reputational harm is certainly a matter of state law; whether reputational injury is legally cognizable for Article III standing purposes is a matter of federal, constitutional law (and the answer to that is almost certainly yes, given that libel/slander were well-established by 1789). Those are two different questions.


          Please, please, please get into a profession that you can believe in.

          The cognitive dissonance is palpable.


          The crown would appreciate you coming down for a discussion on seditious libel – namely, your negative comments. Also, don’t argue they are truthful – that makes the crime worse. Welcome to 1790 legal process.

          Guest has a pretty solid argument, except legally cognizable harm usually requires some inquiry into whether the party seeking standing has any means for redress* – otherwise, why are we in court? So, they are two facets of the same issue – to have standing need (1) defendant is proximate cause of (2) harm and (3) redress.

          * As with most issues in the standing doctrine, this has, and will, be twisted on any given case – depending on how a majority views the merits [or policy of court resources].



              Great case for summarizing the law of article III standing.

              Did you cite it for the proposition that: (1) whether the plaintiff has stated a cause of action is not same as jurisdiction; (2) whether “assumption of jurisdiction” is what you view the Federal Circuit doing in this case?; or (3) to show that the Court has enforced its requirement for redress of an injury in fact stringently sometimes?

              On the cause of action issue:

              As we stated in Bell v. Hood, 327 U. S. 678, 682 (1946), “[j]urisdiction . . . is not defeated . . . by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover.” Rather, the district court has jurisdiction if “the right of the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another,” id., at 685, unless the claim “clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.” Id., at 682-683; see also Bray v. Alexandria Women’s Health Clinic, 506 U. S. 263, 285 (1993); The Fair v. Kohler Die & Specialty Co., 228 U. S. 22, 25 (1913).

              Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 89 (1998).

              Does the right to redress the harm must follow froma cause of action IN the complaint, as opposed to a conceivable cause of action?


                slaf, I think it is based on the complaint.

                I cited this case to the Federal Circuit on Sept. 11 for the proposition that the court must determine constitutional jurisdiction before it may decide any merits issue. Therefore, one cannot, it seems, get into the merits all that deeply.


            Guest has a pretty solid argument

            I’m not disputing that, given the “law”.

            I’m suggesting that the “law” that needs to be applied here is a joke, and a fairly bad one at that. I also think it’s a fairly difficult proposition to dispute but go ahead and argue that a law which requires folks to evaluate what another country would have done 250 years ago is a practical and sensible law.

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