by Dennis Crouch
Cooper v. Lee and Cooper v. Square are both ask the same question: whether 35 U.S.C. §318(b) violates Article III of the United States Constitution, to the extent that it empowers an executive agency tribunal to assert judicial power canceling private property rights amongst private parties embroiled in a private federal dispute of a type known in the common law courts of 1789, rather than merely issue an advisory opinion as an adjunct to a trial court.” The issues here are also parallel to those raised in MCM Portfolio v. HP (“Does IPR violate Article III of the Constitution?”). The cases received a boost this month with the Court’s call for response (CFR) in Cooper v. Square. Square had previously waived its right to respond, but its response is now expected by October 11, 2016. Under Supreme Court R. 37, the Call for Response reopens the period for filing of an amicus curiae brief in support of petitioner. (~ due October 8, 2016). Eight Amici Curiae briefs were filed in MCM and two in Cooper v. Lee. In general, each brief additional brief incrementally increases the odds of certiorari. Statistical analysis also suggests that a call for response significantly increases the odds of certiorari being granted.
I wrote earlier this week about the new IPR process challenge in Ethicon where the patentee has challenged Director Lee’s delegation of institution decision authority to the PTAB. The case is one of statutory interpretation but uses the separation-of-function doctrine as an interpretive guide. The same question is also presented in LifeScan Scotland, Ltd. v. Pharmatech Solutions, Inc. Both petitioners (Ethicon and LifeScan) are owned by J&J.
The final new petition is a personal jurisdiction case: Mylan v. Acorda. The Hatch-Waxman setup involved Mylan preparing and filing its abbreviated new drug application that created a cause of action for infringement under 35 U.S.C. 271(e)(2). Although the ANDA preparation occurred in West Virginia and the filing in Maryland, the infringement lawsuit was filed by Acorda in Delaware. Mylan asks: “Whether the mere filing of an abbreviated new drug application by a generic pharmaceutical manufacturer is sufficient to subject the manufacturer to specific personal jurisdiction in any state where it might someday market the drug.” The argument builds on the non-patent decision Daimler AG v. Bauman, 134 S. Ct. 746 (2014). In the pro-business case of Daimler, the Supreme Court reduced the scope of general personal jurisdiction to states where the defendant company is incorporated or has its personal place of business.
In the claim construction front, the Supreme Court also called for a response in Google v. Cioffi. In that case Google suggests an interpretative principle of “strictly construing” amended claim language against the patentee. [GoogleCioffiPetition]
On the merits side – we have three patent cases pending oral arguments. First-up is the design patent damages case of Apple v. Samsung. Although not a party, the Solicitor General has requested to been granted leave to participate in oral arguments. Its brief, the SJ argued (1) Section 289 does not permit apportionment but rather requires award of the infringers profits on the relevant article of manufacture; but (2) the article of manufacture can be a “component” rather than a finished product sold to end-users. In the end, the SJ argues that the jury should have been tasked with determining the appropriate article-of-manufacture and that the case should be remanded to determine whether a new trial is warranted. Briefing continues in both SCA Hygiene (laches) and Life Tech (Component Export liability).
1. Petitions Granted:
- Briefing: SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, No. 15-927 (laches in patent cases)
- Briefing: Samsung Electronics Co. v. Apple Inc., No 15-777 (design patent damages calculation)
- Briefing: Life Technologies Corporation, et al. v. Promega Corporation, No. 14-1538 (Whether the Federal Circuit erred in holding that supplying a single, commodity component of a multi-component invention from the United States is an infringing act under 35 U.S.C. § 271(f)(1), exposing the manufacturer to liability for all worldwide sales.)
2. Petitions awaiting invited Views of SG:
- Exhaustion: Impression Products, Inc. v. Lexmark International, Inc., No. 15-1189 (unreasonable restraints on downstream uses)
- BPCIA – Notice of Commercial Marketing: Sandoz Inc. v. Amgen Inc., et al., No. 15-1039 (Does the notice requirement of the BPCIA create an effective six-month exclusivity post-FDA approval?) (cross-petition asks for recourse on failure to dance)
- Antitrust Reverse Payments: GlaxoSmithKline, et al. v. King Drug Company of Florence, Inc., et al., No. 15-1055 (antitrust reverse payment – appeal from the 3rd Cir.)
3. Petitions for Writ of Certiorari Pending:
- Venue in Patent Cases: TC Heartland LLC v. Kraft Food Brands Group LLC, No 16-341 (Does the general and broad definition of “residence” found in 28 U.S.C. 1391(c) apply to the patent venue statute 1400(b))
- BPCIA – Notice of Commercial Marketing: Apotex Inc., et al. v. Amgen Inc., et al., No. 16-332 (effectively extending exclusivity to 12 1/2 years; complement to the Sandoz petition)
- Personal Jurisdiction: Mylan Pharmaceuticals, et al. v. Acorda Therapeutics, et al., No. 16-360 (does an ANDA filing create nationwide specific jurisdiction?)
- Anticipation: Grunenthal GmbH v. Teva Pharmaceuticals USA, Inc., et al., No. 16-296 (OxyContin patent – when is an element ‘inherently’ disclosed by the prior art for anticipation purposes)
- Licensing: DataTreasury Corp. v. JP Morgan, No. 16-359 (appeal from 5th Circuit) (Whether a most-favored licensee (“MFL”) clauses in an intellectual property license agreement applies retrospectively to require refund if better terms are later given to another licensee?) [DataTreasuryPetition]
- Obviousness: Purdue Pharma L.P. v. Epic Pharma, LLC, 16-289 (whether the circumstances of invention can help prove non-obviousness) (The Purdue and Grunenthal cases stem from the same Federal Circuit decision but involve separate patents owned by the respective petitioners)
- Obviousness: MacDermid Printing Solutions, LLC v. E.I. DuPont de Nemours & Company, No. 15-1499 (is proof of a “reasonable expectation of success” necessary to combine references in an obviousness case against a claimed combination invention)
- Patent Attorney Malpractice: Encyclopaedia Britannica v. Dickstein Shapiro, No. 16-305 (Does the fact that the search-system is no longer patentable under Alice Corp excuse patent prosecutors from alleged prosecution errors made well prior to that decision – the patent).
- Laches: Medinol Ltd. v. Cordis Corporation, et al., No. 15-998 (follow-on to SCA); Endotach LLC v. Cook Medical LLC, No. 16-127 (SCA Redux); Romag Fasteners, Inc. v. Fossil, Inc., et al, No. 16-202 (SCA Redux plus TM issue)
- Safe Harbor: Amphastar Pharmaceuticals, Inc., et al. v. Momenta Pharmaceuticals, Inc., et al., No. 15-1402 (scope of 271(e) safe harbor)
- Post Grant Admin: Ethicon Endo-Surgery, Inc. v. Covidien LP, et al., No. 16-366 (separation-of-function – can the PTO Director delegate IPR institution decisions to PTAB); Same question presented in LifeScan Scotland, Ltd. v. Pharmatech Solutions, Inc., No. 16-377
- Post Grant Admin: MCM v. HP, No 15-1330 (separation of powers and right to jury trial)
- Post Grant Admin: Cooper v. Lee, No. 15-955 (whether IPRs violate Separation of Powers; two amici now filed in support); same question presented by Cooper in Cooper v. Square, No. 16-76.
- Post Grant Admin: Trading Technologies International, Inc. v. Lee, No. 15-1516 (mandamus challenging CBM initiation)
- Post Grant Admin: GEA Process Engineering, Inc. v. Steuben Foods, Inc., No. 15-1075 (Flip-side of Cuozzo: Can there be no appeal when the PTAB exceeds its authority by terminating an instituted IPR proceeding?)
- Post Grant Admin: Merck & Cie, et al. v. Gnosis S.p.A., et al., No. 16-125 (standard of appellate review of PTAB fact-finding in IPR proceedings)
- Post Grant Admin: Automated Creel Systems, Inc. v. Shaw Industries Group, Inc., et al., No. 16-108 (Achates redux – review of statute-of-limitations for filing IPR requests)
- Post Grant Admin: Pactiv LLC v. Lee, No. 16-205 (Does the “substantial new question of patentability” identified in a reexamination order limit the scope of the ex parte reexamination)
- Design Patents: Systems, Inc. v. Nordock, Inc., No. 15-978 (design patent damage calculations – similar issues as Samsung v. Apple)
- Appellate Review: Commil USA, LLC v. Cisco Systems, Inc., No. 15-1446 (appellate disregard of factual evidence)
- Eligibility: Jericho Systems Corporation v. Axiomatics, Inc., et al., No. 15-1502 (Eligibility of Patent No. 8,560,836 under Section 101 – Abstract Idea)[Jericho]
- Eligibility: Genetic Technologies Limited v. Merial L.L.C., et al., No. 16-188 (Sequenom redux; also question whether ineligibility is a proper subject of a motion to dismiss on the pleadings)
- Eligibility: Essociate, Inc. v. Clickbooth.com, LLC, et al., No. 16-195 (please clarify the meaning of ‘abstract idea’ and ‘inventive process’)
- Post Grant Admin: James L. Driessen, et ux. v. Sony Music Entertainment, et al., No. 15-1518 (Claim construction in IPRs – pro se case)
- Interference: Edward Tobinick v. Kjell Olmarker, et al., No. 15-1544 (question of procedure in interference case involving allegations of fraud)
- Arbitration: Neev v. Alcon Lensx, Inc., No. 16-48 (limits on arbitrator autonomy in patent cases)
- ITC Jurisdiction: DBN Holding, Inc. v. International Trade Commission, No. 16-63 (Does the USITC have jurisdiction over articles imported in order to infringe, but that do not themselves practice the invention at import).
- Claim Construction: CSP Technologies, Inc. v. Sud-Chemie AG, No. 16-238 (unduly narrow claim construction)
- Claim Construction: Google, Inc. v. Alfonso Cioffi, No. 16-200 (holding prosecution history against the patentee)
- Jurisdiction: GeoTag, Inc. v. Google Inc., No. 16-268 (Whether a compulsory counterclaim can satisfy the case or controversy requirement under Article III of the Constitution if there was no case or controversy at the time the complaint was filed?)
4. Petitions for Writ of Certiorari Denied or Dismissed:
- None so far this term.
5. Prior versions of this report:
An interesting thought:
link to theconversation.com
[T]he longer we have an evenly divided court, the more likely it will be the justices will act more modestly, and take more heed of Hamilton’s warning that they exercise “judgment” not “will.”
Then the less interestingone:
Maybe a good answer to the question of when the court should be allowed to impose a national rule on the rest of us is that it should do so only when there is at least some agreement among justices of different political stripes that such a rule is essential to our constitutional order. If the rule is not essential, perhaps the justices should act with more humility. That is much more likely to happen on an equally divided four-to-four Supreme Court than on a court where five or more justices can unilaterally impose their will.
Yes, it’s time for the pundits to be s00per d00per concerned about this now. And we all know why.
You sound like you never took Con law…
(and quite unaware of the dynamics of the Justices in the 101 cases since 1952)
You sound like you never took Con law… (and quite unaware of the dynamics of the Justices in the 101 cases since 1952
Deep, deep stuff.
Keep the laughs coming, “anon.”
Your poker tell has changed a little – but it is still there.
My comment runs true – you are acting like controversy around the Court and its makeup is a recent thing.
It’s not.
you are acting like controversy around the Court and its makeup is a recent thing.
If you say so! You’re a s00per serious person.
LOL – now there is the full on poker tell.
Thanks for the confirmation, Malcolm
Talking about super serious people. Here’s a blast from the past for MM.
link to youtube.com
Couple more oldies and goodies.
link to youtube.com
link to youtube.com
One of 6’s intellectual equals, just today:
[T]his country handed everything to Barack Obama. He didn’t have to work for anything. Just because of the color of his skin he was given everything. And he still h@tes the country.
Deep, deep stuff.
Your Republican party, f0lks. Own it.
Watch Keith Ellison break it down for the w0rthless TV gasbags who are paid millions to tell everyone “what it all means.” This is priceless:
link to youtube.com
Did Crooked Hillary help disgusting (check out sex tape and past) Alicia M become a U.S. citizen so she could use her in the debate?
Actual tweet from actual Republican party Presidential candidate who will have the power to nominate Supreme Court Justices.
Anybody who votes for this guy is an id i0t.
Yup – write in Bernie.
(Unless you want to be a hypocritical CRP-munching “G-g-g-grifter” backed pawn of established Bank and Big Money and the same old Beltway Political machine…, but who cares about that because “Democrat” or something….)
Listen, MM, Hilary is equally as guilty of a lot of very heinous activity, she just does it the way it is supposed to be done, quietly.
Thus, I agree with you that Trump is a id i ot for publicly engaging in this kind of disparagement.
write in Bernie…
My vote is imbued with the spirits of magic, loyalty, laughter, kindness, & generosity… I can’t just give it away to someone who doesn’t make me feel special…
You enjoyed the scenes of Hillary and Bill lying to the news people back in the day?
Frankly I just happened to stumble upon this, but I’m starting to understand better why they called him slick willy and everyone from back then is all hating on Hillary for “lying”.
cert granted in Lee v. Tam
That should be an interesting argument.
Whether the disparagement provision of the Lanham Act, 15 U.S.C. 1052(a), which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment.
The NFL Redskins will surely be interested.
The more I think about the SCotUS’s call for a response in Cooper, the better it looks to me for the stability of the IPR system. I should say that a premise of everything else I am about to say is that the SCotUS is either going to grant or deny Cooper and MCM as a package deal. In other words, they are not going to take one but not the other, even though Ned’s petition was much the better written. If you do not credit that premise, then you can ignore everything else I am about to say.
Why would the Court call for a response that has already been waived? It seems to me that it is because they have some number of justices who could add up to four, but at least some of whom are wavering. That is to say, they are half-way there to voting for cert, but not all the way, and they want more information to make up their minds.
But why would they be wavering? After all, voting for cert does not commit you to any particular outcome in the merits phase. When in doubt, vote for cert. After all, it is hardly as if their docket is overfull. By historical standards, they take embarrassing few cases lately.
Here is where I veer more into speculation, but I seems to me that the most plausible reason why you might have wavering cert voters is that they are counting noses, and they count four solid “no” votes. That is to say, I am envisioning a scenario where (for example) Justices Kagan, Roberts, Breyer, and Ginsberg are solidly convinced that IPRs are constitutional, but Alito, Thomas, and Sotomayor are willing to take the case, and Justice Kennedy is up in the air.
Kennedy can see that this would simply result in another one of those embarrassing 4/4 ties with a per curiam affirmance of the opinion below. He says to himself, “if it is going to end with an affirmance one way or the other, either with a 5/3 majority voting to affirm or a 4/4 tie that results in an affirmance, why embarrass ourselves by taking the case.” In other words, his heart wants to take the case, but his head says no.
One of the solid “no” votes sees this wavering and says to him “Anthony, buddy, no need to decide right now. Let’s hear more from the other side and then we can decide.” Well, that is a terrific “out” from this dilemma. If you cannot make up your mind, there is nothing like “studying the issue” some more. That (in my guess) is why they are calling for a response that the respondent has already waived.
If that is the case, then it does not augur well for an eventual certiorari. After all, the response is only going to advance arguments for why the case should not be taken. It is unlikely, therefore, that the wavering justices will be any more inclined to swallow hard and vote for cert after the additional response than they are now. This play for time is just a prelude to an eventual “no” vote.
“After all, voting for cert does not commit you to any particular outcome in the merits phase. When in doubt, vote for cert.”
That appears to be actually the opposite of the standard Supreme Court tactics (given the volume of cases denied cert)
You also appear to think that there will be no movement of comparing the response (to deny cert) to the impetus for cert. That’s just not logical. An unconvincing (or relatively poor argument) may in fact push the needle towards the heart (as it were). Also, at some point (relatively soon – and quite likely within this SC term) we will see the number of Justices climb back to 9, so the entire “uhoh, only 8” is a bit on the “thin” side of reason.
An unconvincing (or relatively poor argument) may in fact push the needle towards the heart
That is a good point. I was sort of assuming that Square would do a competent job, but you are right that this is not a foregone conclusion, and a poor performance could weigh in favor of cert.
Also, at some point (relatively soon – and quite likely within this SC term)
Hm, here I disagree. I think that it is quite unlikely that we will have a new justice sworn in this term. Assuming that Sen McConnell et al. stand by their plan, nothing happens on that score until Jan. 2017 at the earliest. Imagining that Pres. Clinton simply reaffirms the Garland nomination (which is what I expect), there still have been no hearings on Garland. That will take another 6–8 weeks, so now we are into March. Tack on another 6–8 weeks of obstruction from the prima donna caucus and an extra two weeks of pearl clutching as we reevaluate whether the filibuster can or cannot apply to SCotUS nominees. Now where are into mid-may, and the SCotUS term ends in June.
This scenario, meanwhile, assumes that the democrats narrowly control the Senate. If the GOP retains control, then I doubt that they will vote to confirm anyone, or even agree to hold hearings on nominees.
In other words, the optimistic scenario is that a justice is confirmed just before the end of the term. I am very dubious that we will have a 9 member court for anything more than a tiny fraction of the 2016/17 term.
Ok – your “not this term” is plausible (but very dumb of the Repubs to do any stalling after the vote, as not sure what that will do – they cannot stall for all four years).
Oh yes they can. I would not be at all surprised (appalled, but not surprised) if the were not exactly the tactic that they adopt in the event that they win the senate but not the White House. There is simply so much at stake if the Court flips from a majority of Republican appointees to a majority of Democratic appointees, that they will prefer simply to wait until 2020.
“Oh yes they can”
^technically I think this is correct.
Technically perhaps – but as much a chance as Greg’s offering of Santa Claus, eh?
Like it or not, political capital remains real. For any party to engage in this “technically correct” path would be to self-immolate on the alter of political capital.
Oops – I thought 6’s comment was in relation to another subtopic of Greg’s – this belongs elsewhere….
they cannot stall for all four years
Really?
Why not?
It’s exactly what I’d expect Republicans to do. Of course, if the Dems were to do the same thing to Republicans it would mean the end of civilization.
Why not?
Because they don’t have an excuse (even a flimsy one) for doing so, and the political currency spent in such a Dumb @$$ move should be evident even to the Repubs.
They don’t really have a flimsy excuse for what they are doing now, but they have a large paid infrastructure (Heritage, Mercatus, etc) devoted to inventing pretenses where such are required (that is how we got ‘the Biden precedent’).
That is as much as to say, if they find that they need an excuse, one will be contrived, and FOX news will go to work publicizing and legitimizing the excuse as necessary. The citizenry (not lawyers, mind you, but voters as a whole) do not care enough about the Court for it to blow up in their faces if they simply stall the vacancy for another four years.
That should say “They don’t really have even a flimsy excuse for what they are doing now…”
Not only would they have to (somehow) come up with a new excuse, they would need to explain why their (sole) prior excuse just is not good enough.
Their present excuse is nonsense on stilts. Still and all, the embarrassment of their charade does not seem to pain them too terribly. To the extent that they feel it necessary to invent an excuse more complicated than “we feel that Hillary Clinton stole the election, and is therefore in no legitimate position to make a nomination,” they can easily invent a dozen that are at least as good as (which is to say, woefully poor) their present “excuse.” They have already shown that one does not need a good excuse.
As I said, that would (likely) cost too much political capital.
Political capital is a fiction. It does not exist. Rather like a “mandate.” “Political capital” is what a politician calls it when s/he thinks that there is popular support for his/her preferred course of action. “Principled resolve” is what s/he calls it when s/he believes that his/her preferred course of action lacks popular support. The words used to describe it, however, have no impact at all on the course of action pursued.
nonsense on stilts – sure, to most with some level of critical thinking.
But it still remains in the “plausible” zone.
As I sadi – not only do you not have that, you have to come up with some defense of why you DID have that, but no longer have that.
Ka-Ching.
Greg – seriously?
Have you not paid attention?
(I am most definitely NOT saying their excuse is a good one, not even a plausible one, but to say they don’t have one is even more implausible)
O.k., but if you are conceding that a good excuse is not necessary (“I am most definitely NOT saying their excuse is a good one…”), merely an excuse will do, my point is that you can always contrive an excuse. You may not be able to contrive a good excuse, but you can always contrive an excuse, and that is evidently all they need to maintain their stalling.
The consequences at stake are serious enough that I expect they will be willing to put up with a great deal of looking ridiculous in order to not give up the public policy victories that they have been winning since 1981. There is no law that they consent to fill a vacancy, so I expect that they would (if so empowered) decide that the vacancy be left unfilled.
Hopefully the Senate and White House will go to the same party after this election, and we will not have to test my supposition.
Their pre-election excuse has been “We are waiting for the election.”
Not only would they have to (somehow) come up with a new excuse, they would need to explain why their (sole) prior excuse just is not good enough.
As I said, that would (likely) cost too much political capital.
Let me respond this way. It used to be the case that filibusters were very unusual. A senator would only invoke the filibuster when one or a few of them felt really strongly about an issue. Then, starting in the 1970s, someone realized that there was no legally constraining reason why that had to be, and some Republican senators started using the filibuster much more routinely. When the senate changed hands in the 1980s, the more routine use of the filibuster had become the norm, and Democratic senators continued the trend of using it at the same rate as the 1970s Republicans. Then when the senate changed hands again in the late 1980s, the Republicans ratcheted up again, making the filibuster much more frequent than it had once been. This newly aggressive use of the filibuster would have seemed very awkward and indecorous to a 1970s Senator, but by the early 1990s, it was the new normal and it attracted rather little attention. Nowadays, we take it as a given that a mere senate majority is not enough to get legislation passed. Anything less than 60 votes is as good as none at all, and no one bats an eye when Sen. McConnell says as much.
I expect that this is where we are headed with the Supreme Court. Right now, it seems really shocking to us that a vacancy could simply be left unfilled. But there is no legal constraint preventing that, and there are people whose interests would be best served by leaving it unfilled, so they are going to attempt to see that it stay unfilled. This might provoke a few weeks of stern editorializing from the NYT and NPR, but in the end stern editorializing cannot make a senator vote if the senator does not want to vote. Pretty soon, the vacancy will simply become the new normal, and we will all learn to accept it as such.
The new norm will be that court vacancies only get filled when you have a senate and White House both in the hands of the same party. That will just be the new normal, and we will all adjust our expectations accordingly.
A filibuster over some bill and the filling of the Supreme Court are not comparable to the level of political capital involved.
I just don’t see your “new normal” coming to pass.
As Greg notes, this concept of “political capital” means precisely squat. In part, that’s because there’s a bottomless barrel of “political capital” for Republicans to spend when it comes to satisfying the nihilists who pull their strings. There’s no stunt that is too ridiculous for them and the so-called “liberal media” (LOL) will do whatever it can to excuse their actions because … they’re the Rich White Daddies. You know, the “Real” Americans, as opposed to these uppity women and shady foreign-looking people who don’t carry their long form birth certificates in their wallets like everyone else.
“ when it comes to satisfying the nihilists who pull their strings”
Coming from someone soooo oblivious to the strings behind Hilary, your comment is immensely ironic.
But hey, You think that such capital is “meaningless” and nothing I say will change your mind, so have at it.
Greg, elephants have long memories. They can remember back to Bork. They can remember back to Thomas.
Revenge is a dish best served cold.
Now here we agree, Ned. I am not sure whether Democrats will regret having politicized the judicial nomination process as they did, but Democrats should regret having done so.
Actually, even more than Bork, the really shameful judicial torpedoing was Miguel Estrada. Bork had at least an unsavory involvement in Pres. Nixon’s criminal cover-up. In other words, there was a plausible reason not to confirm Bork that went beyond his politics. There was not even such a pretense with Estrada. That was cold political calculation that violated existing norms, and the erosion of these norms is having seriously bad unintended consequences.
Greg, the only way forward is for the Dems and Reps to forge a compromise. Otherwise, every president is going to have a rough time getting his judicial appointments approved.
…and like it or not political capital is still very real and is the stuff that the comprises exchange.
Is there a bank where one can borrow this capital and put it to productive work?
What is the going rate of safe return on political capital?
I am fairly well gobsmacked to contemplate the sort of plausibility structure necessary to consider “political capital” a real thing, but “white privilege” a specious figment.
Whether or not you are gobsmacked – that is purely a function of YOUR belief system.
Sorry Greg, you have done that to yourself.
LOL
Objecting to Bork and Thomas was “politicizing” the nomination process?
LOLOLOLOLOLOLOLOLOLOLOL
Clarence Thomas?
ROTFLMAO
You think that such capital is “meaningless”
Correct. Invoking “political capital” as part of your explanation is rather like invoking Santa Claus or phlogiston. Political capital does not exist except in the imaginations of pundits, so it cannot have any actual effects in the real world.
And yet, it turns…
😉
The idea of quoting Gallileo to defend Ptolemaic epicycles (or at least their effective analog in the present discussion) is really quite beautiful, even if somewhat perverse.
Thank you
Re “they cannot stall for all four years.”
If they tried, what would be the valid legal recourse?
Exactly. Pundits can decry the obstructionism on Sunday talk shows, but that is about it. A few weeks of pundit censure and $2.50 together can buy you a cup of coffee.
LOL – in essence then, the Supreme Court can be “blocked” out of existence if all the Justices eventually die and Congress refuses to act…
Pretty much. And not just for the SCotUS. I see the same dynamic emerging for the circuit courts of appeal.
I expect that a total vacancy on the Court will never happen because in practice it arrives often enough that the Senate and White House belong to the same party. During those intervals, the first order of business will become a rush to confirm dozens of judges and justices all at once while one still holds the majority.
I will not be surprised, however, if we should see the Court dip down to just four or five justices at times.
I think that it is quite unlikely that we will have a new justice sworn in this term.
It’s extremely unlikely.
Well neither Cooper nor MCM made today’s list …
I am pleased to see that Tam made the list, however. The SCotUS usually reverses the CAFC, so here is a chance for them to restore the good old McGinley status quo ante.
SCOTUSblog had an interesting observation: 8 is a low number, even by summer conference standards, and the 8 that were selected are very “vanilla.”
Therefore:
1. If Cooper / MCM are not denied on Monday, it is a very positive sign in light of the Square development. In all likelihood, the Court would look to decide this with 9 Justices.
2. If Cooper / MCM are denied, the Article III challenges are effectively DOA, the Square development was a procedural anomaly, and patent validity belongs to the executive and legislative branches. In time, the US adopts a two-track patent system.
Procedural anomaly…?
How contrarian.
😉
Still thinking about that, eh?
Still laughing – did you not see my kudos below?
Two responses:
(1) I am not sure that I regard Tam as all that “vanilla.” As anon noted above, that will involve all the same issues as the Redskins case, and this is actually that is presently quite controversial.
(2) What do you mean by “two-track”? I have not heard that phrase applied to a patent system before.
Vanilla in terms of its impact. Controversial, yes. Impactful, no.
Two track – admin patent validity court; Art III infringement courts.
You don’t deal much with trademarks, do you anony?
The Tam case is hugely impactful.
It seems to me that Tam will be impactful even beyond trademarks. For one thing, it touches on first amendment and government speech, which can be a big deal.
For another, it touches on issues of “political correctness.” Those sorts of issues are political and social live wires, and it would be hard for the SCotUS to take any position on “PC” without it having serious ripple effects through out law, education, and commerce.
I agree.
Wait, am I supposed to be contrarian…?
😉
Greg, good thinking there.
Now, add in that only 7 justices will vote in MCM, Roberts being recused. Does that affect your analysis?
(If MCM is taken, Roberts will most likely participate in the merits phase.)
I am not understanding your point, Ned. Actually, I am not understanding two points:
(1) You think that Roberts would recuse himself from voting on cert, but not on deciding the merits? Why?
(2) How does the number of judges voting on cert make any difference to the story I told above? It takes four votes to take cert, regardless of how many justices recuse themselves. The four vote threshold does not decline if there are fewer justices participating.
Greg, Roberts has already recused himself. Unless that is changed, only 7 Justices will participate in MCM. If there are four votes to take the case, the outcome seems a foregone conclusion. Even if Roberts solves his conflict and joins the merits, his vote will likely be to reverse the Federal Circuit. That means MCM wins at least 5-3.
On Cooper, getting 4 votes does not mean that Cooper is going to win given that there could be a 4-4 split.
Given the posture of Cooper v. Lee (where the district court dismissed because Cooper could raise the constitutional issue directly in the IPRs and appeal “only” to the Federal Circuit), if the Supreme takes one of the two Cooper petitions, they will probably take Cooper v. Square and deny Cooper v. Lee. That is probably why they are interested in Square’s views before they finally decide. But it does look like they have already conditionally decided to take Cooper v. Square.
Anyhow, how do you think this will go given Roberts recusal in MCM?