Supreme Court Patent Cases – September 28 Update

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)
  • BriefingLife 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 CasesTC 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).
  • LachesMedinol 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 AdminEthicon 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 AdminCooper 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 AdminTrading Technologies International, Inc. v. Lee, No. 15-1516 (mandamus challenging CBM initiation)
  • Post Grant AdminGEA 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 AdminJames 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:

165 thoughts on “Supreme Court Patent Cases – September 28 Update

  1. 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.

      1. 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.”

        1. 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.

              1. 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.

                1. 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.

                2. 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….)

                3. 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.

                4. 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”.

  2. 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.

  3. 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.

    1. 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)

    2. 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.

      1. 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.

        1. 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).

          1. 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.

              1. 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.

          2. 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.

            1. 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.

              1. 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.

                1. 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.

                2. 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.

                3. 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)

                4. 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.

                5. 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.

                6. 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.

              2. 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.

                1. 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.

                2. 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.

                3. 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.

                4. Greg, elephants have long memories. They can remember back to Bork. They can remember back to Thomas.

                  Revenge is a dish best served cold.

                5. 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.

                6. 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.

                7. 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?

                8. 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.

                9. Whether or not you are gobsmacked – that is purely a function of YOUR belief system.

                  Sorry Greg, you have done that to yourself.

                10. LOL

                  Objecting to Bork and Thomas was “politicizing” the nomination process?

                  LOLOLOLOLOLOLOLOLOLOLOL

                  Clarence Thomas?

                  ROTFLMAO

                11. 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.

                12. 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.

            1. 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.

                1. 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.

      1. 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.

      2. 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.

        1. 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.

              1. 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.

    3. 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.)

      1. 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.

        1. 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?

          1. Ah, I understand now. I did not know that Roberts had recused himself from MCM, but that totally changes my view of things. In that case, this cannot end up as another 4/4 split, so my “wavering” hypothesis does not make any sense (unless I discard my premise that the Cooper and MCM petitions move in tandem, but I see no reason to discard that premise).

            In any event, thanks for the info.

            1. Probably they have a checklist on procedures before they take a case. This might be one of them. If they had no interest, they would simply deny certiorari, would they not? They have asked Square to file its brief (which is somewhat expensive) only because they apparently have decided to take Cooper to the level of review. But to do an adequate review, they need Square to file a brief to see if there are any possible reason why they should not take the case, as in jurisdictional reasons, or the like.

  4. I wouldn’t be surprised to see the Mylan v. Acorda case get granted this term so there’s another opportunity for the Supreme Court to attempt to tackle the “stream of commerce.” If you look at the Fed. Cir. appeal, you had Paul Clement representing Mylan, Ted Olsen representing Acorda, and the Chamber of Commerce jumping in as an amicus. Those are big names that make a case far more likely to be granted than your usual case.

  5. I’d curious to know if there’s any attorney out there in a contested state who will admit that they are voting for Donald Trump mainly because they want “someone like Scalia” to be on the Supreme Court (because … Scalia!).

    I’m sure there must be some folks like that over at SCOTUSblog but they’d never admit it publicly.

    1. I would reply that there is a kernel of an interesting idea there.

      I would further venture a guesstimate that the legal industry – in gen eral is heavily skewed towards the liberal side (in no small part because many lawyers take the route through undergrad of the liberal sciences and humanities for the easy A)

      I would further guesstimate that your average patent attorney taking the different route through the hard science/engineering path would be starkly different (in gen eral), and tend much more strongly either towards the right or towards libertian.

      Maybe the good professor will undertake such a study…

    2. MM, Scalia was an excellent jurist overall. Now I think you do not like him because he was conservative on social issues. But anyone who wants a judge like Scalia on the court probably will vote for Trump precisely because they are conservative on social issues.

      It is amazing how presidential elections turn on “social issues,” not so?

      1. “Now I think you do not like him because he was conservative on social issues.”

        MM believes the whole gubmit should bow down to the “progressives” latest “progressive” whim because hey presto! Progress! Lulz.

        1. the whole gubmit should bow down to the “progressives” latest “progressive” whim

          Do you have something specific in mind that you’re worried about other than what’s in the pants of the person in the stall next to you?

          Personally I’d be pretty happy if we raise taxes on the rich, shrink the military budget, improve public education, fix/improve the country’s infrastructure, and replace the ACA with something far simpler. I don’t see any of these as cutting edge “whims”, really.

          1. “Do you have something specific in mind that you’re worried about other than what’s in the pants of the person in the stall next to you?”

            Yes, people voting for a person so that we can have a vag sitting at the big desk in the oval office. And about a thousand other things. From the small, like mandatory “sensitivity” training in the military and other government bodies to indoctrinate the masses in the latest PC nonsense. “Corporal Klinger” style trans folks now serving openly in the military while not even being given the medical treatment they need (psych help) on their medical plan and instead given “medical treatment” proven to not help them and likely to do them lasting harm (doubly as much if they then decide to “detrans” like most do eventually) all somewhat oddly on the gov dime. I’m rather against turning the military into a harmful body mutilation pipeline/factory for our own soldiers because of PC “accepting” and then “embracing” mental illness. And a whole variety of things on up to rather large things like obama threatening school funding because they don’t share his PC beliebs. Though I don’t really care where trans people go to the bathroom, but I do care about obama (or hillary) trying to force the rest of the country to allow them to go to the bathroom where he sees fit.

            And thats just on the sub-subject of “trans” people. They should be treated with respect, sure thing, as people. But they certainly should not then be abused by my own gov on my dime telling them to embrace their mental problem and then funding them chopping their body parts off so that they’re more likely to literally kill themselves (as if we don’t have enough suicide in the military as is).

            1. people voting for a person so that we can have a vag sitting at the big desk in the oval office.

              Totally different from people voting for a person so we can have a tough white daddy in the oval office!

              But 6 isn’t a mis0gynist t0 0l, f0lks. Nope. He’s a super thoughtful person, just thinking about his precious freedums.

              the latest PC nonsense

              Oh noes! 6 is being 0ppressed! His awesome views just aren’t getting the uncritical praise they deserve. Some “liberals” think he’s a j0ke. So sad.

              1. “But 6 isn’t a mis0gynist t0 0l, f0lks. ”

                You have no evidence for your implication that I’m a missogynicst. All you are is an ar se for even bringing the topic up.

                “a tough white daddy in the oval office!”

                This election has precious little to do with Donald’s sex, or in fact his race (which you already know, you just like to pretend otherwise). If Marion Le Pen or Frauke Petry was running against Hillary I’d be supporting Marie or Frauke. You know that just as sure as you know the sun rose in the morning.

                “Some “liberals” think he’s a j0ke.”

                Hardly, the liberals I know of are SCARED lol. Many are now explicitly saying so, and the others you can tell are in the same boat. As they probably should be, because their entire world view is under assault by simple facts brought forth by me and The Deplorables (TM lol). I literally don’t know even one irl that think us Deplorables are “a joke”. Indeed, as information starts to leak out to the masses and our ranks grow and absorb some dems, progressives get more and more scared.

          2. “Personally I’d be pretty happy if we raise taxes on the rich, shrink the military budget, improve public education, fix/improve the country’s infrastructure, and replace the ACA with something far simpler. I don’t see any of these as cutting edge “whims”, really.”

            You know that none of those are really on Hillary’s agenda except maybe the estate tax (which will be blocked by congress anyway), and except in general “improving education/infrastructure” (as is on all pres’s agendas but then rarely gets done) right? She wants to double down on the mess that is obamacare iirc. Tell Trump about this “simpler” idea and I’m sure he’s all ears. He might even be willing to raise rates on rich people a bit if died in the wool liberals would stop being an ar se to him and just try to parley with him. He is after all quite liberal himself.

            1. You know that none of those are really on Hillary’s agenda

              That’s not true but the more important point is that I’m voting for a representative who can lead, and who belongs to a party whose values more closely align with my own.

              which will be blocked by congress anyway

              Depends on who gets elected to congress. See my preceding comment.

              Trump …. might even be willing to raise rates on rich people a bit

              LOLOLOLOLOLOLOLOLOLOLOL

              1. “That’s not true”

                Horsehockey. Check her proposal for taxes, it’s nearly the exact same as Obamas (FOUR MORE YEARS LOL). She’s establishment bro, you know this from her contest with Bernie, they’re not looking to rock the boat.

                ” for a representative who can lead”

                I will grant you that she has rock bottom basic leadership capability, though nothing astounding (even by the report of those immediately around her). But her leadership capability pales in comparison to the amount of leadership that Trump displays all the time. Observe the difference in crowd sizes, just as one gauge. Observe how much more pumped his supporters are than Hillary’s. Observe the charisma differential.

                “Depends on who gets elected to congress. See my preceding comment.”

                If you think that the dems will take the house you’re on some strong sht br a.

          3. Well, MM, I am sure you are paying close attention to Trump’s observation that our whole misadventure in the Mideast has cost us 6 trillion with nothing to show for it. In this observation, he is criticizing both Republicans and Democrats, which is probably why the Bush wing of the Republican Party so despise him.

            I really think we need to elect someone who does not want to get us involved in other peoples wars at the drop of a hat. Vietnam was one of them.

            1. I am sure you are paying close attention to Trump’s observation

              Seriously?

              Other than the documentation of his profound personality dis0rders I don’t pay close attention to anything the guy says. He’s an id i0t.

      2. you do not like him because he was conservative on social issues

        Heck, I’m “conservative” on lots of “social” issues.

        But I’m not a walking fossil compelled to punch people from weaker tribes in the face just to validate the awesome power of my particular tribe’s race or religion. That’s the defining feature of Republican Party Presidential Candidate Trump’s supporters, and it’s that streak of yellow meanness they find most appealing in Scalia.

        1. Malcolm really is the Trump of the anti-patent world – and the hypocrisy of what he complains about vis a vis “Republicans” fits his very own behavior on these boards to a T.

          It’s uncanny.

        2. “He ck, I’m “conservative” on lots of “social” issues.”

          I ce rtai nly wo uldn’t know it to hear you sup port people te aring do wn every last “cons ervative” so ci al i ssue. Though I don’t doub t it at all. Near all of you ol d “libe rals” can’t be bothered to keep up with what non se nse the ki ds are getting into these days except what the main stre am med ia sp oon feeds you.

    3. Donald Trump, Republican Party CANDIDATE FOR PRESIDENT 2016:

      “Raise your hand if you’re NOT a Christian conservative. I want to see that. There’s a few of them. Should we keep them?”

      This guy is a complete idi 0t. And a lot of id i0ts out there are going to vote for precisely because he’s just like them

      And then when Trump l0ses they’re going to cry like babies.

        1. Anon does have kind of a point on the grifting thing. That’s pretty close to a decent way of describing giving talks for hundreds of thousands of dollars. Petty swindling. But I think more like “easy kickbacks”/corruption is probably the better term.

          1. 6, did you know at the time when Kennedy’s wealth became an issue the Democrats argued that being wealthy would make him virtually invulnerable to “pay for play?”

            1. I’m not sure about the context of that Ned, I wasn’t alive then and all. Was he wealthy BECAUSE of his pay for play like Hillary or did he have wealth from other sources? Because wealth can insulate you from pay for play (see donald’s low spending) unless you’re literally making your “wealth” by pay for play.

    4. MM, Scalia? Really? It’s all much simpler than that, isn’t it? As far as I can make out, from where I sit in Europe, huge numbers of voters react to the family name Cl-n-on extremely negatively. So negatively, in fact, that they are going to go to the positive effort of voting, all the while holding their nose, shutting their eyes, plugging their ears and switching off their critical faculties, to cast their vote for the other candidate, regardless of whatever attributes and character traits he habitually exhibits. Because for them the overriding imperative is that she shall not win.

      I mean, she’s not only a professional politician but also a trained lawyer? Is there any combination lying any lower down, in the public esteem?

  6. Remember when the Supreme Court used to have nine Justices?

    Ah, bygones.

    The imp0rtant thing is to respect the s00per serious Republican party and their awesome ideas. They’re not backwards Bible-thumping racists pandering to the least educated and working desperately to disenfranchise people who will never vote for them. Nope!

    They have s00per serious ideas about the economy. Like reducing taxes on the richest people! Nobody’s tried that before.

    1. How is this remotely relevant?

      (and how is the Hilary-backed-by-Big-Banks-and-assorted-G-g-g-grifters really ANY diffferent…?)

      1. Deciding who gets to be on the Supreme Court is a Big Deal.

        You haven’t noticed?

        Oh, right, you were too busy being “objective.”

        LOL

        1. Being objective means being able to see that either of the choices from the two main political parties are CRP.

          Enjoy your Hilary-CRP fest while trying to ig note the hugely “G-g-g-grifting” base of monetary support pulling the strings.

          1. either of the choices from the two main political parties are CRP.

            Our favorite candidates don’t always make it to the finals.

            You should write-in a protest vote! Hillary will be sure to take those protest votes into account when she nominates “Scalia’s replacement.”

            Regardless, I’m psyched that in six months we’ll very likely have our first woman President and, hopefully, more to come soon after that.

            1. Our favorite candidates don’t always make it to the finals

              Especially when the fix was in.

              But hey, keep on posting based on your feelings about “G-g-g-grifters” as if there is no hypocrisy in your views.

              1. when the fix was in.

                The “fix”? There was no “fix.” Trump was chosen according to the Party’s rules. His stated policies are perfectly aligned with 21st century Republicanism. Sure he’s an ign0ramus, a habitual l i a r and a shameless hypcrite but that’s hardly unusual for a Republican. This is the same party, remember, that relied on a shrinking base of ultraconservative religious fundamentalists and paranoid rural gun clutchers to keep them on life support for the past twenty years. You reap what you sow.

                1. I suppose this is how the world’s biggest crybabies are going to try to paint Hillary’s Presidency as “illegitimate” — she “stole” the primary from Bernie!

                  Never mind that I and a zillion other Bernie supporters have moved on.

                  Keep the laughs coming, please.

                2. MM still doesn’t know that the media/party complex is picking the dem candidates for him (just like they did with Barack), not him picking the candidates. He’s on board with this because “muh history!” and “muh hate for RAYCISM!”.

                3. 6,

                  Malcolm, is clueless about a lot of things.

                  He just runs on his “feelings” (of course, while accusing others of that which he does)

            2. “Regardless, I’m psyched that in six months we’ll very likely have our first woman President and, hopefully, more to come soon after that.”

              MM’s a big fan of sexist gynocentrism doncha know? White male saviorism, where did it come from? Is it really just chivalry run amok as some claim?

              1. MM’s a big fan of sexist gynocentrism

                Well, there is that historical thing where women couldn’t even vote for a long time. They’re at least half the population so, on average, we’d expect to see women Presidents a bit more often than once ever 200+ years.

                Maybe this is too nuanced for you.

                1. The liberal CRP of some type of “white privilege,” no doubt.

                  (aka: discrimination is “fine” just to even the scales, even though the liberals scream that discrimination is the worst thing ever.

                  Yes, discrimination is ev1L. ALL such discrimination is ev1L. You do not “even the scales” by employing the very same ev1L that you are lamenting.

                  But then again, Malcolm is really big on “The Ends justify the Means,” so why should his liberal policy “thinking” be any different?

                2. “You do not “even the scales” by employing the very same ev1L that you are lamenting.”

                  You can try to tell them this like a million times but they’re like la la la evil is mah weapon to combat evil!

                3. “The liberal CRP of some type of ‘white privilege,’ no doubt.”

                  If you don’t think being a white male in this country is a privilege, you’re either not paying attention, or you’re lying.

                  “Yes, discrimination is ev1L. ALL such discrimination is ev1L. You do not ‘even the scales’ by employing the very same ev1L that you are lamenting.”

                  So how do you “even the scales”? You enslave one group of people for a couple hundred years, and then consign them to second class citizenship for another hundred years or so, and then you just announce, “Oh, okay, I guess we’ll stop discriminating against you. You feel free to catch up with the rest of us now.”? Is that your plan to “even the scales”?

                  Recognizing that one group of people have been the victims of systemic racism and then putting in place policies that require their inclusion in getting opportunities that the majority have always had access to, for no other reason than being born with the majority skin color, is hardly “evil.” It’s really the least we can do. To hear you whining about it is really irritating.

                4. “You can try to tell them this like a million times but they’re like la la la evil is mah weapon to combat evil!”

                  It’s hard to believe you’re that ign0rant. Then again, maybe it’s not.

                5. AAA JJ, the Native Americans have their reservation. The blacks their ghetto. Both communities supported by welfare.

                  I do not think it an accident that the Great Society fostered and perpetuated segregation. Johnson, after all, was from Texas.

                6. AAA JJ,

                  It is not a privilege to not experience discrimination.

                  You have drunk the liberal Kool-Aid and have accepted the desired state as some type of thing that brings shame and “owing something.”

                  What utter CRP

                7. “It is not a privilege to not experience discrimination.”

                  It’s not? Tell that to the folks who have experienced discrimination. Discrimination that was the policy of the government for 300+ years.

                8. “AAA JJ, the Native Americans have their reservation. The blacks their ghetto. Both communities supported by welfare.”

                  Wow. Rac!st much?

                9. It’s not and I have been telling everyone. (I have not discriminated with that message).

                  You STILL have drunk of the PC Kool-Aid and turn the aim into something shameful.

                  Take a step back and see just how absurd that is (sober up first).

                10. “It’s not and I have been telling everyone.”

                  It’s not? So when the official policy of a state government is: white students may attend the publicly funded state university, but black students may not, it’s not a privilege to be a white student?

                  Now you’re just lying. Nobody could be that ign0rant. Or unselfaware. Not even you.

                11. AAA JJ,

                  You are saying that is a policy today? Right now? Something I need to make amends for?

                  Get sober man.

                  That sounds more like an action against the state – leave me the F out of your “atonement” plans as I had nothing to do with it.

                12. “is a stunning display of ign0rance.”

                  You are no more educated than me on this topic unless you did a doctorate in the subject or something along those lines. I’ve read all the puff pieces hither thither and yonder spreading the liberal fairy tail of “systemic” “oppression” that supposedly exists in modern society, and I’m not entirely unconvinced of it existing at least in some small measure and in at least some small areas. But to assert that the odds are stacked overwhelmingly against people of color or grandsons/granddaughters of slaves in large part because of that is complete hogwash. Why are there droves of black people now in the middle or upper class? The research on that question is crystal gd clear, and liberals can’t even be bothered to dispute it (because it is so clear with practically outright causal links established). There are a few factors that predict whether the given person, regardless of race, will be x level of successful, and especially be out of poverty for most of their lives. And those apply to black people also. Thems the facts bro, established by a vast weight of evidence. You can sit around and believe fairy tails from ages past that pluck at your heartstrings or believe your honest eyeballs, or a little of both. Just as an honest appraisal, even in your everyday life, do you see more racism or do you see more outright over-generosity on behalf of whites towards blacks (let’s presume they’re descended from slaves)? You know the answer already and it isn’t racism. By a long shot.

                  To be sure though, that’s not to say that the historical oppression might not be a contributory cause in some POC’s not making those life choices (indeed it probably has, and tacking on liberal dogma and victim complex did them a double disservice), or not having the means to adequately be enabled to make such life choices without great difficulty, but the gov is only here to assure them the choice (and perhaps enable them to make the choice), not to deny them free will in the matter, or to coddle them. You on the other hand, and yours want to force the outcome to fit your pre-conceived notions, thereby having denied them free will, or else “making up for their choice” via other options, ala coddling them insultingly as if they’re tiny babies. And then stating that “its the least we can do”. Lulz. I’m rather surprised that liberals don’t get punched in the face by offended black people more often, but the ones that are offended by this show magnanimous restraint towards liberal faces in so far as I’ve seen. Even more to their credit.

                13. “They’re at least half the population so, on average, we’d expect to see women Presidents a bit more often than once ever 200+ years.”

                  No.

                  ^This apparently is all I can say due to the filter.

                14. “You are saying that is a policy today? Right now? Something I need to make amends for?”

                  So policies that we’ve had for the past 40-50 years that require the inclusion of African Americans are “the same evil” as policies we had for 300+ years that required their exclusion?

                  Who needs to get sober?

                  Next you’re going to tell me that the Civil War was fought over states’ rights, and that the Confederate battle flag is about heritage and not hate.

                  Get a clue. And then crawl out of your mommy’s basement and join the rest of the human race.

                15. He doesn’t seem to be talking about historical “policies” like de-seg regation and affirmative action (long ago subverted to benefit white women mostly). He’s talking about what you were discussing, the recognition of “white priv” in the modern day and the modern day proposals for “atonement”.

                  Although yes, I will say it’s probably past time for the subverted affirmantive action “policy” to go the way of history as well, or at the least be limited down to POC/black people in specific only. It was implemented as a temporary measure, and a temporary measure it should be.

                16. Wrong. That’s exactly what he was talking about. Here’s what he posted:

                  “Yes, discrimination is ev1L. ALL such discrimination is ev1L. You do not “even the scales” by employing the very same ev1L that you are lamenting.”

                  Affirmative action is not “discrimination.” Even you should be able to understand that.

                17. “Affirmative action is not “discrimination.” Even you should be able to understand that.”

                  Sure it is, it is literally the “prejudicial (detrimental) treatment of different categories of people (WHITE PEOPLE in a lot of areas, and also double especially ASIAN PEOPLE in college admissions) or things, especially on the grounds of race, age, or sex”. And it is legalized discrimination that was put in place literally on the grounds that it was a necessary evil. You can read the people that passed the thing saying near precisely that, Mr. idk muh history.

      2. [H]ow is… Hilary… really ANY di[ff]erent? (elipses omitted from original)

        Different from whom? Surely you do not mean that you expect a Pres. Clinton to appoint basically the same justices that would be appointed by a Pres. Trump, do you?

        Sen. Clinton intends to retain Merrick Garland’s nomination. Mr. Trump intends to nominate Peter Thiel to fill Justice Scalia’s empty seat.

        I do not presently express a preference as between Garland and Thiel, and I have no way of knowing how either would likely rule on patent questions (although Thiel comes from Silicon Valley, so one might expect him to be rather down on software claims). Still and all, the idea that Garland and Thiel would be essentially the same strikes me as absurd.

        1. Mr. Trump intends to nominate Peter Thiel to fill Justice Scalia’s empty seat.

          That would be a strange pick for Trump, given that Trump expressed a desire to fashion a Court that would overturn Obergefell.

          1. Er, o.k. A comment made in the context of discussions about the Supreme Court was clear (from the context) that it was not about the Supreme Court? Whatever you say…

            1. It was thinly veiled segue about the Supreme Court that merely served as the “liberal fodder” whining.

              If he really wanted to discuss the possible nominations to the Supreme Court based on the different candidates, the discussion would have been different.

              Open your eyes just a little Greg.

              1. There’s nothing really “liberal” about being repulsed by a guy who literally rose to the top of the Republican party by spreading racist lies about our current President. It says a lot about the guy, but just as much about the party as well.

                Maybe it’s time to put that party to sleep. I guarantee you that most of the country would be extremely happy to see that happen (for all kinds of reasons).

                1. Maybe it’s time to put both parties to sleep.

                  You keep on wanting to ig nore the “G-g-g-grifting” backbone of your Democratic candidate.

                  The hypocrisy is palpable.

                2. “by spreading racist lies about our current President.”

                  A “racist lie” lol, started by whom’s campaign how many years ago when they faced Barry? Lol.

                  And because someone being born in another country is “racist” lulz.

                3. Oh, I’m well aware of the “excuses” for Trump’s behavior, 6.

                  Also not surprised, given your previous statements, that you would feel compelled to repeat them to everyone.

                  As I said, people are going to vote for Trump. A lot of people. He’s not going to win, but the fact that he’s going to get a lot of votes is a pretty sad indictment of how a lot of people “think”.

                4. …and exactly the same sentiment can be said of those voting for the “G-g-g-grifter” Hilary.

                  But you seem fine munching on that CRP sandwich….

                5. I guess I missed the bit where Sen. Clinton loudly demanded that Sen. Obama show his birth certificate. And not just the copy that he got from the secretary of state’s office, mind you. The original one that they keep in the sec. of state archives (even though most of us are not even allowed to handle that original copy, even of our own record).

                  You see, merely mentioning that someone is born outside of the U.S. is not racist. In this case, it happens to be inaccurate, but that is not the racist bit.

                  The racist bit is where for 200+ years, white men are elected and no one even asks to see a drivers license, but let a black man be elected and every two-bit county commissioner suddenly feels entitled to demand that the Chief Executive of the United States show his papers, and that two-bit county commissioner reserves the right to say when the proper papers have been shown, because s/he gets the final say on this, don’t you know.

                  If I were the president, I would have told that two-bit commissioner to go to jump in a lake. But our president is a class act, so he decided to play along, friendly like, and show the copy of the birth certificate he had lying around. That was not good enough.

                  So then the (republican) governor of Hawai’i issued a statement, assuring everyone that the copy that Pres. Obama showed was accurate in all relevant details. Still not good enough.

                  So then the secretary of state of Hawai’i piped up to say that he had inspected the certificate personally, and Pres. Obama was entirely correct in all of his statements and documents produced to date. Still not good enough.

                  So finally, the president sends a courier to get the original certificate out of the archives to show everyone. And even then, every mouth breathing yahoo who had been balking all along still continues to insist on the right, personally and individually, to inspect the paper copy.

                  If you cannot see racist double-standard in that whole farrago, well, all I can say is that white-privilege is a powerful narcotic…

                6. Greg,

                  You are applying someone else’s racism as if all other people were somehow tainted and calling it “white privilege”…

                  Sorry – but you just don’t know what you are talking about here.

                  Either that, or you are operating under some other liberal definition of “white privilege” as if EVERY white person must suffer the onus of what some other person being racist carries.

                  The odd thing here is that you probably do not even see the racist aspect of trying to blame an entire race for a problem that that entire race does not own.

                7. “aka: discrimination is “fine” just to even the scales, ”

                  ^Anon’s been taking his red pills. Careful bro, don’t reveal your power level all at once.

                8. “I guess I mis sed the bit where Sen. C linton loudly dem anded that Sen. Obam a show his b irth certific ate.”

                  She doesn’t have to, she has a huge cam paign staff she pays to do that sort of t awd ry stuff for her brah. Cou rtesy of the cor rupt D NC.

                  “And not just the copy that he got from the secretary of state’s office, mind you. The original one that they keep in the sec. of state archives (even though most of us are not even allowed to handle that original copy, even of our own record).”

                  Trump, and anyone that isn’t a Hawaii official, can’t help that Hawaii’s birth certificate administration is a sht pile br o. If I want my bi rth certificat e from my state all I have to do is sen d for one and they send me a practi cal exact duplicate (not a shi tty repro that looks fake).

                9. The odd thing here is that you probably do not even see the racist aspect of trying to blame an entire race for a problem that that entire race does not own.

                  Hm, I must have missed the part where I said something about the “entire [white] race” (whatever that is). Care to point it out? I was talking about birthers, not white people. That you evidently conflate the two says more about you than it says about me.

                10. You really don’t see the card that you are playing, Greg?

                  What they says “more about me” is not what you think it says.

                  Wake up son.

              2. discuss the possible nominations to the Supreme Court based on the different candidates

                If Hillary wins, we’ll get a normal adjusted human being with a solid legal background on the Supreme Court.

                If Trump wins, it’s anybody’s guess. Maybe he’ll dig up Bork and reanimate his corpse.

    2. MM, In my experience being bigoted seems to be an attribute held by the uneducated everywhere in the world. Being religious is an attribute of most of the middle class people. The lower down on the economic totem pole one is, the more conservative one becomes.

      Thus it seems odd that the Democratic Party is becoming increasingly a party of the elite — especially promising free college education which is of primary benefit to the entitle class.

      1. free college education which is of primary benefit to the entitle class.

        Does free (public) primary education also primarily benefit the “entitled class”? Who primarily benefits, then, from expensive primary education when all the public schools are shut down?

        1. MM, free primary education was a fundamental advance of civilization, IMHO. There is no doubt of this.

          Taking it to high school is a bit of a luxury. Certainly a high school education is required for modern society. All in the US benefit.

          But higher education is not needed for every citizen. Members of the elite all get it. Those wanting to become elite need it. But to ask the common folk to pay for it? Now that is a bit much.

          1. Especially when so many majors are “soft” majors that don’t actually help the econ practically at all, and when a huge amount of the women that get college educations then don’t even work outside the home and just raise some kids (yes this still happens to liberal’s horror).

      2. The Democratic party is becoming the party of a thin elite, but most of the votes come from a large underclass and non-white working class voters. It’s a coalition of top and bottom against the middle.

        And the Democrats are more than ever the party of competent bureaucrats running government and monopolistic and multinational corporations well, servicing a population that is dependent on the largesse of that government. The cash to pay for it all comes from Republicans.

        Meanwhile the Republicans seem to be migrating from a Wall Street party to a main street party. Ironically, they’ve been regaining strength they lost in New England when they went Wall Street. Trump is likely to win states like NH, ME, and RI for the first time in a long while for Republicans, though those were GOP strongholds for the first 120 years of the party’s existence.

    3. “They’re not backwards Bible-thumping racists pandering to the least educated and working desperately to disenfranchise people who will never vote for them. Nope!”

      Oh come off it bro, I’m voting republican down the board this year (to give trump the best support he can possibly have), and I haven’t thumped a bible in ages, I work in one of the most progressing high tech fields there is (and might ever be in the history to be written of this country), and finally I haven’t racisted on anyone in my memory. Though I don’t mind if they pander to the “least educated”. I rather like the “least educated” people quite a lot thx, ya elitistard.

      “and working desperately to disenfranchise people who will never vote for them.”

      Do you even know what “disenfranchisement” means? It means to deprive people of the RIGHT to vote. Them regulating voting hardly deprives anyone of their right to vote. Even the toughest proposals out of the republicans that I’ve seen don’t deprive anyone of their right to vote. But I’m sure it makes you liberals feel good to play white savior using the wrong terminology.

      1. I’m voting republican down the board this year (to give trump the best support he can possibly have), and I haven’t thumped a bible in ages

        That’s nice. I never suggested that every Trump voter was a bible-thumper. But he’s pandering to them and that pandering will succeed. It won’t get him elected (he’ll need to pander to other groups, too) and his other pandering will lose him some Bible-thumper votes.

        But his bigger message, of course, is about electing him so he can stick it to those sad, weak “liberals” and show everybody what big tough men Republicans are! So tough! Everyone will just have to learn to fight! Then we can be great! Not weak, like “liberals.”

        regulating voting hardly deprives anyone of their right to vote.

        LOL That’s a good one. Did you hear a bell tinkling? That was Justice Scalia’s ghost doing a little jig.

        1. I’m actually surprised that Hillary hasn’t done more bible thumping outreach this year. She’s probably a better christian than Donald is.

          “But his bigger message, of course, is about electing him so he can stick it to those sad, weak “liberals” and show everybody what big tough men Republicans are! So tough!”

          Brah, that’s just a happy side effect of Maekin’ Merica. That’s not the main platform.

      2. “Them regulating voting hardly deprives anyone of their right to vote. Even the toughest proposals out of the republicans that I’ve seen don’t deprive anyone of their right to vote. ”

        I’m not even going to pretend that you’re not paying attention. Now you’re just plain lying. “Voter ID” requirements are designed to disenfranchise, mainly, African American voters. For you to deny that is simply preposterous. Even the Repubtards who pass such “laws” admit it. Good gravy.

        Go read Charles Pierce. He’ll explain it to you.

        1. ““Voter ID” requirements are designed to disenfranchise, mainly, African American voters.”

          Nah bro, they’re designed not to strip them (meaning dems not just african americans, who just happen to be caught up in an ideological war) of the RIGHT to vote (as in bona fide disenfranchisement, check dictionary), which they will still maintain, but rather they are intended to “strip” them of the ability to EASILY vote and thus ultimately get them to stay home voluntarily and deny dems the votes.

          I know, I know, small difference to your mind, but a difference all the same, and thems the facts.

        2. “Go read Charles Pierce. He’ll explain it to you.”

          I know his “explanation” already, and I’ve heard what the conservatives passing such initiatives have said on the matter. I see very little if any hint at racial animus and huge hint of partisan animus.

          Still, I should add that I’m generally all for voting, even by dems that wish to bring catastrophe to society for “muh progress”. But I certainly don’t mind some of these ridiculously easy to exploit voting systems being amended a bit, even if the overall goal is to deny Dems votes. I won’t even bother arguing that they actively are being exploited, but even the ease of the capability to exploit voting in Ohio especially is astounding.

  7. First-up is the design patent damages case of Apple v. Samsung. Although not a party, the Solicitor General has requested to participate in oral arguments.

    It seems strange not to mention that not only has the SG requested to participate, but that the request has been granted.

Comments are closed.