As courts continue to streamline their operations, the Federal Circuit has denied three petitions for en banc rehearing:
- 19-1177 Koninklijke Philips N.V. v. Google LLC (obviousness: propriety of using a prior art reference to show ‘general knowledge’ and thus avoid the the need to consider limitations on combining prior art.)
- 18-1768 Polaris Innovations Limited v. Kingston Technology Co. Inc. (Arthrex redux)
- 19-2026 Mirror Imaging, LLC v. Fidelity Information Services (Arthrex redux)
The question I’m posing in civil procedure: What are other ways that we can streamline our legal process to still provide equal protection and substantial justice while avoiding the current difficulties created by COVID-19? Can we use this as an inflection point to build a better system?
Of course, as noted by one firm, there is also “28 U.S.C 1498 for government contracts which allows the government to use or authorize others to use any invention “described in and covered by a patent of the United States.” If such authorization is granted, patent owners can sue the United States, but only for reasonable compensation. Patent owners are not able to seek injunctions against private entities working for the United States government.”
Not sure what is actually meant by “provide equal protection and substantial justice while avoiding the current difficulties created by COVID-19” [Although the cost and delay of the FDA process is more relevant than any IP issues.] Especially after the Supremes told the Fed. Cir. in eBay to follow the patent law injunction statute’s requirements of applying the general principles of equity. Judges are not now going to grant injunctions against needed and available COVID-19 diagnostics, machines, medicines or vaccines, much less their research. False planted media scare stories to the contrary are a disservice to the patent system.
Of course there are various other executive and legislative actions that can be taken in national emergencies.
I think you should check your assumptions Paul.
The application of remedy according to the general principles of equity are constrained in the shared authority of Congress to the judicial branch.
It’s a question for a civil procedure class. I don’t think eBay has much to do with it. In response to COVID-19, a lot of people and institutions are changing things they do in ways that naturally invite questions about whether the old way was wrong or whether the pre-COVID-19 practices were necessary. TSA lets people carry 12-oz bottles of hand sanitizer on planes; does the 3.4-oz liquids rule still make sense, if it ever did? Businesses can’t have meetings as easily, so they’re either cancelling them or switching to videoconferences; maybe some of those meetings were useless. Businesses are putting a lot more effort into facilitating working from home; maybe things should have been this way all along? Some courts are telling parties that ECF filing is enough, and not to send paper copies to the clerk’s office; do the courts still need paper copies of everything?
I’m not sure what I ultimately think, but one of Dennis’s earlier posts suggested that COVID-19 is leading courts of appeals to reconsider the pros and cons of oral argument and, e.g., whether the Federal Circuit should continue to have oral argument in nearly every case where both sides are represented by counsel. I think I hope the Federal Circuit keeps oral argument in every case once things are “normal” again, but I don’t know what they’ll do.
So, to Dennis’s question–I think trial by videoconference might be more convenient for jurors, but would probably be considered a due process violation, at least in criminal cases. Presumptively dispensing with paper filing would probably save money without any significant downside. I don’t have any big ideas but it’s interesting to think about.
From a old law review article:
“Although the United States Supreme Court encourages oral argument in its own rules, it has not held that the United States Constitution grants a right to oral argument in all appellate proceedings. The [latest] [1949] expression
from the Court is in FCC v. WJR, The Goodwill Station, Inc. :12
‘[D]ue process of law has never been a term of fixed and invariable content. This is as true with reference to oral argument as with respect to other elements of procedural due process. . . . [T]his Court has held in some situations that such argument is essential to a fair hearing, … in others that argument submitted in writing is sufficient. 13”
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