by Dennis Crouch

Sarif Biomed v. Brainlab (Fed. Cir. 2018) [SarifBiomed]

Sarif’s patent is directed to a “computer-assisted microsurgery installation” couples position sensors with images to place the location of a tool within a fixed reference frame. U.S. Patent No. 5,755,725 (1993 priority).

In the dispute, Sarif first sued Brainlab for infringement.  Brainlab responsively petitioned for inter partes review (IPR). That petition was rejected after the PTAB determined that it couldn’t decide anticipation because the claims were too indefinite. Although the PTAB statements denying the petition are not binding in any way, they are obviously influential.  Here, the district court followed the PTAB and ruled that the claims were invalid as indefinite.  In particular, the court looked at the following claim term:

(d) a computer adapted to: . . . (3) control position and displacements of the tool . . .

Although not in traditional means-plus-function language, the district court held that the claim lacks structure regarding the function of controlling position and displacement.

Claim 1’s “computer adapted to” perform this function is an insufficient disclosure of structure as there is no disclosure as to how the computer would perform the function. “[I]f a claim recites a generic term that, properly construed in light of the specification, lacks sufficiently definite structure to a person of ordinary skill in the art, the presumption is overcome and the patentee has invoked means-plus-function claiming.” Apple (2014). Moreover, as recently stated by the Federal Circuit in Williamson, “the fact that one of skill in the art could program a computer to perform the recited functions cannot create structure where none otherwise is disclosed.”

The claim lacked structure.  It turns out that specification also lacked support for the claimed means and thus is indefinite under In re Donaldson Co., 16 F.3d 1189 (Fed.Cir. 1994) (en banc).

The appeal here does not focus on the merits of the indefiniteness discussion, but rather involves the accused infringer’s petition for attorney fees that was denied.  On appeal here, the Federal Circuit has affirmed the lower court’s denial of fees — holding that the district court acted within its discretion in finding no “exceptional case.”

Law of Attorney Fees: The usual rule in patent litigation is that each party is responsible for compensating their own attorneys win-or-lose.  The Patent Act authorizes a judge to order fee shifting, but only in “exceptional cases.” In Highmark and Octane Fitness, the Supreme Court collectively held that the exceptional case determination involves a flexible analysis involving the “totality of the circumstances” considered at the discretion of the district court.  The analysis involves, inter alia, consideration of any unreasonable actions, party motivations, and strength of arguments.  Because patent litigation is expensive, fee awards can easily reach into the millions-of-dollars.

On the merits here, the Federal Circuit agreed that Sarif’s claim construction position of no-means-plus-function was “well supported” – despite ultimately losing the case.  Regarding the PTAB’s statement of invalidity, the Federal Circuit wrote:

Brainlab places too much significance on the PTAB’s determination. The PTAB does not have authority to institute an inter partes review under § 112. See 35 U.S.C. § 311(b). Therefore, as Brainlab admitted, any conclusion regarding indefiniteness is dicta.

Without the weight of that objective evidence of presenting weak arguments, it was easy for the Federal Circuit to affirm the denial of fees. AFFIRMED.

by Dennis Crouch

Dell Inc. v. Acceleron, LLC (Fed. Cir. 2018)

In its original decision, the PTAB cancelled claim 3 of Acceleron’s U.S. Patent No. 6,948,021 (inter alia). That holding was based upon an argument first presented by Dell at Oral Arguments (over Acceleron’s procedural objections).  The Federal Circuit in 2016 vacated that first PTAB decision — “the Board denied Acceleron its procedural rights by relying in its decision on a factual assertion introduced into the proceeding only at oral argument, after Acceleron could meaningfully respond.”  The Federal Circuit explained:

The agency must timely inform the patent owner of the matters of fact and law asserted . . . , must provide all interested parties opportunity for the submission and consideration of facts and arguments . . . and hearing and decision on notice, . . . and must allow a party to submit rebuttal evidence as may be required for a full and true disclosure
of the facts.

On remand, the Board rewrote its decision – this time excluding and ignoring Dell’s late argument and thus finding the claim valid.

On appeal again, the Federal Circuit has now affirmed the validity finding — holding that the Board properly ignored Dell’s argument – even though the result is that we confirm the validity of a patent claim that is thought to be invalid.  The problem for Dell is that the procedural rules are clear – “No new evidence or arguments may be presented at the Oral Arguments.” (Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756 (Aug. 14, 2012)).

The primary holding here is that the PTAB was not required to allow for any re-briefing of the arguments and evidence.  In its decision, however,, the Federal Circuit goes further and states that the Board could not reopen arguments even if had wanted to:

The Board was obligated to dismiss Dell’s untimely argument given that the untimely argument in this case was raised for the first time during oral argument. See, e.g., Wagner v. United States, 365 F.3d 1358 (Fed. Cir. 2004) (“[A]n agency is bound by its regulations.”); Dell contends that ignoring evidence of unpatentability is against public policy because it will not improve patent quality. We find that under these circumstances, due process and preserving the Board’s discretion outweigh any negative effects of not invalidating a patent claim, especially since our decision does not preclude another party from challenging the validity of claim 3 on the same basis.

This final quoted paragraph is potentially dicta, but will certainly carry the day within the Board.

by Dennis Crouch

35 U.S.C. 112(a) requires that a patent specification include a “written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms.”  That statutory language serves as the basis for the written description requirement — whose purpose is to ensure that “the inventor actually invented the invention claimed.” Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336 (Fed. Cir. 2010) (en banc). Claims that were not sufficiently described in the originally filed specification will be deemed invalid or, if a priority filing is involved, the patentee will be barred from relying upon that document for its filing date.

Most often, the written description requirement arises in situations where the patent applicant substantially modified its patent claims during prosecution in a way that creates some distance between the original disclosure and the new claims.  Commonly, the application will include a set of specific disclosures and the patentee will attempt to later amend its claims to cover a broad genus.  (Recognize that in Ariad, the Federal Circuit explained that there can be a failure of written description with never-amended claims.)

In Hologic v. Smith & Nephew (Fed. Cir. March 14, 2018), patentee (Smith & Nephew) claimed the use of a light-guided endoscope for uteral surgery.  The original specification of the parent application did not include the “light guide” language, but did explain that the endoscope included “a fibre optics bundle which provide for lighting at the end of [the] lens.”  During prosecution, the examiner objected to the use of “light guide” in the claims since that term was never discussed in the specification — in response, the patentee amended the specification to state that the aforementioned firbre optics bundle is an example of a light guide: “a light guide such as, a fibre optics bundle which provide for lighting at the end of [the] lens.” (underlined language added to specification during prosecution).  The disclosure also included drawings showing the connection between the lens and the light source.

The specification amendment satisfied the original examiner and U.S. Patent No. 8,061,359 was duly issued to Smith & Nephew.  However, on inter partes reexamination, the new examiner raised the problem again – concluding that the disclosed single example of “fibre optics bundle” language did not satisfy the broad genus of “light guides.”  The PTAB (Board) sided with the patentee.  Although the Board identified the case as a “close call,” it ultimately held that the disclosure was sufficient to satisfy the written description requirement.  On appeal here, the Federal Circuit has affirmed.

The written description inquiry begins with the “four corners” of the original patent specification as read from the perspective of a person of ordinary skill in the art.  To satisfy test, the specification must describe the invention in a way understandable to that PHOSITA and that shows possession of the invention now being claimed.  This is an objective inquiry and the court applies a reasonableness test — does the specification reasonably convey possession of the invention?  Here, the question is whether the disclosure of fibre-optics reasonably conveyed the claimed “light guide.”  As part of the analysis of the test, the court also considers the level of predictability — finding that this field (at least as far as equipment construction) is predictable. That conclusion means that “a lower level of detail is required to satisfy the written description requirement than for unpredictable arts.”

On appeal, it is also important to recognize that satisfaction of the written description requirement is deemed a question of fact.  As such, Board conclusions are given substantial deference on appeal.

In walking through its analysis the Federal Circuit appeared to fully base its decision on two agreed-upon facts:

1. Everyone agrees that the patent discloses one light guide – the fibre optic bundle: “Board properly relied on the fact that the parties do not dispute that a
   “fibre optic bundle” is a type of light guide.”
2. Everyone agrees that various types of light guides are well-known in the art: “Nor did the parties dispute that various types of light guides were well-known
   in the art.”

Based upon these two facts (and presumably the predictability of the art), the Federal Circuit found that the validity conclusion appropriate:

Accordingly, we conclude that substantial evidence supports the Board’s finding that Emanuel PCT reasonably conveys to a person of ordinary skill that the inventor had possession of a “light guide.”

The bottom line is suggested by the article title: For Predictable Arts, the written description requirement to a claim for a genus is satisfied by disclosure of a single species of that genus along with the (later proven) fact that other members of the genus are also well known in the art.  

Note here that the challenger also argued that the written description did not show the light guide being “permanently affixed” in the “first channel.” On appeal, the court also rejected those arguments.

Decision here authored by Judge Stoll and joined by Judges Newman and Wallach.

After reading his recent law review note on indefiniteness, I asked Michigan Law student Gary Fox to apply his framework to the new Federal Circuit decision of Capital Security Systems, Inc. v. NCR Corp. – DC

Guest Post by Gary M. Fox (garymfox@umich.edu), University of Michigan Law School

In Nautilus, Inc. v. Biosig Instruments, Inc., the Supreme Court articulated the standard for indefiniteness under 35 U.S.C. § 112: “[A] patent is invalid for indefiniteness if its claims, read in light of the specification delineating the patent, and the prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention.”[1] Since then, courts have had nearly four years to apply this new standard.

I have previously argued that the reasonable-certainty standard might be understood as imposing two separate requirements: linguistic and physical definiteness.[2] Under my proposed framework, a claim is linguistically indefinite if it is open to multiple constructions but one construction is not clearly correct. Additionally, a claim is physically indefinite if it uses a comparative term or involves an ambiguous spatial relationship but is not limited to a narrow range. In this view, a claim that is either linguistically or physically indefinite fails to meet Nautilus’s reasonable-certainty standard.

Last week, the Federal Circuit handed down a nonprecedential decision in Capital Security Systems, Inc. v. NCR Corp.[3] In that case, the court considered whether two different claim terms were definite.

Capital Security holds four patents that are directed to an automated document cashing machine.[4] Three of those patents are continuation patents that share the parent patent’s specification and priority date.

The independent claims in the continuation patents contain the phrase “ascertains an apparent signature” or a highly similar variation.[5] For example, a representative claim includes the following limitation: “the processor reviews images from a legal amount recognition (LAR) line and a courtesy amount recognition (CAR) line and ascertains an apparent signature from the document image in order to validate the document.”[6]

The other term at issue was “transactional operator.” One claim in the parent patent includes the following language: “a transactional operator for operation by the user to perform a transaction upon deposit of sufficient cash by user for the requested transaction.”[7] The parent patent’s specification does not use the term “transactional operator,” but it does describe a microcomputer, keyboard, and display.

On NCR’s motion for summary judgment, the district court held that “ascertains an apparent signature” and “transactional operator” were both indefinite.[8] The court credited NCR’s expert, who offered four possible meanings for “apparent signature.”[9] NCR’s expert also offered three possible meanings for “transactional operator.”[10] In both cases, he testified that a skilled artisan would not have been able to decide amongst the possible options. The district court agreed and found the claims invalid.

In its decision on appeal, the Federal Circuit reversed the district court’s holding that “ascertains an apparent signature” was indefinite. The court reasoned that “a skilled artisan would understand the claimed ascertaining step to correspond to determining the presence of a signature on the signature line of a check.”[11] It found that the claim had been written to encompass all four of the options that NCR’s expert presented. The court rejected NCR’s argument that the term was indefinite because it was not tied to an “objective standard of measure.”[12] It also pointed out that Capital Security had not “muddle[d] the scope” of the term during prosecution.[13]

On the other hand, the Federal Circuit affirmed the district court’s holding that “transactional operator” was indefinite. The court noted that it was unclear whether that term included the microcomputer, the keyboard, and the display, or only a subset of those components.[14] During oral argument, counsel for Capital Security contended that the microcomputer and keyboard counted as the “transactional operator” but that the display did not count. Because “transactional operator” did not have a “commonly-accepted definition,” the court found the term indefinite.[15]

For both “ascertains an apparent signature” and “transactional operator,” NCR presented arguments grounded in linguistic indefiniteness. For each term, it asserted that there were multiple possible constructions but that no construction was clearly correct. That strategy makes sense. After all, the Federal Circuit had previously held claim terms with three or four possible meanings indefinite.[16]

For “ascertains an apparent signature,” the court essentially found that NCR’s expert presented a false choice among four constructions when the claim was drafted to encompass all four options. With one slightly broader construction that was clearly correct, any potential linguistic indefiniteness problem disappeared.

But for “transactional operator,” there was a legitimate linguistic indefiniteness problem. The court could not identify which components counted. For example, the “transactional operator” could have been the microcomputer and keyboard; the microcomputer and display; the keyboard and display; or the microcomputer, display, and keyboard. Even if some of these combinations were likelier than others, a skilled artisan would not have known which construction was correct. Therefore, the term suffered from linguistic definiteness.

As I have said before, my proposed framework of linguistic and physical definiteness might not work for every conceivable case.[17] But it seems to work for Capital Security Systems v. NCR, and it may be a helpful starting point for understanding the reasonable-certainty standard in the wake of Nautilus.

= = = = =

[1] 134 S. Ct. 2120, 2124 (2014).

[2] Gary M. Fox, Note, Understanding Nautilus’s Reasonable-Certainty Standard: Requirements for Linguistic and Physical Definiteness of Patent Claims, 116 Mich. L. Rev. 329 (2017).

[3] Capital Security II, No. 2017-2368, 2018 WL 1181197 (Fed. Cir. Mar. 7, 2018).

[4] U.S. Patent No. 5,897,625; U.S. Patent No. 7,653,600; U.S. Patent No. 7,991,696; U.S. Patent No. 8,121,948.

[5] Capital Security II, 2018 WL 1181197, at *1.

[6] Id. at *2 (emphasis added by court) (quoting U.S. Patent No. 7,653,600 col. 39 l. 35 – col. 40 l. 11).

[7] Id. (emphasis added by court) (quoting U.S. Patent No. 5,897,625 col. 24 ll. 31–53).

[8] Id. at *3 (citing Capital Sec. Sys., Inc. v. NCR Corp. (Capital Security I), 263 F. Supp. 3d 1366, 1375 (N.D. Ga. 2017)).

[9] According to NCR’s expert, the four possible meanings were as follows: “(1) determining if anything in the way of a mark was present in the signature field, useful or otherwise; (2) distinguishing a mark resembling legible text from a mark never intended to be a signature, such as a scratch or smudge mark; (3) determining if the scanned image field corresponds to a handwritten cursive signature versus an otherwise legitimate block letter printed name; or (4) determining if the signature is forged.” Id. (quoting Capital Security I, 263 F. Supp. 3d at 1373).

[10] Again, according to NCR’s expert, the options for this term were “(1) a user interface allowing user selections; (2) an internal computer component like software executing an algorithm; or (3) a computer component that performs” a certain task. Id. at *4.

[11] Id.

[12] Id. at *5.

[13] Id.

[14] Id. at *5.

[15] Id. at *6.

[16] Fox, supra note 2, at 344–45, 345 n.118 (first citing Teva Pharms. USA, Inc. v. Sandoz, Inc., 789 F.3d 1335 (Fed. Cir. 2015); then citing Dow Chem. Co. v. Nova Chems. Corp. (Can.), 803 F.3d 620 (Fed. Cir. 2015)).

[17] Id. at 348.

by Dennis Crouch

Exergen Corp. v. Kaz USA (Fed. Cir. 2018)

Following trial, a jury sided with the patentee Exergen – finding the asserted body thermometer claims infringed and not-invalid.  Post trial, the District Court confirmed the judgment and denied Kaz’s motion for invalidity under Section 101.  On appeal, a divided Federal Circuit has affirmed-in-part — with Judges Moore and Bryson siding with the patentee (valid under 101) and Judge Hughes arguing invalidity.  Although nonprecedential, the decision offers a key explanation for when medical diagnostic methods can be patent eligible and highlights a major split between members of the Court.  I would recommend that you read both the majority and dissenting opinions.

Claim 14 of U.S. Patent No. 6,292,685 is probably the most – borderline claim at issue. Below, I have listed claim 14 against Claims 54/55 of Exergen’s U.S. Patent No. 7,787,938, whose invalidity was previously affirmed by the Federal Circuit (judgment without opinion).

According to the Federal Circuit, the claims “employ a natural law to achieve their purpose.” The dispute in the case related to Alice/Mayo step-two — whether the claims include an inventive concept beyond the temperature calculations “sufficient to transform the claims into a patent-eligible application.” The difference here is that the valid claims include the additional technique of “scanning while moving a radiation detector.”  Now, it turned that the approach was found in the prior art — i.e., was “well understood,” but not in a clear enough form to be “routine and conventional.”   Judge Moore has previously explained that the question of whether aspects of a claim are “well understood, routine, and conventional to a skilled artisan in the relevant field” is a question of fact.  Here, that meant that the district court decision was not disturbed.

More to come on this one.

As you read the opinions here, you’ll see that these are good candidates for being precedential.  FedCir R.32.1(e) provides a mechanism to request to make an opinion precedential – open to any person within 60 days of opinion.

Ottah v. Fiat (Fed. Cir. 2018)

On appeal, the Federal Circuit has affirmed the lower court’s dismissal of Chikezie Ottah’s infringement claim against Fiat, Toyota, Nissan, GM, Ford, and other auto manufacturers — holding it not infringed.

Acting pro se, Ottah alleged that his U.S. Patent No. 7,152,840 (“book holder”) was being infringed by the back-up cameras installed on various vehicles.  The problem for Ottah is that the Federal Circuit previously ruled that the patent claim language (“removable attachment”) coupled with prosecution history statements meant that the claims only covered attachments removable by hand — all of the accused devices required specialized tools for removal.

Even after liberally construing the pleadings (for pro se benefit), the court found no plausible claim based upon the patent — as such the dismissal with prejudice was proper.

In Front Row Tech. v. MLB Advanced Media, the patentee has filed a petition for writ of certiorari – asking the Supreme Court flip the lower court rulings on its sports-data-app patents. [Petition including Lower Court Decisions][Supplemental Appendix Including the Patents]

The petition asks two questions:

1. What are the rules, both procedural and substantive, for assessing patent-eligible subject matter under 35 U.S.C. § 101 for patents claiming inventions described as new and useful combinations of existing components and technologies?

2. Should the Federal Circuit be required to revisit its decision in this case in light of its Berkheimer and Aatrix Software decisions?

In this case, the New Mexico district court granted the accused infringer’s motion for judgment on the pleadings (R.12(c)) based upon the only evidence of record – the patents themselves. In making its decision, the court ruled that it was empowered to make a number of factual findings on the pleadings and without the submission of evidence — noting that “courts routinely make similar findings while evaluating§ 101 challenges.”  On appeal, the Federal Circuit affirmed without opinion.

Asserted Claim 15 of Patent No. 7,812,856 is shown below:

15. A method for displaying a particular perspective of a venue-based activity at least one authorized hand held device having a display screen, said method comprising the steps of:

simultaneously capturing a plurality of video perspectives of a venue-based activity utilizing more than one camera located at a sports and entertainment venue;

processing said plurality of video perspectives at a server into encrypted video data packet for display on a touch-sensitive display screen associated with said at least one authorized hand held device provided in the form of at least a smart phone or personal digital assistance, said at least one hand held device further comprising at least one 802.11 wireless module for access to a wireless local area network and a cellular communications module for communication with a wireless cellular communications network;

wirelessly transmitting said encrypted video packet over an 802.11 wireless local area network to said at least one authorized hand held device said plurality of video perspectives of a venue-based activity from said server;

processing said plurality of video perspectives at said at least one authorized hand held device into decrypted video data packet for display on said touch-sensitive display screen associated with said at least one authorized hand held device; and

displaying a particular video perspective on said touch-sensitive display screen, in response to a user selection of said particular video perspective from among said plurality of video perspectives.

The petition was filed by Michael Shore and his team at Shore Chan DePumpo

The Stormy Daniels v. Donald Trump lawsuit includes an interesting copyright angle.  [Read the Complaint].  At its core, the so-called “hush agreement” requires Daniels to keep secret “all intangible private information . . . relating to any of [Donald Trump’s] alleged sexual partners, alleged sexual actions or alleged sexual conduct” and also turn over any “tangible materials” that include related information or other physical personal property.

The agreement also includes a copyright transfer – so that any related copyright to works created by Daniels will transfer to Trump.  The clawback or “termination rights” under Section 203 make a permanent transfer a bit difficult.

Notwithstanding the foregoing, if any of the rights herein granted are subject to termination under section 203 . . . [Daniels] hereby agrees to re-grant such rights to [Trump] immediately upon such termination.

Section 3.2 of the Agreement.

Termination Rights: For those not practicing copyright law, the statute provides termination rights that permits authors or their heirs to terminate copyright assignments and licenses 35-40 years after execution of the transfer (notice of termination must to be provided earlier).

The provision in the Agreement purports to skirt around the termination right by requiring a re-granting.  However, I wouldn’t think this work-around would be effective since 203(a)(5) states that “Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to . . . make any future grant,” followed by 203(b)(4) which clearly states an “agreement to make a further grant, of any right covered by a terminated grant is valid only if it is made after the effective date [or at least service of the notice] of the termination.”  The Agreement does include a severability clause – the fact that some provisions are unenforceable “shall not affect the validity or enforceability of the remaining provisions.”

* Thanks to Prof. Sean O’Connor for highlighting this issue for me.

Immersion Corp. v. Fitbit (N.D.Cal. March 5, 2018)

On 12(b)(6) motion for dismiss, Judge Koh has thrown out some of Immersion’s asserted claims covering various haptic feedback approaches. However, some claims survived:

Invalid as Abstract Idea (claims from U.S. Patent No. 8,638,301):

 27. A system comprising

a processor configured to:

receive a first sensor signal from a first sensor, the first sensor configured to detect a movement of a first mobile device;

receive a second sensor signal from a second sensor, the second sensor configured to detect an interaction with the first mobile device;

receive a first data signal from a network interface, the network interface configured to receive signals transmitted by a second mobile device;

determine a change in a display signal based at least in part on the first data signal and the second sensor signal;

determine a haptic effect based at least in part on the first data signal; and

outputting [sic] the haptic effect.

28. The system of claim 27, wherein the first sensor and the second sensor are each configured to detect one or more of: contact, pressure, acceleration, inclination, inertia, or location.

29. The system of claim 27, wherein the second sensor comprises a touch-screen.

31. The system of claim 27, wherein the processor is further configured to transmit a second data signal to the network interface, and the network interface is further configured to transmit the second data signal to the second mobile device.

Not improperly claiming an abstract idea (Claims from U.S. Patent Nos. 8,059,105 and U.S. Patent No. 8,351,299 respectively): 

14. An apparatus comprising:

a sensor that senses motion of at least a portion of the apparatus and provides a sensor output based on the sensed motion;

a timer that provides a periodic timer output;
a vibrotactile device responsive to the timer that provides a corresponding periodic haptic output; and

a processing device that receives the sensor output and accumulates counts associated with the sensor output, the processing device providing an output to the vibrotactile device providing an output to the vibrotactile device once a threshold associated with the accumulated counts is reached.

19. A haptic feedback device, comprising:

one or more processors configured to receive an input signal and generate a force signal based on the input signal, wherein the input signal is associated with a user-independent event,
the user-independent event comprising one or more of a reminder event, an initiation of a task, a processing of the task, a conclusion of the task, a receipt of an email, or an event occurring in a game; and

one or more actuators configured to receive the force signal and impart a haptic effect based on the force signal.

= = = =

Read the Order: ImmersionDismissal

This is the second guest post coming from Michigan Law Professor Nicholson Price‘s seminar merging science fiction and legal analysis.  The author here – Kamie Cashette points her sights on the 2015 novel by American SciFi author Paolo Bacigalupi – The Water Knife. – DC

Guest Post by Kamie Cashette

Paolo Bacigalupi’s novel The Water Knife depicts the American Southwest in the not-so-distant future. Climate change has exacerbated an already scarce water supply, corporate interests have severely weakened the federal government, and states fight for water rights in ways that put Don Corleone to shame. State water agencies send employees to engage in guerrilla warfare-style tactics, like blowing up water-treatment plants and bombing dams, to make sure their territories come out on top. The places that do not manage to secure enough precious water rights, like Arizona, house masses of refugees desperate to escape to water-wealthy havens.

The world portrayed by The Water Knife strikes a particularly terrifying chord, mostly because of how plausible it seems. Bacigalupi makes painstaking efforts to incorporate modern day references into the book, from the third intake valve in Lake Mead that finished construction in 2015 to the image of a toothless Britney Spears. Moreover, the impending disappearance of the water supply in major cities like Cape Town, South Africa[1] further bridges the gap between the dystopian universe portrayed in the book and reality.

[2]

Bacigalupi’s world also seems to fit into a potentially realizable legal sphere. Today, Western states follow the prior appropriation doctrine to allocate water rights: someone who established a use of water decades or even a century ago has a higher priority over that usage than someone who begins tapping into that water today.[3] In other words, all junior water rights holders lose all of their water before the senior water rights holder has to give up a single drop. In a world of water scarcity, that makes senior water rights invaluable.

The Water Knife takes the legal framework of water rights in the West and realistically portrays the incentivized behavior in situations of extreme resource scarcity. The book centers around water rights “senior to God” that give Phoenix, Arizona some of the most senior rights on record. If Phoenix had knowledge of those rights, it would have legal claim to the water before any other state, giving it the ability to rise from its drought-induced ashes and to lay waste to its neighboring competitors. The lengths people are willing to go to in the book to get their hands on the water rights illustrates how a system of senior water rights in a situation of resource scarcity compels actors to fight each other tooth and nail instead of cooperating. As one of the characters remarks, a “[l]ot of people end up dead around these rights.”

Moreover, while the book’s portrayal of militant states and the practically non-existent role of the federal government seems outrageous, it may be within the realm of possibility. In The Water Knife, Congress passes a piece of legislation called the State Sovereignty Act, which allows states to stop U.S. citizens from other states from crossing into their borders. Freedom of movement between states has long been recognized as a fundamental constitutional right, and any suspension of that right is subject to strict scrutiny.[4] However, as the infamous decision of Korematsu v. United States[5] illustrates, rights subject to strict scrutiny have yielded to emergency and security concerns in the past. A drought so severe that it causes entire states to utterly collapse as Bacigalupi depicts could arguably fit that bill.

While the predicted Water Knife world is plausible, it is certainly not set in stone. State and local governments are trying to step in to mitigate the effects of climate change where the federal government has not. Among these efforts are lawsuits filed by cities across the country against oil companies for their contributions to global warming.[6] Additionally, on the national level, Professor Rhett Larson proposes shifting from an environmental policy paradigm hinging on climate change to one based on water security.[7] Larson also suggests using a regional approach to water security based around water basins instead of a state-by-state prior appropriations system. A book like The Water Knife that highlights the dangers of the Western water rights system and water insecurity in general makes an approach like the one advocated for by Larson more salient, and it sends a clear warning about what the future could hold. Whether the United States heeds that warning remains to be seen.

= = = = =

Notes

[1] James Longman, The Apocalyptic Atmosphere in Cape Town as Residents Struggle to Survive: Reporter’s Notebook, ABC News (Feb. 21, 2018, 1:06 PM), http://abcnews.go.com/International/reporters-notebook-apocalyptic-atmosphere-cape-town-residents-struggle/story?id=53217859.

[2] Jon Kerrin, Theewaterskloof Dam, South Africa, South African (2017), https://www.thesouthafrican.com/wp-content/uploads/2017/03/Jon-Kerrin-Theewaterskloof3.jpg.

[3] See, e.g., Prior Appropriation Law, Colo. Dep’t Nat. Resources, http://water.state.co.us/surfacewater/swrights/pages/priorapprop.aspx (last visited Feb. 23, 2018).

[4] See, e.g., United States v. Wheeler, 254 U.S. 281, 293 (1920); Saenz v. Roe, 526 U.S. 489, 500 (1999).

[5] 323 U.S. 214 (1944).

[6] See, e.g., David Zahniser, L.A. Lawmakers Look to Sue Big Oil Companies Over Climate Change—And the Costs that Stem from It, L.A. Times (Jan. 13, 2018, 5:00 AM), http://www.latimes.com/local/lanow/la-me-ln-climate-change-lawsuit-20180113-story.html.

[7] Rhett B. Larson, Water Security, 112 Nw. U. L. Rev. 139 (2017).