Tag Archives: Constitutional Law

No Concrete Plans, No Standing: Federal Circuit’s Latest on IPR Appeals

August 18, 2024PatentAIA Trials, Article III, Case-or-Controversy, Constitutional Law, Dismissal with Prejudice, Federal Circuit, infringement, IPR, judicial review, Kessler Doctrine, obviousness, paid, patent litigation, standingDennis Crouch

by Dennis Crouch

The recent Federal Circuit decision in Platinum Optics v. Viavi Solutions focuses attention once again on the case-and-controversy requirement derived from Article III of the U.S. Constitution, which extends federal judicial power to "Cases" and "Controversies."

The seemingly simple phrase has been the subject of extensive judicial jockeying in the development of the doctrine we know as "standing."

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Presumption of Injunction: How the RESTORE Act Aims to Re-Empower Patent Holders

July 31, 2024PatentConstitutional Law, eBay v. MercExchange, Equity, Federal Circuit, Injunctive Relief, innovation policy, intellectual property, legislation, NPEs, obviousness, paid, patent infringement, patent law, patent litigation, Patent Remedies, patent rights, RESTORE Act, Supreme CourtDennis Crouch

by Dennis Crouch

For the vast majority of American history, a judgment of patent infringement (by a court sitting in equity) led almost directly to injunctive relief barring ongoing infringement. This construct was flipped by the Supreme Court's 2006 decision in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), a case which served as the first major step of weakening patentee rights over the past two decades. Now, a new bipartisan bill aims to restore the pre-eBay status quo. The Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive (RESTORE) Patent Rights Act of 2024, introduced by Senators Coons (D-Del.) and Cotton (R-Ark.), with a House companion bill from Representatives Moran (R-Texas) and Dean (D-Pa.), seeks to reshape and repair the availability of injunctive relief for patent holders. As you'll see, one nice element of the Bill is that it simply adds 1 sentence - creating a rebuttable presumption

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Federal Circuit Closes Book on TRUMP TOO SMALL Trademark Saga

July 30, 2024PatentConstitutional Law, Federal Circuit, first amendment, free speech, Here's the list of tags in CSV form: Trademark Law, intellectual property, Lanham Act, paid, Per Curiam Decision, Political Speech, Right of Publicity, Supreme Court, Trademark, Trademark Litigation, trademark registration, trademark trial and appeal board, TrumpDennis Crouch

by Dennis Crouch

In a brief order, the Federal Circuit has put what appears to be the final nail in the coffin of Steve Elster's attempt to register "TRUMP TOO SMALL" as a trademark.

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Does Justice Thomas Hate Invention or Just the Hubris of Inventors?

June 23, 2024PatentConstitutional Law, Judicial Activism, judicial interpretation, Judicial Invention, Legal Philosophy, Oil States, paid, patent law, Supreme Court, TaxationDennis Crouch

by Dennis Crouch

The Supreme Court recently decided Moore v. United States, --- U.S. --- (June 20, 2024), a case focusing on the constitutionality of the Mandatory Repatriation Tax (MRT). While the majority opinion, authored by Justice Kavanaugh, upheld the MRT, Justice Thomas published a strong dissent relying upon an invention metaphor in a decidedly negative light, something that he has done in several other recent opinions. For Thomas, judicial invention is a synonym to judicial activism and antithetical to his approach that looks primarily to historic preservation, especially when interpreting the U.S. Constitution.

In Moore, the majority held that the MRT, which attributes the realized and undistributed income of an American-controlled foreign corporation to the entity's American shareholders and then taxes those shareholders, "falls squarely within Congress's constitutional authority to tax." The Court reached this holding by relying on its "longstanding precedents" that allow Congress to attribute the undistributed income of an entity to the entity's shareholders or partners for tax purposes.

Justice Thomas, joined by Justice Gorsuch, dissented. He argued that the Sixteenth Amendment requires realization for income to be taxed without apportionment. His main complaint against the majority opinion is that it "invent[ed]" a new attribution doctrine to reach its conclusion.

Justice Thomas' negative invocation of "invention" in Moore is part of a broader trend in his recent opinions. Just a week before Moore, in FDA v. Alliance for Hippocratic Medicine, 602 U.S. --- (June 13, 2024), Justice Thomas refused to "invent a new doctrine of doctor standing," concluding that "there would be no principled way to cabin such a sweeping doctrinal change to doctors or other healthcare providers." Similarly, in a recent concurring opinion, Justice Thomas argued that "Federal courts have the power to grant only the equitable relief 'traditionally accorded by courts of equity,' not the flexible power to invent whatever new remedies may seem useful at the time." Alexander v. S.C. State Conf. of the NAACP, 144 S. Ct. 1221 (2024) (Thomas, J., concurring). And in his dissent in US v. Rahimi, 602 U.S. --- (June 21, 2024), Justice Thomas complained that "At argument, the Government invented yet another position."

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