Posts Tagged: "chief justice roberts"

It seems undeniable that Alice missed many opportunities to score easy points. Indirect arguments were made by Alice that didn’t seem very persuasive. Indeed, if one is to predict the outcome of the case based on oral arguments alone it did not go well for Alice today. Only three things give Alice supporters hope after this oral argument as far as I can tell. First, the government seems to be asking the Supreme Court to overrule precedent in Bilski that is not even four years old, which simply isn’t going to happen. Second, the egregious overreach and outright misleading nature of the CLS Bank argument should raise a legitimate question or two in the mind of the Justices. Third, the reality simply is that at least the systems claims recite numerous specific, tangible elements such that it should be impossible to in any intellectually honest way find those claims to cover an abstract idea.

If cDNA is patent eligible subject matter, as it seems likely based on the tone of the oral argument, that should be very good news for Myriad. As Justice Breyer recognized during questioning of Mr. Hansen (representing AMP), the Myriad claim says they want “the isolated DNA of claim 1 wherein said DNA has the nucleotide sequence set forth in SEQ ID No. 1.” If you look at SEQ ID No. 1 clearly states that the molecule type is cDNA, thus cDNA seems to be a part of the claim, not to mention that the cDNA used by Myriad was a consensus sequence made from hundreds of different patients. Thus, if cDNA is patent eligible then the Supreme Court must find that at least some genes are patent eligible and must also find the Myriad claims patent eligible. Whether the Supreme Court Justices really captured that nuance remains in doubt. It seemed at times that Justices Sotomayor and Kagan were openly arguing the AMP/ACLU case. Sadly, at times it was apparent that the Supreme Court doesn’t understand even the most basic and fundamental patent law concepts.

While one can never know for certain how the Supreme Court will rule, even a casual observer has to conclude that the Supreme Court seems poised rule in favor of Monsanto. Seconds after Bowman’s attorney started Chief Justice Roberts interrupted asking why anyone would ever patent anything if Bowman were to prevail. Shortly thereafter Justice Breyer openly concluded that Bowman infringed in a matter of fact way. It later may have seemed Breyer was probing for a response he didn’t get more so than announcing his view of the case. Nevertheless, if Bowman loses Breyer he has no chance.

The Court went to the actual terms of the Covenant to determine if Nike had met this very tough burden burden. In this case, though, Nike did. The terms of the Covenant were unconditional and irrevocable. They prohibited Nike from making any claim or demand, and even went so far as to shield YUMS’ distributors and customers. This coupled with the fact that YUMS did not provide a shred of evidence that it had plans to market a shoe that the Covenant wouldn’t cover was enough to convince the Court that the possibility of future harm was just too remote here.

The concurring opinion of Justice Kennedy is even more unfortunate. Like Chief Justice Roberts, while agreeing with Justice Thomas’ holding that the traditional “four-factor” test applied to the grant of injunctive relief in patent cases, Justice Kennedy’s concurring opinion went even further to suggest that “trial courts should bear in mind that in many instances the nature of the patent being enforced and the economic function of the patent holder present considerations quite unlike earlier patent cases.” As Justice Kennedy saw it, “an injunction, and the potentially serious sanctions arising from its violation, can be employed as a bargaining tool to charge exorbitant fees to companies that seek to buy licenses to practice the patent.” What is particularly distressing about Justice Kennedy’s concurring opinion is the further comments he makes about injunctive relief in the context of patents on “business methods.”

A method to reduce the national debt comprising a “Skinny Jeans Tax” whereby… Does anyone think they look good in skinny jeans? Where on earth are the fashion police when you need them? In any event, those paying the “Fat Tax” certainly wouldn’t be caught dead wearing skinny jeans, and why would anyone who can actually fit into skinny jeans want to demonstrate for all the world to see that they are little more than a frail package of skin and bones? Being too skinny is just as unhealthy, if not even more unhealthy, than being too fat. Because your Congress and President care about you so much they will initiate a “Skinny Jeans Tax” that gives you incentive to eat enough not to look like a fool. This tax comes in two forms. In the “phase in years” it will apply only to those who actually buy skinny jeans. In out years, after fully phased in, it will apply to anyone who could fit into skinny jeans, regardless of purchase or violation of common sense protocols.

All in all it seemed to me that the majority of the court seemed more skeptical about the Mayo position and more supportive of the Prometheus position. That being said, it is extremely troubling to contemplate the possibility that Chief Justice Roberts was more in tune with the thinking of Justice Breyer. It is also disheartening to see such a fundamental misunderstanding of patent law on the part of the Chief Justice. At the end of the day the Justices of the Supreme Court will say what the law is on this issue, but sometimes it is hard to imagine a less qualified bunch to opine on a patent issue.

The ink is hardly dry on the Supreme Court decision in Stanford v. Roche and already those who oppose patent reform are concocting one of the most ridiculous arguments I have ever seen to oppose first to file provisions. There are some, including at least one Member of Congress, that have started saying that the Supreme Court’s decision in Stanford v. Roche makes it clear that the first to file provisions of patent reform are unconstitutional. Just sit right back and allow me to explain to you exactly why that is perhaps the most specious argument I have ever heard.

At issue in the case, essentially, was whether the extraordinarily successful Bayh-Dole legislation (enacted in 1980) automatically vested ownership of patent rights in Universities when the underlying research was federally funded. In a blow to the convention wisdom of Supreme Court patent-watchers, the Supreme Court actually affirmed the United States Court of Appeals for the Federal Circuit. Unlike some recent decisions where the result of the Federal Circuit was affirmed but a wholly new test announced, the Supreme Court simply concluded: “The judgment of the Court of Appeals for the Federal Circuit is affirmed.” Perhaps even more surprising, the Supreme Court seems to have objectively reached the correct conclusion.

Hungar would go on to say that the clear and convincing standard “makes no sense,” which nearly immediately drew the first comment from the bench with Justice Ginsburg saying that it would be difficult to say the standard makes no sense when it was supported by Justice Cardozo and Judge Rich. Ginsberg would later, in a nearly annoyed way, say “then you have to be saying that Judge Rich got it wrong…” Hungar cut off Justice Ginsburg, not typically a wise move.

If you are anti-patent then you are anti-innovation because those who innovate are not the behemoths of industry, but rather start-up companies that absolutely require patents in order to attract funding, expand and create jobs. Thus, given the hostility toward patents it is entirely accurate to characterize the Roberts Court as anti-innovation. The Roberts Court increasingly puts hurdles in the way of high-tech job growth. You see, it is easy for anyone to characterize the Supreme Court as “pro-business” because selecting a victor in a “business case” almost necessarily means that a business has been victorious. But what business? One that is likely to innovate, expand, create jobs and form new industry? Or one that once innovated and expanded, but now finds themselves stagnant and laying off employees?

The latest edition of Fortune magazine has John Roberts, Chief Justice of the United States Supreme Court, on the cover proclaiming the Roberts Court to be the most pro-business court we have ever seen. So how can it be that the Roberts Court, which has shown hostility toward innovators and contempt for patents that is unusual, is considered pro-business? On top of that, the Roberts Court seems poised to strike at the very heart of the patent right granted by the United States federal government; namely the presumption of validity. That sure doesn’t sound very pro-business to me.

Where this decision takes on a surreal quality is how the various Justices viewed the impact of 35 U.S.C. § 273 in determining whether “business methods” are patent-eligible. Justice Stevens and 3 other Justices (Ginsburg, Breyer and Sotamayor) are completely WRONG in treating 35 U.S.C. § 273 as if this statute doesn’t exist. Even Scalia, who obviously doesn’t like patents on “business methods” (by his refusal to join Part II B-2 of Kennedy’s opinion) couldn’t stomach rendering the language of 35 U.S.C. § 273 a nullity.