April 30th, 2007

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Appears to be Patent Day At the Supremes

The Supreme Court released today two signifcant opinons on the scope of patent protection. I haven't had a chance to do more than glance. But:

KSR v. Teleflex: http://www.supremecourtus.gov/opinions/06pdf/04-1350.pdf
Held: the standard of "obviousness" used by the Federal Circuit is too narrow. This should lead to a greater invalidation of patents on the grounds that they do not satisfy the requirement of the paptent statute that improvements or inventions be "non-obvious."

Microsoft v. AT&T: http://www.supremecourtus.gov/opinions/06pdf/05-1056.pdf
Held: A violation of a U.S. patent in a foreign country, where the U.S. patent holder does not hold the patent, does not trigger liability for patent infringement.
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Turns Out Gonzales v. Carhart NOT End of World, but could be.

O.K., brief survey. Of all the people who reacted to the Supreme Court's opinion in Gonzales v. Carhart (aka the "latest Supreme Court case on abortion rights"), who actually read the opinion first?

I ask because I have now read the opinion. And while I will certainly agree that the Court here has begun a retreat from its previous holdings around reproductive rights -- one which should certainly stir activists out of complacency -- the decision is far more complex than reported and, in many ways, constitutes something of a victory for reproductive rights activists.

Which brings me to another point. The strategy of shouting that "the end is upon us" is not very productive. People who care about this issue are going to have to start taking an interest in the goddamned details and start fighting this like a war of attrition they want to win. And sooner rather than later. Because while this opinion represents only a modest and subtle shift in the existing precedent, it is the first crack that signals a possible avalanche.

My analysis below the cut.

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Carhart follow up

Actually, I'm not sure why this is a legal statute as a mater of Tenth Amendment/Federalism jurisprudence. What exactly is the federal interest Congress is protecting here? the opinion speaks about "protecting the ethics of the medical industry" and protecting the preborn and so forth. But how is that different from a federal gun control scheme that mandates gun free zones around schools (U.S. v. Lopez), or requiring local police to do background checks (Printz v. U.S.).

Of course, it does not appear that anyone actually raised the federalism question, so the court can be excused for its failure to raise the objection sua sponte. Indeed, Justices Scalia and Thomas filed a separate concurrence to emphasize that the question was not presented and the court does not pass upon it.

Still, for folks looking for arrows for the quiver, cultivating the libertarian anti-centralized government crowd may be one possibility.
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A final Carhart thought . . .

To the extent I can feel a drop of schadenfrued, it goes to seeing Ginsburg hoist by her own friggin' petard.

Ginsburg takes the majority to task for its deference to Congress' clearly erroneous findings nd for the majority's rather offensive speculations about how women must feel and the state interest in making sure women are duly informed. But Ginsburg engaged in a similar bit of nonesense -- but even nastier -- in Eldred v. Ashcroft. Why? Because Ginsberg "gets" how abortion is a fundamental rights issue, but doesn't "get" how copyright could possible impact anybody. So when it comes to the Copyright Term Extension Act, it's all "deference to Congress" and discarding the expert testimony of nobel economists as hardly worth considering. But when it comes to stuff she understands, suddenly the Court has a duty to investigate to protect a fundamental right.

Ginsburg did the same thing in her concurrence in Grokster. Unable to fathom how peer-to-peer might have uses beyond "pirating" music, Ginsburg would have imposed a ridiculous standard for liability. After all, why bother to remand for fact finding when it is "clear" that protecting innovation is merely a cover for "piracy."

I wouldn't feel so strongly about it if she hadn't been so viscious to Bryer and Stevens.

This is why we have arule of law and apply our principles equally no matter what right is before us.