DUCK! The Courts Are Busy Setting Precedents

Justices Reach Out to Consider Patent Case

For the first time in a quarter-century, the Supreme Court will hear on Tuesday a case involving the basic question of what type of discoveries and inventions can be patented.

Both sides say the case, which involves a blood test for a vitamin deficiency, could have a wide-ranging impact on the development of diagnostics, perhaps threatening many of the underlying patents for genetic and other medical tests.

But the array of companies filing supporting briefs — including American Express, Bear Stearns and I.B.M. — indicates that intellectual property in other fields might also be affected.

Some patent specialists say they think the Supreme Court agreed to hear the case, against the advice of the United States solicitor general, to rein in patenting.

"The Supreme Court reached out and grabbed this case," said Edward R. Reines, a patent attorney at Weil, Gotshal & Manges who is not involved in the case. "These circumstances suggest that some members of the court believe there are too many patents in areas where there should be none."

At issue is whether relationships between a substance in the human body and a disease — for example, the familiar association between high cholesterol and a higher risk of heart attacks — can be the basis of a patent, or whether such relationships are unpatentable natural phenomena.

Indeed, intellectual property law has gone askew. The intent of copyright, patent and other intellectual property protection is to promote the "useful arts and sciences" not merely protect and line the pockets of big business. But that is how patents, copyrights and other IP protections have been growing. Take for example, the idea of patenting a software application. Software code grows out of ideas and methods shared among programmers through reserves of code called "libraries." Every time a programmer works on a project there is some sort of collaboration and sharing of "pieces of code" and ideas on how to conquer a particular end-user need. Yet, many software companies have sought--and been granted--patents. The method of development alone precludes the fundamental foundation for a patent... that it is a unique and distinct invention.

And for additional commentary, please read on...

B Vitamin Supreme Court Case Could Prove Tough Medicine for Patent Lawyers

B vitamin deficiencies can cause a range of serious health effects, including spinal defects in children born to women with below-normal levels of folic acid and anemia in people not getting enough B12.

That's why a two-step method of diagnosing those deficiencies that three medical school doctors patented in 1990 has become so widely used. It's performed tens of millions of times a year, at a cost of just a dollar or two, by laboratory testing companies nationwide.

Now, to the surprise of patent attorneys, a case involving one of those companies, sued after it stopped paying some royalties, has landed in the Supreme Court, where arguments will be heard Tuesday.

Even more surprising is that the Supreme Court may dredge up a bombshell question not asked when the lower courts considered the case: Have inventors been busy patenting laws of nature, natural phenomena and abstract ideas?

At stake, attorneys on both sides of the case say, are 25 years of patent law and literally tens of thousands of patents on drugs, medical devices, computer software and other inventions. If the court reins in what can be patented, they say, it could be among the most important patent law decisions ever made.

And in a similar case...

Supreme Court Tackles Patentability of Scientific Phenomena

Supreme Court justices appeared reluctant Tuesday to decide a key patent law case in a way that would, as one justice put it, establish "monopolies in this country beyond belief" over naturally occurring phenomena.

Justice Stephen Breyer expressed that concern during oral arguments in Laboratory Corp. of America v. Metabolite, a dispute that tests the scope of patentability. Other justices indicated sympathy with the solicitor general's view that the case should be sent back to lower courts for further review.

The case could help resolve a festering debate in patent law over whether a basic scientific phenomenon can be patented -- and, by extension, whether business strategies or other less tangible creations can also be patented.

Judges Overturn Bush Bid to Ease Pollution Rules

A federal appeals court on Friday overturned a clean-air regulation issued by the Bush administration that would have let many power plants, refineries and factories avoid installing costly new pollution controls to help offset any increased emissions caused by repairs and replacements of equipment.

Ruling in favor of a coalition of states and environmental advocacy groups, the United States Court of Appeals for the District of Columbia Circuit said the "plain language" of the law required a stricter approach. The court has primary jurisdiction in challenges to federal regulations.

The ruling by a three-judge panel was the court's second decision in less than a year in a pair of closely related cases involving the administration's interpretations of a complex section of the Clean Air Act. Unlike its ruling last summer, when the court largely upheld the E.P.A.'s approach against challenges from industry, state governments and environmental groups, the new ruling was a defeat for the agency and for industry, and a victory for the states and their environmentalist allies.

In the earlier case, a panel including two of the three judges who ruled on Friday decided that the agency had acted reasonably in 2002, when it issued a rule changing how pollution would be measured, effectively loosening the strictures on companies making changes to their equipment and operations.

But on Friday, the court said the agency went too far in 2003 when it issued a separate new rule that opponents said would exempt most equipment changes from environmental reviews — even changes that would result in higher emissions.

Win one for the people! Our record on air pollution is desperate. We have created more greenhouse gases, carbon particles, acidic components and noxious gases than most other industrial nations... and have done the least possible to correct any of it. Now comes the Bush administration with an arbitrary and capricious executive decision to ease up on big businesses that are among the biggest polluters... and the Court said no. Bravo! But the real question is whether or not the Bush gang will call this judicial activism and seek an appeal to the stacked deck at SCOTUS?

9th Circuit Slams DOJ Over Detention

Ahilan Nadarajah was detained as a terrorism suspect for nearly five years before he got to argue his case before the 9th U.S. Circuit Court of Appeals. It only took a three-judge panel 10 days to order his release.

In a unanimous decision Friday, Judge Sidney Thomas wrote that federal immigration officials can't detain an asylum seeker indefinitely after an immigration court orders his release. Thomas wrote that the government's interpretation that a Supreme Court opinion allowed indefinite detention was "patently absurd."

"The general immigration detention statutes do not authorize the Attorney General to incarcerate detainees for an indefinite period," Thomas wrote. He was joined by Judge Richard Tallman and Senior U.S. District Judge James Fitzgerald of the District of Alaska, who sat by designation.

"By any analysis," Thomas wrote, "a five-year period of confinement of an alien who has not been charged with any crime, and who has won relief at every administrative level, is unreasonable under the standards set forth by the Supreme Court. Nor are we persuaded by the government's argument that because the Attorney General will someday review Nadarajah's case, his detention will at some point end, and so he is not being held indefinitely. No one can satisfactorily assure us as to when that day will arrive. Meanwhile, petitioner remains in detention."

Nadarajah's lawyer, Ahilan Arulanantham of the ACLU Foundation of Southern California, argued the case to the panel on March 7, and asked the judges to rule quickly, given the long detention at issue.

"We're very pleased with it," Arulanantham said Friday. "The court was concerned, like the immigration courts and all the courts who heard it in the United States, that the government was wrong.

At least we now know why the Bush gang sought to keep the courts out of the doings involving "detainees" at Gitmo and elsewhere... they knew how the courts would rule. Indefinite incarceration is not only unlawful according to international law, it is unconstitutional, it is unprincipled, and it is universally unconscionable. It is even un-Christian (I throw that in to entertain the Christian Right proponents of letting their version of God decide things for everyone in the US).

High Court Declines to Review: Internet Obscenity Case

The Supreme Court turned back an appeal on Monday from a photographer who claimed a federal decency law violated her free speech rights to post pictures of sadomasochistic sexual behavior on the Web.

Justices affirmed a decision last year by a special three-judge federal panel upholding the 1996 law which makes it a crime to send obscenity over the Internet to children.

The Court could have used the case to set online obscenity standards. The subject of children and indecency has gotten more attention recently.

Last week the government renewed its crackdown on indecent television by proposing nearly $4 million in fines for controversial broadcasts.

The Bush administration had urged justices to stay out of the case.

The case is Nitke v. Gonzales, 05-526.

High Court Declines to Review: Convicted Spy Case

CONVICTED SPY LOSES SUPREME COURT APPEAL

The Supreme Court refused Monday to give Jonathan Pollard, now serving a life sentence for spying for Israel, access to records that could bolster his case for a presidential clemency.

Pollard's lawyers wanted the justices to reopen his case, so that they could pursue secret documents the government submitted to the judge who sentenced Pollard in 1987.

Pollard sold military secrets to Israel while he worked at the Defense Department's Pentagon headquarters. He was arrested in 1985 and pleaded guilty. The Supreme Court had already refused to let the former Navy intelligence analyst withdraw the guilty plea.

The latest Supreme Court case was not about spying, but about government authority to keep records used in court sealed from the public.

The case is Pollard v. United States of America, 05-1013.

High Court Declines to Review: Tobacco Case

SUPREME COURT WON'T REVIEW TOBACCO JUDGMENT

The Supreme Court refused Monday to consider tossing out a $50 million damage award to the family of a two-pack-a-day smoker who died of cancer.

Philip Morris USA, which controls about half the U.S. cigarette market, had asked the justices to declare the award unconstitutionally excessive and to rule that the company should have been shielded from some of the smoker's claims.

Justices declined, without comment.

The cases are Philip Morris USA v. Boeken, 05-594, and Boeken v. Philip Morris Inc., 05-600.

High Court Declines to Review: Death Penalty Case That Prevents Death Sentance

SUPRME COURT REJECTS NEW JERSEY APPEAL IN DEATH CASE

The Supreme Court declined Monday to consider reinstating a New Jersey man's death sentence in a case that inspired a true-crime book and television miniseries.

Justices did not comment in rejecting New Jersey's appeal of an appeals court ruling that found that Robert O. Marshall's lawyer did not adequately represent him during the death penalty phase of his trial for arranging the death of his wife.

Marshall, a former insurance salesman, was convicted of hiring a hit man from Louisiana to kill his wife at a Garden State Parkway rest stop in 1984 so he could continue an affair with another woman and collect insurance money. The story became the subject of a best-selling book, "Blind Faith," and a miniseries of the same name.

The case is Cathel v. Marshall, 05-966

High Court Sides With Merrill Lynch Over Investor Suits

In yet another pro-Big Business decision, the SCOTUS has ignored the 9th and 10th Amendments that reserved rights to the states and people, citing an "overriding dederal interest" to resolve class action suits against securities frauds. However, in the way I read the law, and looking at similar suits involving pharmaceutical manufacturers and other consumer protection issues, the state and the federal governments have an equally pressing interest in protecting the interests of investors and this decision robs the states of their interests in protecting its citizenry from scams, misrepresentations and collective actions. While the SEC is primarily charged with oversight of securities issues, we have seen that it does not always do a sufficient job (i.e. Enron, Tyco, WorldCom, RCN, etc., etc.)

This precedent will be used to block state actions against other major business entities charged with consumer and investor problems. It is ironic that ther can be shard federal and state interests in criminal cases, in pollution cases, and in all sorts of other cases, but big business gets the exclusive attention of the feds... I smell a rat and some rotting cheese.

The U.S. Supreme Court has staked out an overriding federal interest in the resolution of class action lawsuits stemming from securities fraud.

"The magnitude of the federal interest in protecting the integrity and efficient operation of the market for nationally traded securities cannot be overstated," Justice John Paul Stevens wrote for the Court on Tuesday in Merrill Lynch, Pierce, Fenner & Smith v. Dabit, 04-1371.

The justices ruled 8-0 that Merrill Lynch should have been shielded from a lawsuit, filed under Oklahoma state law, by former and current brokers who alleged that the company disseminated misleading research, which manipulated stock prices. The brokers claimed that as the result of overly optimistic appraisals, they and their clients held the stocks long beyond the point when, had the truth been known, they would have sold.

Stevens wrote that laws passed after the stock collapse in 1929 "have anchored federal regulation of vital elements of our economy." In particular, he stressed that "federal law, not state law, has long been the principal vehicle for asserting class-action securities fraud claims."

The suit was filed after an investigation by New York state Attorney General Eliot Spitzer disclosed that Merrill Lynch's analysts provided overly optimistic assessments of stocks to curry favor with corporate clients. The brokers alleged that they relied on these evaluations and lost money and clients when the truth was revealed and the value of their shares plummeted.

Judge Closes Web Site Over Copyright Issues: Institute Opposes Stem-Cell Research

While it may be permissible to oppose and protest stem-cell research, it is not permissible to copy a web site to create confusion and trick people into seeing your way of things.

The ultra-conservatives hailed the SCOTUS decision that now permits protests outside of abortion clinic, but may have opened a can of worms for themselves as they now ramp up their efforts. I predict that there will be other lawsuits for infringement of property and business rights in the future... all of which will be aimed at cases like this one... or toward any group that interferes with the legal operation of a business or not-for-profit corporation that conducts medical care for women, stem cell research, reproductive health, etc.

A federal judge on Monday ordered a stem-cell research opponent’s Web site shut down after ruling that the site illegally copied a Web site that supports such research.

U.S. District Judge Gary Fenner of Kansas City issued an injunction against the Elliot Institute for Social Sciences Research for violating copyrights.

The injunction stemmed from a suit against the institute filed by the Missouri Coalition for Lifesaving Cures, which is gathering signatures in support of an initiative that would protect all forms of stem-cell research allowed by federal law.

The coalition accused the Elliot Institute of copying the coalition’s Web page as a way to sow confusion among the public about the purpose of the stem-cell initiative.

The coalition, which includes individuals, medical researchers and patient advocacy groups, sees the research as the best hope for finding cures to diabetes, Parkinson’s disease and other chronic disorders.

And in the category of cases that will soon be coming to courts in your neighborhood...

Spending Measure Not a Law, Suit Says: Senate, House Versions Are Different

I cannot fathom how anyone can call a law that did not follow due process "constitutional," but that is what some Republicans have said, despite admitting that this bill did not go through the established process, does not have clear delineation of terms and was challenged before it went to the White House. Merely stating that this is a plot by the Dems to be obstructionists doesn't change the facts.

How is it that fifth-graders know the law, but those working for the Speaker of the House, Dennis Hastert, do not? Maybe we should elect fifth-graders to represent us!

For anyone who took fifth-grade social studies or sang "I'm Just a Bill," how legislation turns to law always seemed pretty simple: The House passes a bill, the Senate passes the same bill, the president signs it.

"He signed ya, Bill -- now you're a law," shouts the cartoon lawmaker on "Schoolhouse Rock" as Bill acknowledges the cheers.

But last month, Washington threw all that old-fashioned civics stuff into a tizzy, when President Bush signed into law a bill that actually never passed the House. Bill -- in this case, a major budget-cutting measure that will affect millions of Americans -- became a law because it was "certified" by the leaders of the House and Senate.

After stewing for weeks, Public Citizen, a legislative watchdog group, sued yesterday to block the budget-cutting law, charging that Bush and Republican leaders of Congress flagrantly violated the Constitution when the president signed it into law knowing that the version that cleared the House was substantively different from the Senate's version.

The issue is bizarre, with even constitutional scholars saying they could not think of any precedent for the journey the budget bill took to becoming a law. Opponents of the budget law point to elementary-school civics lessons to make their case, while Republicans are evoking an obscure Supreme Court ruling from the 1890s to suggest a bill does not actually have to pass both chambers of Congress to become law.

"We believe that the law is constitutional and that this is yet another political attempt by the Democrats to stop us from cutting spending," said Ronald D. Bonjean Jr., a spokesman for Speaker J. Dennis Hastert (R-Ill.).