- Police show up to enforce gun confiscation order against Maryland man under new “red flag” law, he brandishes weapon, they shoot him dead [Leah Crawley and Ashley Barnett, Fox Baltimore; Colin Campbell, Baltimore Sun]
- Claim: “The Kavanaugh debacle cost the Democrats the Senate” [Marc Thiessen] If I cheer for Neomi Rao is it going to hurt her confirmation chances? [Jesus Rodriguez, Politico on nomination of OIRA head for Kavanaugh seat on D.C. Circuit]
- “Please conduct yourself accordingly”: Matthew Whitaker letter to man who complained about World Patent Marketing, on whose advisory board Whitaker sat [Mike Masnick, TechDirt]
- Upholding FCPA prison term, Third Circuit rejects businessman’s argument that bribery deal helped pull population out of poverty in remote part of Siberia [Matt Miller, PennLive]
- Sidetracking a decision on the cy pres merits? Supreme Court calls for supplemental briefing on whether named plaintiffs in Frank v. Gaos “have suffered an ‘injury’ sufficient to create standing under the Court’s doctrine” [Ronald Mann/ SCOTUSBlog, Will Baude, earlier here, here, etc.]
- “Fun fact in an opinion today from the Federal Circuit: the Patent Office employs 14 examiners full time solely to examine patent applications filed by a single, prolific inventor.” [Andrew Trask, Gilbert Hyatt v. USPTO]
Not a new story, but new to me: Oklahoma State University says it has been awarded patent as well as trademark protection on what is called the Vegas Strip Steak, a part of the cow previously consigned to ground beef and other humble uses. [John Klein, Tulsa World last October; Drovers, John Ewoldt, Minneapolis Star-Tribune in 2012]
Kal Raustiala and Chris Sprigman wrote at Freakonomics in 2012:
There’s no way OSU could patent the steak itself. The steak is just a piece of a cow. It is, in other words, a product of nature, which cannot be patented.
Wisely, OSU’s patent apparently isn’t on the steak itself, but on the knife cuts necessary to extract the steak. But that approach is dubious as well. Once you know where the steak is, the cuts necessary to get at it may be obvious to a skilled butcher. Things that are obvious cannot be patented.
The Patent and Trademark Office presumably accepted the methods for producing the cut as other than obvious. More on patented meat items from Article One Partners.
- More on this to come, but Epic Systems, the workplace arbitration decision, is an epic win for contractual freedom and a big loss for the class action bar [earlier here and here]
- SCOTUS will revisit 1985 Williamson decision, which “makes it very difficult to bring takings cases in federal court.” [Ilya Somin on cert grant in Knick v. Township of Scott, earlier]
- Gorsuch and Thomas: similar originalist methods, which do not always arrive at similar results [Ilya Shapiro]
- “Can Agencies Adjudicate Patentability?” Two views of the recent case Oil States Energy Services v. Greene’s Energy Group [Cato “Regulation,” Jonathan Barnett and Jonathan Stroud via Peter Van Doren]
- “Victory for Defendant Autonomy and the Criminal Jury Trial in McCoy v. Louisiana” [Jay Schweikert]
- Quantitative analysis of amicus brief success at Supreme Court tells many stories, among them the sterling record of the Cato Institute’s amicus program [Adam Feldman, Empirical SCOTUS]
Mostly Cato links:
- Today, Monday afternoon: Ilya Shapiro and John Paul Schnapper-Casteras preview Masterpiece Cakeshop v. Colorado Civil Rights Commission from different perspectives on eve of oral argument, Roger Pilon moderating [watch online, earlier] Why, on cakeshop case, “it won’t surprise me if the court comes up with something a little muddled and a little bit hard to read” [Chris Johnson, Washington Blade, quotes me] More: George Will (cakes are not expression; but while couple who sued cake-baker “might be feeling virtuous for having done so… siccing the government on him was nasty.”);
- “Christie v. NCAA: Anti-Commandeering or Bust” [Jonathan Wood and Shapiro, earlier here and here] “Supreme Court’s Sports Betting Case Could Redefine Relationship between Feds and States” [Shapiro]
- Federal courts were politicized before the Federalist Society came along, and promoting the cause of textualism helps de-politicize them [Roger Pilon]
- SCOTUS should use Janus v. AFSCME to recognize public employees’ First Amendment rights against forced union agency fees [Shapiro, Trevor Burrus, and Aaron Barnes] More: Shapiro and Frank Garrison, National Review; Cato Podcast with Jacob Huebert and Caleb Brown;
- Silvester v. Becerra: Ninth Circuit errs on individual gun rights, SCOTUS should correct [Shapiro and Matthew LaRosiere]
- Assuming patents = property, structure of Patent Trial and Appeal Board may flunk constitutionally required norms of judicial independence [Shapiro and Barnes on Oil States Energy Services, LLC v. Greene’s Energy Group, LLC; Federalist Society panel video with Gregory Dolin, John Duffy, Arti Ray, and Robert Greene Sterne; Jeffri Kaminski, WLF]
- Collins v. Virginia gives Court a chance to protect the integrity of the home against warrantless searches [Jay Schweikert] And mark Dec. 13 for the 2017 Cato Surveillance Conference;
- Extending Commerce Clause to prairie dogs gnaws at constitutional principle [Shapiro, Burrus, and Reilly Stephens on Cato amicus brief urging certiorari in PETPO v. U.S. Fish & Wildlife Service; Jacob Sullum]
Allergan: we’ve transferred the patents for our dry-eye drug Restasis to the St. Regis Mohawk tribe, so now the Patent Trial and Appeal Board and our competitors can just go take a hike. The move follows a January decision by the PTAB to drop “a case against the University of Florida citing its sovereign immunity as a state institution. After that ruling, Michael Shore, a lawyer at Shore Chan DePumpo LLP in Dallas that represented the university, said the firm began looking for an Indian tribe that was interested in taking advantage of the ‘arbitrage opportunity.'” Rivals can still challenge the patents’ continuing validity in federal court, but that is a more cumbersome process. [Jonathan D. Rockoff, WSJ]
“When was the last time that America’s chair industry hiked the price of chairs 400% and suddenly nobody in the country could afford to sit down?” Funny, isn’t it, how these episodes keep happening in a sector of the economy where a new competitor, before being allowed to enter even a well-understood generic market, faces the prospect of unpredictable and expensive government denials and delays? [Scott Alexander]
More: Scott Gottlieb on how the new, more ardently regulatory FDA keeps generic drugs (and devices) off the market. Don’t blame the patent angle; EpiPen is off-patent [Timothy Holbrook, The Conversation]
- “At least for the moment, Defendants have shaken off this lawsuit” — court dismisses handwritten challenge to originality of Taylor Swift’s “Shake It Off” [Lowering the Bar]
- After nastygram from George Orwell estate, seller withdraws t-shirts bearing slogan “1984 is already here” [The Guardian] But see comment below from reader Gitarcarver (episode attributed more to CafePress over-reaction than to estate’s letter);
- “Anne Frank’s Diary Now Has Co-Author, Extended Copyright” [Christopher Klein, History.com]
- “What the history of Eskimo Pies tells us about software patents today” [Charles Duan, Slate]
- University of California, Santa Barbara, has put online a gold mine of 10,000 early recordings from the cylinder era, which ended in the 1920s [Hyperallergic] But could there be a copyright snag even on material this old? [Brian Frye, Prawfsblawg]
- Judge says company must pay $684K for pursuing “exceptionally weak” patent case [Joe Mullin, ArsTechnica]
- More: “That Irell & Manella would let itself get played by PETA for a stupid publicity stunt that serves no purpose other than to waste the court’s time…” [Mike Masnick, TechDirt; earlier on monkey-selfie case]
Amy Maxmen, Wired on the advances in DNA editing (via Jason Kuznicki):
But the attorney filing for Zhang checked a box on the application marked “accelerate” and paid a fee, usually somewhere between $2,000 and $4,000. A series of emails followed between agents at the US Patent and Trademark Office and the Broad’s patent attorneys, who argued that their claim was distinct.
A little more than a year after those human-cell papers came out, Doudna was on her way to work when she got an email telling her that Zhang, the Broad Institute, and MIT had indeed been awarded the patent on Crispr-Cas9 as a method to edit genomes. “I was quite surprised,” she says, “because we had filed our paperwork several months before he had.”
Despite today’s polarized political atmosphere, it is possible to construct an ambitious and highly promising agenda of pro-growth policy reform that can command support across the ideological spectrum. Such an agenda would focus on policies whose primary effect is to inflate the incomes and wealth of the rich, the powerful, and the well-established by shielding them from market competition. A convenient label for these policies is “regressive regulation” — regulatory barriers to entry and competition that work to redistribute income and wealth up the socioeconomic scale. This paper identifies four major examples of regressive regulation: excessive monopoly privileges granted under copyright and patent law; restrictions on high-skilled immigration; protection of incumbent service providers under occupational licensing; and artificial scarcity created by land-use regulation.
Patents for mobile technology have been receding somewhat from the sky-high values seen earlier amid intense litigation and legal developments may be among the reasons [Ina Fried, Re/Code]:
Over the past couple of years, more patents are being overturned as part of a more extensive post-grant review process at the patent office. Various court rulings have also made it harder to get injunctions on standards-essential patents. Finally, the Supreme Court set new limits in a key case over software patents, known as the Alice decision.
More on Alice v. CLS Bank here.