Institutional Competence: SCOTUS Dings CAFC

Others with more of a dog in the fight over Federal Circuit deference to district courts on matters of patent claim construction will have more (and more interesting) things to say about today’s opinion in Teva v. Sandoz. I’ll only note one particular passage in Justice Breyer’s majority opinion that caught my eye, on pages 7-8 of the slip opinion:
Finally, practical considerations favor clear error re­view. We have previously pointed out that clear error review is “particularly” important where patent law is at issue because patent law is “a field where so much de­pends upon familiarity with specific scientific problems and principles not usually contained in the general store­house of knowledge and experience.” Graver Tank & Mfg.Co. v. Linde Air Products Co., 339 U. S. 605, 610 (1950). A district court judge who has presided over, and listened to, the entirety of a proceeding has a comparatively greater opportunity to gain that familiarity than an appeals court judge who must read a written transcript or perhaps just those portions to which the parties have referred. Cf. Lighting Ballast, 744 F. 3d, at 1311 (O’Malley, J., dissent­ing) (Federal Circuit judges “lack the tools that district courts have available to resolve factual disputes fairly and accurately,” such as questioning the experts, examining the invention in operation, or appointing a court-appointed expert); Anderson, 470 U. S., at 574 (“The trial judge’s major role is the determination of fact, and with experi­ence in fulfilling that role comes expertise”).
It seems to me that this reasoning is a fairly direct challenge to the raison d’être of the Federal Circuit.  Learned Hand himself complained that the technical knowledge and expertise necessary to oversee the operation of the patent laws were beyond the grasp of most generalist Article III judges, and this was among the weightier reasons underlying the creation of our only federal appeals court whose jurisdiction is defined by subject matter. But judging by the Supreme Court docket (and the ruminations of some fairly capable generalist federal appellate judges), the argument for a specialist patent court is increasingly under assault.
Of course, it is trendy to take pot-shots at the Federal Circuit, and at the patent system generally. And the Supreme Court has been admonishing the CAFC–in subtle and not-so-subtle ways–for years; the quoted language from the Teva opinion is just the latest in a long line of examples. But the status quo has its defenders, and it does not seem likely that Congress will be loosening the Federal Circuit’s grip on patent law any time soon. So in the meantime, we’re left in the awkward position of continuing to rely on an institution whose comparative competence is increasingly called into question. Which, regardless of your view of the merits of a specialist court, can begin to wear on that court’s perceived legitimacy.
January 20, 2015 by Patents 0

The Nice Classification and Law’s Expressive Function

Happy New Year! For trademark lawyers, today marks the entry into force of the 2015 Version of the 10th Edition of the Nice Classification. This is the classification system that trademark owners refer to in identifying what types of goods or services they are claiming a right to use their marks with. (Trademark law allows for concurrent use by different users in sufficiently distinct product or service categories–think Delta Faucets and Delta Airlines). Just scanning the USPTO’s helpful list of “noteworthy changes” in the 2015 version, I’m reminded how much trademark law is a window into society, and how it can be example of what Cass Sunstein called the “expressive function” of the law.

Glancing through the list, we see that e-cigarette fluids are now firmly associated with smoking and tobacco instead of chemistry; that 3D-printers are considered less a scientific curiosity and more a useful tool; that the government is no longer quite so particular about categorizing sex toys according to precisely how they get you off.

Of course, against this apparently progressive list of changes are some more troubling indicia of an increasingly stratified and commodified consumer culture. We must now be careful to distinguish custom tailoring from mere clothing repair. We apparently need separate categories for all the various specialty mitts one might use for different household tasks–whereas once a washcloth could be used in the shower or on your car, now you need two different specially-designed gloves to achieve both tasks–and be sure you don’t confuse either with the different specialty mitt you use in the kitchen. And because even in our social interactions we’d rather spend money than time and effort, there is now legal recognition for branded gift wrapping services.

So that’s where we’re headed in 2015. Whether law is leading or following, I’ll leave you to decide.

January 1, 2015 by Trademarks Uncategorized 0

Don’t Hate the Player, Hate the Game

Via engadget, here’s an IP-related story that brings me back to middle school. A redditor who (currently) goes under the handle XsimonbelmontX has clearly spent a lot of time building and testing a board game based on one of my favorite 8-bit side-scrolling platformers from the 1980s, Castlevania:

Castlevania Board Game

It’s an impressive bit of work. The game involves co-operative play, and in addition to the progressive board game format it seems to incorporate elements of card-based role playing games like Magic: The Gathering in addition to die-based roleplaying elements reminiscent of Dungeons & Dragons. Responses on Reddit are quite positive; the general tenor is captured by the current leading comment, from redditor “Canadianized” which reads: “I would buy the fuck out of this.”

But of course, Canadianized can’t buy XsimonbelmontX’s game, because it’s not available for sale–there’s just the one prototype.  And some redditors, predictably, blame IP (see here, and here). But the IP story appears to be somewhat complicated.

Continue reading…

November 10, 2014 by Copyright Scholarship 0

There Is No Market for Human Flourishing

A blog post by Santa Clara economist and law professor David Friedman came across one of my social media feeds today, and it resonated with a lot of issues I’ve been thinking about lately. Friedman is taking issue with a particular corner of the climate change debate: the uncertainty over the sign and magnitude of future economic effects of climate change.  This uncertainty, he argues, counsels caution: we know it would be very costly to intervene right now; but waiting will allow for more precise assessment of the potential costs of climate change, a longer time frame for spreading those costs over the human population, and–importantly–potential to distribute those costs in a more appropriate way.  Here are the key passages for my purposes:

Diking against a meter of sea level change could be a serious problem for Bangladesh if it happened tomorrow. If Bangladesh follows the pattern of China, where GDP per capita has increased twenty fold since Mao’s death, by the time it happens they can pay the cost out of small change.

…

William Nordhaus, an economist who has specialized in climate issues … reported his estimate of how much greater the cost of climate change would be if we waited fifty years to deal with it instead of taking the optimal action at once.  The number was $4.1 trillion. He took that as an argument for action, writing that “Wars have been started over smaller sums.”
As I pointed out in a post here responding to Nordhaus, the cost is spread over the entire world and a long period of time. Annualized, it comes to something under .1% of world GNP.

(Emphasis and link to Nordhaus article added–JNS)

I have no specialized insight into the climate change debate, I have no particular beef against Prof. Friedman or his work, and I carry no particular brief for Prof. Nordhaus or his work. But I think this particular post is a very good encapsulation of how profoundly unhelpful the welfare economics approach is in analyzing problems of social cooperation over long time scales and across disparate populations, and I thought I’d take the opportunity to try to explain why.

Continue reading…

October 27, 2014 by Scholarship 2

Bleg: Seeking Research on “Disparaging” Trademarks Under Lanham Act 2(a)

Because I don’t have enough to do, I have taken on a time-sensitive research project for an ABA task force examining the provisions of the Lanham Act barring registrations of “scandalous” and “disparaging” marks (my task focuses on disparagement). I’m sure many of my law professor and lawyer friends have thought and written about these provisions more thoroughly than I have. If you’re one of them, I’d be grateful for you pointing me in the direction of the best sources to consult. Shameless self-promotion is heartily encouraged.

September 30, 2014 by Trademarks 0

“Who Should Pay for Progress?” to Kick Off IPSC 2014 at Berkeley

Well, this is a very nice surprise.  It looks like my current research project, “Who Should Pay for Progress?”, has been selected as the first presentation of the opening plenary session of the 14th Annual Intellectual Property Scholars Conference at UC Berkeley in two weeks. IPSC is the largest annual gathering of the intellectual property law academy, with over 150 scholars from all over the world presenting this year. As in past years, the organizers seem to have reserved the six plenary spots for relatively junior scholars–one of the more generous practices of an unusually generous scholarly community. Obviously I’m extremely grateful to the conference organizers for selecting my project; I’ll do my best not to disappoint.

July 26, 2014 by Uncategorized 2

Remembering Dan Markel

Dan Markel was killed yesterday. Dan was a distinguished young law professor at Florida State University, and founder of PrawfsBlawg, one of the first and most successful group law professor blogs (his blogging colleagues have posted a heart-rending notice of his death). Everyone I know in the very small world of legal academia seemed to know and like Dan. I knew him, and I liked him.  But frankly, I didn’t know him as well as I should have.

We were facebook friends; we exchanged likes on posts about our professional milestones and on photos of each other’s children, we sent one another birthday greetings (his always came with a “happy bam bizzle”). I did a stint guest-posting on Prawfs a couple of years ago, and Dan’s warmth and gratitude was palpable–over email.  But we worked in different fields–he in criminal law, I in intellectual property–and never found ourselves at the same conferences or workshops.  We never worked on the same faculty.  So we never really formed the kind of personal relationship so many of my friends and colleagues are now reminiscing over in their grief.

I always figured I’d get the chance to get to know Dan better in person someday–we were both relatively young; he often found himself in New York; we both had long careers ahead of us, or so I thought. Since hearing about his death, I’ve been trying to wrap my head around the notion that this someday isn’t coming, and everything I’m ever going to know about Dan is already in the world, somewhere, fading.  I’ve spent the past few hours trying to gather some of these rosebuds, and it breaks my heart.

I never realized how much my own professional life has been lived in Dan’s shadow, as if I’ve always been walking two steps behind him. We were, briefly, contemporaries in law school; he completed his service on the Harvard Law Review just as mine was starting.  When I decided I wanted to be a law professor, I took advice from Dan’s blog, not realizing he had founded it less than two years earlier (shortly before he started his academic career).  He had two young sons, his “bears,” each only a few months older than my two boys–tonight I can’t think more than a few seconds about this without weeping or trembling.  Finally, he spent the past decade trying to build and defend a theory of his field that depended not on detached calculation of cause and effect, cost and consequence, but on a fundamentally moral sense of what we as a democratic community of equals owe to one another, and how we should go about trying to fulfill those obligations. It’s only recently occurred to me that my career is shaping up to be about the same thing.

Because I never really got to know Dan personally, all I’m ever going to have to remember of him is his undeniable warmth and the ideas he left behind in his writing. And his ideas resonate deeply for me, though I suspect he and I came to our intellectual commitments by somewhat different paths.  Dan and I were both raised in the Jewish faith.  He embraced and lived that faith; I, ultimately, rejected it in favor of a more secular humanism. Whatever the sources of our intellectual commitments, though, we each came to believe strongly in equality, in democratic solidarity, and in the dignity of moral agents.  Perhaps most importantly, we each came to believe that these values are something we owe to one another as individuals, but practice together as a community.  The difference between us is that Dan actually built a community around himself that reflects these values, and tonight as I listen to that community mourn in disbelief, I’m painfully in awe of the achievement.  If I am still trying feebly to interpret the world, Dan in his too-brief life really did change it. I wish I had done more to help him.

July 20, 2014 by Uncategorized 0

Platforms, Interoperability, and Academic Workflow

One of the things I do to feel productive (read: procrastinate) during periods of writer’s block is try to improve my workflow.  (Another is blogging, clearly.)  This largely entails seeking out and tinkering with various software tools to increase the usefulness and accessibility of the research materials I use to write and teach. An e-library of hundreds (thousands?) of articles and books doesn’t just organize itself, you know.  Plus, highlighting and annotating on my tablet is far easier and more flexible than reading on a laptop. And of course, I want to make sure I avoid duplicating or losing my research work no matter what device I’m using or where I’m using it, so I need good cloud storage/backup and synchronization tools too. So on days when the words aren’t flowing smoothly from my mind to the page, I often find myself in a situation something like this:

Workflow Automation, per xkcd

A propos: lately I’ve been tinkering with combinations of software to achieve three distinct goals:

  1. Organizing my library so old sources and notes are easy to find and new sources are easy to add, wherever I happen to be working on a particular day, without depending on an always-on high-speed Internet connection.
  2. Linking my library to my tablet for easier reading and annotation of new sources.
  3. Synchronization and backup storage to propagate any work I do on one device across the entire system and insure it against loss from hardware failures.

And the most satisfactory software solutions I’ve found for these problems are, respectively:

  1. Zotero
  2. GoodReader for iPad
  3. Dropbox

Of course, there’s a problem: two of these solutions will work together tolerably well, but getting all three of them to work together is a tremendous pain.  And this appears to be by design.  Let me explain.

Continue reading…

July 16, 2014 by Cyberlaw Legal Academy 0
Portrait of Jeremy Sheff