by Sandra S. Park, Senior Staff Attorney, ACLU Women’s Rights Project
* This post originally appeared at the ACLU's Free Future.
Last April, during the Supreme Court oral arguments in our case challenging patents on human genes, Justice Kagan remarked, “The PTO seems very patent happy.” Her comment, and the unanimous decision invalidating gene patents, clearly expressed the Court’s concern that the Patent Office is overstepping its authority by approving patents that thwart, rather than foster, scientific inquiry and progress.
The Supreme Court will soon re-visit whether the Patent Office has gone too far in granting exclusive rights to what should properly remain in the commons. In the next few months, it will rule in Alice Corp. Pty. Ltd. v. CLS Bank International, a software patent case that completely divided the U.S. Court of Appeals for the Federal Circuit and is sparking controversy in the tech world. Alice follows three recent decisions—with the gene patents case being the last—issued by the Court reaffirming the longstanding principle that the Patent Act does not permit patents on products of nature, laws of nature, and abstract ideas. Patents on abstract ideas are especially likely to raise First Amendment problems, as the First Amendment protects freedom of speech and thought.
The case involves patents on a method for addressing the risk that one party might back out of a deal after the other one has already paid. You can read about the details of the patents here, but the steps of Alice’s patented method essentially call for a third party to keep track of financial transactions between two parties and then to instruct another institution to adjust the two parties’ accounts accordingly at the end of the day. It’s simple enough to imagine carrying out this process using pencil and paper to add up the transactions and a phone to communicate the account adjustment, but Alice’s patents claim any computer implementation of this process. That means Alice has a monopoly on any software or hardware that performs this way of using a third party to address settlement risk, even when Alice has not created the programming code or designed the computer that has this capability.
The Supreme Court heard oral argument yesterday in a case that centers on Florida’s rigid policy of determining whether it can move forward on executing a mentally disabled death row inmate. Lyle Denniston at SCOTUSblog reviews Florida’s standard for evaluating intellectual disability in the death penalty case, Hall v. Florida. For more on this case, please see analysis by Diann Rust-Tierney and Prof. John H. Blume at ACSblog as well as Jeremy Leaming’s piece on the controversial execution of Herbert Smulls.
Despite efforts by lawmakers in Georgia and Ohio to create more hurdles to voting, Jennifer L. Clark and DeNora Getachew at the Brennan Center for Justice report on some of the “good news on voting rights.”
Frank Pasquale at Balkinization briefly reviews Raul Carrillo and Rohan Grey’s The Cost of Justice, arguing that “law students need macroeconomics … and macroeconomics needs us."
Around the web, Supreme Court experts are offering cautious opinions about Monday’s oral argument in Utility Air Regulatory Group v. EPA, the Court’s latest climate change case. As expected, all eyes were focused on Justice Kennedy. In the New York Times, Adam Liptak suggests that a point made by Justice Kennedy “did not bode well for the agency.” In his post on SCOTUSBlog, Lyle Dennison has a more EPA-favorable view, suggesting that Kennedy’s “vote seemed inclined toward the EPA, though with some doubt.”
Having read the transcript, I’m inclined to think that EPA is likely to lose, but that the decision may nonetheless be helpful to environmentalists in the long run.
I suspect that Justice Kennedy may vote against EPA for two reasons. The first (and perhaps somewhat less serious) is based on the pseudo-science of counting the words a justice says during an argument. Political scientists have demonstrated that parties tend to lose when they are asked more questions, and that the amount a justice speaks during the argument provides insights into that justice’s inclinations. If that theory holds true, EPA is in trouble. Justice Kennedy spoke only twice during the argument presented for the industry challengers, uttering about 110 words, and he remained entirely silent during the presentation by the Texas Attorney General on behalf of the state challengers. In contrast, Justice Kennedy spoke seven times during Solicitor General Donald Verrilli’s argument on behalf of EPA, uttering approximately 180 words. Of course, the general trend that the number of words spoken by the Justices relates to a party’s likelihood of success doesn’t always play out in individual cases.
My second reason for believing that the Supreme Court may rule against EPA is a more specific to this case. Justice Kennedy’s questions appear to express skepticism about EPA’s position. At one point Justice Kennedy said to the Solicitor General: “I couldn’t find a single precedent that strongly supports your position. . . . [W]hat are the cases you want me to cite if I write the opinion to sustain your position?” Justice Kennedy also appeared to want assurance that an EPA loss would not be too significant an event, asking the Solicitor General: “Just to be clear, you’re not saying . . . that if you’re denied the authority you seek here, there can be no significant regulation of greenhouse gases under the Act?” Soon thereafter, perhaps sensing the mood among the Justices, Justice Sotomayor followed up, asking “If you were going to lose. . .” (The Solicitor General interrupted before the question finished, saying “I knew you were going to ask me that question.”).
Today, it’s far more likely than not that a pharmacist will fill a prescription with a drug’s generic version. According to the FDA, “approximately 80 percent of drugs dispensed today are generic.”
Most people take generic drugs without ever thinking about their safety, or their legal options should they be harmed. That was certainly the case with New Hampshire resident Karen Bartlett, who in 2004 was prescribed a generic version of the drug sulindac for shoulder pain. The New York Times described what happened next to Bartlett:
“Within weeks of taking the drug, her skin began to slough off until nearly two-thirds of it was gone. She spent almost two months in a burn unit, and months more in a medically induced coma. The reaction permanently damaged her lungs and esophagus and rendered her legally blind.”
Bartlett sued the drug company, claiming there was a design-defect with the drug. A jury awarded her $21 million in damages. But in the 2013 U.S. Supreme Court case Mutual Pharmaceutical Co. v. Bartlett, the Court overturned the verdict. In a 5-4 decision, the Court reasoned that because generic drug companies have a responsibility to mimic the composition of their brand-name counterparts and cannot independently alter their drugs’ composition, they cannot be sued for design-defect claims.
The Bartlett case was the second generic drug liability case to reach the Court in recent years. In 2011, in PLIVA, Inc. v. Mensing, the Court reached a similar result, finding that generic drug companies cannot be held responsible when their labels are incorrect or inadequate. Resting on a peculiarity in FDA law that prevents generic drug companies from changing labels even if a hazard exists, the Court majority held that in this case, “Federal law does preempt a State law failure-to-warn claim.”
On Wednesday, February 12 Sen. Reid (D-Nev.) filed cloture on four nominees. When the Senate returned on Monday, February 24, the Senate confirmed the first of these nominees, Jeffrey Alker Meyer to the District of Connecticut by a vote of 91-2. On Tuesday, February 25, the Senate confirmed the remaining three nominees:
James Maxwel Moody, Jr. to the Eastern District of Arkansas, 95-4,
James Donato to the Northern District of California, 90-5, and
Beth Labson Freeman to the Northern District of California, 91-7.
On Tuesday, February 25, the Senate Judiciary Committee held a hearing on four judicial nominees:
Gregg Jeffrey Costa to the Fifth Circuit,
Tanya S. Chutkan to the District of Columbia,
M. Hannah Lauck to the Eastern District of Virginia, and
Leo T. Sorokin to the District of Massachusetts.
On Thursday, February 27, the Senate Judiciary Committee held and Executive Business Meeting and reported six nominees to the District of Arizona out of Committee. The Committee held over three other nominees.
The nominees to the District of Arizona reported out were:
Steven Paul Logan,
John Joseph Tuchi,
Diane J. Humetewa,
Douglas L. Rayes, and
James Alan Soto.
If confirmed, Diane Humetewa would be the first Native American woman to serve on the federal bench. Rosemary Marquez was originally nominated in June of 2011 and is the nominee who has been pending the longest.