ACSBlog

  • April 22, 2016
    Guest Post

    by Monica Grewal, Partner, and Michael H. Smith, Senior Associate, WilmerHale

    The United States Patent and Trademark Office has used a “broadest reasonable interpretation” (BRI) standard for claim interpretation when examining pending patent applications. Under the BRI standard, a claim term is generally given its broadest reasonable interpretation consistent with the ordinary and customary meaning of the term, its use in the specification, and how it would have been understood by those skilled in the art. Federal district courts, by contrast, have utilized the approach provided in Phillips v. AWH Corp. Under the Phillips approach, courts construe claim terms based on the meaning they would have had to a person of ordinary skill in the art at the time of the invention, based on review of the patent specification, file history, and extrinsic evidence such as dictionaries.

    The America Invents Act of 2011 (AIA) established procedures for challenging issued patents at the Patent Office through inter partes review (IPR), covered business methods review (CBM), and post-grant review (PGR) proceedings. The Patent Office generally applies the BRI standard to these proceedings rather than the Phillips standard. Whether the Patent Office should apply BRI or a Phillips construction has been a matter of debate given the nature of these proceedings.

    BRI and claim amendments in In re: Cuozzo

    In In re: Cuozzo Speed Technologies, LLC, now on appeal to the Supreme Court, the Federal Circuit upheld the use of the BRI standard in IPR proceedings in a 2-1 decision. The majority and dissent agreed that the Patent Office’s BRI standard is premised at least in part on the ability to amend claims. The judges disagreed, however, on the implications for IPR proceedings.

  • April 22, 2016

    by Jim Thompson

    The Obama administration sent a letter to all 50 states on Tuesday warning that any effort to cut off Medicaid funding to Planned Parenthood will be treated as a clear violation of federal law, reports Nancy LeTourneau at Washington Monthly.      

    At The Marshall Project, Simone Weichselbaum explains why the “Chicago Policing Model” has not rescued the city or its struggling police force.

    At Slate, ACS speaker Dahlia Lithwick talks with music executive Jason Flom about America’s appalling cash bail system, a system that punishes low-income citizens for being “too poor to pay the government for getting arrested.” 

  • April 21, 2016
    Guest Post

    by Harry Litman, former United States Attorney for the Western District of Pennsylvania, lawyer, and visiting professor at the School of Global Policy and Strategy at UC San Diego.

    The case for DAPA, the contested immigration program that provides for not deporting certain aliens who are parents of U.S. citizens or of lawful permanent residents, comes down to two undisputed numbers: 11 million and 400,000.

    The first is the estimated number of illegal aliens in the United States. The second is the approximate number of persons who can conceivably be deported every year given the resources Congress allocates to the detention and removal of undocumented aliens. 

    Given those hard numbers, it is no secret, and Congress plainly intends when it allocates funds, that DHS must exercise broad and deep discretion in determining which aliens are eligible for deportation in the first place. It is therefore no surprise that the oral argument in the case, which took place on Monday, featured extensive back-and-forth about the role of discretion in immigration law enforcement.

    In fact, the need for such broad choices is a pervasive feature of federal law enforcement in general, not just in the immigration area. With the resources that they are allocated, federal authorities can prosecute only a very small fraction of the people who break federal. So they make choices – not just case-by-case by categories, set out in advance of the prosecution decision.

  • April 21, 2016
    Guest Post

    by Joseph M. Sellers and Miriam R. Nemeth. Mr. Sellers is the head of the Civil Rights and Employment practice group at Cohen Milstein Sellers & Toll, PLLC. Ms. Nemeth is an associate in that practice group. In May, Cohen Milstein will be opening an office in Raleigh, North Carolina that will be headed by the Honorable Martha Geer, who is leaving the North Carolina Court of Appeals to take on that role.

    North Carolina has justifiably been pilloried in recent weeks for enacting legislation that requires public school students and state employees to use the bathrooms reserved for their biological sex, regardless of the gender with which they identify. In many ways, this legislation resurrects memories of racially segregated restrooms that were mandated by law until the middle of the last century. Motivated by the same kind of fear and unjustified stereotypes as before, the segregation this time is directed at transgender people.

    The bill’s requirement that state employees and public school students use restrooms designated for their sex at birth, regardless of the gender with which they identify, is bad enough. But the bill also limits protections against sex discrimination to one’s “biological sex,” which further reinforces state-sponsored hostility to transgender people. Although such a limitation may not impose the same daily inconvenience or humiliation as the restroom restriction, it wholly exempts transgender people from the state’s legal protection. Like the bigotry of racism, this officially sanctioned discrimination rests on unfounded stereotypes and fears about transgender people. Nowhere else do we require employees and students who wish to use public restrooms to announce what their genitalia look like.

    Even more troubling and little noticed, however, this legislation also gutted the state’s civil rights laws. Enacted as the Public Facilities Privacy and Security Act, a wholesome title that masks its pernicious effect, this legislation withdrew a private right for anyone (not just transgender people) to challenge in the state’s courts any form of discrimination in employment and public accommodations. Part III specifically provides that the state’s existing statutory protections—including the language added by House Bill 2—do not “create or support a statutory or common law private right of action and no persons may bring any civil action based upon the [discrimination prohibitions] expressed therein.” House Bill 2, Sess. Law 2016-3, Pt III. In that one clause, the legislation abolished North Carolina’s common law cause of action for wrongful discharge based on discrimination, which had been recognized by the courts since 1989.

  • April 21, 2016

    by Jim Thompson

    Two state regulators and one Flint employee will face criminal charges in connection with the Flint water crisis, reports Inae Oh at Mother Jones.

    The mother of Pierre Loury, a 16-year-old black teenager who was fatally shot by Chicago police last week, has filed a wrongful death lawsuit against the city and two police offices, writes Breanna Edwards at The Root.

    The Supreme Court on Wednesday unanimously affirmed an Arizona redistricting plan that includes an 8.8 percent population deviation in order to comply with nonretrogression under the Voting Rights Act, says Steven D. Schwinn at Constitutional Law Prof Blog.