judicial review

  • January 26, 2016
    Guest Post

    by Kristen Osenga, Professor of Law, University of Richmond School of Law; Senior Scholar, Center for the Protection of Intellectual Property

    *This post is part of the ACSblog Symposium on Patent Law Reform.

    I have often argued that we do not need so-called patent “reform.” But I’ve had a change of heart. We absolutely need patent reform, but not the kind proposed in the Innovation Act, H.R. 9, and the PATENT Act, S. 1137. To get the real kind of reform that will encourage a strong and vibrant innovation economy, we first need a role reversal. Let me explain.

    If you ask any first-year law student about the roles of Congress and the courts, the likely answer is that Congress makes the laws and the courts interpret them. That answer, although simplistic and lacking nuance, is essentially correct. What’s happening currently in patent law, however, is the exact opposite, and innovation is going to suffer as a result. Courts, especially the U.S. Supreme Court, are creating brand new rules, making up patent law from whole cloth. Congress, on the other hand, is considering bills that micromanage the courts, trampling on areas traditionally left to judicial discretion and seeking to procedurally stack the deck against individual inventors and small companies who own patents.

    To illustrate the above point, let’s consider two issues: (1) patentable subject matter eligibility and (2) the customer suit exception.

    Many years ago, Congress spoke plainly in 35 U.S.C. §101 about the types of inventions that were eligible for patenting: processes, machines, manufactures, and compositions of matter. The courts initially (and correctly) interpreted that provision broadly as including “anything under the sun made by man” and limited by only a few judicially created exceptions. Recently, and devoid of any legislative intervention, the courts have been chipping away at the types of inventions eligible for patent protection. After the Supreme Court’s 2014 decision in Alice Corp. v. CLS Bank Int’l, many commentators have suggested that the realm of inventions that can actually be patented has significantly diminished. The Alice opinion represents a sea change, or significant alteration, in the previously existing law . . . and yet it occurred entirely within the courts.

    The activity surrounding the customer suit exception, on the other hand, demonstrates how Congress is trying to undermine judicial discretion in favor of bright line rules that make it systematically harder for individual inventors and small companies to defend their patents. In appropriate circumstances, judges traditionally will stay a patent infringement suit against a small retailer or end-user customer in favor of a suit against a manufacturer when the infringement results from the customer using the manufacturer’s product. This makes sense, for example, when a patent owner sues a mom-and-pop coffee shop for infringement based on the coffee shop’s use of an infringing wireless router. The company that manufactures and sells the router is in a much better position than the coffee shop to dispute whether or not the router is infringing the patent. The courts have been staying cases like these for years, and it’s working well.

  • May 9, 2013

    by Jeremy Leaming

    It seems whenever given the opportunity to weaken the judiciary, Sen. Chuck Grassley (R-Iowa) runs with it and in the process spreads lots of misinformation about the federal courts.

    Grassley, who has helped his Republican colleagues in the Senate block or slow-walk President Obama’s judicial nominees, has called for cutting the number of judges on the U.S. Court of Appeals for the District of Columbia Circuit, discussed here.

    Now as the Senate Judiciary Committee begins consideration of the bipartisan comprehensive immigration bill, S. 744, the Ranking Member Grassley has offered 77 amendments to the legislation. Among them is one, dubbed Grassley17, which would isolate immigration court rulings from federal court review. As it stands now, the bill provides for some judicial review. For example, individuals denied citizenship could seek review in a district court or court of appeals pursuant to the Administrative Procedures Act.

    But Grassley’s effort to alter the comprehensive immigration measure would close the door to federal courts, except for one – in Washington, D.C. and only for review of constitutional challenges. Thus if immigration judges improperly deny or revoke citizenship, their actions will largely go unchallenged.

    Not only is Grassley’s effort an affront to judicial review, it is, let’s be honest, a part of a wider attempt to greatly slow or scuttle immigration reform. S. 744 is a rather large bill and far from perfect. It includes stringent enforcement provisions including billions of dollars for the Department of Homeland Security to spend on border enforcement. It also requires undocumented immigrants to wait at least 10 years until they can apply for legal residence and another three years until naturalization, according to The New York Times.

    But senators have offered more than 300 amendments to the immigration reform bill. Seth Freed Wessler of ColorLines says the Republican amendments “would largely gut the promise of a path to citizenship and impose nearly unachievable benchmarks for border security.” Nonetheless Wessler notes Democrats control the committee and are thus likely to hold off many of the amendments. Wessler though notes some of Grassley’s other amendments, such as one that would strike language aimed at protecting “immigrants from being deported because” of anti-immigrant laws, such as the one enacted by Arizona.

  • April 9, 2012

    by Jeremy Leaming

    Pundits, especially those on the Right, claim President Obama’s recent comments that the Supreme Court should not lightly invalidate a law regulating commerce – in this case the Affordable Care Act – reveal a former constitutional law school professor who doesn’t understand judicial review. (Or according to this Washington Post piece, the president was employing language intended to mislead.)

    Actually the president’s words, despite the over-the-top reactions from pundits, were not terribly difficult, even for non-lawyers, to discern. Obama was merely pointing out that the Supreme Court has not, and should not, easily invalidate laws by Congress, especially those that regulate commerce. Attorney General Eric Holder in a letter to a federal appeals court, also said the president’s comments were grounded in principle, not hyperbole.

    In a guest column for the Jurist, law school professor Craig Jackson takes note of commentary from MSNBC’s Joe Scarborough and The Wall Street Journal’s editorial page blasting the president’s comments, and argues that Obama had not “forgotten the basic rule,” of judicial review.

    Instead Jackson says the president’s comments “had more to do with arguments that have been lobbed back and forth over judicial review, advising judicial restraint, for over two centuries ….” Plenty, Jackson, notes has been written about the need for federal courts to show restraint when considering challenges to laws passed by Congress.

    “The president of course agrees and is certainly not stepping out of mainstream constitutional law discourse to suggest that the Court exercise a little discretion when dealing with decisions by a political majority,” Jackson write.