The Supreme Court heard their last argument of the term yesterday, an appeal of former Virginia governor McDonnell’s conviction for accepting gifts and favors in exchange for “official acts”. I wasn’t there to sketch it. Instead I was covering the sentencing of former Speaker of the House Dennis Hastert (those sketches will be posted soon).
The last day of argument for me was Monday when the Court heard two cases related to copyright and patents, not usually the most exciting. I could follow the first case, Kirtsaeng v. John Wiley & Sons, Inc., which first came to the Supreme Court a couple of terms back and now returns on the issue of awarding attorney fees.
But the second case, Cuozzo Speed Technologies, LLC v. Lee, left me so confused I’ll just post the sketches.
Usually trial courts are the exclusive finders of facts and appellate courts are limited to questions of law, but apparently that’s not necessarily the case when it comes to patent law. In a dispute between Teva Pharmaceuticals, which holds the patent on the very profitable multiple sclerosis drug Copaxone, and companies that want to begin marketing a generic version the trial court sided with Teva. The U.S. Court of Appeals for the Federal Circuit, which reviews patent cases, however, looks at all elements of a patent claim as legal issues, including the factual conclusions of the trial court and reversed.
Even though Teva’s patent expires in September of next year the amount of money at stake is huge – in the billions. Also at stake is a shift of power from the Federal Circuit.
The case is Teva Pharmaceuticals v. Sandoz
Here are my sketches and a link to Lyle’s SCOTUSblog analysis of the argument.
I neglected to post sketches from the March 31 arguments in Alice Corporation v. CLS Bank International. Here they are, better late than never.
Each day CLS Bank does about $5 trillion in transactions and uses a computer program to insure that everything balances out at the end of the day. Alice Corporation has a patent on an application that does the same thing by creating shadow accounts for all parties and not allowing transactions to go through unless all credits and debits balance out above zero.
The Court has previously held that natural processes (Mayo) and abstract ideas (Bilski) are not patentable. Is Alice Corporation’s patent really just the idea of solvency applied by a computer to balance the books?
Justice Breyer’s pharaohic hypothetical put it this way: “I mean, imagine King Tut sitting in front of the pyramid where all his gold is stored, and he has the habit of giving chits away. Good for the gold, which is given at the end of the day. And he hires a man with an abacus, and when the abacus keeping track sees that he’s given away more gold than he has in storage, he says, stop.”
On the other hand, software developers won’t have much incentive if their computer programs are unpatentable.
Again, Justice Breyer, “. . . there are a number of suggestions as to how to go between Scylla and Charybdis. . . . I need to know what in your opinion is the best way of sailing between these two serious harms.”