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Whistleblower Free Speech and Breyer Holds Up Some Fingers

Edward Lane was fired from his job at an Alabama community college after testifying truthfully before a grand jury and at trial about corruption at the college. Lane sued saying he was let go in retaliation, but the lower courts, citing an earlier Supreme Court opinion, ruled against him. He was represented at the Court by lawyer Tejinder Singh, who I have to say was fun to draw.

On the other side of the argument were Alabama’s Attorney General, who’s drawing I never finished, and lawyer Mark Waggoner, who was at the lectern a bit longer.

You can read about it here.

Earlier, the Court heard arguments in a patent case, Nautilus v. Biosig Instruments. Biosig has a patent on a device used in exercise machines to measure heart rate. It’s basically a bar with incorporated electrodes that receive signals from contact with a person’s hands. Nautilus claims the patent is too vague, particularly in describing the placement of the electrodes.

Now comes Justice Breyer, “I’m a little confused here. Imagine there are two kinds of electrodes, a blue one and a green one, and you have a blue one and green one on left hand and a blue one and green one on right hand. . . you cannot let them touch . . .  I got that. And suppose on your left hand you put the blue one here and the green one there. And in the right hand, you put the blue in here and the green in here. . . . Does it work or not?”

And so it goes for awhile until Justice Scalia interrupts, “Let the record show that [Justice Breyer] is holding his fingers in the air.”

Anyway, it’s all “insolubly ambiguous”.

 

Between Scylla and Charybdis

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.”

Baseball Bats and Rotten Tomatoes

The lawyer for a home mortgage loan fraudfeasor (I learned a new word today) had a number of colorful hypotheticals tossed at him by the Justices as they tackled a question of restitution. Here’s what he had to juggle, starting with Justice Breyer who is the Talmudic scholar of hypotheticals:

Breyer: “Mrs. Smith, I have a bridge I’d like to sell you.”. . “But I also gave her my valuable Babe Ruth bat.”

Alito: “Suppose what the person who perpetrated the fraud returns is a truckload of tomatoes . . . and by the time the tomatoes can be sold they’re all rotten.”

Scalia: “You’re really confusing me. I . . I . .both the baseball bat and the truckload of tomatoes?”

The case is Robers v. United States

 

 

SCOTUS In The Cold

Even the turtles holding up the Bronze lamps on the Supreme Court plaza seemed to want to pull in their heads from today’s frigid temperatures.

Inside, the Justices heard arguments in two puzzling cases.The first, Paroline v. U.S., presented the Court with the problem of apportioning restitution to victims of child pornography. In this digital age, where the same image can be downloaded by many participants in the sexual exploitation of a child, to what extent is each viewer responsible for the humiliation and damage suffered?The lawyer for the victim, Utah law professor Paul Cassell, in this case insisted that each perpetrator should be responsible for the entire $3.4 million award. “You’re not claiming – or are you” asked Justice Kagan, “that she’s been victimized to the tune of $3.4 million as a result of this particular defendant’s offense?”

“He contributed to the entire amount,” said Cassell.

The second case, Abramski v. U.S., concerns the so-called “Straw Purchaser” law that is supposed to prevent sales to those not entitled to own firearms, such as convicted felons, by requiring gun dealers to have buyers fill out a form. The form asks, ”Are you the actual transferee/buyer of the firearm listed on this form?”Justice Breyer, pictured above on the left, known for often posing convoluted hypotheticals had an esoteric analysis of the term ‘Straw Purchaser’. “It comes from ‘straw bail’,” he told petitioner’s lawyer, RichardDietz, “where someone else put up the bail and it was called straw because the people who made a career of that used to wear straw in their shoes. Interesting.”

“He made that up,” Justice Scalia interjected.

Lyle Denniston’s analyses of the arguments are here, and here.

Kagan’s Roundup Ready and Breyer’s in a Sling

A couple sketches from the Supreme Court yesterday:Justice Kagan's opinion in Monsanto
Justice Kagan annouced the Court’s unanimous opinion supporting Monsanto’s patent rights on its herbicide resistant genetically altered Roundup Ready seed.

NYT’s Adam Liptak has the story here.

It was also Justice Breyer’s first appearance on the bench since breaking his shoulder in a bicycle mishap two weeks ago.Justice Breyer with arm in a sling