The Solicitor General on Tuesday urged the Court to grant review in what could be yet another blockbuster patent case –involving the question of “divided” infringement. Divided infringement refers to a situation in which the acts necessary to infringe a patent are taken by multiple parties collectively, but no single party takes all the steps necessary to infringe the patent. The difficult question is determining when (if ever) infringement occurs in those cases. Traditionally, infringement occurs only if a single party has “control or direction” over all the steps necessary to infringe the patent. In practice, that standard has not worked well. Among other things, it has in some noteworthy cases involving financial services patents rendered the patents essentially nugatory – if the services in question customarily are delivered through a network of multiple participants, then “control or direction” test will mean that there rarely (if ever) would be an infringing party even if the patented technology is pervasively adopted.
Yesterday Aereo, Inc. filed its brief in response to a petition for certiorari filed by the television broadcasting industry, which is challenging the Second Circuit’s ruling that Aereo’s streaming of television programs on the Internet does not infringe on the industry’s copyrights. As Lyle Denniston reported for this blog, Aereo joined the broadcasting companies in urging the Court to grant review; other coverage comes from Joe Flint of the Los Angeles Times, Dan Levine of Reuters, and Greg Stohr of Bloomberg Businessweek. Continue reading »
The petition of the day is:
Issue: Whether the government must prove that the defendant intended to defraud a bank and expose it to risk of loss in every prosecution under 18 U.S.C. § 1344.
Arguing that the television broadcasting industry is waging a “war of attrition” on a new form of viewer access to free TV, on Thursday Aereo, Inc., urged the Supreme Court to take on the issue now and settle it. Its filing in response to an industry challenge was filed in time for the Court, if it grants review, to decide the case this Term.
The case is American Broadcasting Companies v. Aereo, Inc. While its victory in a federal appeals court was the correct outcome, Aereo contended, the broadcasters “have signaled their intention to wage a war of attrition by re-litigating this issue in every market to which Aereo expands its business.”
When Scott Cheever stood trial for the death of a local sheriff, he introduced a voluntary-intoxication defense, telling the jury that, because he had been using methamphetamines, the crime could not have been premeditated. Cheever also presented testimony by a psychiatrist to bolster this defense. Prosecutors countered with their own expert, who had examined Cheever pursuant to a court order in federal court proceedings (later dismissed) relating to the murder. Cheever was convicted and sentenced to death, but the Kansas Supreme Court threw out his conviction, holding that the state’s use of expert testimony against Cheever violated his Fifth Amendment right not to be compelled to testify against himself. (I previewed Kansas v. Cheever for this blog and reported on the oral argument as well.) Continue reading »
As in many recent cases applying limits on relief contained in the Anti-Terrorism and Effective Death Penalty Act’s text (AEDPA, 28 U.S.C. §2254(d)(1)), Wednesday’s argument in White v. Woodall involved mind-numbing hairsplitting. On the state’s side, Susan Lenz, an attorney in the office of Kentucky’s attorney general, sought to explain why Woodall’s entitlement to a “no-adverse-inference” instruction at the punishment phase of his capital trial was not “clearly established” at the time the Kentucky courts rejected his constitutional claim. Yes, the Supreme Court had held that the Fifth Amendment entitles a defendant to a no-adverse-inference instruction at trial (Carter v. Kentucky). Yes, the Court had announced that the right against self-incrimination applies in punishment as well as trial proceedings (Estelle v. Smith). And, yes, the Court had reversed a sentence where a trial court had actually made an adverse inference regarding a contested fact based on a defendant’s silence at sentencing (Mitchell v. United States). But here, Lenz argued, the defendant sought a no-adverse-inference instruction when he had conceded all of the facts concerning his death eligibility. Because the state had already satisfied its burden of proof, the defendant’s silence would not be used to make the state’s case.
John Elwood reviews Monday’s relisted cases.
Yesterday the Court issued one opinion, in Kansas v. Cheever. In a unanimous opinion by Justice Sotomayor, the Court held that, when a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, prosecutors may offer evidence from a court-ordered psychological examination for limited purpose of rebutting the defendant’s evidence. The Court thus vacated the decision of the Kansas Supreme Court (which had overturned Cheever’s conviction and death sentence) and remanded the case for further proceedings. Coverage of the opinion comes from Nina Totenberg of NPR, Luke Rioux at Harmless Error, Kent Scheidegger of Crime and Consequences, and Jaclyn Belczyk of JURIST. Continue reading »
The petition of the day is:
Issue: Whether the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x, bars enforcement of all state private rights of action against persons who furnish false information to consumer reporting agencies.