For a court that has heard so many crucial intellectual property cases over the last several years, October Term 2016 is remarkable in that it was not until this morning that the court heard an intellectual property case that has the potential to be a “major” decision. But they faced a case of potentially momentous importance for modern commerce when they heard argument in Impression Products, Inc. v Lexmark Int’l, Inc. Unfortunately, I don’t think many people left the courtroom knowing much more about the case than they did when they entered. Perhaps the justices wore themselves out with so much incisive questioning in the morning’s first argument (Microsoft v. Baker), but this argument was much more like the Monday argument in Howell v. Howell on which Amy Howe reported here: a cold bench largely leaving the advocates to their own devices.
Today the Senate Judiciary Committee held the second day of its hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. Early coverage of today’s proceedings, which featured round one of the senators’ questioning, comes from Nina Totenberg of NPR, who is also commenting live here, Matt Flegenheimer, Adam Liptak, Carl Hulse and Charlie Savage of The New York Times, Lawrence Hurley and Andrew Chung of Reuters, Greg Stohr and Laura Litvan of Bloomberg, Ed O’Keefe, Robert Barnes and Sean Sullivan of The Washington Post, Erica Werner and Mark Sherman of the Associated Press, as well as Jeff Donn, Andrew Rafferty of NBC News, Alexander Bolton and Lydia Wheeler of The Hill, Richard Wolf of USA Today, Zoe Tillman of Buzzfeed, Seung Min Kim and Josh Gerstein of Politico, Debra Cassens Weiss of ABA Journal, Matt Ford of The Atlantic, Ian Hanchett of Breitbart, Tierney Sneed of Talking Points Memo, as well as Esme Cribb, Judson Berger of Fox News, and Ashley Killough and Ariane de Vogue of CNN.
This morning’s long-delayed oral argument in Microsoft v. Baker finally gave Microsoft its “day in court,” more than two years after the U.S. Court of Appeals for the 9th Circuit decision under review, and almost four-and-a-half years after the district court decision. Although it is a big patent day at the Supreme Court – with the decision in SCA Hygiene and the argument in Impression Products v. Lexmark – the Microsoft matter is a civil procedure case, examining the options available for plaintiffs when a district court determines that a case is not suited for adjudication as a class action.
In the year since Justice Antonin Scalia died, the eight-justice court has repeatedly decided only issues that they can agree on, and has frequently remanded more difficult questions for future resolution. Unsurprisingly (see my post-argument analysis), that pattern held true in today’s decision in Manuel v. City of Joliet. A 6-2 majority ruled that the Fourth Amendment is the proper basis on which to challenge a post-arrest detention that was continued for seven weeks, allegedly without probable cause. Beyond that, Justice Elena Kagan’s opinion “le[ft] all other issues” for remand, over Justice Samuel Alito’s and Clarence Thomas’ dissents.
The transcript in Microsoft Corp. v. Baker is here; the transcript in Impression Products, Inc. v. Lexmark International, Inc. is here.
At yesterday’s oral argument in Murr v. Wisconsin, the justices discussed a longstanding dilemma in the field of regulatory takings. As I described in my earlier post, the Fifth Amendment’s prohibition on uncompensated government takings of private property includes instances when, in Justice Holmes’ famously vague formulation, a regulation “goes too far.” But to assess a regulation’s impact on a property, a court must first answer the threshold question of what property is at issue. The Supreme Court has said the property at issue must be the “parcel as a whole,” but the lower courts have struggled to determine what that means. This is what courts and scholars have termed the “denominator problem.” (For those who are not takings clause devotees, similar comparative issues—think of them as framing problems—arise all the time. My March Madness bracket looks great if you count only first-round games, but not so great once you add in second-round games.)
The refrain is in some ways familiar. The Federal Circuit early on adopts a patent-specific rule grounded in the particularities of patent procedure and practice. Decades pass, in which the rule is applied without serious challenge to dozens (hundreds?) of cases. When the issue finally reaches the Supreme Court, the justices reject the Federal Circuit’s decision out of hand, typically paying little or no attention to the patent-specific factors that seemed so important to the Federal Circuit.
This week’s chapter in that story is SCA Hygiene Products v. First Quality Baby Products. The specific question is whether the equitable doctrine of “laches” permits a court to reject a suit to enforce a patent based on the plaintiff’s unreasonable and prejudicial delay in bringing suit, even if the suit is brought within the Patent Act’s statute of limitations. At the Federal Circuit, the primary consideration was (to steal a well-turned phrase from Justice Stephen Breyer) a “century and a half of history” of routine lower-court application of laches in patent cases. At the Supreme Court level, however, the most obvious authority is the court’s decision three terms ago in Petrella v. Metro-Goldwyn-Mayer, which considered a nearly identical question under the Copyright Act. In Petrella, Justice Ruth Bader Ginsburg wrote for a majority of the court, holding that because Congress adopted a specific statute of limitations for copyright cases, courts should not use vague equitable doctrines like laches to bar suits as untimely when they are brought before the deadline set in the statute. With five members of the Petrella majority still on the bench (all but the late Justice Antonin Scalia), the oral argument suggested that the weight of that precedent would be dispositive.
This morning the court hears oral argument in two cases. The first is Microsoft v. Baker, in which the justices will consider the options available for plaintiffs when a district court determines that a case is not suited for adjudication as a class action. Ronald Mann previewed the case for this blog. At Cornell University Law School’s Legal Information Institute, Liza Carens and Jenna Scoville also provide a preview. The second case on the argument docket is Impression Products, Inc. v. Lexmark International, Inc., which involves the scope of the patent exhaustion doctrine. Ronald Mann had this blog’s preview. Michele Korkhov and Anna Marienko preview the case for Cornell. At Fortune, Jeff John Roberts provides a “plain English guide to what you need to know about the case,” noting that it “carries profound implications for retailers and resellers across the U.S. economy.”
The petition of the day is:
Issues: (1) Whether the due process clause prohibits the imposition of a term of imprisonment as punishment for a supervisory liability offense, such as the one described in United States v. Park; and (2) whether Park and its precursor, United States v. Dotterweich, should be overruled.
We often refer to the Supreme Court as a “hot bench”: Questions fly fast and furious from all the justices, often allowing the lawyers to get out only a few sentences (if that many) before fielding the next question. However, the bench that heard today’s oral argument in Howell v. Howell, a dispute over military retirement pay in a divorce, was more lukewarm than hot. Advocates for both sides had plenty of extended opportunities to speak – so much so that Adam Unikowsky, representing petitioner John Howell, only used a little more than half of his allotted 30 minutes during the main part of his argument. The relatively sparse questioning from the justices was no doubt welcomed by the advocates, but it made it much harder to predict how the justices might ultimately resolve the case.
The question before the court hinges on the interpretation of the Uniformed Services Former Spouses’ Protection Act, a 1982 federal law that authorizes state courts to divide up military retirement pay in a divorce. The law allows state courts to treat “disposable retired pay” as either the service member’s property or the property of both the service member and the member’s spouse, depending on state law. The term “disposable retired pay” is in turn defined as the service member’s retired pay, minus any portion of that pay waived in favor of disability benefits.