Comments on: Analysis: Reversal coming in patent case? http://www.scotusblog.com/wp/analysis-reversal-coming-in-patent-case/ The Supreme Court of the United States blog Thu, 26 Jun 2008 21:56:34 -0700 http://wordpress.org/?v=2.8.5 hourly 1 By: Roger Friedman http://www.scotusblog.com/wp/analysis-reversal-coming-in-patent-case/comment-page-1/#comment-6617 Roger Friedman Thu, 12 May 2005 02:28:24 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-reversal-coming-in-patent-case/#comment-6617 I've just finished reading the transscript of the Merck argument, and was wondering if some of the experienced Supreme Court advocates out there would address some issues it raises for me. It seems to me that Mr. Flores for the respondents was trying to get a decision on his case -- the one that he had tried in district court, which had survived review in the Federal Circuit -- and it did seem that the Merck position had changed over the course of litigation. Although this is generally a good bottom side approach to appellate advocacy, he got slapped down by the Chief Justice, taking a position which seems to be accepted across the spectrum of the Court, that the Court's role is to answer the questions presented. There does seem to be a criticism of the Supreme Court from the 8th and 9th circuit judges whose arguments I listen to, particularly in regard to the sentencing guideline cases, that the Court is to willing to slough off practical issues of appellate practice like preserving errors for review or what constitutes plain error onto the appellate courts. Which gets back to questions like, to what extent is it the court's job to resolve the cases it chooses to decide? Gotta run, thanks for reading this. TG responds: In my experience, Roger's comment is spot-on. I think that the Justices are generally simply interested in announcing a controlling rule of law and won't be dissuaded by the procedural posture of a case. I think Cheney is a good example of that. I’ve just finished reading the transscript of the Merck argument, and was wondering if some of the experienced Supreme Court advocates out there would address some issues it raises for me.
It seems to me that Mr. Flores for the respondents was trying to get a decision on his case — the one that he had tried in district court, which had survived review in the Federal Circuit — and it did seem that the Merck position had changed over the course of litigation. Although this is generally a good bottom side approach to appellate advocacy, he got slapped down by the Chief Justice, taking a position which seems to be accepted across the spectrum of the Court, that the Court’s role is to answer the questions presented.
There does seem to be a criticism of the Supreme Court from the 8th and 9th circuit judges whose arguments I listen to, particularly in regard to the sentencing guideline cases, that the Court is to willing to slough off practical issues of appellate practice like preserving errors for review or what constitutes plain error onto the appellate courts. Which gets back to questions like, to what extent is it the court’s job to resolve the cases it chooses to decide?
Gotta run, thanks for reading this.

TG responds: In my experience, Roger’s comment is spot-on. I think that the Justices are generally simply interested in announcing a controlling rule of law and won’t be dissuaded by the procedural posture of a case. I think Cheney is a good example of that.

]]> By: Chris http://www.scotusblog.com/wp/analysis-reversal-coming-in-patent-case/comment-page-1/#comment-6616 Chris Mon, 25 Apr 2005 15:42:39 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-reversal-coming-in-patent-case/#comment-6616 I'm curious if the topics of "research tools" and common law exemptions -- two issues that received attention primarily in the amicus briefs -- were raised at the oral argument. I’m curious if the topics of “research tools” and common law exemptions — two issues that received attention primarily in the amicus briefs — were raised at the oral argument.

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