KSR Top-Side Briefs
Akin represents the respondent in KSR v. Teleflex, which involves the proper test for deeming a patent invalid as “obvious.” August 22nd was the due date for the petitioner’s merits brief as well as amicus briefs in support of the petitioner or in support of neither party.
Thirteen amicus briefs support petitioner. Three support neither side, and one urges affirming in part and vacating in part.
We have collected those briefs here. [UPDATE: all the briefs are now available].
An analysis of the case can be found here from Dennis Crouch at the PatentlyO blog.
The case will almost certainly be argued in December.
I’m curious – how often has the Supreme Court granted cert to an appeal from an unpublished appellate opinion? I can’t name another case, but I’m not really a Supreme Court watcher.
Comment by Elizabeth Nugent — August 25, 2006 @ 6:46 pm
Everybody can see Tom talking about Hamdan and the last term at the Heritage Foundation on C-SPAN’s America and the Courts, http://www.c-span.org/homepage.asp?Cat=Series&Code=AC&ShowVidNum=6&Rot_Cat_CD=AC&Rot_HT=204&Rot_WD=&ShowVidDays=60&ShowVidDesc=, the video is usually up by noon Monday.
Comment by r.friedman — August 27, 2006 @ 7:45 am
Elizabeth -
I don’t have an exhaustive list or anything close to it, but it does happen from time to time. Two examples that quickly come to mind are the Court’s holding just last term that the Bankruptcy Clause is a limit on state sovereign immunity–Central Virginia Community College v. Katz, 126 S.Ct. 990 (2006). The court of appeals decision reviewed in that case was an unpublished summary order from the Sixth Circuit, reported at 106 F. App’x 341 (6th Cir. 2004). A second example is Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001). The lower court decision in that case was an unreported one from the Fourth Circuit, available at 2000 WL 42250 (4th Cir. 2000).
Perhaps others can weigh in with additional examples.
Comment by LegalThoughts — August 29, 2006 @ 1:18 pm
In Harris v. Forklift Systems, 510 U.S. 17 (1993), a sexual harassment case, the Supreme Court granted cert. to review an unpublished Sixth Circuit decision in favor of a defendant.
Some of the justices probably did so based on emotion rather than reason, in reaction to a serious faux pas in the respondent’s brief.
The respondent’s brief irritatingly referred to the plaintiff as a four-time married white woman, probably angering some of those who reviewed the cert. petition.
The Supreme Court used the case as a vehicle to reject the requirement that a plaintiff show psychological injury in sexual harassment cases, but it was an odd vehicle for such a holding, since it was unclear whether the lower court’s decision to reject the plaintiff’s claim actually turned on any such requirement.
Some of the justices probably perceived the respondent’s brief’s reference to the plaintiff’s failed marriages as suggesting that she asked to be harassed, and the reference to her race as suggesting that she could not truly have suffered much discrimination, since she was not black.
The Sixth Circuit’s decision under review, by contrast, did not contain any insensitive remarks or anything else unusual.
Comment by Hans Bader — August 29, 2006 @ 2:10 pm
Of the pending certiorari petitions to which the Court has requested a response, there are (at least) two involving sexual harassment issues. One of these involves an unpublished opinion: Meghan Bussell v. Motorola, Inc., 05-1051. 11th Circuit decision is unpublished. It involves a hostile work environment issue. It is online at
http://www.ca11.uscourts.gov/unpub/ops/200412120.pdf. The second case is Hugh Hardage v. CBS Broadcasting, 05-1399. It is a 9th Circuit decision reported at 2005 WL 2850171 and 2006 US App. Lexis 3017. It involves a female who was harassing a male. The primary issue appears to be how an employer should respond when the victim does not want anything done.
I’ve only looked at the lower court opinions, not the certiorari petitions.
Both responses are in and the cases should be decided at the first fall conference.
(Information deemed reliable, but not guaranteed.)
Comment by Norma Chase — September 5, 2006 @ 10:39 pm