Petitions of the week

Another federal agency challenges adverse ruling by 5th Circuit

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Next term the justices will hear the government’s appeal of a decision by the U.S. Court of Appeals for the 5th Circuit that found the funding mechanism for the Consumer Financial Protection Bureau unconstitutional. This week, we highlight cert petitions that ask the court to consider, among other things, whether to reverse a second 5th Circuit ruling that invalidated powers of the agency charged with regulating investments, the Securities and Exchange Commission.

WHAT WE'RE READING

The morning read for Friday, March 31

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Friday morning read:

• Supreme Court Will Decide How Aggressive The IRS Can Be When Hunting For A Delinquent Taxpayer’s Assets (Kelly Phillips Erb, Forbes)
• ‘Wrong things can be changed’: Justice Sotomayor speaks on disillusionment (Ariane de Vogue, CNN )
• This Supreme Court Case Made It Easier to Send Parolees Back to Prison (Matt Plotnick, Balls & Strikes)
• How Women of the Year honoree Sandra Day O’Connor made her mark on US Supreme Court (Nicole Carroll, USA Today)
• Biden admin urges Supreme Court to hear ‘skinny labels’ case between Teva, GSK (Blake Brittain, Reuters)

WHAT WE'RE READING

The morning read for Thursday, March 30

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Thursday morning read:

• Supreme Court Considers a Mercenary’s Confession and the Confrontation Clause (Adam Liptak, The New York Times)
• A secret deal between Justices John Roberts and Anthony Kennedy on gay rights and what it means today (Joan Biskupic, CNN)
• Munsingwear Vacaturs (Steve Vladeck, One First)
• Will the Supreme Court Make a Break With the First Amendment? (Matt Ford, The New Republic)
• Supreme Court Zeros In on Plain Language of Tax Code in IRS Case (Daniel Rosen & Eric Aberg, Bloomberg Tax)

ARGUMENT ANALYSIS

Venue is a platypus, a mixed-up animal

At the oral argument in Smith v. United States, there was no dispute that in the tradition of both English and U.S. law, venue was a fact issue presented to juries, and decided as part of their general verdict of guilty or not guilty. Thus, the government conceded, if the jury in this case had acquitted defendant Timothy Smith, that acquittal would have been final for double jeopardy purposes. An acquittal would have barred the government from retrying him even if venue had been lacking. But in fact, the jury convicted Smith of theft of trade secrets, rather than acquitting him, and it was not until Smith appealed to the U.S. Court of Appeals for the 11th Circuit that the lack of venue was found.

ARGUMENT ANALYSIS

Court concerned about scope of patent covering millions of antibodies

During oral argument in Amgen Inc. v. Sanofi on Monday, the justices explored how to write an opinion on patent enablement when the parties agree on almost everything about the legal standard. 

“Enablement” is the requirement that a patent must enable others to make and use the invention without undue experimentation. Amgen obtained a patent covering potentially millions of cholesterol-lowering antibodies. The patent is based on how the antibodies work but lists details for only 26 example antibodies. Sanofi made an infringing antibody and contends that Amgen’s patent is invalid because it fails the enablement requirement.

No clear consensus emerged on Monday about exactly how to resolve the case, but the argument offered three notable themes, all circling around whether a scientist would have to engage in “undue experimentation” to use Amgen’s patented invention.