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A “view” from the Court: Bad news for the Federal Circuit, good news for Bond

June has arrived, and with twenty-five opinions left going into Monday’s opinion session, we’ve hit the home stretch.

We’re a bit ahead of the pace of last Term, as Amy pointed out in the Live Blog this morning.  And just last week, coming out of the Memorial Day weekend, the Court issued several decisions from the top of its second tier, on relatable issues such as the death penalty, police chases, and U.S. Secret Service protection of the president.
Today we start with a pair of unanimous patent decisions.  Justice Samuel A. Alito Jr. delivers a crisp summary of Limelight Networks Inc. v. Akamai Technologies Inc., which holds that a defendant is not liable for inducing patent infringement under one particular provision of federal law when no one has directly infringed the patent under another provision.  The decision is a loss for Akamai over “content delivery networks” on the Internet, and for the U.S. Court of Appeals for the Federal Circuit, the specialized court that gets reversed a lot by the Supreme Court on patent issues.

Justice Ruth Bader Ginsburg has more bad news for the Federal Circuit, in Nautilus Inc. v. Biosig Instruments Inc.  In a battle over patents for heart-rate monitors on certain exercise equipment, Justice Ginsburg concludes for the Court that the Federal Circuit’s “insolubly ambiguous” standard for weighing patent claims does not satisfy the Patent Act’s “indefiniteness requirement.”

“As our opinion explains, the ‘insolubly ambiguous’ criterion can leave district courts and the patent bar at sea without a reliable compass,” Justice Ginsburg explains.

As Ginsburg methodically delivers her summary, Chief Justice John G. Roberts, Jr., has donned his reading glasses, and appears to be giving a last look to an opinion announcement of his own.

Once Ginsburg has finished, the Chief Justice announces that he has the opinion in the long-awaited Bond v. United States. If the crowd had been lulled into a bit of patent law stupor, it is brought back to attention with the Chief’s recitation of the facts about Carol Ann Bond and her ill-fated revenge plot against her husband’s paramour through the application of chemicals to the paramour’s car door, mailbox, and door knob.

“The federal government decided literally to make a federal case out of it,” Roberts says amid chuckles throughout the courtroom.

In summarizing his opinion (for six justices) that the Chemical Weapons Convention Implementation Act of 1998 does not reach Bond’s “simple assault,” the Chief Justice says “the chemicals used by Bond bear little resemblance to mustard gas, ricin, and sarin,” the chemical weapons targeted by the international treaty involved in the case.

The “minor thumb burn” suffered by Bond’s target was “a two-bit local assault” and a matter for state law enforcement, Roberts says.

The Chief Justice’s summary is filled with such animated language, about how accepting the federal government’s arguments might sweep in “detergents under the kitchen sink,” “stain removers in the laundry room,” and “drops of vinegar into the goldfish bowl.”  The latter is an example of when a bench summary can leave the courtroom audience a bit bewildered. The Chief Justice’s reference to goldfish bowls is much more clear in his written opinion, where he discusses a parent who could face serious charges of possession of a chemical weapon (under the federal government’s reading of the statute) if, exasperated by a child who fails to clean the goldfish bowl, the parent “considers poisoning the fish with a few drops of vinegar.”

“The global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon,” Roberts says.

The Chief Justice notes that while the judgment of the Court is unanimous, Justices Scalia, Clarence Thomas, and Alito have all written opinions concurring in the judgment on other grounds.  In the courtroom, the Chief doesn’t go into why his three colleagues have concluded that the case should have been decided on constitutional, rather than statutory, grounds. And he certainly doesn’t mention the many barbs Justice Scalia has aimed in his direction in the written concurrence.

As sharp as Justice Scalia’s written opinion concurring in the judgment is, he remains silent in the courtroom today.

Recommended Citation: Mark Walsh, A “view” from the Court: Bad news for the Federal Circuit, good news for Bond, SCOTUSblog (Jun. 2, 2014, 4:05 PM),