Friends of Blawgletter know something about the great swirling myriad of doctrines that can doom a claim of patent infringement.  All sorts of "invalidity" and "unenforceability" slings and arrows await the intrepid patent holder who dares sue to remedy infringement.  The stakes?  Essentially whether the inventor, or her assignee, gets to keep the temporary monopoly that the federal government granted in examining the patent application and issuing the patent.

Medical devices, I think we can all agree, involve a different set of stakes.  A defective balloon catheter that pops during dilation of a coronary artery threatens more than the patient’s economic interest in retaining enough function to earn a living.  No.  A defective medical device endangers our very ability to draw breath.

So what kind of monopoly should the makers of medical devices get?  If they held a patent, their own inequitable conduct before the Patent and Trademark Office could, for example, invalidate their right to practice their inventions.  But under the Supreme Court’s decision this week in Riegel v. Medtronic, Inc., No. 06-179 (U.S. Feb. 20, 2008), the Food and Drug Administration’s blessing of an unsafe, death-dealing device grants a lawsuit-free monopoly to the manufacturer.

Do medical device makers deserve an immunity that patent holders don’t get?  Are health and safety less important than coming up with inventions?

Feedicon Happy Friday to you!

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The Federal Circuit sits in Washington, DC.

Section 102(b) of the patent statute establishes an "on-sale bar" for inventors who wait too long to apply for a patent.  The bar — a species of patent invalidity — kills a patent whose inventor "applies for a patent more than one year after making an attempt to profit from his invention by putting it on sale."  Atlanta Attachment Co. v. Leggett & Platt, Inc., No. 07-1188, slip op. at 5 (Fed. Cir. Feb. 21, 2008).

The Federal Circuit appears to have decided as a matter of law that the on-sale bar invalidated one of the claims in the patent-in-suit and remanded for consideration of other challenges to different claims in the patent or to the patent as a whole.

Blawgletter loves saying "bar bars".  Also BarBar.

Feedicon14x14 Our feed doesn’t know too many things.  It knows what it knows, if you know what it means.

Liberals believe in clean air, diplomacy, stem cells, living wages, body armor for our troops, government accountability, and that exercising the right to dissent is the highest form of patriotism.

Liberals believe in reading actual books, going to war as a last resort, separating church and hate, and doing what Jesus would actually do, instead of lobbying for upper-class tax cuts and fantasizing about the apocalypse.

Liberals believe in civil rights, the right to privacy, and that evolution and global warming aren’t just theories but incontrovertible scientific facts.

Dan Kurtzman, How to Win a Fight with a Conservative (2007). 

Hat tip to www.dailykos.com.  Mr. Kurtzman also authored How to Win a Fight with a Liberal (2007).

Feedicon Blawgletter totally voted in one of those primary thingies yesterday.

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Those Justices must have worked pretty dadgum hard during their winter break, from which they returned late last week.  They issued five opinions today.  Shew!

The Court ruled:

  • LaRue v. DeWolff, Boberg & Assocs., Inc., No. 06-856 — Pension plan participants and beneficiaries may recover for breach of duty by plan fiduciaries even if the recovery accrues to them through their individual pension account.
  • Preston v. Ferrer, No. 06-1463 — The federal Arbitration Act pre-empts state laws that lodge primary jurisdiction over an arbitrable dispute with a government agency.
  • Riegel v. Medtronic, Inc., No. 06-179 — The Medical Device Amendments of 1976 pre-empt and bar common law claims relating to a death-dealing device that passed muster with the Food and Drug Administration.
  • Rowe v. New Hampshire Motor Transp. Ass’n, No. 06-457 — Some federal statute pre-empts a Maine state law governing delivery of tobacco within the state.
  • Danforth v. Minnesota, No. 06-8273 — State law may allow greater post-conviction relief for constitutional violations even if the Court’s decision in Teague v. Lane, 489 U.S. 288 (1989), would bar it as impermissibly "retroactive" for purposes of federal habeas relief.

By Blawgletter’s count, three of the cases dealt with pre-emption — and upheld it.  LaRue resolved the ERISA question — as we predicted the Court would.  And we think Danforth means more convicts may get new trials as a result of state court proceedings.

Feedicon14x14 We predict all sorts of things.

The Ninth Circuit today answered a question that many (including Blawgletter) wondered about — whether a "fiduciary" under the Employee Retirement Income Security Act breaches its duty to pension plan beneficiaries by continuing to buy and hold their employer’s stock during a period of artificial inflation.  The court answered that it just might, even if the company doesn’t face a threat to its viability (a la Enron):

A prudent man standard based only upon a company’s alleged financial viability does not take into account the myriad of circumstances that could violate the standard.  A violation may occur where a company’s stock did not trend downward over time, but was artificially inflated during that time by an illegal scheme about which the fiducaries knew or should have known, and then suddenly declined when the scheme was exposed.  While financial viability is a factor to be considered, it is not determinative of whether the fiduciaries failed to act with care, skill, prudence, or diligence.

In re Syncor ERISA Litig., No. 06-55265, slip op. at 1444 (9th Cir. Feb. 19, 2008).

The court also overturned the district court’s decision to reject a binding settlement because it already decided to grant defendants summary judgment.  On remand, the district court must consider the settlement to determine whether it meets the requirements Rule 23(e), which governs class action settlements.

Feedicon14x14_2 Our feed likes the Syncor decision.

Have you ever wondered why courts seldom issue preliminary injunctions in patent cases?  Blawgletter has.  The Federal Circuit supplied a partial answer again today.

That court tossed a preliminary injunction barring manufacture of a "J-Hook", which attaches to an upright object and cradles lengths of cable in the curvy part of the "J".  It agreed with the district court that the defendant didn’t raise a "substantial question" as to two of the three "invalidity" defenses it asserted — inequitable conduct and on-sale bar.  But it saw enough substance in the third ground — obviousness under the new (tougher) test of KSR Int’l Co. v. Teleflex, Inc., 127 S. Ct. 1727 (2007), which postdated the grant of the preliminary injunction.  Erico Int’l Corp v. Vutec Corp., No. 07-1168 (Fed. Cir. Feb. 19, 2008).

Feedicon14x14 So KSR did make the test harder to pass.

The true reason for blocking the bill [to extend warrantless wiretapping authority] was Senate-passed retroactive immunity to protect from lawsuits private telecommunications firms asked to eavesdrop by the government.  The nation’s torts bar, vigorously pursuing such suits, has spent months lobbying hard against immunity.

Robert D. Novak, "Why Torts Trumped Terrorism", The Washington Post, Feb. 18, 2008.

Feedicon14x14 Our feed wonders if Mr. Novak knows what "pro bono" means.

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Judge Smails.

An Annenberg Public Policy Center survey found in 2006 that 69 percent of respondents said judges who make an "unpopular ruling" should face losing their jobs.

The question asked "[h]ow important do you think it is to be able to impeach or remove a judge from office if the judge makes an unpopular ruling — essential, very important but not essential, somewhat important, or not too important?"  Twenty-one percent answered "somewhat important", 30 said "very", and 18 replied "essential".

Blawgletter notes that the phraseology implies a role for impeachment as corrective for wayward magistrates — at least the ones who flout the popular will.  Members of the legal profession know, of course, that judicial independence means nothing if it doesn’t mean freedom to rule according to law and facts without fear of adverse personal consequences.

Learned Hand, in his 1957 Holmes Lectures at Harvard, favored a powerful judiciary that the rest of us trust to restrain itself in wielding power.  He thought that guaranteeing judges almost boundless discretion would produce the best decisions — so long, at least, as they exercised self-restraint. 

But what if they don’t restrain themselves?  Ah.  That’s the worry, isn’t it?  Which may help explain the Annenberg survey result.

Feedicon Our feed keeps its opinions to itself.  Sometimes.

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Remember Johns-Manville?  It made building supplies — shingles, insulation, possibly dowel sticks.  Lots and lots of building supplies.  And just about everything it produced (excepting perhaps the dowel sticks) contained a fibrous and flexible mineral that featured wondrous heat-resisting properties.  Some deemed it the "miracle mineral".

But asbestos had another, not-so-miraculous aspect — its ability to sicken and kill people who inhaled its floating fibers.  Growing awareness of the connection between asbestos and lung disease led to a flood of lawsuits against Johns-Manville.  The growing torrent eventually sank the company, sending it into bankruptcy on August 26, 1982 — just over a quarter-century ago.

And still the bankruptcy lingers.  The latest twist came today in the form of a Second Circuit decision.  The panel decided that the bankruptcy judge lacked jurisdiction to enjoin lawsuits against one of Johns-Manville’s main insurers.  As Circuit Judge Wesley summed up in a nifty concluding paragraph:

  In our view, the district court lacked subject matter jurisdiction to enjoin claims against Travelers that were predicated, as a matter of state law, on Travelers’ own alleged misconduct and were unrelated to Manville’s insurance policy proceeds and the res of the Manville estate.  The irony in all of this is that while the Direct Actions, with one categorical exception, involve a claim of an independent duty on the part of Travelers, they have met with almost universal failure in the state courts.  Thus, while the bankruptcy court’s order sought to achieve one-stop relief for Travelers that could be seen as well deserved, it seems to us there is not one but many courthouses where the legitimacy of these actions must be tested.  The bankruptcy court’s desire to facilitate global finality for Travelers may not be used as a jurisdictional bootstrap when no jurisdiction otherwise exists.  The order of the district court is VACATED and the case REMANDED for the bankruptcy court to examine whether, in light of this opinion, it had jurisdiction ot enjoin any of the instant claims.

In re Johns-Manville Corp., No. 06-2099 (2d Cir. Feb. 15, 2008).