Your patent claims a device that "attach[es]" to a "flexible" thingy.

Does "attach" require that the device touch only the outside of the thingy? Or can it also attach to the thingy's innards? And must the thingy flex "easily" or just enough to seem, well, flexible?

The district court ruled that the attachment element of the patent claim called for the thingy to connect only to the outside of the device, making the Sony game controller non-infringing. The court also ruled that a game-player's inability to bend the Sony controller "with ease" also supported the ruling against the inventor.

The Federal Circuit reversed. It held that the term "attached" could mean not only connection to an external surface but also touching a purely internal plane. The panel also ruled that "flexible" might include things we humans might find hard to bend. Thorner v. Sony Computer Entertainment Am. LLC, No. 11-0114 (Fed. Cir. Feb. 1, 2012).

The case well captures the rule that the normal meaning of words in patent claims almost always determines their scope. The rule doesn't apply only if (1) the patent itself explicitly redefines the words to mean something different (e.g., "black shall mean white") or explicitly disavows the normal meaning to U.S. Patent and Trademark Office.

Do you think a Supreme Court justice who has given good wishes, outside of court, to one side or the other should sit in judgment of the case?

Should we hold the justice who chooses to remain on the case accountable for his or her recusal decision?

The Chief Justice of the Court devoted his year-end report on the federal judiciary to claiming that Their Honors need to choose whether to recuse in Total Peace. He went on to say:

Indeed, if the Supreme Court reviewed those decisions [on whether or not to recuse], it would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate.

So you can "affect the outcome of a case by selecting who among [the Court's Members]" get to vote. Huh.

Last September, a panel of the Second Circuit tossed a preliminary injunction that barred any action, anywhere, to collect on an Ecuardoran court's $17.2 billion judgment against Chevron for polluting part of the Amazon. Last week, the court got around to saying why.

[Blawgletter describes some of the dispute's facts, claims, and decades-long history here.]

The court grounded its ruling on the fact that the basis for the injunction — New York’s Uniform Foreign Country Money-Judgments Recognition Act, N.Y. C.P.L.R. §§ 5301-5309 — "does not authorize affirmative relief of this kind, but only recognizes a defense available when a would-be judgment-creditor first attempts enforcement in New York." Chevron Corp. v. Naranjo, No. 11-1150-cv(L), slip op. at 2 (2d Cir. Jan. 26, 2012). The panel went on:

Judgment-debtors can challenge a foreign judgment’s validity under the Recognition Act only defensively, in response to an attempted enforcement – an effort that the defendants-appellees have not yet undertaken anywhere, and might never undertake in New York.

Id. at 4. Got that? The Recognition Act recognizes foreign judgments except when it doesn't, in which case you have to invoke the exception by way of defense and not through an action for a pre-emptive injunction.

We suspect that the outcome in Naranjo won't mean a huge change in your law practice, but we all must marvel at the great lengths to which people who seek or want to keep large amounts of money will go to get or retain them.

 

You run a nightclub. You also drive a Jeep. And sometimes you use the Jeep to bring cocaine and cocaine base to your nightclub.

The police suspect you. They get a warrant to put on your Jeep a device that will allow the police, by using global positioning satellite technology, to track where your Jeep goes. But they fail to comply with the warrant, which issued from the District of Columbia, by attaching the GPS signal-emitter to your Jeep in Maryland. That doesn't keep them from watching you via satellite for about a month. And they use the info to help convict you on drug charges.

You appeal on the ground that the fourth amendment barred the police from tracking your Jeep's movements. And, today, the Supreme Court holds that the warrantless use of the GPS thing did amount to an unlawful "search" under the fourth amendment.

Justice Scalia's majority opinion, which Chief Justice Roberts and Justices Kennedy, Sotomayor, and Thomas joined, based the ruling on the fact that in Merry Olde England the means the police used to gather info on you would have counted as a tort — trespass to chattels. United States v. Jones, No. 10-1259 (U.S. Jan. 23, 2012).

Justice Sotomayor concurred to point out that in the digital age, which requires us to share info all the time, the fourth amendment ought not "treat secrecy as a prerequisite for privacy." Slip op. at 6.

Justice Alito concurred in the judgment, urging that the case should turn on your "reasonable expectations of privacy" and not whether the police committed a trespass in the 1791 sense. Slip op. at 2. Justices Breyer, Ginsburg, Kagan, and Sotomayor joined in the Alito concurrence.

The Telephone Consumer Protection Act of 1991 provides that a private person who claims a violation of the act may sue "in an appropriate court of [a] State" so long as "the laws or rules of court of [the] State" permit the suit. 47 U.S.C. §§ 227(b)(3) & (c)(5). May the person also bring her TCPA action in federal court on the ground that her claim falls within "federal question" jurisdiction?

Yes, the Supreme Court held last week. Mims v. Arrow Financial Services, LLC, No. 10-1195 (U.S. Jan. 18, 2012).

Nothing in the text, structure, purpose, or legislative history of the TCPA calls for displacement of the federal-question jurisdiction U. S. district courts ordinarily have under 28 U. S. C. §1331.  In the absence of direction from Congress stronger than any Arrow has advanced, we apply the familiar default rule: Federal courts have § 1331 jurisdiction over claims that arise under federal law.  Because federal law gives rise to the claim for relief Mims has stated and specifies the substantive rules of decision, the Eleventh Circuit erred in dismissing Mims’s case for lack of subject-matter jurisdiction.

Id., slip op. at 17-18.

The Seventh Circuit held last week that a district court set too high a standard for class certification in an antitrust case.

"In essence," the panel ruled, it is important not to let a quest for perfect evidence become the enemy of good evidence." Messner v. Northshore University HealthSystem, No. 10-2514, slip op. 3 (7th Cir. Jan. 13, 2012).

The district court had refused to certify a class of suburban Chicago hospital patients who claimed that a merger hurt competition for their healthcare dollars and raised prices. The court thought that common issues didn't "predominate" under Rule 23(b)(3) unless the class could prove uniform increases in hospital prices for all services after the merger. But not all prices went up at the same rate.

The Seventh Circuit vacated the order denying certification. The panel concluded:

[T]he evidence shows that [plaintiffs' economics expert] Dranove can use common evidence and his difference-in-differences methodology to estimate the antitrust impact, if any, of Northshore’s merger on the members of that class. Together with the common questions and evidence on other liability issues, this was sufficient to show predominance under Rule 23(b)(3).

Id. at 45.

The defendants, by the way, had lost at trial before an administrative law judge on the Federal Trade Commission's claim that the merger created an unlawful monopoly under section 2 of the Sherman Act.

Quote of the Day: Martin Luther King, Jr.

MLK  
Martin Luther King, Jr. (1929-68).

I know you are asking today, "How long will it take?" Somebody’s asking, "How long will prejudice blind the visions of men, darken their understanding, and drive bright-eyed wisdom from her sacred throne?" Somebody’s asking, "When will wounded justice, lying prostrate on the streets of Selma and Birmingham and communities all over the South, be lifted from this dust of shame to reign supreme among the children of men?" Somebody’s asking, "When will the radiant star of hope be plunged against the nocturnal bosom of this lonely night, plucked from weary souls with chains of fear and the manacles of death? How long will justice be crucified, and truth bear it?"

I come to say to you this afternoon, however difficult the moment, however frustrating the hour, it will not be long, because "truth crushed to earth will rise again."

How long? Not long, because "no lie can live forever."

How long? Not long, because "you shall reap what you sow."

How long? Not long:

Truth forever on the scaffold,

Wrong forever on the throne,

Yet that scaffold sways the future,

And, behind the dim unknown,

Standeth God within the shadow,

Keeping watch above his own.

How long? Not long, because the arc of the moral universe is long, but it bends toward justice.

How long? Not long, because:

Mine eyes have seen the glory of the coming of the Lord;

He is trampling out the vintage where the grapes of wrath are stored;

He has loosed the fateful lightning of his terrible swift sword;

His truth is marching on.

He has sounded forth the trumpet that shall never call retreat;

He is sifting out the hearts of men before His judgment seat.

O, be swift, my soul, to answer Him! Be jubilant my feet!

Our God is marching on.

Glory, hallelujah! Glory, hallelujah!

Glory, hallelujah! Glory, hallelujah!

His truth is marching on.

Martin Luther King, Jr., March 25, 1965, Montgomery, Alabama.  Watch it here.

 

A federal law says firms that offer "credit repair" have to tell customers about their "right to sue a credit repair organization that violates" the law. The statute also voids "[a]ny waiver by any consumer of any protection provided by or any right of the consumer under this subchapter".

May a consumer still waive the "right to sue", such as by agreeing to arbitrate a claim that the credit repair outfit violated the statute?

Of course, the Supreme Court ruled in CompuCredit Corp. v. Greenwood, No. 10-948 (U.S. Jan. 10, 2012) (per Scalia, J.). Mr. Greenwood did waive any right to sue by agreeing to arbitrate disputes relating to the Visa card account he got through CompuCredit. The anti-waiver part of the Credit Repair Organization Act didn't trump the arbitration clause, the Court held, because the CROA itself simply made violators "liable" and didn't specify a "right to sue". And CROA's notice requirement didn't "provide[] consumers with a right to bring an action in a court of law" and Mr. Greenwood's waiver of his right to sue therefore didn't waive a "right of the consumer under this subchapter".

If that leaves you scratching your head, don't feel like the Lone Ranger. CROA does create a private cause of action by making violators "liable", and the disclosure CROA calls for does deem that right a "right to sue" in court. But that doesn't amount to a "right" that CROA created?

We think the two concurring justices did better with their reasons for ruling against Mr. Greenwood. Justice Sotoymayor, whom Justice Kagan joined, said Congress didn't make its desire to ban arbitration quite clear enough in CROA to beat the strong presumption in favor of arbitration under the federal Arbitration Act. Which seems about right.

The broader — and, to us, hard-to-grasp — rationale that Justice Scalia and the majority offered, we fear, signals a long and ugly Term ahead for consumers and other plaintiffs.

The status quo almost always favors the wealthy and powerful — the haves. With this Court, God help the have-nots. Because a majority of the Court surely won't.

Well, even if some regulation is permissible, the kind of regulation that the FCC has done here is regulation that gives it complete discretion as to what kind of speech to go after and what not to go after; that it has not tied itself in any way to any kinds of standards. And, it's, you know, evident in the notion that this — the way that this policy seems to work, it's like nobody can use dirty words or nudity except for Steven Spielberg and that there's a lot of room here for FCC enforcement on the basis of what speech they think is kind of nice and proper and good. And so that's a serious First Amendment issue.

Justice Elena Kagan, FCC v. Fox Television Stations, Inc., No. 10-1293, Transcript at 51:20-52:8 (emphasis ours).

[Hat tip to Adam Liptak.]