FedSoc Forums

Property rights in patented inventions are being struck down at an unprecedented rate in a new administrative forum. This new post-grant review procedure (PGR), instituted in late 2012, takes place not in a court, but rather in an administrative forum known as the Patent Trials and Appeals Board. The Board has invalidated the vast majority of the patent claims it has reviewed, around 80% by some measures. -- The US Patent and Trademark Office appears to have erected a vast and expensive system for granting rights with one hand and taking them away with the other. The former Chief Judge of the nation's patent appeals court, Randall Rader, has called the Board a "death squad" for patents. Many businesses and their attorneys have commented that investors and corporate decisionmakers are re-evaluating their investments in R&D whose value is secured by patents. -- Are these criticisms confirmed by the actions of opportunistic hedge funds and law firms? PGR challenges have no standing requirement -- they can be instituted by anyone. Hedge fund manager Kyle Bass has filed a PGR challenge against Jazz Pharmaceuticals after shorting the company's stock. PGRs are viewed as so deadly by investors that they reacted just as Bass hoped -- the stock's value plummeted. Similarly, law firms have been contacting innovative companies and demanding payments not to file PGR challenges against their patents. -- This Teleform discussed the expansion of the administrative powers of the Patent Office in establishing the Board, and whether this is another example of overreach by the executive branch that should be reined in via reform measures currently under consideration in Congress. -- Featuring: Mr. Peter Cicala, Vice President of Intellectual Property, Chief Patent Counsel, Celgene Corporation; Prof. Gregory Dolin, Associate Professor of Law, Co-Director, Center for Medicine and Law, University of Baltimore, School of Law; and Mr. Robert Sterne, Partner, Sterne Kessler Goldstein Fox. Moderator: Prof. Mark Schultz, Senior Scholar, Center for the Protection of Intellectual Property, George Mason University School of Law, Associate Professor, Southern Illinois University School of Law

On Monday, June 1, the U.S. Supreme Court overturned the conviction of Anthony Douglas Elonis, who was prosecuted under a 1939 law prohibiting the communication of threats for allegedly threatening his estranged wife via Facebook. Has the Supreme Court clarified the legal status of violent speech on the internet, or merely added to the confusion? Our experts discussed the opinion and its implications. -- Featuring: John Elwood, Partner, Vinson & Elkins LLP and Kent S. Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation

On June 23, 2005, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner. Although the Fifth Amendment only permits the taking of private property for "public use," the Court ruled that the transfer of condemned land to private parties for "economic development" is permitted by the Constitution. In his new book, published by the University of Chicago Press, The Grasping Hand: "Kelo v. City of New London" and the Limits of Eminent Domain, Prof. Ilya Somin argues that the closely divided 5-4 ruling in Kelo was a grave error. Prof. Somin provides a detailed study of the case, as well as of the new laws intended to limit the use of eminent domain passed in forty-five states during the political backlash following the decision, alongside a broader history of the dispute over public use and eminent domain and an evaluation of options for reform. -- With the 10th anniversary of the Kelo decision approaching, Prof. Somin joined a Teleforum program to discuss the book, with Prof. Richard Epstein joining to offer his comments. -- Featuring: Prof. Ilya Somin, Author, The Grasping Hand: "Kelo v. City of New London" and the Limits of Eminent Domain, and Professor of Law, George Mason University School of Law and Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law.

Many states make money by letting a wide range of groups order specialty license plates for their members. The specialty plates tend to convey a message or an affiliation. May a state reject a proposed plate because it deals with “politically sensitive and emotionally charged issues?" More specifically, may a state forbid a “Choose Life” specialty plate, but allow a “Union Yes” plate and one that says “Support Police?” The Second Circuit just upheld such a policy, by a 2-to-1 vote. Is the decision consistent with the First Amendment? -- Featuring: Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law.

When is an employer liable or not liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice?” We discussed the case decided on June 1, 2015 by the U.S. Supreme Court.on this Courthouse Steps Teleforum conference call. -- Featuring: Michael E. Rosman, General Counsel, Center for Individual Rights.

On Tuesday, May 26, the U.S. Supreme Court decided Kellogg Brown & Root, Inc. v U.S. ex rel Carter, a case in which a private relator sought to bring a False Claims Act lawsuit against a government contractor for actions beyond the statute of limitations and that had been the subject of another relator’s lawsuit. The Supreme Court held that the claims outside of the statute of limitations could not be brought using a criminal tolling statute, but permitted other claims to proceed, despite having been dismissed in other lawsuits. -- Critics have noted that this ruling could make settling False Claims Act lawsuits brought by relators riskier for contractors. Why settle with one relator if another relator can then bring the same claim, given what the Supreme Court deemed the “interpretive challenges” of the False Claims Act? Also left unaddressed by the Supreme Court’s ruling is the Fourth Circuit’s broad holding that the United States is “at war” for purposes of the tolling statute even when there has neither been a formal declaration of war nor an authorization for the use of military force. Could contractors face criminal indictments for decades-old invoices so long as the United States remains involved in any conflict abroad? Our speakers provided expert analysis of the case and answered questions from the callers. -- Featuring: Christopher A. Bowen, Associate, Arent Fox LLP and Marcia G. Madsen, Partner, Mayer Brown.

On Tuesday, May 26, the Fifth Circuit Court of Appeals denied a request from federal government lawyers to overturn a lower court injunction, and to thereby allow President Barack Obama's immigration actions to go into effect pending appeal. What now are the legal effects of the President’s immigration actions? What are the possible next steps in the litigation? These and other questions were answered on this Teleforum Conference call. -- Featuring: Dr. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law

“Political Realism: How Hacks, Machines, Big Money, and Back-Room Deals Can Strengthen American Democracy” (available here as a free e-book) builds on political realism, an emerging school of thought that is characterized by respect for transactional politics and by skepticism toward idealistic political reforms. In our era of intense polarization and gridlock, Jonathan Rauch asks: How can political home truths – truths our grandparents took for granted – help modern politicians negotiate, compromise, and govern? -- Featuring: Stephen R. Klein, Attorney, Pillar of Law Institute and Jonathan Rauch, Senior Fellow, Governance Studies, The Brookings Institution

Is there a way out of the morass on immigration policy that is consistent with conservative principles but allows for a solution to the problems created by outdated and largely unenforceable current laws? Some argue that our current illegal immigration problem is largely the result of laws that prevent willing workers who are foreign born to be matched with U.S. employers who seek the skills they offer at both the high and low end of the skills spectrum. Others are loath to give illegal immigrants a path to citizenship, seeing it as an endorsement of the evasion of the rule of law, and an incentive to future illegal immigration. -- Featuring: Hon. Linda Chavez, Chairman, Center for Equal Opportunity and Hon. Thomas G. Tancredo, Co-chairman, Team America PAC, and President, Rocky Mountain Foundation

Members of the Federalist Society’s Financial Services & E-Commerce Practice Group Executive Committee provided an update on important activity at the Consumer Financial Protection Bureau (CFPB). Developments included the CFPB's adoption of a final policy on publishing consumer complaint narratives, a moratorium on credit card issuers submitting their credit card agreements to the CFPB, the Office of Management and Budget's threat of recommending the veto of a bill that would reduce the CFPB's budget by 0.1% over then next ten years, and the D.C. Circuit Court of Appeals decision to uphold the dismissal on procedural grounds in Morgan Drexen, Inc. v. CFPB, a suit challenging the constitutionality of the CFPB. -- Featuring: Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association and Julius L. Loeser, Of Counsel, Winston & Strawn LLP