Antonin Scalia Clarence Thomas justices.JPGWho knew that jurisdiction in the patent context could cause judicial tempers to flare? In MedImmune, Inc. v. Genentech, Inc., an 8-1 decision handed down earlier this week, Justice Antonin Scalia and Justice Clarence Thomas — who voted together almost 90 percent of the time last Term — exchanged harsh words.
Justice Scalia wrote the opinion of the Court, holding that a patent licensee doesn’t have to terminate or breach its license agreement before suing to challenge the patent’s validity. Justice Thomas dissented, finding no standing to sue.
From a tipster:

Scalia’s MedImmune opinion disembowels Thomas’s dissenting arguments one by one. See footnote 6 (“This is demonstrably false.”). Or footnote 9 (“It obviously is not.”).

One of my kids takes Synagis (a very very expensive medication), which is why I read the decision. While patent law is not my practice area, Scalia’s scorn is very clear and understandable to even a patent law layperson.

Now, Justice Thomas doesn’t take all this lying down. He accuses Justice Scalia of “misread[ing] our precedent,” “inappropriately rel[ying]” upon various cases, and committing “serious error.”
But this match must be scored for Scalia. Some other goodies (all in the footnotes, of course, where judges get to be catty and not feel guilty about it):

Footnote 2: “The dissent contends that the question on which we granted certiorari does not reach the contract claim. We think otherwise.”

Footnote 5 6: “[The dissent would be correct] only if the license required royalties on all products under the sun, and not just those that practice the patent. Of course it does not.”

In other words: “CT, get your head out of your ass!”
Justice Sandra Day O’Connor used to take criticism from Justice Scalia rather personally. But she should have realized that with Justice Scalia, it’s really not personal. To paraphrase what our mother told us in second grade, “Nino only picks on you ’cause he likes you.”
P.S. To be sure, we suspect Justice Scalia doesn’t think very highly of Justice O’Connor as a judicial thinker — in contrast to, say, Justice Ruth Bader Ginsburg, whom he can respect even when they disagree.
MedImmune, Inc. v. Genentech, Inc. [FindLaw]
Court rules on right to bring patent case [SCOTUSblog]


comments sponsored by

2 comments (hidden for your protection) Show all comments