On Tuesday, the Supreme Court heard oral argument in the case of KSR International v. Teleflex. Here’s our quick-and-dirty summary of the proceedings. Subject Matter / Question Presented: To qualify for patent protection, an invention must be novel, useful, and not “obvious” to a person of “ordinary skill” in the field. So how do you determine “obviousness” when you have an invention that combines already-existing products? And is the Federal Circuit’s three-part “teaching-suggestion-motivation” test for obviousness a bunch of moronic nonsense? Money Quote(s):
From the NYT:
When [veteran SCOTUS litigator Tom] Goldstein noted that “every single major patent bar association in the country has filed on our side,” the chief justice interjected: “Well, which way does that cut? That just indicates that this is profitable for the patent bar.” And when Mr. Goldstein referred to experts who had testified that the Teleflex patent was not obvious, the chief justice asked: “Who do you get to be an expert to tell you something’s not obvious? I mean, the least insightful person you can find?”
“Three imponderable nouns,” is how Justice Antonin Scalia dismissed the test, also calling it “gobbledygook” for good measure.
Likely Outcome: The Federal Circuit will probably get benchslapped by the SCOTUS. As Tony Mauro notes:
[W]hen Justice Stephen Breyer said he had read the briefs in the case “15 times” and still could not understand the “motivation” prong of the test, Scalia chimed in, “Like Justice Breyer, I don’t understand.”
The implied message to the Federal Circuit seemed to be: If two of the brainier justices on the Supreme Court don’t have a clue what you are talking about, a new test might be in order.
For those of you looking for a substantive, eyewitness account of the argument, we reprint below the report of Joseph (Jay) R. DelMaster, Jr., a partner at Drinker Biddle & Reath in Washington. His account includes advice about how to proceed in patent prosecutions while we await the Supreme Court’s decision.
Check it out, after the jump.
Although we mentioned it inpassing, we didn’t give adequate attention to Anna Schneider-Mayerson’s delightful profile of Tim Wu when it appeared earlier this month in the New York Observer. (It was discussed on several otherprominentblogs.)
Now we have an excuse to double back and correct the error: We’ve received an email from the good professor! Here it is (reprinted with permission):
Hi this isn’t exactly a tip — I just read your entry for above the law and the FedSoc conference, and wanted to say sorry I couldn’t meet you at the Net Neutrality panel…. It turned out I had the wrong date and it conflicted with my Thursday copyright class, so I couldn’t come….
I hope to run into you in person one of these days.
Wow! When we received this email, we giggled girlishly with excitement. First, Professor Wu is brilliant. As noted in the profile, he was nicknamed “the Genius Wu” by no less an authority than Judge Richard Posner, who knows genius when he sees it (e.g., when he looks in the mirror).
Second, Professor Wu is quite handsome (see photo). How many other Columbia Law School professors have earned themselves a music video tribute (“Ain’t No Other Man But Wu”) from their students?
(Our only grooming suggestion to Professor Wu: Have those eyebrows thinned. We go to someone very good for ours, but she’s probably not convenient for you given that you’re in New York.)
Finally, we were glad to learn why Professor Wu missed the Federalist Society panel: he misread his calendar. It’s nice to know that a member of the Elect — and not just any old Supreme Court clerk, but one who has been called “indefatigable” and “a valuable man in chambers” by his former boss, Justice Breyer — makes scheduling mistakes. How utterly charming! Wu-Hoo! Nutty Professor Is Voice of a Generation [New York Observer] Tim Wu, Voice of a Generation [Volokh Conspiracy] George Clooney’s Got Nothing On Tim Wu [WSJ Law Blog] “I Heart Wu” [YouTube]
You may recall our recent Above the Law reader polls for Most Favorite Supreme Court Justice and Least Favorite Supreme Court Justice. The results of those polls are available here and here, respectively.
One of you had an interesting suggestion: Combine the results of the two polls to generate “net popularity scores” for the justices. These scores, combining measures of how much each justice is liked and disliked, could be viewed as measuring “overall” popularity.
We thought it would be interesting to see the results, so we went ahead and did this. We took the percentage of the vote each justice received in the “Most Favorite” poll, then subtracted from it the percentage of the vote received in the “Least Favorite” poll. We labeled the result the justice’s “Net Popularity Score” (NPS).
Here are the results of this number-crunching, with the justices ranked by NPS, from highest to lowest:
A few quick thoughts:
1. The rankings strike us as decent measures of overall popularity. Two of the top three finishers are favorites of their respective ideological wings. Justice Scalia, a cult figure among conservatives, comes in first; Justice Stevens, a hero of the liberals, places third.
2. The Chief is like Sara Lee: Nobody doesn’t like him. He got zero percent of the votes in the “Least Favorite” poll (just 24 votes out of 6,290). And, presumably due to his good looks and great resume — since he doesn’t have many opinions to be judged by yet — he won 16 percent of the “Most Favorite” vote. This gave him an NPS of 16, almost enough to beat Nino.
3. The next three justices — Justices Breyer, Thomas, and Alito — have net popularity scores close to zero. This makes sense too: as jurists, they don’t excite grand passion (even if Justice Thomas, prior to his confirmation, was a controversial figure).
4. Justice Alito, a fairly low-key personality, earns a “perfect” score of zero. Two percent of voters picked him as their favorite; two percent picked him as their least favorite. He’s like The Justice Who Wasn’t There (although, in fairness to Justice Alito, he’s too new to the bench to have made many enemies or fans).
5. Three justices have negative net popularity scores: Justices Kennedy, Souter, and Ginsburg. Their negative scores may have been affected by the fact that the voter pool in the “Least Favorite Justice” pool skewed to the right (thanks in large part to an Instapundit link).
6. As for why Justice Ginsburg attracted such a high percentage of the “least favorite” votes, Ann Althouse — and her commenters — have some interesting thoughts on the matter. Earlier: ATL Poll Results: Your LEAST Favorite Supreme Court Justice ATL Poll Results: Your Favorite Supreme Court Justice
* “Colombian Supreme Court: grabbing a woman’s behind is a crime.” [Herald-Tribune via How Appealing]
* One week until elections — there must be some litigation somewhere. [Wall Street Journal via [How Appealing]
* Justice O’Connor spoke in Utah this week, and she and Justice Breyer shed some politico-rhetoric in Washington. [CNN]
(For related links, see yesterday’s MD.)
* A second plea bargain has been reached in the Iraqi civilian murder case. [MSNBC]
* For you trusts-and-estates buffs, check out Kenneth Lay’s will. Notice he leaves much of his assets in the “Ken Lay Trust,” which seems oxymoronic. [Slate]
Not much explanation required. This is just the flip-side of our recently concluded Favorite Supreme Court Justice poll (in which Justice Scalia easily prevailed).
Now we want to learn which of the Nine Robed Ones is your LEAST favorite jurist.
We’ll keep the polls open until we get at least 1,000 responses, so that the result can be viewed as a fairly reliable indicator of ATL reader sentiment. Here’s the poll:
Interesting! Thanks to everyone who participated in the poll. And thanks to SCOTUSblog and Professor Althouse for linking to the poll, which generated many votes. Update: Vote for your LEAST favorite Supreme Court justice by clicking here.
Our random observations on the results, after the jump.
This is NOT an official ATL contest. We won’t offer any commentary on the candidates, to keep the proceedings objective. This is simply a random Friday poll that we’re conducting for our own curiosity.
Readers of this site are generally interested in, and highly knowledgeable about, the United States Supreme Court. Many of you might be called “legal nerds” or “judicial groupies” (both of which we view as badges of honor).
So while we have you all here, we thought we’d ask:
We know that such online polls have been conducted previously. See, e.g., here. And we have seen articles in which legal experts are asked to name their favorite member of the SCOTUS. See, e.g., here.
But we haven’t seen such polls or articles for the Court as currently constituted, i.e., after the appointements of Chief Justice John Roberts and Associate Justice Samuel Alito. So we thought we’d run such a poll and see what results we get.
Please cast your vote, so this tally will be as accurate a representation of ATL reader opinion as possible. Thanks!
* Our Law School Dean hotties contest is now underway. Vote on the women here, the men here, and the alternate male candidates here.
* Do you know anyone who is currently clerking for Justice Alito? If so, we’d like to hear from you.
* If you’re in law for the money, we recommend Korean transactional practice, at a big firm. You’ll probably make more than you would as a solo practioner or small firm lawyer.
* If money is your top priority, then don’t bother with the law; go work for Goldman Sachs . Partners there take home an average of $7 million a year. And still find time to beat up on small businessmen.
* ATL readers: Not as rich as Goldman Sachs partners. But pretty damn smart.
* Creative ways to get yourself criminally charged: (1) walk around your office buck naked; or (2) walk out of a restaurant without paying (after concluding that your seafood pasta dish was short on the seafood).
* But protesting while topless, that’s okay.
* Lori Alvino and Matthew McGill: We are not worthy. The happy couple tied the knot earlier this month. Their wedding guests included two sitting Supreme Court justices, the chief judge of the D.C. Circuit, and two SCOTUS short-listers. (Yes, we’ve categorized this under Nauseating Things.)
* Some dispatches from the New Yorker Festival: Justice Breyer, with Jeffrey Toobin; legendary criminal defense lawyer Gerald Shargel, along with other experts on the Mafia; and some guy named Jon Stewart.
* There’s a new kid on the ATL block: Meet Stella Q. Welcome, Stella!
Justice Stephen G. Breyer demonstrates his hidden talent for pantomime, as Jeffrey Toobin looks on admiringly. (Photo by Startraks.)
This is our final post about Justice Stephen Breyer’s recent appearance at the New Yorker Festival. Prior posts are available here, here, here, and here.
We highlight some of the more interesting or amusing remarks by Justice Breyer, after the jump.
If your firm is in ‘go’ mode when it comes to recruiting lateral partners with loyal clients, then take this quiz to see how well you measure up. Keep track of your ‘yes’ and ‘no’ responses.
1. Does your firm have a clearly defined strategy of practice groups that are priorities of growth for your office? Nothing gets done by random chance, but with a clear vision for the future. Identify the top practice areas for which you wish to add lateral partners. Seek input from practice group leaders and get specifics on needs, outcomes, and ideal target profiles.
2. In addition to clarifying your firm’s growth strategy, are you still open to the hire of a partner outside of your plan? I’ve made several placements that fit this category. The partner’s practice was not within the strategic growth plan of my client, but once the two parties started talking with each other, we all saw how it could indeed be a seamless fit. Be open to “Opportunistic Hires.” You never know where your next producing partner might come from, so you have to be open to it. I will be the first to admit that there is a quirky element of randomness in recruiting.
Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past six years. You can reach them by email: email@example.com.
We currently have a very exciting and rare type of in-house opening in China at one of the world’s leading internet and social media companies. Our client is looking for an IP Transactional / TMT / Licensing attorney with 2 to 6 years experience. The new hire will be based in Shenzhen or Shanghai. Mandarin is not required (deal documentation will be in English) but is preferred. A solid reason to be in China and a commitment to that market is required of course. This new hire will likely be US qualified (but could also be qualified in UK or other jurisdictions) and with experience and training at a top law firm’s IP transactional / TMT practice and could be currently at a law firm or in-house. Qualified candidates currently Asia based, Europe based or US based will be considered. The new hire’s supervisors in this technology transactions in-house team are very well regarded US trained IP transactional lawyers, with substantial experience at Silicon Valley firms. The culture and atmosphere in this in-house group and the company in general is entrepreneurial, team oriented, and the work is cutting edge, even for a cutting edge industry. The upside of being in an important strategic in-house position in this fast growing and world leading internet company is of the “sky is the limit” variety. Its a very exciting place to be in China for a rising IP transactional lawyer in our opinion, for many reasons beyond the basic info we can share here in this ad / post. This is a special A+ opportunity.
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