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Wednesday, April 4, 2007

Property Profs Wanted for S.Ct. Amicus Brief

Adam Mossoff (Michigan State University College of Law) is organizing an amicus brief asking the Supreme Court to take the Zoltek case on cert.  Some prominent folks (Eugene Volokh, Richard Epstein, Eric Claeys) and a random guy (me) are joining.  Here's the text of a letter from Adam seeking additional profs to join the brief:

I'm writing a law professors’ amicus brief supporting a cert petition in a takings case involving a patent.  The brief is being filed on behalf of professors who teach and write in the fields of intellectual property law, property law, and constitutional law, and thus I’m looking to see if any readers of the PropertyProf blog would like to join the brief. 

The case is Zoltek v. U.S., in which the Federal Circuit held that patents are not "private property" under the Takings Clause of the Fifth Amendment.  See Zoltek v. U.S., 442 F.3d 1345 (Fed. Cir. 2006), rehearing en banc denied, 464 F.3d 1335 (2006).   This is one of the first explicit rulings on the relationship between patents and the Takings Clause in over one hundred years.  For obvious reasons, patent scholars are very interested in this case, and it's even received some coverage in the blogosphere, see, e.g., http://www.patentlyo.com/patent/2006/09/zoltek_patent_t.html.  Zoltek's cert petition does an excellent job reviewing the relevant modern statutes and cases, and addressing the policy implications of the Federal Circuit's decision. http://www.scotusblog.com/movabletype/archives/Zoltek.pdf

My brief complements Zoltek's cert petition by identifying the substantial nineteenth-century case law in the Supreme Court and in many lower federal courts that consistently held that patents were secured under the Takings Clause.  To give a little background on this brief, it is adapted from my forthcoming article in the Boston University Law Review, "Patents as Constitutional Private Property: The Historical Protection of Patents under the Takings Clause."  This article evolved from my research over the past several years into nineteenth-century patent jurisprudence, in which I discovered many takings cases.  I was surprised to learn that these cases have been eclipsed in the twentieth century, although none of them have been directly overruled or limited in any way.  Significantly, scholars in intellectual property and patent law have missed these historical cases, and thus they repeatedly state in their articles that courts have never protected patents under the Takings Clause.  So it was unsurprising that the Zoltek court similarly relied on this mistaken historical claim to justify its decision denying constitutional protection of patents under the Takings Clause.  Even the dissenting judge in Zoltek wrongly stated that no federal court has ever held that patents are secured under the Takings Clause as constitutional "private property."  As my brief makes clear, this is a profoundly mistaken historical claim.

The Zoltek decision is very important for several reasons.  First, the Federal Circuit has sole jurisdiction to hear all patent appeals, and thus there cannot be any circuit split in patent law of the sort that typically demands Supreme Court intervention.  At a minimum, my brief reveals that the Zoltek decision conflicts with substantial historical case law in the Supreme Court and other federal courts that is directly on point -- raising the question, which of these opposing court decisions is the law?  Accordingly, the Zoltek decision has created the equivalent of a de facto circuit split that only the Supreme Court can now resolve.  Second, the Supreme Court has repeatedly held in many of its patent law decisions over the past 10 years that nineteenth-century patent law is determinative in defining the nature and scope of patent rights today, e.g., Warner-Jenkinson, Festo, and eBay.  In fact, in all of these decisions, the Supreme Court has reversed (and sometimes scolded) the Federal Circuit for ignoring this long-standing, historical jurisprudence, and it seems that Zoltek is simply just another example of this pattern of behavior by the Federal Circuit.  Third, and perhaps most important, the Supreme Court should resolve this conflict, because patents are increasingly important business assets in today's society.  The uncertainty about the scope of legal protection afforded to patents cannot bode well for the constitutional injunction that American patent law should "promote the progress of the useful arts."  Although this last issue is beyond the purview of my amicus brief, I believe that Zoltek's cert petition does a nice job in reviewing some of the negative policy implications of the Federal Circuit's decision.

If any readers feel comfortable speaking on the constitutional issue in the Zoltek case and are interested in joining the brief, please contact me and I'll send you a draft so that you can confirm whether you want to join or not.  Please feel free to email me, and I'll send you the current draft.

The deadline is the end of April, but I will need a complete list of the professors joining the brief before the Solicitor General will grant its consent for me to file it.  (I have already received consent from Zoltek's counsel to file the brief.)  Thus, I would ask that anyone who is interested in joining the brief to let me know no later than April 15.  More important, if anyone has any comments or constructive criticism after reading the draft brief, I would be forever in your debt.

Best Regards,

Adam Mossoff
Associate Professor of Law
Michigan State University College of Law
417 Law College Building
East Lansing, MI  48824-1300
(517) 432-6962

Ben Barros

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