August 12, 2006
Authoritarianism & Statutory Construction
It's a Saturday morning, and last night (while enduring a flight back from Rhode Island to Atlanta during the latest scare), I bought John Dean's Book, Conservatives without Conscience. (Sadly, I now see that I could have waited and bought it for nearly half the price charged at the airport!)
I haven't finished it yet, but began last night to read the section where, Dean states, conservatives are attempting to pack the judiciary with judges who will use their power to impose the conservative agenda that they were unable to get through, even with an all Republican Congress and President.
I don't know that he's right, but let's assume for a moment he is. Does Textualism allow for that to happen more easily than, say, intentionalism? Seems to me the answer is "yes" because the judge can without explanation announce the "plain meaning" of the statute, even if it conflicts with clear legislative intent. The inertia of the legislative process will, then, mean that a more conservative statute than was enacted is in place, and won't be overturned easily.
I don't know, but it got me thinking about those broader issues on this fine Sunday morning.
August 11, 2006
Worst Statute in the World for August 10th
The Class Action Fairness Act is this week's winner. No, not because of any political views, but because of this little provision: "a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the state court from which it was removed if application is made to the court of appeals not less than 7 days after entry of the order" (emphasis added). Why is it so bad? Literally, it says that if a district court rules on a motion to remand a class action to state court, the party who loses must wait 7 days to appeal, but then can wait forever to appeal.
Two circuits have looked at the statute and have decided the provision can't mean what it says. The Ninth Circuit and the Tenth Circuit have both said that the word "less" must mean "more." What's more, the Ninth Circuit just denied (with a dissent) a call for rehearing en banc on this interpretation.
Thus, two courts have by judicial interpretation made the statute make sense -- but they've also created an enormous trap for the unwary litigant, as Howard Bashman has noted over at law.com.
Today's worst statute in the world: where "less" probably means "more" litigation.
August 10, 2006
Judicial Ethics and Statutory Interpretation
I'll probably re-visit this notion several times, but wanted to write a bit about it now.
My colleague, Linda Jellum, and I recently finished a book on statutory interpretation. For well over a year, I was completely focused on the competing approaches -- textualism, purposivism, intentionalism, etc. -- and read various judicial views on the appropriateness of each approach.
One thing that really bothered me about a lot of what I read was the impugning of character by textualists of both legislators and judges. For example, there's a quote that many judges will use about how legislative history involves "looking over the crowd and picking out your friends." Likewise, there's a suggestion by textualists that anyone who relies on legislative history or purpose is somehow giving themselves room to interpret a statute as she sees fit. Further, textualists will argue that legislatures "plant" legislative history in order to later bend judicial interpretation.
There's something about all that which bothers me: it lacks respect, and impugns the character of fellow judges and legislators. I have no doubt that one can cherry-pick statements from legislative history to support an interpretation, for example, but I also have no doubt that legislative history in the hands of a judge actually seeking "the meaning" of the text is a useful tool. Likewise, I don't doubt that some legislators may try to "spin" proceedings to get a record that favors their view of the meaning of the text. But I hardly think that all legislators do, and I certainly don't think that, even if some do, we should throw the baby out with the bath water as a result.
I know I'll come back to this issue repeatedly, but wanted to post a bit about it now.
August 9, 2006
35 USC 271(f) and the Federal Circuit
A recent Federal Circuit decision held that method claims can be infringed if the method is performed abroad, so long as "components of the method" are exported from the US. See Union Carbide v. Shell Oil Co. (Fed. Cir. 2005).
This case violates a number of statutory interpretation principles, in my view. The greater issue is that until is overruled (not unless, until), it is going to create mayhem in patent law and business planning.
The authority, of course, for patent infringement comes solely from statute. There is no federal common law of patent infringement or unfair competition. The statute at issue provides:
(f)(1) Whoever without authority supplies or causes to be supplied in or from the United States all or a substantial portion of the components of a patented invention, where such components are uncombined in whole or in part, in such manner as to actively induce the combination of such components outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.
The legislative history shows that Congress enacted what is now Section 271(f)(1), in response to the Supreme Court's decision in Deepsouth, which held that it was not infringement to assemble abroad a product even where the unassembled parts were shipped from the United States with the intent that they be assembled abroad. It is clear that 271(f)(1) was designed to, and seems largely to have, made it so that the owner of a patent on a product can prevent someone in the US from exporting most or all of the components with the intent that they be assembled abroad. That was its purpose, and it seems to have done the job.
Does 271(f)(1) do more than make it an infringement to export components of a patented product for assembly abroad? The Union Carbide court said so. It held that 271(f)(1) permits the owner of a patent on a method to prevent the exportation of components that will be used abroad to practice the claimed method.
I believe this is wrong -- big time. I'm not alone. Professor Joseph Scott Miller has written a letter, signed by a few other professors (including me) to the Solicitor General, arguing that the Federal Circuit is wrong, and needs correction by the Supreme Court.
Professor Miller has written more eloquently than I will here, but I take a slightly different tact than he: plain meaning is enough.
Remember that method claims cover only use of the method. Method claims cover steps, not things. That's a basic point of patent law that is beyond well-settled, even though it's kind of odd.
We know that, as a general first step, you're supposed to construe statutes with ordinary meaning. Let's try. How do I export a step in a method? I can't imagine how that can be done, since once the step is done, it's over. I suppose maybe I could export a cannister, and inside the cannister there's a reaction occuring, and the occuring of the reaction is a step in a method. That might work. It's not enough to export instructions: instructions are not the doing of the method.
Plain language suggests that method claims aren't covered for the reason that there is no "component" of a "method." I've never heard anyone refer to a step in process as a "component." "Have you performed all the components in the process?" Now, "have you used all of the components specified in the method claim" makes sense, but notice that it is not the component that is an element in the method: it is the step of using that component. I can export a component that can be used in a method claim, but what is covered by the method claim is the use of the component, not the component.
Suppose we decide the plain language could -- somehow -- cover method claims. As you know, a key canon of statutory construction is that statutes have to be construed as a whole. Is the word "component" used somewhere else in 35 USC 271? You bet. Check this out: <blockquote>
(c) Whoever offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer…. </blockquote>
Notice that Congress used two phrases: "components" describe what are parts of patented products; "material or apparatus" are what are "for use in practicing a patented process." Thus, Congress used distinct phrases -- components are what go into products, materials or apparatus are what are used to practice method claims -- in this section. Thus, under this section, if someone sells in the US a material or apparatus used to infringe (and it's not a stapel article, etc), then they infringe.
Now look back at 271(f)(1): it says people who export components that are assembled abroad infringe; it says nothing about materials an apparatuses (apparati?) used for practicing a patented product.
So, where we are is the ordinary language of the statute doesn't apply, and the phrase "component" is used in the same statute to apply only to product claims.
How did the Federal Circuit miss this? I don't know. I do know, however, that the case is already the subject of discussion among CLE programs I've attended. "How do you draft a method claim to insure it includes components" was one question I heard asked.
You can't because they won't. But we won't get this fixed for a while.