October 16, 2007
Federal Circuit Construes "Arising Under" in 1338/1331
In Air Measurement Tech., Inc. v. Akin Gump, __ F.3d __ (Fed. CIr. 2007), the court held that district courts had subject matter jurisdiction over patent malpractice claims between nondiverse parties. The defendants had removed the case from state to federal court, contending that the suit "necessarily depends on a resolution of a substantial question of federal patent law" because the plaintiff, an aggrieved patentee had to establish that the claims were valid, infringed, and that but for the defendant's negligence, certain defenses under patent law would not have been available to accused infringers.
I've dealt with this issue in various contexts, and the answer deserves clarification from the Supreme Court. (Why, for example, did this appeal go to the CAFC? There's an interesting question there, alone! Do other appeals have to?) I'm hoping the Supremes take this one up, as it's an interesting question and one in need of a definitive answer.
October 14, 2007
Nevada Supreme Court Issues Decision of First Impression
In Horton v. 8th District Court, __ P.3d __ (Nev. 2007). The statute at issue required reasonable notice be provided to the defendant of the nature of defects in construction litigation. NRS 40.645. The court was unanimous; what I think is interesting is the amount of time spent analyzing even statements made during committee hearings in reaching its conclusion.
I personally think I'd rather have a judge make the determination of what even "clear" words mean by examining the entire record and explaining the conclusion in detail, rather than telling me the words are "clear" to them, and so nothing else matters besides that judge's conclusion that the words mean what she says they do. This case appears to show that principle in action - not stopping with a declaratory sentence of clear meaning, but looking at the whole record.