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Guest Post by Prof. Gregory Dolin (Baltimore). Prof. Dolin recently filed an amicus brief supporting Celgenes arguments that AIA post-issuance review represents an uncompensatedtakings of pre-AIA patent rights.

Since its passage in 2011, the America Invents Act has been subject to numerous Supreme Court decisions. But thus far, the major constitutional challenge to the Act in Oil States Energy Servs v. Greenes Energy Group has failed. But while the Court the, upheld the AIAs post-issuance review system against an Article III challenge, left a major question open. The Oil States Court stated that it was not resolving whether the application the AIA-created procedures to patents issued prior to the AIAs effective date violates the Takings Clause of the Fifth Amendment. This question is now squarely presented to the Court in Celgene v. Peter. (There are also pendingcases that in addition to the Takings issue raise a Due Process challenge).

Celgene owns two patents generally directed to methods for safely distributing teratogenic or other potentially hazardous drugs while avoiding exposure to a fetus to avoid adverse side effects of the drug. These patents were issued in 2000 and 2001, or more than a decade prior to the enactment of the AIA. These patents were challenged before the Patent Trial and Appeal Board (PTAB) in 2015 in an Inter Partes Review (IPR), and the proceeding resulted in cancellation of all but one of the challenged claims in bothpatents. As with other post-issuance proceedings, but unlike district court litigation, Celgenes patents enjoyed no presumption of validity, and could be cancelled upon preponderance of evidence. Furthermore, in construing Celgenes claims, PTAB utilized the broadest reasonable interpretation (BRI) approach, as was called for by the then-current rules. The interplay of lower standard of proof for cancellation and the BRI standard, combined with the lack of a meaningful opportunity to amend the claims, left patents challenged in IPR particularly vulnerable. (Since that time, the Patent Office issued new rules to amend its procedures and now measures the claims under the Phillips frameworkthe same standard in use by Article III tribunals).

Celgene challenged this procedure in the U.S. Court of Appeals for the Federal Circuit, arguing that by applying a different claim construction standard than in district court and denying the patent a previously existent presumption of validity, the America Invents Act retroactively devalued its property rights in their patents and therefore resulted in the constitutionally compensable Taking in violation of the Fifth Amendment. Relying on its two priordecisions, the Federal Circuit rejected the argument, holding that the presumption of validity is not a property right subject to the protection of the Constitution. Additionally, the Federal Circuit held that Celgene suffered no diminution in its property rights because its patents were always subject to ex parte and inter partes reexamination proceedings, both of which use (or used) the preponderance of the evidence standard with respect to patent validity. Celgene sought certiorari and I, together with Professors Kristen Jakobsen Osenga and Irina Manta filed a brief in support of the petition.

The argument we made in favor of Celgene is relatively straightforward. As the Supreme Court recognized timeandagain, a patent is a property right protected by the Takings Clause of the Constitution. In turn, the decision to procure a patent is fundamentally an investment decision which takes into account the likelihood that a patent would be challenged and survive such a challenge. In addition, the decision to disclose the invention and forgo trade secret protection is essentially a tradeoff: the patentee sacrifices the confidentiality of the invention in exchange for the protections of the patent system. (Admittedly, it is not always possible to keep the invention secret, especially if regulatory approval is necessary as in the case of Food and Drug Administrations approval to market drugs or medical devices. Nonetheless, broadly speaking, an inventor has a choice between patent protection and trade secrecy protection). Depending on the robustness of those protections, the scales of the decision on whether to seek a patent may tip one way or another. Thus, the legal regime existing at the time the applicant filed for the patent constitutes the patentees investment-backed expectation.

The legal regime matters, and IPRs couldnt be more different from reexaminations. As my researchshows, the economic impact of the AIA on patent holders has been profound. The reason behind this significant drop in value is that although administrative review procedures have existed for nearly 40 years, these procedures have always been coupled with a patentees unlimited right to amend the claims in order to preserve their validity. Thus, prior to the AIA the patentee knew that if his patent were challenged one of two things will happen. One option was for the dispute to end up in an Article III court where the claim would rise and fall as written, but where the patent would enjoy a presumption of validity. Alternatively, the dispute would be resolved by the Patent Office where the claims would not be presumed valid, but would be subject to amendments for as long as the patentee was willing to continue prosecuting the patent. The AIA fundamentally altered this balance. Under the AIA, claim patentability can be adjudicated by the PTAB without the presumption of validity and without a robust opportunity to amend the claims. (Although the statute does permit claim amendments, these are not as of right, but must be requested by motion to the PTAB. Since October 2017 when the Federal Circuit held that Motions to Amend must be allowed unless the Patent Office carried its burden to show that claims are unpatentable, the PTAB has granted only 16% of such motions (with an additional 6.5% being granted in part). These already low numbers are a significant improvement from the pre-2017 system where the PTAB granted under 3% of such motions.

It should be acknowledged that Celgene did not seek to amend its claims during the PTAB proceedings, which may make it not an ideal vehicle to resolve the takings claim. On the other hand, given PTABs rejectionist approach to motions to amend, it is quite possible that Celgene was among countless patentees who chose not to bother with filing the motions in the first place. (It is worth noting that Celgenes patents were adjudicated prior to October 2017).

The Supreme Court has previously concluded in Ruckelshaus v. Monsanto Co., that when the government changes the terms of the bargain with an individual, such a change can result in a regulatory taking. In Monsanto, the Court held that the Environmental Protection Agencys public disclosure of data voluntarily submitted to the Agency may, in some circumstances, constitute a taking. The Courts analysis was centered on the legal rules governing the use and disclosure of such data and the nature of the expectations of the submitter at the time the data were submitted. The Court held that the Governments guarantee at the time of submission that the submitted data would remain a trade secret and not be disclosed to third parties formed the basis of a reasonable investment-backed expectation and played a role in the property holders decision whether to submit the data to the EPA in the first place. Celgenes situation is analogous. When it had to make a decision whether or not to obtain a patent or rely on trade secrecy, it made the decision by reference to the then existing government guarantees of patent protections. Changes to that regime are what constitutes a compensable taking.

Before closing, it should be acknowledged that there is a significant issue that is antecedent to the question presented in Celgenes petition. That is whether the Federal Circuit has jurisdiction to hear such claims absent filing of a claim for compensation in the Court of Federal Claims (CFC) and if so, how the Claims Court is supposed to evaluate the value of property lost. That question is embedded in a separate petition before the Supreme Court. The Federal Circuit has recently concluded that the CFC does have jurisdiction to hear such claims, even if on the merits it must reject them. The Government has advanced a contrary view (which the CFC endorsed, though this endorsement is at odds with the Federal Circuits later opinion). It may be that this issue may need to be resolved before (or concurrently with) the issue presented by Celgene.

In sum, the Supreme Court should answer the question whether retroactive application of the AIAs post issuance review procedures to patents issued prior to the passage of the AIA, and which results in their invalidation, constitutes a taking within the meaning of the Fifth Amendmenta question the Court explicitly left open in Oil States. And in my view, the answer should be yes.

Go here to read the rest:
Cancelling Pre-AIA patents and the Takings Clause - Patently-O

After more than a year and a half of postponements, the second-phase trial in a long-running dispute pitting farmers along the Missouri River against the federal government will take place this summer, using a virtual format rather than in person.

In an April 14 hearing conducted by telephone, Senior Judge Nancy B. Firestone of the U.S. Court of Federal Claims granted a motion from the plaintiffs, who are led by Ideker Farms Inc. of St. Joseph, allowing the case to proceed to trial with the parties appearing remotely. Firestone also set a July 20 trial date.

The lead attorney for the plaintiffs, R. Dan Boulware of Polsinelli in St. Joseph, said the government argued that the trial should be postponed indefinitely, which his clients opposed. He said the plaintiffs are happy with Firestones decision.

Were pleased with that because we wanted to get it tried this summer, and it looks like were going to, he said.

Boulware

Boulware said the plaintiffs believe that using videoconferencing technology is the best option to proceed as long as the COVID-19 pandemic continues without the discovery of a vaccine to counter it.

During the trial, each side will have 30 hours to argue their case before Firestone, Boulware said. He anticipates the trial will run for about two weeks, as opposed to the four-month first phase of trial, which ended in 2018.

To prepare for a trial held virtually, Boulware said Firestone asked the parties to conduct de bene esse depositions depositions that can stand in for live witness testimony before the trial.

You dont hold anything back when you depose the other side, he said. You better get your licks in because that may be the testimony offered at trial. All in all, we were fully agreeable to what she wanted to do. I told her we didnt want any undue delay and we were flexible.

The case is considered a bellwether case for the Fifth Amendment issues it raises.

The plaintiffs are a group of more than 350 landowners along the Missouri River from Missouri to the Dakotas.

They assert that flooding of their land, caused by a 2004 change in policy by the U.S. Army Corps of Engineers to protect wildlife, amounted to a taking under the Takings Clause of the Fifth Amendment, which required the government to compensate landowners.

In March 2018, after the first phase of trial, Firestone ruled mostly in the plaintiffs favor, finding the Corps was responsible for flooding along the river. The plaintiffs have estimated they could receive damages of $300 million.

In the second phase of the trial, the government is set to present its defenses, and the plaintiffs will make their arguments for damages.

Other landowners along the river who are not parties to the suit are following it closely to see if they also will be able to seek damages as the river continues to flood on an annual basis.

Brent Allen, an attorney in the U.S. Department of Justice Environment and Natural Resources Division in Washington, D.C., is representing the government. He did not respond to a request for comment.

The case is Ideker Farms Inc. et al. v. United States of America, 1:14-cv-183.

See the original post:
Second phase of river-flooding trial to go virtual - Missouri Lawyers Media

Provo City Police Department officers took two local men into custody after one allegedly threatened a neighbor walking her dog.

According to the probable cause statements filed in support of the arrests, a woman contacted police after her downstairs neighbor began screaming at her through her vents.

The woman also told police that about an hour before contacting dispatch, a man began screaming and cursing at her from the window of the apartment under her while she was taking her dog out.

About half an hour later, the woman told authorities she heard footsteps outside her door and looked out the peep hole to see the same man standing outside her door. The woman provided a physical description of the man she had seen.

When officers arrived, they knocked on the door of the apartment the man was believed to have come from but did not receive an answer. The officers went to the complainants apartment to speak with her, and while the officers were standing outside, heard a man walk out of the downstairs apartment.

According to arrest documents, the officers heard the distinct sound of a gun racking before a mans voice said, Come knock on my door again. Come see what happens. I got a present for you.

Authorities called for other officers to respond to the area and establish a perimeter. While securing the perimeter, two men, one of which was walking a dog, approached officers.

The two men later identified as 36-year-old Curtis Nathaniel Stewart and 31-year-old Scott Vernon McElderly were walking from the area of the downstairs apartment, and one of the men had a defined bulge in his sweatshirt pocket, according to the probable cause affidavit.

Officers made contact with the men and detained them at gunpoint, placing them in handcuffs.

Authorities searched each man and allegedly discovered a 9-millimeter handgun in Stewarts sweatshirt pocket with a bullet in the chamber and a full magazine inserted in the gun. Officials asserted Stewart did not have a concealed weapons permit at the time of the search.

Stewart was discovered to be the tenant in the apartment below the complainants, and McElderly matched the description the woman had given police.

During an interview, Stewart said he had seen a marked, armed person knocking on the door, but advised officers he did not want to answer any more questions without a lawyer, according to arrest documents. McElderly invoked his fifth amendment right, refusing to be interviewed.

Stewart and McElderly were arrested under suspicion of third-degree felony aggravated assault threat with the show of force or violence necessary to injure and a class A misdemeanor threat of a dangerous weapon in a fight. Stewart also faces an additional potential class A misdemeanor charge for carrying a concealed, loaded firearm.

Both men are being held at the Utah County Jail. McElderly is being held on $7,500 bail, while Stewart is being held on $10,000 bail.

Continued here:
2 Provo men arrested after alleged altercation with neighbor, police - Daily Herald

GOLDEN v. U.S.

Before OMalley, Mayer, and Wallach. Appeal from the United States Court of Federal Claims.

Summary: (1) Patent infringement claims against the government must be brought under 28 U.S. 1498, not as a Fifth Amendment taking claim. (2) An IPR initiated by a government agency is not a taking if the patent owner voluntarily canceled all claims in a non-contingent motion to amend.

Larry Golden filed suit pro se in the U.S. Court of Federal Claims seeking compensation for the governments alleged taking of his patents. The complaint alleged the takings occurred by (1) the governments use of subject matter outlined in the claims and specification of Goldens patents, (2) the cancellation of patent claims during an IPR initiated by the Department of Homeland Security (DHS), and (3) the dismissal of Goldens taking claims in a previous case. The Claims Court dismissed Goldens claims because they were duplicative of the previous case and were actually patent infringement claims that had to be pursued under 28 U.S.C. 1498. Golden appealed.

The Federal Circuit concluded the dismissal of Goldens patent infringement-based takings claims was proper because a patentee could not sue the government for patent infringement as a Fifth Amendment taking. Rather, patent claims against the government must be pursued exclusively under 28 U.S.C. 1498. As for the IPR-based takings claims, the Federal Circuit previously held in Celgene Corp. that IPR is not normally an unconstitutional taking under the Fifth Amendment. The Federal Circuit noted that the DHS is a government agency, which is not a person that can petition for IPR under the Supreme Courts Return Mail decision. However, that did not impact the decision because (1) Golden did not appeal the IPR, which became final before Return Mail, and (2) the claims were canceled as a result of Goldens voluntary non-contingent motion to amend during the IPR.

More:
Patent Owners Cannot Sue the Government for Patent Infringement as a Fifth Amendment Taking - Lexology

A Haskell Indian Nations University (HINU) student was vacated from the university dorms during the height of the COVID-19 pandemic over allegations of intimidation and harassment of a Haskell employee without due process to appeal the decision.

HINU athlete Russell Parker received a HINU Action Notice for an Emergency Level II suspension from Danelle McKinney, Student Rights Specialist, that required Parker to leave campus during stay-at-home orders from the state. The notice outlined that Parker wasnt currently allowed to appeal allegations against him but was allowed to appeal his Permanent Loss of Housing. Parker says he is unaware of how an appeal for housing would work at this time since there are policies in place to keep students who have left campus from returning among HINUs COVID-19 response efforts and hes currently required to be off campus until his hearing.

Parkers suspension is based on allegations of harassment of Haskell employee and intimidation by student to Haskell employee. These allegations came as a shock for Parker, and contrasts the Report Synopsis Overview in the Incident Report which states that [the] student failed to comply with verbal directives from Facilities Staff. The referenced directives in the report had asked Parker to move his car and golf mat and move onto the current golfing range.

According to the incident report, Steven LaCour, Acting Facilities Foreman stated I noticed that he had a golf club in his hand and was getting very agitated. The surrounding text does not support that Parker, who was golfing, threatened LaCour, but mentions Parker accusing him of being on a power trip and calling him an ahole when he walked away, both protected rights under the First Amendment as well as the Code of Student Conduct. Parker feels LaCour embellished his report by describing Parker as belligerent and agitated; LaCour referred to himself as acting kindly.

In addition to LaCours statement being taken in the incident report by Ernest Wilson, Acting Supervisor: College Resident Assistant, LaCours account was also recorded in the activity log of Lead Security Officer James Yarnall who LaCour asked to confront Parker. Yarnall wrote that after asking Parker to move his car and to golf on the range, the student packed up his stuff and left and did not say much to me. He did note that Parker seemed irritated.

Parkers own experience was not documented by either the security activity log nor the Incident Report used to determine Parkers suspension. Despite his best efforts to advocate for himself, Student Rights is not allowing him to appeal their allegations.

As a federally funded school, HINU is bound by constitutional rights including the right to due process which is also part of the Code of Student Conduct. The code of conduct says every student, student organization, and campus organization is entitled to due process and appeal in every instance of disciplinary action for alleged violation of Haskell expectations.

This decision and lack of due process puts Parkers life in danger. Parker said its like walking around with a bomb strapped to my chest referring to him trying to find temporary housing off campus in the midst of the pandemic. Parker also showed concerns for its effects on his financial situation and how it will affect his scholarships. Parker had told Tonia Salvini, Vice President of University Services, through email that this would leave [him] homeless at the height of a pandemic.

For Parker to be charged with Intimidation or Threat outlined in the Code of Student Conduct, LaCour would have to have had a fear of bodily harm or feel threatened by word or action of a perceived threat to inflict bodily harm. In Parkers message to Salvini, he told her that these allegations simply arent true and that at no point did [he] approach Mr. LaCour or say anything that would imply a threat or violence. Allegations of intimidation automatically trigger an additional charge of harassment due to HINU defining intimidation as a form of harassment.

Parker has been receiving support from his peers who have witnessed Parker golfing over the past few weeks during isolation before the incident. Haskell student, Michael King said Haskell protects their employees more than they protect their students. The climate of the current COVID-19 pandemic has complicated relationships between students and staff. King said I feel staff is targeting students and pointing blame at them for [COVID-19] and that the staff thinks their health is at a greater risk than students. One of LaCours coworkers commented on an Indian Leader Facebook post that he felt it was a very bad choice to let students live here and he feels like staff arent equipped to protect themselves. One of LaCours relatives also posted concerns that essential staff have families too referencing the fact that students who are staying on campus put them, the staff and their families, at risk (see article When Home isnt Home ).

Not only is Parker up against a mindset that students on campus threaten staff safety, but Parkers peer, Marklin Morales says I dont doubt race had something to do with it. Parker told Indian Leader that as a bi-racial non-traditional student, he doesnt look like his peers and that has caused challenges for him including this incident.

A study from the American Psychological Association (APA) found that black men, in hypothetical situations, were perceived as more capable of causing harm Parker said, I dont like playing the race card, but he finds that his bi-racial status affects his life, even in Black and Native communities. This comes several weeks after multi-racial Black students discussed their discrimination on HINUs campus at the Black History Month Student Panel.

Parker is one of at least five students who have been vacated during HINUs isolation through allegations of breaking the Code of Student Conduct, and it is unknown if the others were given their due process, and if there was any consideration for their safety during this pandemic. Parkers hearing for Permanent Loss of Housing will be Friday April 17, Parkers birthday.

Vice President of Student Services Toni Salvini, Student Rights Specialist Danelle McKinney, and Acting President Jim Rains were given an opportunity to comment before publication with no response.

UPDATE April 16, 2020 At the request of Parker, he would like his documents pertaining to this instance made public to help provide context to his circumstances and the event reference in the article above.

Note: There is a reference to an attached police report. To Parkers knowledge, this is just the security log from Yarnall. Parker contacted the Lawrence Police Department who has no record of this incident.

View original post here:
Student Safety Jeopardized by Violation of Fifth Amendment - The Indian Leader