Tagged: Supreme Court

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RBG revises opinion after professor flags error

How often does it happen that a law professor flags a factual error in a Supreme Court opinion and the Justice thereafter changes that opinion to correct the error? Answer: not that often.

So when it happens, some of us think that credit should be given. Okay? So, onto the story, albeit the brief version.

In a post on his Election Law Blog yesterday, Professor Rick Hasen wrote:

In Justice Ginsburg’s 6-page dissent in the Texas voter id case, she writes: “Nor will Texas accept photo ID cards issued by the U. S. Department of Veterans’ Affairs.”

A few people have pointed me to material from Texas which seems to suggest that these cards would be acceptable as a form of military identification. Veterans ID cards do not expire, and therefore they seem to meet the Texas requirement: “a United States military identification card that contains the person’s photograph that has not expired or that expired no earlier than 60 days before the date of presentation.” (my emphasis)

By way of an update, he added: The Texas Secretary of State’s office has responded via Twitter: “Veterans Affairs ID cards are an acceptable form of photo ID in TX.

In response, Justice Ginsburg revised her dissent, as noted by Lyle Denniston over at SCOTUSblog:

In ticking off her objections, Ginsburg wrote that Texas would not even accept “photo ID cards issued by the U.S. Department of Veterans’ Affairs.”  On Wednesday, the Justice conceded that that comment was incorrect.  That kind of ID card, she said through the Court’s public information office, is “an acceptable form of photo identification for voting in Texas.”  So she simply deleted the sentence, and reissued the opinion.  The Court also said that she had made “small stylistic changes” on two pages of her opinion, and that the corrected version could be read on the Court’s website.

Nothing groundbreaking, but noteworthy nonetheless. Meanwhile, kudos to Professor Hasen (and his tipsters) for helping to get the official record straight.

Re correcting the official record, see: Adam Liptak, “Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing,” New York Times, May 24, 2014 (“The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include ‘truly substantive changes in factual statements and legal reasoning,’ said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.”).

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Marian Anderson & Justice Black, April 9, 1939

Harold Ickes & Marian Anderson

Harold Ickes & Marian Anderson

I was just watching a WETA segment on our national parks when I came upon the Marian Anderson story and how the Daughters of the American Revolution refused to let her perform at Constitution Hall, which they owned.

Upset by the incident, Eleanor Roosevelt urged Harold Ickes (the former president of the Chicago NAACP & then Secretary of the Interior) to arrange for the opera singer to perform at the Lincoln Memorial. Ms. Anderson performed there on Easter Sunday, April 9, 1939, to a crowd of 75,000 admiring onlookers. The event was also broadcast on national radio.

Of course, all of this and more are well known. What is far less known is that invitations were sent out to the all of the Justices of the Supreme Court.  (See Gerald T. Dunne, Hugo Black & the Judicial Revolution 304 (1977)). One Justice accepted, which brings me back to my public television story.

Justice Hugo Black, 9 April 1939

Justice Hugo Black, 9 April 1939

If you go to the YouTube clip of the Anderson concert, you will see Justice Black in the audience (1 minute & 19 seconds into it).

By that time in 1939 Justice Black had been on the Court for some 20 months — this 15 years before Brown. Most likely, word of Justice Hugo Black’s solo appearance made its way to Alabama, his home state. And yet, he was there (see pic) and the newsreels captured it all, too.

For an account of the concert and its historical significance, see Raymond Arsenault, The Sound of Freedom: Marian Anderson, the Lincoln Memorial, & the Concert that Awakened America (2009).

 

 

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Need an alternative to the third party doctrine? Look backwards, not forward. (Part I)

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In light of the renewed discussion on the future of the third party doctrine on this blog and elsewhere (much of it attributable to Riley), I’d like to focus my next couple of posts on the oft-criticized rule, with the aim of exploring a few questions that will hopefully be interesting* to readers. For the purpose of these posts, I’m assuming readers are familiar with the third party doctrine and the arguments for and against it.

I’ll start with the following question: Let’s assume the Supreme Court decides to scale back the third party doctrine.  Where in the Court’s Fourth Amendment jurisprudence should the Justices look for an alternative approach?  I think this is an interesting and important question in light of the serious debate, both in academia and on the Supreme Court, about the third party doctrine’s effect on privacy in the information age.

One answer, which may represent the conventional wisdom, is that there simply is nothing in the Supreme Court’s existing precedent that supports a departure from the Court’s all or nothing approach to Fourth Amendment rights in Smith and Miller.  According to this answer, the Court’s only choice if it wishes to “reconsider” the third party doctrine is to create new, technology specific rules that address the problems of the day.  (I’ve argued elsewhere that existing Fourth Amendment doctrine doesn’t bind the Court to rigid applications of its existing rules in the face of new technologies.)

A closer look at the Court’s Fourth Amendment jurisprudence suggests another option, however. The Supreme Court has not applied the underlying rationale from its third party doctrine cases to all forms of government intrusion.  Indeed, for almost a century the Supreme Court has been willing to depart from the all or nothing approach in another Fourth Amendment context: government searches of dwellings and homes.  As I’ll discuss below, the Supreme Court has used various tools—including the implied license rule in last year’s Jardines, the standard of “common understandings,” and the scope of consent rules in co-habitant cases—to allow homeowners, cohabitants, tenants, hotel-guests, overnight guests, and the like maintain Fourth Amendment rights against the government even though they have given third parties access to the same space.

In other words, it is both common sense and black letter law that a person can provide third parties access to his home for a particular purpose without losing all Fourth Amendment rights against government intrusion. Letting the landlord or the maid into your home for a limited purpose doesn’t necessarily give the police a license to enter without a warrant—even if the police persuade the landlord or the maid to let them in. Yet the Court has abandoned that type of nuance in the context of informational privacy, holding that sharing information with a third party means forgoing all Fourth Amendment rights against government access to that information (a principle that has eloquently been described as the “secrecy paradigm”). As many have noted, this rule has had a corrosive effect on Fourth Amendment rights in a world where sensitive information is regularly shared with third parties as a matter of course.

Why has the Court applied such a nuanced approach to Fourth Amendment rights when it comes to real property and the home, but not when it comes to informational privacy?  And have changes in technology undermined some of the rationale justifying this divergence? These are questions I’ll explore further in Part II of this post; in the meantime I’d love to hear what readers think about them. I’ll spend the rest of this post providing some additional background on the Court’s approach to privacy in the context of real property searches.

More after the jump.

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FAN 21 (First Amendment News) — Looking Back on the 2013-2014 Term & on The Roberts Court’s Overall Free Speech Record

What a term it has been for the Roberts Court and free speech – Election campaign laws, union dues, government employee speech, abortion clinic buffer zones, and a presidential protest case. Also set out below are some related First Amendment events that occurred this Court Term along with a list of new books on free speech. Further down are some facts and figures concerning the Roberts Court’s overall record on free speech.

Disorder in the Court: Recall, too, that back in May there was a disruption inside the Court: “I arise on behalf of the vast majority of the people of the United States who believe that money is not speech,” the protester said, “corporations are not people and that our democracy should not be for sale to the highest bidder.” Before he was arrested, Noah Newkirk of Los Angeles also got in a few more words of protest: “overturn Citizens United” and “the people demand democracy.” Even more incredible, it was captured on video and released on the Web.

35 Cases: This Term the Roberts Court decided five First Amendment free expression cases along with three related free speech cases. The Justices also denied review in a campaign finance case while granting review in “true threats” case. All in all, the Roberts Court has now decided 35 free speech cases on First Amendment grounds.

→ “In Group Bias”: And then there was the empirical study by Professors Lee EpsteinChristopher M. Parker, & Jeffrey A. Sega entitled “Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment.”

Amending the 1st?: While much of this was going on, Justice John Paul Stevens released a book urging, among other things, that the First Amendment be amended. In the same vein, a Senate subcommittee first heard and then voted in favor of an amendment to the First Amendment.

→ New Books: Here are some of the new books that were published during this Court Term:

  1. Lee Levine & Stephen Wermiel, The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan
  2. Ronald Collins & David Skover, When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment
  3. Shaun McCutcheon, Outsider Inside the Supreme Court: A Decisive First Amendment Battle
  4. Robert Post, Citizens Divided: Campaign Finance Reform and the Constitution
  5. Robert E. Mutch, Buying the Vote: A History of Campaign Finance Reform (2014)
  6. Richard Fossey & Todd A. DeMitchell, Student Dress Codes and the First Amendment: Legal Challenges and Policy Issues (2014)
  7. Laurence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court & The Constitution (2014)

→ Law Review: A Harvard Law Review Symposium on free speech was published recently.

→ Flashback: Cass Sunstein on the 50th Anniversary of NYT v. Sullivan

“[A]mid the justified celebration, we should pay close attention to the dark side of New York Times vs. Sullivan. While it has granted indispensable breathing space for speakers, it has also created a continuing problem for public civility and for democratic self-government. . . . False accusations are hardly new. But New York Times vs. Sullivan can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S.” [Source: here]

→ The Play’s the Thing: Arguendo, a play about Barnes v. Glen Theatre, Inc. was performed earlier this year. 

Remember: This year we also lost a noted First Amendment figure with the passing of Professor George Anastaplo.

Supreme_Court_US_20102013-14 Term: First Amendment Cases

  1. [JR: 5-4]          McCutcheon v. FEC
  2. [RBG: 9-0]      Woods v Moss
  3. [SS: 9-0]         Lane v. Franks (commentary)
  4. [JR: 9-0]         McCullen v. Coakley
  5. [SA: 5-4]         Harris v. Quinn (symposium)

→ Here is the lineup of Justices writing majority opinions this term in First Amendment free expression cases:

  • Chief Justice Roberts             McCutcheon v. FEC   (vote: 5-4) &
  •                                                McCullen v. Coakley   (vote: 9-0)
  • Justice Ginsburg                    Wood v. Moss              (vote: 9-0)
  • Justice Sotomayor                 Lane v. Franks            (vote: 9-0)
  • Justice Alito                           Harris v. Quinn            (vote: 5-4)

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FAN 20.1 (First Amendment News) – Supreme Court Hands Down Abortion Buffer Zone Case (9-0)

Thursday, June 29, 10:28 a.m.: The Supreme Court just handed down its decision in McCullen v. Coakley (9-0).

→ The opinion can be found here.

→ Yet another First Amendment majority opinion by the Chief Justice (that makes 12).

Commentary by Tom Goldstein at SCOTUSblog: The abortion protests ruling is relatively narrow. The Court makes clear that states can pass laws that specifically ensure access to clinics. It holds that states cannot more broadly prohibit speech on public streets and sidewalks. It also notably rejects the protesters’ broadest arguments that such restrictions require strict constitutional scrutiny and are viewpoint based. A state can go beyond narrow laws that block obstructions to clinics, and more broadly ban abortion protests, only if it builds a record showing that the narrower measures don’t work. The S. Ct. majority says nothing about its prior buffer zone ruling in Hill, the validity of which now seems in real question. 

→ Harris v. Quinn (opinion to be handed down this Monday).

Review still pending in Minority Television Project, Inc. v. Federal Communications Commission, which involves a federal law that prohibits public radio and television stations from transmitting paid advertisements for for-profit entities, issues of public importance or interest, and political candidates. The 9th Circuit, sitting en banc, ruled against the broadcasters. Chief Judge Alex Kozinski (joined by Judge John Noonan) dissented, and Judge Consuelo Callahan concurred in part and dissented in part.

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Petitioner: Eleanor McCullen (pic by Steven Senne)

The Abortion Clinic Buffer Zone Case: McCullen v. Coakley

Facts: “Three of the plaintiffs regularly engage in ‘sidewalk counseling’ at the Boston clinic. McCullen parks her car on Commonwealth Avenue and festoons it with pro-life signage; Zarrella sometimes prays aloud; and Cadin from time to time holds aloft a large pro-life sign. A fourth plaintiff, Smith, has demonstrated outside the Boston clinic for many years. He has displayed a crucifix, sung religious hymns, and prayed aloud. His prayers are meant to be heard by passersby in hopes of persuading them to opt against abortion. He sometimes brings a loudspeaker to amplify group prayers that occur outside the clinic on the second Saturday of every-month and on Good Friday.” (Source: 1st Cir. opinion)

A Massachusetts law provided for a fixed 35-foot buffer zone around the entrances, exits, and driveways of abortion clinics.

The issues in the case were:

(1) Whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; and

(2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled.

The First Circuit rejected the Plaintiff’s First Amendment claims. The Supreme Court reversed.

Vote: 9-0

Majority Opinion: Chief Justice Roberts

Concurring Opinion: Justice Scalia (joined by Justices Kennedy and Thomas) concurs in judgment. Justice Alito wrote a separate opinion, concurring in the judgment.

Justice Scalia argues that Hill v. Colorado  should be overruled, which today’s opinion does not formally do.

Counsel

  • Mark L. Rienzi for Petitioners
  • Jennifer Grace Miller for Respondents
  • Ian H. Gershengorn for United States (amicus curiae for Respondents)

Amicus Briefs

Among those filing amicus briefs were the following:

  • Cato Institute (Ilya Shapiro) for Petitioners
  • American Center for Law & Justice (Jay Sekulow) for Petitioners
  • Rutherford Institute (John W. Whitehead) for Petitioners
  • Michigan & 11 other States (Bill Schuette) for Petitioners
  • ACLU (Steven R. Shapiro) for Neither Party
  • New York State, et  al (Eric T. Schneiderman) for Respondents
  • Planned Parenthood (Walter Dellinger) for Respondents
  • American College of Obstetricians and Gynecologists, et al (Jack R. Bierig) for Respondents
  • National League of Cities, et al (Mary Jean Dolan) for Respondents
  • Anti-Defamation League, et al (Jeffrey S. Robbins) for Respondents
  • National Abortion Federation, et al (Maria T. Vullo) for Respondents

Hat tip to SCOTUSblog for its remarkable real-time coverage of today’s decisions.

NOTE: My next scheduled FAN column will provided detailed information re the Roberts Court’s overall record in First Amendment freedom of expression cases. It will also include facts and figure re the Court’s 1-A work this term.

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FAN 20 (First Amendment News) — New Book, New Legislation, New Study & More News

No First Amendment cases from the Supreme Court today. Most likely tomorrow (perhaps Monday?).

→ What’s left? The only First Amendment free expression cases left to be decided this Term are:

  1. McCullen v. Coakley
  2. Harris v. Quinn

New Book — Tribe & Matz on Roberts Court & Free Speech 

Laurence Tribe

Laurence Tribe

In May of 2013 I profiled a forthcoming book, which has just been released. “Forty-five years after the publication of his first book (Technology: Process of Assessment and Choice), Laurence Tribe is preparing to release another book, tentatively titled Uncertain Justice (2014).” I wrote that in SCOTUSblog. “This forthcoming offering,” I added, “will come out six years after Tribe’s last book (The Invisible Constitution). The book will be the Harvard Law professor’s sixteenth. Like a few of his other works, Uncertain Justice will be co-authored – this time Joshua Matz is his literary partner on this work on the Roberts Court.” Well, wait no more; here it is: Uncertain Justice: The Roberts Court & The Constitution (Henry Holt, 2014). Mr. Matz is a Harvard law graduate who clerked for Judge Stephen Reinhardt and will soon clerk for Justice Anthony Kennedy.

Joshua Matz

Joshua Matz

While Uncertain Justice has received some early favorable reviews, my focus here is on only two chapters in the book: Chapter 3 (“Campaign Finance: Follow the Money”) and Chapter 4  (“Freedom of Speech: Sex, Lies & Video Games”). Together, these chapters consume 165 of the book’s 320 pages of text.

↓→ Campaign Finance

“The truth is somewhere in the middle.”

In a galvanized world of frenzied litmus-test beliefs over the role of money in our electoral system, Tribe and Matz (T&M) can be refreshingly open-minded: “It is easy to lose sight of the fact that Citizens United posed incredibly difficult questions about free speech, popular sovereignty, and political equality,” they write. “Deciding when Congress can ban certain disfavored speakers from the marketplace of ideas or limit how much they can speak is no easy task. It certainly isn’t outlandish to conclude, as the Court did, that free speech rights must prevail over hard-to-document fears that corporate wealth will distort public discourse or corrupt politicians.”

Then again, they do speak of the “Roberts Court’s broader agenda of deregulating campaign finance” reforms.  On that score, they maintain that by “reshaping the architecture of money, influence, and political organization, the Roberts Court is transforming how America conducts — and funds — politics.” In an endnote (p. 342, n. 64) they state: “While we do not purport to identify specific instances in which electoral outcomes shifted because of trends triggered by Citizens United, it seems to us highly likely that this has occurred in at least some races.”

While the authors freely offer the views of the “many critics of Citizens United,” they also concede that “Citizens United was a hard case because the Court faced a choice among evils.” With welcome objectivity and nuance, they add: “it’s extremely hard to determine whether any given campaign finance rule has a big enough impact to survive judicial scrutiny.  Judges have long implemented the First Amendment by requiring — among other things — that  restrictions on speech demonstrably achieve a legitimate goal. The causes of political corruption in America,” they stress, “and the reasons why politicians act the way they do . . . are many and complex.  Money in politics is only part of that story . . . .”

On the one hand, T&M understand how the Roberts Court’s narrow definition of corruption might be viewed as necessary in order to foster a “workable” body of First Amendment law sensitive to the concerns of free speech. On the other hand, they think that the Citizens United Court might have resorted to a “more modest” course of action that would “have left more room for politicians to use campaign finance laws, carefully reviewed by courts, as one tool among many in their efforts to restore public confidence in government integrity.” In other words, they tread cautiously in this ideological minefield.

So what should reformers do? In an endnote, Professor Tribe discloses that he “assisted Representative Adam Schiff of California in drafting a proposed [constitutional] amendment that was introduced in the 112th Congress.” That said, no defense of such radical constitutional surgery is offered in the book. In fact, the authors skip quickly past calls for constitutional amendments. Instead, they counsel that “critics of Citizens United would be well served to move past issues like corporate personhood and money’s status as speech. Instead, they might aim to ensure greater transparency in our brave new world of Super PACs and 501(c) organizations.” {See DISCLOSE Act item below}

If there were ever to be a national forum on the First Amendment and campaign finance reform, the organizers would be wise to invite Messrs. Tribe and Matz, if only to add some light in an otherwise overheated universe.

Note: Since Uncertain Justice was completed in “early 2014,” the Court’s April 2014 ruling in McCutcheon v. FEC (2014) is not discussed.

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SCOTUSblog’s Sisyphean Stone

UnknownMore troubling news for SCOTUSblog:

“This was a morning of ironies.  At 9:30 a.m., six members of the blog staff were live-blogging the Supreme Court’s orders, followed by opinions at 10 a.m.  There were 10,000 readers.  The Standing Committee of Correspondents chose that time to release its ruling denying our appeal of its revocation of our press credential.  We learned about it from Twitter.”

“Today, it settled on the fact that practicing lawyers publish and write for the blog.  The Committee takes the view that the blog is not editorially independent from my law firm or from other lawyers who write for the blog.  As a consequence, the Committee found, the blog violates two independent requirements under the Committee’s Rules: any credentialed publication must be editorially independent from an organization that (i) “lobbies the federal government”; or (ii) ‘is not principally a general news organization.'”

“Notably, the Committee finds that no editorial policy can establish editorial independence.  The publication’s own rules cannot overcome the taint created by its personnel.  So the Committee recognizes our rules forbidding any staff member from being involved in the coverage of any case in which the law firm is involved.  But because the firm and the publication are not “separate” in terms of who works for each, the former has the capacity to “influenc[e] editorial content.”  The Committee explains that it would reconsider its decision only if the blog were “to separate itself from Goldstein & Russell and any other lawyer or law firm who is arguing before the Supreme Court” (emphasis added) — Tom Goldstein

Bottom line: “The next step is for us to appeal the Committee’s decision to the Senate Rules Committee.  We do not know how long that will take.” (see link above for full statement)

Disclosure: I am the book editor for SCOTUSblog.  I have not, however, discussed this post or any other with anyone from SCOTUSblog.

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Supreme Court Gives Patent Law New Bite (Definiteness)

I want to thank Danielle Citron and the other folks at Concurring Opinions for inviting me to blog.  As Danielle mentioned in her introduction, I am a law professor at the University of Colorado Law School focused on technology and law.  (More info about me is here: http://harrysurden.com; Twitter: @Harry Surden).

Patent Law’s Definiteness Requirement Has New Bite

The Supreme Court may have shaken up patent law quite a bit with its recent opinion in the Nautilus v. Biosig case (June 2, 2014).

At issue was patent law’s “definiteness” requirement, which is related to patent boundaries. As I (and others) have argued, uncertainty about patent boundaries (due to vague, broad and ambiguous claim language), and lack of notice as to the bounds of patent rights, is a major problem in patent law.

I will briefly explain patent law’s definiteness requirement, and then how the Supreme Court’s new definiteness standard may prove to be a significant change in patent law. In short – many patent claims – particularly those with vague or ambiguous language – may now be vulnerable to invalidity attacks following the Supreme Court’s new standard.

Patent Claims: Words Describing Inventions

In order to understand “definiteness”, it’s important to start with some patent law basics.  Patent law gives the patent holder exclusive rights over inventions – the right to prevent others from making, selling, or using a patented invention.  How do we know what inventions are covered by a particular patent?  They are described in the patent claims. 

Notably, patent claims describe the inventions that they cover using (primarily) words.

For instance, in the Supreme Court case at issue, the patent holder – Biosig – patented an invention – a heart-rate monitor.  Their patent used the following claim language to delineate their invention :

I claim a heart rate monitor for use in association with exercise apparatus comprising…

live electrode

and a first common electrode mounted on said first half

 In spaced relationship with each other…”

Screen Shot 2014-06-06 at 9.32.30 AM

So basically, the invention claimed was the kind of heart rate monitor that you might find on a treadmill.   The portion of the claim above described one part of the overall invention – two electrodes separated by some amount of space.  Presumably the exercising person holds on to these electrodes as she exercises, and the device reads the heart rate.

( Note: only a small part of the patent claim is shown – the actual claim is much longer)

Patent Infringement: Comparing Words to Physical Products

So what is the relationship between the words of a patent claim and patent infringement?

In a typical patent infringement lawsuit, the patent holder alleges that the defendant is making or selling some product or process (here a product) that is covered by the language of a patent claim (the “accused product”).  To determine literal patent infringement, we compare the words of the patent claim to the defendant’s product, to see if the defendant’s product corresponds to what is delineated in the plaintiff’s patent claims.

For instance, in this case, Biosig alleged that Nautilus was selling a competing, infringing heart-rate monitor.  Literal patent infringement would be determined by comparing the words of Biosig’s patent claim (e.g. “a heart rate monitor with a live electrode…”) to a physical object –  the competing heart-rate monitor product that Nautilus was selling (e.g. does Nautilus’ heart rate monitor have a part that can be considered a “live electrode”)?

Literal patent infringement is determined by systematically marching through each element (or described part) in Biosig’s patent claim, and comparing it to Nautilus’s competing product. If Nautilus’ competing product has every one of the “elements” (or parts) listed in Biosig’s patent claim, then Nautilus’s product would literally infringe Biosig’s patent claim.

If patent infringement is found, a patent holder can receive damages or in some cases, use the power of the court  to prevent the competitor from selling the product through an injunction.

Patent Claims – A Delicate Balance with Words

Writing patent claims involves a delicate balance.  On the one hand, a patent claim must be written in broad enough language that such a patent claim will cover competitors’ future products.

Why?  Well, imagine that Biosig had written their patent claim narrowly.  This would mean that in place of the broad language actually used (e.g. “electrodes in a spaced relationship”), Biosig had instead described the particular characteristics of the heart-rate monitor product that Biosig sold.  For instance, if Biosig’s heart-rate monitor product had two electrodes that were located exactly 4 inches apart, Biosig could have written their patent claim with language saying, “We claim a heart rate monitor with two electrodes exactly 4 inches apart” rather than the general language they actually used, the two electrodes separated by a “spaced relationship”

However, had Biosig written such a narrow patent, it might not be commercially valuable.  Competing makers of heart rate monitors such as Nautilus could easily change their products to “invent around” the claim so as not to infringe. A competitor might be able to avoid literally infringing by creating a heart-rate monitor with electrodes that were 8 inches apart.  For literal infringement purposes, a device with electrodes 8 inches apart would not literally infringe a patent that claims electrodes “exactly 4 inches apart.”

From a patent holder’s perspective, it is not ideal to write a patent claim too narrowly, because for a patent to be valuable, it has to be broad enough to cover the future products of your competitors in such a way that they can’t easily “invent around” and avoid infringement.  A patent claim is only as valuable (trolls aside) as the products or processes that fall under the patent claim words.  If you have a patent, but its claims do not cover any actual products or processes in the world because it is written too narrowly, it will not be commercially valuable.

Thus, general or abstract words (like “spaced relationship”) are often beneficial for patent holders, because they are often linguistically flexible enough to cover more variations of competitors’ future products.

Patent Uncertainty – Bad for Competitors (and the Public)

By contrast, general, broad, or abstract claim words are often not good for competitors (or the public generally).  Patent claims delineate the boundaries or “metes-and-bounds” of patent legal rights  Other firms would like to know where their competitors’ patent rights begin and end.  This is so that they can estimate their risk of patent liability, know when to license, and in some cases, make products that avoid infringing their competitors’ patents.

However, when patent claim words are abstract, or highly uncertain, or have multiple plausible interpretations, firms cannot easily determine where their competitor’s patent rights end, and where they have the freedom to operate.  This can create a zone of uncertainty around research and development generally in certain areas of invention, perhaps reducing overall inventive activity for the public.

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