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Administrative Law

Courthouse Steps: Oral Argument in National Association of Manufacturers v. Department of Defense

Environmental Law & Property Rights Practice Group Teleforum Wednesday, October 11, 02:00 PMFederalist Society Teleforum Conference Call

Multiple legal challenges to the Army Corps of Engineers and the Environmenatl Protection Agency’s controversial rule redefining “waters of the United States” (WOTUS) raise two important questions: (1) is the rule valid and (2) which is the proper venue for challenging such a rule – the federal district courts or the federal courts of appeals. The first question is on hold pending publication of a revised rule mandated by Executive Order.  The second question will now be decided by the U.S. Supreme Court.

The Supreme Court has granted review to address the venue question and oral argument is scheduled for October 11, 2017. The issue is important because it is unclear where and when regulated parties can challenge certain types of federal rules interpreting the Clean Water Act.  Filing a claim in the wrong court can result in losing the right to challenge the rule at all. Under a plain reading of Act, affected parties have six years to challenge the WOTUS rule or any subsequent rule defining the agency's general jurisdiction under the Act in a federal district court. But under the EPA's reading of the Act, affected parties would have only six months to challenge the rule in a federal court of appeals. Various State, industry, and landowner groups urge the High Court to rely on a plain reading of the Act to maximize the opportunity for the regulated public to challenge rules that define the scope of the Act.

Is There a "Death Squad" at the U.S. Patent Office?: Examining the Patent Trial and Appeal Board

Regulatory Transparency Project Teleforum Friday, August 18, 12:00 PMFederalist Society Teleforum Conference Call

In 2011, Congress created a new administrative tribunal in the U.S. Patent Office with the power to cancel previously granted patents, called the Patent Trial and Appeal Board (PTAB).  The PTAB was created to provide an efficient and inexpensive administrative process for eliminating low-quality patents – what are called “bad patents.” Despite its laudable purpose, the PTAB has earned a reputation among some as a prime example of regulatory overreach.  The PTAB’s critics cite a wide range of concerns including inadequate due process protections and bias against patents.  A former federal appellate chief judge even referred to PTAB administrative judges as “patent death squads.”  So, is the PTAB indeed harming the property rights that have helped to drive the U.S. innovation economy for over 200 years or, is it functioning as intended?  What are the concerns of its detractors?  If these concerns are valid, does the PTAB need simple reform or more?

This teleforum is held in conjunction with the Monday, August 14 release of a paper authored by members of the Regulatory Transparency Project’s Intellectual Property Working Group.  The paper is called “Crippling the Innovation Economy: Regulatory Overreach at the Patent Office.”  This paper, which discusses this new administrative tribunal at the Patent Office, is available for viewing and download at RegProject.org.

Featuring: 

  • Josh Malone, Inventor, Bunch O Balloons 

  • Kristen Osenga, Professor, University of Richmond School of Law 

  • Brian O’Shaughnessy, Partner, Dinsmore & Shohl LLP and President, Licensing Executives Society, USA & Canada

  • Devon Westhill, Director, Regulatory Transparency Project (Moderator) 

Patents and Antitrust, Worldwide - Podcast

Intellectual Property Law Practice Group Podcast
Maureen K. Ohlhausen, Alexander Okuliar August 17, 2017

The smartphone patent wars have caused a great deal of litigation and consternation. As global patent litigation has accelerated, an international arms race characterized by competing alliances and massive portfolio acquisitions ensued. One recurring claim was "hold-up": certain patent owners, having given assurances that they would license their essential technologies on reasonable and nondiscriminatory (RAND) terms, sought to enjoin smartphone makers from practicing industry standards. Charged with protecting consumers, antitrust enforcers experienced pressure to do something.

The FTC and other competition agencies responded aggressively, clamping down on perceived efforts by owners of RAND-encumbered SEPs to hold-up standard implementers. They happened upon the rule that such patentees violate antitrust law if they try to enjoin a “willing licensee”—essentially a “no-injunction rule.” While that approach has intuitive appeal, is it consistent with core antitrust principles? Does the no-injunction properly consider whether the relevant conduct harms competition?  Have the U.S. Federal Trade Commission's actions emboldened foreign competition agencies to act aggressively?  These and other questions were addressed.

Featuring:

  • Hon. Maureen K. Ohlhausen, Acting Chairman, Federal Trade Commission
  • Mr. Alex Okuliar, Partner, Orrick, Herrington & Sutcliffe LLP

Benefit-Cost Analysis and the Courts - Podcast

Administrative Law & Regulation Practice Group Podcast
Emily Hammond, Eugene Scalia August 16, 2017

This call highlighted recent trends in how the courts have considered benefit-cost analysis when reviewing regulations under various statutes. Our experts examined the pros and cons of greater judicial review of regulatory analysis and the effect of judicial review on agency behavior. Professor Emily Hammond, Professor of Law at The George Washington University Law School, and Eugene Scalia, Partner at Gibson, Dunn & Crutcher LLP,  joined us to discuss these important topics.  

Featuring:

  • Emily Hammond, Professor of Law, The George Washington University Law School
  • Eugene Scalia, Partner, Gibson, Dunn & Crutcher LLP