On June 23, 2016, the United States Supreme Court issued a 4-3 decision in Fisher v. University of Texas, upholding the University’s affirmative action program. It also announced a 4-4 tie in United States v. Texas, affirming the decision of the Fifth Circuit to block President Obama’s executive order on immigration. Our experts discussed both developments and answered audience questions.
Prof. Josh Blackman, Assistant Professor of Law, South Texas College of Law
Roger B. Clegg, President and General Counsel, Center for Equal Opportunity
Hon. Hans A. von Spakovsky, Senior Legal Fellow, The Heritage Foundation
On the eve of the British referendum to remain in the European Union, Phillip Booth of the Institute of Economic Affairs and Ilya Somin of George Mason University Law School discussed broader issues of devolution and secession, such as the extent to which secession should be allowed from various political systems and whether or not a right to it should be institutionalized. The also took a closer look at the possibility of a British exit, and what that would mean for the European Union and Britain as a whole.
Prof. Philip Booth, Editorial and Programme Director at the Institute of Economic Affairs and Professor of Insurance and Risk Management at Cass Business School
Prof. Ilya Somin, Professor of Law, George Mason University School of Law
On June 20, 2016, the Supreme Court decided Cuozzo Speed Technologies v. Lee. In this case, the Supreme Court examined two provisions of the inter partes review, a proceeding created to provide a cost-effective alternative to litigation for resolving certain challenges to patent validity.
Cuozzo Speed Technologies (Cuozzo) owns a speed limit indicator patent. Garmin International (Garmin) petitioned the US Patent and Trademark Office (PTO) for inter partes review of Cuozzo’s patent. The Patent Trial and Appeal Board of the PTO agreed to reexamine claim 17, as requested by Garmin, as well as claims 10 and 14. After the inter partes review proceeding, the Board concluded that all three claims (10, 14, and 17) were invalid. Cuozzo appealed to the U.S. Court of Appeals for the Federal Circuit, arguing that 1) the Board improperly instituted inter partes review of claims 10 and 14, because Garmin had not challenged these claims and 2) that the Board improperly used a claim construction standard set forth by PTO regulation calling for claim terms to be given their “broadest reasonable construction,” a standard that differs from that used in district court litigation (“ordinary meaning”). A divided Federal Circuit rejected both arguments, noting that 1) decisions to institute inter partes reviews are nonappealable by statute and 2) that the application of the broadest reasonable construction standard was a reasonable exercise of the PTO’s rulemaking authority. The Supreme Court granted certiorari to review both issues.
With respect to the appealability of decisions to institute inter partes review, the Supreme Court agreed with the Federal Circuit. 35 U.S.C. § 314(d) states “The determination by the Director [of the PTO] whether to institute an inter partes review under this section shall be final and non-appealable.” The statute means what it says. With respect to the claim construction standard, the Supreme Court also agreed with the Federal Circuit, holding that the PTO has the authority to issue and abide by its broadest reasonable construction regulation.
Our expert discussed the opinion of the Court, delivered by Justice Breyer, including the Supreme Court’s reasoning behind the holdings in Cuozzo Speed Technologies, as well as a concurrence authored by Justice Thomas and an opinion concurring-in-part and dissenting-in-part written by Justice Alito and joined by Justice Sotomayor.
Prof. Kristen Osenga, Professor of Law, University of Richmond School of Law
On Monday, June 20, the United States Supreme Court released its decision in RJR Nabisco, Inc. v. The European Community. The case arose in the 2nd Circuit. The European Community, now the European Union, alleged that RJR participated in a scheme to launder illegal drug sale proceeds in Europe and attempted to sue in the United States' courts. The Court held that they could not sue under RICO, the Racketeer Influenced and Corrupt Organizations Act, because irrespective of any extraterritoriality of the law's substantive provisions, a private right of action does not overcome the presumption against extraterritoriality and thus a private plaintiff must allege and prove a domestic injury.
Cory L. Andrews, Senior Litigation Counsel, Washington Legal Foundation
On Wednesday, June 14, the D.C. Circuit Court of Appeals upheld the Federal Communications Commission’s controversial reclassification of broadband internet service as a telecommunications service subject to common carrier regulation under Title II of the Communications Act. The case, which many observers believe may ultimately end up before the United States Supreme Court, touches on major questions about the Communications Act, as well as First Amendment issues and larger administrative law controversies, including Chevron deference. Our experts discussed all of these angles and the outlook for the case going forward.
Brett A. Shumate, Partner, Wiley Rein LLP
Adam J. White, Research Fellow, Hoover Institution