When Prescribing Cures for “Overpriced” Drugs, Government’s First Duty Is Do No Harm

By Glenn G. Lammi, Chief Counsel, Washington Legal Foundation’s Legal Studies Division, and Corbin K. Barthold, WLF Litigation Division, Litigation Counsel.

pillsOverpriced. Excessive. Escalating. Gouging. Politicians and talking heads of every political stripe utter such words about the cost of prescription drugs with alarming regularity. Something must be done, they proclaim. But the purported problem is being considered, as so many are in Washington, in a vacuum, with little understanding of a profoundly complex pharmaceutical marketplace. Poorly informed and in a rush to act, regulators and elected officials are proposing cures that not only flout legal and constitutional requirements and protections, but also imperil biomedical progress and the Americans who benefit from it. Continue reading “When Prescribing Cures for “Overpriced” Drugs, Government’s First Duty Is Do No Harm”

Will a SCOTUS Grant in Berkheimer v. HP Finally Get Alice Out of Wonderland?

Kaminski_Jeffri_LRFeatured Expert Contributor, Intellectual Property—Patents

Jeffri A. Kaminski, Venable LLP

The future of patent-infringement challenges under 35 U.S.C. § 101 may be in the hands of the Solicitor General of the United States. The defendant in Berkheimer v. Hewlett Packard petitioned the U.S. Supreme Court to grant certiorari and overturn a U.S. Court of Appeals for the Federal Circuit decision that applied the high court’s Alice Corporation v. CLS Bank International decision. Hewlett Packard petitioned after the Federal Circuit denied rehearing en banc, a denial that included an exasperated concurrence by two judges seeking further guidance on how the court should interpret Alice. On January 7, the Supreme Court requested the views of the Solicitor General. Continue reading “Will a SCOTUS Grant in Berkheimer v. HP Finally Get Alice Out of Wonderland?”

Still Marching to its Own Drummer: The Eastern District of Texas on Patent Venue

Kaminski_Jeffri_LRFeatured Expert Contributor, Intellectual Property—Patents

Jeffri A. Kaminski, Venable LLP

The U.S. Court of Appeals for the Federal Circuit’s interpretation of the patent venue statute, 35 U.S.C. § 1400(b), as articulated in TC Heartland LLC v. Kraft Foods Group Brands LLC, has created a degree of uncertainty about the proper place to bring patent infringement suits. For example, see our previous posts on this issue: Supreme Court Alters Patent Venue Landscape: Eastern District Texas No Longer the Heartland of Patent Litigation; and Change in Law of Patent Venue May Not Be Get Out of Texas Card.

In Seven Networks v. Google, Eastern District of Texas Judge Rodney Gilstrap provided direction for litigants bringing or defending suits in venues in which they are not incorporated. Prior to TC Heartland, courts interpreted the patent venue statute broadly and generally allowed suits to be brought in any venue where an allegedly infringing device was sold. After TC Heartland, the venue paradigm has been less clear. Continue reading “Still Marching to its Own Drummer: The Eastern District of Texas on Patent Venue”

U.S. Makes Unprecedented Arrest of Chinese Government Official Accused of Economic Espionage

Brower_GregMoschellaWilliamE@2xFeatured Expert Contributor, White Collar Crime & Corporate Compliance

Gregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC, with William E. Moschella, a Shareholder in the firm’s Washington, DC office.

The Department of Justice (DOJ) recently announced an indictment charging a Chinese government official with attempting to steal trade secrets and other sensitive information from an American aerospace company.  This is not the first indictment of its kind.  In fact, in announcing the indictment, Assistant Attorney General John Demers remarked that “[t]his is not an isolated incident.”  He explained that this case “is part of an overall economic policy of developing China at American expense.”  What makes this case unique is that fact that the Chinese defendant is now in U.S. custody after being extradited from Belgium.  Continue reading “U.S. Makes Unprecedented Arrest of Chinese Government Official Accused of Economic Espionage”

WLF Supreme Court Preview Briefing Delves into Cases and Petitions Affecting Free Enterprise

Our October Term 2018 preview aired live at 12:30 on September 18. Thomas Goldstein of Goldstein & Russell, P.C. moderated a panel that featured Professor John Yoo of UC Berkeley School of Law; Shay Dvoretzky of Jones Day; and Beth Brinkmann of Covington & Burling LLP.

Washington Legal Foundation has filed amicus briefs in four cases currently on the Court’s October 2018 docket and in support of five certiorari petitions:

Merits cases

Cert. Petitions

Relevant WLF Publication

Air & Liquid Systems Corp. v. Devries: Asbestos Litigation’s “Bare Metals” Defense Goes Before the U.S. Supreme Court

Monkey Selfie Update: 9th Circuit Judge Calls for En Banc Rehearing Vote on Ruling

1525792504758-naruto2Two weeks ago, we posted a commentary on the so-called monkey selfie case decided by the U.S. Court of Appeals for the Ninth Circuit, Naruto v. Slater. The court unanimously held that Naruto, a photogenic Indonesian macaque, did not have statutory standing to sue the owner of the selfie-taking camera for copyright infringement. The majority opinion did find that Naruto had Article III standing, a conclusion strongly criticized in a concurring opinion.

Law360 reported yesterday that “an unnamed Ninth Circuit judge had requested sua sponte that the full court vote on whether to rehear the case.” The article speculated that Judge N. Randy Smith, who authored the concurrence in the three-judge-panel opinion, may have made the request. Judge Smith had written that once the court found People for the Ethical Treatment of Animals could not act as a “next friend” to Naruto and prosecute the suit on his behalf, the standing inquiry should have ceased.

A second possibility is that the author of the Slater majority opinion, Judge Carlos Bea, called for the en banc vote. His opinion explicitly called for the Ninth Circuit to reconsider its 2004 decision, Cetacean Cmty. v. Bush, which held that non-humans represented by “competent counsel” can have Article III standing to sue without a “next friend.” The court “wrongly decided” Cetacean, Judge Bea wrote in Slater.

The May 25 Slater docket filing called for new briefs on the rehearing issue, which are due on June 15.

“Monkey Selfie” Copyright Ruling Reflects Key Appeals Court’s Wayward Standing-to-Sue Jurisprudence

1525792504758-naruto2
Photo via Wikimedia Commons

We’ve been on a bit of a standing-to-sue kick in this space lately (here, and here, for instance) and in Washington Legal Foundation’s publishing program (here and here). Article III’s standing requirement, the U.S. Supreme Court has explained, is “built on separation-of-powers principles” and “serves to prevent the judicial process from being used to usurp the powers of the political branches.” From a more practical vantage, a predictable body of law that confines courts’ jurisdiction to lawsuits alleging actual, redressable harms helps to limit defendants’—especially business defendants’—litigation costs by facilitating early dismissal of questionable claims.

Two WLF publications referenced above criticize the U.S. Court of Appeals for the Ninth Circuit for issuing decisions that significantly relax the standing requirement of “injury in fact.” While reaching the right result, another recent Ninth Circuit decision, in the famed “monkey selfie” copyright case, exemplifies how truly off course the court’s standing jurisprudence has wandered. Continue reading ““Monkey Selfie” Copyright Ruling Reflects Key Appeals Court’s Wayward Standing-to-Sue Jurisprudence”