Archive for August, 2018

A little bit married

Wednesday, August 15th, 2018

A little bit married

a little bit pregnant

limited nuclear war

clean coal

quite unique

complete preemption**

 

 

partially preempted?

 

partially anticipated?

partially obvious?

partially invalid?

partially infringed?

 

**”While preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility.”

Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015).

 

 

The Troll of Breckenridge

Friday, August 10th, 2018

If you find yourself near Breckenridge, Colorado, you might want to check out the town’s newest troll:

 

Judicial independence at administrative agencies

Thursday, August 9th, 2018

Judicial independence at administrative agencies seems to be a universal issue these days.  In response to a recent removal of a judge from an immigration matter, retired immigration judges and former members of the Board of Immigration Appeals recently published a letter calling on the Executive Office for Immigration Review (EOIR) to refrain from interfering with the decisions of its judges.  The letter, reproduced below, highlights beliefs and concerns that citizens would have with respect to any judicial proceeding, including one conducted  by an appeal board like the Patent Trial and Appeal Board:

“An independent judiciary is imperative to democracy.”

“[E]rrors should be corrected through the appeals process, not through interference by managers.”

“The agency therefore removed the case from the docket of a capable judge in order to ensure an outcome that would please its higher-ups.”

“[M]anagement exists to fulfill an administrative function, not to impede on the decision-making process of its judges.”

“As a democracy, we expect our judges to reach results based on what is just, even where such results are not aligned with the desired outcomes of politicians.”

You can view the entire letter below and at this [link].

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Retired Immigration Judges and Former Members of the Board of Immigration Appeals Statement in Response to Latest Attack on Judicial Independence

July 30, 2018

On Thursday, July 26, 2018, the Executive Office for Immigration Review (EOIR), in a costly and inefficient use of the agency’s resources, sent an Assistant Chief Immigration Judge to the Philadelphia Immigration Court to conduct a single preliminary hearing. Although there was no indication of any legitimate basis for doing so, the case had been taken off of the calendar of an experienced Immigration Judge in Philadelphia, apparently for the sole reason that the judge had exercised independent judgment by asking for briefs on the issue of whether the respondent had in fact received notice of the hearing. The Assistant Chief Judge (a part of EOIR’s management) ordered the respondent removed in absentia without further inquiry into such question, fulfilling the purpose for which she was sent to Philadelphia.

An independent judiciary is imperative to democracy. Immigration Judges have always struggled to maintain independence while remaining in the employ of an enforcement agency, the Department of Justice, and serving at the pleasure of a political appointee, the Attorney General. Although not entitled to the same due process safeguards as criminal proceedings, the consequences of deportation can be as harsh as any criminal penalty. As their decisions often have life-or-death consequences, Immigration Judges must be afforded the independence to conduct fair, impartial hearings. For this reason, some important due process safeguards are required in deportation proceedings, and errors should be corrected through the appeals process, not through interference by managers.

Last Thursday’s case had been remanded by Attorney General Jeff Sessions. In the absence of another explanation, it would seem that EOIR’s management did not believe Sessions’ purpose in remanding the case was for an Immigration Judge to then exercise independent judgment to ensure due process. The agency therefore removed the case from the docket of a capable judge in order to ensure an outcome that would please its higher-ups. While as former Immigration Judges and BIA Members with many decades of combined experience, we appreciate the pressures on EOIR’s leadership, such interference with judicial independence is unacceptable. EOIR’s management exists to fulfill an administrative function, not to impede on the decision-making process of its judges. EOIR more than ever needs leadership with the courage to protect its judges from political pressures and to defend their independence. As a democracy, we expect our judges to reach results based on what is just, even where such results are not aligned with the desired outcomes of politicians.

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WURCA

Wednesday, August 8th, 2018

If you are like me, you are probably getting tired of typing out “well-understood, routine, conventional activity.”  I suspect a new acronym is coming down the pike one of these days.  “WURCA” seems the obvious choice. “WURACA” if you want to add the grammatically implicit “and.”  Interesting aside, I believe that WURACA was the Aztec god of patent eligibility.

By the way, do you find the recent variations in PHOSITA annoying?  I hear a lot of these variations used during the oral arguments: POSA, POSITA, etc.  I think I might have even seen or heard OOSITA.  Why don’t we just stick with PHOSITA . . . and WURCA.

Acronyms are interesting during oral argument.  The cynic in me is suspicious that at least one of the judges of the Federal Circuit likes to throw around acronyms when a non-patent lawyer is arguing a patent case or a Supreme Court advocate shows up at the Federal Circuit to argue a patent case.  Acronyms or abbreviations like ODP, DOE, and even PHOSITA are tricky ones for the uninitiated.