{"id":4600,"date":"2011-11-25T14:59:10","date_gmt":"2011-11-25T20:59:10","guid":{"rendered":"http:\/\/www.717madisonplace.com\/?p=4600"},"modified":"2011-11-28T13:13:47","modified_gmt":"2011-11-28T19:13:47","slug":"grammatical-arguments","status":"publish","type":"post","link":"https:\/\/www.717madisonplace.com\/?p=4600","title":{"rendered":"Grammatical Arguments"},"content":{"rendered":"

Grammar always makes for an interesting subject during oral argument.\u00a0 In the oral argument of Sanofi Aventis et al. v. Apotex, Inc. et al.<\/span>, App. No. 2011-1048 (Fed. Cir.\u00a0Oct. 18, 2011)\u00a0several grammatical issues were raised.\u00a0 As background, the parties were arguing over the terms of a settlement agreement and whether the term “damages” included prejudgment interest.\u00a0 Part of this discussion, as you will hear, centered around the grammar of 35 U.S.C. sec. 284 which reads:<\/p>\n

\n

35 U.S.C. 284\u00a0 Damages.<\/span><\/strong><\/span><\/span><\/p>\n

Upon finding for the claimant the court shall award the claimant damages<\/strong> adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.<\/strong><\/span><\/span><\/span><\/p>\n

\u00a0<\/span><\/span><\/p>\n

When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed. Increased damages under this para\u00adgraph shall not apply to provisional rights under sec\u00adtion 154(d) of this title.<\/span><\/span><\/span><\/p>\n

\u00a0<\/span><\/span><\/p>\n

The court may receive expert testimony as an aid to the determination of damages or of what royalty would be reasonable under the circumstances. <\/span><\/span><\/span><\/p>\n

\u00a0<\/span><\/span><\/p>\n

(Amended Nov. 29, 1999, Public Law 106-113, sec. 1000(a)(9), 113 Stat. 1501A-566 (S. 1948 sec. 4507(9)).)<\/span><\/span><\/span><\/p>\n<\/blockquote>\n

Judge Moore first raised the grammatical\u00a0issue with\u00a0Defendant-Appellant’s counsel\u00a0and noted that she had been\u00a0consulting her copies of Strunk & White and The Chicago Manual of Style<\/span>: [Listen<\/a>].\u00a0<\/p>\n

The issue came up again in the discussion with Plaintiff-Appellee’s counsel:\u00a0 [Listen<\/a>] and [Listen<\/a>].<\/p>\n

This is the third time that I have heard Judge Moore refer to Strunk and White during various\u00a0oral arguments.\u00a0 So, if you are making grammatical arguments to the court, you might take into consideration that at least one judge uses\u00a0that text\u00a0as a resource.\u00a0 However, it should be noted that another judge has commented during a different oral argument that\u00a0“Strunk and White does nothing for me.”<\/p>\n

There actually aren’t that many instances where grammatical texts have been cited in Federal Circuit decisions.\u00a0 Some of the texts that have been cited are:<\/p>\n

1)\u00a0 C. Dallas Sands, 2A SUTHERLAND STATUTORY CONSTRUCTION, 4th ed.;<\/p>\n

2)\u00a0 Leggett, Mead & Charvat, Prentice-Hall Handbook for Writers<\/em> (6th ed. 1974);<\/p>\n

3)\u00a0 S. Baker, The Complete Stylist and Handbook<\/em> (3rd ed. 1984);<\/p>\n

4) William Strunk, Jr. & E.B. White, The Elements of Style<\/em> 27 (4th ed. 2000); and<\/p>\n

5)\u00a0 Margaret Shertzer, The Elements of Grammar 47 (1986).<\/p>\n

One of the issues in the third sound bite included above concerned whether “or” should be interpreted as a “non-exclusive disjunctive,” i.e., whether “or” can mean “and.”\u00a0 Judge Dyk had this to say about the\u00a0statutory construction of the word “or” in his dissent from the denial of\u00a0en banc<\/em> review of\u00a0 McCormick v. Dept. of Air Force<\/span>, App. No. 02-3031, (Fed. Cir. May 21, 2003).<\/p>\n

Van Wersch<\/em> rested entirely on the notion that we are compelled to interpret the word “or” in 5 U.S.C. \u00a7 7511(a)(1)(C) as not meaning “and” (an approach that our decision in this case applied to section 7511(a)(1)(A)). We held that “[t]o adopt the reading of the statute that the government urges would require us to ignore the meaning of the word `or’ that the dictionary, common sense, and the experience of life all bring to us.” Van Wersch,<\/em> 197 F.3d at 1151<\/span><\/a>. The consequence was that an individual falling under either (a)(1)(A)(i) or (ii) or (C)(i) or (C)(ii) was considered to be an “employee” with full appeal rights. In fact, we are not so constrained in the reading of the word “or”. The Supreme Court ruled over 100 years ago that “[i]n the construction of statutes, it is the duty of the court to ascertain the clear intention of the legislature. In order to do this, courts are often compelled to construe `or’ as meaning `and.<\/em>‘” United States v. Fisk,<\/em> 3 Wall. 445, 70 U.S. 445, 447, 18 L.Ed. 243 (1865)<\/span><\/a> (emphasis in original). More recently, in an opinion by Justice Harlan, the Court in De Sylva v. Ballentine,<\/em> 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415 (1956),<\/span><\/a> similarly stated that “[w]e start with the proposition that the word `or’ is often used as a careless substitute for the word `and’; that is, it is often used in phrases where `and’ would express the thought with greater clarity. That trouble with the word has been with us for a long tim[e].” Id.<\/em> at 573, 76 S.Ct. 974. The Supreme Court then interpreted the word “or” in section 24 of the Copyright Act as meaning “and”, in order to give full effect to Congress’s intent as expressed in the evolution of the statutory provision and in the legislative history. Id.<\/em> at 573-80, 76 S.Ct. 974. Our sister circuits have likewise read “or” to mean “and” or “and” to mean “or” in order to effectuate Congress’s intent. See, e.g., <\/em>United States v. Moore,<\/em> 613 F.2d 1029, 1040 (D.C.Cir.1979)<\/span><\/a> (Interpreting “or” to mean “and” in 18 U.S.C. \u00a7 1623(d), because “a strict grammatical construction will frustrate legislative intent.”).[2]<\/span><\/a><\/sup> The present case is one of those cases where we must construe “or” in subsections (1)(A) and (1)(C) to mean “and.” The language is ambiguous, but the underlying purpose is clear.<\/p><\/blockquote>\n

Finally, the oral argument of Sanofi et al. v. Apotex, Inc. et al.<\/span> features some very talented advocates.\u00a0\u00a0\u00a0You can listen to the entire oral argument [here<\/a>].<\/p>\n

You can read the court’s opinion in Sanofi<\/span> [here<\/a>].<\/p>\n","protected":false},"excerpt":{"rendered":"

Grammar always makes for an interesting subject during oral argument.\u00a0 In the oral argument of Sanofi Aventis et al. v. Apotex, Inc. et al., App. No. 2011-1048 (Fed. Cir.\u00a0Oct. 18, 2011)\u00a0several grammatical issues were raised.\u00a0 As background, the parties were arguing over the terms of a settlement agreement and whether the term “damages” included prejudgment […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/4600"}],"collection":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4600"}],"version-history":[{"count":20,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/4600\/revisions"}],"predecessor-version":[{"id":4622,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/4600\/revisions\/4622"}],"wp:attachment":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4600"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4600"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4600"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}