{"id":8020,"date":"2016-08-08T10:37:34","date_gmt":"2016-08-08T16:37:34","guid":{"rendered":"http:\/\/www.717madisonplace.com\/?p=8020"},"modified":"2018-03-23T17:02:18","modified_gmt":"2018-03-23T23:02:18","slug":"coordinate-adjectiveswell-understood-routine-conventional","status":"publish","type":"post","link":"https:\/\/www.717madisonplace.com\/?p=8020","title":{"rendered":"Coordinate Adjectives:”Well-understood, routine, conventional”"},"content":{"rendered":"

From time to time during oral arguments at the Federal Circuit, grammatical issues arise. \u00a0Sometimes a judge will instruct an advocate about what the proper grammatical interpretation of something is (according to that particular judge). \u00a0And, at least one judge is a self-described “grammar nerd.” \u00a0I’m curious if any of the judges will ever put their grammar credentials on the line to assess the proper grammatical interpretation of “well-understood, routine, conventional activity” from the Mayo<\/span>\/\u00a0Alice<\/span> cases.<\/p>\n

It seems clear to me that in the phrase “well-understood, routine, conventional activity” that “well-understood, routine, conventional” \u00a0are being used as coordinate adjectives. \u00a0The grammar.com site gives this definition for coordinate adjectives:<\/p>\n

Coordinate adjectives are two\u00a0adjectives<\/a>, of equal weight, modifying the same\u00a0noun<\/a>. Generally, you should separate the adjectives with a comma. A good test to use: Put the word\u00a0and<\/em> between the two adjectives and see if that makes sense. If so, the adjectives are coordinate adjectives.<\/p>\n

Consider this example:<\/p>\n

It was a\u00a0long, hot summer.<\/em><\/p><\/blockquote>\n

See\u00a0http:\/\/www.grammar.com\/coordinate-adjective (last accessed August 7, 2016).<\/p>\n

As the test makes clear, “well-understood, routine, conventional” is the equivalent of “well-understood, routine, and conventional” — a conjunctive phrase.<\/p>\n

The Federal Circuit has noted that a conjunctive test requires that all parts of the test be met. \u00a0For example, in Luigi Bormioli v. United States<\/span>, 304 F.3d 1362 (2002), after determining that Bormioli did not satisfy a criterion of a conjunctive test, \u00a0a panel of Judges Dyk, Clevenger, and Archer stated for the Federal Circuit:<\/p>\n

We conclude that the Court of International Trade correctly held that Bormioli did not demonstrate that it met TD 85-111’s criterion that its financing arrangement with Bormioli Italy for the subject charges was in writing.<\/p>\n

Because the TD 85-111 requirements are conjunctive<\/strong>, we need not address whether Bormioli satisfied the final requirement: that “where required by Customs, the buyer can demonstrate that [1][t]he goods undergoing appraisement are actually sold at the price declared as the price actually paid or payable, and [2][t]he claimed rate of interest does not exceed the level for such transaction prevailing in the country where, and at the time, when the financing was provided.”\u00a0See<\/em> TD 85-111. For these reasons, the judgment of the Court of International Trade is<\/p>\n

AFFIRMED.<\/em><\/p><\/blockquote>\n

Luigi Bormioli v. United States<\/span>, 304 F.3d 1362 (2002)(emphasis added).<\/p>\n

Other circuits have applied conjunctive principles as well. \u00a0For example, in\u00a0US v. SOTO-MATEO<\/em>, No. 13-2031 (1st Cir. Aug. 26, 2015), Judges Kayatta, Selya, and Dyk stated for the First Circuit:<\/p>\n

A defendant facing a charge of illegal reentry after removal may, under some circumstances, challenge the validity of the underlying order of removal. See 8 U.S.C. \u00a7 1326(d);\u00a0United States v. Luna, 436 F.3d 312, 317 (1st Cir. 2006)<\/a>. To wage such a collateral attack, he must demonstrate that<\/p>\n

(1) [he] exhausted any administrative remedies that may have been available to seek relief against the order;<\/p><\/blockquote>\n

(2) the deportation proceedings at which the order was issued improperly deprived [him] of the opportunity for judicial review; and<\/p><\/blockquote>\n

(3) the entry of the order was fundamentally unfair.<\/p><\/blockquote>\n

8 U.S.C. \u00a7 1326(d). In reviewing a district court’s determination as to whether a particular defendant has satisfied these requirements, we assay the district court’s subsidiary factual determinations for clear error, see\u00a0United States v. DeLeon, 444 F.3d 41, 48 (1st Cir. 2006),<\/a> and afford plenary review to its conclusions of law, see\u00a0Luna, 436 F.3d at 316<\/a>. Moreover, when “performing the collateral attack analysis under \u00a7 1326(d), [an inquiring] court ordinarily should address the initial test of exhaustion of administrative remedies before going on to the other two tests.”\u00a0DeLeon, 444 F.3d at 45<\/a>. The elements of section 1326(d) are conjunctive<\/strong>, and an appellant must satisfy all of those elements in order to prevail on a collateral challenge to his removal order. See\u00a0Luna, 436 F.3d at 317<\/a>.<\/p><\/blockquote>\n

US v. SOTO-MATEO<\/em>, No. 13-2031 (1st Cir. Aug. 26, 2015)(emphasis added).<\/p>\n

If the grammarists on the Federal Circuit choose to apply proper rules of grammar to the “well-understood, routine, conventional activity” test so as to treat it as a tripartite conjunctive test, they could rein in much of the overzealous application of Mayo<\/span>\/Alice<\/span> that runs rampant today in assessing patent eligibility under 35 U.S.C. \u00a7101.<\/p>\n","protected":false},"excerpt":{"rendered":"

From time to time during oral arguments at the Federal Circuit, grammatical issues arise. \u00a0Sometimes a judge will instruct an advocate about what the proper grammatical interpretation of something is (according to that particular judge). \u00a0And, at least one judge is a self-described “grammar nerd.” \u00a0I’m curious if any of the judges will ever put […]<\/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\/8020"}],"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=8020"}],"version-history":[{"count":17,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/8020\/revisions"}],"predecessor-version":[{"id":9683,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/8020\/revisions\/9683"}],"wp:attachment":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=8020"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=8020"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=8020"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}