Publications
Order List
Greetings, Court fans!
The Term so far has been anything but dull . . . . We have a new Chief Justice, a withdrawn nomination, and today, a new nominee to succeed Justice Sandra Day O’Connor. Current Third Circuit Judge Samuel A. Alito, Jr. has been on the appellate bench 15 years, and he is both lauded and derided by many for being a “committed conservative.” It is a near certainty that his nomination will not sail through the Senate with the same ease as Chief Justice Roberts’ โ we are about to see a fight!
But we know that all you really wanted to hear about were the four cert grants on today’s order list.
For patent lawyers, Laboratory Corp. of America v. Metabolite Laboratories (04-607), will be a must-read, addressing the boundaries of patentability. The Court limited its grant of cert to Question 3 from the petition, which asks: “Can a method patent setting forth an indefinite, undescribed, and non-enabling step directing a party simply to โcorrelate’ test results validly claim monopoly over such a basic scientific relationship used in medical treatment such that any doctor necessarily infringes on the patent merely by thinking about the relationship after looking at test results?”
Turning to immigration, Fernandez-Vargez v. Gonzales (No. 04-1376), addresses the interplay of the Illegal Immigration Reform and Immigration Responsibility Act (“IIRIRA”) and the Immigration and Nationality Act (“INA”). The question posed is: “Does Section 241(a)(5) of the INA apply to an alien who reentered the United States illegally before the effective date of the IIRIRA, April 1, 1997, and if so, under what circumstances does it apply?” Looking beyond the question presented to the facts, the case concerns the rights of an alien who illegally reentered the United States before the effective date of IIRIRA, which prohibits such aliens from obtaining relief under the INA, but whose application for relief is based on a marriage that occurred after IIRIRA’s effective date.
Following up on the Court’s decision last Term in Crawford v. Washington, which dealt with the admissibility of out-of-court testimony not subject to cross-examination, the Court agreed to hear two cases addressing whether “excited utterances” made by a victim shortly after a crime has been committed are admissible in a criminal trial. These cases are Davis v. Washington (05-5224) and Hammon v. Indiana (05-5705). The Court also granted leave in both cases for the petitioners to proceed in forma pauperis and stated that it would hear the cases “in tandem” โ thus, they are not formally consolidated, but will be heard back-to-back.
Finally, the Court asked the SG to weigh in on the antitrust case of FTC v. Schering-Plough Corp. (05-273), where the Court has been asked to review the Eleventh Circuit’s ruling that a drug patentee’s payments to a competitor to settle a patent dispute and delay entry of the competitor’s generic equivalent into the market were not anticompetitive restraints of trade under the Sherman Act.
That’s all for now (still no word on Hamdan v. Rumsfeld). As always, thanks for reading, and stay tuned for more as this history-making Term heats up!
Kim & Ken
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400
