Order List

October 30, 2006 Supreme Court Update

Greetings, Court Fans!
We have no decisions today, but the Court issued an order list Friday granting cert in four new cases.
The biggest grant from Friday – given the parties and the issue – is undoubtedly Microsoft Corp. v. AT&T Corp. (05-1056). In essence, AT&T claims that whenever Windows is installed on a personal computer it infringes AT&T's patent for a ‘digital speech coder,' and it seeks damages not only for every Windows-based PC sold in the United States but also for every PC made or sold abroad by foreign computer manufacturers who got copies of Windows from Microsoft. That's a lot of alleged infringement (and a lot of potential damages) that arguably calls for the extraterritorial application of U.S. patent law. The questions presented are: "(1) Whether digital software code - an intangible sequence of ‘1's' and ‘0's' - may be considered a ‘component[] of a patented invention' within the meaning of Section 271(f)(1); and, if so, (2) Whether copies of such a ‘component[]' made in a foreign country are ‘supplie[d] . . . from the United States' [as required for a finding of infringement]." (In case you hadn't guessed, Microsoft lost in the Federal Circuit.)
Winkelman v. Parma City School District (05-983) presents an interesting question under the Individuals with Disabilities in Education Act, which gives disabled K-12 students certain rights to an education tailored to their special needs, and which also gives certain procedural rights to their parents. Parents can challenge a school district's plan for their child in due-process hearings, and they can do so pro se. If unsuccessful, parents then can sue in federal court, but the Circuits are split all sorts of ways as to whether they can remain pro se (i.e., can they push their child's claims, their own claims, both, or neither, without a lawyer?). The question presented is "Whether, and if so, under what circumstances, non-lawyer parents of a disabled child may prosecute an Individuals with Disabilities in Education Act case pro se in federal court?"
EC Term of Years Trust v. United States (05-1541) asks whether an estate has more than one possible remedy for an allegedly wrongful levy by the government to recover back taxes: "May a person who is not the assessed taxpayer utilize 28 U.S.C. § 1346 to seek a refund when its funds were seized through a wrongful levy and it had an opportunity to utilize the wrongful levy procedure under 26 U.S.C. § 7426?"
Scott v. Harris (05-1631) sounds like it's straight from one of those "World's Most Dangerous Police Chase" shows that networks often air during baseball rain delays: "1. Whether a law enforcement officer's conduct is ‘objectively reasonable' under the Fourth Amendment when the officer makes a split-second decision to terminate a high-speed pursuit by bumping the fleeing suspect's vehicle with his push bumper, because the suspect had demonstrated that he would continue to drive in a reckless and dangerous manner that put the lives of innocent persons at serious risk of death. 2. Whether, at the time of the incident, the law was ‘clearly established' when neither this Court nor any circuit court, including the Eleventh Circuit, had ruled the Fourth Amendment is violated when a law enforcement officer uses deadly force to protect the lives of innocent persons from the risk of dangerous and reckless vehicular flight."
Finally, today the Court issued another order list that, in addition to denying cert in lots of cases (as usual), asked the SG to brief the petition in Cox v. DaimlerChrysler Corp. (06-273), which concerns ERISA preemption of state laws that alienate protected benefits of prison inmates (whoever handled this one TRULY has found his or her niche): (1) "Where a State court reimbursement order is in place against an inmate's prison account, and Michigan law prohibits inmate ownership of a non-prison account, is there an alienation of plan benefits when the warden notifies the Plan to send the inmate's pension benefits to the prison for deposit into his prison account rather than to an inmate-designated non-prison account?" (2) "Do Michigan laws that restrict inmates to only a prison bank account and prohibit any non-prison accounts, impose a burden on a private pension plan when the plan is required to send an inmate-pensioner's payments to the prison for deposit into the inmate's account?"
Thanks for reading!

Ken & Kim

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