Supreme Court Update: Order List 10/5/12

October 11, 2012 Supreme Court Update

Greetings, Court fans!

It is that time of the year again – time for fall leaves, hot apple cider, pumpkins, and lots of cert grants. Today's Update has two biggies for the patent lawyers out there and something for virtually everyone else.

Bowman v. Monsanto Co. (11-796), deals with the patent exhaustion doctrine, asking "[w]hether the Federal Circuit erred by (1) refusing to find patent exhaustion in patented seeds even after an authorized sale and by (2) creating an exception to the doctrine of patent exhaustion for self-replicating technologies?"

Gunn v. Minton (11-1118) presents an issue that could have sweeping jurisdictional ramifications. The question presented is whether the Federal Circuit erred by holding "that state law legal malpractice claims against trial lawyers for their handling of underlying patent matters come within the exclusive jurisdiction of the federal courts [under federal courts' "arising under" jurisdiction pursuant to 28 U.S.C. § 1338]?"

Koontz v. St. John's River Water Mgmt. (11-1447) raises two questions for review: "(1) Whether the government can be held liable for a taking when it refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994); and (2) Whether the nexus and proportionality tests set out in Nollan and Dolan apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use."

The Court consolidated Arlington v. FCC (11-1545) and Cable, Telecommunications, and Technology Committee v. FCC (11-1547) for argument and granted cert limited to this question: "Whether, contrary to the decisions of at least two other circuits, and in light of this Court's guidance, a court should apply Chevron to review an agency's determination of its own jurisdiction."

Alleyne v. United States (11-9335) asks: "Whether this Court's decision in Harris v. United States, 536 U.S. 545 (2002), should be overruled." In Harris, a fractured Court held that the Constitution did not require a jury to determine facts that could increase a mandatory minimum sentence. Justice Breyer cast the deciding vote, but has shown signs of wavering. Is a further expansion of Apprendi headed our way? Stay tuned...

Boyer v. Louisiana (11-9953), where the Court agreed to hear only one of the questions presented, asks: "Whether a state's failure to fund counsel for an indigent defendant for five years, particularly where failure was the direct result of the prosecution's choice to seek the death penalty, should be weighed against the state for speedy trial purposes?"

McBurney v. Young (12-17) raises this question: "Under the Privileges and Immunities Clause of Article IV and the dormant Commerce Clause of the United States Constitution, may a state preclude citizens of other states from enjoying the same right of access to public records that the state affords its own citizens?"

Finally, the Court asked the SG to weigh in on the petition in Lawson v. FMR, LLC (12-3), which deals with the scope of protection afforded by Section 806 of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A, which "forbids a publicly traded company, a mutual fund, or ‘any ... contractor [or] subcontractor ... of such company [to] ... discriminate against an employee in the terms and conditions of employment because of' certain protected activity." The question presented is: "Is an employee of a privately-held contractor or subcontractor of a public company protected from retaliation by section 1514A?"

We'll be back soon as the cert grants continue.

Kim, Jenny & Julie

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400