Remembering Professor Wally MacBain

Former Marquette law professor Wallace Alexander MacBain, III passed away on July 17, 2009, as the result of complications from a fall at his home in Nashotah, Wisconsin.  Professor MacBain was born in Audubon, New Jersey, on March 21, 1933.  His father, Wallace A. MacBain, Jr., was a member of the Industrial Union of Marine and Shipworkers of America. 

Prof. MacBain graduated magna cum laude from Rutgers Law School in 1959 where he was also a member of the law review.  He spent the early years of his  professional life involved with school desegregation issues and served as a consultant to the United States government on that subject.  He joined the Marquette faculty in 1965 where he remained until his retirement at the end of the 1994-95 academic year.  As a faculty member, he served under Deans Seitz, Boden, DeGuire, and Barkan.

At Marquette, he served for several years as director of admissions (when that was still a position held by a faculty member).  Over the course of his career he taught a wide variety of courses, but his specialties were Constitutional Law, Civil Rights Legislation, and Conflicts of Law.  He was frequently quoted in the Milwaukee newspapers, and his most widely cited article had to do with the insanity defense.

His colleagues remember him as a devoted academic citizen and as a wonderful story teller.  He is survived by his wife as well as two children and two step-children and a number of grandchildren.

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Parties Ask for Stay in Tafas v. Doll

The parties in the Tafas v. Doll have filed a “Joint Consent Motion for a Stay of En Banc Proceedings.”  As patent practitioners are painfully aware, Tafas stemmed from the USPTO’s August 21, 2007, new patent-prosecution rules and regulations. The “new regulations” challenged were Rules 75, 78, 114, and 265.  Rule 75 established the number of claims that could be presented in an application without an accompanying examination support document.  Rule 78 established the number of continuing applications that could be filed within a patent family.  Rule 114 established the number of requests for continuations that could be filed within a patent family.  Finally, Rule 265 set forth the requirements for an examination support document.

Tafas, later joined by GlaxoSmithKline, challenged the validity of the new regulations, and the United States District Court for the Eastern District of Virginina granted summery judgment for him (and GSK), enjoining the USPTO from implementing and enforcing the new regulations.  Much to the dismay of most patent practitioners, on appeal, the Court of Appeals for the Federal Circuit affirmed, in part, and reversed, in part, that decision.  The CAFC only agreed with the district court that Rule 78 was invalid and remanded the case to the district court for further consideration of the remaining issues.  Then, on July 6, 2009, the CAFC granted Taffas and GSK’s petition for rehearing en banc.

Well, all of the parties involved now want to wait and see what will happen since David Kappos has been nominated as Under Secretary of Commerce for Intellectual Property and Director of the USPTO.  If Kappos is confirmed after his Senate Judiciary Committee nomination hearing, which is scheduled to begin tomorrow, July 29, 2009, then Kappos could moot the entire case by rescinding the rules at issue.

Accordingly, last Friday, July 24, 2009, in their Joint Consent Motion for a Stay of En Banc Proceedings, all of the parties in the case asked the court to stay all en banc proceedings, including briefing and oral arguments, until 60 days after Kappos’s confirmation.  Hopefully, Kappos is confirmed; hopefully, he rescinds the new rules; and, hopefully, he does so quickly.

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Future Imperfect

Urban FactoryA couple of weeks ago Amazon remotely deleted two e-books off of its customers’ Kindle readers—and in one of those too-good-to-be-true moments, the books were “1984” and “Animal Farm” by George Orwell. Ars Technica and the New York Times explain what happened; the Times ran a follow-up story today. Commentary on the incident has ranged from the fervid to the apocalyptic. (An exception is Chicago’s Randy Picker.)  Jack Balkin argues that “Amazon threatens many of the basic freedoms to read we have come to expect in a physical world;” Jonathan Zittrain worries that “tethered appliances” like the Kindle “are gifts to regulators,” who will exercise a “line-item veto” over passages in books they don’t like; Farhad Manjoo at Slate concludes that “Now we know what the future of book banning looks like.”

What I find intriguing about these responses is that they are all based on analogizing Kindle e-books to physical books located in your house. 

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