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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Seventh Circuit Criminal Case of the Week: Small Progress on Crack Sentencing

seventh circuit

It has been widely recognized for years that federal sentences for the crack version of cocaine are unjustifiably harsh relative to sentences for the powder version.  As far back as 1995, the United States Sentencing Commission — a body not generally known for its lenience — called for equalization between crack and powder sentences.  However, progress in softening the so-called 100:1 crack-powder disparity has proceeded at a glacial pace.  In 2007, the Commission finally succeeded in reducing (but not eliminating) the disparity as it exists in § 2D1.1 of the sentencing guidelines, but statutory disparities will require congressional action to correct.  Fortunately, a bipartisan House bill cleared subcommittee last week, and the prospects for legislative reform appear unusually strong this term.

 As reformers have argued their case in the Commission and Congress, the 100:1 disparity has collided with the Supreme Court’s reinvigorated Sixth Amendment jurispudence.  In light of constitutional concerns, the Court transformed the sentencing guidelines from mandatory to advisory in 2005.  Then, in 2007, the Court affirmed what should have been obvious (but had been rejected by the Seventh Circuit and other intermediate courts of appeals): the crack-powder disparity contained in § 2D1.1 is no more binding on sentencing judges than any other aspect of the guidelines. 

But the Seventh Circuit remains resistant to the new world of advisory guidelines.  The 100:1 ratio still lives on in § 4B1.1, the career offender guideline.  And, in United States v. Harris, 536 F.3d 798 (7th Cir. 2008), the Seventh Circuit held that district court judges still may not act to correct or soften the crack-powder disparity when sentencing career offenders.  The court reasoned that the disparity in § 4B1.1 was congressionally mandated, while the disparity in § 2D1.1 was not. 

Last week, though, the Seventh Circuit limited the reach of Harris in United States v. Knox (Nos. 06-4101, 06-4376 & 07-1813) (Tinder, J.). 

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