USPTO Fee Diversion and Patent Reform

By Ryan McBeth

Article I, Section 8, Clause 8 of the United States Constitution gives Congress the authority,
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Congress utilizes this power through the United States Patent and Trademark Office(“USPTO”), a federal agency in the Department of Commerce that has been in operation for over 200 years. USPTO About.

In 1990, the USPTO was using more money than it was taking in through fees. NYTimes. This had small companies and individual inventors worried that their costs would increase as Congress attempted to close the budget gap. Some in the technology industry feel these “maverick” or individual inventors should have their right-to-patent protected and that higher fees will stand in the way of fairness. Patently-O. Note that individual inventors and small companies can still receive the benefit of half-price filings per the USPTO’s latest fee schedule(see the right column for “Small Entities”). I personally find the current fees as somewhat reasonable but would encourage legislation keeping them low for the mavericks and small companies out there. With the current electricity in the air about patent reform there has been some discussion about raising fees. The purpose served by this would be to encourage the filing of higher quality and fewer patents by making companies weigh their budgets against how many patents they can file. Also, the door for charging higher fees seems to be wide open after a recent ruling.

The Bill of Rights was a bad idea

By Kate Jackson

My blogging experience is very minimal, but it’s my understanding that the point is more discussion and opinion and less rigorous objective research.  And so I’ve decided to blog about a topic that has interested me in class, even though I am sure that brighter and more profound people have exhausted the topic….

Our government’s power comes from the people.  The constitution protects the people from the government, rather than defending the government from the people.  In other words, individuals maintain any rights not forbidden to them, while the federal government has no rights except those granted to them.

Because the BOR grants individual rights, it is redundant and–I argue–detrimental to the intent of the Constitution and to individual rights in general because it effectively limits individual rights while also diluting their meaning and value.  I think the true inalienable individual fundamental rights are life, liberty, and the pursuit of happiness, as stated in the Declaration of Independence.  I do not understand why these never made it explicitly into the Constitution.

ND2: Judgment Day; will the non-delegation doctrine be back?

by Zachary J. Lee

“That Congress cannot delegate legislative power . . . is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” Field v. Clark, 143 U.S. 649, 692 (1892).

In making the above statement, the Supreme Court seemingly laid the foundation for a powerful dividing line between Congress and the Executive Branch, but in practice, the non-delegation doctrine has been far less of a powerful weapon to enforce separation of powers and far more of an anachronism that has been largely left unused by the Supreme Court since two anomalous cases in 1935, despite countless opportunities afterwards to return to the doctrine. See Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); and A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

Justice Scalia gave non-delegation fans a glimmer of hope for a non-delegation revival when he argued that Congress’s delegation of power to the Sentencing Commission was unconstitutional “because [he could] find no place within our constitutional system for an agency created by Congress to exercise no governmental power other than the making of laws.” Mistretta v. United States, 488 U.S. 361, 413 (1989) (Scalia dissenting). Alone in his dissent, Justice Scalia nonetheless squelched longstanding rumors that the non-delegation doctrine was dead. Twelve years later, however, Justice Scalia himself authored a majority opinion finding that delegation which tasked the Environmental Protection Agency with creating standards “requisite to protect public health” was specific enough to fall within constitutional bounds. Whitman v. American Trucking Associations, Inc., 531 U.S. 457, 465 (2001). The Whitman decision has stood as a sign of the Supreme Court’s reluctance to revive the non-delegation doctrine. Since then, the doctrine has been characterized as all but dead, and at least one attempt has been made “to lay the doctrine to rest once and for all, in an unmarked grave.” Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721, 1723 (2002).

Nude Dancing and the First Amendment

By Lindsey Lewis

In Paris Adult Theatre I v. Slaton, 2 Georgia adult film theatres were sued for showing allegedly obscene films. There were signs at the entrances to the theaters indicating that adult films were exhibited inside, people who wished to view the film needed to prove they were at least 21 years or older to enter, and that any person offended by nudity should not enter the theater. The Supreme Court held that even though the films were restricted to a mature audience of consenting adults, states are not limited to regulating obscene material disseminated to minors and unconsenting adults. States have other interests that justify restrictions on the display of obscene materials, even to consenting adults, such as limiting crime, maintaining a “high quality of life” and promoting a high standard of morality within the community. Basically, this decision seems to advocate the regulation of obscene materials by the states based on secondary effects that these obscene materials will supposedly have on the community. These effects, according to the Court, are legitimate interests that compel states to act on behalf of its citizens in restricitng obscenity.

The (In)applicability of the Contracts Clause to the Federal Government

By Charlotte Simon. 

Last week in class the question was posed, does the Contracts Clause, Art. I, Sec. 10 of the Constitution, ever apply to the federal government?  As our professor quickly suggested, the answer does indeed appear to be no.  Pension Benefit Guaranty Corporation v. R.A. Gray, 467 U.S. 717 (1984), addresses the issue in passing.

Convicted felons as a “suspect class?”

By Rosemarie Joyal

On Monday, March 3, 2009, the U.S. Supreme Court heard oral arguments from the counselor of the District Attorney’s Office for the Third Judicial District of Alaska, K. Rosenstein, and Attorney R. Bundy, counsel for the convicted rapist, William G. Osborne. At issue was Osborne’s assertion that he maintains a constitutional right to access DNA evidence that may lead to his exoneration of the rape charges. After his 1994 conviction, Osborne filed suit in federal court under 42 U.S.C. § 1983 for access to DNA evidence so that he could test condom and hair’s using the latest accepted technology – the RFLP test. The Ninth Circuit Court of Appeals recently affirmed a lower court ruling ordering Osborne be given access to DNA evidence associated with his case.

Substantive Due Process: A Poll of My Class

By Seth Chandler

I decided to poll my class anonymously using TWEN about some of their views on substantive due process. The poll accompanied a set of readings going from Griswold v. Connecticut up through Planned Parenthood v. Casey. We’d also read the substantive due process line of cases from Lochner to Lee Optical. Having had some youthful experience as a pollster, I decided I was competent to draft reasonable questions. Here are the raw results. To see them, just click on the links next to the icons. A little over half of the students in the class participated.

“Personhood” and Abortion Jurisprudence in the Roberts Court

By Kyle Jones

On February 18, 2009, the North Dakota House of Representatives approved a bill that would recognize the “personhood” of “all human beings from the beginning of their biological development, including the pre-born, partially born.”  The bill passed by a 51 to 41 margin and will now go before the state senate.  Ten days later, the Montana Senate passed a similar bill by a 26-24 margin.  Opponents fear the bills are not only a means to overturning Roe v. Wade, but also to limiting birth control emergency contraception.  Proponents advocate a return to state control and regulation.

Personhood North Dakota is not subtle about their aims – one need only visit their website’s FAQ for a quick tutorial (information is also available at PersonhoodUSA’s main site).  Personhood claims the legislation will “stop abortion dead in its tracks” and that “nobody knows for sure” how the Supreme Court would handle the bill. The organization regards “chipping away” as inadequate, and advocates an all-out assault on Roe.  The question remains, is this a serious challenge to Roe v. Wade, or another failed attempt to reverse Supreme Court abortion jurisprudence?

Due Process and the Pigskin

By Morris Karam
Hi guys. In the wake of our study of Due Process, particularly the issue of substantive due process, the recent 11^th Circuit case of Davis v. Carter compliments our study well. As you recall from our class discussion last week, Professor Chandler cast the Slaughter-House Cases as a roadblock to the use of the Privileges and Immunities Clause for claims involving certain rights not mentioned in the Constitution, and to circumvent that, claims of this nature were based on Due Process.Davis seems to represent one of the more current examples.

Privacy and the New Technological Age

By Tiffany Francis

Ever have the feeling that your phone calls are being monitored? Do you have the lurking suspicion that you private emails aren’t that private? I doubt the founders of the United States Constitution would have ever imagined a world in which violating privacy would have become so seemingly effortless. One does not even have to hide in the bushes or trespass on someone else’s property to eavesdrop on a private conversation tosteal their identity. Since the decision of Roe v. Wade in 1973, cases involving privacy have caused much debate in the American Justice System. What are an American citizen’s privacy rights? In this new technological era, those with access to new and innovative technologies are making it easy to violate an individual’s assumed right to privacy.

In order to come to some type of conclusion, several basic questions must be answered. Does the Constitution guarantee an average citizen the right to privacy? This question must also be posed in regards to the fact that the Constitution does not specifically mention this right in either the original text or its amendments.