Wednesday, November 28, 2012

Federal Circuit -- THE FOX GROUP, INC. V. CREE, INC.

Patent claimant does not need to prove conception where reduction to practice is established and antedates the other claimant.

Reduction to practice is different from repeatability.

No case or controversy with reference to unasserted claims.


[Again, folks, MB knows nothing about anything, but he knows especially nothing about patent law.  Entertainment purposes only.]

Tenth Circuit -- Hillsdale Environmental Loss v. United States Army Corps

Corps decision not an arbitrary & capricious vilation of NEPA/ Clean Water Act.

Quesition not prudentially moot, although project is substantially completed -- new considerations could spur additional mitigating actions.

Long read.

Hillsdale Environmental Loss v. United States Army Corps

Tenth Circuit -- Satterfield v. Malloy

Suit cannot be brought against a bankruptcy trustee for malfeasance without the permission of the Bankruptcy Court.

Allegation of improper motive does not allow suit under an ultra vires exception to this rule.

No private tort exception to the rule.

Rule applies even after the case has been closed.

Statutory cause of action inapposite.

Satterfield v. Malloy


Indirect route from a location known for drug transactions wasn't sufficient probable cause for a search of he car under automobile exception.

There must be a safety risk to impound a vehicle under community caretaking function.

Dissent -

Police have discretion on when to remove a car from the road under community caretaking.


Ninth Circuit -- USA V. IEV, JUVENILE MALE

Frisk during Terry stop after canine alert was not justified by suspicion of drug use -- no indicia of threat from the fidgety deft.

Lifting of shirt exceeded bounds o Terry stop, as incriminating character of brick of MJ was not immediately apparent.

Chief K, dissenting:

Search justified under totality.

Delay in the making of the search isn't per se evidence that officer safety wasn't a motive.



Stay lifted - agency is the best decisionmaker, and the balance of hardships no longer favors petitioner.


Seventh Circuit -- USA v. Bernard Foster

Conditional agreement to certain evidence does not waive objection to the material, once that objection has been clearly made.

Potential shift at the appeal stage in the basis for the objection from foundational to constitutional does not forfeit the argument on appeal.

Admission of CI statements not hearsay / didn't violate Confrontation Clause.

No abuse of discretion in denying a missing witness instruction where the prosecution allegedly kept the witness from testifying by intimidation/investigation.

Harmless error in FSA sentencing error, as court later said that it would have done the same anyway.

USA v. Bernard Foster

Seventh Circuit -- Marleen Laplant v. Northwestern Mutual

 Holder of an insurance annuity are not blocked from class action remedy by CAFA internal affairs provision.

Choice of law clauses in insurance contract cannot be invalidated by a claim that they are per se against the public policy of the issuing state.

Marleen Laplant v. Northwestern Mutual

Sixth Circuit -- Dixie Fuel Company, LLC v. Director, Office of Workers' Comp

ALJ erred in allowing single factor to prove diagnosis - all the evidence must be considered.

Dixie Fuel Company, LLC v. Director, Office of Workers' Comp

Sixth Circuit -- Jermaine Sutton v. Metropolitan Government of Nashville

No S1983 claim against a Terry stop when police officer called contact in cell phone left by perpetrator, then, using that information, detained/questioned petitioner at his place of work.

Terry stop should have ended when petitioner took out his own phone & showed to police.

When arrest was made after ID by eyewitness, subsequent S1983 claim challenging the arrest must plead some reason that the officer shoudl have disbelieved the eyewitness.

Forced removal from workplace escalated Terry stop to arrest.

No qualified immunity during duration of the Terry stop.

Jermaine Sutton v. Metropolitan Government of Nashville

Sixth Circuit -- USA v. Lavelle Parks

Penalty in statute after series of offenses applies to all offenses in the series.

No canon of lenity, as the statute is clear.

Plea was knowing and voluntary.

 USA v. Lavelle Parks

Fourth Circuit -- Antonia Rota-McLarty v. Santander Consumer USA, Incorporated

Interlocutory appeal under the Federal Arbitration Act -- jurisdiction through Commerce Clause - auto lending industry.

Integration clause binds, as the two agreements were part of the same transaction.

Where a contractual term exempts assignees from arbitration, but is conjoined with a list of qualifying circumstances, the term only affects assignees as described in those circumstances.

Default is distinct from waiver in arbitration law.

Given lack of delay and minimal use o the 'trial machinery', arbitration was not waived by default.

Antonia Rota-McLarty v. Santander Consumer USA, Incorporated

Second Circuit -- State of New York v. Shinnecock Indian Nation

Dissent from denial of en banc - Panel had held that when property claims arise only as a defense, tribes cannot remove state enforcement action to federal court.

State of New York v. Shinnecock Indian Nation
Compiled by D.E. Frydrychowski, who is, not incidentally, not giving you legal advice.

Category tags above are sporadically maintained Do not rely. Do not rely. Do not rely.

Author's SSRN page here.