Senate Secrecy: Can the Votes of Senators on President Trump’s Impeachment be Withheld from the Voting Public?

VIKRAM DAVID AMAR, JASON MAZZONE

Illinois law dean Vikram David Amar and professor Jason Mazzone evaluate the suggestion made by some that the votes of senators on President Trump’s impeachment can and should be private. Amar and Mazzone argue that while the text of the Constitution alone does not foreclose secrecy, structural, prudential, and logistical considerations strongly disfavor a secret vote on the matter.

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Personal Audio, LLC v. CBS Corp.

Docket: 18-2256

Opinion Date: January 10, 2020

Judge: Richard Gary Taranto

Areas of Law: Civil Procedure, Intellectual Property, Patents

Audio’s patent describes a system for organizing audio files, by subject matter, into “program segments.” ’The system arranges the segments through a “session schedule” and allows a user to navigate through the schedule in various ways. Audio sued CBS, alleging infringement. Later that year, a third party sought inter partes review (IPR) of the patent under 35 U.S.C. 311–319. The Patent Trial and Appeal Board instituted review but the district court case proceeded to trial, with the issues limited to infringement and invalidity of claims 31–34. A jury found that CBS had infringed claims 31–34 and failed to establish by clear and convincing evidence that those claims were invalid. The jury awarded Audio $1,300,000. The Board issued a final written decision in the IPR, concluding that claims 31–35 are unpatentable. The district court stayed entry of its judgment until completion of direct review of the Board’s decision. The Federal Circuit affirmed the Board’s decision. The district court then entered a judgment in favor of CBS. The Federal Circuit affirmed, rejecting Audio’s argument that the courts lacked jurisdiction. To the extent that Audio challenged the district court’s determination of the consequences of the affirmed final written decision for the proper disposition of this case, Audio conceded that governing precedent required judgment for CBS.

Molon Motor & Coil Corp. v. Nidec Motor Corp.

Docket: 19-1071

Opinion Date: January 10, 2020

Judge: Alan David Lourie

Areas of Law: Contracts, Intellectual Property, Patents

Molon sued Merkle-Korff, for infringement of the 785 patent. Merkle-Korff filed counterclaims relating to Molon’s 915 and 726 patents. Molon unilaterally executed the 2006 Covenant, agreeing not to sue Merkle-Korff for infringement of the 915 and 726 patents. After the dismissal of the counterclaims, the parties entered into the 2007 Settlement. Merkle-Korff agreed to pay a lump sum for an exclusive license to multiple Molon patents including the 785, 915, and 726 patents, within the Kinetek Exclusive Market. The Settlement granted Merkle-Korff “the right, but not the duty, to pursue an infringement claim” and contains a statement that all prior covenants “concerning the subject matter hereof” are “merged” and “of no further force or effect.” Merkle-Korff later became Nidec. Molon sued, alleging that Nidec is infringing the 915 patent outside the licensed Market. Nidec argued that Molon is barred from enforcing the patent under the 2006 Covenant. Molon responded that the Covenant was extinguished by the 2007 Settlement. The court granted Nidec partial summary judgment after comparing the subject matters of the agreements. The Federal Circuit affirmed; the agreements concern different subject matter and do not merge. The 2006 Covenant gives Nidec a right to avoid infringement suits on two patents. The 2007 Settlement is in some ways broader, as an exclusive license, covering multiple patents and applications and providing Nidec with some enforcement rights, and in other ways narrower, being limited to a defined market. The 2006 Covenant remains in effect because it does not concern the same subject matter as the 2007 Settlement.

Genentech, Inc. v. Hospira, Inc.

Docket: 18-1933

Opinion Date: January 10, 2020

Judge: Raymond T. Chen

Areas of Law: Intellectual Property, Patents

Genentech’s patent is directed to methods of purifying antibodies and other proteins containing a CH2/CH3 region from impurities by protein A affinity chromatography. Protein A affinity chromatography is a standard purification technique employed in the processing of therapeutic proteins, especially antibodies, which involves “using protein A . . . immobilized on a solid phase.” The Patent Trial and Appeal Board instituted inter partes review (IPR) and determined that all the challenged claims were unpatentable as anticipated or obvious in light of prior art references. The Federal Circuit affirmed, finding substantial evidence in support of the findings. The court also rejected Genentech’s argument that retroactive application of IPR to a patent issued prior to the passage of the America Invents Act violates the Fifth Amendment’s Takings Clause; pre-AIA patents were issued subject to both district court and Patent Office validity proceedings. Though IPR differs from district court and pre-AIA Patent Office reexamination proceedings, those differences are not sufficiently substantive or significant such that a “constitutional issue” is created when IPR is applied to pre-AIA patents.

Changzhou Hawd Flooring Co. v. United States

Docket: 18-2335

Opinion Date: January 10, 2020

Judge: Richard Gary Taranto

Areas of Law: International Trade

The Department of Commerce investigated (19 U.S.C. 1673−1673h) dumping of multilayered wood flooring from China and individually investigated the dumping margins of the three largest exporters. Commerce identified “separate-rate firms,” exporters and producers whose dumping margins were not individually investigated but that Commerce found to be independent of the Chinese government and concluded those firms should be assigned an antidumping-duty rate separate from the “China-wide rate” assigned to firms lacking such independence. Some separate-rate firms did not seek individual review, while voluntary-review firms requested review but were denied. Commerce issued an antidumping duty order but did not terminate the investigation, finding a non-de minimis positive dumping margin for the companies that were part of the China-wide entity. All three individually-investigated firms had zero dumping margins; Commerce freed those firms from further obligations. Commerce applied the zero rate to the separate-rate firms but did not free those firms from obligations accompanying the order. Although such firms’ merchandise initially would not be subject to cash deposits upon entry, the merchandise would remain subject to suspension of liquidation of entries, with the ultimate duty to be determined later; the firms would have to participate and the duty might increase, thereafter requiring cash deposits. The Trade Court and Federal Circuit affirmed the inclusion of the “no request” separate-rate firms in the order but held that Commerce had not justified the inclusion of the voluntary-review firms. Nothing in the statute unambiguously provides that all separate-rate firms, including those not individually investigated, must be excluded from all obligations under an antidumping duty order when they are assigned a zero rate based on zero or de minimis dumping margins of individually investigated firms.