• Archive for April, 2014

    Limelight v. Akamai—Analysis and Prediction

    by  • April 30, 2014 • Faculty Commentary • 0 Comments

    Blog post by Prof. Christi Guerrini, IP Fellow
    Prediction by Prof. Edward Lee


    On April 30, the Supreme Court heard oral argument in Limelight Networks v. Akamai Technologies, a case involving the thorny issue of “divided” patent infringement—specifically, whether a defendant may be held liable for inducing patent infringement under 35 U.S.C. § 271(b) even though no one has committed direct infringement under Section 271(a). The Court’s decision is likely to have important implications for developers of distributed systems and method innovations that are typically executed by multiple independent persons. For example, patents on Internet services and business methods may involve some steps of the patented method that are performed by the technology company and other steps performed by customers.

    Predicting the Winner: A Win for Akamai?

    In a prior post, I explained the method by which I am predicting the winners of the case based on counting up the number of questions during oral argument. The side that receives more questions from the Justices typically is on the losing end of the decision. Using that method, Akamai might get a slight edge to win the case. As depicted in Figures 1 and 2 below, 5 justices asked Limelight’s attorney more questions, and, when coupled with the questions to the U.S. government (as amicus curiae supporting Limelight’s side), the Justices asked 16 more questions to Limelight’s side, 45 questions to only 29 questions to Akamai. Those numbers suggest a win for Akamai based on this method.

    However, I am not too confident in this prediction. The Justices did in fact ask the same number of questions to both parties (29)—which suggests a closer call. As I’ve noted in the prior post, the presence of an attorney for a non-party (an amicus) may skew the numbers somewhat if the Justices feel obliged to ask every attorney some questions. Plus, the U.S. government’s position may confound the conventional analysis of the number of questions. In a different case just decided this week, Octane Fitness, LLC v. ICON Health & Fitness, Inc., the number of questions was quite similar to this case, but it defied the pattern described above. In Octane, there was an even split of questions between the parties (31), plus a differential of 51 questions for petitioner’s side (adding in the U.S. government as amicus curiae) to 31 questions for the respondent’s side. But the Supreme Court ultimately decided in favor of the petitioner, despite its side receiving the greater number of questions. The Octane case suggests that the questions in Limelight may defy the conventional pattern—which would bode well for Limelight.

    Figure 1. Number of Questions in Limelight Networks v. Akamai Technologies

    Lee Limelight Figure 1 (more…)

    The Nautilus Case—and Prediction

    by  • April 28, 2014 • Faculty Commentary • 0 Comments

    Blog post by Prof. Christi Guerrini, IP Fellow
    Prediction by Prof. Edward Lee


    On April 28, the Supreme Court heard oral arguments in Nautilus, Inc. v. Biosig Instruments, Inc., a case that will potentially have major implications for patent drafting practices, patent litigation, and businesses. The case centers on the requirement in Section 112 of the Patent Code, which requires patentees to describe their patent claims with sufficient “definiteness.”

    Predicting the Winner: Reversal of the Federal Circuit’s Decision

    In a prior post, I explained the method by which I am predicting the winners of the case based on counting up the number of questions during oral argument. The side that receives more questions from the Justices typically is on the losing end of the decision. Using that method, the petitioner Nautilus’s side (asking for reversal of the Federal Circuit’s decision) should prevail.  The Court asked nearly twice as many questions to the respondent Biosig’s side (including the U.S. government as amicus curiae supporting Biosig).  The count was only 36 questions for Nautilus’s side to 68 questions for Biosig’s side.

    Figure 1. Number of Questions in the Nautilus v. Biosig Instruments Case

    Lee Nautilus Chart 1 (more…)

    Justice Sotomayor’s First Oral Dissent

    by  • April 28, 2014 • Faculty Commentary • 0 Comments

    By Christopher Schmidt [reposted from ISCOTUSnow]


    Last Tuesday, for the first time in her five years on the Supreme Court, Justice Sotomayor read a dissent from the bench. This was in Schuette v. Coalition to Defend Affirmative Action, the case in which the six-justice majority upheld Michigan’s ban on racial preferences in its public universities. Oral dissents, as a relatively unusual occurrence, can generate increased attention to a dissent. And a justice’s first oral dissent can be a particularly notable event. For example:

    • Justice Scalia’s first oral dissent came in Morrison v. Olson (1988), a 7-1 ruling in which the Court upheld the law creating an independent counsel. Justice Scalia recently referred to this decision upholding “a terrible erosion of presidential power” as his most “wrenching” case.
    • Justice Breyer’s first bench dissent came in United States v. Lopez (1995), decided during his first term on the Court. In Lopez the Court, for the first time since the New Deal, struck down a federal law as beyond the reach of the Commerce Clause.
    • Justice Thomas liked the idea of an inaugural oral dissent so much that he tried to do it twice. His first bench dissent came in Stenberg v. Carhart (2000), in which the majority struck down Nebraska’s “partial-birth abortion” ban. Then, six years later, he opened his oral dissent in Hamdan v. Rumsfeld, a case involving the rights of prisoners held at Guantanamo, by announcing that it was the first time he had ever read a dissent from the bench.

    That Justice Sotomayor chose this particular case for her first oral dissent makes sense. As various media accounts have noted, she has been outspoken in her support for affirmative action programs. In her memoir, Justice Sotomayor recognized that affirmative action played a critical role in her own life. During oral arguments in the Schuette case, she was particularly aggressive in challenging the lawyer defending the affirmative action ban. Her lengthy written dissent, which was joined by Justice Ginsberg, is impassioned and direct. Considering all this, it would be more surprising if she had chosen not to announce her dissent from the bench. (more…)

    Weekly Faculty in the News, 4/24/14

    by  • April 24, 2014 • Faculty in the News • 0 Comments

    A roundup of faculty appearances in news sources and media from the last week, 4/17/14 to 4/24/14.

    4/21Dan Tarlock was featured in a Fox 32 video and article on a lawsuit the Illinois Farmers Insurance Company is bringing against Chicago and Cook County for losses resulting from flooding last year (“City, county face lawsuit by Farmers Insurance for April 2013 flooding”).

    4/22Vinay Harpalani appeared on HuffPost Live to discuss the U.S. Supreme Court’s recent decision regarding race-conscious admissions in Schuette v. Coalition to Defend Affirmative Action (“Affirmative Action: SCOTUS Upholds Michigan Ban”).

    Blogs:

    4/22 – In a video posted by ISCOTUSnowEd Lee unpacks the issues at stake in the U.S. Supreme Court case American Broadcasting Company, Inc. v. Aereo.


    For more information, contact Gwendolyn Osborne, Director of Public Affairs, (312) 906-5251.

    Harpalani Discusses Schuette on HuffPost Live

    by  • April 24, 2014 • Faculty Commentary • 0 Comments

    On Tuesday, Professor Vinay Harpalani appeared on HuffPost Live to discuss the U.S. Supreme Court’s recent decision in Schuette v. Coalition to Defend Affirmative Action. The case originated in Michigan, where voters backed a proposition to amend the state’s constitution to ban affirmative action measures in public education and employment. In the 6-2 decision, the Court upheld the right of Michigan and other states to prohibit racial preferences as a factor in university admissions.

    In the video interview, Prof. Harpalani explained what this might mean for the future of affirmative action in university admissions. Click here to watch, and be sure to check out some of Prof. Harpalani’s scholarship focusing on race and education:

    • Diversity within Racial Groups and the Constitutionality of Race-Conscious Admissions, 15 University of Pennsylvania Journal of Constitutional Law 463 (2012)
    • Fisher’s Fishing Expedition, 15 University of Pennsylvania Journal of Constitutional Law Heightened Scrutiny 57 (2013)

    The Aereo Case—and Prediction

    by  • April 23, 2014 • Faculty Commentary • 14 Comments

    By Edward Lee [reposted from ISCOTUSnow]


    On April 22, the Supreme Court heard oral argument in an important copyright case involving Aereo, an Internet TV service from Brooklyn that has the financial backing of media mogul Barry Diller. The case has received a lot of media attention because it pits a disruptive Internet startup against the old-line broadcast TV networks. But it also has the potential to transform the cable industry and the way in which people watch TV.

    Predicting the winner: A Win for Aereo?

    If you want to learn more about the facts and legal issue in the case, jump to the analysis below. Right now, I’m going to cut to the chase and predict a winner. Of course, every appellate attorney knows that predicting the outcome of a Supreme Court case based on how the oral went is perilous, if not foolhardy. But Judge Richard Posner and Professors Lee Epstein and William Landes have analyzed a simple—yet statistically significant—method of identifying the likely winner of a Supreme Court case based on the number of questions the lawyers receive during oral argument. In a nutshell, the party that receives the most questions from the Justices during oral argument is more likely to lose. See Lee Epstein, William M. Landes, & Richard A. Posner, Inferring the Winning Party in the Supreme Court from the Pattern of Questioning at Oral Argument, 39 J. Legal Stud. 433 (2010). Prior studies by others found similar results. Id. at 434 n.1 (citing Shullman, Wrightsman, and Johnson et al.). Even Chief Justice John Roberts arrived at the same conclusion based on his own study of 28 cases. Id.

    Based on this crude method of counting up questions, my prediction is that Aereo will win the case. Aereo’s attorney received fewer questions during oral argument than the total questions asked of the opposing side (the attorney for TV networks and the attorney for U.S. government combined): 26 questions for Aereo, and 31 questions for the TV networks and U.S. government. But I’m not as confident in my prediction. Two lawyers represented the side of ABC, whereas Aereo had only one lawyer. If you look just at the lawyers for each party, ABC’s lawyer actually had fewer questions, 23 for ABC to 26 for Aereo. The total number of questions for ABC’s side (including the U.S. government) might be inflated if, for example, the Justices feel obliged to ask each attorney some questions (in which case ABC’s side would have received some extra questions that it wouldn’t have received if only one attorney represented its side at oral argument). Moreover, examining each Justice’s number of questions yields an even 4-4 split: Roberts, Ginsburg, Scalia, and Kennedy asked more questions to Aereo’s side, while Alito, Breyer, Kagan, and Sotomayor asked more questions to ABC’s side.  Thomas, as his custom, didn’t ask any questions.  Add in the complicating factor that Justice Kennedy’s past voting in cases did not follow the basic pattern of asking the losing side more questions.  Id. He’s a swing vote that defies the basic pattern.  So, based on the number of questions, we expect a 5-4 or 6-3 decision, but picking the winner might be too close to call. (more…)

    Lies and the First Amendment

    by  • April 22, 2014 • Faculty Commentary • 0 Comments

    By Christopher Schmidt [reposted from ISCOTUSnow]


    This post on United States v. Alvarez is part of ISCOTUS Director Chris Schmidt’s “Drama in the Court” series.

    Today the Supreme Court will hear oral arguments in Susan B. Anthony List v. Driehaus, a First Amendment challenge to an Ohio law that prohibits intentionally false statements about political candidates. The case itself presents the basic free speech question only obliquely. The central issue before the Court is a technical one: whether a party can even go to court to challenge this kind of law prior to being prosecuted for violating that law. This is a question, in other words, of whether the plaintiff has “standing” to make the First Amendment challenge. But the underlying constitutional question—whether the First Amendment permits the regulation of blatant lies in political campaigns—will surely be part of the tomorrow’s oral argument.

    The First Amendment status of lies is not a new issue for the Roberts Court. It was at issue before just two years ago in United States v. Alvarez, a case involving a small town public official who liked to tell stories about himself. In describing his background at a local water board meeting, Xavier Alvarez described himself as a retired marine who had won the Congressional Medal of Honor. This was a bald-faced lie. Alvarez had never even served in the military. It was, as the Court would describe it, “a pathetic attempt to gain respect that eluded him.” Alvarez was charged with violating the Stolen Valor Act of 2005, a federal law that prohibited falsely claiming military decorations or medals. Alvarez challenged the law as infringing his First Amendment right to free expression.

    The Supreme Court sided with Alvarez. Justice Kennedy, writing for a 6-3 majority (although his reasoning had only four votes), rejected the Justice Department’s contention that lies receive no protection under the First Amendment. As content-based speech restrictions, lies must be held to the most exacting demands of the First Amendment. “Some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee,” wrote Justice Kennedy.

    By looking back at oral argument in Alvarez, we can find a couple of fascinating moments that may help illuminate the issues the Court will consider tomorrow in the Susan B. Anthony List case. (more…)

    Documentary Film Series on Race: “Raising Our Voices”

    by  • April 18, 2014 • Faculty Workshops/ Conferences • 0 Comments

    Chicago-Kent’s Documentary Film Series on Race shows important films throughout the semester in an effort to create meaningful discussions about race.

    Join faculty, students, and alumni on Tuesday, April 22, at 12:00 pm for the final event in this semester’s series—a screening of “Raising Our Voices,” an award-winning documentary that seeks to raise awareness about the increasing hate crimes and bias incidents affecting South Asian communities, especially in the late 1990s. See a short summary from the documentary’s website below:

    The documentary features South Asian survivors of hate crimes and their families in Queens, New Jersey, Pittsburgh and Los Angeles, as well as organizers, lawyers and community advocates who mobilized the South Asian community and demanded justice. When the film was completed two weeks before September 11th, 2001, little did we know how the landscape of the South Asian community in the United States would change. With the alarming increase of hate crimes, bias incidents, and profiling that South Asians, especially those who are Sikh and Muslim, endured in the days and months after 9/11, SAALT re-envisioned the documentary and shot additional footage.

    Read more →

    Information:

    Tuesday, April 22, at 12:00 pm
    IIT Chicago-Kent College of Law, Governor Richard B. Ogilvie Auditorium
    Contact Grace Akinlemibola for more information