The Supreme Court heard two oral arguments in patent cases on Tuesday.   I’m predicting the winners based on the method of counting up the number of questions.

The first case, Commil USA v. Cisco Systems, asks whether the Federal Circuit erred in holding that a defendant’s belief that a patent is invalid is a defense to induced infringement under 35 U.S.C. § 271(b).  Justice Breyer was recused.

Figure 1.

As Figure 1 indicates, the total question count favors the Respondent (Cisco), which received 17 fewer questions than the Petitioner’s side (including the Solicitor General as amicus supporting the Petitioner).  Even discounting the fact that the Court might be inclined to ask both attorneys on the Petitioner’s side the same or similar questions (thus inflating the number of questions for the Petitioner’s side), I will go with a victory for the Respondent. It would be a rare recent affirmance of the Federal Circuit.

The second case, Kimble v. Marvel Enterprises, asks whether this Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se.”

As Figure 2 indicates, the total question count favors the Respondent (Marvel Enterprises), whose side (along with the Solicitor General supporting Respondent) received 8 fewer questions than the Petitioner.

The question count by Justice is more mixed.  Four Justices asked the Respondent’s side (with SG) more questions, but the margins were not great: Roberts (+5), Scalia (+2), Kennedy (+1), and Sotomayor (+1).  Three Justices asked the Petitioner’s side more questions: Ginsburg (+1), Breyer (+7), and Kagan (+11).  Justices Alito and Thomas asked no questions.

Even though the question count by Justice favors slightly the Petitioner, I predict a victory for the Respondent based on the total question count.

The Supreme Court held only one oral argument on Monday.   I’m predicting the winners based on the method of counting up the number of questions.  After a very successful start of the Term (7 of 9 correct in the first month), my prediction percentage has slipped considerably to 52%,  so you should take everything with a grain of salt.

The case Brumfield v. Cain asks (1) whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2); and (2) whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his “opportunity to be heard,” contrary to Atkins and Ford v. Wainwright and his constitutional right to be provided with the “basic tools” for an adequate defense, contrary to Ake v. Oklahoma.

As Figure 1 indicates, the total question count favors the Respondent (Cain).  The Court asked the Respondent 12 fewer questions: 47 questions total compared to 59 questions to the Petitioner (Brumfield).   It’s a modest differential, but still a significant one compared to many of the other cases.

The question count by individual Justice also favors the Respondent.  Five Justices asked the Petitioner more questions: Roberts (+4), Scalia (+1), Kennedy (+8), Sotomayor (+3), and Alito (+6).  Three Justices asked the Respondent more questions: Ginsburg (+3), Breyer (+4), and Kagan (+4).  The numbers suggest alignments along ideological lines.  Even if Justice Sotomayor sides with the other liberal Justices, the conservative Justices appear to have enough for a majority.

Based on these numbers, I’ll predict a victory for the Respondent.

On Tuesday, the Supreme Court heard oral argument in two consolidated cases related to the treatment of underwater mortgages in bankruptcy.  I’m predicting the winners based on the method of counting up the number of questions.

Bank of America NA v. Caulkett asks “whether, under Section 506(d) of the Bankruptcy Code, which provides that ‘[t]o the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void,’ a Chapter 7 debtor may ‘strip off’ a junior mortgage lien in its entirety when the outstanding debt owed to a senior lien-holder exceeds the current value of the collateral.”

Figure 1.

As Figure 1 indicates, the total question count was very close. The Petitioner (Bank of America) was asked 40 questions, while the Respondents were asked 43 questions.  That’s a small differential.

The question count by Justice was also very close.  Three Justices asked the Petitioner more questions: Justices Scalia (+6), Kennedy (+2), and Ginsburg (+3).  Three Justices asked the Respondent more questions: Justices Breyer (+8), Sotomayor (+4), and Kagan (+2). Chief Justice Roberts asked the same number of questions (2), as did Justice Alito (1).

It’s a toss-up.  But I’ll go with the Respondents, given the possible conservative alignment. It’s just a hunch–the numbers are too close to call.

The Supreme Court heard oral argument two cases on Monday.  I’m predicting the winners based on the method of counting up the number of questions.  Both of today’s cases are difficult to predict based on the question count.

The first case is an important First Amendment case, Walker v. Texas Division, Sons of Confederate Veterans, which asks (1) whether the messages and images that appear on state-issued specialty license plates qualify as government speech immune from any requirement of viewpoint neutrality; and (2) whether Texas engaged in “viewpoint discrimination” by rejecting the license-plate design proposed by the Sons of Confederate Veterans, when Texas has not issued any license plate that portrays the confederacy or the confederate battle flag in a negative or critical light.

Figure 1.

As Figure 1 shows, the total question count slightly favors the Petitioner (Texas SG), which received 5 fewer questions than Respondent (Sons of Confederate Veterans).

The question count by individual Justice presents a mixed picture, however.  Chief Justice Roberts and Justice Kagan asked the Petitioner 6 more questions–which suggests they are leaning to the Respondent.  Justices Ginsburg and Sotomayor asked the Respondent 6 more questions–which suggests they are leaning to the Petitioner.  Justice Kennedy also asked the Respondent 3 more questions, but he’s been less predictable based on his question count.  Justice Breyer asked the Respondent 2 more questions, a small differential.

Meanwhile, Justices Scalia and Alito asked both sides the same number of questions (11 and 5 questions, respectively).  Given these numbers, I think the case is tough to call based on simply the question count.  But my guess would be that Justices Scalia and Alito join Roberts and Kagan, who appear to be leaning to the Respondent’s side, which argued for affirmance of the Fifth Circuit’s decision holding that Texas’s denial of vanity license plates for Respondent’s Confederate flag violated the First Amendment.  I will give the edge to the Respondent.

The second case, San Francisco v. Sheehan, asks “(1) whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody; and (2) whether it was clearly established that even where an exception to the warrant requirement applied, an entry into a residence could be unreasonable under the Fourth Amendment by reason of the anticipated resistance of an armed and violent suspect within.”

This case is difficult to predict for several reasons.  First, it is an asymmetrical case with the Petitioner, the Respondent, and the Solicitor General arguing as amicus for vacatur in part and reversal in part.  Because the SG is allotted only 10 minutes, one cannot do a simple comparison of the three attorneys’ question counts.  Second, Justice Breyer recused, so only 8 Justices will be deciding the case.

Figure 2.

As Figure 2 shows, the Respondent (Sheehan) received 49 questions, while the Petitioner (San Francisco) received 39 questions.  This count favors the Petitioner.   The SG did not side with the Petitioner, but the SG’s position of partial reversal and vacatur is more favorable to the Petitioner.

The question count by individual Justice also slightly favors the Petitioner’s side.  Only Justice Scalia asked the Petitioner more questions.  Chief Justice Roberts and Justices Kennedy and Thomas asked no questions to the Petitioner, whereas 7 of the 8 Justices asked questions to the Respondent.  Justices Ginsburg, Alito, and Kagan asked the Petitioner fewer questions than the Respondent by small margins (1, 1, and 3 respectively).  Justice Sotomayor asked both sides the same number of questions.

Based on these numbers, I will go with a reversal or vacatur of the decision below.  It’s too difficult to tell simply based on the question count whether the Court will favor the Petitioner’s or SG’s position, so I will leave it as reversal of some kind.