In the next stage of its continuing quest to reexamine every significant aspect of the Federal Circuit’s doctrinal framework for patents, the Court in Nautilus, Inc. v. Biosig Instruments will consider the proper standard for invalidating a patent claim as “indefinite.”

Background: The case involves a technical solution to a common problem in the exercise-equipment industry.  How can you measure the heartbeat of the exerciser without attaching electrodes?  The principal difficulty is that the body generates two separate sets of electrical waves, with similar amplitudes:  “ECGs,” the waves from the heart, which have the distinctive pattern we’ve all seen on heart monitors; and “EMGs,” which come from muscles.  Because the two kinds of waves have similar amplitudes, simply recording the waves from any particular place on the body (such as the hands) will present a mass of noise from which the ECGs cannot easily be discerned.

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Thursday round-up

By on Apr 17, 2014 at 8:31 am


  • Writing for the Legal Times, Tony Mauro reports on Tuesday’s sentencing in D.C. Superior Court of Noah Kai Newkirk, who was arrested in February for disrupting an oral argument at the Supreme Court.  Newkirk was sentenced to time served and ordered to pay $150.
  • Tonight at 6 p.m. C-SPAN and C-SPAN Radio will air an appearance by Justices Ruth Bader Ginsburg and Antonin Scalia at the National Press Club, where they will discuss (among other things) the First Amendment with host Marvin Kalb. Continue reading »
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At 10 a.m. next Tuesday, the Supreme Court continues its current fascination with free speech and the First Amendment, exploring at a one-hour hearing when an advocacy group can challenge a restriction on election campaign rhetoric.  Arguing for two advocacy groups in Susan B. Anthony List v. Driehaus will be Michael A. Carvin of the Washington, D.C., office of Jones Day, with twenty minutes of time.  If the Court, as expected, permits the federal government to join in the argument, its views will be represented by Eric J. Feigin, an Assistant to the U.S. Solicitor General, with ten minutes.  Ohio’s lawyer at the lectern, with thirty minutes, will be Ohio Solicitor Eric E. Murphy of Columbus.


The attack ad, often used to shame a candidate in an effort to persuade voters, is as common in today’s political campaigns as buttons, town hall meetings, and endorsements.  But it is not routine for the government to try to police those ads.  The state of Ohio and some fifteen others try to do so, however, and that has helped produce the latest First Amendment case for a Supreme Court that currently has a keen interest in that amendment, especially in campaign settings.

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Petitions of the day

By on Apr 16, 2014 at 10:15 pm

The petitions of the day are:

Jesinoski v. Countrywide Home Loans, Inc.

Issue: Whether a borrower exercises his right to rescind a transaction in satisfaction of the requirements of the Truth in Lending Act, 15 U.S.C. § 1635, by “notifying the creditor” in writing within three years of the consummation of the transaction, as the Third, Fourth, and Eleventh Circuits have held, or must instead file a lawsuit within three years of the consummation of the transaction, as the First, Sixth, Eighth, Ninth, and Tenth Circuits have held.

Keiran v. Home Capital, Inc.

Issue: Whether, to exercise the right to rescind a mortgage loan under the Truth in Lending Act, it is sufficient for a consumer to notify the creditor in writing within three years of obtaining the loan (as the Third and Fourth Circuits have held, and as the Consumer Financial Protection Bureau has concluded), or whether the consumer must also file suit within that three-year period (as the Eighth, Ninth, and Tenth Circuits have held).

A federal judge in Bismarck, North Dakota, on Wednesday struck down the strictest anti-abortion law in the nation, a ban on ending pregnancy after a fetal heartbeat is detected — that is, at about six weeks.  Separately, U.S. District Judge Daniel L. Hovland rejected a legal maneuver by lawyers for the state seeking to prohibit all abortions in North Dakota, at any point in pregnancy.

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The Supreme Court disclosed Wednesday, in routine entries on its docket, that Justice Samuel A. Alito, Jr., will now be taking part in two cases from which he had held himself out earlier — both set for argument next week.

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An update on our press pass

By on Apr 16, 2014 at 9:56 am

Last week, the Senate Press Gallery denied SCOTUSblog’s application for a press pass, and advised us that it would refuse to renew the credential it had previously granted Lyle when it expires next month.  We were disappointed in that decision, and we are grateful for the support that we have received through social media, emails, and phone calls.

We thought it would be useful to write and explain the state of play regarding our credentialing.  SCOTUSblog is not now, and has never been, credentialed by the Supreme Court.  The Court’s longstanding policy was to look to credentials issued by the Senate.  We pursued a Senate credential for several years, modifying several policies of the blog to address concerns expressed by the Gallery.  Last year, we  finally succeeded – the Senate Press Gallery credentialed Lyle as a reporter for SCOTUSblog.  We then presented that credential to the Supreme Court, thinking that the issue was resolved.

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The Supreme Court opens its final argument session of the Term next Monday, and it begins with a one-hour argument at 10 a.m. on the latest round in the long-running controversy over default on Argentine bonds.  Arguing for the government of Argentina in Republic of Argentina v. NML Capital Ltd., with twenty minutes of time, will be Jonathan L. Blackman of the New York City office of Cleary Gottlieb Steen & Hamiltion.  If, as is expected, the Court permits the U.S. government to argue as an amicus in support of Argentina, its views will be presented by Deputy Solicitor General Edwin S. Kneedler, with ten minutes.  Investors seeking to collect on defaulted bonds will be represented by Theodore B. Olson of the Washington, D.C., office of Gibson Dunn & Crutcher, with thirty minutes.


(Alex Proimos)

(Alex Proimos)


Amid a name-calling public relations battle, the prolonged legal saga over Argentina’s dealings with investors from the U.S. and around the world opens another chapter in the Supreme Court next week.  In some ways, this is a prelude to a much more dramatic chapter that will unfold later at the Court.  But the outcome of this one could importantly shape the later one. Continue reading »

Wednesday round-up

By on Apr 16, 2014 at 7:32 am


  • At, Damon Root responds to the argument by retired Justice John Paul Stevens, made in his new book, that the Second Amendment should be rewritten to provide that “the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”  Root argues that, although “Stevens would rewrite the Constitution in order to give lawmakers free rein to enact prohibitory gun control measures,” “the whole point of the Bill of Rights is to place certain liberties beyond the reach of lawmakers. That means the judiciary often has no choice but to ‘curtain the legislative power’ and strike down overreaching statutes.”
  • In USA Today, Richard Wolf previews next week’s oral argument in Republic of Argentina v. NML Capital, in which the Court will consider the extent to which Argentina’s creditors can go after the country’s assets to compensate them for Argentina’s default on bonds that it issued.
  • At the Legal History Blog, Dan Ernst discusses the list of docket books released by the Court’s Office of the Curator, as well as the rules governing public access to those books.

Remember, we rely on our readers to send us links for our round-up.  If you have a recently published article, post, or op-ed about the Supreme Court that you’d like us to consider for the round-up, please send it to roundup [at]  Thank you!  


Petition of the day

By on Apr 15, 2014 at 10:17 pm

The petition of the day is:

T-Mobile South, LLC v. City of Roswell

Issue: Whether a document from a state or local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy the Communications Act’s “in writing” requirement.

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