FedSoc Forums

Some Intellectual Property experts contend that American patent reliability has been in decline for 20 years. They point to the threat of inter partes review, the misuse of march-in rights under the Bayh-Dole Act, the imposition of reasonable or reference price clauses, direct government price-setting, and, most importantly, an inability to obtain an injunction after a finding of infringement. In fact, since the Supreme Court decided eBay v. MercExchange in 2006, injunctions have declined precipitously - some studies have shown as much as a 91% reduction. Are current patent owners and their licensees taking a risk in believing that their patents will accomplish their raison d’être… affecting the right to exclude? Is it true that patent owners cannot count on their patents to prevent copycat products from entering the market or to allow patent owners or their licensees to charge market prices for their goods? Should injunctive relief be more readily available in patent cases? This FedSoc forum will explore the history of injunctive relief in patent cases and explain the eBay opinion and how it is currently being applied by the trial courts. This program will also discuss potential legislative proposals to provide regular access to injunctive relief in order to restore patent reliability. Featuring: Prof. Jonathan Barnett, Professor, University of Southern California Gould School of Law Prof. Thomas Cotter, Taft, Stettinius & Hollister Professor of Law, University of Minnesota Law School Nick Matich, Principal, McKool Smith Hon. Paul Michel, Former Chief Judge, United States Court of Appeals for the Federal Circuit Moderator: Jeffrey Depp, Policy Consultant, Center for Strategic and International Studies -- To register, click the link above.

In Vidal v. Elster (the “Trump Too Small” case), the Supreme Court unanimously upheld a federal limitation on registering trademarks that include other people’s names. All the Justices agreed that, though the limitation was content-based, it didn’t need to be judged under strict scrutiny. But behind this unanimity was a major rift about whether the Court should decide these matters by focusing on history and tradition, or should instead build on more recent precedents such as those dealing with “limited public forums.” Which is the better approach – and which is the one most likely to gain majority support in the future? Featuring: Prof. Barbara Lauriat, Associate Professor of Law & Dean’s Scholar in Intellectual Property, Texas Tech University School of Law Prof. Lisa Ramsey, Professor of Law, University of San Diego School of Law Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law Moderator: Prof. Zvi Rosen, Assistant Professor, Southern Illinois University School of Law

In Lindenberg v. Jackson National Life Ins. Co., 912 F.3d 348 (2018), the Sixth Circuit declared unconstitutional Tennessee’s law capping punitive damages based on the Tennessee constitution. But in the wake of Lindenberg, Tennessee state courts continue to reduce punitive damage awards in reliance on the statutory cap because the Tennessee Supreme Court has not directly addressed the law’s constitutionality. And in a case on a different statutory damages cap, the Tennessee Supreme Court indicated it likely would have disagreed with the Sixth Circuit. McClay v. Airport Mgmt Svcs, 596 S.W.3d 686, 693 n.6 (Tenn. 2020) Federal court certification of state law questions to state high courts is a thorny issue with competing concerns. All states but North Carolina permit certification, but the federal courts control which questions presented in the case it certifies for resolution. State courts are free to decline to answer the questions certified and to do so after a period of months, as happened in Lindenberg. Some experts point out that even when the state court chooses to answer the questions certified, the process can be time consuming and inefficient.Our panel will explore the issues of federalism, efficiency, and prudence presented when considering the question certification process between federal and state courts. Featuring: Hon. Rachel Wainer Apter, Associate Justice, Supreme Court of New Jersey Hon. Benjamin Beaton, United States District Court for the Western District of Kentucky Hon. Sarah Keeton Campbell, Justice, Supreme Court of Tennessee Moderator: Hon. Jennifer Perkins, Arizona Court of Appeals, Division One --- To register, click the link above.

In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022), pro-choice advocates have argued that restrictions on abortion violate freedom of religion in some circumstances. A recent decision by the Indiana Court of Appeals, academic articles, and media stories have taken up these religious free-exercise challenges to abortion laws. This panel will explore the constitutional and statutory grounds for these claims in different faith traditions. pro-life responses to them, and the implications of these claims for religious liberty and for the post-Dobbs legal status of abortion. Featuring: Erin M. Hawley, Senior Counsel, Vice President of Center for Life & Regulatory Practice, Alliance Defending Freedom Prof. Michael A. Helfand, Brenden Mann Foundation Chair and Co-Director of the Nootbaar Institute for Law, Pepperdine Caruso School of Law Prof. Jessie Hill, Associate Dean and Professor of Law, Case Western Reserve University School of Law Prof. Sherif Girgis, Associate Professor of Law, University of Notre Dame Law School (Moderator) Prof. Michael Moreland, Professor of Law and Religion and Director of the Eleanor H. McCullen Center for Law, Villanova University Charles Widger School of Law

The U.S. International Trade Commission (ITC), long a favored forum for patent infringement disputes, has recently come under fire for duplicating the functions of the federal courts where patents disputes – often the same ones that are before the ITC – are litigated. In this panel, Professors Jorge L. Contreras, Michael Doane, and F. Scott Kieff will discuss the pros and cons of the ITC's patent jurisdiction and whether any changes are warranted in light of technology markets that are increasingly global in scope. Featuring: Prof. Jorge L. Contreras, James T. Jensen Endowed Professor for Transactional Law & Director of the Program on Intellectual Property and Technology Law, University of Utah S.J. Quinney College of Law Prof. Michael Doane, Visiting Assistant Professor of Law, University of Akron School of Law Prof. F. Scott Kieff, Stevenson Bernard Professor, George Washington University Law School, and Former Commissioner, U.S. International Trade Commission Moderator: Michael K. Friedland, Founding Partner, Friedland Cianfrani LLP -- To register, click the link above.

The 1947 Taft-Hartley amendments to the National Labor Relations Act, doggedly opposed by organized labor, included compliance with practicable portions of the federal rules of evidence and civil procedure, barring the Board from treating supervisors and independent contractors as protected employees, expressly incorporating employer free-speech rights, and more. Where are the Taft-Hartley amendments today and why? Featuring: Fred B. Jacob, Solicitor, National Labor Relations Board Hon. John F. Ring, Partner, Morgan, Lewis & Bockius, former Chairman of the National Labor Relations Board

Should private attorneys general enforce laws? Proponents argue that this approach allows individuals and private entities to act in the public interest, supplementing often overburdened or under-resourced government agencies. This can lead to more comprehensive enforcement of laws, particularly in areas such as environmental protection, consumer rights, and civil liberties, where violations might otherwise go unchecked. On the other hand, critics contend that private enforcement of public laws unconstitutionally delegates enforcement power from executive officers to private citizens. Such laws eviscerate political accountability and undermine the rule of law, which leads to inconsistent application of laws and potentially frivolous or profit-driven lawsuits. Join us as we examine these perspectives. Featuring: Judd Stone II, Former Solicitor General, Texas Andrew Davis, Partner, Lehotsky Keller Cohn LLP Moderator: Karen Harned, President, Harned Strategies LLC

In January 2024, the U.S. Energy Information Administration (EIA) initiated an “emergency collection” of information about the electricity consumption of leading cryptocurrency mining companies operating in the United States. EIA’s Administrator declared the agency’s intent to analyze and report on the energy implications of cryptocurrency mining activities in the United States. This followed reports by leading environmental groups that have claim that, as an extremely energy-intensive process, cryptocurrency mining threatens the ability of governments across the globe to reduce dependence on fossil fuels, declaring, “If we do not take action to limit this growing industry now, we will not meet the goals set forth by the Paris Agreement and the Intergovernmental Panel on Climate Change to limit warming to 2 degrees Celsius.” In response to the EIA’s action, several leaders of the crypto community filed suit, swiftly securing a preliminary injunction of EIA’s “emergency” action. This panel will discuss the litigation to date, the growth of crypto, Bitcoin mining, and the impact its data centers may be having on electric demand and the environment. What might EIA have planned in the future? What are states already doing? And are there implications for the burgeoning datacenter demands anticipated by the growth of Artificial Intelligence (AI)? Featuring: Thomas Cmar, Senior Attorney of the Clean Energy Program, Earthjustice Ewelina Czapla, Director of Energy Policy, Chamber of Digital Commerce, Digital Power Network Kara Rollins, Litigation Counsel, New Civil Liberties Alliance Moderator: Jonathan Brightbill, Former Acting Assistant Attorney General, United States Department of Justice; Partner, Winston & Strawn LLP --- To register, click the link above.

On Thursday, July 25, the Washington, D.C. Lawyers Chapter gathered for the annual Supreme Court Round Up discussing the 2023-2024 term. Featuring: Hon. Paul D. ClementPartner,Clement & Murphy PLLC Mayflower Hotel (Grand Ballroom)1127 Connecticut Ave NWWashington, D.C. 20036

In 2017, New York passed a law requiring employers to cover abortions in their health insurance plans. New York initially planned to exempt religious employers with sincere religious objections but later changed the exemption to protect only religious entities whose purpose is to inculcate religious values and who primarily employ and serve coreligionists. This exempted non-objecting ministries while leaving many religious groups that do object unprotected. Several of these unprotected religious groups—including an order of Anglican nuns, Roman Catholic dioceses, and Baptist and Lutheran churches—sued New York, arguing that the law forced them to violate their deeply held religious beliefs. The New York courts ruled against the religious groups and in 2021, represented by Jones Day and Becket, the groups asked the U.S. Supreme Court to hear its case. The Supreme Court granted the petition, vacated the bad rulings from the New York state courts, and told the state courts to reconsider the case in light of Fulton v. City of Philadelphia. But on May 21, 2024, the New York Court of Appeals found Fulton inapplicable and again upheld the abortion mandate. The religious groups’ cert petition is due on August 18, 2024. Featuring: Lori Windham, Vice President and Senior Counsel, The Becket Fund for Religious Liberty (Moderator) Whitney Hermandorfer, Director of Strategic Litigation Unit, Office of the Tennessee Attorney General