Tuesday, April 24, 2018

Oil States Energy Services, LLC v. Greene's Energy Group, LLC, Docket No. 16-712

Patent (reexamination): Inter partes review: Art. III Court: Seventh Amendment:

The Leahy-Smith America Invents Act, 35 U. S. C. §100 et seq., establishes a process called “inter partes review.” Under that process, the United States Patent and Trademark Office (PTO) is authorized to reconsider and to cancel an issued patent claim in limited circumstances. In this case, we address whether inter partes review violates Article III or the Seventh Amendment of the Constitution. We hold that it violates neither.
Over the last several decades, Congress has created administrative processes that authorize the PTO to reconsider and cancel patent claims that were wrongly issued. In 1980, Congress established “ex parte reexamination,” which still exists today. See Act To Amend the Patent and Trademark Laws, 35 U. S. C. §301 et seq. Ex parte re- examination permits “any person at any time” to “file a request for reexamination.” §302. If the Director determines that there is “a substantial new question of patent-ability” for “any claim of the patent,” the PTO can reexamine the patent. §§303(a), 304. The reexamination process follows the same procedures as the initial exami-nation. §305.
In 1999, Congress added a procedure called “inter partes reexamination.” See American Inventors Protection Act, §§4601–4608, 113 Stat. 1501A–567 to 1501A–572. Under this procedure, any person could file a request for reexamination. 35 U. S. C. §311(a) (2006 ed.). The Director would determine if the request raised “a substantial new question of patentability affecting any claim of the patent” and, if so, commence a reexamination. §§312(a), 313 (2006 ed.). The reexamination would follow the general procedures for initial examination, but would allow the third-party requester and the patent owner to participate in a limited manner by filing responses and replies. §§314(a), (b) (2006 ed.). Inter partes reexamination was phased out when the America Invents Act went into effect in 2012. See §6, 125 Stat. 299–305.
The America Invents Act replaced inter partes reexamination with inter partes review, the procedure at issue here. See id., at 299. Any person other than the patent owner can file a petition for inter partes review. 35 U. S. C. §311(a) (2012 ed.). The petition can request cancellation of “1 or more claims of a patent” on the grounds that the claim fails the novelty or nonobviousness standards for patentability. §311(b). The challenges must be made “only on the basis of prior art consisting of patents or printed publications.” Ibid. If a petition is filed, the patent owner has the right to file a preliminary response explaining why inter partes review should not be instituted. §313.
Once inter partes review is instituted, the Patent Trial and Appeal Board—an adjudicatory body within the PTO created to conduct inter partes review—examines the patent’s validity. See 35 U. S. C. §§6, 316(c).
A party dissatisfied with the Board’s decision can seek judicial review in the Court of Appeals for the Federal Circuit. §319.

Secondary authorities: Lemley, Why Do Juries Decide If Patents Are Valid? 99 Va. L. Rev. 1673, 1682, 1685–1686, and n. 52 (2013).

(U.S.S.C., April 24, 2018, Oil States Energy Services, LLC v. Greene's Energy Group, LLC, Docket No. 16-712, J. Thomas)

La procédure dite "inter partes review" permet à un tiers, à des conditions limitées, de saisir le PTO d'une requête en reconsidération des revendications et en annulation partielle ou complète d'un brevet (35 U. S. C. §311(a) (2012 ed.)). Cette procédure n'est contraire ni à l'Art. III ni au Septième Amendement de la Constitution fédérale. Le tiers requérant peut invoquer que la solution technique n'est pas nouvelle, ou qu'elle est évidente. La décision rendue par le PTO peut être déférée devant la Cour d'appel pour le Circuit fédéral.
Une autre procédure, dite "ex parte reexamination" (35 U. S. C. §301 et seq.), permet également à un tiers de saisir le PTO d'une requête en reconsidération des revendications et en annulation partielle ou complète d'un brevet. La reconsidération suit les mêmes règles de procédure que celles applicables à l'examen initial.

SAS Institute Inc. v. Iancu, Docket No. 16-969

Patent: Inter partes review:

A few years ago Congress created “inter partes review.” The new procedure allows private parties to challenge previously issued patent claims in an adversarial process before the Patent Office that mimics civil litigation. Re­cently, the Court upheld the inter partes review statute against a constitutional challenge. Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, ante, p. ___. Now we take up a question concerning the statute’s opera­tion. When the Patent Office initiates an inter partes review, must it resolve all of the claims in the case, or may it choose to limit its review to only some of them? The statute, we find, supplies a clear answer: the Patent Office must “issue a final written decision with respect to the patentability of any patent claim challenged by the peti­tioner.” 35 U. S. C. §318(a). In this context, as in so many others, “any” means “every.” The agency cannot curate the claims at issue but must decide them all.
Because SAS challenged all 16 claims of Comple­ment Soft’s patent, the Board in its final written decision had to address the patentability of all 16 claims. Much as in the civil litigation system it mimics, in an inter partes review the petitioner is master of its complaint and nor­mally entitled to judgment on all of the claims it raises, not just those the decisionmaker might wish to address.

(U.S.S.C., April 24, 2018, SAS Institute Inc. v. Iancu, Docket No. 16-969, J. Gorsuch)

Cette décision complète l'affaire Oil States Energy Services, LLC v. Greene's Energy Group, LLC (2018). La présente précise que le PTO doit rendre une décision qui se prononce sur toutes les contestations de revendications, sans pouvoir choisir de se prononcer sur certaines seulement.

Oil States Energy Services, LLC v. Greene's Energy Group, LLC, Docket No. 16-712

Common law: Privy Council: Court of Chancery: Patent: Inter partes review:

(…) History does not establish that patent validity is a matter that, “from its nature,” must be decided by a court (…) There was another means of canceling a patent in 18th-century England, which more closely resembles inter partes review: a petition to the Privy Council to vacate a patent. See Lemley, infra, at 1681–1682; Hulme, Privy Council Law and Practice of Letters Patent for Invention From the Restoration to 1794, 33 L. Q. Rev. 63 (1917). The Privy Council was composed of the Crown’s advisers. Lemley, infra, at 1681. From the 17th through the 20th centuries, English patents had a standard revocation clause that permitted six or more Privy Counsellors to declare a patent void if they determined the invention was contrary to law, “prejudicial” or “inconvenient,” not new, or not invented by the patent owner. See 11 W. Holdsworth, A History of English Law 426–427, and n. 6 (1938); Davies, The Early History of the Patent Specification, 50 L. Q. Rev. 86, 102–106 (1934). Individuals could petition the Council to revoke a patent, and the petition was referred to the Attorney General. The Attorney General examined the petition, considered affidavits from the petitioner and patent owner, and heard from counsel. See, e.g., Bull v. Lydall, PC2/81, pp. 180–181 (1706). Depending on the Attorney General’s conclusion, the Council would either void the patent or dismiss the petition. See, e.g., Darby v. Betton, PC2/99, pp. 358–359 (1745–1746) (voiding the patent); Baker v. James, PC2/103, pp. 320–321, 346–347 (1752) (dismissing the petition).
The Privy Council was a prominent feature of the English system. It had exclusive authority to revoke patents until 1753, and after that, it had concurrent jurisdiction with the courts. See Hulme, 33 L. Q. Rev., at 189–191, 193–194. The Privy Council continued to consider revocation claims and to revoke patents throughout the 18th century. Its last revocation was in 1779. See id., at 192–193. It considered, but did not act on, revocation claims in 1782, 1794, and 1810. See ibid.; Board of Ordinance v. Parr, PC1/3919 (1810).
The Patent Clause in our Constitution “was written against the backdrop” of the English system. Graham, 383 U. S., at 5. Based on the practice of the Privy Council, it was well understood at the founding that a patent system could include a practice of granting patents subject to potential cancellation in the executive proceeding of the Privy Council. The parties have cited nothing in the text or history of the Patent Clause or Article III to suggest that the Framers were not aware of this common practice. Nor is there any reason to think they excluded this practice during their deliberations. And this Court has recognized that, “within the scope established by the Constitution, Congress may set out conditions and tests for patentability.” Id., at 6. We conclude that inter partes review is one of those conditions.

From the dissenting opinion (J. Gorsuch):

As I read the historical record presented to us, only courts could hear patent challenges in England at the time of the founding. If facts were in dispute, the matter first had to proceed in the law courts. See, e.g., Newsham v. Gray, 2 Atk. 286, 26 Eng. Rep. 575 (Ch. 1742). If successful there, a challenger then had to obtain a writ of scire facias in the law side of the Court of Chancery. See, e.g., Pfander, Jurisdiction-Stripping and the Supreme Court’s Power To Supervise Inferior Tribunals, 78 Texas L. Rev. 1433, 1446, n. 53 (2000); Lemley, Why Do Juries Decide If Patents Are Valid? 99 Va. L. Rev. 1673, 1686–1687 (2013) (Lemley, Juries). The last time an executive body (the King’s Privy Council) invalidated an invention patent on an ordinary application was in 1746, in Darby v. Betton, PC2/99, pp. 358–359; and the last time the Privy Council even considered doing so was in 1753, in Baker v. James, PC2/103, pp. 320–321. After Baker v. James, the Privy Council “divested itself of its functions” in ordinary patent disputes, Hulme, Privy Council Law and Practice of Letters Patent for Invention from the Restoration to 1794 (Pt. II), 33 L. Q. Rev. 180, 194 (1917), which “thereafter were adjudicated solely by the law courts, as opposed to the crown’s prerogative courts,” Mossoff, Rethinking the Development of Patents: An Intellectual History, 1550– 1800, 52 Hastings L. J. 1255, 1286–1287 (2001) (Mossoff, Rethinking Patents).
This shift to courts paralleled a shift in thinking. Patents began as little more than feudal favors. Id., at 1261. The crown both issued and revoked them. Lemley, Juries 1680–1681. And they often permitted the lucky recipient the exclusive right to do very ordinary things, like operate a toll bridge or run a tavern. Ibid. But by the 18th century, inventors were busy in Britain and invention patents came to be seen in a different light. They came to be viewed not as endowing accidental and anticompetitive monopolies on the fortunate few but as a procompetitive means to secure to individuals the fruits of their labor and ingenuity; encourage others to emulate them; and promote public access to new technologies that would not otherwise exist. Mossoff, Rethinking Patents 1288–1289. The Constitution itself reflects this new thinking, authorizing the issuance of patents precisely because of their contribution to the “Progress of Science and useful Arts.” Art. I, §8, cl. 8. “In essence, there was a change in perception—from viewing a patent as a contract between the crown and the patentee to viewing it as a ‘social contract’ between the patentee and society.” Waltersheid, The Early Evolution of the United States Patent Law: Antecedents (Part 3), 77 J. Pat. & T. Off. Soc. 771, 793 (1995). And as invention patents came to be seen so differently, it is no surprise courts came to treat them more solicitously.
See also Brief for H. Tomás Gómez-Arostegui et al. as Amici Curiae 6–37; Brief for Alliacense Limited LLC as Amicus Curiae 10–11; Gómez-Arostegui & Bottomley, Privy Council and Scire Facias 1700–1883, p. 2 (Nov. 6, 2017) (Addendum), https://ssrn.com/ abstract=3054989 (all Internet materials as last visited Apr. 20, 2018); Observations on the Utility of Patents, and on the Sentiments of Lord Kenyon Respecting That Subject 23 (2d ed. 1791) (“If persons of the same trade find themselves aggrieved by Patents taken for any thing already in use, their remedy is at hand. It is by a writ of Scire Facias”); Mancius v. Lawton, 10 Johns. 23, 24 (NY Sup. Ct. 1813) (Kent, C. J.) (noting the “settled English course” that “letters-patent . . . can only be avoided in chancery, by a writ of scire facias sued out on the part of the government, or by some individual prosecuting in its name”).
Unable to dispute that judges alone resolved virtually all patent challenges by the time of the founding, the Court points to three English cases that represent the Privy Council’s dying gasp in this area: Board of Ordnance v. Wilkinson, PC2/123 (1779); Grill [Grice] v. Waters, PC2/127 (1782); and Board of Ordnance v. Parr, PC1/3919 (1810). Filed in 1779, 1782, and 1810, each involved an effort to override a patent on munitions during wartime, no doubt in an effort to increase their supply. But even then appealing to the Privy Council was seen as a last resort. The 1779 petition (the last Privy Council revocation ever) came only after the patentee twice refused instructions to litigate the patent’s validity in a court of law. Gómez-Arostegui & Bottomley, Privy Council and Scire Facias 1700–1883, p. 6 (Nov. 6, 2017) https://ssrn.com/abstract=3054989 (citing Board of Ordnance v. Wilkinson, PC2/123 (1779), and PC1/11/150 (1779)). The Council did not act on the 1782 petition but instead referred it to the Attorney General where it appears to have been abandoned. Gómez-Arostegui & Bottomley, Privy Council and Scire Facias, supra, at 17–18. Meanwhile, in response to the 1810 petition the Attorney General admitted that scire facias was the “usual manner” of revoking a patent and so directed the petitioner to proceed at law even as he suggested the Privy Council might be available in the event of a “very pressing and imminent” danger to the public. Id., at 20 (citing PC1/3919 (1810)).
In the end, these cases do very little to support the Court’s holding. At most, they suggest that the Privy Council might have possessed some residual power to revoke patents to address wartime necessities. Equally, they might serve only as more unfortunate evidence of the maxim that in time of war, the laws fall silent. After all, the English statute of monopolies appeared to require the “force and validitie” of all patents to be determined only by “the Comon Lawes of this Realme & not otherwise.” 21 Jac. 1, c. 3, §2 (1624). So the Privy Council cases on which the Court relies may not reflect the best understanding of the British constitution.
Any lingering doubt about English law is resolved for me by looking to our own. While the Court is correct that the Constitution’s Patent Clause “ ‘was written against the backdrop’ ” of English practice, ante, at 14 (quoting Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5 (1966)), it’s also true that the Clause sought to reject some of early English practice. Reflecting the growing sentiment that patents shouldn’t be used for anticompetitive monopolies over “goods or businesses which had long before been enjoyed by the public,” the framers wrote the Clause to protect only procompetitive invention patents that are the product of hard work and insight and “add to the sum of useful knowledge.” Id., at 5–6. In light of the Patent Clause’s restrictions on this score, courts took the view that when the federal government “grants a patent the grantee is entitled to it as a matter of right, and does not receive it, as was originally supposed to be the case in England, as a matter of grace and favor.” James v. Campbell, 104 U. S. 356, 358 (1882). As Chief Justice Marshall explained, courts treated American invention patents as recognizing an “inchoate property” that exists “from the moment of invention.” Evans v. Jordan, 8 F. Cas. 872, 873 (No. 4,564) (CC Va. 1813). American patent holders thus were thought to “hold a property in their inventions by as good a title as the farmer holds his farm and flock.” Hovey v. Henry, 12 F. Cas. 603, 604 (No. 6,742) (CC Mass. 1846) (Woodbury, J.). And just as with farm and flock, it was widely accepted that the government could divest patent owners of their rights only through proceedings before independent judges.

(U.S.S.C., April 24, 2018, Oil States Energy Services, LLC v. Greene's Energy Group, LLC, Docket No. 16-712, J. Thomas)

Description de la compétence historique du Privy Council et de la Court of Chancery en matière d'annulation de brevets d'invention. Cela en rapport avec la question de savoir si un brevet peut être annulé par l'administration fédérale (ici le PTO) ou si, comme le soutient l'opinion dissidente, seule une cour de justice au sens de l'Art. III de la Constitution fédérale est compétente pour prononcer une telle annulation.

Jesner v. Arab Bank, PLC, Docket No. 16-499, J. Gorsuch, concurring in part and concurring in the judgment

Common law: Customary international law: Law of nations: Emer de Vattel

Adopting new causes of action may have been a “proper function for common-law courts,” but it is not appropriate “for federal tribunals” mindful of the limits of their constitutional authority. Alexander v. Sandoval, 532 U. S. 275, 287 (2001).

The dissent claims that Congress’s decision to give federal courts “jurisdiction over claims based on ‘the law of nations,’” necessarily implies the authority to develop that law. That does not follow. Federal courts have jurisdiction over all kinds of cases—for example, those arising under the law of torts or contracts. Yet following our decision in Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), federal courts are generally no longer permitted to promulgate new federal common law causes of action in those areas. Id., at 75. I can see no reason to treat the law of nations differently. See Sosa v. Alvarez-Machain, 542 U. S. 692, 744–746 (2004) (Scalia, J., concurring in part and concurring in judgment).

You might wonder, for example, if the First Congress considered a “violation of the law of nations” to be a violation of, and thus “arise under,” federal law. But that does not seem likely. At the founding, the law of nations was considered a distinct “system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world,” 4 Blackstone 66. While this Court has called international law “part of our law,” The Paquete Habana, 175 U. S. 677, 700 (1900), and a component of the “law of the land,” The Nereide, 9 Cranch 388, 423 (1815), that simply meant international law was no different than the law of torts or contracts—it was “part of the so-called general common law,” but not part of federal law. Sosa, 542 U. S., at 739–740 (opinion of Scalia, J.). See Bradley & Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 824, 849 850 (1997); see also Young, Sorting Out the Debate Over Customary International Law, 42 Va. J. Int’l L. 365, 374–375 (2002). The text of the Constitution appears to recognize just this distinction. Article I speaks of “Offences against the Law of Nations,” while both Article III and Article VI’s Supremacy Clause, which defines the scope of pre-emptive federal law, omit that phrase while referring to the “Laws of the United States.” Congress may act to bring provisions of international law into federal law, but they cannot find their way there on their own. “The law of nations is not embodied in any provision of the Constitution, nor in any treaty, act of Congress, or any authority, or commission derived from the United States.” Caperton v. Bowyer, 14 Wall. 216, 228 (1872).

(…) (As a leading treatise explained, a sovereign “ought not to suffer his subjects to molest the subjects of others, or to do them an injury, much less should he permit them audaciously to offend foreign powers.” E. de Vattel, 1 The Law of Nations, bk. II, §76, p. 145 (1760). Instead, the nation “ought to oblige the guilty to repair the damage, if that be possible, to inflict on him an exemplary punishment, or, in short, according to the nature of the case, and the circumstances attending it, to deliver him up to the offended state there to receive justice.” Ibid. A sovereign who “refuses to cause a reparation to be made of the damage caused by his subject, or to punish the guilty, or, in short, to deliver him up, renders himself in some measure an accomplice in the injury, and becomes responsible for it.” Id., §77, at 145).

(U.S.S.C., Apr. 24, 2018, Jesner v. Arab Bank, PLC, Docket No. 16-499, J. Gorsuch, concurring in part and concurring in the judgment)

Dans la présente "concurring opinion", le Juge Gorsuch expose que l'adoption de nouvelles voies de droit était l'une des fonctions des cours de Common law, mais que tel n'est pas le cas des cours fédérales : depuis la décision Erie v. Tompkins rendue en 1938, les cours fédérales ne sont de manière générale plus autorisées à établir de nouvelles voies de droit dans le domaine contractuel ou délictuel.

Suit une citation de Emer de Vattel.

Jesner v. Arab Bank, PLC, Docket No. 16-499

Alien Tort Statute: International law: Corporate responsibility: Common law liability: Separation of powers: Judicial deference: Jurisdiction: Human rights: Bivens:

Alien Tort Statute, commonly referred to as the ATS. See 28 U. S. C. §1350.

Petitioners contend that international and domestic laws impose responsibility and liability on a corporation if its human agents use the corporation to commit crimes in violation of international laws that protect human rights. The question here is whether the Judiciary has the authority, in an ATS action, to make that determination and then to enforce that liability in ATS suits, all without any explicit authorization from Congress to do so.

During the pendency of this litigation, there was an unrelated case that also implicated the issue whether the ATS is applicable to suits in this country against foreign corporations. See Kiobel v. Royal Dutch Petroleum Co., 621 F. 3d 111 (CA2 2010).

After additional briefing and reargument in Kiobel, this Court held that, given all the circumstances, the suit could not be maintained under the ATS. Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108, 114, 124–125 (2013). The rationale of the holding, however, was not that the ATS does not extend to suits against foreign corporations. That question was left unresolved. The Court ruled, instead, that “all the relevant conduct took place outside the United States.” Id., at 124. Dismissal of the action was required based on the presumption against extraterritorial application of statutes.

The majority opinion in Kiobel, written by Judge Cabranes, held that the ATS does not apply to alleged international-law violations by a corporation. 621 F. 3d, at 120. Judge Cabranes relied in large part on the fact that international criminal tribunals have consistently limited their jurisdiction to natural persons. Id., at 132– 137. Judge Leval filed a separate opinion. He concurred in the judgment on other grounds but disagreed with the proposition that the foreign corporation was not subject to suit under the ATS. Id., at 196. Judge Leval conceded that “international law, of its own force, imposes no liabilities on corporations or other private juridical entities.” Id., at 186. But he reasoned that corporate liability for violations of international law is an issue of “civil compensatory liability” that international law leaves to individual nations. Ibid. Later decisions in the Courts of Appeals for the Seventh, Ninth, and District of Columbia Circuits agreed with Judge Leval and held that corporations can be subject to suit under the ATS. See Flomo v. Firestone Nat. Rubber Co., 643 F. 3d 1013, 1017–1021 (CA7 2011); Doe I v.Nestle USA, Inc., 766 F. 3d 1013, 1020 1022 (CA9 2014); Doe VIII v. Exxon Mobil Corp., 654 F. 3d 11, 40–55 (CADC 2011), vacated on other grounds, 527 Fed. Appx. 7 (CADC 2013). The respective opinions by Judges Cabranes and Leval are scholarly and extensive, providing significant guidance for this Court in the case now before it.

(…) The Judiciary Act also included what is now the statute known as the ATS. (…) As noted, the ATS is central to this case and its brief text bears repeating. Its full text is: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U. S. C. §1350.

(…) This Court now must decide whether common-law liability under the ATS extends to a foreign corporate defendant.

So it is proper for this Court to decide whether corporations, or at least foreign corporations, are subject to liability in an ATS suit filed in a United States district court. Before recognizing a common-law action under the ATS, federal courts must apply the test announced in Sosa. An initial, threshold question is whether a plaintiff can demonstrate that the alleged violation is “of a norm that is specific, universal, and obligatory.” 542 U. S., at 732. And even assuming that, under international law, there is a specific norm that can be controlling, it must be determined further whether allowing this case to proceed under the ATS is a proper exercise of judicial discretion, or instead whether caution requires the political branches to grant specific authority before corporate liability can be imposed. See id., at 732– 733, and nn. 20–21.

(…) It is proper now to turn first to the question whether there is an international-law norm imposing liability on corporations for acts of their employees that contravene fundamental human rights.

It does not follow, however, that current principles of international law extend liability—civil or criminal—for human-rights violations to corporations or other artificial entities. This is confirmed by the fact that the charters of respective international criminal tribunals often exclude corporations from their jurisdictional reach.

(…) Sosa is consistent with this Court’s general reluctance to extend judicially created private rights of action.

(…) This caution extends to the question whether the courts should exercise the judicial authority to mandate a rule that imposes liability upon artificial entities like corporations. Thus, in Malesko the Court held that corporate defendants may not be held liable in Bivens actions. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). Allowing corporate liability would have been a “marked extension” of Bivens that was unnecessary to advance its purpose of holding individual officers responsible for “engaging in unconstitutional wrongdoing.” Malesko, 534 U. S., at 74. Whether corporate defendants should be subject to suit was “a question for Congress, not us, to decide.” Id., at 72.

Neither the language of the ATS nor the precedents interpreting it support an exception to these general principles in this context. In fact, the separation-of-powers concerns that counsel against courts creating private rights of action apply with particular force in the context of the ATS. The political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns. See Kiobel, 569 U. S., at 116–117. That the ATS implicates foreign relations “is itself a reason for a high bar to new private causes of action for violating international law.” Sosa, supra, at 727.

Congress, not the Judiciary, must decide whether to expand the scope of liability under the ATS to include foreign corporations.

(…)  The lack of a clear and well-established international-law rule is of critical relevance in determining whether courts should extend ATS liability to foreign corporations without specific congressional authorization to do so.

(…) Judicial deference requires that any imposition of corporate liability on foreign corporations for violations of international law must be determined in the first instance by the political branches of the Government.

(U.S.S.C., Apr. 24, 2018, Jesner v. Arab Bank, PLC, Docket No. 16-499, J. Kennedy)

Alien Tort Statute (28 U. S. C. §1350) : il s'agit d'une loi fédérale qui permet d'engager la responsabilité de personnes physiques impliquées dans des crimes contre les droits de l'homme. La question que pose cette affaire est de savoir si la responsabilité s'étend à des personnes morales, dans la mesure où elles ont été utilisées par leurs organes pour la commissions de tels crimes. La loi ne répond pas à cette question. Dès lors, la Cour y répond par la négative : elle n'entend pas créer une nouvelle voie de droit déduite de la Common law fédérale. C'est le Congrès qui est compétent pour légiférer à ce niveau.

La Cour observe que les Tribunaux pénaux internationaux ont de manière consistante limité leurs compétences aux personnes physiques.

Et pour créer une voie de droit sous l'angle de la Common law dans le cadre d'une action ATS, une cour fédérale devrait d'abord reconnaître que le demandeur a démontré que l'infraction alléguée portait sur une norme spécifique, universelle et obligatoire. Elle devrait ensuite reconnaître que l'action dont elle est saisie est susceptible de résolution judiciaire, en écartant la nécessité d'une attribution de compétence du législateur permettant l'intervention judiciaire pour ce type de cas.

En l'espèce, la Cour juge qu'il n'existe à ce jour pas de principe de droit international qui étendrait aux personnes morales une responsabilité civile ou pénale suite à la violation de droits de l'homme.

Par ailleurs, du principe de la séparation des pouvoirs découle qu'une cour de justice ne saurait sans autre créer le principe d'une responsabilité des personnes morales. La Cour a jugé dans une autre affaire que, sauf prescription contraire du Congrès, une personne morale ne saurait être responsable dans le cadre d'une action Bivens (seul l'officier public peut être responsable, en tant que personne physique).

Oil States Energy Services, LLC v. Greene's Energy Group, LLC, Docket No. 16-712

Art. III Courts: Public-rights doctrine:

Article III vests the judicial power of the United States “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” §1. Consequently, Congress cannot “confer the Government’s ‘judicial Power’ on entities outside Article III.” Stern v. Marshall, 564 U. S. 462, 484 (2011). When determining whether a proceeding involves an exercise of Article III judicial power, this Court’s precedents have distinguished between “public rights” and “private rights.” Executive Benefits Ins. Agency v. Arkison, 573 U. S. ___, ___ (2014) (slip op., at 6). Those precedents have given Congress significant latitude to assign adjudication of public rights to entities other than Article III courts. See ibid.; Stern, supra, at 488–492.
This Court has not “definitively explained” the distinction between public and private rights, Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 69 (1982), and its precedents applying the public-rights doctrine have “not been entirely consistent,” Stern, 564 U. S., at 488. But this case does not require us to add to the “various formulations” of the public-rights doctrine. Ibid. Our precedents have recognized that the doctrine covers matters “which arise between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments.” Crowell v. Benson, 285 U. S. 22, 50 (1932). In other words, the public-rights doctrine applies to matters “ ‘arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it.’ ” Ibid. (quoting Ex parte Bakelite Corp., 279 U. S. 438, 451 (1929)).

(U.S.S.C., April 24, 2018, Oil States Energy Services, LLC v. Greene's Energy Group, LLC, Docket No. 16-712, J. Thomas)

Le Congrès peut attribuer compétence de décision à d'autres autorités que les cours de justice si des "droits publics" sont en jeu, en application de la "public-rights doctrine". Cette notion n'est pas clairement définie par la jurisprudence, mais on peut déduire de celle-ci qu'elle s'applique à des affaires qui surviennent entre le gouvernement et des tiers dans l'exécution de fonctions législatives ou exécutives, affaires qui, par leur nature, n'exigent pas une décision de justice.

Oil States Energy Services, LLC v. Greene's Energy Group, LLC, Docket No. 16-712

Seventh Amendment: Jury trial: Art. III Court:

The Seventh Amendment preserves the “right of trial by jury” in “Suits at common law, where the value in controversy shall exceed twenty dollars.” This Court’s precedents establish that, when Congress properly assigns a matter to adjudication in a non-Article III tribunal, “the Seventh Amendment poses no independent bar to the adjudication of that action by a nonjury factfinder.” Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 53–54 (1989); accord, Atlas Roofing Co., at 450–455. No party challenges or attempts to distinguish those precedents. Thus, our rejection of Oil States’ Article III challenge also resolves its Seventh Amendment challenge. Because inter partes review is a matter that Congress can properly assign to the PTO, a jury is not necessary in these proceedings.

(U.S.S.C., April 24, 2018, Oil States Energy Services, LLC v. Greene's Energy Group, LLC, Docket No. 16-712, J. Thomas)

Le droit à voir sa cause jugée par un Jury, tel que prévu par le Septième Amendement de la Constitution fédérale, ne peut pas être invoqué dans les affaires dont le Congrès a valablement attribué la compétence à une autorité autre qu'une cour au sens de l'Art. III.

Oil States Energy Services, LLC v. Greene's Energy Group, LLC, Docket No. 16-712, J. Gorsuch, dissenting

Judicial independence: Declaration of Independence: Art. III Court: Common law:

We sometimes take it for granted today that independent judges will hear our cases and controversies. But it wasn’t always so. Before the Revolution, colonial judges depended on the crown for their tenure and salary and often enough their decisions followed their interests. The problem was so serious that the founders cited it in their Declaration of Independence. Once free, the framers went to great lengths to guarantee a degree of judicial independence for future generations that they themselves had not experienced. Under the Constitution, judges “hold their Offices during good Behaviour” and their “Compensation . . . shall not be diminished during their Continuance in Office.” Art. III, §1. The framers knew that “a fixed provision” for judges’ financial support would help secure “the independence of the judges,” be-cause “a power over a man’s subsistence amounts to a power over his will.” The Federalist No. 79, p. 472 (C. Rossiter ed. 1961) (A. Hamilton). They were convinced, too, that “periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to the courts’ necessary independence.” The Federalist No. 78, at 471 (A. Hamilton).
“When a suit is made of the stuff of the traditional actions at common law tried by the courts at Westminster in 1789 . . . and is brought within the bounds of federal jurisdiction, the responsibility for deciding that suit rests with” Article III judges endowed with the protections for their independence the framers thought so important. Stern v. Marshall, 564 U. S. 462, 484 (2011).

(U.S.S.C., April 24, 2018, Oil States Energy Services, LLC v. Greene's Energy Group, LLC, Docket No. 16-712, J. Gorsuch, dissenting)

Les sources de l'indépendance de la justice, Art. III, §1 de la Constitution fédérale (The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office).

Friday, April 13, 2018

USITC Institutes Section 337 Investigation

April 13, 2018
News Release 18-043
Inv. No. 337-TA-1108

The U.S. International Trade Commission (USITC) has voted to institute an investigation of certain jump rope systems.  The products at issue in the investigation are jump ropes with handles that contain a bearing element that permits a shaft to more easily rotate.
The investigation is based on a complaint filed by Jump Rope Systems, LLC, of Louisville, CO, on February 13, 2018.  The complaint alleges violations of section 337 of the Tariff Act of 1930 in the importation into the United States and sale of certain jump rope systems that infringe patents asserted by the complainant.  The complainant requests that the USITC issue a limited exclusion order and cease and desist order.
The USITC has identified Suzhou Everise Fitness Co., Ltd., of Suzhou, Jiangsu, China as the respondent in this investigation.
By instituting this investigation (337-TA-1108), the USITC has not yet made any decision on the merits of the case.  The USITC’s Chief Administrative Law Judge will assign the case to one of the USITC’s administrative law judges (ALJ), who will schedule and hold an evidentiary hearing.  The ALJ will make an initial determination as to whether there is a violation of section 337; that initial determination is subject to review by the Commission.
The USITC will make a final determination in the investigation at the earliest practicable time.  Within 45 days after institution of the investigation, the USITC will set a target date for completing the investigation.  USITC remedial orders in section 337 cases are effective when issued and become final 60 days after issuance unless disapproved for policy reasons by the U.S. Trade Representative within that 60-day period.

Tuesday, April 10, 2018

FTC staff sends warranty warnings

Warranty: Competition: Unfair competition: Deceptive competition: Consumer protection: Advertising: FTC: FTC Act §5:

FTC staff sends warranty warnings
By: Lesley Fair | Apr 10, 2018
FTC Blog

(…) When consumers buy a product with a warranty, it’s with the expectation that businesses will stand by what they sell. But standing by your warranty won’t do customers much good if you disregard the Magnuson-Moss Warranty Act. The FTC staff just sent warning letters to six companies, raising questions about statements the companies are making that appear to tie warranty coverage to consumers’ use of authorized parts or service, a practice that may violate both the Warranty Act and the FTC Act.
According to the Mag-Moss Warranty Act:
No warrantor of a consumer product may condition his written or implied warranty of such product on the consumer’s using, in connection with such product, any article or service (other than article or service provided without charge under the terms of the warranty) which is identified by brand, trade, or corporate name.
In other words, companies can’t void a consumer’s warranty or deny warranty coverage solely because the consumer uses a part made by someone else or gets someone not authorized by the company to perform service on the product.
There are only two exceptions: 1) if the company provides the article or service to consumers for free; or 2) if the company gets a waiver from the FTC. Under 15 U.S.C. § 2302(c), the FTC may grant a waiver only if the company proves that “the warranted product will function properly only if the article or service so identified is used in connection with the warranted product, and the waiver is in the public interest.” Companies may, however, disclaim warranty coverage for defects or damage caused by the use of unauthorized parts or service.
FTC staff recently took a closer look at companies’ warranties and promotional materials and saw language that raised concerns that some businesses were telling consumers that their warranty would be void if they used unauthorized parts or service. The companies used different language, but here are examples of questionable provisions.
·       The use of [the company’s parts] is required to keep your . . . manufacturer’s warranties and any extended warranties intact.
·       This warranty shall not apply if this product . . . is used with products not sold or licensed by [company name].
·       This warranty does not apply if this product . . . had had the warranty seal on the [product] altered, defaced, or removed.
FTC staff suggested that the companies review the Mag-Moss Warranty Act and, if necessary, revise their practices accordingly. The letters also put the companies on notice that we’ll be taking another look at their written warranties and promotional materials after 30 days.
What can other business glean from the warning letters?
Untie the NOT. Take a fresh look at your own warranties. Unless you meet one of Mag-Moss’ narrow exceptions, do not condition warranty coverage on consumers’ use of parts or service from you or someone you authorize.
Read your warranty through consumers’ eyes. Consider the literal wording of your warranties, of course. But like any other advertising representation, companies can communicate claims to consumers expressly and by implication. Subject to those two Mag-Moss exceptions, if the language you choose conveys to reasonable consumers that their warranty coverage requires them to use an article or service identified by brand, trade, or corporate name, revise your practices to avoid a warranty whoops.
Section 5’s prohibition on deception applies to misleading warranty claims. A violation of the Magnuson-Moss Warranty Act is a violation of Section 5 of the FTC Act. But separate and apart from Mag-Moss, a claim that creates a false impression that a warranty would be void due to the use of unauthorized parts or service may be a stand-alone deceptive practice under the FTC Act. When evaluating what they say and do with regard to warranties, savvy companies approach the task by posing the same questions they ask themselves when looking at their ad claims: 1) What will consumers understand us to mean? and 2) Are we telling the truth?
The law’s reach can be global. If you represent foreign companies, counsel them about compliance with the Mag-Moss Warranty Act and the FTC Act. Those laws apply when business practices of non-U.S. companies constitute unfair or deceptive acts or practices that either involve material conduct in the United States or are likely to cause reasonably foreseeable injury within the U.S.

Monday, April 2, 2018

Encino Motorcars, LLC v. Navarro, Docket No. 16-1362

Labor: Fair Labor Standards Act: Overtime compensation:

The Fair Labor Standards Act (FLSA), 52 Stat. 1060, as amended, 29 U. S. C. §201 et seq., requires employers to pay overtime compensation to covered employees. The FLSA exempts from the overtime-pay requirement “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles” at a covered dealership. §213(b)(10)(A). We granted certiorari to decide whether this exemption applies to service advisors—employees at car dealerships who consult with customers about their servicing needs and sell them servicing solutions. We conclude that service advisors are exempt.

Enacted in 1938, the FLSA requires employers to pay overtime to covered employees who work more than 40hours in a week. 29 U. S. C. §207(a). But the FLSA exempts many categories of employees from this requirement. See §213. Employees at car dealerships have long been among those exempted.

(…) In 2011, however, the Department reversed course. It issued a rule that interpreted “salesman” to exclude service advisors. 76 Fed. Reg. 18832, 18859 (2011) (codified at 29 CFR §779.372(c)). That regulation prompted this litigation (…) We explained that courts cannot defer to the 2011 rule because it is procedurally defective. See Encino I, 579 U. S., at ___–___ (slip op., at 8–12).

(…) The parties agree that petitioner is a “nonmanufacturing establishment primarily engaged in the business of selling automobiles to ultimate purchasers.” The parties also agree that a service advisor is not a “partsman” or “mechanic,” and that a service advisor is not “primarily engaged . . . in selling automobiles.” The question, then, is whether service advisors are “salesmen. . . primarily engaged in . . . servicing automobiles.” We conclude that they are. Under the best reading of the text, service advisors are “salesmen,” and they are “primarily engaged in . . . servicing automobiles.” The distributive canon, the practice of construing FLSA exemptions narrowly, and the legislative history do not persuade us otherwise.

Secondary authorities: Dept. of Labor, Dictionary of Occupational Titles 33 (3d ed. 1965) (defining “partsman” as someone who “purchases, stores, and issues spare parts for automotive and industrial equipment”); In the dissent (fn. 3): D. VanDeusen, Labor and Employment Law §176.02[1] (2018).

(U.S.S.C., April 2, 2018, Encino Motorcars, LLC v. Navarro, Docket No. 16-1362, J. Thomas)

La loi fédérale FLSA prévoit un système d'indemnisation des heures supplémentaires à charge de l'employeur. Les employés du domaine automobile engagés dans la vente ou dans la fourniture de services ne sont pas protégés par dite loi. En l'espèce, la Cour juge que les conseillers à la clientèle des points de vente et réparations ne sont pas protégés non plus.

La présente affaire rappelle que FLSA, qui date de l'année 1938, impose aux employeurs du personnel couvert par la loi d'indemniser le temps de travail supplémentaire quand l'employé travaille plus de 40 heures par semaine. Dite loi contient cependant de nombreuses exceptions.