Washington, D.C., part 4: The cases to be argued

(Just started reading? See part 1, part 2, and part 3.)

The western pillars, doors, and frieze of the Supreme Court, intoning "Equal justice under law"
The western entrance and frieze of the Supreme Court

On the day I visited the Supreme Court, it heard two cases each for an hour: Tapia v. United States concerning sentencing for rehabilitative purposes, and Microsoft v. i4i Limited Partnership concerning the standard of proof in evaluating patents for invalidity.

Tapia v. United States


Alejandra Tapia and a friend were passing through customs while driving from Mexico to the United States. An immigration official noticed they were acting nervously and took a closer look at their car, discovering two illegal immigrants that Tapia was attempting to smuggle into the United States. She was arrested for this but was soon released, subject to court restrictions, while proceedings continued. When she failed to appear in court for a hearing, a warrant was issued for her arrest. After later apprehension Tapia was convicted on counts related to her smuggling of illegal immigrants and for jumping bail.

The judge responsible for sentencing her thought she would benefit from a particular drug treatment program, offered only in certain prisons. In order to get her into that program, he recommended Tapia be sent to a particular prison, and he increased the length of her sentence explicitly to give her the opportunity to take part in that program. In doing so he potentially fell afoul of this statutory language:

The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.

The issue

Before enactment of the law adding this language, the “rehabilitative ideal” as implemented by U.S. law held that isolation from society and prison routine would rehabilitate criminals. Parole boards determined when prisoners were ultimately released based on subjective assessments of the progress of inmates. The Sentencing Reform Act changed the system to be more objective, while still attempting to leave judges discretion to determine individualized sentences.

The sticky wicket is in the phrase, “recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation”. Does “recognizing” this mean that when a district court sets a length and term of imprisonment, he can’t consider rehabilitation programs in determining the sentence length? If he can’t consider them, then perhaps Tapia’s sentence was wrongly lengthened. On the other hand, section 3553(a) explicitly says, “The court…shall consider…the need for the sentence imposed…to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner”, which arguably includes drug treatment programs like the one recommended for Tapia here. How should the “recognizing” clause be understood?

Further wrinkles in this particular instance include that Tapia wasn’t sent to the recommended prison (because doing so would place her in too close proximity to another inmate deemed likely to be a bad influence) and that she wasn’t entered into the recommended drug treatment program (as I understand it, because she refused to be enrolled). So the judge in question (more generally, any judge, as I understand it) couldn’t actually have required her to enroll in a treatment program as part of her sentence.

Laws and decisions to consider

This is mostly a case of statutory interpretation of existing laws, so there’s not much in the way of prior Supreme Court decisions to consider. It mostly comes down to how you read the text of the relevant statutes. One statute beyond those above that I find particularly interesting is 28 U.S.C. § 994(k), which states:

The Commission shall insure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment.

The guidelines in question specify sentencing ranges from which judges generally can’t depart. Interestingly, this section seems pretty clear that sentencing to a term of imprisonment for the purpose of providing the defendant with access to “correctional treatment” (like a drug treatment program) is not acceptable. If §3582’s text is ambiguous, perhaps this text might clarify it.

Microsoft v. i4i Limited Partnership


In the 1990s i4i received a patent on a method of storing a document whose contents are structured, say, by formatting, nesting, and so on. Broadly speaking, the patent proposes storing document contents separate from document structure to facilitate easier manipulation. (The exact trick is pretty much this: store all the textual contents of the document somewhere, then store a list of pointers into that text with associated semantic meanings, like begin-element or end-element, separately.) The idea apparently works well when used in editors, and Microsoft once (no more, due to this litigation) used it in the custom XML editor built into Word. i4i sued them for doing so, and while Microsoft claimed the patent was invalid, the jury didn’t buy it. Microsoft was required to pay i4i $200 million for infringing their patent, then $40 million for doing so willfully. (Apparently Word developers had seen a presentation from i4i about software practicing the patent, asked questions about how it worked, received marketing material from i4i that mentioned the patent by number, and discussed i4i’s marketing material in email.) With interest the total’s now around $300 million.

The issue

Microsoft pled their case up through the courts, losing at each level. Finally they appealed to the Supreme Court — but because Microsoft’s particular travails aren’t necessarily interesting to the Supreme Court as it can only selectively right wrongs (it reviews around 1% of ten thousand or so appeals every year), Microsoft tried an interesting tack: they challenged the standard of proof required to demonstrate invalidity of the patent. This got the Supreme Court to bite and hear their appeal.

The district court told the jury that Microsoft had to prove invalidity by clear and convincing evidence, a phrase not found in statutory text but rather inferred from 35 U.S.C. § 282. Microsoft argues that when the standard of proof is unspecified, the default (with rare exceptions not relevant here) is a preponderance of the evidence. Clear and convincing evidence basically means the claim is “highly probable”; a preponderance of the evidence basically means the claim is “more likely than not”, or “50% plus one”. It could be much easier for Microsoft to prove invalidity if they only had to get a jury to say that the patent in question was more likely than not (by even the smallest fraction) to be invalid.

(What was Microsoft’s evidence of invalidity, you ask? Here it turns into a mess. i4i sold software called S4 over a year before applying for the patent, and S4 might have implemented the patent in question. If S4 implemented the patent, then an on-sale bar in 35 U.S.C. § 102(b) would invalidate the patent. Microsoft and i4i disagreed about whether S4 practiced the patent. [S4’s source code, and presumably S4 itself, was no longer available to be inspected, as S4 had been obsolete before litigation commenced.] Microsoft said S4 implemented the patent, citing the software’s manual, testimony from a former i4i employee, and a letter i4i’s founder wrote to investors indicating that S4 implemented the idea he later patented. i4i’s founders said it didn’t, and one stated in court that the musings in the letter to investors were “an exaggeration, and as I said, it could be said to be a lie” and that the idea was conceived after S4 went on sale. Without S4’s source code Microsoft couldn’t prove invalidity by “clear and convincing evidence”. But it’s quite possible Microsoft could prove it was “more likely than not” that the on-sale bar applied, and that the patent was invalid.

Microsoft also attempted to claim invalidity of the patent by dint of its being obvious through combination of a couple other patents, one of which the examiner who granted i4i’s patent hadn’t seen. Should a patent be “presumed valid” in the language of the statute, and in the lower court’s understanding thus requiring clear and convincing evidence to prove invalid, if the evidence for invalidity wasn’t considered when the patent was granted? Here too could be another avenue of attack under a favorable ruling.)

Laws and decisions to consider

This case, as like Tapia, is mostly a matter of statutory interpretation. But beyond the clauses of patent law at issue there are also a few Supreme Court decisions of relevance.

First, in 1934 in RCA v. Radio Engineering Laboratories, Inc. Justice Cardozo variously described the burden to overcome a patent’s presumption of validity as “clear and cogent evidence”, that the challenger “bears a heavy burden of persuasion, and fails unless his evidence has more than a dubious preponderance”, and that “the countervailing evidence is clear and satisfactory”. (Microsoft distinguishes this language as referring to particulars of that case, specifically that the evidence being tried there had been tried once by one party and found wanting, then in that case was being tried again by an entirely separate party — so “clear and convincing” makes sense only in that rare situation.) Justice Cardozo’s opinion, and its language, precede the statutory text used to justify the clear-and-convincing standard: does the text merely codify that precedent? (Of course, Microsoft and i4i furiously disagree about what the precedent says, and about how courts interpreted that standard.) This case cuts for i4i.

Second we have Grogan v. Garner and Herman & MacLean v. Huddleston. In Grogan the former Justice Stevens, analyzing a case where the statutory text was silent about the standard of proof, determined the standard to be a preponderance of the evidence. In Justice Stevens’s words, “This silence is inconsistent with the view that Congress intended to require a special, heightened standard of proof.” In Huddleston Justice Marshall determined the standard of proof in a similar situation to be a preponderance of the evidence. These cases cut for Microsoft.

Third we have KSR v. Teleflex, a 2007 Supreme Court patent case. In passing in that case, Justice Kennedy wrote in dicta for a unanimous Court that “the rationale underlying the presumption—that the PTO, in its expertise, has approved the claim—seems much diminished” in a case where the PTO hadn’t considered evidence being used to challenge a patent. So perhaps the presumption of validity that Microsoft was challenging shouldn’t apply (or should apply with lesser force) because the PTO didn’t know about the software Microsoft claims implemented the patent. This would cut for Microsoft.

Past this you have the usual arguments for and against patents: Microsoft saying that granting patents too easily is dangerous (an interesting position for them, perhaps), and i4i saying that the patent system stimulates innovation and that invalidating patents hurts that. (Each side’s argument pretty much completely ignoring the patent system’s inherent balancing act between incenting progress and retarding it.) How much weight you want to give this depends to an extent on what sort of partisan you are.

Next time, to the arguments themselves.


Washington, D.C., part 3: Second psot!

(Just started reading? See part 1 and part 2.)

The Supreme Court
02:33: The Supreme Court, from the west, just opposite the Capitol

I executed my plans and arrived at the Court at approximately 02:45. There was no obvious line, so I wandered around the Court plaza to look for a sign indicating where the line would form. (I knew it wouldn’t simply be on the front steps, alas.) I found none, and I hadn’t yet wandered up to a nearby guard to ask when the first person in line wandered up to confirm my intentions. (Note to anyone wondering exactly where the line forms: it forms on the sidewalk at the south end of the arc of waist-high columns in front of the Court, then trails south along 1st Street NE toward the corner.) Will, a patent attorney from North Carolina, flew up Sunday and arrived at the Court on the last Metro bus shortly before midnight. He too had been uncertain about timing and was playing it safe by arriving early.

The early crowd, at the point when it could first be called a crowd
04:15: The line begins to form in earnest; my gray backpack and water bottle are in the center

Will and I talked off and on until 04:00 when the line truly began to form. (This is recommended both to pass time and to gain friends who can hold your spot in line should you need to leave to use a bathroom or get some food.) At that time a cadre of patent examiners from the Alexandria office arrived on an informal field trip. More visitors followed shortly after, and by 04:15 the line was at 15-20 people.

I’d been warned it could get cold outside, and while it wasn’t cold, later in the night it wasn’t really warm. When I pulled on a Mozilla jacket to fend off the slight chill I quickly discovered:

  • Patent examiners hate IE. (And not just IE6, or IE7, or something similarly old: any version of IE. Amy, the patent examiner who told me this, was very emphatic on this point.)
  • Patent examiners love Firefox.
  • Patent examiners love Firefox extensions.
  • Patent examiners are probably the most legitimate tab over-users I’ve encountered. (It makes sense if they’re reference-checking and researching patent applications, considering many sources of information at a time.) One examiner told me he has around 300 tabs open.
  • Patent examiners are particularly interested in 64-bit Windows Firefox builds, because when you open 300 tabs you start hitting 32-bit memory limits. One had somehow found a 64-bit Windows build of “Namoroka” (Firefox 3.6) and had been using that for quite some time. I told him that there are unsupported 64-bit Windows builds of Firefox 4, and I mentioned that 64-bit Windows Firefox should happen soon.
05:17: The crowd reaches perhaps thirty
05:17: The crowd reaches perhaps thirty

The line grew in fits and spurts from there on. By 05:15 the line was up to perhaps thirty; by 05:40 the line had roughly passed the 50-person lower bound on nigh-guaranteed public seating. Subsequent arrivals frequently expressed disbelief at the length of the line, which made me quite glad I’d arrived as early as I did. Shortly before 06:00 a couple groups of us near the front tag-teamed watching our spots and heading to a nearby Starbucks for a bite to eat. I hadn’t planned on doing so, but I took the chance (and the caffeine) when I could. During the walk to and from it I further discovered that patent examiners have a sense of humor about the applications they see and about what they do. 🙂

05:37: The line approaches the fifty-person threshold
05:37: The line of hoboes in suits approaches the fifty-person threshold
The line at 07:00 stretches all the way down the block
07:01: Surely past fifty now, but fifty's not an exact, consistent limit, so they wait

Just after 07:00 the unofficial line moved into position on the plaza, and we settled down again to wait. Shortly after we received numeric cards indicating our place in line, and once that happened we had somewhat more flexibility about what we could do: use the Court restrooms (immaculate gray marble, hands-free toilets and sinks, all imbued with considerable gravitas) and snack area (after passing through security), go elsewhere, and so on, so long as we returned in time to enter the Court.

Admission card #2 for entry to Supreme Court oral argument
The fruits of an early arrival
The long line of people extends straight back from the center of the plaza, passes down the steps, then turns left heading south along the sidewalk
07:05: In position on the plaza

After a Mountain Dew (more caffeine!) from that snack area and a bit more waiting, we finally began to pass through security. After ascent up stairs to the level of the courtroom, we deposited our things at the coin locker and coat-check area. After one last security screening (the second set of metal detectors to be passed), we were finally in the courtroom.

At 7:25, the Supreme Court bar line for admission to the argument is only 20-30 people deep
07:26: Looking for the short line? Just go to law school for three years, get admitted to practice for three years before the highest court of D.C. or a state/territory and don't get in trouble, get two (unrelated) Supreme Court bar members as vouchers, and pay the $200 admission fee (quoth another line member: "it's a bar, there's always a fee"), and then you can get in the short line. It's easy!

It wasn’t obvious which seats were reserved for the public and which were reserved for other use. The first ten people in line including me were seated at audience left on movable wooden chairs between two marble columns, just past the area where the Supreme Court press corps sit. The columns partially obscured the view of people behind me (which would seem to indicate that there’s no position in line guaranteeing a good view, unless you attend as a member of the Supreme Court bar), but fortunately I had a good view of all the justices.

At 10:00 the Court was called to order as the audience stood while the justices entered the Court. The first order of business before argument was to process admissions to the Court bar, a briskly formal process except for the brief moment after George Martinez moved that his three sons be admitted, in response to which Chief Justice Roberts, after granting his motion, further wished him congratulations. Sometimes opinions in previous cases are announced before argument, and occasionally a dissenting justice will give a stemwinder from his opinion if he felt strongly enough that the result was wrong, but unfortunately neither happened today. This business complete, the Court proceeded to arguments.

But before I reach the arguments, a deeper look at the cases themselves: next time.


Washington, D.C., part 2: Choosing the SCOTUS arguments and when to arrive

(Just started reading? See part 1.)

If I was to combine a trip with a visit to family for Easter, I was limited to arguments in April. One sitting stood out as particularly interesting: the April 18 sitting in which Tapia v. United States and Microsoft v. i4i Limited Partnership would be argued. Tapia concerned the permissibility of considering in-prison rehabilitative programs during sentencing — not an issue of particular interest to me. But Microsoft concerned patents, which are certainly relevant to anyone in the software industry. It made a good fit: my weekend was chosen.

The US Capitol at night from Constitution Avenue, northeast of Capitol Hill
02:17: The Capitol as seen on the walk to the Court

Supreme Court oral arguments are open to anyone who arrives “early enough”, which depends on the interest level of the cases being argued. Tapia, as a sentencing case not touching a contentious issue like the death penalty, was low-interest. But “the showcase intellectual property case of the year” might well draw a moderate crowd. And I knew from a Mozillian who’d attended Bilski v. Kappos, the last major patent case before the Court, that arriving at 22:00 the day before a patent case could be good for a spot near the end of public seating. (Huge caveat: the other arguments that day concerned juvenile life imprisonment without possibility of parole.)

The Capitol dome
02:18: The Capitol dome

Based on one suggestion of 05:00 for “mid-major” cases (which I suspected Microsoft to be) and the effort I was making just to get to D.C., I decided to err heavily on the side of caution by waking up at 1:00. I would take a shower, get dressed in a suit purchased Friday (Visa flagged it as a fraudulent transaction, and I think they were on to something), and walk forty minutes to the Supreme Court. Better to get less sleep but be guaranteed to see the argument than to gamble and lose after making such an effort to even have a chance to see it.

The Capitol dome and the south wing of the Capitol building
02:34: The Capitol from the east, between it and the Supreme Court

Next time: sitting in line for the arguments.


Washington, D.C., part 1: Bobbleheads!

Among my various eccentricities, I subscribe to the Green Bag, an entertaining journal of law (I read about equally for entertainment and for interesting knowledge) which occasionally produces extra gifts, such as Supreme Court justice bobbleheads, for its subscribers. If the Green Bag sends you a certificate, you might (they qualify to the hilt any possibility you might get anything other than the subscription) be able to go to George Mason University just outside Washington, D.C. and exchange it for some number of bobbleheads. (Or have a proxy do it, but that has its own problems.)

A few months ago the Green Bag sent me a certificate potentially good for bobbleheads. I live on the west coast, so how was I to redeem it? I’m not crazy enough to fly across the country just for bobbleheads (even Supreme Court bobbleheads!). But if I planned it right, I could combine a trip with one to visit family for Easter, economizing the number of long-distance flights I’d take doing both trips. It was enough justification for me to visit D.C. from April 15 to April 19.

John Jay, John Rutledge, William Cushing, James Wilson bobbleheads
John Jay, John Rutledge, William Cushing, James Wilson: the four senior members of the first Supreme Court

I’m not much of a tourist, so I didn’t visit museums or do much traditional exploration in D.C. (I also planned to work most of Friday and Monday while visiting, a plan mostly-successfully executed from a couple Starbucks.) I caught up with a couple friends (Mozillians may remember Joey Minta of calendar, Thunderbird, and kill-rdf fame, now working at a D.C. law firm) and attempted to catch a game of ultimate on the National Mall that got foreclosed by rain. I also tried to sample area cuisine: Five Guys (NB: they’re in Sunnyvale now!), Founding Farmers, Potbellys (not especially local to D.C., but I’d never seen them before), and Momiji Restaurant (the Asian pear martini was quite tasty).

But most specially, I went to a sitting of the Supreme Court and watched two oral arguments. More on that over the next several days, starting with which cases to attend and when to arrive.


JavaScript change for Firefox 5 (not 4): class, enum, export, extends, import, and super are once again reserved words per ECMAScript 5

Most programming languages have keywords or reserved words: names which can’t be used to name variables. Keywords have special meaning, so using them as variable names would conflict with such use. Reserved words are keywords of the future: names which might eventually be given special meaning, so they can’t be used now to ease future adoption.

JavaScript and the ECMAScript standard that underlie it historically have had an excessively large set of keywords and reserved words “inherited” from Java. ES5 partially loosened ES3‘s past keyword restrictions. For example, byte, char, and int were reserved in ES3 but aren’t in ES5.

Many years ago, before work started on ECMAScript after ES3, a few browsers stopped reserving all of ES3’s reserved words. In response browsers generally started to un-reserve many of these names. As it turned out this un-reservation went too far: ES5 un-reserved many of these words, but it didn’t un-reserve all of them. In particular, while some implementations un-reserved the names class, enum, export, extends, import, and super, ES5 did not.

Firefox un-reserved these names then along with some other browsers. But as ES5 corrects the over-reservation of ES3 without un-reserving these names, we are moving to align with ES5 by re-reserving class, enum, export, extends, import, and super in all code. (Firefox 4 reserves these names only in strict mode code.)

You can experiment with a version of Firefox with these changes by downloading a TraceMonkey nightly build. Trunk’s still locked down for Firefox 4, so it hasn’t picked up these changes just yet. (Don’t forget to use the profile manager if you want to keep the settings you use with your primary Firefox installation pristine.)

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