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SUPREME COURT DOCKET REPORT

Mayer Brown's Supreme Court and Appellate Practice Group distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community. We also email the Docket Report to our subscribed members and if you don't already subscribe to the Docket Report and would like to, please click here.

October Term 2010 - November 29, 2010

Today the Supreme Court granted certiorari in two cases of interest to the business community:


Federal Employers’ Liability Act—Proximate Causation

Today the Supreme Court granted certiorari in CSX Transportation, Inc. v. McBride, No. 10-235, to decide whether the Federal Employers’ Liability Act (FELA) requires proof of proximate causation. Mayer Brown LLP represents petitioner CSX Transportation, Inc. (CSXT) in this case.

Enacted more than a century ago, FELA provides the compensation scheme for injuries sustained by railroad employees in the workplace. It authorizes an employee to recover actual damages for an injury “resulting in whole or in part from the negligence” of the railroad, but requires that such damages be reduced in proportion to any contributory negligence by the employee. 45 U.S.C. §§ 51, 53. In Norfolk Southern Railway v. Sorrell, 549 U.S. 158 (2007), the Supreme Court held that a defendant’s negligence and a plaintiff’s contributory negligence are governed by the same causation standard under FELA. The petitioner in Sorrell had also asked the Court to decide what the standard of causation is, and to hold that both the plaintiff and a defendant alleging contributory negligence must prove proximate causation. The Court declined to address that question, but four Justices debated it in concurring opinions, with three taking the position that FELA requires proximate causation and one taking the position that it does not. The question has also divided lower courts—both before Sorrell and since.

McBride, the plaintiff below and respondent in the Supreme Court, was a locomotive engineer assigned to a train with five locomotives, including a wide-body locomotive in the lead. McBride alleged that, in order to perform his duties, he had to repeatedly press a button on the side of the brake handle and hold it for about 20 seconds. He testified that his hand eventually became fatigued, causing him to lose control over it and to hit it against the brake handle. At trial, McBride’s theory of negligence was that the number and type of locomotives increased the risk of derailment or collision. But there was no derailment or collision in this case; McBride’s theory of causation was that he would not have had to make the same repetitive movements with his hand (and hence would not have banged it against the brake handle) if he had been given fewer and narrower locomotives. As McBride’s counsel put it in his summation, the injury would not have happened “but for” McBride’s having been assigned this train. Pet. App. 67a.

CSXT, the defendant below and petitioner in the Supreme Court, asked the district court to instruct the jury that McBride was required to prove that CSXT’s negligence was a proximate cause of his injury. The district court refused to give the instruction, and the Seventh Circuit affirmed, holding that FELA does not require proximate causation. The court of appeals acknowledged that there is “considerable force” to the argument that FELA does require proximate causation, but rejected it because the court did not wish to “anticipate future actions of the Supreme Court.” 598 F.3d 388, 404–05.

The case is of great importance to the railroad industry. Thousands of FELA cases are filed each year, and the standard of causation is potentially at issue in each of them. The issue can also arise in every case brought under the Jones Act, which governs liability for workplace injuries by seamen and incorporates FELA principles. Under the rule adopted by the Seventh Circuit and some other lower courts, a FELA or Jones Act plaintiff—unlike a plaintiff in a common-law tort suit—can recover when the defendant’s negligence is merely a “but for” cause of the plaintiff’s injury and there is no direct relationship between the negligence and the injury. In McBride, the Supreme Court will decide whether that is sufficient.

Absent extensions, amicus briefs in support of the petitioner will be due on January 20, 2011, and amicus briefs in support of the respondent will be due on February 21, 2011. Any questions about this case should be directed to Dan Himmelfarb (+1 202 263 3035) in our Washington, DC office.


Patent Act—Standard of Proof

Section 282 of the Patent Act, 35 U.S.C. § 282, provides that a patent is presumed valid and places the “[t]he burden of establishing invalidity of a patent or any claim thereof . . . on the party asserting such invalidity.” Today the Supreme Court granted certiorari in Microsoft Corp. v. i4i Limited Partnership, No. 10-290, to address the standard of proof in cases where a claim of invalidity is based on evidence not considered by the Patent and Trademark Office (PTO) in granting the patent. The question presented is whether, under such circumstances, the Federal Circuit erred when it held that an invalidity defense must be proved by clear and convincing evidence.

The resolution of this case is of interest to a broad range of patent holders and users, as demonstrated by the large number of amicus briefs filed in support of the petition. If the Court holds that invalidity need only be proven by a preponderance of the evidence, rather than by clear and convincing evidence, challenging patents will become easier, at least in cases involving evidence not considered by the PTO. The $290 million case is also of interest in its own right as it involves Microsoft’s popular Word program and the largest patent verdict ever affirmed by a circuit court.

Respondent i4i owned a patent for an improved method of storing and editing computer code. It sued Microsoft, alleging that Microsoft’s Word infringed i4i’s patent. In defense, Microsoft argued that prior art rendered the patent invalid because i4i included an implementation of the patent in a program i4i had sold more than one year before it applied for the patent at issue.

Since its creation in 1982, the Federal Circuit has consistently held that patent invalidity must be proved by clear and convincing evidence, a more exacting standard than proof by a mere preponderance of the evidence. Accordingly, the Federal Circuit rejected Microsoft’s contention that the imposition of the heightened “clear and convincing” standard is improper. However, application of that standard was called into question by dicta in the Supreme Court’s 2007 decision in KSR International Co. v. Teleflex, Inc., 550 U.S. 398 (2007). Although the Court’s decision on other grounds made it unnecessary to determine what quantum of proof is required to overcome § 282’s presumption of validity, the Court “note[d] that the rationale underlying the presumption—that the PTO, in its expertise, has approved the claim—seems much diminished” when evidence underlying the invalidity defense was never presented to the PTO. 550 U.S. at 426. Although that language could be viewed as an invitation to revisit its position, the Federal Circuit has continued to impose a heightened evidentiary standard under § 282. It has done so, moreover, despite the fact that prior to 1982 all twelve regional circuit courts had rejected or questioned the clear-and-convincing standard in cases where the grounds for invalidity were not considered by the PTO.

Absent extensions, amicus briefs in support of the petitioner will be due on January 20, 2011, and amicus briefs in support of the respondents will be due on February 21, 2011. Any questions about this case should be directed to Jeffrey Sarles (+1 312 701 7819) in our Chicago office.


Mayer Brown's Supreme Court & Appellate practice distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community and distributes a Docket Report-Decision Alert whenever the Court decides such a case. We hope you find the Docket Reports and Decision Alerts useful, and welcome feedback on them (which should be addressed to Andrew Tauber, their general editor, at atauber@mayerbrown.com or +1 202 263 3324).

Feel free to forward this message to anyone who you believe might be interested in the Docket Report.

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Mayer Brown's Supreme Court & Appellate practice distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community and distributes a Docket Report-Decision Alert whenever the Court decides such a case. We hope you find the Docket Reports and Decision Alerts useful, and welcome feedback on them (which should be addressed to Andrew Tauber, their general editor, at atauber@mayerbrown.com or +1 202 263 3324).

Mayer Brown Supreme Court Docket Reports provide information and comments on legal issues and developments of interest to our clients and friends. They are not a comprehensive treatment of the subject matter covered and are not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed. 



 
 
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