Comments on: Stupid Federal Appeals Court… http://blog.probonogeek.org/2007/08/stupid-federal-appeals-court/ Technology for the Good of People Wed, 14 Dec 2011 20:17:45 +0000 http://wordpress.org/?v=2.9.2 hourly 1 By: Sean Kellogg http://blog.probonogeek.org/2007/08/stupid-federal-appeals-court/comment-page-1/#comment-208 Sean Kellogg Sun, 05 Aug 2007 17:32:00 +0000 http://wordpress.probonogeek.org/2007/08/stupid-federal-appeals-court/#comment-208 The test for discrimination is not whether it treats the citizens differently, but whether it treats manufactures differently. If the test were as you say it is, no state regulation could EVER pass scrutiny because state regulations, by definition, are localized to the citizens within the state. For example, a regulation that says a warning labels must go on certain products sold in the state of CA would violate your test because it only impacts those citizens in CA. The proper test, as I said before, is whether it discriminates against in-state or out-of-state <i>manufacturers</i>.<br/><br/>As for balancing... maybe you're right, it's hard to say. BUT, the ICC is not a self-enacting clause (unlike the dormant commerce clause). The court must point to a federal law exercising the ICC powers and say that the state law is violating it in some way. I cannot accept the idea that the Patent Act was drafted with the intention to prohibit regulation of this nature. I mean, consider how this decision will impact state anti-trust laws?! The test for discrimination is not whether it treats the citizens differently, but whether it treats manufactures differently. If the test were as you say it is, no state regulation could EVER pass scrutiny because state regulations, by definition, are localized to the citizens within the state. For example, a regulation that says a warning labels must go on certain products sold in the state of CA would violate your test because it only impacts those citizens in CA. The proper test, as I said before, is whether it discriminates against in-state or out-of-state manufacturers.

As for balancing… maybe you’re right, it’s hard to say. BUT, the ICC is not a self-enacting clause (unlike the dormant commerce clause). The court must point to a federal law exercising the ICC powers and say that the state law is violating it in some way. I cannot accept the idea that the Patent Act was drafted with the intention to prohibit regulation of this nature. I mean, consider how this decision will impact state anti-trust laws?!

]]> By: Author http://blog.probonogeek.org/2007/08/stupid-federal-appeals-court/comment-page-1/#comment-207 Author Sun, 05 Aug 2007 14:36:00 +0000 http://wordpress.probonogeek.org/2007/08/stupid-federal-appeals-court/#comment-207 My understanding of the DC law is that DC residents would have the right to buy drugs for less money than citizens of other states. This is facially discriminatory, and thus is presumed to violate the dormant commerce clause.<br/><br/><br/>David<br/>P.S. Even if the law is facially neutral, I think the law would fall to the balancing test. Price controls are a significant interstate burden, and I, personally, am not convinced that the <i>local</i> benefit outweighs the burden on interstate commerce. My understanding of the DC law is that DC residents would have the right to buy drugs for less money than citizens of other states. This is facially discriminatory, and thus is presumed to violate the dormant commerce clause.

David
P.S. Even if the law is facially neutral, I think the law would fall to the balancing test. Price controls are a significant interstate burden, and I, personally, am not convinced that the local benefit outweighs the burden on interstate commerce.

]]> By: Sean Kellogg http://blog.probonogeek.org/2007/08/stupid-federal-appeals-court/comment-page-1/#comment-206 Sean Kellogg Sat, 04 Aug 2007 18:41:00 +0000 http://wordpress.probonogeek.org/2007/08/stupid-federal-appeals-court/#comment-206 David... come now, that's now how the ICC works. States (which D.C. is consider for these purposes) can regulate interstate commerce all they like so long as it does not (a) violate the dormant commerce class, and (b) does not violate a explicit federal law.<br/><br/>So, you point to me the Federal Law that says states cannot impose price controls on drugs and then we can talk. Which is why the Feds used patent law as their backing. A desperate attempt to perpetuate the relevance of patent law by a court who has been beaten up pretty bad by the Supreme's of late. David… come now, that’s now how the ICC works. States (which D.C. is consider for these purposes) can regulate interstate commerce all they like so long as it does not (a) violate the dormant commerce class, and (b) does not violate a explicit federal law.

So, you point to me the Federal Law that says states cannot impose price controls on drugs and then we can talk. Which is why the Feds used patent law as their backing. A desperate attempt to perpetuate the relevance of patent law by a court who has been beaten up pretty bad by the Supreme’s of late.

]]> By: Anonymous http://blog.probonogeek.org/2007/08/stupid-federal-appeals-court/comment-page-1/#comment-205 Anonymous Sat, 04 Aug 2007 05:51:00 +0000 http://wordpress.probonogeek.org/2007/08/stupid-federal-appeals-court/#comment-205 Before reaching the patent aspect, the Federal Circuit is probably right that DC is legislating over interstate commerce.<br/><br/>With respect to patent law, a closer reading of the patent law may have led the Federal Circuit to not strike down the DC laws over the patent law. Fundamentally, patent laws are negative, not positive rights. A patent allows you to restrict others, but doesn't give you the right to practice the patent. There are many other laws that can easily pre-empt patent laws, such as environmental regulations or FDA regs. State laws, such as gambling restrictions, drinking ages and criminal laws all trump patent law.<br/><br/><br/>David Before reaching the patent aspect, the Federal Circuit is probably right that DC is legislating over interstate commerce.

With respect to patent law, a closer reading of the patent law may have led the Federal Circuit to not strike down the DC laws over the patent law. Fundamentally, patent laws are negative, not positive rights. A patent allows you to restrict others, but doesn’t give you the right to practice the patent. There are many other laws that can easily pre-empt patent laws, such as environmental regulations or FDA regs. State laws, such as gambling restrictions, drinking ages and criminal laws all trump patent law.

David

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