It’s hard to find a hotter topic than patent reform right now on Capitol Hill. It’s even harder to find what the director of the U.S. Patent and Trademark Office has to say about it.
That’s because there hasn’t been a director since David Kappos left more than 10 months ago to join Cravath, Swaine & Moore in New York. President Barack Obama still hasn’t nominated anyone to replace Kappos — and patent attorneys are voicing concern about the void as several bills move swiftly through Congress.
Foley & Lardner partner Harold Wegner, a well-known voice in intellectual property law, sent out a newsletter last week titled “Whither Administration Leadership in Patents?” Wegner included no text in the email, only a screen capture of the leadership page on the PTO website that, he wrote, “speaks for itself.”
Where official photos of a director and deputy director would be, there are icons of black silhouettes on a gray background and the word “vacant.”
Robert Stoll, a co-chairman of Drinker Biddle & Reath’s intellectual property practice group, said that even acting directors leave a void in the administration’s role in the legislative process.
After Kappos left, former Crowell & Moring partner Teresa Stanek Rea took over as acting director. She resigned from the PTO on Nov. 21. Now, Margaret “Peggy” Focarino is the acting director, and Stoll said even someone with her extensive background can’t make up for being only in an acting role.
“She does not have the authority of having the position, which mutes her to some degree,” said Stoll, who retired from the PTO as commissioner for patents. “I don’t think there’s a focused voice on the issues, with the sole purpose of intellectual property.” — Todd Ruger
BIRTH CONTROL COVERAGE ON COURT DOCKET
The U.S. Supreme Court on Nov. 26 set the stage for its second major look at the constitutionality of the Affordable Care Act, agreeing to review the requirement that most employers provide health insurance coverage for contraception, including so-called “morning after” methods. Employers who object to the requirement on religious grounds have filed dozens of suits against it, two of which were granted and consolidated by the court: Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius.
While narrower than the sweeping and unsuccessful attack on the entire statute in last year’s NFIB v. Sebelius, the new dispute is more deeply emotional, pitting strongly held views about religious freedom against equally strong views voiced by women about their reproductive rights. “The choice about whether to use birth control should be between a woman and her doctor, and no boss should be able to interfere,” said Cecile Richards of Planned Parenthood Federation of America. — Tony Mauro
HOCKEY PLAYERS SUE
When it comes to the long-term health risks associated with concussions, the National Football League has taken the brunt of public scrutiny in recent years. A group of 10 former professional hockey players are hoping to put the National Hockey League under a similar microscope, filing a class action last week in Washington federal district court accusing league officials of failing to protect players.
Represented by Baltimore-based firm Silverman Thompson Slutkin & White, the former players claim league officials knew or should have known that players who sustained repeated concussions were at a greater risk of long-term neurological problems. Ten former players are named in the complaint, and Silverman Thompson is looking for other former players who might be covered under the proposed class. The firm estimated the class would include approximately 10,000 former players who retired before February 2013 and suffered brain trauma or other injuries as a result of concussions they sustained while playing. A spokesman for the NHL could not be reached for comment. — Zoe Tillman
FIGHTING FOR A SON
Brendan Sullivan III has good reason to trust the lawyers at William & Connolly — his father is senior partner and famed trial lawyer Brendan Sullivan Jr. On Nov. 22, a Washington federal trial judge said the firm could continue representing the younger Sullivan in a business dispute, denying an attempt to disqualify the firm from the case. The elder Sullivan isn’t part of his son’s legal team.
Sullivan sued his former business partner Robert Elwood after the two had a falling out over management of a multimillion-dollar youth sports program. Sullivan accused Elwood of stealing from the business and interfering after he was fired. Elwood countered that Sullivan knew about and approved of his spending practices, and claimed Sullivan was trying to push him out to avoid sharing profits as the company became more valuable.
Elwood moved to disqualify the firm, saying there was a conflict of interest because firm attorneys gave him legal advice in the past — a claim the firm denied — and counseled the business at issue. U.S. District Judge Reggie Walton found Elwood didn’t present enough evidence of an attorney-client ­relationship, but could renew his motion if new information came out during discovery. — Zoe Tillman
With all the leaks this summer about ­surveillance programs, there’s one document that remains a secret: a U.S. Department of Justice memo that addresses the scope of FBI surveillance authority. Mark Rumold of the Electronic Frontier Foundation, which sued to obtain the Office of Legal Counsel memo, told the U.S. Court of Appeals for the D.C. Circuit that the document set forth “authoritative and controlling surveillance and privacy statutes.” The OLC opinion, he told the panel judges, “doesn’t just apply to the FBI. It applies throughout the executive branch.”
The D.C. Circuit panel — senior judges David Sentelle and Harry Edwards, with Judge Sri Srinivasan — examined whether the deliberative process privilege blocks disclosure under the Freedom of Information Act. Justice Department lawyer Daniel Tenney said the FBI was reevaluating policies about surveillance techniques when the agency sought advice from the Office of Legal Counsel. “This is classic deliberative process material,” he argued. Edwards noted during one exchange that “a lot of OLC’s stuff is published.” — Mike Scarcella
LITTLE TOBACCO LOBBYING
With new federal regulations and taxes in the works, Little Tobacco has turned to Alston & Bird for help in Washington. The Small Business Cigar Coalition, an informal association of 15 makers of cigars and related products, has enlisted the firm to lobby for it on tax and U.S. Food and Drug Administration matters concerning cigars, according to lobbying registration paperwork filed on Nov. 22.
At the FDA, officials have proposed regulating premium cigars, which currently aren’t subject to federal oversight. President Barack Obama’s fiscal 2014 budget request also calls for an increase in the excise tax on cigars. And bills from Sen. Dick Durbin (D-Ill.) and Sen. Tom Harkin (D-Iowa) would increase taxes for cigars. Alston partner Marc Scheineson, counsel Carolyn Smith, senior policy adviser Mark Rayder and associate Brendan Carroll are on the account. Except for Smith, the lobbyists focus on health care issues at Alston. Smith specializes in tax matters. None of the lobbyists responded to requests for comment. — Andrew Ramonas
Judge Judith Rogers of the U.S. Court of Appeals for the D.C. Circuit has offered a glimpse into her comedic tastes. In a Nov. 26 opinion affirming the dismissal of a defamation lawsuit against Esquire magazine, Rogers mused about the difficulty of defining satire. Her exemplars of “funny” satire: late-night sketch comedy television show “Saturday Night Live” and fake news outlet The Onion. The underlying case involved a defamation lawsuit brought by publisher Joseph Farah. Farah sued the magazine over a fictitious piece claiming Farah was recalling a book he had published questioning the authenticity of President Barack Obama’s birth certificate.
The magazine said the piece was satire and the court agreed. “Despite its literal falsity,” Rogers wrote, “satirical speech enjoys First Amendment protection.” Farah’s lawyer, solo practitioner Larry Klayman, said he was “disappointed” with the decision and planned to ask a full sitting of the court to reconsider the case. Esquire’s lawyer, Hearst Corp. deputy general counsel Jonathan Donnellan, said the ruling “lays out in the clearest terms the significant protection afforded satire under the First Amendment.” — Zoe Tillman
The U.S. Department of Justice’s Antitrust Division has a new top prosecutor. Brent Snyder, who spent a decade as a criminal trial attorney in the division, was named a deputy assistant attorney general Nov. 25. He replaces Scott Hammond, who joined Gibson, Dunn & Crutcher in Washington as a partner in November.
Snyder, a former Perkins Coie partner in Seattle, has participated in numerous high-profile criminal investigations and prosecutions since joining the Justice Department in 2003 — including successful cases against companies and executives in the LCD industry. Snyder secured the conviction of a high-level executive in United States v. Frank Peake, a trial that focused on the coastal water freight transportation industry. — Todd Ruger