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Substantially Similar--A Blog on IP Issues, Writing and Film

Two Judicial Nominees and the Question of Memory

by John Aquino on 09/19/18

The nomination of Supreme Court Justice nominee Brett Kavanaugh has been put in jeopardy by a claim by Christine Blasey Ford, a professor of psychology at Palo Alto University, that he sexually assaulted her at a house party when they were both in high school in the 1980's. Kavanaugh insists the incident didn't happen. Immediately, journalists and pundits made comparison to the Anita Hill hearings during now-Supreme Court Justice Clarence Thomas' nomination process in 1991. We need to learn more, of course, but it seems to me that both situations involve the issues of witnesses' memories and how memory works.

Hill alleged that Thomas sexually harassed her when she worked for him between 1981 and 1983. She cited four specific incidents. Thomas denied that what she described happened. I remember that, when the Hill hearings were taking place, I was taking evening law classes. My criminal law professor decided to devote the class to the hearings. He began, "Anita Hill says Judge Thomas did these things. He says he did not. Obviously, one of them is lying."

I immediately raised my hand and asked, "Why do you say that?"

He said, annoyed. "What you are taking about? One of them is clearly lying." 

I said, "The longer I live"--and I was the oldest in the class--"the more I realize that memory is selective, that we remember some things better than others." The only example I could think of was this. I was eight years old and heard that, not only was The Delicate Delinquent, a new Jerry Lewis movie,coming to the Loewe's Palace in downtown Washington, D.C. but Lewis was going to make a personal appearance. I begged my sister Jean to take me, and she grudgingly did. We watched the movie, saw Lewis perform, and stayed for an autographed photo. Thirty years later, after Easter dinner, the family was sitting in my Mom's living room and The Delicate Delinquent came on television. I turned to my sister and reminded her about how we had gone to see that movie when it first premiered. She watched it for a few minutes and said, "I've never seen this movie before, and I don't remember our going with you to see it."

My fellow students were wiggling in their seats listening to my Jerry Lewis story, and the professor was glaring at me. But I persisted, "The point is, the memory of that incident was evidently seared into my memory because it was very important to me at the time. It's not surprising that my sister, who was nagged into taking her little brother to see a movie she cared nothing about, didn't remember it. Similarly, Anita Hill remembered four incidents that occurred over a three-year period that offended her deeply. To Thomas, these could have been four things that happened among many during the three years she worked for him and that were unimportant to him and that he promptly forgot. That's why it could be neither one of them are lying."

The professor nodded grimly, and I took his nod to either mean he was impressed by my reasoning or that he had consider the possibility I had outlined and either rejected it or hadn't wanted to get into it. "Does anyone want to comment?", he asked the class.

The hand of the fellow sitting next to me shot up. And for a split second I was pleased that I had sparked a discussion. "I don't have a comment," he said. "I wanted to bring something else up." "Thanks a lot," I hissed, and that was the end of it. The only reaction I received from my classmates was that they believed my sister and that we hadn't seen the movie. "But I still have the autographed photo!," I said. The Thomas hearings continued, and he was confirmed 52 to 48.

The older I get, the more I think my earlier thoughts about memory were 

There are differences between the Thomas and Kavanaugh situations. The incidents Hill brought up happened about eight years before the hearings between two adults. What Ford is describing happened around 33 years ago between teenagers. Hill told coworkers about what happened, but Ford evidently told no one until she described it to her therapist during couples' counseling in 2012, 27 years after the event. But the Ford-Kavanaugh situation also suggests possible filters, circumstances, and other reasons as to why they remember the way they remember. 

Ford and Kavanaugh were teenagers, there was drinking at the party, she says he was drunk, perhaps she had been drinking too. She was highly offended by what he did but didn't tell anyone: perhaps she didn't want to tell her parents because there was under-aged drinking at the party or she could have been embarrassed and even traumatized. Twenty-seven years later she made it a cornerstone of her discussion with her therapist, which suggests that the memory of that night stayed with her. Kavanaugh says he doesn't remember anything like it happening, which would make sense if he was drunk or if it didn't happen or if he didn't care at the time because he was callous and simply forgot about it or if he didn't take it seriously at the time because it didn't happen in exactly the way she described. His possible intoxication or callousness have been discounted by other women he went to high school with and the man she said he was with during the alleged incident, although he admits in a book to attending a lot of drunken high school parties. High school classmates of both Ford and Kavanaugh speak highly of them. Kathleen Parker in a Washington Post column raises the possibility of a doppleganger, which I think, as a writer and former teacher of science and fantasy, is a term she misuses because it's rooted in myth and means a supernatural double of another person. I think she means it's a case of mistaken identity. My wife has noticed that in looking at high school yearbooks all the young women look different and all the young men look alike. How well did Ford know Kavanaugh?--they both went to different schools, but she could have gotten to know him. 

It's possible further investigation may bring some answers. At the moment, it looks like any governmental investigation that attempts to find corroboration could be difficult because, according to reports, Ford doesn't remember what party it was or exactly when it occurred. It could be it will come down to the memories of Ford and Kavanaugh, and all the factors and filters that go with them.

Copyright 2018 by John T. Aquino

Nats' Trade Causes a Sudden Loss of Faith in Baseball

by John Aquino on 08/27/18

Just a month ago I wrote a blog on how I love watching Max Scherzer pitch for the Washington Nationals, and now I am writing to say that a recent trade by the Nats has soured me on the Nats and possibly baseball.

To recap, Daniel Murphy, playing for the New York Mets, set a baseball record in 2015 by hitting six home runs in consecutive games. He rejected the offer the Mets made for the next season and agreed to play for the Nats. In 2016, he hit. .347, homered 25 times, and drove in 103 runs. He won a silver slugger award and was named the National League's best offensive second baseman. In 2017, he batted .322, homered 23 times and drove in 93 runs, despite a knee injury that took him out of the lineup until June 2018. Meanwhile, the Nats were thought to have a stellar batting lineup and a magnificent roster of starting and relief pitchers. But injuries and poor performances cooled the high expectations. When Murphy returned, he brought his batting average up to .300 and had an 11- game hitting streak through August 18. On August 19, the Nats lost 12-1 to the Miami Marlins. Everyone played poorly. Murphy was hitless and committed two errors. On August 21, General Manager Anthony Rizzo announced that he was trading Murphy to the Chicago Cubs. This move was quickly interpreted to mean the Nats' management were giving up on entering the playoffs this season, otherwise they wouldn't have given up a hitter of Murphy's caliber.

I asked myself, what else did Murphy have to do--coming back without spring training and in less than two months hitting .300--to convince the team of his value. It reminded me of a very small scene in Otto Preminger's 1964 war epic In Harm's Way. John Wayne plays an admiral anticipating an attack from the Japanese fleet. His second-in-command, played by Kirk Douglas, has raped a young nurse who kills herself. Realizing his career is over and that he has broken the trust of his commanding officer, Douglas takes a plane and searches on his own for the Japanese fleet. He radios in the fleet's location to a group of officers that includes Wayne before he is shot down. One of the officers says to Wayne that Douglas should be recommended for a medal, perhaps even the Congressional Medal of Honor. Wayne, who knows why Douglas went up, says, no, no medal. And, for just a second, the other officers, who don't know what Wayne knows, look at each other as if to say, "He sacrifices his life to locate the enemy fleet and no medal! What do you have to do to get a medal in this outfit!"

When I said this to some people, they noted that Murphy, along with a good many other Nats, will become a free agent at the end of the season. I was told that the management had decided not to make Murphy an offer for next season and so they made the move to get what money the Cub offered for him. I told my John Wayne story and said that given what Murphy had done for the Nats the Nats' action was a cold one. My friends and family agreed and said, "It's a business. That's baseball!"

Is it baseball? Baseball of fair play and loyal fans? I mean, if the Nats needed a pitcher or catcher to make the playoffs and traded Murphy for one or both, that would make sense. But to do it for what little money they'd get for Murphy for the time he will play before he becomes a free agent! That's not only cold, it's disloyal. Fans have a right to feel that management is on their side.

Using another film analogy, I remember the 1949  movie The Stratton Story about a pitcher who loses his leg in an accident and works and works to use his artificial leg to play again. He convinces a minor league team to give him a chance. The opposing team decides to play to his weakness. Knowing that Stratton would be slow to get off mound to field a ball, the manager tells his team to bunt. Two times, Stratton almost kills himself to field the ball, and the runners are safe. The third time, he is able to throw the runner out, and the opposing team abandons its bunt strategy. But the film makes it clear that we are to admire Stratton's courage and that, while the opposing team's job is to win the game, targeting a player's physical handicap is villainous. And it's also villainous to have someone play his heart out for the team and for the team to treat him so shabbily.

I also think that Rizzo has shown a tendency to act out of pique. On July 31, the Nats' traded relief pitcher Brandon Kintzler to the Cubs. There were rumors that Kintzler had been vocal about the Nats' poor showing, although, after the trade, a number of players came forward about how supportive the veteran pitcher had been to them. There were also rumors that the Nats' believed Kintzler was the source for an article about strife in the Nats' dugout. The author of the article reported later that he had never spoken to Kintzler. On August 5, the Nats' traded relief pitcher Shawn Kelley to the Oakland Athletics because he threw down his glove in disgust after giving up a grand slam home run. Rizzo said that this showed disrespect to the team and its manager. And then, after Murphy makes two errors, he trades him.

I was also disturbed that after the trade the Nats' management said that, while Wilmer Difo, Murphy's replacement at second base, cannot match Murphy's hitting (Difo is hiting .240), he will be much better fielder. An analysis of the Nats' stats on its website don't support this. 

I've lost some interest in the Nats, not because they haven't won enough, but because of how they treated Murphy. As for Murphy, he behaved like a gentleman, went to the Cubs, and, scored at least one hit in every game he's played including two home runs through August 27, bringing his average up to .313. The Cubs had lost six straight games, and once Murphy joined them they won six straight.

We don't know how the season will end up. But as for who behaved best in all this, it's Murphy.

Copyright 2018 by John T. Aquino

Ranking the Top Legal Films: Better Last Time

by John Aquino on 08/22/18

The American Bar Association has released its list, selected by a committee of attorneys, of the top 25 legal films  ( ). This replaced its list from 10 years ago ( ). In a nutshell, the list from 2008 was an extremely credible one. The list that was just released retains some of the films from the previous list but removes others in favor of some very odd choices.

Let me state upfront that my relationship with the ABA has been ueven, They do very credible work on behalf of the legal profession. My Dad was a life-long member and was proud of it. I joined the ABA first thing after I passed the bar and remained a member for 10 years. After that time, I decided that what I received from my membership was a subscription to the ABA Journal and the ability to attend ABA functions at a discount, and the cost was still very high for a solo practioner. When the editor of the journal left, I applied for the position, was interviewed, and not hired, the position going to attorney who had a position in a state ABA organization. When the editor job soon opened up again, I applied again, and I was told I wouldn't be considered because I had been rejected before. I gave up my membership because I felt it was just too expensive and had too little direct benefit for a solo practioner. But that could be just me. Still, about seven years ago I volunteered as a member of a committee of a state bar association of which I am a member to participate in an intellectual property session at the ABA convention to be held in Washington, D.C.. I said yes, prepared for it, but then we were told our session had been jettisoned. The next year, the ABA convention was in Chicago, and we were asked if we were still interested in doing the panel. We all said yes, although it now involved the costs of a trip to Chicago and a hotel room. We didn't get any information on registration, and, when I inquired, an ABA representative told me convention panelists were required to pay registration fees but would receive a discount. I emailed the other panelists that the discounted registration would still cost about $500, and all of us decided we had to withdraw because our individual costs including travel and hotel and registration fee would be over $1,500, not a lot for a big law firm but a great deal for a solo practitioner. The ABA representative was not happy.

The 2008 ABA list included such films as To Kill a Mockingbird, A Man for All Season, Anatomy of a Murder, Philadelphia, Witness for the Prosecution, Young Mr. Lincoln, Compulsion, 12 Angry Men,  Breaker Morant, And Justice for All, Erin Brockovich, The Verdict, Presumed Innocent, My Cousin Vinnie, Judgment at Nuremberg, A Few Good Men, Kramer Vs Kramer, Reversal of Fortune, In the Name of the Father, Inherit the Wind, A Civil Action, and Amistad, all very credible films about historical or fictional legal cases.  My Cousin Vinnie was also included, which is the favorite legal film, albeit a comic one, of many attorneys I know. On the 2008 list as well was The Paper Chase, which is about a fictional law school. The only two from the 2008 list that I would question are Miracle on 34th Street and Chicago; both are very good films that end with court cases, but Christmas and the songs, respectively, overwhelm the legal content.

The 2018 list adds the more recent Spotlight, Marshall, Loving, The Post, The Lincoln Lawyer, RBG [a documentary on Supreme Court Justice Ruth Bader Ginsberg] and Michael Clayton. The new list also includes movies that were around when the 2008 list was created: Criminal Court (1946), Adam's Rib (1949), Primal Fear (1996), and  Legally Blonde (2001). The ABA could conceivably have expanded the list size but instead the judges did not include the following films on the top 25 that had been on the 2008 list: Witness for the Prosecution, Compulsion, Philadelphia, Breaker Morant, And Justice for All, Presumed Innocent, Reversal of Fortune, Amistad, Chicago, A Miracle on 34th Street  and In the Name of the Father. Four of those removed from the top 25 were included in a separate and rather broad list of "other great legal films": Witness for the Prosecution, Breaker Morant, Presumed Innocent, and Philadelphia.

One can assume that some of the films were added to the new list because of their newness, while some of those deleted--Presumed Innocent, In the Name of the Father, Reversal of Fortune, And Justice for All, Breaker Morant--may have seemed older but not "classic" like To Kill a Mockingbird. Some deletions and additions could reflect different tastes between the two sets of judges. We will not know until the ABA's 2028 list whether Spotlight, Marshall, Loving, The Post, The Lincoln Lawyer, and RBG have endured. Some of the additions are very odd. Even though Legally Blonde inspired an unucessful Broadway musical, this fklm about a young woman who pursues her boyfriend when he goes to Harvard Law and becomes a lawyer herself seems dated in 2018. RBG is the only non-fiction film in both bunches and is only a year old. Criminal Court is an obscure 62-minute, 72-year old film about a criminal attorney who kills a gangster, covers up the crime, and then ends up defending his girlfriend friend for the murder. It plays like a mediocre Perry Mason episode, that is if Perry had committed murder. None of the additions, to my tastes, measure up to some of the deleted ones: Witness for the Prosecution, Compulsion, Philadelphia or Amistad, both in the quality of the filmmaking and in what they tell us of law and the legal system..

The best films are some of those that survived both lists: To Kill a Mockingbird, A Man for All Season, Anatomy of a Murder, Young Mr. Lincoln,  12 Angry Men,  Judgment at Nuremberg, A Few Good Men, Inherit the Wind, and even My Cousin Vinnie. The attorneys use courage and ingenuity to defend the defenseless and are heroes, even when they lose. And for the record, five of the  attorneys in the nine films are solo practioners.

Copyright 2018 by John T. Aquino

Asian and Asian-American Casting and What It Says about Movies and Us

by John Aquino on 08/13/18

The new movie Crazy Rich Asians revives the question of how racial and ethnic groups are portrayed in movies and by whom.

The cast is predominantly composed of Asians and Asian-Americans in a movie directed by Jon M. Chu, son of a Chinese father and a Taiwanese mother, and co-written by Malaysia-born Adele Lim based on a book by the Singaporean-American novelist Kevin M. Kwan. It is about an American-born Chinese economics professor who travels to her boyfriend's hometown of Singapore to attend his best friend's wedding and meet his incredibly wealthy family. Such a story with such a cast and creative team is unusual for a film with Asian and Asian-American characters and, indeed, for films about most racial and ethnic groups.

I know that most films about Italians and Italian-Americans, my heritage, often involved non-Italian filmmakers and casts and portrayed stereotypes. The lead in the 1940 film They Knew What They Wanted (1940), which was based on a Pulitzer Prize-winning play about an Italian grape farmer who corresponds with and marries a waitress from a San Francisco restaurant, was played by the British actor Charles Laughton using an accent that was indigenous to no part of Italy or any Italian-American community. J. Carroll Naish made a career out of playing Italians, as well as Native Americans, even though he was a New York-born actor of Irish descent. I grew up watching The Danny Thomas Show on television. Thomas, who was of Lebanese descent, played an entertainer who did sketches about Italians. In one, he played a man calling CBS television from a telephone booth about how its show The Untouchables always portrayed Italians as gangsters. Thomas' accent was very broad. At one point, he said, "Hurry up because it's hot in da boots." When the operator didn't understand, Thomas yelled, "The telaphona boots, she's a hot!" The sketch ended with Thomas saying how wonderful Italians are and how much they have contributed to civilization. As he signed off, he added, "And iffa you don't fixa the show I'll putta a bomb ina your car." In keeping with this, Naish and others often played Italian gangsters in the movies. It really wasn't until Marty, Patty Chayefsky's 1955 movie adaptation of his television play about an Italian-American butcher, that an Italian-American was the hero in a non-crime movie. In 1952, Naish brought his radio portrayal of a kindly Italian immigrant to television in Life with Luigi. But in 1972 came The Godfather, and any progress was diminished. The Godfather was made by a director and writer of Italian-American descent, although the family portrayed are Sicilian.

For films with Asian and Asian-American characters, there have been fewer of them, those that were made were full of stereotypes, and the characters were often played by Caucasians with thick makeup. The same things occurred for films with African-American and Native American characters.

In silent films, Sessue Hayakawa, who was born in Japan, did star in a few American films as a hero or a charismatic villian, but returned to Japan when his films did poorly at the box office, while New York City-born Richard Barthlemess played a Chinese immigrant in D.W. Griffith 1919 classic  Broken Blossoms. The Chinese-American actress Anna May Wong starred in a handful silent and talking films as an Oriental heroine or vamp, but then so did Myrna Loy, who was born in Montana. Wong was denied consideration for the role of O-Lan, wife of the Chinese farmer Wang in the 1937 film The Good Earth, and the  role was played by the German-born Luise Ranier, who won the Oscar as best actress. There were films with Chinese detective heroes, but Charlie Chan was played by Warner Oland, who was born in Sweden, and then by Sidney Toler, who was born in Missouri, and Roland Winters, who was born in Boston, and Naish on television, while James Lee Wong was played in the Mr. Wong series of films by the London-born Boris Karloff after he gave up playing Frankenstein's monster. In the 1944, the great Katherine Hepburn portrayed in Dragon Seed a Chinese woman who poisons a good portion of the Japanese army. Almost the entire cast, which included Naish, were non-Asians. In 1955, the Nebraska-born Marlon Brando, the year after winning the Academy Award for best actor in On the Waterfront, played a Japanese go-between for U.S. soldiers in The Teahouse of the August Moon. He won praise from one critic for the comic articulation of his legs, and the filmmakers boasted that audience members asked for their money back because Brando was so convincing they didn't recognize him. In 1961, Sir Alec Guinness played a Japanese businessman in A Majority of One. (The role had been played on Broadway by Sir Cedric Hardwicke, who was also born in England.)

And then there was the issue raised when those born in one Asian country played those from another. The 2005 film Memoirs of a Geisha was criticized for having Chinese actresses playing Japanese characters.

Every culture has a right to be portrayed fairly. Great progress has been made since the days of Charlie Chan and Amos and Andy. In 1983, protesters attempted to disrupt the filming of Charlie Chan and Curse of the Dragon Queen, which starred the London-born Peter Ustinov as Charlie Chan. The protests focused on the stereotypical nature of the portrayal. Since then, the practice of distinguished British actors playing Asians appears to have abated.

But the fair portrayal of races and ethnic groups in movies is more complex than it might appear. There is a current trend in the theatre and television of color-blind casting. Many of the masterpieces of literature and drama were written in the Renaissance, 19th century, and 20th century and the characters depicted were Caucasians. But casting the characters as written deprives capable Asian- and African-American actors of playing these memorable roles. It is now common for Juliet or St. Joan or Medea to be played by an African-American or an Asian-American. Television versions of Dickens novels may have an African-American Pickwick or Uriah Heep, which some of have complained would have been impossible in 19th century England. Contrary-wise, until the 1980s, it was customary for Caucasian actors to blacken their faces to play the title role in Shakespeare's Othello. Sidney Toler wore makeup to play Charlie Chan, and the creators of the radio show Amos and Andy wore black makeup to recreate the characters on film. This is now widely and correctly regarded as unacceptable. African-American actors play Othello. Period. There have been also calls to continue this trend in operatic versions of Shakespeare's plays, but producers have argued that very few singers, regardless of their race, have the innate skill and the years of vocal training that singing Othello requires and that casting primarily by race would weaken the performance. But, when you come down to it, a white actor playing Othello or Charlie Chan is a prime example of color-blind casting. 

As I wrote earlier, progress has been made. But there are actually two trends that some would call conflicting. Progress is step by step. Asian and Asian-American Asians making Crazy Rich Asians is one of those steps, although the previous step in movies was the Joy Luck Club back in 1993 and, before that, the Flower Drum Song in 1961.

I find some proof of progress in the story of Flower Drum Song. As I wrote in a previous blog, the movie was based on a 1958 musical with music by Richard Rodgers, lyrics by Oscar Hammerstein II, and a book by Hammerstein and Joseph Fields, based on a book by C.Y. Lee. The musical was an affectionate and earnest attempt by three white men to present a story about Chinese and Chinese-Americans living in San Francisco's Chinatown. The musical was directed by the song-and-dance man Gene Kelly, and some of the cast, including one of the lead Chinese-American characters, were Caucasians. The show was a modest hit, was sold to the movies, and made into a film with an all-Asian cast, although the screenplay was by Fields and the direction by Henry Koster. Both Koster and Fields were of Jewish heritage, and three of the four leads were ethnic Japanese while the fourth was biracial with a mother of Scottish descent. The film was a box office hit but was seldom reshown because of protests that its portrayal of the characters was stereotypical and even racist. The original stage musical was not much revived, until 2002 when it was produced on Broadway with a book revised by Chinese-American playwright David Henry Hwang. The revival ran only 169 performances and appeared to be a case of one playwright struggling to remold the work of another while retaining the songs. And yet, I have often heard from Asian-American friends that they have grown to like the film version of Flower Drum Song. It is a well-produced musical with tuneful songs and Asian-Americans singing and dancing in gorgeous color. Fields knew that film is a more realistic medium and worked to soften and eliminate in the screenplay some of the stereotypes that had been criticized in the stage musical. And, in some ways at least, the plot of Crazy Rich Asians has similar stereotypes to Flower Drum Song, with parents set in the old ways who meddle with true love.

Progress has been made, some of it very gradual, but progress just the same.

Copyright by John T. Aquino

Tribal Sovereign Immunity and Self Defense: Issues of the Day

by John Aquino on 07/25/18

This article is about two separate legal issues--tribal sovereign immunity and self-defense. Their commonality is that they were both recently in the news.

I have written in this blog before about the case St. Regis Mohawk Tribe v. Mylan Pharmaceuticals Inc. The background is that Allergan transferred title to its patent covering the eye dryness drug Restatis to the tribe when the validity of the patents for the drug were challenged by Mylan before the Patent Trial and Trademark Office's Patent Trial and Appeal Board in an inter partes review proceedings (IPR). Mylan, Teva Pharmaceuticals USA Inc., and Akorn Inc. want to make generics of Restasis, which they could do more quickly if the Allergan/St. Regis patents are invalid. The tribe then moved for dismissal on the grounds of tribal sovereign immunity. The PTAB held that it is not bound by tribal sovereign immunity and that the IPR could go forward.

The reason for Allergan's assignment of its patents to the tribe likely stemmed from the frustration with the IPR process of biopharmas who own patents for brand name drugs like Restasis. IPRs have  invalidated a good number of high-tech and biopharmaceutical patents since the procedure came into existence in 2012. The biopharma industry as a whole has often been critical of the IPR and the PTAB. And yet, all of the amicus briefs filed were in support of Mylan, and Mylan and some biopharmas and commentators called the patent assignment to the tribe "a sham" and tribal sovereign immunity a loose cannon in an already complicated situation.

My interest in the case came from my past employment as the executor director of a tribal association. I know how important tribal sovereign immunity is to tribes, and it has proved to be one of the few business tools they have, as was shown by tribes that utilized it to enter into partnerships for casinos sited on tribal land. But a little over 40 percent of federally-recognized tribes have casinos, some very large and profitable, some very small, while the over 327 remaining haven't been that fortunate. According to the 2016 census, the Native American Poverty Rate is 26.2 percent.

On July 20, the U.S. Court of Appeals for the Federal Circuit affirmed the PTAB ruling. The relatively brief 12-page decision is based upon the issue of whether the PTAB is more like a court or a proceeding of a federal agency ( ). Both parties had cited in support of their arguments the Supreme Court's decision in Fed. Maritime Comm'n v. S.C. State Port Auth. 535 U.S. 743 (2002), which held that state sovereign immunity applied in proceedings that were similar to civil litigations and distinguished between these and those of a federal agency. The tribe found appropriate affinity between state and tribal sovereign immunity and contended that the IPR was a substitute to civil litigation, which was an argument made in Congress when the procedure was created by the America Invents Act of 2010. Mylan instead insisted that the IPR is a federal agency proceeding, and the Federal Circuit agreed. The court reached this conclusion because of the wide discretion the PTO director has in deciding whether or not to institute an IPR. The court found that tribal sovereign immunity flourishes, just not before the PTAB, which has the authority not to apply it.

Mylan heralded the decision as a victory against those who try and block access to less expensive generic drugs. Gene Quinn in IP Watchdog found the court's decision "rather seriously flawed" ( ). Kevin Noonan, a partner at McDonnell Boehnen Hulbert and Berghoff, Chicago, predicted that the tribe will petition the Supreme Court for review and that the court is likely to grant it.

Self-Defense. The issue of self-defense has come to the fore because of Pinellas County, Fla. police's evoking the state's "stand-your-ground" law in deciding not to arrest a man who shot and killed another.

Markeis McGlockton, his son, and girlfriend stopped at a convenience store on July 19 to buy snacks and parked in a handicapped space without a permit. His girlfriend stayed in the car and was confronted by Michael Drejka who said the car shouldn't be in that spot. McGlockton came out, saw the confrontation, and pushed Drejka to the ground. Drejka pulled out his gun, for which he had a concealed weapon permit, and shot and killed McGlockton. The county police declined to arrest because of the state's stand-your-ground law.

Self-defense is a defense used by people accused of battery, assault, or homicide, claiming the reasonable use of force was necessary to protect the individual and/or members of his/her family from bodily harm. Some states impose a duty to retreat before the application of deadly force. States with a stand-your-ground law do not require the individual claiming self-defense to retreat and allow the use of any reasonable level of force to protect against serious bodily harm or death. Reasonable force is sometimes described as equal force or no more force than is necessary. If a person slaps you, it would be unreasonable to pull out a gun and shoot him.

The Florida law was enacted in 2005 with support from the gun lobby and was amended in 2017 to require the prosecution to prove that stand-your-ground was unnecessary rather than the defense having to prove that it applied.

There were protestors afterwards criticizing the police's lack of action. The attorney for McGlockton's family stated that the stand-your-ground law allows a person who initiates a confrontation and is then struck to immediately use deadly force, claiming a fear he or she would be killed.

The county sheriff who declined to arrest Drejka said that the law, as amended, is subjective, causing the police to have to put themselves in the position of the shooter. Commentators have contended that the emphasis needs to be on "reasonable force." Does a man who is, say, a foot shorter and 60 pounds lighter than the man who strikes him have a reasonable need to use a gun?  The situation is further confused by the stand-your-ground laws that require the prosecutors to justify the law didn't apply, which makes it easier for someone to assert the defense. And then there is the inconsistency of laws from state to state. In one state, if you are the smaller person who is knocked down and has a gun, you would have to retreat and be pursued before you would be justified in using the gun. In the state next door with a no-need-to-retreat law, you could, arguably, depending on a reasonablenees analysis, look up at the bigger man and pull out your gun, claiming you feared you would subsequently be seriously injured or killed. You could also arguably do this if you were the bigger man on the ground.

I have had a few experiences with friends or family members who died with the shooter claiming self-defense. All involved shooters who were well-trained in the use of guns (military or law enforcement) and those who were killed , although they owned guns that were found on the scene, who were untrained. All of the shootings occurred in no-need-to-retreat states, and the shooters were either not arrested or acquitted. 

It is, admittedly, a complicated situation involving numerous factors. In all of them, someone dies and a family grieves. If the laws are as suggestive as the county police officer claims the one in Florida is, that is fraught with peril. In the Florida case, it is now up to the state's attorney to decide whether or not to convene a grand jury. So that story, at least, is unresolved.

Copyright 2018 by John T. Aquino