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

Tribal Sovereign Immunity and Patents: No More Debate

by John Aquino on 04/16/19

I have written before on this blog on tribal sovereign immunity and patents in regard to a Patent and Trademark Office ruling confirmed by the U.S. Court of Appeals for the Federal Circuit Substantially-Similar.html?entry=tribal-sovereign-immunity-and-patents . Given my background as a former executive director of a tribal association, I commented on the importance of this immunity for tribes, lamented that the PTO's Patent Tribal and Appeal Board had been somewhat glib in ruling that the immunity was inapplicable for its proceedings, and hoped that higher courts would provide a more detailed discussion. 

But the Federal Circuit affirmed the PTAB's ruling, and on April 15, 2019, the U.S. Supreme Court denied review of the Federal Circuit's decision, letting the Federal Circuit's ruling stand. I regret that the feeling of some patent attorneys that the use of tribal sovereign immunity in this case was a sham will persist and that the broader discussion will not occur.

After the validity of its patents for its dry-eye treatment were challenged in inter partes review (IPR) petitions before the PTAB, which have often been criticized as favoring the petitioners, Allergan assigned its patents to the St. Regis Mohawk Tribe in upstate New York with the plan that the tribe would assert its sovereign immunity before the PTAB. After the PTAB ruled that the immunity didn't apply in its proceedings, on appeal before the Federal Circuit, the court acknowledged the legal existence of tribal sovereign immunity, found that it doesn't apply to actions brought by the federal government, and concluded that an IPR was similar to a federal administrative proceeding, even though, when the IPR was created by the American Invents Act, members of Congress labeled it a substitute for civil litigation where tribal sovereign immunity does apply. Allergan and the tribe petitioned the Supreme Court for review, and some attorneys predicted that the court would grant review, which it ultimately didn't. A denial of review only means that the court, for reasons it usually doesn't discuss, declined to review the lower court's ruling. Some had warned that Congress had been lobbied to decide the matter where it was likely to do so in a manner that would harm tribal immunity. At least in Congress, the matter would have been debated. But that is unlikely to happen given that the court's decisions.

And so the Federal Circuit ruling will stand, and the feeling that the use of tribal immunity was a sham rather than a legitimate business offer that the tribe was allowed to pursue will remain. As if tribes haven't been through enough.

There's a Dakota tribal saying that when you're riding a dead horse you should get off. It's similar to the adage reportedly coined by British member of Parliament Dennis Healy, "When you're in a hole, stop digging." But the end of this, I fear, is that tribes have one less horse to ride when from a business perspective they hadn't been left many to begin with.

Copyright 2019 by John T. Aquino

Brexit and the Loss of Faith

by John Aquino on 04/13/19

Brexit (British exit from the European Union) is, to me, reflective of anger by those who feel ignored and abandoned by governments and those around them, of suspicions by those who, while they feel neglected, others, not always like them, are prospering; of a yearning for a national pride some people feel has waned; and, most especially, of a loss of faith. My thoughts have been assisted by those of (probably) William Shakespeare, T.S. Eliot, and Matthew Arnold.

There are signs of the same feelings in European countries other than the UK. I also have friends in the UK who have told me that the 2016 and 2018 U.S. elections are evidence of this as well. 

In March 2016, I was covering the biotechnology/pharmaceutical and medical device industries for Bloomberg BNA (now Bloomberg Law). I heard from UK contacts of their concerns about the Brexit vote that was scheduled for June 26 that, if passed, would require the UK to leave the EU and that, my contacts felt, would damage UK biopharmas and medical device companies and medical research. When I interviewed executives and researcher, their predictions were that if voters supported the referendum, which, at the time, they thought unlikely, the result would be almost apocalyptic .My article is at . 

On the morning of June 26, I woke up at 4 a.m. ET, turned on the television, heard that the vote had supported Brexit, and called for my prearranged UK interviews. Their reactions were different from those I talked to in March, perhaps indicating a fear of causing a panic. The British biopharma industries would survive, and medical research would continue to lead Europe, they said. My article is at

For all the courageous talk of three years ago, as of March 11, 2019, the European Medical Agency, the European equivalent of the Food and Drug Administration and which was based in London, is now located in Amsterdam, which has both symbolic, employment, and strategic implications for the UK. Estimators of the effect of Brexit on the biopharma and medical device industries and on medical research confess uncertainty because the effect is dependent on the negotiations and agreement of the withdrawal, which have been dragged out until at least October 2019. Uncertainty scares investors away, which dries up innovation. And this same uncertainty has affected most other UK industries, as well as the relationship between England and Scotland, Wales, the Irelands, and the rest of Europe. Many of those who voted for Brexit are admitting that they didn't anticipate the implications. But suggestions of a re-vote have been quashed.

When we have spoken with friends from England and have raised the issue of Brexit, several of them have taken the same approach, with just a touch of "misery loves company": you in the U.S. are going through the same thing with President Trump--a call to nationalism, a fear that immigrants are stealing jobs and resources, and a desire for laws that would restrict U.S. entry. At the same time, as I have written in this blog, the Catholic Church is in crisis over its handling of the priest pedophile scandal. Overall, there is a loss of faith in the U.S., of faith in those in authority, the government, the Catholic Church.

When I think of concern about immigrants flooding the country, I recall the prejudice against our Italian and Irish ancestors my wife and my parents told us about. I remember a passage in the unfinished 16th century manuscript play Thomas More that is often attributed to William Shakespeare where More deals with a mob demanding the expulsion of immigrants: from England

Grant them removed, and grant that this your noise 
Hath chide down the majesty of England;
Imagine that you see the wretched strangers,
Their babies on their backs and their poor luggage,
Plodding to th' ports and costs for transportation,
And that you sit as kings of your desires,
Authority quite silent by your brawls,
And you in ruff of your opinions clothed;
What had you got? I'll tell you: You had taught
How insolence and strong hand shall prevail,
How order shall be quelled; and by this pattern,
Not one of you shall live an aged man,
For other ruffians, as their fancies wrought,
With this self same hand, self reasons and self right,
Would shark on you, and men like ravenous fishes
Would feed on one another.

Thinking of the dream of a unified Europe and of a desire for a restoration of nationalism, I remember reading a passage from a speech given by the U.S.-born/England residing poet and playwright T.S. Eliot that he gave in 1951 (The Complete Prose of T.S. Eliot, Vol. 7, Johns Hopkins University Press, 2019): "It seems to me on the whole [to be] a very good thing that each people, in a family of nations such as Western Europe, should regard itself in some respect as superior to all others. This makes for good and even affection relations....In short, it is not only not true that to be a good European it is necessary to be less an Englishman, or a Frenchman, or any other nationality; it is also not true that to be a good European one must have equal and impartial affection for every other European country." It seems to me to be a reasonable approach to current concerns, whatever the country is.

Meanwhile, we must deal with this loss of faith. As Matthew Arnold wrote in "Dover Beach" about the ebbing "Sea of Faith," we must be "true to one another" as we stand "on a darkling plain/Swept with confused armies of struggle and flight/Where ignorant armies clash by night."

Copyright 2019 by John T. Aquino

Catholic Church Scandal: With Work Comes the Healing

by John Aquino on 04/01/19

I have written reactions in this blog to the scandal in the Catholic Church about accusations that priests over the years had sexually abuse young men and children and that their supervisors had covered it up. On Sunday, March 31, there was either a coda or a new chapter.

Cardinal Donald Wuerl has been the Cardinal Archbishop of Washington since 2006, having previously served as bishop of Pittsburgh. He succeeded Cardinal Theodore McCarrick in the Washington, D.C. archdiocese, who was removed from public ministry on June 18, 2018 as a result of accusations of abuse that a review board of the Archdiocese of New York had found credible. (On February 16, 2019, the Vatican announced McCarrick had been defrocked). A grand jury report on the priest sexual abuse in Pittsburgh that was released August 14, 2018, implicated Wuerl, not in the abuse but in the cover-up. The report did note that Wuerl had often been proactive in dealing with reports of sexually abusive priests and in one instance traveled to Rome to insist that a priest be stripped of priestly duties even after the Vatican ruled his duties be restored. But in other instances, Wuerl was reported to have allowed those accused to remain priests, decisions that were based on psychological evaluations that it would be appropriate for the priests to continue in their duties. Wuerl responded that he had trusted in the science and the science had been wrong. Pope Francis accepted Wuerl's resignation on Oct. 12, 2018, which Wuerl had previously, and routinely, submitted in 2015, and on April 4, 2019 the Catholic News Agency announced that Pope Francis had appointed Archbishop Wilton Gregory of Atlanta as the next Archbishop of Washington, D.C.

A friend of mine told me a story about how he had gone to Cardinal McCarrick and asked him to pray for someone close to him who was seriously ill. McCarrick took my friend to a private room, and they knelt together and prayed together. My friend also asked Cardinal Wuerl for his prayers who, gesturing broadly to priests who were members of his staff and standing near, said that "all of us will pray." The contrast was between McCarrick's personal response and Wuerl's more general, more abstract one. The two men had different styles: McCark's more personal, Wuerl's more objective, logical. Of course, one could argue that McCarrick's personal, one-on-one approach may have left him open to problems in certain circumstances.

Cardinal Wuerl continued as Archbishop of Washington until his replacement took over and mostly stayed out of the public eye. Every year of late, a recording of his resonant voice asking for contributions to the needy has been played during Sunday masses in the archdiocese at the beginning of the year. But this March, a recording of one from one of the auxiliary bishops was played instead. But on Sunday, Cardinal Wuerl celebrated Mass in honor of the work done by Catholic health professionals and spoke at the reception afterwards. In his remarks, he applauded the work of the professionals being honored and analogized what they do to the Church scandal. He said that in medicine there is diagnosis, treatment, and continued monitoring. The church had diagnosed the "illness" two decades ago, he said, alluding to when the scandal broke in 2002. We have been treating it, he said, and things are better. But we need to monitor and make sure the illness doesn't reoccur. He prayed that the bishops would continue to monitor. "The ordinary work of the Church goes on, the work of the lay women and lay men goes on, and with that comes the healing, with God's grace," he said.

The remarks reminded me of the contrast between Cardinal McCarrick and Cardinal Wuerl in response to my friend's request for prayers. Wuerl's provided a generalized account of what had happened. And yet, when he had finished, the audience, members of an organization for which Wuerl had been a frequent celebrant at masses, a homilist, and a lunch speaker as well as a sponsor, stood up and applauded, long and loud, honoring the memory of his good works. The event ended, and the group of dedicated Catholic laypersons and religious left to do the more work.

Pope Francis'selection of Archbishop Gregory is significant. Gregory, as president of the U.S. Conference of Catholic bishops,
chaired the 2002 meeting in Dallas addressing the conference at which the church set the standard of "zero tolerance" of priest sexual abuse.He will also be the first black archbishop of Washington. With the new archbishop appointed, Catholics in the Archdiocese of Washington and Catholic throughout the world will continue to struggle with what has happened, and the work of the church will somehow go forward.

Copyright 2019 by John T. Aquino

Old Italian Songs: Wonderful to Hear, Hard to Explain

by John Aquino on 03/18/19

My family on both sides is Italian, but we didn't speak Italian in the house because of the American melting pot" concept that ran through much of the 20th century and lingering prejudice against Italian-Americans. And yet, I did spend some of my youth listening to old Italian songs--on records, performed at parties, and sung at weddings. Those who have seen the movie The Godfather have heard the Neapolitan song "C'e la luna mezzo mare" sung by the mother of the bride in the opening wedding scene, and the song has been a frequent part of Italian-American wedding receptions. But translating or explaining or even singing these songs to certain audiences can be difficult because they tend to be, for want of a better word, earthy.

My Mom used to sing a song when she was cooking, and I learned it from her.

We', Marie, We', Marie,
Quanto sonno giu perso per te.
Fammi dormi, una notte abbreciata cue te.

When my wife and I were in Italy on a pilgrimage and an Italian bishops was with us, after dinner, he suggested we sing songs. Eager to show off, I started to sing, We', Marie." The bishop blushed, stammered, said, "I cannot sing that," and walked away. That was probably because the Italian lyrics, sung by a man outside of a sleeping woman's window,  mean, roughly, "What long restless nights you have cost me./Let me sleep with my arms wrapped tight around you." 

"C'e la luna," which was written 92 years ago, is even earthier. The Italian lyrics are 

C'e la luna mezzo mare
Mamma mia maritari
Figlia mia, a cu te dari,
Mamma mia pensaci tu.
Si ci dugnu lu babberi
Iddu va, Iddu veni
' U rassolu manu teni.
Si ci pigghia la fantasia
Mi rasulia la figlia mia."
"Oh, Mama, me voglio marita.
Oh, cump a, quand bella baccala"

It's sung to a sprightly tarantella. But the lyrics translate as a dialogue between a daughter and her mother:

"There's a moon in the middle of the sea.
Mother, I must get married."
"Daughter, whom should I get for you?"
"Mother, that's up to you."
"If I give you to the barber,
He will come and go,
Go and come,
Carrying a razor in his hand.
And if it strikes his fantasy.
One day, he'll razor you."
"Oh, Mama, I want to get married.
Oh Godfather, bring on the wonderful codfish [for the wedding]."

And then the mother goes on to describe similar ends if the daughter marries the carpenter, the shoemaker, the farmer, the butcher, the fisherman, and the gardener. The outcomes sound violent, but there's sexual meaning behind each profession--the butcher has a sausage in his hand, the gardener has a cucumber, etc.

In reworking the lyrics into English, songwriters took great liberties for the American market. A version that was popular in the 1930s and 1940s was titled "Oh, Ma-Ma (The Butcher Boy)" and went like this:

"Hey, Marie,
I gotta da lamb chop,
Hey, Marie, 
I gotta da pork chop,
Hey, Marie,
Ya wanta marry me?"
"Oh, Ma-Ma!
Oh, catcha dat man-a for me.
Oh, Ma-Ma!
How happy I will be!
Oh, Ma-Ma!
I will cheery-beery be.
Oh, Ma-Ma!
It's-a the butcher boy for me."

Its pigeon-English is insulting for Italian-Americans, but it's not surprising they went simplistic given the sexual innuendo of the original. And the best they could do was "cheery-beery"?

When I was growing up, I'd hear Al Martino sing his recording of the song, titled "Lazy Mary,"which was popular then. He sings first in Italian and then, he says, he will sing the next verse in "British," with, again, lyrics that have nothing to do with the original but are insulting to Italians in a different way:
Lazy Mary,
You better get up.
She answers back, 
I am not able.
Lazy Mary,
You better get up,
We need the sheets for the table.

The singer/bandleader Louis Prima came closer to the original in his English lyrics, although he only mentions the butcher boy who has a cannoli in his hand and the musician who carries a trumpet.

The original lyrics for "Ce la luna" reflect a culture that was bawdy and rough with women. There's no disguising it. Come to think of it, it was an appropriate song to begin The Godfather. 

Italian lyrics, even non-earthy, non-violent ones, are also just difficult to translate. "Ce' la luna" isn't really in Italian. It's in the Neapolitan dialect with some Sicilian mixed in. I remember asking my sister Jean, who studied and studied and learned to speak Italian very well, about Dean Martin's recording of "Volare," which means "to fly." He sings some of it in Italian and the rest in English. Where the Italian lyrics go, "Nel blu, dipinto di blu/E che dici di stare lasu," Martin translates it as, "No wonder my happy heart sings,/Your love has given them wings." Even I, with my poor Italian, couldn't find any similarity between the two lyrics. Jean said that the song is about the singer being transported into the skies with his love and that earlier in the song the Italian lyrics go, "I think a dream like this never comes back,/You paint me with your hands and your face is blue,/Then suddenly I was kidnapped by the wind/And began to fly in the infinite sky." And so, the last lines, beginning "Nel blu" translate as "In blue, painted blue, [I am] happy to be there [with you]." The English lyric writers didn't try to translate this ethereal concept and instead went with lines like, "Let's fly way up to the clouds,/Away from the maddening crowds." A lot was lost. 

But that's usually the way it is with translations. Something is always lost.

Copyright 2019 by John T. Aquino

Struggling with Catholic and How the Church Reasoned

by John Aquino on 03/15/19

Many of us who are Catholics are struggling, A March 19, 2019 Gallup Poll showed an increasing percentage of Catholic who say they are considering leaving the church. Even some, who are not Catholics but have respect for those who are, are struggling. The struggle is an attempt to balance the history of the Roman Catholic Church, its contributions to the inner well being of human beings, its tireless efforts to feed the hungry and clothe the homeless, and its spreading the word of the Gospel throughout the world, with the recent priest pedophile scandal and cover-up. 

The scandal comes down to the  decision of church officials to focus on keeping the church strong and place little or no attention on helping those hurt by the actions of these priests. This line of reasoning smacks of that expressed by the brilliant but emotionless Vulcan Spock in the "Star Trek" television series and movies: The needs of the many outweigh the needs of the few. As part of that larger context, I found myself sorting out the meaning of the terms "Jesuit" and "Jesuitical" as I understand them. Some have credited the church's reasoning in this scandal as directly or indirectly influenced by Jesuitical thinking. In December 2018, the Jesuits released their own list of members of their order suspected of sexual abuse, and there have been claims that some accused priests found a haven at Jesuit college campuses. And even here there is a struggle to balance a rich and beneficial history of Jesuit learning and selfless giving against a reputation for being cunning and emotionless--Jesuits as Vulcans?--and my own limited experiences, none of which were good. But, again, I balance that with the good experience of family members.

A Jesuit is a member of the Society of Jesus, a Roman Catholic order of priests founded by St. Ignatius Loyola, St. Francis Xavier, and others in 1534 to serve as missionaries for the church. The order began establishing schools soon after its founding, which today include such universities as Georgetown and Marquette. "Jesuitical" is defined in dictionaries as dissembling and equivocating like a Jesuit. Dissembling means to conceal one's true motives, and equivocation is the use of ambiguous language to conceal the truth or to avoid making a commitment. The background for this labeling is that in Elizabethan England, where Catholics were persecuted by the state and its Church of England, Jesuits advised them to employ equivocation to avoid the sin of lying. If they were asked, "Is there a priest in your house?", they were told to say, "I know not," with the mental reservation that the full sentence was actually, "I know not to tell you" or "My answer is no," to which they were to add mentally "to you." Those critical of Jesuits, however, describe their reasoning as sly and cunning.

If someone listens to your argument and responds, "That's very Jesuitical," it may not be a compliment.  In Shakespeare's King John, based on the life of the 12th century English king, the character of Cardinal Pandulph is said to be a parody of Jesuitical thinking. In the play, Pandulph excommunicates King John and urges King Phillip of France to break away from John. Philip answers that he had sworn to support John. Pandulph replies:

All form is formless, order orderless,
Save what is opposite to England's love. . . .
For that which thou hast sworn to do amiss
Is not amiss when it is truly done, 
And being not done, where doing tends to ill,
The truth is then most done not doing it.

I have seen program notes to the play describing this passage as "Jesuitical double-talk" and a parody of Jesuitical reasoning. 

Having gone this far, I should note that my knowledge of Jesuits and Jesuitical reasoning is limited because, of the male members of my immediate family, I was the only one not taught by Jesuits. I have had three experiences with Jesuits.

First, when I had just graduated from college and still retained my knowledge of Latin, I heard that the division of the church responsible for translating Catholic liturgy and writings into English was looking for a translator. A practicing Catholic, I liked the idea of using my skills to help my church. I applied and went through four interviews with a Jesuit who was very encouraging. I was called back for a fifth, and the Jesuit, whose encouragement had disappeared with a suddenness that shocked by naive soul, informed me that they had decided not to waste time and money with someone like me for whom this would be his first job and to instead hire part-time an experienced translator who had worked with this particular Jesuit before. My assumption is he was misleading me to have me in hand until he signed a deal with the older man. I bumped into the man on the way out and he was thirty years older than I and smelled of alcohol. I heard later that the project had run into difficulties and delays, but I had by then started my career in journalism.

My second experience concerns a scholar I am very close to who was up for tenure at a university. The school's decision-making bodies were split, and the final decision fell to the university's president, who was a Jesuit and who had previously been supportive of the scholar, even writing in a university publication about the scholar's achievements. He decided not to grant tenure for the simple reason that there had been a division among those who were to decide. Someone would be unhappy with his ruling, he reasoned, which could make the future unhappy for the scholar. Not granting tenure was actually for the scholar's own good, he said. It's an interesting line of reasoning. Unfortunately, anyone who is familiar with the university world knows that not receiving tenure for his/her first position is a black mark in applying for other positions, and the scholar, who was and is a great teacher, never taught full-time at the university level again. 

Finally, when I was between jobs, I applied for a communications director position with a Jesuit entity. Again, I liked the idea of working for my church. I interviewed four times and was called back for a fifth. There were five interviewers, three were very cordial, and the other two--a former university president and a fellow journalist--were rude and insulting to me from the moment I walked into the room. For the other three, I told stories and they laughed, I gave examples of how I would handle the position, and they nodded appreciatively. For the other two, when I said something, anything, they rolled their eyes and shifted noisily in their chairs. I received a letter just two days later informing me that they had hired an individual who had been trained by Jesuits and had worked with Jesuits before. 

Other things about Jesuits come to me second-hand. My father was proud of his education at Georgetown and spoke highly of his Jesuit teachers. He was, as I have written before, the son of Italian immigrants who never learned to write English. He left home for the first time when he came to study at Georgetown, and he left with training that made him a skilled attorney who practiced for 40 years, a leading example for both his profession and his church. And the Jesuits' work in education over the centuries is a formidable achievement. 

There is, I would think, much to be learned from them. And I even said this at my final interview at that Jesuit entity, I was asked how I would present what was the Jesuits had done and were doing. In my answer, which was off the top of my head, I described how for my birthday that year my wife had given me a copy of the noted British writer Evelyn Waugh's biography of Edmund Campion, an Elizabethan Jesuit who was hanged in England in 1581. My wife didn't know when she gave the book to me that I would be interviewing with this Jesuit organization. She just knew I liked reading brilliant writing. In reading it, I was struck by a passage that described how, when Campion and other Jesuits were preparing to enter England, knowing that they were likely to be hanged, they wrote their wills, at ease with the possibility of dying for their faith. Later, when preparing for my fifth interview with the Jesuit entity, I came upon an article one of the interviewers had written on the three white "freedom riders," college students who were in Mississippi in 1961 attempting to register African-Americans to vote. They were ultimately killed by Ku Klux Klan members. The article noted that before these three, brave young men left for Mississippi, Attorney General Robert F. Kennedy asked a member of his staff if the students were prepared for the dangers they could encounter. The answer he received was: "They're writing their wills." This, I told, the five interviewers illustrates the relevance of the Jesuit story. The example of 1581 reaches out four centuries to the example of 1961 of individuals who will risk everything for what they believe.

As I wrote earlier, I didn't get the job. But I believed then, and I believe now, that, if one can come to terms with what "Jesuitical" means, there is a lot to be learned from Jesuit history. I also hope that reasoning by religious leaders that benefits the many at the expense of the few is on the way out. 

Copyright 2019 by John T. Aquino