Law and Justice

Posts Tagged ‘Says’

A World War I memorial will be allowed to stay in the Mojave Desert, and though covered since 2002 because it offended some people as a religious symbol is now unveiled again. It was the United States Supreme Court that allowed the Cross, on private land owned by the Veterans of Foreign Wars to stay after a protracted controversy. The Cross has stood for about 75 years in the desert. The question came to, Is the Cross religious symbol for Christians solely, or War Memorial for American dead?

In California and even San Francisco’s Bay Area the subject of a cross in a remote desert spot in the Mojave was a highly controversial matter. What about the cross on public land? Does this not violate separation of Church and State? was hotly asked.
 
A religious symbol cannot be on public land, said Frank Buono who is now retired from the Park Service. He brought the case to The Supreme Court over a ten year period with the help of The American Civil Liberties Union. According to The New York Times, “The white wooden cross, roughly 5 feet tall, stands atop Sunrise Rock in California’s San Bernardino County.” It is actually made of pipe today. The Supreme Court did not say whether this was a simple, dignified, and even popular War Memorial of little note but some popularity among the private individuals who visited it, and those who built it. The Court took on this almost humble case that to some appeared overblown.
 
A PDF of the Supreme Court decision is here.
 
The announcement of the Court’s result was made and reported in major newspapers April 28, 2010. Writing for the Supreme Court in Salazar v. Buono, Justice Anthony M. Kennedy said:
“The District Court concentrated solely on the religious aspects of the cross, divorced from its background and context. But a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.”
 
The Veterans of Foreign Wars agreed. One could easily surmise that’s the real issue, the real case from their vantage point. Many veterans agreed.
 
Gabriel Nelson, writing in his blog in The New York Times, said, “The Supreme Court ruled today that Congress and the Interior Department acted properly when they used a land transfer to solve a dispute over a cross on display in the federal Mojave National Preserve.”
 
There was no big hullaballoo, but a minimal statement with dissent by the Supreme Court. Gabriel Nelson put it well in his low key remark on how the Interior Department had acted properly. This writer has taken some snippets from other newspaper reports that demonstrate all are in accord in their reporting of the facts, and as the Supreme Court noted it was the facts that led them to their conclusions on the decision.
 
In its brief on behalf of Interior Secretary Ken Salazar, Solicitor General Elena Kagan said the cross did not imply government sponsorship. The transfer of land to the Veterans of Foreign Wars that required the installation of a plaque dissociating the statue from the federal government, she wrote, satisfied the problem of Church/State religion (Christian).
 
The Christian Post said in its report, “The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm,” wrote Justice Anthony Kennedy. “This cross,” he wrote, “evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles.”
 
As a taste of the real argument in differences on the United States Supreme Court, it appears to this writer that Justice Anthony Kennedy caught the essence of the issue separating Justices. The Wall Street Journal noted in their report, Justice Stevens’s dissent argued that Congress wasn’t taking action to memorialize veterans, but rather using their memory to justify maintenance of a religious symbol. He noted that the Mojave cross little resembles the prominent and nonsectarian markers erected for those who served in World War II, Korea or Vietnam.
 
JESS BRAVIN Wall Street Journal writer pointed out in his article, The cross—estimated at five to seven feet tall—stands on Sunrise Rock in a remote patch of desert. Veterans, some of whom had moved to the region for health reasons, first erected a cross at the site in 1934 and it was often used for Easter services. The current version was assembled from painted metal pipes in 1998 by Henry Sandoz of Yucca Valley, Calif.
 
Though The Wall Street Journal called the decision one whereby the Cross was determined more war memorial than religious symbol, the grass roots battle in California called for many statements that: Yes, it was significantly and first a war memorial, but it was a religious statement for the war dead. There the Supreme Court did not necessarily agree, but it did not make sweeping decisions. Justice Kennedy wrote, Because of the “highly fact-specific nature” of the case, it is “unsuited for announcing categorical rules.”
 
Justices Ruth Bader Ginsburg and Sonia Sotomayor joined Justice Stevens’s dissent. Justice Stephen Breyer dissented separately.
 
Images:  (1) Mojave Desert Cross, by Associated Press; (2) Mojave Desert Cross, by unknown.

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Chemical, pharmaceutical, and biotechnology companies and inventors spend countless number of hours and a lot of money to come up with a drug for curing killer diseases like cancer or diabetes or a new catalyst to make a wonder plastic. They protect their inventions by securing a patent.

For one reason or another, the patent owner may not be ready to make or sell the patented invention. The patent owner, for example, University or individual inventor, may be thinking of licensing the invention to another who can market the invention, and collect royalty payments rather than undertake efforts to secure financing necessary to bring their works to market themselves. However, much to the patent owner’s surprise and anger, it may notice an infringer illegally making and selling the invention. Can the patent owner go and automatically get an order to halt the infringer’s operations? The answer may be surprising. The courts are not always sympathetic to the patent owner.

In the recently decided fight between internet giant eBay and another company Mercexchange, who owned a patent for doing business on the web, Justice Clarence Thomas, speaking for the United States Supreme Court, ruled that the patent owner, besides showing that the patent has been violated, must prove that a number of things are lining up in its favor before it can stop the infringer. This is a dramatic departure from the earlier lower court ruling that, except in rare situations, a court should automatically issue an order to halt the infringer’s operations.

To succeed in stopping the infringer’s operations, Justice Clarence Thomas, writing for the Supreme Court, said that the patent owner must show that the patent owner has suffered beyond repair by the actions of the infringer; that money cannot compensate for the infringer’s actions; how the patent owner’s hardship outweighs the hardship of the infringer; and that public interest would not be served by stopping the infringer. This is commonly called the “four-factor test”.

In proving that things are lining up in his favor, one question that would come up is how strong the patent is – i.e., can it survive an attack on its validity. A weak or vague patent is of little use. In the words of Justice Anthony Kennedy, “the potential vagueness and suspect validity of … the patents may affect” the outcome.

Securing a strong patent is not trivial. It is important that the patent is filed promptly and accurately. If the patent was filed long after the invention was published in a magazine or displayed as a poster, its validity or vitality comes into question. Or the patent may have been filed promptly but the patent may not cover the invention adequately. In some instances, important information may have been hidden from the Patent Office. To succeed in stopping the infringer, or getting a sizable royalty or settlement, it is critical that the patent is strong and robust.