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Supreme Court hears arguments on definition of 'cocaine base', patent rights

By Ann Riley

[JURIST] The US Supreme Court [official website, JURIST news archive] heard oral arguments [day call, PDF] Monday in DePierre v. United States [oral arguments transcript, PDF; JURIST report] on whether the term "cocaine base" in the Federal Sentencing Guidelines [materials] is limited to "crack" cocaine or encompasses all forms of cocaine chemically classified as a base. The US Court of Appeals for the First Circuit ruled [opinion, PDF] that "cocaine base" refers to "all forms of cocaine base, including, but not limited to crack cocaine." Counsel for the petitioner argued that Congress did not intend "cocaine base" to refer to the substances present in the middle of the crack-production process, saying:

First of all, because Congress didn't use the term "cocaine," which is used elsewhere in the provision, it clearly meant a subset. It didn't mean all of the substances with the chemical formula that satisfies the chemical term "cocaine." Second of all, the statute shows just by the 100-to-1 ratio that Congress was focused on something that was especially dangerous, much more dangerous than powder. Third, the legislative context was, as the Court said in Kimbrough, that this was a statute that was enacted in response to a particular problem, and I think the question we're debating is: Would Congress have said, when it defined the term "cocaine base" ... that was used at the time to describe these categories of substances.

Counsel for the government argued that whatever the term—freebase, coca paste or crack—"cocaine base" is the same chemically and smokeable. Further, that Congress did not limit the statute to just crack, one form of cocaine base, but all cocaine bases. The government also argued at "cocaine base" is a redundancy made by Congress to clarify the previously imprecise term "cocaine," used by the courts.

In Board of Trustees of Leland Stanford Junior University v. Roche Molecular Systems [oral arguments transcript; JURIST report], the court heard arguments on whether the rights of universities under the Bayh-Dole Act [35 USC §§ 200-212] to inventions arising from federally funded research can be terminated by the individual inventors through separate agreements assigning the inventor's rights to a third party. The US Court of Appeals for the Federal Circuit held [opinion, PDF] that Roche possesses an ownership interest in the patents at issue, depriving Stanford's standing to sue. Counsel for the petitioner argued:

The inventor, because he is working here at the time of the assignment on a Federally funded project as an employee of Stanford University, is essentially working on something covered by Bayh-Dole; and being covered by Bayh-Dole means that he lacks the power to transfer title to his future invention to someone else because the statute has already spoken for it. ... [The general rule is] that inventors receive title. However ... the array of so-called vesting statutes that predicated the Bayh-Dole Act throughout the 30 years in between are statutes that specifically, in most instances without any discussion of an assignment, simply vested title directly in the United States. ... Congress clearly had the power to do that, and they did it, and no one ever seriously argued that they couldn't.

Counsel for the respondent accepted assertion that while the Bayh-Dole Act purported to put patents into the market, it did not change the long-standing rule "that title to an invention vests in the inventor, subject to assignment, not in the inventor's employer." However, counsel for Stanford further argued that the Bayh-Dole act should be read straight-forwardly, and not in relation to the general rule. The respondent went on to say, "Congress worked a highly transformative change in the law of patent ownership and assignment and did it in a very obscure and indirect way ... [creating] this brand-new vesting rule."

Full post as published by JURIST - The Paper Chase on February 28, 2011 (boomark / email).