Tuesday, November 01, 2005

Judge Alito in intellectual property

Judge Alito has rendered decisions in copyright matters. In one opinion, Judge Alito decided against plaintiff Southco, a company that makes fasteners and latches, saying “the creative spark is utterly lacking in Southco’s parts numbers and [thus] these numbers are examples of works that fall short of the minimal level of creativity required for copyright protection.” Because the CAFC handles most (recall Florida Prepaid) patent matters, we won't know his record on patent law.

University of Illinois law prof Larry Ribstein, in a posting on his blog, cited several other Alito opinions as evidence that he "will decide business cases with some sensitivity to the value of free markets and the problems firms face from litigation and regulation." Among them:

-- In Hakimoglu v. Trump Taj Mahal Associates, Judge Alito rejected a claim by a casino patron who sought to recover gambling losses allegedly caused by the casino's serving him free liquor and allowing him to continue gambling after he became drunk.

-- In Barton & Pittinos Inc. v. SmithKline Beecham Corp., Judge Alito ruled against the plaintiff, a pharmaceutical marketer whose program of marketing SmithKline vaccine to nursing homes was terminated after pharmacists objected. He wrote that B&P lacked an antitrust injury sufficient to support standing to sue because it was not in competition with pharmacists -- a strict interpretation of the law.

There was once an issue of conflict of interest. According to a report by The Philadelphia Inquirer in 2003, Judge Alito was accused of a conflict of interest after refusing an appeal of a lawsuit filed against the Vanguard Group. At the time, he had $390,000 to $930,000 invested in Vanguard mutual funds.


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