Friday, October 30, 2020

ED Va reversed on evidentiary issues in Tecsec case

TecSec appeals. It challenges the district court’s motion-in-limine ruling, as well as certain jury instructions and the post-trial damages reduction. Adobe cross-appeals, challenging the district court’s ruling on eligibility. We reverse the evidentiary ruling that eliminated TecSec’s inducement case for a substantial period, and we reject Adobe’s challenge to the district court’s eligibility ruling. For those reasons, and others stated in this opinion, we reverse the judgment in part and remand for further proceedings on TecSec’s claim of induced infringement. Of details A defendant is liable for “induced infringement under § 271(b)” if the defendant took certain affirmative acts to bring about the commission by others of acts of infringement and had “knowledge that the induced acts constitute patent infringement.” Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 765–66 (2011); see Commil USA, LLC v. Cisco Systems, Inc., 135 S. Ct. 1920, 1928 (2015); Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc., 843 F.3d 1315, 1331 (Fed. Cir. 2016). The intent element requires “knowledge that the induced acts constitute patent infringement,” which can be established by a proper finding of “willful blindness.” Global-Tech, 563 U.S. at 766–71; see Commil, 135 S. Ct. at 1926–28 (reiterating requirement of knowledge of infringing character of induced conduct, not just knowledge of patent). This intent element was the basis for the district court’s primary rationale for its motion-in-limine ruling, a ruling that assumed that the induced conduct was in fact infringing. (...) The district court in this case erred when it concluded as a matter of law that, after the district court’s (later reversed) claim construction on March 3, 2011, Adobe “lacked the requisite intent to induce infringement.” J.A. 27. The court explained that it had “reasonably, though erroneously, ruled in Adobe’s favor on infringement,” and, accordingly, Adobe was entitled to rely on that ruling as proof that the relevant induced acts were non-infringing. Id. That reasoning makes dispositive what Adobe, with objective reasonableness, could have believed. The Global-Tech inducement standard, however, can be met by proof of what Adobe in fact subjectively believed. For example, Adobe might have believed that the March 2011 claim-construction ruling was erroneous (though reasonable) and would likely be reversed (as it was in 2013). Thus, the district court’s March 2011 ruling “could, at most, create a factual question, not an entitlement to a no-knowledge finding as a matter of law.” Smith & Nephew, 603 F. App’x at 989– 90. For those reasons, we conclude that the district court legally erred in its primary rationale for ruling out inducement after March 3, 2011, namely, that the claim-construction ruling of that date furnished an objectively reasonable basis for a belief that use of the accused products did not infringe, even if Adobe did not have such a belief. Also The district court’s second ground for its motion-inlimine ruling was that “allowing TecSec to argue [postMarch 3, 2011] induced or willful infringement . . . would taint the trial and any verdict with undue prejudice and juror confusion.” J.A. 28. Whether we review that ruling de novo or for an abuse of discretion, we conclude that the district court erred in relying on this rationale to preclude TecSec from proving inducement after March 3, 2011. In defending the district court’s rationale, Adobe invokes Rule 403 of the Federal Rules of Evidence, which provides that a court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of,” among other factors, “unfair prejudice” or “confusing the issues.” But the district court in this case went beyond excluding a single piece, or even a fixed set, of evidence and leaving TecSec to present such other relevant, admissible evidence as it may have on inducement in the period at issue. Instead, the court foreclosed the introduction of any evidence on the issue of post-March 3, 2011 inducement of infringement. This is materially different from any application of Rule 403 Adobe has identified. Cf. General Dynamics Corp. v. United States, 563 U.S. 478, 484–85 (2011) (distinguishing case involving “purely evidentiary dispute” over state-secret privilege, where “the privileged information is excluded and the trial goes on without it,” from case involving foreclosure of a claim). The district court reasoned that if TecSec was allowed to argue inducement of infringement after that date, Adobe would be prejudiced were it not allowed to introduce the March 3, 2011 claim construction and the stipulation by TecSec that, under that construction, Adobe’s customers did not directly infringe. J.A. 28. The court then concluded that “it would also be substantially and unduly prejudicial and confusing for the jury to see a prior ruling in this case and TecSec’s stipulation that Adobe’s products did not infringe.” J.A. 28–29. On that basis, the district court precluded TecSec from offering any proof of post-March 3, 2011 inducement. Adobe has not cited any authority that supports such foreclosure of liability for a given period in the circumstances present here. Any conclusion that post-March 3, 2011 inducement could not be fairly tried would have required consideration of what other admissible evidence TecSec had that was relevant to the intent element of inducement, as well as of the possible measures for effectively but fairly reducing jury confusion. But the district court did not undertake, and because of the limited scope of Adobe’s motion in limine was in no position to undertake, that required consideration. Adobe’s motion, besides what it suggested on the legalimpossibility point, was limited to arguing for Adobe’s ability to introduce the claim-construction ruling and TecSec’s stipulation. It did not call for TecSec to identify all evidence of intent—as a motion for summary judgment would have done—so that the district court could determine if there was a triable issue of post-March 3, 2011 inducement of infringement. See J.A. 10429. TecSec therefore properly limited its response to arguing against the admission of the construction and stipulation. See J.A. 10849. On the motion as framed, the district court lacked the basis to consider the totality of TecSec’s post-March 3, 2011 inducement evidence to determine whether that issue could fairly be tried. And the court did not consider the totality of such evidence. Nor, in taking the extraordinary action of foreclosing liability for a substantial period, did the district court set forth an analysis of potential means, such as cautionary jury instructions, that could reduce jury confusion and allow a fair trial considering the totality of relevant evidence. Adobe cites several cases to support the proposition that “there are circumstances where, for willfulness or inequitable conduct, there can be no intent as a matter of law.” Appellant’s Br. at 28. None of those cases support the ruling in this case. The cited cases all involved ordinary motions for summary judgment that, with proper procedural protections, duly enabled the court to consider all evidence relevant to the particular liability issue. See Ferring B.V. v. Barr Labs., Inc., 437 F.3d 1181, 1190–94 (Fed. Cir. 2006) (finding lack of intent for inequitable conduct after consideration of evidence on summary judgment); Intercontinental Great Brands LLC v. Kellogg N. America Co., 869 F.3d 1336, 1352 (Fed. Cir. 2017) (same). By contrast, Adobe’s motion in limine did not call for, or provide a basis for, consideration of all relevant material evidence. Without such consideration, the district court could not properly resolve the issue as a matter of law.2 As Adobe acknowledges in this court, see Cross-Appellant’s Principal and Response Br. at 15, 20, when the district court stated that it would be “substantially and unduly prejudicial and confusing for the jury to see” the claim-construction ruling and TecSec’s stipulation, J.A. 28–29, the court was determining that the evidence Adobe was entitled to introduce would be “unduly prejudicial” to TecSec. But TecSec never stated that, if that evidence had to be admitted at Adobe’s behest, TecSec would drop its inducement claim for the post-March 3, 2011 period. To the v

CORCAMORE loses at CAFC on "statutory cause of action" issue

The outcome Corcamore LLC appeals an order of the United States Patent and Trademark Office, Trademark Trial and Appeal Board. The Board entered default judgment as a sanction against Corcamore, which resulted in the cancellation of Corcamore’s trademark registration for SPROUT. On appeal, Corcamore contends that the Board erred in granting default judgment, in particular because SFM LLC lacked standing to petition for cancellation of the trademark registration. We conclude that appellee SFM was entitled to bring and maintain a petition under 15 U.S.C. § 1064, the statutory cause of action for cancellation of trademark registrations, and that the Board did not otherwise abuse its discretion in imposing default judgment as a sanction. We affirm. The CAFC noted: Whether a party is entitled to bring or maintain a statutory cause of action is a legal question that we review de novo. Empresa Cubana, 753 F.3d at 1274 (citing Lexmark, 572 U.S. at 129). In this appeal, we review de novo whether SFM pleaded sufficient facts to establish entitlement to challenge Corcamore’s registered trademark under § 1064. We first observe that there exists confusion in the law stirred by the inconsistent use of the term “standing.” As Justice Scalia observed, certain issues often discussed in terms of “standing” are more appropriately viewed as requirements for establishing a statutory cause of action. Lexmark, 572 U.S. at 128 n.4. That is the case here. To be clear, this appeal does not involve the traditional legal notions of Article III standing. This appeal focuses instead on the requirements that a party must satisfy to bring or maintain a statutory cause of action, such as a petition to cancel a registered trademark under 15 U.S.C. § 1064. (...) In Lexmark, the Supreme Court established two requirements for determining whether a party is entitled to bring or maintain a statutory cause of action: a party must demonstrate (i) an interest falling within the zone of interests protected by the statute and (ii) proximate causation. 572 U.S. at 129–34. The Court explained that those two requirements “suppl[y] the relevant limits on who may sue” under a statutory cause of action. Id. at 134. The Court made clear that the zone-of-interests requirement applies to all statutory causes of action, and that proximate causation generally applies to all statutory causes of action. Id. at 129, 133. (...) To be clear, § 1064, like § 1125(a), is a statutory cause of action provided in the Lanham Act. See Empresa Cubana, 753 F.3d at 1275–76 (holding that appellant demonstrated entitlement to a “statutory cause of action” under the Lanham Act). A “cause of action” consists of two elements: operative facts and the right or power to seek and obtain redress for infringement of a legal right which those facts show. See 1A C.J.S. Actions § 53; see also Cause of Action, Black’s Law Dictionary (11th ed. 2019) (“A group of operative facts giving rise to one or more bases for suing.”).

Thursday, October 22, 2020

CAFC vacates ND Cal order: The district court did not perform the required analysis

From the decision in FINJAN, INC. v. JUNIPER NETWORKS, INC: Courts in the Ninth Circuit “must conscientiously balance the competing interests of the public and the party who seeks to keep certain judicial records secret.” Id. at 1221 (citing Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)). In Uniloc, for example, we vacated and remanded a portion of an order that “failed to make findings sufficient to allow us to adequately assess whether [the district court] properly balanced the public’s right of access against the interests of the third parties in shielding their financial and licensing information from public view.” 964 F.3d at 1364. We do the same here. The district court did not perform the required analysis. That analysis is not for us to undertake in the first instance. Therefore, we vacate the Unsealing Order and remand for the district court to “make particularized determinations as to whether and, if so, to what extent” the third-party licensing information raised by Finjan should be made public.1 Id.

Monday, October 19, 2020

CAFC parses the term "antibodies" in Immunex case

First, the relevant science. Antibodies are proteins. Like all proteins, they are composed of numerous individual amino acids chained together in a particular sequence. Antibodies are roughly Y-shaped, made of four chains—two “heavy” and two “light.” Each chain can be further divided into a “variable region” and a “constant region.” And each variable region contains three relatively small “complementarity-determining regions” (CDRs) situated at the tips of the Y. The remainder of the variable regions are the “framework regions.” Particular antibody regions have particular biological implications. For instance, it is primarily the CDRs that give an antibody its ability to bind selectively to specific targets (i.e., antigens), despite making up just a sliver of its structure. See J.A. 1501, 7042–43. To that end, an antibody’s exact amino acid sequence determines what the antibody binds to, which affects the antibody’s therapeutic usefulness. The amino acid sequence of an antibody also determines whether the human immune system recognizes and rejects it as “non-human.” Amino acid sequences that are human in origin—that is, sequences “consistent with the amino acid sequences of antibodies produced naturally by the human immune system,” see Appellant’s Br. 4—can avoid triggering immune responses. Early efforts at therapeutic antibody development started with mice. For example, researchers could inject a mouse with an antigen, the mouse would generate antibodies to the antigen, and those antibodies would be harvested. In that case, the entire amino acid sequence was murine (i.e., from mice). These antibodies, disappointingly, tended to plague patients with “undesirable and harmful immune reactions.” See Appellant’s Br. 7–8. Too much of each antibody was “mouse” in origin, to the consternation of the human immune system. Through various techniques, the proportion of an antibody that is recognized as “mouse” can be decreased. In “chimeric” antibodies, for instance, the constant regions tend to be human in origin, and the variable regions, including the CDRs, tend to be nonhuman—making the antibodies’ amino acid sequences mostly human in origin. Appellant’s Br. 8–9. In “humanized” antibodies, only the CDRs are nonhuman—the antibodies’ amino acid sequences, including the portions responsible for immune reaction, are almost entirely human in origin.1 Further, fully human antibodies can be made in which even the CDRs are human in origin.

CAFC upholds federal district court abstention as to declaratory judgment in a mixed contract/patent case

Judge Newman wrote: This appeal is from the decision of the United States District Court for the Northern District of Indiana,1 dismissing a declaratory judgment complaint filed by Warsaw Orthopedic, Inc.; Medtronic, Inc.; and Medtronic Sofamor Danek, Inc. (collectively, “Medtronic”) against Dr. Rick Sasso, a surgeon and inventor. The district court dismissed the complaint without prejudice, applying the doctrine of federal court “abstention” in view of the concurrent action in Indiana state court between the same parties concerning the same dispute; that decision is on appeal to the Indiana Court of Appeals.2 The state court action is described by Dr. Sasso as a contract case for payment for patent rights, and the federal action is described by Medtronic as a patent case in which payment requires valid patents. Medtronic argues that the district court’s “abstention” was an abuse of discretion, because the federal courts have exclusive jurisdiction over patent cases, and patent validity is fundamental to resolution of this dispute. Thus, Medtronic argues that abstention was inappropriate because the federal court had the obligation to receive and resolve this dispute. We conclude that the district court acted within its discretion, abstaining without prejudice, on the facts hereof, for the question of contract interpretation is on appeal in the Indiana state court, and federal action based on the federal issues is not precluded. AND of the declaratory judgment part: The Declaratory Judgment Act states that courts may grant declaratory relief, 28 U.S.C. § 2201(a), and the Supreme Court has explained that the Act confers “unique and substantial discretion in deciding whether to declare the rights of litigants,” Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995). Also, the Court had stated in Brillhart v. Excess Insurance Co. of America, 316 U.S. 491 (1942), that federal courts may and reasonably should abstain from exercising declaratory jurisdiction when the issues “can better be settled in [a] proceeding pending in . . . state court.” Id. at 495. As summarized in Envision Healthcare, Inc. v. PreferredOne Insurance Co., 604 F.3d 983 (7th Cir. 2010): “Under what is known as the Wilton/Brillhart abstention doctrine, district courts possess significant discretion to dismiss or stay claims seeking declaratory relief, even though they have subject matter jurisdiction over such claims.” Id. at 986. The propriety of a district court’s Wilton/Brillhart abstention is reviewed on the standard of abuse of discretion, that is, whether the action “is based on clearly erroneous findings of fact, is based on erroneous interpretations of the law, or is clearly unreasonable, arbitrary or fanciful.” iLOR, LLC v. Google, Inc., 631 F.3d 1372, 1376 (Fed. Cir. 2011).

St. Jude does not fare well at the CAFC in SNYDERS HEART VALVE case

The outcome: St. Jude appeals on a subset of the challenges it presented to the Board. For IPR-105, it argues that the Board erroneously rejected the contention that Leonhardt anticipated claims 1, 2, 4–8, and 28, the alleged error being the Board’s application of the construction of the claim term “band.” For IPR-106, St. Jude argues that the Board erroneously rejected the contention that Bessler anticipated claim 28, the alleged error being the Board’s finding a failure of proof that Bessler meets claim 28’s “manipulator” limitation. St. Jude also argues, for IPR-106, that the Board erred in rejecting St. Jude’s challenge to most of the claims at issue (all but claims 17, 27, and 30) for obviousness over Bessler plus Johnson and Imachi. Snyders crossappeals in IPR-106, arguing that the Board committed several errors in finding claims 1, 2, 6, and 8 anticipated by Bessler. We affirm the Board’s decision in IPR-105. We reverse the Board’s finding in IPR-106 that Bessler anticipated claims 1, 2, 6, and 8. We need not reach St. Jude’s anticipation argument as to claim 28, and we affirm the Board’s obviousness rejection in IPR-106. Of the issue in 106: Both parties challenge aspects of the Board’s decision in IPR-106. We begin by addressing the challenge presented by Snyders, in its cross-appeal, to the Board’s finding that Bessler anticipated claims 1, 2, 6, and 8. We then address St. Jude’s argument that the Board erred in not finding claim 28 anticipated. Lastly, we address St. Jude’s obviousness challenge. (...) The claim’s reference to “repairing a damaged heart valve,” without any reference to removal, suggests that the native valve remains. So too does the claim’s reference to the damaged heart valve “having a plurality of cusps,” which appears superfluous if claim 1 is interpreted to include embodiments where the damaged valve and its cusps are removed. See Wasica Fin. GmbH v. Cont’l Auto. Sys., Inc., 853 F.3d 1272, 1288 n.10 (Fed. Cir. 2017) (“It is highly disfavored to construe terms in a way that renders them void, meaningless, or superfluous.”); Bicon, Inc. v. Straumann Co., 441 F.3d 945, 950 (Fed. Cir. 2006) (“[C]laims are interpreted with an eye toward giving effect to all terms in the claim.”). We turn to the ’782 patent’s specification, which we conclude resolves the interpretive question in this case under the standard requiring the “broadest reasonable interpretation in light of the specification.” 37 C.F.R. § 42.100(b) (2016); see also Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed. Cir. 2005) (en banc) (explaining that the specification “is the single best guide to the meaning of a disputed term”). The specification states that “the frame is sized and shaped for insertion between the plurality of cusps C of the damaged heart valve in a position between an upstream region and a downstream region.” ’782 patent, col. 5, lines 48–51 (emphasis added). That language indicates that “sized and shaped” is not meant to refer only to placement in a position between the upstream and downstream regions, but also to fitting between the cusps of the intact native valve.

Sunday, October 18, 2020

David Pogue strikes out as a "science guy" on CBS Sunday Morning on October 18, 2020

Giving the lead story "For Many, Climate Change Finally Hits Home," David Pogue talked about "the dog in the car in summer effect," in the following exchange: "It's funny that we call it the 'greenhouse effect,'" said [Ayana Elizabeth ] Johnson, "'cause most people, like, don't spend a lot of time hanging out in greenhouses!" Pogue said, "I think it should be called 'the dog in the car in summer effect,' because isn't it the same thing? The sun goes into the car, it doesn't fully bounce out, so the car gets really hot inside?" "That's a much better analogy," Johnson said. The significant problem is that neither "analogy" is relevant to the issue of infrared-absorbing gases, such as methane, in the atmosphere. The irrelevance of infrared absorbance to hot greenhouses was pointed out as early as 1909, more than a century ago. From the 2008 IPBiz post Hansen on global warming: 'This is the last chance" : IPBiz notes that, while the term "greenhouse gas" is ever-present in the environmental discussion, it is a misnomer. More than thirty years ago, this misnaming was pointed out in the journal Science: From The "Greenhouse Effect", Robert G. Fleagle and Joost A. Businger, 190 Science 1042 (1975): [G]reenhouses are warmer than the surrounding air because the glass pre- vents the warm air inside from rising and removing heat from the greenhouse. Ab- sorption of infrared radiation by the glass contributes only a little to the warming ef- fect. Polyethylene sheets, even though they are largely transparent to infrared radi- ation, are just about as effective as glass in greenhouses The essential facts were es- tablished by a simple experiment carried out by Johns Hopkins University physicist Robert W. Wood in 1909. He found that two model greenhouses, one covered with glass and the other with rock salt (which is transparent to both short- and long-wave radiation) reached very nearly the same high temperatures. Thus the "greenhouse effect" results from suppression of vertical convection by a rigid lid. The earlier paper in question is Robert W. Wood, Philosophical magazine , 1909, vol 17, pp. 319-320. One would hope after one hundred years, scientists would get the "greenhouse" issue right. So, as to Pogue, the "dog in car" is not a better analogy, it is not an analogy at all. Also, of note in the Pogue story Johnson offered a climate-change refresher for correspondent David Pogue: "We burn all these fossil fuels, all these greenhouse gases go up in the air. It's carbon dioxide. It's methane. And they create this layer of gas that is basically like a blanket on top of the planet." That "blanket" traps heat from the sun that would have bounced back out into space. * The moment of nature was an early snow in San Juan National Forest near Durango, Colorado. See also Illegal campfires plague San Juan National Forest

Monday, October 12, 2020

October 12 is the anniversary of Roger Taney's death

Chief Justice Roger Taney died October 12, 1864, creating a vacancy on the U.S. Supreme Court less than one month before the Presidential election of 1864, During the Vice-Presidential debate, Kamala Harris said: In 1864, one of the, I think, political heroes certainly of the president, I assume of you also, Mr. Vice President, is Abraham Lincoln. Abraham Lincoln was up for reelection, and it was 27 days before the election. And a seat became open on the United States Supreme Court. Abraham Lincoln's party was in charge, not only of the White House, but the Senate. But Honest Abe said, 'It's not the right thing to do. The American people deserve to make the decision about who will be the next president of the United States. And then that person can select who will serve for a lifetime on the highest court of our land.' And so Joe and I are very clear: the American people are voting right now, and it should be their decision about who will serve on this most important body for a lifetime. Abraham Lincoln never said any such thing. Harris' statement has been criticized in a number of places. --> Snopes says of the claim: Abraham Lincoln declined to make a Supreme Court nomination just before the 1864 election because he felt the "American people deserve to make the decision." FALSE One searches in vain for evidence of Lincoln’s having either expressed or acted upon this sentiment, however. Although Lincoln could have named a nominee prior to the 1864 election, he could not have filled the open Supreme Court seat prior to that event. When Taney died, Congress had been in recess since July 4, and would not reconvene until Dec. 5, so Lincoln had no opportunity to designate a successor and have that person confirmed by the Senate prior to the Nov. 8 presidential election. *******IPBiz notes It may be that sometimes that those with prosecutor mentalities create facts that justify their case, even, where, as here, the objective evidence completely refutes their contention. ******Separately, In the age of Covid, some unusual movies have been unearthed. IPBiz recently viewed "Abraham Lincoln v. Zombies," previously unknown to this author. As the title suggested the movie was not meant to be a classic, but there were some bits of interest. The initial confrontation with the zombies takes place at Fort Pulaski, a place where a real, and somewhat significant, battle took place in 1862. Quite Likely, the real Abraham Lincoln was not there, although pre-Seven Days Robert E. Lee was. In the real world, Stonewall Jackson was killed accidentally by his own men at Chancellorsville. In this movie world, Stonewall was killed by Confederate Zombies. Lincoln and Jackson both perceive that the zombie threat is more significant than Union/Confederate disagreements. Text from Lincoln speeches turns into movie dialog. Lincoln, on decapitating a zombie, says: A body divided against itself cannot stand. The movie Lincoln enlists the best U.S. scientist to find a cure for the zombie virus. Lincoln is infected, and creates an unusal scenario for his death.

Thursday, October 08, 2020

Even the Washington Post blasted the Kamala Harris "take" on Lincoln and the Supreme Court in 1864

Further to the previous IPBiz post on Clinton/Lincoln, Kamala Harris during the debate on 7 October 2020 repeated the Lincoln/Supreme Court story that had earlier been mentioned by Bill Clinton. It was quickly blasted by a story in the Washington Post the next day. See including Harris is correct that a seat became available 27 days before the election. And that Lincoln didn’t nominate anyone until after he won. But there is no evidence he thought the seat should be filled by the winner of the election. In fact, he had other motives for the delay. (...) But that didn’t mean he was waiting for ballots so much as the mail. Letters flooded in from all over the country. What about Secretary of War Edwin Stanton? some suggested. Or Associate Justice Noah Swayne? Francis P. Blair recommended his son Montgomery, the postmaster general. Attorney General Edward Bates recommended himself. And then there was Salmon P. Chase. Chase was a former senator, governor of Ohio and treasury secretary who, according to Burlingame, thought he was destined to be president. He had vied unsuccessfully against Lincoln for the Republican nomination in 1860. Though Lincoln disliked him, Chase had a lot of supporters. Chase’s opponents told Lincoln all the nasty things Chase had said about him behind his back. The overarching effect of the delay is that it held Lincoln’s broad but shaky coalition of conservative and radical Republicans together. And it kept rivals like Chase in line. Chase, who had often been critical of Lincoln in the past, immediately began stumping for the president across the Midwest, sparking rumors of a secret deal, according to Kahn. Separately, Lincoln wished to keep "War Democrats" (who were unlikely to vote for McClellan) on board. Nominating Salmon Chase BEFORE the election would not have helped this effort. One recalls that in December 1864, Chase would be nominated, and confirmed, on the same day. About five years later, Stanton would also be nominated, and confirmed to the Supreme Court, on the same day. Sadly for Stanton, he died before serving. He had problems with, among other things asthma, and would not have done well in a covid environment. As has been noted elsewhere on this blog, Stanton and Lincoln, before the Civil War, were briefly teammates on a patent LITIGATION. At the time, Stanton did not think highly of Lincoln.