May 31
2:43 PM

U.S.-Mexico Border States Must Report Bulk Rifle Sales

today, the U.S. Court of Appeals for the District of Columbia Circuit issued a
decision upholding a new gun sale reporting rule.  In July 2011, the U.S.
Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) sent demand letters
to gun dealers in border states (California, Arizona, New Mexico, and Texas),
requiring that each dealer send a report to the ATF when it sells “two or more
semi-automatic rifles capable of accepting a detachable magazine and with a
caliber greater than .22 (including .223/5.56 caliber) to an unlicensed
person.”  Sales occurring on or after
August 14, 2011, are subject to the new rule. 
The ATF has reported that thousands of U.S. firearms are illegally
brought into Mexico each year, specifically citing that authorities in Mexico
recovered over 68,000 U.S. guns between 2007 and 2011.

response to the case brought by The National Shooting Sports Foundation, Inc.,
J&G Sales, Ltd., and Foothills Firearms, LLC, the Court found that the Gun
Control Act of 1968 “unambiguously authorizes” the ATF’s new policy.  While the appellants argued that the ATF’s
policy overstepped a congressional mandate against creating a national gun
registry, the Court concluded that the ATF’s demand letter applied to a small
percentage of gun dealers and an even smaller percentage of gun sales, stating:
“In short, because ATF sent the demand letter to only seven percent of
[dealers] nationwide and required information on only a small number of
transactions, the July 2011 demand letter does not come close to creating a
‘national firearms registry.’”  The full
text of the opinion is available here.



May 14
10:57 AM

Does Your Garden Violate Patent Law?

You may have heard about a company called Monsanto – for many years, environmentalists have been trying to draw attention to the company’s genetically modified crops in an effort to steer Americans away from foods that they consider to be harmful.

Monsanto is making new headlines this week, as the U.S. Supreme Court issued a ruling in favor of the GMO giant in a case against an Indiana farmer who grew and sold soybeans that the company had invented through genetic modification.  The soybeans are resistant to a weed killer that Monsanto also produces, making them an easy and profitable crop for farmers.  Typically, farmers purchase such soybeans directly from Monsanto at prices well above average.  Instead of propagating their own seeds from that initial crop, a Monsanto policy requires farmers to purchase new seeds every year.  In fact, Monsanto requires that purchasers sign a contract agreeing not to save seeds from one year’s crops for planting in the next year.

In this case, however, the Indiana farmer purchased the soybeans off of a grain elevator – the beans were intended for such uses as animal feed and food processing – for prices well below Monsanto’s rate.  The farmer planted the soybeans, saved the resultant seeds, replanted them the following season, and continued to repeat this process for eight years.  In his defense, the farmer primarily asserted that he did not violate the patent because of the doctrine of “patent exhaustion,” allowing him to do what he wanted with the seeds he legally purchased.

In an opinion by Justice Kagan, the Court unanimously rejected the farmer’s argument and held that even the grain elevator soybeans were covered by Monsanto’s patent and that he was required to purchase new seeds each year.  “The exhaustion doctrine is limited to the ‘particular item’ sold to avoid just such a mismatch between invention and reward.”  In other words, while the farmer could use the purchased seeds for various direct purposes (such as resale or consumption), he was not permitted to grow new seeds from the original seeds, thus circumventing the patent.  While Justice Kagan specified that the ruling is narrow ("Our holding today is limited–addressing the situation before us, rather than every one involving a self-replicating product"), many in the biotech industries read this week's case as laying the groundwork for strong patent control in the future.

The full text of the opinion is available on the Supreme Court’s website here. [REG]

May 6
12:40 PM

Sandra Day O’Connor: Regretful?

Supreme Court Justice Sandra Day O’Connor recently made headlines when she
expressed doubt over the Supreme Court’s handling of Bush v. Gore, the case that prevented a recount of Florida votes in
the 2000 election.  While O’Connor did
not indicate that she should have changed her vote, she suggested that perhaps
the Court should not have taken the case at all.  If the Court had not heard the case, the
decision of the Florida Supreme Court would have stood, resulting in a recount
of Florida’s ballots.  O’Connor now
reflects that "[i]t turned out the election authorities in Florida hadn't
done a real good job there and kind of messed it up. And probably the Supreme
Court added to the problem at the end of the day."  Ultimately, the former Justice now believes
that taking on the case and intervening in the political dispute gave the Court
a “less-than-perfect reputation.” [REG]