The Brandeis Transient in Patent Instances

by Dennis Crouch

Louis D. Brandeis was a well-known lawyer lengthy earlier than changing into a Supreme Court docket Justice. Within the 1908 case of Muller v. Oregon, Brandeis represented the State of Oregon defending the state’s rule limiting the variety of hours that girls may work in sure industries.  In protection of the legislation, Brandeis filed a quick that offered social science analysis and empirical proof to assist the argument that lengthy working hours had unfavourable results on girls’s well being and household life.  That proof helped sway the court docket and likewise spawned the “Brandeis transient” — an method that proceed to be a preferred mechanism for trying to affect the Supreme Court docket. Brandeis briefs sometimes embody plenty of information and claims about how the world works and ask the court docket to make use of these information in its interpretation of the legislation.  One key downside with this method is that it doesn’t comply with the standard guidelines of proof required for factual findings.  And, when the Supreme Court docket adopts the findings, then the information all of the sudden turn into the legislation and binding precedent.  Thus, Muller v. Oregon, the Supreme Court docket precedentially concluded that it was uniquely dangerous for girls to work lengthy hours and that their pure caregiver position could be improperly disrupted.  At the moment, we’d acknowledge that these conclusions included inherent cultural biases reasonably than stemming from the character of girls.

A serious downside with this kind of evidentiary submission on to the Supreme Court docket is that it’s unchecked and admittedly biased — these are despatched to the court docket in briefs advocating a selected viewpoint and with out the odd judicial evidentiary course of.  However, proponents of Brandeis briefs argue that the principles don’t apply to those “legislative information” as a result of the proof is getting used to interpret the legislation reasonably than make case-specific factual conclusions.  That is a lot the identical method because the Court docket makes use of to find out historic information for originalist choices.  However, many historians would agree that historical past as outlined in Supreme Court docket instances seems to be cherry-picked with a view to obtain a selected outcomes.

In patent instances, we regularly have Brandeis briefs on the coverage impression of sure selections.  As well as, we additionally frequently see makes an attempt to clarify the science to the justices in ways in which assist make them a selected conclusion.  In Amgen, as an illustration, Nobel Prize winner Gregory Winter submitted a quick explaining that antibody design is extraordinarily unpredictable and, due to that, broad purposeful claims shouldn’t be allowed.   Amgen contended that a few of the proof Winter relied upon had been excluded by the trial court docket, and thus shouldn’t be reintroduced to the Court docket. However, the observe is prone to persist.