October

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is one of the most frequently litigated statutes and serves as our nation’s foremost tool for environmental remediation. Despite the importance of CERCLA, major issues in its implementation remain. The question of passive migration as a disposal and the creation of thousands of new potentially responsible parties liable for millions of dollars worth of remediation costs is such an issue.

In Bilski v. Kappos, the U.S. Supreme Court addressed a fundamental patent law question: Under 35 U.S.C. § 101, what kinds of inventions can be patented? That seemingly simple question has proved over time to be quite nettlesome. Bilski itself highlighted some of the difficulties. The Court there affirmed the Federal Circuit’s conclusion that the claims at issue were not patentable subject matter. But the Court rejected the Federal Circuit’s methodology and declined to create a replacement for or even an alternative to the machine-or-transformation test. Instead, the Court directed a return to first principles and invited the courts to develop standards compliant with the text and purposes of § 101.