24326 CONGRESSIONAL RECORD—SENATE, Vol. 154, Pt. 18 November 20, 2008 legal aid programs, has been an enor- REMEMBERING JOHN W. Colonel Ripley, who at the time was a cap- mous success in securing legal rep- RIPLEY tain and a military adviser to a South Viet- namese Marine unit, blew up the southern resentation for lower-income Ameri- Mr. LEAHY. Mr. President, I regret cans. All 50 States have IOLTA pro- end of the Dong Ha Bridge over the Cua Viet to have to inform the Senate of the River on Easter Sunday, April 2, 1972. On the grams, and many States mandate par- passing of a truly great American: north side of the bridge, which was several ticipation by practicing attorneys. John W. Ripley, a retired Marine Corps miles south of the demilitarized zone, some This program provides funding to im- colonel and hero of the war. 20,000 North Vietnamese troops and 200 tanks portant legal aid programs and helps Colonel Ripley will be best known for were poised to sweep into Quang Tri Prov- ensure that no person goes without his achievements and self-sacrifice dur- ince, which was sparsely defended. legal representation because of a lack ing the —particularly on Going back and forth for three hours while of resources. April 2, 1972, when he singlehandedly under fire, Captain Ripley swung hand over hand along the steel I-beams beneath the Our concern stems from the fact that blew up the Dong Ha bridge. That bridge, securing himself between girders and the TGLP Interim Rule concerning ac- bridge over the Cua Viet River was a placing crates holding a total of 500 pounds count insurance issued on October 23 thoroughfare for an invasion of TNT in a diagonal line from one side of would not extend unlimited FDIC in- force from North Vietnam. Colonel the structure to the other. The I-beam wings surance to interest bearing lawyer Ripley, serving with a marine unit were just wide enough to form pathways trust accounts, ultimately hurting the from South Vietnam, moved around along which he could slide the boxes. public benefit generated by these ac- the bridge like it was a trapeze and When the boxes were in place on the counts. According to the FDIC’s pro- hung charges that would blow it up and bridge, Captain Ripley attached blasting caps to detonate the TNT, then connected posed rules for the TGLP, noninterest- prevent the enemy’s advance. That story is the subject of innumer- them with a timed-fuse cord that eventually bearing accounts would be insured to extended hundreds of feet. protect an unlimited amount of funds. able books and articles. It is an abso- ‘‘He had to bite down on the blasting caps But the insurance for interest-bearing lutely incredible feat, showing us how to attach them to the fuses,’’ John Grider accounts would be limited to $250,000. an act of individual bravery can have a Miller, author of ‘‘The Bridge at Dong Ha,’’ The lack of an exception for lawyer large strategic impact that affects an said on Monday. ‘‘If he bit too low on the trust accounts threatens the IOLTA entire force. Indeed, the removal of blasting cap, it could come loose; if he bit program because it poses a potential that bridge created a bottleneck that too high, it could blow his head apart.’’ conflict for attorneys. Many lawyer allowed allied forces to apply over- Captain Ripley bit safely, and the timed- trust accounts contain pooled client whelming air power and blunt that in- fuse cord gave him about half an hour to clamber off the bridge. Moments later, his funds, often in excess of $250,000. As a vasion. After Vietnam, Colonel Ripley had a work paid off with a shock wave that tossed result of the FDIC’s proposed rules, him into the air but otherwise left him there is legitimate concern that attor- distinguished career that included unharmed. neys would move client funds in excess going through some of the most chal- By placing the crates diagonally along the of $250,000 to noninterest-bearing ac- lenging training programs among the bridge, Mr. Miller said, Captain Ripley had counts in order to gain the insurance world’s militaries, including U.S. Army created ‘‘a twisting motion that ripped the protection, and in an effort to manage Ranger School. In his willingness to bridge apart from its moorings so it couldn’t client funds as responsibly as possible. undergo the ardors of combat and fall back in place, but collapsed into the river.’’ This potential ethical dilemma could training, he emerged a marine’s ma- There were about 600 South Vietnamese be prevented by a modification of the rine, a steely and strong individual al- ways ready to put his country and his marines near the south end of the bridge. proposed rules. ‘‘South Vietnam would have been in big fellow marines before himself. trouble,’’ said Fred Schultz, senior editor of Senator CARDIN, Senator SPECTER, John Ripley is a symbol for the vi- and I have suggested to the FDIC that Naval History Magazine, a publication of the brancy of the Marine Corps, one of the Naval Institute. ‘‘The force it modify its proposed rules to make an most storied military forces in the exception for lawyer trust accounts numbers defending on that side could not globe’s history, and a testament to have held against that North Vietnamese and provide unlimited insurance on in- how—amid the enormity and vast con- force.’’ terest bearing accounts containing cli- fusion of war—a single person can The destruction of the bridge created a ent funds. This would be an important make a difference. bottleneck for the North Vietnamese, allow- step towards preserving the success of I will miss seeing him at various ing American bombers to blunt what became the IOLTA program, and would remove events, including those of the Marine known as the Easter offensive. any potential ethical dilemma for at- Corps Law Enforcement Foundation. Captain Ripley was awarded the Navy torneys. Such a modification would en- Cross for his actions at the bridge. He served We will continue to honor his service two tours in Vietnam and remained on ac- sure that the interest generated by through support of the Marine Corps IOLTA accounts continues to be dis- tive duty until 1992, eventually rising to and of all of our soldiers, sailors, air- colonel. Among other decorations, he re- tributed through local nonprofit orga- men, and marines. ceived the , two Bronze Stars and nizations in each State to fund invalu- I ask unanimous consent that an a . able legal aid services for low-income obituary on Colonel Ripley, which ap- John Walter Ripley was born on June 29, families. peared in the November 4 edition of the 1939, and grew up in Radford, Va., the son of I am hopeful that the FDIC will rec- New York Times, be printed in the Bud and Verna Holt Ripley. He enlisted in ognize the national importance and RECORD. the Marines out of high school in 1956, and a success of this program, and will create There being no objection, the mate- year later received approval from the sec- retary of the Navy to attend a preparatory the exception we have proposed. I rial was ordered to be printed in the school leading to his appointment to the would like to particularly thank the RECORD, as follows: Naval Academy, from which he graduated in Vermont Bar Association for its advo- [From the New York Times, Nov. 4, 2008] 1962. cacy in this regard, as well as the COL. JOHN W. RIPLEY, MARINE WHO HALTED Besides his son Stephen, Colonel Ripley is American Bar Association for its at- VIETNAMESE ATTACK, DIES AT 69 survived by his wife of 44 years, the former tention to this issue. Legal representa- (By Dennis Hevesi) Moline Blaylock; a sister, Susan tion for everyone is an imperative for a John W. Ripley, a highly decorated former Goodykoontz; two other sons, Thomas and fair and effective judicial system. The colonel who entered Marine Corps lore when John; a daughter, Mary Ripley; and eight IOLTA program has been successful in he single-handedly blunted a major North grandchildren. Vietnamese offensive during the Vietnam ‘‘Colonel Ripley is well known in marine helping to ensure legal representation circles,’’ Mr. Schultz said, ‘‘but he’s the most for more Americans, and where these War by blowing up a strategically placed bridge, died Oct. 28 at his home in Annapolis, revered war hero no one’s ever heard of.’’ goals can be accomplished without the Md. He was 69. ‘‘This was 1972,’’ he added, ‘‘and people use of tax dollars, such a program The cause has not been determined, his son didn’t pay too much attention to war heroes should be preserved. Stephen said. at that time.’’

VerDate Sep 11 2014 11:18 Oct 31, 2017 Jkt 069102 PO 00000 Frm 00044 Fmt 0686 Sfmt 0634 E:\FDSYS\BOUNDRECORD\S20NO8.REC S20NO8 ejoyner on DSK30MW082PROD with BOUND RECORD November 20, 2008 CONGRESSIONAL RECORD—SENATE, Vol. 154, Pt. 18 24327 INTELLECTUAL PROPERTY RIGHTS the future. Instead, I will focus on some of The net result of KSR is that defendants CHALLENGES the challenges I see for the future and will may have a renewed interest in raising and begin with a few comments on the changes of pressing obviousness contentions, despite the Mr. LEAHY. Mr. President, I have the recent past. high ‘‘clear and convincing’’ standard that long been a champion of the intellec- We hear a lot about change these days. applies to validity challenges. They can now tual property rights enshrined in the Change in our economy, global climate argue that ‘‘reasons’’ and common sense sup- Constitution, and have sponsored much change, and of course, change in our govern- port a conclusion that the claimed invention of the significant legislation in that ment. Change has been in the air for some doesn’t pass muster even when application of realm over the decades I have served in time. It seems like the only thing we have a teaching, suggestion, and motivation test heard, or seen, or read in the media for the the Senate. On October 24, 2008, Judge might otherwise have failed. It also means past 20 months or so has been about change. that patentees will have to be more prepared Richard Linn of the Court of Appeals And intellectual property law has been no to gather up evidence to show secondary con- for the Federal Circuit, the court en- stranger to it in the past few years. While siderations as a way to overcome expected trusted exclusively with Federal ap- one can debate the extent of the changes and challenges from accused infringers. Finally, peals involving patent issues, gave the the reasons underlying them, there is no the Supreme Court’s comments about sum- keynote address before the American question that the rights of patentees have mary judgment will mean that patentees Intellectual Property Law Associa- been impacted in one way or the other by a will have to start thinking about how to as- number of recent decisions. And while the sist courts in answering questions about tion’s annual meeting. In that address, pace of change may slow down at least for a Judge Linn discusses the challenges what the Supreme Court’s comments on while, the fallout of all of this change will summary judgment meant as to the way ob- facing the intellectual property system directly impact all of us. This is evident, for viousness issues should be presented to ju- in the coming years, offers advice on example, from an examination of three key ries, if at all. For example, is it still proper moving forward as a nation to meet decisions: KSR v. Teleflex, dealing with the for a district court to present the ultimate those challenges, and provides food for test for obviousness; eBay v. MercExchange, question of obviousness to the jury or is the thought for anyone interested in this dealing with the test for injunctive relief; district court required to decide obviousness and In re Seagate, dealing with the standard as a matter of law in every case, leaving only important part of our national econ- applicable to prove willful infringement. omy. the factual underpinnings for the jury? No There have been others, such as Medlmmune matter how all this is sorted out, KSR I ask unanimous consent that the v. Genentech, which made it easier to chal- makes evident that patentees are likely to statement of Judge Richard Linn from lenge patents in declaratory judgment ac- face more challenges based on section 103. tions, and DSU v. JMS, requiring proof of October 24, 2008, be printed in the We are already seeing this in recent cases specific intent for induced infringement, but RECORD. filed with our court. I will limit my remarks to the holdings and There being no objection, the mate- In eBay, the Supreme Court rejected the possible implications of KSR, eBay, and rial was ordered to be printed in the categorical grant of injunctive relief in pat- Seagate. RECORD, as follows: In KSR, the Supreme Court reviewed the ent cases and held that in those cases, just as CHALLENGES AHEAD test for obviousness under 35 U.S.C. §103. The in other cases, a plaintiff seeking a perma- I would like to thank the AIPLA for the in- Supreme Court began by emphasizing that nent injunction must demonstrate that it vitation to speak before you today. I am its 1966 decision in Graham v. John Deere in- has suffered irreparable injury; that rem- truly honored to speak before the AIPLA, an formed the obviousness inquiry. It went on edies available at law are inadequate; that organization I have belonged to since the to reject what it perceived to be a rigid ap- the balance of hardships warrants injunctive late 60’s. I see in the audience many of my proach taken by our court in applying the relief; and that the public interest would not friends and former colleagues of the patent teaching, suggestion and motivation test. be disserved by a permanent injunction. bar. I feel very much at home here, and it is The Supreme Court observed that ‘‘when it What the Supreme Court did not tell us is nice to be asked to speak before this distin- first established the requirement of dem- what happens after infringement is found guished group. onstrating a teaching, suggestion, or motiva- and a court determines that the equitable Before I begin, I would like to take a mo- tion to combine known elements in order to remedy of a permanent injunction is not ment to personally recognize someone who show that the combination is obvious, the warranted. This is already presenting pat- has played a unique role in the progress of Court of Customs and Patent Appeals cap- entees and the courts with interesting new the U.S. patent system for over 40 years, tured a helpful insight.’’ It then noted, how- challenges. eBay also leaves open the ques- someone who has led this organization for ever, that helpful insights need not become tion of whether there remains a rebuttable the past decade and a half, someone who has rigid and mandatory formulas, and ‘‘when a presumption of irreparable harm in patent been a special friend to so many of us, and court transforms a general principle into a cases. The bottom line for patentees is that someone who is now moving on to a well de- rigid rule that limits the obviousness in- they, like all other plaintiffs, will have to served retirement—Mike Kirk. Please join quiry, as the Court of Appeals did here, it tow the line and be prepared to make a con- me in a round of applause to show our appre- errs.’’ vincing showing on each of the four equi- ciation for Mike and all that he has done. The Supreme Court summed up its position table factors. This will present new chal- We all know that Mike has done some very on obviousness in observing that what is im- lenges, particularly to non-practicing pat- special things for the AIPLA. But the best portant is to use common sense and to iden- entees and alters some of the leverage pat- thing he did was to bring his wife, Mary tify a reason that would have prompted a entees assumed they enjoyed before the eBay Catherine, into our AIPLA family. I think person of ordinary skill in the relevant field decision. she, too, deserves to be recognized for all she to combine the elements in the way the In re Seagate presented our court with the has done. claimed new invention does. It added that opportunity to pick up where Knorr-Bremse One measure of a leader is the caliber of any need or problem known in the field of left off and to reconsider the question of the the person selected to replace him. And here endeavor at the time of invention and ad- duty of due care owed to patentees and the again, the AIPLA has risen to the challenge dressed by the patent can provide a reason standard for determining when infringement of Mike Kirk’s departure in selecting one of for combining the elements in the manner is willful and subject to treble damages. The the few members of our profession who has claimed. case came to us on a motion for a writ of the character, knowledge, and recognized The court also made some interesting ob- mandamus seeking to overturn an order leadership skills to honor Mike’s legacy of servations on the propriety of summary from a district court that would have given accomplishment. That person is, of course, judgment on issues of obviousness. The court the patentee’s counsel virtually unfettered Q. Todd Dickenson, and I think he deserves said that ‘‘where, as here, the content of the access to all attorney-client communica- a vote of confidence with a round of ap- prior art, the scope of the patent claim, and tions and work-product of the accused in- plause. the level of ordinary skill in the art are not fringer. That order stemmed from the pat- The program lists my topic as ‘‘Challenges in material dispute, and the obviousness of entee’s assertion of willful infringement and Ahead.’’ I selected that topic intentionally the claim is apparent in light of these fac- the accused infringer’s good faith reliance on to give me lots of latitude in what I might tors, summary judgment is appropriate.’’ the advice of counsel. Because of the abuses say. If that phrase was a limitation in a pat- ‘‘The obviousness of the claim is apparent in we perceived in the routine allegation of ent claim, the meaning would be hard to dis- light of these factors?’’ What does that willful infringement and the tension it pro- cern with specificity and no doubt would mean? Does this mean obviousness is sort of duced between assertion by the accused in- generate considerable litigation. In a way, like obscenity—you know it when you see it? fringer of the attorney-client privilege and it’s the perfect topic. So, what is it that I am I’m not sure what it means, but I am sure reliance on the advice of counsel, we over- going to talk about? someone is going to ask me for an answer to ruled the duty of due care standard set out in John Whealan yesterday focused on recent that question in a brief in the not too distant Underwater Devices and held that proof of history and ended with a few comments on future. willful infringement, permitting enhanced

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