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The teaching of Jesus is a religion for everybody, not alone for weaklings and slaves. His religion never became crystallized (during his day) into creeds and theological laws; he left not a line of writing behind him. His life and teachings were bequeathed the universe as an inspirational and idealistic inheritance suitable for the spiritual guidance and moral instruction of all ages on all worlds. And even today, Jesus' teaching stands apart from all religions, as such, albeit it is the living hope of every one of them.
Jesus did not teach his apostles that religion is man's only earthly pursuit; that was the Jewish idea of serving God. But he did insist that religion was the exclusive business of the twelve. Jesus taught nothing to deter his believers from the pursuit of genuine culture; he only detracted from the tradition-bound religious schools of Jerusalem. He was liberal, bighearted, learned, and tolerant. Self-conscious piety had no place in his philosophy of righteous living.
The Master offered no solutions for the nonreligious problems of his own age nor for any subsequent age. Jesus wished to develop spiritual insight into eternal realities and to stimulate initiative in the originality of living; he concerned himself exclusively with the underlying and permanent spiritual needs of the human race. He revealed a goodness equal to God. He exalted love--truth, beauty, and goodness--as the divine ideal and the eternal reality.
The Master came to create in man a new spirit, a new will--to impart a new capacity for knowing the truth, experiencing compassion, and choosing goodness--the will to be in harmony with God's will, coupled with the eternal urge to become perfect, even as the Father in heaven is perfect.
In common law legal systems, the law is created and/or refined by judges: a decision in the case currently pending depends on decisions in previous cases and affects the law to be applied in future cases. When there is no authoritative statement of the law, common law judges have the authority and duty to make law by creating precedent. The body of precedent is called "common law" and it binds future decisions. In future cases, when parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, it will decide as a "matter of first impression." Thereafter, the new decision becomes precedent, and will bind future courts under the principle of stare decisis.
In practice, common law systems are considerably more complicated than the idealized system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of non-appellate courts are only non-binding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity. However stare decisis, the principle that similar cases should be decided according to similar rules, lies at the heart of all common law systems.
Common law legal systems are in widespread use, particularly in those nations which trace their legal heritage to Britain, including the United Kingdom, most of the United States and Canada, and other former colonies of the British Empire but not in India where legal system goes by written law.
This connotation distinguishes the authority that promulgated a law. For example, in most areas of law in most jurisdictions in the United States, there are "statutes" enacted by a legislature, "regulations" promulgated by executive branch agencies pursuant to a delegation of rule-making authority from a legislature, and common law or "case law", i.e. decisions issued by courts (or quasi-judicial tribunals within agencies). This first connotation can be further differentiated, into (a) laws that arise purely from the common law with no express statutory authority, e.g. most criminal law and procedural law before the 20th century, and even today, most of contract law and the law of torts, and (b) decisions that discuss and decide the fine boundaries and distinctions in written laws promulgated by other bodies, such as the Constitution, statutes and regulations. See statutory law and non-statutory law.
This connotation differentiates "common law" jurisdictions and legal systems from "civil law" or "code" jurisdictions. Common law systems place great weight on court decisions, which are considered "law" just as are statutes. By contrast, in civil law jurisdictions (the legal tradition that prevails in, or is combined with common law in, almost all non-Islamic, non-common law countries), judicial precedent is given less weight, and contributions by scholars are also considered. For example, the Napoleonic code expressly forbade French judges from pronouncing the law.
This connotation differentiates "common law" (or just "law") from "equity". Before 1873, England had two parallel court systems: courts of "law" that could only award money damages and recognized only the legal owner of property, and courts of "equity" that could issue injunctive relief and recognized trusts of property. This split propagated to many of the colonies, including the United States (see "Reception Statutes," below). The distinction between "law" and "equity" was important in: (a) categorising and prioritizing rights to property; (b) in the United States, determining whether the Seventh Amendment's right to a jury trial applies (a determination of a fact necessary to resolution of a "common law" claim) or whether the issue may be decided by a judge (issues of what the law is, and all issues relating to equity); and (c) in the principles that apply to the grant of equitable remedies by the courts. For most purposes, most jurisdictions, including those within the US, have merged the two courts. Additionally, even before the separate courts were merged together, most courts were permitted to apply both law and equity (though under potentially different laws of procedure). Even so, the split survives and remains relevant for determining at least these three classes of issues. Other exceptions are discussed in "Common Law Systems," below.
In addition, there are several historical uses of the term that provide some background as to its meaning. The English Court of Common Pleas dealt with lawsuits in which the king had no interest, i.e. between commoners. Additionally, from at least the 11th century and continuing for several centuries after that, there were several different circuits in the royal court system, served by itinerant judges who would travel from town to town dispensing the King's justice. The term "common law" was used to describe the law held in common between the circuits and the different stops in each circuit. The more widely a particular law was recognized, the more weight it held, whereas purely local customs were generally subordinate to law recognized in a plurality of jurisdictions. These definitions are archaic, their relevance having dissipated with the development of the English legal system over the centuries, but they do explain the origin of the term.
In a common law jurisdiction several stages of research and analysis are required to determine what "the law is" in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then one must extract the principles, analogies and statements by various courts of what they consider important to determine how the next court is likely to rule on the facts of the present case. Later decisions, and decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts. Finally, one integrates all the lines drawn and reasons given, and determines what "the law is". Then, one applies that law to the facts.
The common law is more malleable than statutory law. First, common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy. Second, the common law evolves through a series of gradual steps, that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects. In contrast, the legislative process is very difficult to get started: legislatures do not act until a situation is totally intolerable. Because of this, legislative changes tend to be large, jarring and disruptive (either positively or negatively).
One example of the gradual change that typifies the common law is the gradual change in liability for negligence. For example, the traditional common law rule through most of the 19th century was that a plaintiff could not recover for a defendant's negligence unless the two were in privity of contract. Thus, only the immediate purchaser could recover for a product defect, and if a part was built up out of parts from parts manufacturers, the ultimate buyer could not recover for injury caused by a defect in the part. Winterbottom v. Wright, 10 M&W 109, 152 Eng.Rep. 402, 1842 WL 5519 (Exchequer of pleas 1842). In Winterbottom, the postal service had contracted with Wright to maintain its coaches. Winterbottom was a driver for the post. When the coach failed and injured Winterbottom, he sued Wright. The Winterbottom court recognized that there would be "absurd and outrageous consequences" if an injured person could sue any person peripherally involved, but could not find a good place to draw a line around the causal connection between the negligent conduct and the injury other than to limit liability to only the immediate person in contract with the negligent party. A first exception to this rule arose in Thomas v. Winchester, 6 N.Y. 397 (N.Y. 1852) which held that mislabeling a poison as an innocuous herb, and then selling the mislabeled poison through a dealer who would be expected to resell it, put "human life in imminent danger." Thomas used this as a reason to create an exception to the "privity" rule. In Statler v. Ray Mfg. Co., 195 N.Y. 478, 480 (N.Y. 1909) held that a coffee urn manufacturer was liable to a person injured when the urn exploded, because the urn "was of such a character inherently that, when applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully and properly constructed."
Yet the privity rule survived. In Cadillac Motor Car Co. v Johnson, 221 F. 801 (2nd Cir. 1915) (decided by the federal appeals court for New York and several neighboring states), the court held that a car owner could not recover for injuries from a defective wheel, when the automobile owner only had a contract with the automobile dealer, not with the manufacturer, even though there was "no question that the wheel was made of dead and ?dozy? wood, quite insufficient for its purposes."
Note that Cardozo's new "rule" exists in no prior case, but is inferable as a synthesis of the principles stated in them, and represents a foreseeable progression. Importantly, note that Judge Cardozo continues to adhere to the original principle of Winterbottom, that "absurd and outrageous consequences" must be avoided, and he does so by drawing a new line in the last sentence quoted above: "There must be knowledge of a danger, not merely possible, but probable." But while adhering to the underlying principle, MacPherson overruled the rule of the prior common law by stating that privity was irrelevant.
In common law legal systems (connotation 2), the common law (connotation 1) is crucial to understanding almost all important areas of law. For example, in England and Wales and in most states of the United States, the basic laws of contracts, torts and property do not exist in statute, but only in common law (though there may be isolated modifications enacted by statute). In almost all areas of the law (even those where there is a statutory framework, such as contracts for the sale of goods, or the criminal law), other written laws generally give only terse statements of general principle, and the fine boundaries and definitions exist only in the common law (connotation 1). To find out what the precise law is that applies to a particular set of facts, one has to locate precedential decisions on the topic, and reason from those decisions by analogy. To consider but one example, the First Amendment to the United States Constitution states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" ? but interpretation (that is, determining the fine boundaries, and resolving the tension between the "establishment" and "free exercise" clauses) of each of the important terms was delegated by Article III of the Constitution to the judicial branch, so that the current legal boundaries of the Constitutional text can only be determined by consulting the common law.
In common law jurisdictions, legislatures operate under the assumption that statutes will be interpreted against the backdrop of the pre-existing common law case law and custom, and so may leave a number of things unsaid. For example, in most U.S. states, the criminal statutes are primarily codification of pre-existing common law. (Codification is the process of enacting a statute that collects and restates pre-existing law in a single document - when that pre-existing law is common law, the common law remains relevant to the interpretation of these statutes.) In reliance on this assumption, modern statutes often leave a number of terms and fine distinctions unstated -- for example, a statute might be very brief, leaving the precise definition of terms unstated, under the assumption that these fine distinctions will be inherited from pre-existing common law. For this reason, even today American law schools teach the common law of crime as practised in England in 1789, because the backdrop of centuries-old English common law is necessary to interpret and fully understand the literal words of the modern criminal statute.
With the transition from English law, which had common law crimes, to the new legal system under the U.S. Constitution, which prohibited ex post facto laws at both the federal and state level, the question was raised whether there could be common law crimes in the United States. It was settled in the case of United States v. Hudson and Goodwin which decided that common law crimes were prohibited (at least at the Federal level), and that there must always be a (constitutional) statute defining the offense and the penalty for it.
By contrast to the statutory codifications of common law, some laws are purely statutory, and may create a new cause of action beyond the common law. An example is the tort of wrongful death, which allows certain persons, usually a spouse, child or estate, to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any jurisdiction that lacks a wrongful death statute will not allow a lawsuit for the wrongful death of a loved one. Where a wrongful death statute exists, the compensation or other remedy available is limited to the remedy specified in the statute (typically, an upper limit on the amount of damages). Courts generally interpret statutes that create new causes of action narrowly ? that is, limited to their precise terms ? because the courts generally recognize the legislature as being supreme in deciding the reach of judge-made law unless such statute should violate some "second order" constitutional law provision (cf. judicial activism).
Where a tort is rooted in common law, then all traditionally recognized damages for that tort may be sued for, whether or not there is mention of those damages in the current statutory law. For instance, a person who sustains bodily injury through the negligence of another may sue for medical costs, pain, suffering, loss of earnings or earning capacity, mental and/or emotional distress, loss of quality of life, disfigurement and more. These damages need not be set forth in statute as they already exist in the tradition of common law. However, without a wrongful death statute, most of them are extinguished upon death.
In many subject matter areas, legal treatises compile common law decisions, and state overarching principles that (in the author's opinion) explain the results of the cases. However, in common law jurisdictions, treatises are not the law, and lawyers and judges tend to use these treatises as only "finding aids" to locate the relevant cases.
This is one of the "cultural" differences between common law and civil law jurisdictions (connotation 2): in civil law jurisdictions, the writings of law professors are given significant weight by courts. In common law jurisdictions, scholarly work is seldom cited as authority for what the law is. When common law courts rely on scholarly work, it is almost always only for factual findings, policy justification, or the history and evolution of the law, but the court's legal conclusion is reached through analysis of relevant statutes and common law, seldom scholarly commentary.
This reliance on judicial opinion is a strength of common law systems, and is a significant contributor to the robust commercial systems in the United Kingdom and United States. Because there is common law to give reasonably precise guidance on almost every issue, parties (especially commercial parties) can predict whether a proposed course of action is likely to be lawful or unlawful. This ability to predict gives more freedom to come close to the boundaries of the law. For example, many commercial contracts are more economically efficient, and create greater wealth, because the parties know ahead of time that the proposed arrangement, though perhaps close to the line, is almost certainly legal. Newspapers, taxpayer-funded entities with some religious affiliation, and political parties can obtain fairly clear guidance on the boundaries within which their freedom of expression rights apply. In contrast, in non-common-law countries, fine questions of law are redetermined anew each time they arise, making consistency and prediction more difficult. Thus, in jurisdictions that do not have a strong allegiance to a large body of precedent, parties have less a priori guidance must often leave a bigger "safety margin" of unexploited opportunities.
This is the reason for the frequent choice of the law of the State of New York in commercial contacts from throughout the United States. In particular, English law and New York law are often used in contracts throughout the world, even where the relationship of the contact parties and transaction to England or New York is quite attenuated. Because of its history as the nation's commercial center, English and New York common law have a depth and predictability not (yet) available in any other jurisdiction.
Common law originally developed under the inquisitorial system in England during the 12th and 13th centuries, as the collective judicial decisions that were based in tradition, custom and precedent. Such forms of legal institutions and culture bear resemblance to those which existed historically in societies where precedent and custom have at times played a substantial role in the legal process, including Germanic law and particularly Islamic law.
Before the Norman conquest in 1066, justice was administered primarily by county courts, presided by the diocesan bishop and the sheriff, exercising both ecclesiastical and civil jurisdiction. Trial by jury began in these courts.
In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies and reinstating a jury system ? citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today's civil and criminal court systems.
Henry II developed the practice of sending judges from his own central court to hear the various disputes throughout the country. His judges would resolve disputes on an ad hoc basis according to what they interpreted the customs to be. The king's judges would then return to London and often discuss their cases and the decisions they made with the other judges. These decisions would be recorded and filed. In time, a rule, known as stare decisis (also commonly known as precedent) developed, which is where a judge would be bound to follow the decision of an earlier judge; he was required to adopt the earlier judge's interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another. By this system of precedent, decisions 'stuck' and became ossified, and so the pre-Norman system of disparate local customs was replaced by an elaborate and consistent system of laws that was common throughout the whole country, hence the name, "common law."
Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England) into conflict with the church, most famously with Thomas Becket, the Archbishop of Canterbury. Eventually, Becket was murdered inside Canterbury Cathedral by four knights who believed themselves to be acting on Henry's behalf. Whether Henry actually intended to bring about the assassination of Becket is doubtful, but there is no question that at the time of the murder, the two men were embroiled in a bitter dispute regarding the power of Royal Courts to exercise jurisdiction over former clergymen. The murder of the Archbishop, who was immediately venerated as a martyr and later as a saint, gave rise to a wave of popular outrage against the King. Henry was forced to repeal the disputed laws and to abandon his efforts to hold church members accountable for secular crimes (see also Constitutions of Clarendon).
In spite of this setback, judge-made common law endured for centuries as the primary source of criminal and civil laws throughout the realm. Later, after Parliament acquired legislative powers, statutory law began to limit the scope of the common law in some areas. Even today, however, common law retains its status as an essential element of the British legal system.
Several fundamental common law instutitions may have been adapted from similar legal instututions in Islamic law and jurisprudence, and introduced to England after the Norman conquest of England by the Normans, who conquered and inherited the Islamic legal administration of the Emirate of Sicily, and also by Crusaders during the Crusades. In particular, the "royal English contract protected by the action of debt is identified with the Islamic Aqd, the English assize of novel disseisin is identified with the Islamic Istihqaq, and the English jury is identified with the Islamic Lafif." The English trust and agency institutions in common law were possible adapted from the Islamic Waqf and Hawala institutions respectively during the Crusades. It is worth noting, however, that transferring property to another for the "use" of another developed largely in response to the requirements of feudal inheritance law. Trust law, in particular, is a creature of equity which derived from the parallel jurisdiction of the Lord Chancellor to decide matters independently to the Royal Courts.
Other English legal institutions such as "the scholastic method, the license to teach," the "law schools known as Inns of Court in England and Madrasas in Islam" and the "European commenda" (Islamic Qirad) may have also originated from Islamic law. The methodology of legal precedent and reasoning by analogy (Qiyas) are also similar in both the Islamic and common law systems. These similarities and influences have led some scholars to suggest that Islamic law may have laid the foundations for "the common law as an integrated whole".
Following the American Revolution, one of the first legislative acts undertaken by each of the newly independent states was to adopt "reception statutes" that gave legal effect to the existing body of English Common Law. Some states enacted reception statutes as legislative statutes, while other states received the English common law through provisions of the state's constitution.
?	[S]uch parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same.	?
Alexander Hamilton emphasized in The Federalist that this New York constitutional provision expressly made the common law subject ?to such alterations and provisions as the legislature shall from time to time make concerning the same.? Thus, even when reception was effected by a constitution, the common law was still subject to alteration by a legislature's statute.
The Northwest Ordinance, which was approved by the Congress of the Confederation in 1787, guaranteed "judicial proceedings according to the course of the common law." Nathan Dane, the primary author of the Northwest Ordinance, viewed this provision as a default mechanism in the event that federal or territorial statutes were silent about a particular matter; he wrote that if "a statute makes an offence, and is silent as to the mode of trial, it shall be by jury, according to the course of the common law.? In effect, the provision operated as a reception statute, giving legal authority to the established common law in the vast territories where no states had yet been established.
Over time, as new states were formed from federal territories, these territorial reception statutes became obsolete and were re-enacted as state laws. For example, a reception statute enacted by legislation in the state of Washington requires that "[t]he common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state." In this way, the common law was eventually incorporated into the legal systems of every state except Louisiana (which inherited its civil law system from France).
A similar statute exists in Article 8 of the Basic Law of Hong Kong.
As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common-law system would petition the King in person. For example, they might argue that an award of damages (at common law) was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted. From this developed the system of equity, administered by the Lord Chancellor, in the courts of chancery. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other, even though it was established by the 17th century that equity should prevail. A famous example is the fictional case of Jarndyce and Jarndyce in Bleak House, by Charles Dickens.
In the United States, parallel systems of law (providing money damages, with cases heard by a jury upon either party's request) and equity (fashioning a remedy to fit the situation, including injunctive relief, heard by a judge) survived well into the 20th century. The United States federal courts procedurally separated law and equity: the same judges could hear either kind of case, but a given case could only pursue causes in law or in equity, and the two kinds of cases proceeded under different procedural rules. This became problematic when a given case required both money damages and injunctive relief. In 1937, the new Federal Rules of Civil Procedure combined law and equity into one form of action, the "civil action." Fed.R.Civ.P. 2. The distinction survives to the extent that issues that were "common law" as of 1791 (the date of adoption of the Seventh Amendment) are still subject to the right of either party to request a jury, and "equity" issues are decided by a judge.
Alabama, Delaware, Mississippi and New Jersey still have separate courts of law and equity, for example, the Court of Chancery. In many states there are separate divisions for law and equity within one court.
The common law constitutes the basis of the legal systems of: England and Wales, Northern Ireland, the Republic of Ireland, federal law in the United States and the states' laws (except Louisiana), federal law in Canada and the provinces' laws (except Quebec civil law), Australia (both federal and individual states), New Zealand, South Africa, India, Malaysia, Brunei, Pakistan, Singapore, Hong Kong, and many other generally English-speaking countries or Commonwealth countries (except Malta and Scotland). Essentially, every country which has been colonised at some time by England, Great Britain, or the United Kingdom uses common law except those that had been formerly colonised by other nations, such as Quebec (which follows French law to some extent), South Africa and Sri Lanka (which follow Roman Dutch law), where the prior civil law system was retained to respect the civil rights of the local colonists. India's system of common law is also a mixture of English law and the local Hindu law, except in the state of Goa which retains the Portuguese civil code. Nicaragua's legal system also is a mixture of the English Common Law and the Civil Law through the influence of British administration of the Eastern half of the country from the mid-1600's until about 1905, the William Walker period from about 1855 through 1857, USA interventions/occupations during the period from 1909 to 1933, the influence of USA institutions during the Somoza administrations (1933 through 1979) and the considerable importation between 1979 and the present of USA culture and institutions.
The main alternative to the common law system is the civil law system, which is used in Continental Europe, and most of the rest of the world. The former Soviet Bloc and other Socialist countries used a Socialist law system (some of them use civil law system, for example, Lithuania).
The opposition between civil law and common law legal systems has become increasingly blurred, with the growing importance of jurisprudence (almost like case law but in name) in civil law countries, and the growing importance of statute law and codes in common law countries. An example of this is the United States, where matters of criminal law, commercial law (the Uniform Commercial Code in the early 1960s) and procedure (the Federal Rules of Civil Procedure in the 1930s and the Federal Rules of Evidence in the 1970s) have been codified.
Scotland is often said to use the civil law system but in fact it has a unique system that combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of common law long predating the Treaty of Union with England in 1707 (see Legal institutions of Scotland in the High Middle Ages). Scots common law differs in that the use of precedents is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a precedent and that the principles of natural justice and fairness have always formed a source of Scots Law. Comparable pluralistic (or 'mixed') legal systems operate in Quebec, Louisiana and South Africa.
Israel has a mixed system of common law and civil law. While Israeli law is undergoing codification, its basic principles resemble those of British and American law, namely: the role of courts in creating the body of law and the authority of the supreme court in overturning legislative and executive decisions.
The state of New York, which also has a civil law history from its Dutch colonial days, also began a codification of its laws in the 19th century. The only part of this codification process that was considered complete is known as the Field Code applying to civil procedure. The original colony of New Netherlands was settled by the Dutch and the law was also Dutch. When the English captured pre-existing colonies they continued to allow the local settlers to keep their civil law. However, the Dutch settlers revolted against the English and the colony was recaptured by the Dutch. When the English finally regained control of New Netherland they forced, as a punishment unique in the history of the British Empire, the English common law upon all the colonists, including the Dutch. This was problematic, as the patroonsystem of land holding, based on the feudal system and civil law, continued to operate in the colony until it was abolished in the mid-nineteenth century. The influence of Roman Dutch law continued in the colony well into the late nineteenth century. The codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days.
The United States federal government (as opposed to the states) has a variant on a common law system. United States federal courts only act as interpreters of statutes and the constitution (to elaborate and precisely define the broad language, connotation 1(b) above), but, unlike state courts, do not act as an independent source of common law (connotation 1(a) above). Before 1938, the federal courts, like almost all other common law courts, decided the law on any issue where the relevant legislature (either the U.S. Congress or state legislature, depending on the issue), had not acted, by looking to courts in the same system, that is, other federal courts, even on issues of state law, and even where there was no express grant of authority from Congress or the Constitution. In 1938, the U.S. Supreme Court in Erie Railroad Co. v. Tompkins 304 U.S. 64, 78 (1938), overruled earlier precedent, and held "There is no federal general common law," thus confining the federal courts to act only as interpreters of law originating elsewhere. E.g., Texas Industries v. Radcliff, 451 U.S. 630 (1981) (without an express grant of statutory authority, federal courts cannot create rules of intuitive justice, for example, a right to contribution from co-conspirators). Post-1938, federal courts deciding issues that arise under state law are required to defer to state court interpretations of state statutes, or reason what a state's highest court would rule if presented with the issue, or to certify the question to the state's highest court for resolution. Later courts have limited Erie slightly, to create a few situations where United States federal courts are permitted to create federal common law rules without express statutory authority, for example, where a federal rule of decision is necessary to protect uniquely federal interests. See, e.g., Clearfield Trust Co. v. United States, 318 U.S. 363 (1943) (giving federal courts the authority to fashion common law rules with respect to issues of federal power, in this case negotiable instruments backed by the federal government); see also International News Service v. Associated Press, 248 U.S. 215 (1918) (creating a cause of action for misappropriation of "hot news" that lacks any statutory grounding, but that is one of the handful of federal common law actions that survives today). Except on Constitutional issues, Congress is free to legislatively overrule federal courts' common law.
The definitive historical treatise on the common law is Commentaries on the Laws of England, written by Sir William Blackstone and first published in 1765 - 1769. Since 1979 a facsimile edition of that first edition has been available in four paper-bound volumes. Today it has been superseded in the English part of the United Kingdom by Halsbury's Laws of England that covers both common and statutory English law.
While he was still on the Massachusetts Supreme Judicial Court, and before being named to the U.S. Supreme Court, Justice Oliver Wendell Holmes Jr. published a short volume called The Common Law which remains a classic in the field. Unlike Blackstone and the Restatements, Holmes' book only briefly discusses what the law is; rather, Holmes describes the common law process.
In the United States, Restatements of various subject matter areas (Contracts, Torts, Judgments, etc.), edited by the American Law Institute, collect the common law for the area. The ALI Restatements are often cited by American courts and lawyers for propositions of uncodified common law, and are considered highly-persuasive authority, just below binding precedential decisions. The Corpus Juris Secundum is an encyclopedia whose main content is a compendium of the common law and its variations throughout the various state jurisdictions.

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Abbott Laboratories has announced that it will no longer launch new medicines in Thailand. In addition, Abbott has decided to withdraw its current applications for medicines in Thailand. The decision is based on Thailand's recent decision to issue compulsory licenses for Abbott's AIDS drug Kaletra, and the failure to reach an agreement with the Thailand government regarding reduced pricing for Kaletra. International pharmaceutical companies have openly criticized Thailand's issuance of recent compulsory licenses for two drugs (Abbott's Kaletra and Plavix made by Bristol-Myers Squibb and Sanofi-Aventis) without first consulting the companies that owned the drugs. On the other side of the issue, activists have been praising Thailand's actions while criticizing Abbott's decision as socially irresponsible.
The United States Patent and Trademark Office recently issued U.S. Patent No. 7,179,484 to Azaya Therapeutics, Inc. The '484 patent, which relates to protein-stabilized liposomal formulations for the delivery of pharmaceutical agents, is the first U.S. patent to be awarded to the San Antonio-based pharmaceutical company.
After receiving a Notice of Allowance in November 2006, Azaya announced that the '484 patent would allow the company to fully utilize its proprietary Protein Stabilized Liposome (PSL®) nanotechnology, which allows for the production of uniform liposomal particles of less than 200 nm in size in a single-step manufacturing process. According to Azaya, the strength of its PSL® nanotechnology is that it can be used to encapsulate a large array of water insoluble drugs.
Azaya has described the '484 patent as a "core technology patent" that will allow the company to further develop its lead product candidate, ATI-1123. ATI-1123 is a PSL® formulation of Aventis' Taxotere, which is a poorly water-soluble semi-sythetic taxane analog used in the treatment of non-small cell lung, prostrate, and breast cancer. Prior to the development of Azaya's PSL® nanotechnology, Taxotere's poor water-solubility had been overcome by formulating the compound with a toxic carrier, Tween 80.
In addition, Azaya has been using its PSL® nanotechnology to develop a secondary product candidate, ATI-1153. ATI-1153 is PSL® formulation of SN-38, which is an active metabolite of Pfizer's drug CAMPTOSAR® for use in treating colorectal cancer. While SN-38 has proven to be more potent than alternative therapeutics, absent PSL® encapsulation, it cannot be administered directly to patients due to its water insolubility and high systemic toxicity.
(b) removing organic solvent from said emulsion to form the protein-stabilized liposome nanoparticles, wherein said liposome nanoparticles have sizes below 400 nm and said emulsion-forming protein adsorbed onto their surface.
30. A protein-stabilized lipid formulation comprising protein-stabilized liposome nanoparticles and a lipophilic pharmaceutical agent, the formulation prepared by a process selected from the group of processes consisting of those processes set forth in any one of claims 1, 2-9 and 10-29.
Additional information concerning Azaya's PSL® liposome nanoparticles and manufacturing process, including an animated simulation, can be found here.
The USPTO published a pre-OG notice regarding its new position on restriction practice in pending applications that relate to nucleic acid sequences. Prior to this notice, the PTO had been officially operating under the direction of an Official Gazette notice dated November 19, 1996. The old notice allowed for a partial waiver of requirements for restriction and unity of invention for applications relating to nucleotide sequences by permitting examination of a "reasonable" number -- typically up to ten -- independent and distinct molecules described by their nucleotide sequences in a single patent application. This newly published notice effectively rescinds the 1996 notice, and requires that claims to polynucleotide sequences "be considered for independence, relatedness, distinction and burden as for claims to any other type of molecule." Effectively, this means that applicants will be allowed to claim only a single polynucleotide sequence per patent application.
The notice lists a number of factors that motivated the change, the most interesting of which (to me) is the 54-fold increase in the number of nucleic acid sequences in the GenBank® database (and a 91-fold increase in the number of nucleotides) between 1996 and February 2006. Further, the Office believes that this change will provide applicants with a more focused and consistent course of examination, as a result of the decrease in the search and examination burdens.
This notice provides an official change in the PTO's policy regarding the treatment of inventions relating to polynucleotide sequences. However, this change likely will have little to no effect on the day-to-day practice of biotech restriction practice, as this notice seems to postdate what has already become common practice at the PTO.
Asenapine - a novel psychopharmacologic agent for the treatment of patients with schizophrenia and acute mania bipolar disorder.
Sugammadex - for the reversal of neuromuscular blockade induced during surgical procedures.
NOMAC/E2 - an oral contraceptive product containing nomegestrol acetate, a novel progesterone, and estriadiol, a natural estrogen.
ORG36286 - a long-acting recombinant follicle-stimulating hormone for infertility.
Esmirtazapine (ORG50081) - for the treatment of insomnia and potentially for hot flashes in menopausal women.
Organon BioSciences, a wholly owned subsidiary of Akzo Nobel, consists of two operating units: Organon, a human pharmaceuticals business, and Intervet, the world's third largest animal health care company. In 2006, Organon had US $3.4 billion in sales and Intervet had US $1.5 billion in sales. Organon's leading products include Follistim/Puregon, a follicle-stimulating hormone for infertility; Esmeron/Zemuron, a muscle relaxant; and NuvaRing and Implanon for contraception. Among the products being offered by Intervet are Nobivac, a range of canine vaccines; Panacur, a de-wormer; Bovilis, a bovine biological for disease control and eradication; and Nobilis, a poultry vaccine to keep flocks free from infectious disease.
Organon's patent portfolio includes twenty U.S. patents and at least four U.S. patent application publications, including U.S. Patent Application Publication Nos. 2006/0084692 and 2006/0128688, which are directed to methods of treating bipolar disorders or schizophrenia using asenapine, and U.S. Patent Publication No. 2007/0027134, which is directed to a crystal form asenapine maleate. Intervet's portfolio includes six U.S. patents.
Interestingly, Akzo Nobel's sale of Organon BioSciences marked a departure from its announcement late last month that it planned to list the pharmaceutical company before the end of March (see Reuters report). Akzo Nobel's plans for an Organon IPO had come on the heels of good news regarding Organon's attempt to secure FDA approval for its schizoprenia drug asenapine.
Schering-Plough said that it expects the deal to close by the end of this year.
Additional information concerning the merger can be found in a statement released by Akzo Nobel.
MacroArray Technologies, LLC has announced that it has licensed its PCADM-1 antibody test to Abbott. The PCADM-1 protein is a prostate specific protein that can be detected in the urine. The protein is overexpressed in malignant prostate tumors. Under the terms of the agreement, Abbott will develop and market the PCADM-1 test. Specific terms were not disclosed in the press release.
Declaratory judgment of noninfringement and invalidity of U.S. Patent No. 6,979,689 ("Compositions and Methods for Treating Upper Respiratory Congestion," issued December 27, 2005) stemming from Cypress's manufacture and sale of its Hydro-DP (diphenhydramine hydrochloride, phenylephrine hydrochloride, and hydrocodone bitartrate, used to treat congestion and cough). View the complaint here.
Tiber Laboratories, LLC et al v. Cypress Pharmaceuticals, Inc.
Infringement of U.S. Patent No. 6,979,689 ("Compositions and Methods for Treating Upper Respiratory Congestion," issued December 27, 2005) based on Cypress's manufacture and sale of its Hydro-DP (diphenhydramine hydrochloride, phenylephrine hydrochloride, and hydrocodone bitartrate, used to treat congestion and cough). View the complaint here.
Caraco Pharmaceutical Laboratories, Ltd. v. Forest Laboratories, Inc. et. al.
Declaratory judgment of noninfringement of U.S. Patent No. 6,916,941 ("Crystalline Composition Containing Escitalopram," issued July 12, 2005) in conjunction with Caraco's filing of an ANDA seeking approval to manufacture and sell a generic version of Forest's Lexapro® (escitalopram oxalate, used to treat depression and generalized anxiety disorder). View the complaint here.
The complaints in these cases are substantially identical. Infringement of U.S. Patent Nos. 5,352,605 ("Chimeric Genes for Transforming Plant Cells Using Viral Promoters," issued October 4, 1994) and RE39,247 ("Glyphosate-tolerant 5-enolpyruvylshikimate-3-phosphate Synthases," issued August 22, 2006) based on defendant's use of soybean seed produced from earlier planted Roundup Ready® soybean seed. View the Krone complaint here.
Cima Labs, Inc. et. al. v. Actavis Group HF et. al.
Infringement of U.S. Patent Nos. 6,024,981 ("Rapidly Dissolving Robust Dosage Form," issued February 15, 2000) and 6,221,392 (same title, issued April 24, 2001) (both assigned to Cima and licensed exclusively to Schwarz Pharma in certain fields of use) following a paragraph IV certification as part of Actavis's filing of an ANDA to manufacture a generic version of Schwarz's NIRAVAM® (alprazolam orally disintegrating tablets, used to treat anxiety). View the complaint here.
Otsuka Pharmaceutical Co., Ltd. v. Sandoz, Inc.
Infringement of U.S. Patent No. 5,006,528 ("Carbostyril Derivatives," issued April 9, 1991) following a paragraph IV certification as part of Sandoz's filing of an ANDA to manufacture a generic version of Otsuka's Abilify® (aripiprazole, used to treat bipolar disorder and schizophrenia). View the complaint here.
On March 9, 2007, Innogenetics announced that the Federal Circuit reinstated a permanent injunction issued by the District Court for the Western District of Wisconsin against Abbott Laboratories.
In September 2005, Innogenetics sued Abbott Laboratories for infringement of U.S. Patent No. 5,846,704, which covers a method of genotyping hepatitis C virus (HCV). At trial, the District Court determined that the '704 patent was infringed as a matter of law, and on September 1, 2006, a jury found the '704 patent to be valid. One week later, the same jury found Abbott's infringement to be willful and awarded $7 million in damages to Innogenetics. As reported on Patent Docs (see January 8 and January 12), the District Court upheld the jury's $7 million damages award on January 3, 2007, and one week later, issued a permanent injunction in favor of Innogenetics, halting sales of Abbott's HCV genotyping test kits.
In response to the District Court's decision, Abbott sought an emergency motion to stay the injunction pending its appeal to the Federal Circuit. On January 19, the Federal Circuit temporarily stayed the injunction. However, on March 8, that temporary stay was lifted.
Additional information regarding this case can be found here.
A District Court in Indianapolis ruled last week that Home Diagnostics' TrueTrack® and TrackEASE® blood glucose monitoring systems do not infringe U.S. Patent No. 5,366,609, owned by Roche. The lawsuit had pitted Roche, one of the leaders in the medical diagnostics industry, against a discount seller of competing products.
The Roche patent is directed to a biosensing meter that has a pluggable ROM key. The pluggable key contains data that enable the meter to perform certain test functions. The asserted claim contained several means-plus-function elements. The case largely turned on the District Court's construction of these elements (see Court's Order on Claim Construction).
In typical claim construction, courts should resist reading limitations from the specification into the claims. The text of the claims establishes their scope. If the accused device falls within the scope of the claim's periphery, the device infringes.
But the infringement analysis differs for means-plus-function claims. "Literal infringement of a means-plus-function claim limitation requires that the relevant structure in the accused device perform the identical function recited in the claim and be identical or equivalent to the corresponding structure in the specification." Even for doctrine of equivalents (DOE) infringement of a means-plus-function limitation, the accused device must "perform the identical function in substantially the same way, with substantially the same result."
Means-plus-function claims can ease some of the headaches of patent prosecution, but they can come back to bite patentees when they try to enforce the claims against an accused infringer. In drafting means-plus-function claims, patentees should be careful to: (i) define the function very broadly, and (ii) provide a wealth of embodiments that can serve as corresponding structures. Otherwise, would-be licensees may find little difficulty designing around the claimed invention.
In this instance, the Court's claim construction left Roche with relatively narrow claims that had little power to exclude potential infringers.
Roche Diagnostics Corp. v. Home Diagnostics, Inc., 04-cv-1187-LJM-JMS (S.D. Ind. 2007).
Robert Dailey, Ph.D., is a physical chemist and a third-year law student at the University of North Carolina at Chapel Hill. Dr. Dailey was a member of MBHB's 2006 class of summer associates, and is a regular Patent Docs contributor.
2. A method of treating a human breast or prostate tumor in a mammal, comprising administering to said mammal an isolated monoclonal antibody or antigen binding fragment thereof which binds to the same epitope as the monoclonal antibody produced by the hybridoma deposited with the ATCC as accession number PTA-4890, wherein said administration is in an amount effective to induce cytotoxicity and thereby reduce said mammal's tumor burden.
1. The isolated monoclonal antibody produced by the hybridoma deposited with the ATCC as Accession Number PTA-4889.
10. A method of treating a breast tumor in a mammal, comprising administering to said mammal the isolated monoclonal antibody produced by the hybridoma deposited with the ATCC as accession number PTA-4889 or an antigen binding fragment produced from said isolated monoclonal antibody, in an amount effective to reduce said mammal's tumor burden.
ARIUS discovers antibodies using its proprietary FunctionFIRST® platform, which involves high-throughput functional screening for antibodies that bind to cancer cell antigens and that selectively kill or inhibit growth of the cancer cells.
On March 7, 2007, INEX Pharmaceuticals Corp. and Alnylam Pharmaceuticals, Inc. announced that the United States Patent and Trademark Office (USPTO) issued a Notice of Allowance for U.S. Application No. 09/431,594, which covers nucleic acid-lipid compositions. According to the statement released by INEX, the allowed claims "cover cationic liposome compositions that contain oligonucleotides, including double-stranded RNAs such as siRNAs." INEX and Alnylam will be adding the new patent to previously issued U.S. Patent Nos. 5,976,567; 6,815,432; and 6,858,225, which INEX states cover the "delivery of oligonucleotides with cationic liposomes." In an identical release issued by Alnylam, Chief Intellectual Property Counsel Dr. Robert Millman stated that "[g]iven both the newly allowed claims and previously issued patents, we believe that the Wheeler and Semple patent series represent the broadest intellectual property estate covering lipid-based delivery technologies for RNAi therapeutics." Information about RNA interference (RNAi) can be found here.
said conjugated lipid is a PEG-lipid.
Avalon Pharmaceuticals® announced in a March 7, 2007 press release a collaboration with Merck & Co., Inc. for drug discovery, development, and commercialization of inhibitors of a target that is important in cancer development. Avalon brings its AvalonRx® screening technology platform to the collaboration and will screen a number of candidate compounds from Merck's proprietary compound library. Avalon will identify potential inhibitor compounds of the unmentioned target which has, according to the release, proven difficult to inhibit. Avalon will select and optimize compounds to the preclinical stage, where Merck will assume responsibility for clinical development, regulatory approval, and commercialization of any candidate inhibitor compound.
Avalon has the potential to receive milestone payments in excess of $200 million as well as royalty payments on any marketed drug products.
On Monday, Canadian pharmaceutical company Biovail (NYSE: BVF) announced that it had reached a comprehensive settlement with Anchen Pharmaceuticals, Impax Laboratories, Teva Pharmaceutical Industries, and Watson Pharmaceuticals with respect to Wellbutrin XL® (bupropion HCl), a once-daily antidepressant which has a low incidence of sexual dysfunction, weight gain, and somnolence, and which is believed to act on norepinephrine and dopamine.
In December 2004, Biovail filed a patent infringement suit in the Central District of California against Anchen Pharmaceuticals, which had filed an abbreviated new drug application (ANDA) for generic 150 mg and 300 mg versions of Wellbutrin XL®. At that time, Biovail also filed suit in the Southern District of Florida against Abrika Pharmaceuticals, which had filed an ANDA for a generic 150 mg version of Wellbutrin XL®. Biovail contended that in filing their ANDA's, Anchen and Abrika had infringed U.S. Patent Nos. 6,143,327 and 6,096,341. In March 2005, Biovail filed suit in the Eastern District of Pennsylvania against Impax in response to Impax' submission of an ANDA for generic 150 mg and 300 mg versions of Wellbutrin XL®.
Biovail's pending actions against Impax and Watson would be dismissed.
Biovail had granted an exclusive license to Anchen, Impax, and Teva to market a generic 300 mg version of Wellbutrin XL® from December 13, 2006 until June 13, 2007.
Anchen, Impax, Teva, and Watson will not market a generic 150 mg version of Wellbutrin XL® until 2008.
Biovail had granted an exclusive license to Anchen, Impax, and Teva to market a generic 150 mg version of Wellbutrin XL® for 180 days following market entry.
The agreement did not have any impact on Biovail's infringement action against Abrika, which remains pending.
Additional information regarding this settlement can be found in a release issued by Anchen Pharmaceuticals and a release issued by Impax Laboratories.
Novartis announced today that the U.S. Food and Drug Administration approved the use of Tekturna® (aliskiren) for the treatment of high blood pressure as a single therapy or in combination with other high blood pressure medications. Apparently, the FDA had previously indicated that it would need more time to review the Tekturna® new drug application (NDA); causing some to speculate that the drug would not be approved or that the approval would be limited. Novartis developed Tekturna® in collaboration with Speedel, a biopharmaceutical company specializing in cardiovascular and metabolic diseases.
It is estimated that high blood pressure occurs in almost one billion people worldwide and is not adequately controlled in about 70% of those affected. Tekturna® (aliskiren) is the first in a new class of drugs called "direct renin inhibitors." Renin is a circulating enzyme involved in the biochemical pathway that regulates blood volume, sodium chloride concentrations in the blood, and blood pressure. More information about renin can be found here.
Novartis says that Tekturna® will be available this month in once-daily oral tablets at 150 mg and 300 mg dose strengths. Also, Tekturna® is under review in the European Medicines Agency for approval throughout the European Union, where it will be called Rasilez® if approved.
Additional information regarding the FDA's approval of Tekturna® (aliskiren) for the treatment of high blood pressure can be found here.

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Application No. 09