Judge Improperly Cut Patentee’s Million Dollar Jury Verdict Without Offering a New Trial

Minks v. Polaris (Fed. Cir. 2008)

Floyd Minks won a jury verdict of $1.3 million based on a judgment of infringement by Polaris. The district court slashed that award by 95% — finding that Minks was adequately compensated by $27,000 in damages and $117,000 in attorney fees and an extra $27,000 for willfulness. On appeal, the Federal Circuit vacated the reduction in damages based on a procedural issue.

As a safety device, many all-terrain vehicles (ATVs) include a reverse-direction governor to prevent operating the vehicle at high speeds while driving backwards. The Minks patent covers a particular type of electronic governor to accomplish this goal.

Through his company, Minks Engineering, Minks designed the electronic governor for Polaris and also patented the design. Later, Polaris found a cheaper vender with a redesigned governor. At that point, Minks sued for infringement.

After the $1.3 million dollar verdict, the district court granted the Polaris motion for a reduction of the damage award “as a matter of law” under Fed. R. Civ. Pro. 50.

In the appeal, the Federal Circuit agreed that some reduction may be proper. However, the appellate panel held the Seventh Amendment of the US Constitution requires that a new trial on damages as a prerequisite to any reduction.

“The issue before us on appeal is whether the Seventh Amendment required the district court to offer Minks the option of a new trial in lieu of accepting the reduced damages award”

The fact-law distinction found throughout patent law is important because of Seventh Amendment’s high regard for factual decisions by a jury. The “reexamination clause” of the Seventh Amendment reads as follows: “no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of common law.” Here, the damage amount is a factual inquiry, and the Seventh Amendment has been interpreted to usually require that a district court offer a new trial on damages as an option when considering setting aside an excessive jury award.

The Eleventh Circuit (where this case arose) allows a judge to reduce a jury verdict without offering a new trial in the limited case where the error was a “legal error” as opposed to an error in adjudging a factual issue. Here, however, the error was in the jury’s determination of the number of infringing sales, royalty base, and royalty rate – all factual issues.

“A comparison of the Georgia-Pacific factors and the standard of a hypothetical negotiation to the evidence of record in this case makes clear that the district court’s reduction of compensatory damages necessarily amounted to an assessment of the sufficiency of the evidence, and as such, the option of a new trial was required.”

This case is in tension with Tronzo v. Biomet (Fed. Cir. 2001). In that opinion, the Federal Circuit agreed that a new trial was not necessary even though the district court had reduced compensatory damages from seven million dollars to only five hundred dollars. The distinction may be that in Tronzo, the reduction was a legal issue because the patentee had presented no credible damages evidence. Here Minks presented at least “limited evidence” of damages.

Vacated and remanded for a new trial on damages.

69 thoughts on “Judge Improperly Cut Patentee’s Million Dollar Jury Verdict Without Offering a New Trial

  1. 69

    Thus, Mr. Floyd Minks was forced by the Judge to license his patent for a pittance even though the jury awarded Mr. Minks substantially more.
    Posted by: Just an ordinary inventor(TM) | Oct 20, 2008 at 09:58 AM

    JAOI,

    Two questions:

    1) If the judge had INCREASED Minks’ award by $1 million instead of decreasing it, would you still be complaining?

    2) Minks is still being forced to license the patent. Are you complaining about the fact that Minks has to license the patent AT ALL, or the fact that Minks did not get the amount the jury said he should get?

    I agree with Leopold, please rest your case. Hope the state appeals thing goes/went well.

  2. 67

    Luck shouldn’t come into it. I wish you a good night’s sleep and in the morning a clear mind, so that you (and your wife) feel afterwards that at least you did yourself justice. I hope it’s only the rabbit that ends up with a broken heart.

  3. 66

    Thanks,

    You are right, but he’ll be heart-broken.
    My wife — my better half — will be there for moral support and more.

  4. 65

    You might want to leave your fuzzy little sidekick at home, however. They’re not allowed in my state’s courts.

  5. 63

    Finally — thank you.
    * * * * *
    I have an oral argument (my first pro se case ever) against a state agency scheduled this week in the state appeal court. I hope I’m as compelling on those issues, issues that affect over one million state residents.
    Please wish me luck.

  6. 61

    Dear random (and those who have not yet become eBay enlightened – you know who you are):

    Question 1) Do you recognize the Constitution as the supreme Law of the Land? (Hint: Article VI, Clause 2: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”)

    Answer: Yes, of course, We the People recognize the Constitution as the supreme Law of the Land!

    2) Do you agree that any specific term(s) written into the Constitution, that have not been Amended (hint: Article V), as being the Law,
    i.e., a “statue,”
    i.e., “a “statute” that trumps anything that may emanate from the Executive, Congress or the Judicial branches of our government,
    i.e., the “mother of all American statutes”?

    Answer: Yes, of course, We the People recognize the Constitution as the supreme Law of the Land!

    3) Do you agree that these two definitions of “…‘exclusive right’ means anything other than
    (a) ‘a right which is undivided between more than one party’,” and,
    (b) “Not divided or shared with others,”
    and that these definitions define the term, “the exclusive Right”, as used by the Framers in our Constitution’s Patent Clause?

    Answer: Yes, of course, you cannot disagree because that includes a definition you, “Mr. random,” insisted upon above (and, of course, I agree with).

    * * * * *

    OK then, end of discussion – the Supremes’ eBay opinion is in tension with at least the following:

    A) The Constitution, Article I, §8, Clause 8: The Congress shall have Power … “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

    B) 35 U.S.C. 154 Contents and term of patent; provisional rights: “(1) CONTENTS.-Every patent shall contain a short title of the invention and a grant to the patentee, his heirs or assigns, of the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States …”

    C) 35 U.S.C. 271 Infringement of patent: “… (d) No patent owner … shall be denied relief … by reason of his having … refused to license or use any rights to the patent;…”.

    D) The official red ribbon copy of American patents, as issued by the Director of the PTO:

    “Therefore, this United States Patent
    Grants to the person(s) having title to this patent THE RIGHT TO EXCLUDE OTHERS FROM MAKING, USING, OFFERING FOR SALE, or selling the invention throughout the United States of America or importing the invention into the United States of America for the term set forth below, subject to the payment of maintenance fees as provided by law.” (emphasis added)

    Given this compelling logic, may I please, please rest my case?

  7. 60

    Dear noaposdijn,

    The article above begins:

    “Floyd Minks won a jury verdict of $1.3 million based on a judgment of infringement by Polaris. The district court slashed that award by 95% — finding that Minks was adequately compensated by $27,000 in damages and $117,000 in attorney fees and an extra $27,000 for willfulness.”

    Floyd’s win was cut by over $1 million – he was left with a small fraction of what the jury awarded him because the Judge said so – perhaps the Judge got up on the wrong side of the bed that morning – who knows?

    Thus, Mr. Floyd Minks was forced by the Judge to license his patent for a pittance even though the jury awarded Mr. Minks substantially more.

    I hope this helps you put Mr. Minks’ plight in perspective.

  8. 59

    Here is a concrete example of the Supreme Court’s eBay opinion limiting an independent inventor’s ability to negotiate a fair-value for his invention. But for eBay, Minks could take the reduced amount (or leave it on the negotiating table) and enjoin Polaris, and thus, he wouldn’t have to suffer the outrageous asswhole decision from the big business biased Judge.
    Posted by: Just an ordinary inventor(TM) | Oct 18, 2008 at 10:00 AM

    JAOI,

    Minks is not a good example for your argument. He has successfully licensed his patent to Polaris. He has won at all court levels. He appears to have gotten everything he asked for.

    In particular, it does not appear Minks asked for an injunction. Polaris is a customer of Minks, and all they’re fighing about is how much Polaris should pay Minks.

    Why would you want to enjoin your customer and put him out of business? This does not make any sense to me.

  9. 58

    “First, remember that the “right” which is bestowed to the inventor is the right to exclude others from making/selling, not the right to make/sell it themselves, and remember that it is not an absolute right. Why is it not an absolute right? Because the ramifications of infringing someone’s right to exclude are determined by the relevant portions of the statute. Then ask yourself, if a patentee is compensated for the actions of infringment of their right, in accordance with the principles of equity in each seperate case of infringment, then did the patentee ever have his right revoked? No. He still has it, and is no doubt still asserting it against the first infringer mentioned and any others and is being rewarded statutorily proper remedy any time his right is infringed. And certainly you can see that the courts never granted the right to exclude to the infringer, so surely you don’t believe the “exclusive right” is opened up to the infringer just because an injunction isn’t issued.”

    How does that saying go? Something like “In the valley of the blind, the one-eyed man is king”?

  10. 57

    I say a definition, you then repeat my definition, I make fun of you for needing to repeat it, you then bring up that an infringer isn’t in the same party as the patentee for some reason. And then you attempt to make fun of me for having the correct definition in the first place. Ridiculous. Get your head out of your rear man. Well, at least we’re all on the same page. Perhaps you bringing this about the infringer not being the same party as the patentee up is indicative of your problem in interpreting the article successfully. You feel as if by not granting an injunction the courts are taking away the patentee’s right to exclude and/or are allowing others to have the rights to the discovery/invention. However this is not the case. First, remember that the “right” which is bestowed to the inventor is the right to exclude others from making/selling, not the right to make/sell it themselves, and remember that it is not an absolute right. Why is it not an absolute right? Because the ramifications of infringing someone’s right to exclude are determined by the relevant portions of the statute. Then ask yourself, if a patentee is compensated for the actions of infringment of their right, in accordance with the principles of equity in each seperate case of infringment, then did the patentee ever have his right revoked? No. He still has it, and is no doubt still asserting it against the first infringer mentioned and any others and is being rewarded statutorily proper remedy any time his right is infringed. And certainly you can see that the courts never granted the right to exclude to the infringer, so surely you don’t believe the “exclusive right” is opened up to the infringer just because an injunction isn’t issued.

    As long as you remember what the right is, and look at this step by step there is no reason why you shouldn’t come to the same conclusion as the SC. Now get cracking sonny.

  11. 55

    Dear poor, poor poop random,

    Perhaps I can in fact help you.

    A patentee and an infringer of his patent do not comprise “one party” (at least in any meaningful context with which we are concerned).

  12. 53

    Dear Nonabbreviator,

    Neither was your comment funny. But mine at least had some semblance of substance.

  13. 50

    Dear poor, poor poop random,

    You said:
    “a right which is undivided BETWEEN MORE THAN ONE PARTY” (emphasis added, the operative word being “ONE”, which is perfectly consistent with the definition I provided: “Not divided or shared with others”.)

    Sorry that you do not comprehend English. I cannot help that.
    God help you: now you should be through talking – a thank you for my suffering an imbecile for so long would be nice.

  14. 49

    I say: doesn’t exclusive right mean a right that is undivided? JAOI responds: Yes. You don’t understand what I’m saying!

    A better example of insanity I haven’t seen in at least a month. Trust us J, we all understand. We say that you don’t make any sense.

  15. 47

    Yo random,

    Re: “a right which is undivided between more than one party”

    With all due respect, you don’t even understand your own words!, no less mine

    You are remarkably similar to a classic asswhole I once knew, but that’s ok. It take all kinds to make the world go round. Please, keep your thoughtful (at least for a second grader) but silly comments coming.

  16. 45

    JAOI I used to work at a sub shop when I was growing up. I always had a soft spot for the insane bums that would come in the store just to talk to you. But eventually you have to just ignore them until they go away. Sorry, but until you can explain how “exclusive right” means anything other than “a right which is undivided between more than one party” then I’m afraid I’m through talking.

  17. 41

    Also, the 1976 movie “The Shootist,” which marked the final film role of America’s iconic hero, a giant to be admired and another hero of mine, John Wayne, had a memorable quote from terminally ill J. B. Books (played by John Wayne), the most celebrated shootist extant:

    “I won’t be wronged, I won’t be insulted, and I won’t be laid a hand on. I don’t do these things to other people, and I require the same from them.”

  18. 40

    I know, I should get a life, but, as one of my heros, William Shattner, would say. But, this is my vocation and avocation – inventing –

  19. 39

    I Just may have set a Patently-O record — nine out of ten Recent Comments are Jaoi’s!

  20. 38

    Funny is your forte don’tchaknow… Patent Rights certainly are not by a loooong shooot.

  21. 37

    So Malcolm:

    What are your favorite subjects, other than a weaker, weaker, weaker, weaker American patent system, and no patents for software and designs.

    Yes, I am amused, but I am also disappointed that you do not comprehend my eBay argument in any depth. I expected better of you. Or at least something funny …funny.

  22. 36

    Malcolm,

    Nor do you see the word “must” in Clauses 12 and 17. But you must agree that Clauses 8, 12 and 17 provide rather explicit terms that our Framers wrote into the Constitution. They did not mean “compulsory licensing” under any possible interpretation in Clause 8; nor did they mean more than two years in Clause 12, or more than 100 square miles in 17.

    Also, if you’ll read other posts of mine on this my favorite subject, the Constitution also provides three examples of exceptions to the Patent Clause’s “the exclusive Right.”

  23. 35

    Yes Leo,

    Arguments that are presented over and over again…

    That’s Just politics – until all the asswholes finally see the argument – I mean, especially this argument, it even got past the nine Supreme Court Judges, even those Justices who in essence, but not actually, dissented (please see the concurring eBay opinion by CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA and JUSTICE GINSBURG joined).

    It is after all, a detailed intellectual argument. Nonetheless, it is exactly what the Framers said and in fact intended.

    Any complaints, take upstairs, where the Framers no doubt are enjoying this ongoing debate.

  24. 34

    “it must legislate (secure) at least these two terms”

    I don’t see the word “must.” I see the words “Congress shall have the power.” That’s all. Congress can dismantle the US copyright and patent system tomorrow if it wants, or it can do anything between that and granting “exclusive rights.”

    And only libertardian freaks believe that “exclusive rights” means “absolute rights notwithstanding reason and/or equitable considerations.”

    Try yelling “fire” in a crowded theater sometime, then when the DA and the parents of the resultant dead trampled kid come after you, try to present yourself to the community as the only one who “truly appreciates” the 1st Amendment. That’s pretty much where you appear to be coming from with your anti-Ebay rants.

    I hope you find this as amusing as I do, by the way.

  25. 33

    Correction: “arguing”. Funny how one wrong letter can make a word look so funny.

    Anyway, here is my authority:
    “Article. VI … Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

  26. 30

    Random,

    It doesn’t say “injunction” “injunction” “injunction” “injunction”

    It says, “the exclusive Right” “the exclusive Right” “the exclusive Right” “the exclusive Right”

  27. 29

    Dear Leo,

    If Congress elects to exercise its discretion and enact the Patent Clause:
    “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”
    it must legislate (secure) at least these two terms because they were specified by the Framers:
    (i) “for limited Time”
    (ii) “the exclusive Right”

  28. 28

    “But, despite my disgust with KSR, I am constrained to admit that KSR is lawful because it stems from the discretion afforded Congress via the Constitution’s Patent Clause.”

    Ok, so you also have to admit that ebay stems from the discretion afforded congress by the patent clause. Sounds good, we all go home. Let me go over this in a bit more detail. The patent clause does not say “injunction” what it says is “exclusive right”. A patentee is given the exclusive right. That is a patentee is given a right that is “not divided or shared with others”. The right which congress decided to allow him was the right to exclude others. That is not in the clause, that is in the laws. Accordingly, they then determined what the courts should be allowed to do when someone has infringed the patent owner’s right to exclude. They then determined monetary damages were proper, and also that a court may deem, in accordance with the principles of equity, that an injunction would be proper. It is their decision. Live with it or get the law changed. Also, fyi, even if one law doesn’t seem to jive with another, it doesn’t mean that the first one shouldn’t be taken at face value. “may” “may” “may” “may” “may”. The SC wins. You lose.

  29. 27

    Yup, I mean the arguments from Constitutionally-challenged commentors. That are presented over and over again…

  30. 26

    Hi Leo,

    I know what you mean, those arguments from Constitutionally-challenged commentors.

  31. 25

    “So, here’s the question: could Congress make patent infringement a criminal matter instead of a civil matter?”

    Absolutely. Certain copyright infringement is already a criminal matter. See 17 USC 506.

    Now, if we could only criminalize posting bad legal arguments online…

  32. 24

    Malcolm,

    Thank you for your FBI stupidness comment – it opened a whole new patent enforcement concept for all kinds of independent non-practicing inventors, software, design patent et al. inventors, everywhere.

    I will begin immediately to lobby for a bill to make interstate patent infringement of a non-practicing inventor’s patent a federal criminal offense punishable by the same minimum sentences imposed on other criminals, such as illegal drug traffickers.

    Since Obama is a fascist, and Biden Just another no-account politician, they will no doubt endorse a bill for “Joe, We the Person” against big rich businesses.

    Geee, Malcolm, you may be smarter than some think – thanks – I will make it so, thanks to your FBI stupidness comment! And you will get all the credit. You’ll thank me in the morning.

  33. 23

    Malcolm,

    Are you happy now? See what you started – a Texas movement to criminalize patent infringement (even for a software patent!, and design patent infringers!).

  34. 22

    You’re guldamn right Mr. Rabbit — a patentee can shoot that fur’kin infringer even if doesn’t go to court as long as he offered a license before shooting. The infringer should have taken the license. But, if it is proven after the shooting/funeral that the infringer was innocent, the patentee will have to pay the infringer or the infringer’s estate reasonable damages, not to exceed $10,ooo (õ ¿)

  35. 21

    Maybe this question is not so academic after all! I hear in Texas you can shoot a recalcitrant trespasser. Can a Texas patentee shoot an infringer if he does not stop infringing after prevailing at the end of the trial/appeal day? (o¿õ)

  36. 20

    ACADEMIC QUESTION:

    We now know that if Congress elects to exercise its discretion and enact the Patent Clause:

    “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

    it must legislate (secure) at least these two terms because they were specified by the Framers:
    (i) “for limited Time”
    (ii) “the exclusive Right”

    So, here’s the question: could Congress make patent infringement a criminal matter instead of a civil matter?

  37. 19

    Malcolm,

    Your injecting FBI stupidness into an other wise intellectual Constitutional argument is nonsense. As you know, patents are enforceable in Court. Infringement is not a criminal matter.

    If a patentee sues a patent pirate and prevails at the end of the day, why the heck should the infringer be allowed to continue infringing if the patentee refuses to license him in accord with the Constitution and 35 USC 271?

    I think you do better when you are funny. Lately, you’ve lost your sense of humor and you sound like a fat headed Coalition skill. Maybe you’ve been drinking too much. I am reminded of what Cliff Clavin said one afternoon at Cheers explaining the Buffalo Theory to his buddy Norm, one of my favorite stories that bears repeating:

    Here’s how it went:
    “Well ya see, Norm, it’s like this… A herd of buffalo can only move as fast as the slowest buffalo. And when the herd is hunted, it is the slowest and weakest ones at the back that are killed first This natural selection is good for the herd as a whole, because the general speed and health of the whole group keeps improving by the regular killing of the weakest members.

    In much the same way, the human brain can only operate as fast as the slowest brain cells. Excessive intake of alcohol, as we know, kills brain cells. But naturally, it attacks the slowest and weakest brain cells first. In this way, regular consumption of beer eliminates the weaker brain cells, making the brain a faster and more efficient machine. That’s why you always feel smarter after a few beers.”

  38. 18

    I think a long time back we had a discussion about the relationship of patents to other types of property rights implicated in the Constitution. Let’s face it: IP is different. Owning a patent is not like owning a house or yard. Millions of people can infringe your patent without every leaving their own homes and you’d never know it. The idea that the Constitution provides you with an absolute right to prevent that from happening is just plain silly. Are the FBI and local police supposed to get warrants and stop people from making crustless peanut butter and jelly sandwich pockets, or swinging side-by-side?

    There is no “betraying of expectations here.” Your expectations were and are unreasonable. Maybe patents are worth less now than they were 10 years ago because of the EBay case and other decisions. Big whup. Times change.

  39. 17

    Random,

    However, far be it from me to hold your stupidness against you – believe what you will despite the truth, despite the facts, despite reality, that’s your prerogative. There is no accounting for stupidness, a closed mind, or the inability to comprehend a detailed intellectual Constitutional argument, especially if you have a vested interest in a prejudicial view.

    As an ordinary inventor, I have a vested interest in a prejudicial view. For example, I despise the Supremes’ KSR opinion because it is an open invitation for unfit judges to render result oriented opinions – KSR really sucks. But it is lawful stemming from the Constitution’s Patent Clause.

    My worst criticism of KSR is that, as the Supreme Court is presently populated, sound patent jurisprudence is beyond their capabilities – they are light-weights, a bunch of patent ninnies.

    But, despite my disgust with KSR, I am constrained to admit that KSR is lawful because it stems from the discretion afforded Congress via the Constitution’s Patent Clause.

  40. 16

    Random,

    Bite me. With all due respect, your stupidness showing. You Just don’t get it, do you?

    Did you read what happened to Mr. Floyd Mink?

  41. 15

    For the last time JAOI, the courts may or may not impose an injunction. And, no patentee is denied any relief from such an occurance not happening by way of his refusing to license his patent. None. Got it? 0.

  42. 13

    Maxxy,

    So funny you should ask. Please see above. If that comment doesn’t answer your question, I’m afraid I cannot do much better.

    * * * * *

    Dear an ex-non-believer,

    Thank you for your vote of confidence; I shall continue my battle cry till eBay falls, Just as it should!, nay, as it must!!

  43. 12

    JAOI:

    Yes, I see the light. After rereading some of your postings, I understand why you sound like a broken record. I found these comments most persuasive…

    “Here is a concrete example of the Supreme Court’s eBay opinion limiting an independent inventor’s ability to negotiate a fair-value for his invention. But for eBay, Minks could take the reduced amount (or leave it on the negotiating table) and enjoin Polaris, and thus, he wouldn’t have to suffer the outrageous asswhole decision from the big business biased Judge.”
    AND
    “Obviously, the Supremes’ unlawful eBay Opinion was the worst thing that ever happened in U.S. patent history, at least for America’s independent, self-employed inventors, research universities and many others including business men and businesses (e.g., Edison wannabes and IBM). As practical matter, why would bold, well heeled patent-pirate infringers (e.g., a successful software company) take a license that is offered if they can instead roll the dice in court without fear of being stopped from infringing even if they lose?”

    I finally got it, the extreme importance of the Supreme Court’s eBay decision, and why it is in tension with the Constitution and 35 U.S.C. 271, and why 35 U.S.C. 283 is constitutionally unsound. Is it not ironic that the Supreme Court could find nothing other than ‘283 on which to base their unlawful eBay decision?

    Without the Constitution’s exclusive right, a patent for some is “limp” and a non-practicing patentee, like Mr. Floyd Mink, has nothing but an empty gun, to use your analogy, with which to negotiate a license for his/her invention.

    As we can now see, Mr. Mink, and others so situated, are subject to the whims of big business minded unfit judges to interpret the vagaries of 35 U.S.C. 283 regarding and injunction.

    283 “The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.”

    Rave on JAOI, rave on and on, till all here see the light and become ex-non-believers like me, so we can all raise our voices together to undo the unlawful eBay decision.

  44. 11

    JAOI, sorry but I still haven’t grasped your point, that the Constitution commands the Congress to pass a law that gives patent owners injunctive relief. The way I read it, the Constitutional clause is permissive. It announces that Congress would be within its rights to pass such a Statute, but doesn’t insist that it does. Makes sense because, on the face of it, patents are anti-competitive so could not be created unless the Constitution give Congress permission to do so. Where above do you demolish my interpretation, please?

  45. 10

    Dear GP,

    What I find hard to fathom is why so many on asswhole commenters this blog embrace the continuing corruption of our Constitution by those in all three governmental Branches who by Oath are duty bound to support the Constitution!

    Article VI:
    “Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

    We the American People are not being served by “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers”. It is as if we are living in Alice’s Wonderland where little makes sense.

    WHAT’S GONE WRONG IN THE IP WORLD
    IS A MICROCOSM OF
    WHAT’S GONE WRONG IN AMERICA.

    When a government agency so blatantly betrays the expectations of those to which it is responsible, what is the public to think? The primary reason for the existence of the PTO is to administer the patent statues enacted by Congress in accord with Article. I, §8, Clause 8 of our Constitution:

    “The Congress shall have Power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

    What has been happening in America undermines faith in our democracy – adding to a feeling that there is nothing we citizens can do to forestall special interests from asserting influence or control over government agencies. But something can be done: Sue the bastards, use judicial means for our democracy to preserve and re-constitute our Constitution.

    Government agencies must carry out their duties as the law mandates. Where an executive agency – and not our elected representatives – takes upon itself the role of lawmaker to foist its biased view of what a public policy ought to be, such laws must be opposed, and reversed if there are “blown past” our legislature.

    And when our Supreme Court strays from Constitutional mandates (e.g., in its eBay opinion), unless it corrects its own mistake, Congress should legislate corrective statutes as needed. We in the IP community know that, as constituted in recent years, our Supreme Court is out of their element when it comes to patent jurisprudence.

    Obviously, the Supremes’ unlawful eBay Opinion was the worst thing that ever happened in U.S. patent history, at least for America’s independent, self-employed inventors, research universities and many others including business men and businesses (e.g., Edison wannabes and IBM). As practical matter, why would bold, well heeled patent-pirate infringers (e.g., a successful software company) take a license that is offered if they can instead roll the dice in court without fear of being stopped from infringing even if they lose?

    In its eBay opinion, the Supreme Court, in essence relying solely on 35 USC 283, particular classes of inventors were discriminated against – they were denied their Constitutional right to stop commercial infringement of valid patents even after prevailing in court. That cannot be right – it is outrageous!, because 35 USC 283 is in direct conflict with Article. I, §8, Clause 8 of our Constitution, supra.

    “35 USC 283, Injunction: The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.”

    35 USC 283 is also in direct conflict with other patent statutes, e.g:

    “35 USC 271 Infringement of patent: … (d) NO PATENT OWNER otherwise entitled to relief for infringement or contributory infringement of a patent SHALL BE DENIED RELIEF or deemed guilty of misuse or illegal extension of the patent right BY REASON OF HIS HAVING done one or more of the following: … (4) REFUSED TO LICENSE OR USE ANY RIGHTS TO THE PATENT;” (emphasis added).

  46. 9

    Well, we’re almost at the point where pesky juries will be historical, so mind as well get there quicker with JNOV type opinions.

    The republic is dead. Long live the fascist state of the USSA.

  47. 8

    Dear Follow Up and 63k,

    Here is a concrete example of the Supreme Court’s eBay opinion limiting an independent inventor’s ability to negotiate a fair-value for his invention. But for eBay, Minks could take the reduced amount (or leave it on the negotiating table) and enjoin Polaris, and thus, he wouldn’t have to suffer the outrageous asswhole decision from the big business biased Judge.

    Also, please see my last comments on this link:
    link to patentlyo.com

  48. 7

    I doubt it. This is from page 13 of the decision:

    “Although the record is not wholly clear on the relationship between Minks and Minks Engineering, they are not competitors [of Polaris].”

  49. 5

    Hey, did I get that right, the Supremes Just voted to condone voter fraud in Ohio?

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