Patently-O Bits and Bytes No. 105

  • Irreparable Injury: I have written about this before, but I am still struggling with a basic question from eBay v. MercExchange: Is there any distinction between the first two elements of eBay’s test for permanent injunctive relief [Irreparable injury vs. the inadequacy of available remedies at law]? Ordinarily, the first element of irreparable injury is defined as a substantial injury that cannot be fully compensated by available remedies at law (such as money damages). The ordinary test for preliminary injunctive relief collapses these and only looks at irreparable injury.
  • Future Harms?: Second, what should we make the eBay’s use of the present perfect tense in the irreparable injury requirement: “A plaintiff must demonstrate: (1) that it has suffered an irreparable injury.” I guess that this makes sense if it is an indication that the irreparable harm must be an ongoing harm rather than a merely future harm?
  • Patent Litigation Data: Professor Colleen Chien’s new article uses the newly taboo troll label in its title. I report on the article here because of her data-derived conclusion that it would be improper to “blame non-practicing entities (“NPEs”) for a majority of the problems with the patent system.” In fact “public and large private companies” have initiated the largest share of patent litigation in the past 8 years. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396319 .
  • History: Professor Adam Mossoff is posting this week at the Volokh Conspiracy on his new article “A Stitch in Time: The Rise and Fall of the Sewing Machine Patent Thicket.” The story is 150 years old, but it amazingly shows that today’s arguments on patent reform are nothing more than rehash http://volokh.com/posts/1240974253.shtml .

80 thoughts on “Patently-O Bits and Bytes No. 105

  1. Ad Astra,
    I think that the exclusive right to the inventor is alluded to in the constitution, but the statute implements that as the right to exclude.

  2. Hold on 6, don’t ascribe opinions to me that I don’t hold. First of all, I’ve read EBay more than once, so no need for the linkage. Second, I don’t have a problem with the way EBay came out – that’s JAOI’s business. My only concern here was that it was my understanding that the phrase “exclusive right” has generally been interpreted to mean “right to exclude”, not “right exclusive to the inventor”, though both are plausible. I don’t see where SCOTUS came down either way on that question. The part where they discuss the difference between rights and remedies is just as applicable to any Constitutional right to exclude as it is to the statutory right to exclude, so I don’t see why you think EBay’s result necessitates the “rights exclusive to the inventor” interpretation.

    And please be careful when you say that you’re just interpreting it on the basis of “what it says”. That’s exactly what JAOI has been claiming all along, but with the opposite conclusion. If “what it says” were so plain, we wouldn’t be having this discussion.b

  3. “is that the accepted interpretation of the phrase “exclusive right”? Because I always saw it as interpretable both ways, i.e., as the right of exclusion and as the right that is exclusive to the inventor.”

    I don’t know what is accepted and what is not accepted, you’ll have to ask your lawyer if he accepts it or not.

    But, in either event, whether it is the commonly held accepted view or not, it is for this reason that there is ambiguity. People like yourself interpret it some weird stretched out way (that was probably common way back in the day), and other people interpret it based on what it says, like myself. The USSC of today tends to follow along with these types of interpretations these days from what I can see.

    And since there is ambiguity the court had to rule. And rule they did. JAOI doens’t like their interpretation, even though it aparently hasn’t occured to him just yet that he’s stretching the language of the constitution.

    After they ruled it is the only plausible interpretation, because, as JAOI insists, if one were to interpret the constitution the way you and he do, then injunctions, or whatever you want to call it, perhaps chopping off the arms of the infringer so that he cannot make or sell the invention, are the inventor’s government sanctioned right. The USSC would not be very likely to make such a blunder. People like you and JAOI would be a gazillion times more likely misinterpret the constitution, such as you have, according to the authority (the USSC) than for the USSC to make that blunder unanimously.

    For example “Nothing in the Act indicates such a departure. Pp. 2–6.” Which is true, but if your interpretation were to be taken, it most certainly would have to indicate such a departure. You can see by the “injunctions “may” issue “in accordance with the principles of equity” that the intention of the original language of the constitution does not require such a thing be done, even if it would permit it. JAOI just wants it to, because he wants to have a superceding authority, the constitution, to block out the “may” in 283. This being because when he’s confronted with the language of the statute 35 as a whole he must acquiesce his position being false, because the portions about right to exclude others “(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 or importing the invention into the United States, and, if the invention is a process,” from 35 154 have to be reconciled with the language about equity in section 283. And when that reconciliation occurs we have the decision made by the USSC.

    Bottom line, the ebay ruling is much simpler than you guys interpretation of the constitution somehow being superceded by traditions of equity or even the fact that the statute demands those traditions be applied. It is that your interpretation goes too far in the first place, and then the statutes kick in, and the statutes have to be reconciled amongst one another, and then the traditions in equity win out as written in Ebay.

    For your perusal:

    link to supremecourtus.gov

    And yes I heard the ravishing story before.

  4. Dear #6, Leo, Ad Astra, et al.,

    Excellent points!

    I do believe I understand.

    BTW, have you heard the farmer Jones story? Please stop me if you heard it before.

    One day, farmer Jones was in town picking up supplies. He stopped by the hardware store and picked up a bucket and an anvil, then stopped by the livestock dealer to buy a couple of chickens and a goose.

    Now he had a problem: how to carry all of his purchases home. The livestock dealer said, “Why don’t you put the anvil in the bucket, carry the bucket in one hand, put a chicken under each arm and carry the goose in your other hand?”

    “Hey, thanks!” the farmer said, and off he went.

    While walking he met a fair young lady with a beautiful figure. She told him she was lost, and asked, “Can you tell me how to get to 15 Maiden Lane?”

    The farmer said, “Well, as a matter of fact, I’m going to visit my brother at 16 Maiden Lane. Let’s take a short cut and go down this alley. We’ll save half the time to get there.”

    The fair young lady said, “How do I know that when we get in to the alley you won’t hold me against the wall, pull up my skirt, and ravish me?”

    The farmer said, “I am carrying a bucket, an anvil, two chickens, and a goose. How in the world could I possibly hold you up against the wall and do that?”

    The young lady said, “Set the goose down, put the bucket over the goose, put the anvil on top of the bucket, and I’ll hold the chickens.”

  5. 6, I’m curious, is that the accepted interpretation of the phrase “exclusive right”? Because I always saw it as interpretable both ways, i.e., as the right of exclusion and as the right that is exclusive to the inventor. I believe that historically (1920s-ish) there was a belief in the former among judges. I tend to see the right of exclusion as the more mainstream understanding. I just part company with JAOI as to that implying that injunctions are required, what with the whole rights and remedies thing. Is the “exclusive to the inventor” interpretation common at the USPTO?

    And JAOI, I just want to make sure that you know: what I said about the logical appeal of automatic injunctions doesn’t mean that I think they are required by the Constitution. I wasn’t quite clear, from the way you quoted me, that that was understood.

  6. “See, that’s an advanced move where I combined two totally unrelated quotes to multiply the awesomeness.”

    How does that old quote go? Something like “In the valley of the blind, the one-eyed man is totally awesome,” I think. Kind of reminds me of this thread, except for the one-eyed man part.

  7. “Hi 5 6,

    Re:
    “You’ll find out that it is the right to exclude others.”

    As the prosecutor said in “My Cousin Vinny,” Eggggsaactly!, as he clapped his hands.

    So now that you get that this right is from the statute and not the constitution, why do you keep asserting constitutional grounds instead of statutory grounds? Do you not understand the difference between the two things? Do you need help to understand that they are different documents and have a different level of authority and meaning?

    I would be remiss if I didn’t add, after your having made such a breakthrough (I hope) in your understanding, that the courts have never tried to give the infringer your limited to one person right to exclude. That would be the only reason to cry foul on constitutional grounds in our discussion, but that obviously hasn’t happened. So the question remains, why do you try to use the constitution instead of the statute? Doing so is an incredibly embarrassing position to genuinely push as being serious. And I’ve pushed some real doseys for fun, I should know. But at the least I have the decency to rely on the right document.

    btw that movie sux, try “TONIGHT, we dine in HELL” or “Prepare for glory!”

    See here for an appropriate list.

    link to 300.imora.net

    Even taken out of context, the awesomeness makes up for any improper usage.

    For example: 6 delivers the deathblow to JAOI’s position which he has so long eluded through cunning or blind ignorance, His hands are steady. His form perfect. Prepare for glory!

    See, that’s an advanced move where I combined two totally unrelated quotes to multiply the awesomeness.

  8. But here’s my favorite – stop me if you heard it before — the sequence in Cheers where Cliff Clavin explains the Buffalo Theory to Norm,

    “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 id 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 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 more efficient machine. That’s why you always feel smarter after a few beers.”

  9. High five again Six,

    Re:
    “This is a bricklayer’s [stupdity] report,”

    It reminds me of a fable told to me by a renowned inventor, one of my mentors, back in the 70s, about flying off the handle – stop me if you heard it:

    A new psychiatrist, Dr. Fried, is assigned to a mental hospital to do periodic examinations of patients to evaluate whether or not they have recovered and are ready for release.

    On his first rounds he examines a patient, Mr. Smyth, who has been committed for many years. Mr. Smyth passes with flying colors – Dr. Fried can find no reason Smyth has been institutionalized for so long and he tells Smyth it will take him a week to arrange for his discharge.

    As Dr. Fried is walking to the parking lot to leave for the day, he gets hit in the back of his head with a brick. Lying on the ground, barely conscious, Dr. Fried looks up to see Smyth leaning out a window – Mr. Smyth yells, “You won’t forget, will you?

    (©¿®)™

  10. Hi 5 6,

    Re:
    “You’ll find out that it is the right to exclude others.”

    As the prosecutor said in “My Cousin Vinny,” Eggggsaactly!, as he clapped his hands.

    And as the assassin said in “pulp fiction,” Correctahmoondoh!, before he passed sentence

    There’s a passage I got memorized, seems appropriate for this situation: Ezekiel 25:17.
    “The path of the righteous man is beset on all sides by the inequities of the selfish and the tyranny of evil men. Blessed is he who, in the name of charity and good will, shepherds the weak through the valley of darkness, for he is truly his brother’s keeper and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers. And you will know my name is the Lord when I lay my vengeance upon you.”

  11. “The Supreme Court’s job, and every other American court’s job, is to enforce the laws of the land, including the laws laid down in the Constitution, and the other laws lawfully legislated by Congress and otherwise.

    Naw man, that’s the executive branch’s job. You’ve got them a little mixed up. Go read your HS civics book again.

    “In so far as the laws of the land are clearly specified, no interpretation is allowed!; ”

    What you aren’t getting is that there is an imprecision in the language which you keep taking to mean only one thing. We’ve been trying to tell you what that imprecision is, to no avail, for months or years now. We have to presume you’re just not listening. Because it is either that, or you’re incapable of understanding language. Neither of which we can fix from our side.

    “In so far as citizens are able, it is our job to understand and interpret the Constitution — if the officials, any officials, go awry of the Constitution, it is our job to straighten them out. If you’re not up to it, that’s your problem; I am up to it.”

    Your mechanism for doing so is convincing the courts. So either go to the USSC and stop whining about it, or get the statutes changed. How’s that sound?

    “This is a bricklayer’s [stupdity] report,”

    Yes, we know, it’s hard to believe someone could be that stupd. I mean seriously? He didn’t let go of the rope and let the bricks crash while he got out of the way? How much dope was he smoking beforehand?

    ““exclusive (adj.): … limited to possession, control, or use by a single individual or group””

    Correct JAOI, it’s good to see you found your way all the way to the source of your problem. Now, take that definition and fill in the blank.

    “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the *blank* right to their respective writings and discoveries; ”

    becomes:

    “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the, limited to possession, control, or use by a single individual or group, right to their respective writings and discoveries; ”

    Or more properly spoken as:

    “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the right, which is limited to possession, control, or use by a single individual or group, to their respective writings and discoveries; ”

    Do you see how that phrase we filled in modifies the word “right” and describes who the right itself is controlled, possessed and used by and does not describe what the right is to do? Contact your english teacher for further details. Then read the statutes under U.S.C 35 to see what that right which you solely control, possess and may use is. You’ll find out that it is the right to exclude others. But that is under the statute, not the constitution.

  12. Dear Light,

    Thank you for your kind comments and concern.

    Re:
    “Your thinking is not consonant with the prevailing orthodoxy.”

    I appreciate your coming around to my way of thinking.
    I hope you finally feel enlightened and will pass the word.
    I am always happy to contribute my forward thinking.
    Please don’t be shy if you have more questions.
    I’m here to help those less fortunate.

  13. JAOI–

    Your conceptions of constitutional interpretation are entirely different than those established by US constitutional jurisprudence as taught to me in law school.

    Your thinking is not consonant with the prevailing orthodoxy.

    I know how badly that sucks.

  14. Dear Light,

    Re:
    “Honestly, I’m not trying to trap you into anything.”

    Of course not. Why on earth would you even think of doing that? I’d be more than happy to answer you question as follows.

    If an unlimited power is granted, I believe Congress can exercise that power as it sees fit (e.g., Article 1 Section 8 clauses 2 & 3).

    If a specified power is granted, I believe Congress can only modify the specificity of that power by formal amendment (e.g., Section 8 clause 12).

    If a limited power is granted, I believe Congress can only exceed that limit by formal amendment (e.g., Section 8 clause 17).

    If the Constitution grants Congress discretion, with specified terms attached, as to whether or not to exercise a specified power, Congress can only exercise that power according to the terms specified (e.g., Section 8 clauses 1 & 8) — those terms can only be modified by formal amendment.

    Does that answer your question? I thought of shorter answers as well: “it depends,” “maybe” and “no.”

  15. JAOI–

    Honestly, I’m not trying to trap you into anything.

    But please answer my question–Do you believe that the grant of a power includes by definition the grant of any and all lesser included powers?

  16. I believe “the exclusive Right” means to exclude all but one, the patent owner.

    Dictionary definitions of “exclusive” include:

    “exclusive (noun): … a news story at first released to or reported by only one source”

    “exclusive (adj.): … limited to possession, control, or use by a single individual or group”

    “exclusive disjunction (noun): a compound proposition in logic that is true when one and only one of its constituent statements is true”

    The “exclusive Right” means the Right to exclude all but “one,” the patent owner, as stated on the cover of original “ribbon” patents and consistent with the Constitution’s Patent Clause.

    So, The number for exclusive, “one,” is very specific.

    Where there is specificity in the Constitution, every court in the land is bound to honor it.

  17. JAOI–

    Do you believe that the grant of a power includes by definition the grant of any and all lesser included powers?

  18. Funny, you want funny?
    This would be funny if it wasn’t a true story:
    Talk About Having a Bad Day!

    This is a bricklayer’s accident report, which was printed in the newsletter of the Australian equivalent of the Workers’ Compensation board. This is a true story.

    Dear Sir,

    I am writing in response to your request for additional information in Block 3 of the accident report form. I put “poor planning” as the cause of my accident. You asked for a fuller explanation and I trust the following details will be sufficient.

    I am a bricklayer by trade. On the day of the accident, I was working alone on the roof of a new six-story building. When I completed my work, I found that I had some bricks left over which, when weighed later, were found to be slightly in excess of 500 lbs. Rather than carry the bricks down by hand, I decided to lower them in a barrel by using a pulley, which was attached to the side of the building on the sixth floor. Securing the rope at ground level, I went up to the roof, swung the barrel out and loaded the bricks into it. Then I went down and untied the rope, holding it tightly to ensure a slow descent of the bricks. You will note in Block 11 of the accident report form that I weigh 135 lbs. Due to my surprise at being jerked off the ground so suddenly, I lost my presence of mind and forgot to let go of the rope. Needless to say, I proceeded at a rapid rate up the side of the building. In the vicinity of the third floor, I met the barrel which was now proceeding downward at an equal, impressive speed. This explained the fractured skull, minor abrasions and the broken collar bone, as listed in section 3 of the accident report form. Slowed only slightly, I continued my rapid ascent, not stopping until the fingers of my right hand were two knuckles deep into the pulley. Fortunately by this time I had regained my presence of mind and was able to hold tightly to the rope, in spite of beginning to experience a great deal of pain. At approximately the same time, however, the barrel of bricks hit the ground and the bottom fell out of the barrel. Now devoid of the weight of the bricks, that barrel weighed approximately 50 lbs. I refer you again to my weight. As you can imagine, I began a rapid descent, down the side of the building. In the vicinity of the third floor, I met the barrel coming up. This accounts for the two fractured ankles, broken tooth and several lacerations of my legs and lower body. Here my luck began to change slightly. The encounter with the barrel seemed to slow me enough to lessen my injuries when I fell into the pile of bricks and fortunately only three vertebrae were cracked. I am sorry to report, however, as I lay there on the pile of bricks, in pain, unable to move, I again lost my composure and presence of mind and let go of the rope and I lay there watching the empty barrel begin its journey back down onto me. This explains the two broken legs. I hope this answers your inquiry.”

    VTY
    Jaowr

  19. JAOI wrote: “Malcolm – Please stick with the funnies; your comments, other than funny, serve little purpose and are an annoyance.”

    But this guy’s comments are so much funnier and and a lot more annoying !! The difference is, though, Malcolm’s funnies actually make sense :-)

  20. Dear Ad Astra,

    Not only do I concur 100% with your last post, I think your last post was one of, if not THE, best post I’ve ever read.
    Bravo, Congratulations, Beautiful!
    We are on the same page even though I still believe that:
    Just because the Supreme Court renders an Opinion,
    that Opinion is not rendered constitutional. To err is human.

    I don’t like the eBay ruling – I believe it is constitutionally unlawful – but I recognize that eBay is the current law of the land, and I am out to change it one opinion at a time. And I believe the KSR decision is crazy-nuts – it invites subjective rulings – but it too is the current law of the land. And there are other Supreme Court patent rulings that cut against my patent portfolio, and I’m mad as hello – so I have no other choice than to continue the good fight.

    I will mention that the vast majority of Petitioners to the Supreme Court do not agree with Supreme Court rulings – I believe the denial rate of Petitions for Writ of Certiorari is 70:1. Moreover, I agree with Alan Shore’s view of the Honorable Supreme Court Justices, “You folks aren’t as hot as all get out.” Let’s see what President Obama does to improve our highest Court.

    Re:
    “…it does seem like there’s something logically compelling about the notion that if an inventor is granted the right to exclude, he or she should actually get to use the power of the courts to prevent people from doing something, not just to make them pay.” (1:59PM)

    Your logic is right on.

    I will continue to try to “balance” the “troll-trash-talk” propaganda – unlawfully propagated by CISCO and its cartel for patent fairness – that unfairly prejudiced the American jury pool against independent inventors to the extent that the Supreme Court made a “politically-correct” “result-oriented” eBay decision despite the specificity found in the Constitution’s patent clause.

  21. Dear Tech Spec,

    Re:
    “The US Supreme Court’s job is to INTERPRET the constitution.”

    I am constrained to disagree to this extent: The Supreme Court’s job, and every other American court’s job, is to enforce the laws of the land, including the laws laid down in the Constitution, and the other laws lawfully legislated by Congress and otherwise.

    In so far as the laws of the land are clearly specified, no interpretation is allowed!; if there be “balancing” because the law is open to interpretation (ambiguous), then, and only then, it is up to the court to interpret.

    In so far as citizens are able, it is our job to understand and interpret the Constitution — if the officials, any officials, go awry of the Constitution, it is our job to straighten them out. If you’re not up to it, that’s your problem; I am up to it.

    Despite enjoying the evening’s pleasures, I have no difficulty in asserting these truths.

    *…*…*…*…*

    Malcolm,

    Please stick with the funnies; your comments, other than funny, serve little purpose and are an annoyance.

    *…*…*…*…*

    Dear Ad Astra,

    As previously indicated, your comments require more serious consideration than other comments.

    I’d like to think about a meaningful response in the light of day tomorrow.

  22. JAOI, I’ll take on your question, “Do you agree that, Just because the Supreme Court renders an Opinion, that Opinion is not rendered constitutional.”

    My answer is that, as phrased, I can’t answer that question.

    There’s a difference between talking about how to operate within the legal system, and talking about politics as a wider philosophical issue. From the legal perspective, yes, that opinion IS rendered Constitutional just because the Supreme Court says so. They get to decide. It’s how the system works. You can try to convince them that they were wrong, but until they decide your way, their earlier decision is the law. There’s a lot of years of tradition in how the legal system works, and the reason I (and Tech Spec a bit more so) seem so frustrated is that you aren’t operating within that framework.

    From a philosophical perspective, the Constitution means what the country is willing to assent to it meaning. The fact that it has a fixed text means that, so long as the words of the text have a certain meaning to those who read it, there will be a common set of beliefs as to what the Constitution says. However, there will always be differences in understanding, because language is not precise. For those vague parts, the people of this country are generally willing to defer to a majority of the Supreme Court’s decision. It’s important to have a decision-making apparatus like that, because if there’s no one body whose view is final, you can get chaos. If the Supreme Court said something that was far enough outside of people’s understanding of the Constitution, we’d probably end up with either a Constitutional amendment to make the point more explicit, or a revolution.

    My main point in all this is that, insofar as there is a right and wrong answer about what the Constitution means, the Supreme Court gets to decide what it is. The Constitution isn’t independently powerful – it’s just a symbol of the shared values that we consider to be more important – and more permanent – than regular laws. We can say that those values should be what the Founders had when they wrote it, we can say that those values should be what we read into it now, but one way or another it’s about a set of values held by the country. I’m not feeling terribly confident that that set of values contains, or should contain, the statement “Inventors with patents should get injunctions as a matter of course”.

    I’m not saying that you can’t think that EBay was an unconstitutional decision – that’s your right. But you should recognize that, when it comes to Constitutional interpretation, your opinion is only as valuable as the number of people you can get to agree with you. That’s how politics works.

  23. The fact that an unanimous panel decided on eBay may indicate even more strongly that one who suggests the existence of “propaganda” is likely to be biased and to completely lack objectivity.

    By the way, Good comment Malcolm!

  24. Dear Tech Spec,

    eBay was unanimous!, not split!

    So, your personal observations are even more serious!

    However, I neither agree with your comment nor the Supreme Court’s unanimous eBay decision.

    You can comment further as you see fit, but reality is reality and we are both bound by it.

    Do you agree that,
    Just because the Supreme Court renders an Opinion,
    that Opinion is not rendered constitutional. To err is human.

  25. “I am Just an ordinary guy from The Bronx trying to “balance” the “troll-trash-talk” propaganda”

    By confirming the stereotype of how patent trolls view the world? As if Scott Harris isn’t already doing more than enough.

  26. JAOI, this is my last comment to you.
    The US Supreme Court’s job is to INTERPRET the constitution. IT IS THE LAW, UNTIL OVERTURNED.
    All you are saying is that you don’t agree with the decision. But so what – almost 50% of people probably feel the same way. That is why a panel is comprised of multiple justices! Don’t you get it? Many controversial cases resulted in a 5-4 split. What does that tell you? Just because you disagree with a majority decision, stop whinning that that is unconstitutional and suggesting there’s some kind of big conspiracy. That is just silly and immature. It may well be overturned someday, then the law will change.
    In the meantime, you really should go and educate yourself. Please start with the fundamentals. Again, good luck.

  27. Dear Ad Astra,

    I will study your constitutional references and try to get back to you tomorrow.

    I’ve had two martinis since about an hour ago while installing 2 additional gigabytes of RAM into my five year old + Dell XPS Dimension desktop (it came with 1 GB) to more readily accommodate Dragon naturally speaking software while other programs such as AOL etc. etc. were open.

    End note: I am Just an ordinary technically oriented inventor reared on original Star Trek, and I find it flocking amazing how far technology has gone…

  28. JAOI – again, there is no specific exception to the “exclusive right” in the Constitution. That’s not how the grants of power to Congress in Section 8 work, and it’s not relevant anyway since we’re talking about the courts (Article III), not Congress (Article I). I actually looked into this, and prior to EBay the main reason an injunction got denied was because the patentee wasn’t practicing and there was a risk of harm to public health or the environment if the injunction were to be granted. There is no explicit authority in Article III for the courts to do that. They just do, because it’s part of our centuries-old common-law tradition of what the judicial power entails. Courts of equity will always weigh the public interest against private interests. All EBay did was say that they had gone too far in the direction of private interests at the expense of public interests.

    Please explain to me this issue with patentees not having enough leverage. I assume you don’t trust a court to give you adequate damages if an infringement suit were to go to trial? Because otherwise, the threat of an infringement suit is all you need, even if damages are the only sure outcome. If it’s the case that you don’t think court-set damages will be sufficient, is that because the courts consistently undervalue patent damages, or because you’re overvaluing your patent? Do you have any data either way?

  29. Dear Ad Astra,

    Thank you for your additional comments.

    Re:
    “Were those 5% before EBay who weren’t getting injunctions having their Constitutional rights violated?”

    I guess that the denial of an injunction in 5% of the pre-eBay cases may be related to the exceptions found in the Constitution to “the exclusive Right.”

    * * * * *

    Re:
    “I don’t think that the SC could interpret 10 mi^2 as being something other than 10 mi^2, but that’s because that number is very specific”

    Dictionary definitions of “exclusive” include:

    “exclusive (noun): … a news story at first released to or reported by only one source”

    “exclusive (adj.): … limited to possession, control, or use by a single individual or group”

    “exclusive disjunction (noun): a compound proposition in logic that is true when one and only one of its constituent statements is true”

    The “exclusive Right” means the Right to exclude all but “one,” the patent owner, as stated on the cover of original “ribbon” patents and consistent with the Constitution’s Patent Clause.

    So, The number for exclusive, “one,” is also very specific.

    Where there is specificity in the Constitution, every court in the land is bound to honor it.

    * * * * *

    Re:
    “…it does seem like there’s something logically compelling about the notion that if an inventor is granted the right to exclude, he or she should actually get to use the power of the courts to prevent people from doing something, not just to make them pay.”

    Your point is well taken

    As a practical business matter, an independent inventor, under certain circumstances, has little or no leverage in negotiating a license or settling a lawsuit if the threat of an injunction is not on the table. And the huge eBay break in precedent will no doubt mean that some inventors will be cheated out of their intellectual property and die a penniless bum.

    I don’t mean to be overly dramatic, but reality is reality and it should not be denied simply because it’s unpleasant or painful to think about.

    Just because the Supreme Court renders an Opinion,
    that Opinion is not rendered constitutional. To err is human.

  30. JAOI, I appreciate that you keep coming back to this. I mean no disrespect in anything I’ve said – I sympathize with your position, because it does seem like there’s something logically compelling about the notion that if an inventor is granted the right to exclude, he or she should actually get to use the power of the courts to prevent people from doing something, not just to make them pay. What I’d like to ask you is this: Before EBay, the injunction grant rate was something like 95%. After EBay, it went to around 75%. Were those 5% before EBay who weren’t getting injunctions having their Constitutional rights violated? If not, then why does 20% make such a big difference? If so, then you should recognize that practice has not traditionally been on your side.

    Regarding the issue of Supreme Court interpretation, you seem to be assuming that there is one true interpretation of the Constitution which is correct, and the Court’s job is to find it. That was a fairly common belief for a while, but I really don’t see how it’s logically defensible. I don’t think that the SC could interpret 10 mi^2 as being something other than 10 mi^2, but that’s because that number is very specific, and there is no traditional common law interpretive issue in play. The phrase “exclusive right” is something else entirely. Injunctions are and always have been an extraordinary remedy. Courts are bad at administering things, and the prefer to simply make the violating party pay money where that can balance out the harm done. Injunctions only happen in situations where money can’t properly compensate for the harm, and/or the harm is ongoing and unlikely to stop otherwise. To go against that background rule requires a fairly explicit constitutional provision, which “exclusive right” is not. There are lots of exclusive rights in the law, but they don’t always mean you get an injunction. The fact that patents in fact do get you injunctions far more often than other rights seems to me to be the appropriate response to the language and history of the patent grant. You keep saying that patents are basically worthless without the threat of an injunction, but why do you say that? Why is money not enough to compensate the inventor, when that’s probably his main motivation anyway? I recognize that there are inventors out there for whom that isn’t the primary motivation of patenting, but frankly, that’s too bad. The patent system isn’t about rewarding any particular inventor, it’s about promoting the progress of the useful arts.

    By the way, did you know that EBay explicitly shot down the district court, which said that NPEs basically should never get injunctions? EBay seems like a win, in that regard.

  31. Dear Ad Astra & Tech Spec,

    Firstly, I apologize for my offensive remark.

    Executive Summary:
    Just because the Supreme Court renders an Opinion,
    that Opinion is not rendered constitutional. To err is human.

    Re:
    “… the core issue, which is that that we don’t think that “exclusive right” plainly means “injunction”.”

    I agree. I never meant to suggest otherwise. Perhaps we are on the same page after all.

    What started this debate were these questions I posted above:
    “What is the difference between an ‘injunction’ and a ‘cease and desist’?
    Is a ‘cease and desist’ OK, even preferable, after a patent’s validity is upheld and infringement proven after trial?”

    It is not my position that “the exclusive right” plainly means “injunction.” And I’ll note that the word “injunction” never appears in the Constitution.

    My opinion is this: If a patent is upheld as valid and infringed after litigation, absent exceptions found in the Constitution, the court should stop the infringer from infringing if the patent owner is not willing to grant the infringer a license or otherwise allow the infringer use of the patent. The court should issue an injunction or a cease-and-desist order or stop the infringement by other means within its power.

    Re:
    “But it’s not the way the Constitution is actually read by courts today.”

    While I agree that many things in the Constitution are open to a court’s interpretation or “balancing,” other things are not, at least not without a formal Amendment.

    For example, do you agree that, when the Constitution specifies in Article 1 Section 8 Clause 17, that the seat of government (Washington DC) may not exceed 10 miles square, that that specificity cannot be exceeded or “balanced” by a court or any other authority?

    Do you agree that no court could lawfully condone a military appropriation for a longer term than two years because that would contravene the specificity found in Clause 12?

    Do you agree that, in accord with Clause 8, a court should honor a patent owner’s exclusive right to practice or not practice his patented invention, and prevent others from infringing his patent if the patent’s validity is upheld?

    * * * * *

    Re:
    “… he/she doesn’t know the concept of common law case law.”

    This is what I do know:
    The Constitution represents the supreme law of the land. If the suggestion is that case law, common law or precedent can alter laws laid down in the Constitution, or laws legislated by Congress, that suggestion is, of course, mistaken.

    To further clarify:
    I am Just an ordinary guy from The Bronx trying to “balance” the “troll-trash-talk” propaganda – unlawfully propagated by CISCO and its cartel for patent fairness – that unfairly prejudiced the American jury pool against independent inventors to the extent that the Supreme Court made a “politically-correct” “result-oriented” eBay decision despite the specificity found in the Constitution’s patent clause.

    Incidentally, the preponderance of case law had been to stop infringement of a valid patent if that’s what the patent owner wanted. The eBay decision broke that well-established precedent, prejudicially, i.e., only for a certain class of inventors. That cannot be right.

    The Supreme Court missed the boat big time. An independent inventor’s patent, without the threat of an injunction, is like a revolver without bullets. Guys please, with all due respect, please wake up and smell the coffee (©¿®)™.

    Boston Legal’s Alan Shore, Esq. put it so well when he lambasted the Honorable Supreme Court Justices saying, “You folks aren’t as hot as all get out.”

    Just because the Supreme Court renders an Opinion,
    that Opinion is not rendered constitutional. To err is human.

  32. Ad Astra – You make perfect sense to me – the Nazis part included :-)

    I am inclined to think perhaps JAOI is from a civil law country?? He/she REALLY wants to one-sidedly interpret a recitation of law from whatever the source he/she can find to his/her support in such a literal way, almost as though he/she doesn’t know the concept of common law/case law.

    Oh well – we tried!

  33. JAOI, Tech Spec is right here. I applaud your looking to the Constitution for your arguments, but you still haven’t addressed the core issue, which is that that we don’t think that “exclusive right” plainly means “injunction”.

    Even given that we can plainly interpret the phrase “exclusive right” to mean “the Constitution says the inventor has the right to exclude” (which I’m not sure is the case), saying that you have the right to exclude does not imply that you can do so by any means. It is a well-established principle of jurisprudence that while you are almost always entitled to some remedy for a violation of a right, you are not entitled to all remedies. Can the Constitution be read to support what you say? Yes, it can. But it’s not the way the Constitution is actually read by courts today. You can dislike that, but you have to recognize that your view is not necessarily the only true one.

    Also, you keep bringing up those three powers of Congress as some kind of way to modify the other powers under Section 8. That’s not how it works. Congress has the power to pass legislation for the reasons enumerated in Section 8. They don’t modify each other in the way you’re implying. The balancing that Tech Spec is talking about is different, and is part of the function of courts, as well as being mandated by the statute itself. That balancing is why freedom of speech is not absolute.

    And in reference to the comment before your last, could we please not bring up Nazis? Godwin’s Law was coined for a reason, that reason being that discussions not originally about Nazis are very rarely improved by their introduction. Nobody talks rationally about Nazis, and comparing something or other, especially when that something or other is NOT genocide, to what the Nazis did almost always leads to anger and flamewars, which get us nowhere.

  34. JAOI,
    Again, I would like to suggest you to study law not just to recite fragments of the constitution out of its context. Your argumetns are really going nowhere. Good luck.

  35. Dear Ad Astra & Tech Spec,

    Re: “Mostly, I’d just like you to present a more compelling argument for your interpretation of “exclusive right” than “no reasonable person could think otherwise”.”
    &
    “Since you don’t seem to really get the concept of balancing”

    The Constitution itself provides for balancing as follows: (A) To regulate Commerce, (B) provide for the common defense, and to (C) promote the general Welfare.

    Also, please note that, Article. VI, Clause 2 says:
    “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.”

    Therefore, if the Constitution, the supreme Law of the Land, says that Inventors shall have the exclusive Right, it means that an Inventor, ANY Inventor, should be able to exclude others from practicing his/her/its invention, just as the Director of the USPTO says on the cover of every United States patent:

    “Therefore, this United States Patent Grants to the person(s) having title to this patent “the right to exclude others from making, using or selling his invention…”

    35 USC 283 was not “made in Pursuance” of the Constitution. And, since the SC eBay decision is “presumably” based on 283, it too is not “made in Pursuance” of the Constitution.

  36. Dear Ad Astra,

    Re:
    “A lot of people think otherwise – very intelligent people, people who have spent their entire lives studying the Constitution. Are they really all just either idiots or dupes of the great anti-inventor conspiracy?”

    Powerful anti-patent propaganda, promoted by a cartel of anti-patent international patent infringers in a hugely expensive effort over more than half a decade, is an effective tool to influence even highly intelligent people.

    Look what happened in Germany!, about 70 years ago.

    With all due respect, I don’t think you are giving my opinion, in its tedious detail, sufficient review.

    Let’s try again when we are both fresh — and consider, reconsider comments a-fresh, and I’ll do the same regarding your thoughts.

    I do appreciate your comments — thank you, and bless you too.

    To be truthful, I am a bit plastered :-) good night — sleep well — pleasant dreams…

  37. JAOI – you’re not really addressing my objection. If I thought that the Constitution required injunctions, most of your post would be relevant, but I don’t. The closest you came to answering the question I put to you (other than saying you’d consider the quote I cited), was this:

    “The constitutional statutory patent provision, ‘the exclusive Right’, cannot and does not mean that a given class of patent owners can exclude others from infringing, and another class of patent owners cannot. That interpretation condones selective (prejudicial) ‘compulsory licensing.’

    Can anybody honestly think that’s what the constitutional statutory patent provision, ‘the exclusive Right’, means?”

    In a sense, yes, I do believe that. I believe that the courts have the power to give or withhold injunctions to or from different classes of plaintiffs based on whether or not they fulfill the equitable test for injunctions. As I said, the phrase “exclusive right” does not necessarily mean that you get any possible remedy against someone violating that right. As Tech Spec noted earlier, even the most explicitly framed rules in the Bill of Rights have exceptions, because it would be unworkable to read them otherwise. The Founders certainly didn’t read them that way. There is no reason for us to either. You have to admit that “Congress shall make no law . . abridging the freedom of speech” is a heck of a lot more explicit than “Exclusive right to their . . . discoveries”, and yet I’m guessing that you don’t object to the existence of obscenity laws, treason laws, the FCC…

    Mostly, I’d just like you to present a more compelling argument for your interpretation of “exclusive right” than “no reasonable person could think otherwise”. A lot of people think otherwise – very intelligent people, people who have spent their entire lives studying the Constitution. Are they really all just either idiots or dupes of the great anti-inventor conspiracy?

  38. Dear Tech Spec,

    Thanks again for your comments – I think we cross-posted and cross-posted again.
    I think I missed your comment about this:

    Do you think this case was in the public interest?:
    link to en.wikipedia.org

    Certainly, you are right, that “Balancing those rights is the key.”

    But the I do not think the benefit of balancing trumps a specific Constitutional statutory provision to protect “Inventors” and their “exclusive Right”s.

    The public gets the full benefit of an Inventor’s patent timely, i.e., after “limited Times”, which is properly established by Congress, again, specifically according to the Constitutional statute

    I certainly appreciate your good wishes – Bless you.

  39. JAOI,
    One more thing -
    Since you don’t seem to really get the concept of balancing, here is good news for you:

    You wrote: “The eBay decision stinks not only because it is in conflict with this Constitutional provision, but it does so PREJUDICIALLY against a particular class of Inventors, independent inventors, those who need “the exclusive Right” the most to deal with organized international patent infringers.”

    Actually, in such a scenario, balancing will most likely tip in your favor because you can argue that you, as an independent inventor, will suffer irreparable harm unless an injunction is granted. Beauty of the balancing test is that it takes into account various factual situations. Thus, even for an identical infringing act by the same defendant, one plaintiff may get an injunction, while another may be only granted money damage.

    Perhaps you can start by trying to understand the fundamental concept of balancing tests?? These things come up all the time in con law. Maybe if you study this outside the patent law, you may be able to be a bit more objective. Again, good luck to you.

  40. Dear Tech Spec,

    I agree with you to some extent; however, I’ve addressed your reservations – perhaps you haven’t read this part of my dissenting opinion:

    Most of the 18 Clauses of Article I, §8 of the Constitution allow Congress discretion to set the limits for the Powers given to it. For example, the limits of the following Powers granted to Congress are left to Congress’s discretion: taxes; duties; pay debts; borrow money; regulate commerce; rules for naturalization and bankruptcies; coin money; punishments; rules governing military bodies; and to make laws as necessary to fulfill its “Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department thereof.” (Clause 18).

    However, three Clauses of Article I, §8 of the Constitution contain specific enumerated limits. The limits in these three Clauses have never been amended.

    The limit in Clause 17 is: “100”:
    The limit in Clause 12 is: “two”;
    The limit in Clause 8 is: “one”;
    It has never even been suggested that the Framers of the Constitution meant for these three specific limits to be interpreted in any way other than plainly, naturally, by the numbers; and so, historically, until the Supreme Court eBay ruling, they have been interpreted literally.
    — — — — —
    Clause 17: “The Congress shall have Power …
    “To exercise exclusive Legislation in all Cases whatsoever, over such District
    (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, …”
    Washington D.C. is 68 sq. miles; “ten Miles square” = 100 square miles.

    Clause 12: “The Congress shall have Power …
    “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;”
    Congress’s military appropriations (which may include appropriations to pay for patent royalties, discussed below) have never exceeded two years.

    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;”
    The “exclusive Right” means the Right to exclude all but “one,” the inventor, as stated on the cover of original “ribbon” patents.
    — — — — —
    The exclusive Right Yes, But Only for a Limited Time …

    The Framers give Congress the means and the Power up-front to regulate the “exclusive Right.” By including in Clause 8, “securing for limited Times,” Congress can pass patent statutes that grant more or less time to a patent, and, by statute, Congress has done so. And, also by statute, Congress has the Power to create different types of patents with different lifetimes, as they have done for Design Patents. Congress has also created Trademark statutes that live somewhere between Copyrights and Design patents.

    Thus, Congress has absolute Constitutional Power to administer our patent system, and it has rightly (and wrongly) done so. Further, within the Constitution itself, one finds authority for Congress to exercise its Power to moderate “the exclusive Right” under certain constitutionally certified circumstances:

    (A) To regulate Commerce,
    (B) provide for the common defense, and to
    (C) promote the general Welfare.

    Article I, §8, Clause 3:
    “The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”
    Thus, in its body of antitrust statutes, Congress imposes certain limits when exercising a patent’s “exclusive Rights” in order to regulate Commerce.
    The Preamble:
    “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
    Eminent domain power:
    When exercised over a patent’s “exclusive Rights,” for national security and defense, Eminent Domain power is consistent with the Preamble, to “provide for the common defence.” Thus, military appropriations bills in peacetime and wartime routinely include allocations for patent royalties.

    If an independent inventor discovered and patented a vaccine for Anthrax, but refused to license or manufacture it for his anti-American religious reasons, eminent domain could absolutely and reasonably be asserted to “promote the general Welfare.”

  41. Dear Ad Astra,

    Here is the full paragraph of the SC eBay decision from which you quote:

    “To be sure, the Patent Act also declares that “patents shall have the attributes of personal property,” §261, including “THE RIGHT TO EXCLUDE OTHERS FROM MAKING, USING, OFFERING FOR SALE, OR SELLING THE INVENTION,” §154(a)(1). According to the Court of Appeals, this statutory right to exclude alone justifies its general rule in favor of permanent injunctive relief. 401 F. 3d, at 1338. But the creation of a right is distinct from the provision of remedies for violations of that right. [[A]] Indeed, the Patent Act itself indicates that patents shall have the attributes of personal property “[s]ubject to the provisions of this title,” 35 U. S. C. §261, [[B]] including, presumably, the provision that injunctive relief “may” issue only “in accordance with the principles of equity,” §283.” (emp. added)

    I don’t know what to make of “the creation of a right is distinct from the provision of remedies for violations of that right.” but I’ll think about it. Of hand, gobbledygook or obfuscation comes to mind; and it seems to beg the real issue.

    But I’ll parse that paragraph after your quote further because other parts are clear and simple for this ordinary inventor to understand, and they and are essential to my dissenting opinion regarding the SC eBay decision.

    [[A]] “Indeed, the Patent Act itself indicates that patents shall have the attributes of personal property “[s]ubject to the provisions of this title,” 35 U. S. C. §261, …”

    [[A]] cites 35 USC 261 which is consistent with Clause 8. 261 says:
    “Subject to the provisions of this title, patents shall have the attributes of personal property … patents … shall be assignable”.

    This constitutional statutory patent provision, “the exclusive Right”, has this attribute – it “shall be assignable” – in common with personal property. As stated, this attribute is “Subject to the provisions of this title [261]”.

    Fine by me; but it is clear that that is not to say intellectual property is equal to personal property, by no means.

    The constitutional statutory patent provision, “the exclusive Right” is best defined and understood as it has always been historically, i.e., “the right to exclude”, in accord with the Constitution and in accord with 35 USC 154 “… the right to exclude others from making, using, offering for sale, or selling …”.

    Whether the constitutional statutory patent provision, “the exclusive Right” is or is not this kind or that kind of property Right is not the issue; “the exclusive Right” is simply “the right to exclude” within the specific bounds of the Constitution – what more need be said?

    However, this part of the Supreme Court’s paragraph is problematic:
    [[B]] including, presumably, the provision that injunctive relief “may” issue only “in accordance with the principles of equity,” §283.”

    This “presumption,” stemming from 35 USC 283, is obviously in tension with the Constitution’s patent clause. 283 says:
    “The several courts … 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.”

    Since when can any court, even the Supreme Court, base the heart of its decision on a “presumption”? That’s preposterous.

    Since when can any court, even the Supreme Court, override the clear, unambiguous meaning of an explicit statutory provision of the Constitution? As specified in the Constitution, that “interpretation” would require a (formal) Amendment

    The constitutional statutory patent provision, “the exclusive Right”, cannot and does not mean that a given class of patent owners can exclude others from infringing, and another class of patent owners cannot. That interpretation condones selective (prejudicial) “compulsory licensing.”

    Can anybody honestly think that’s what the constitutional statutory patent provision, “the exclusive Right”, means? In short, Congress screwed up, and the Supreme Court missed the boat. Here’s the why of it:

    The Supreme Court missed the boat because of years of concentrated multi-multi-million dollar “troll-trash-talk” propaganda unlawfully propagated by CISCO and its cartel for patent fairness –this global band of international patent “thieves” (I’ll refrain from using the term “pirates”) unfairly prejudiced the entire American “jury pool” against independent inventors – to the extent that our Supreme Court made a “politically-correct” “result-oriented” eBay decision, despite it being constitutionally unlawful (perhaps unwittingly – which may be even worse than wittingly – as I mentioned above, ignorance in high places is particularly dangerous).

    I’m going to watch the rest of 60 minutes (I haven’t proof read this).

  42. JAOI -
    I agree with Ad Astra and others.
    Different people have different opinions about how the “balancing” should come out in the eBay case, which is to be expected – any question of law is up to interpretation, obviously. Your arguments, though, simply don’t make sense. You seem to pick out a phrase or provision from a statute or the constitution and want it to mean so literally as to what it SAYS in such an isolated way. Law is read in a context. I wouldn’t be surprised if you start arguing that ANY person should be allowed to say ANYTHING ANYWHERE without ANY restrictions WHAT-SO-EVER because the constitution gives us the right to free speech. Or, you may well be saying ANYONE of ANY age with ANY background should be able to own a weapon. I don’t know how old you are (college student?), but I guess my suggestion to you would be to try getting yourself educated in a bit more all-round kind of way. Good luck to you.

  43. JAOI, I think that the fundamental disagreement here is that Tech Spec and Noise above Law don’t necessarily agree with you that “exclusive right” unambiguously means “right to exclude by any means necessary”.

    Constitutional interpretation is a complicated business. All that can be unambiguously drawn from “exclusive right”, to my mind, is that inventors get some power to prevent others from using the invention. The extent of that power is still left to the discretion of Congress, to set in whatever way best promotes the progress of the useful arts. That power can include injunctions, money damages, or various other schemes, as Congress may determine. Where Congress hasn’t made the process clear, reverting to traditional principles of what remedies should be (which is all EBay was doing, as I read it) seems like the best policy.

    How would you respond to the Court’s assertion that “the creation of a right is distinct from the provision of remedies for violations of that right”?

  44. Dear Tech Spec,

    Thanks again for your comment – I think we cross-posted.

    Do you think this case was in the public interest?:
    link to en.wikipedia.org

    Certainly, you are right, that “Balancing those rights is the key.”

    But the I do not think the benefit of balancing trumps a specific Constitutional statutory provision to protect “Inventors” and their (and others’) “private property.”

    The public gets the full benefit of an Inventor’s patent timely, i.e., after “limited Times”, which is properly established by Congress, again, specifically according to the Constitutional statute.

    cc: Noise above the Law

  45. Dear Tech Spec,

    Subject, “Private property,” comprised of:
    (i) personal property,
    (ii) real property; and
    (iii) intellectual property (“IP”).

    You wrote this on Friday:
    “Patent rights are more like personal property than like real property. For the latter, equitable relief is easier to obtain, on the basis that real property is unique and thus irreplaceable. By contrast, most personal properties are considered replaceable – enhance the availability of remedies at law (damage). So if patent ownership is like personal property ownership, I suppose the presumption is that money damage should be adequate, absent evidence to the contrary.”

    I don’t claim to be up to speed regarding the distinctions between personal property and real property. However, I do know some about intellectual property, and, in particular, I have studied the Constitution’s statutory provision for “Inventors”:

    “Article I, Section. 8 … The Congress shall have Power … Clause 8:
    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;”

    Congress elected to use its Constitutional Power to enact a body of intellectual property statutes, Title 35 of the U.S. Code – calling the title, Patents – to provide for the Constitution’s statutory “exclusive Right” provision for “Inventors”.

    No one can deny the fact that INTELLECTUAL PROPERTY, IP, IS A DISTINCT FORM OF PROPERTY, neither equal to personal property nor equal to real property. However, there is no reason that IP cannot share some attributes of personal and/or real property.

    The “exclusive Right,” an “intellectual property,” for Inventors is statutorily provided for in the Constitutional. The other form of property specifically provided for in the Constitution is “private property”; the terms “personal property” and “real property” are not found in the Constitution. “Private property” subsumes “personal property,” “real property” and “intellectual property.”

    The only lawful way under the Constitution to change the Constitution’s statutory “exclusive Right” provision for “Inventors” is by (formal) Amendment. The eBay decision stinks not only because it is in conflict with this Constitutional provision, but it does so PREJUDICIALLY against a particular class of Inventors, independent inventors, those who need “the exclusive Right” the most to deal with organized international patent infringers.

    I’ve been meaning to ask, did any injunctions get lifted after eBay?

    cc: Noise above Law

  46. JAOI – Just try to think of it this way -
    All those provisions you cited should be read with a proviso that “to the extent that it is consistent with other law plus to the extent that it does not interfere with public interest.” This is sometimes expressly included in a statute but other times inherently understood.
    Law is about protecting the right of all sides, not just patent owners. Balancing those rights is the key.

  47. Dear Tech Spec,

    Re: “…real property is unique and thus irreplaceable.”

    Isn’t your definition of “real property” the epitome of a patented invention?

    An invention must by USC* be unique to be patentable, and thus the patent of a given invention is by definition irreplaceable.

    I do agree that, in some regards, for example, in regard to being assignable, under
    35 USC 261: “Subject to the provisions of this title, patents shall have the attributes of personal property … patents … shall be assignable”.

    patents may share a “personal property” attribute.

    But that doesn’t negate
    35 USC 154: “… the right to exclude others from making, using, offering for sale, or selling …”

    Both 261 and 154 are consistent with Constitution.

    However, 35 USC 283 is not consistent with Constitution:
    “The several courts … 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 U.S.C. 101 Inventions patentable.
    Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

  48. Dear Tech Spec & Noise above Law,

    Somehow, I think we may be missing some of each others’ points.

    For example, my view encompasses the built-into-the-Constitution, non-absolute meaning in “the exclusive Right”.

    However, I see no wiggly room in the intended meaning of “the exclusive Right”.

  49. No property protection is absolute. I don’t think you can see things in such a black-and-white manner. That is why we apply appropriate tests to determine for each case before court how which way overall balance tips towards. The eBay decision by no means rejected the notion that an injunction is an appropriate relief in some infringement cases. The decision only told the lower court to apply the test and see how it comes out.

  50. Dear Noise above Law,

    Thank you for your comment.

    Re: “Can you distinguish the exclusive right from personal property rights – other than conjecture about what the Framers must have had in mind?”

    Why should one “…distinguish the exclusive right from personal property rights -”? What logic, in regard to the meaning of this Constitutional law (the Supreme law of the land*), “…the exclusive Right…”, is there to that?

    Moreover, what about “…the exclusive Right…” is conjecture? It seems to me the meaning of what the Framers wrote is plain and unambiguous.

    Isn’t it clear that any other view is facially flawed – tantamount to compulsory licensing for patents owned by a select group of patent owners, and that certainly is not what the Framers had in mind – their language cannot fairly be interpreted so.

    *
    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.

  51. JAOI,

    Perhaps you can create a website that encapsulates your voluminous argument that is spread over the many blog pages? It would be much easier to reference newcomers to what some of us have seen in so many posts.

    Mind you, I have not decided whether I agree with your view or not. Typically my concern has been with the perverters of Law that want to implement their agendas at the risk of this great nation, and I have not contemplated your cause to a significant degree.

    I think TechSpec makes a compelling argument aginst your stand. It is interesting that you come back with, and ultimately fully rest your point on, the idea that the exclusive right (by Constitution) is somehow different than personal property rights. If there is no difference, you have no argument. If there is a difference, then your constitutional reference may (mind you only may) make some leeway. Can you distinguish the exclusive right from personal proprty rights – other than conjecture about what the Framers must have had in mind?

  52. Dear Tech Spec,

    Again, I appreciate your explanation.

    With all due respect, in essence, the eBay Court based its eBay decision on 35 USC 283. The Supreme Court’s faulty argument is found in this excerpt from the USSC’s Merc v eBay decision on page 3:

    “To be sure, the Patent Act also declares that ‘patents shall have the attributes of personal property,’ §261, including ‘the right to exclude others from making, using, offering for sale, or selling the invention,’ §154(a)(1). According to the Court of Appeals, this statutory right to exclude alone justifies its general rule in favor of permanent injunctive relief. 401 F. 3d, at 1338. But the creation of a right is distinct from the provision of remedies for violations of that right. Indeed, the Patent Act itself indicates that patents shall have the attributes of personal property ‘[s]ubject to the provisions of this title,’ 35 U. S. C. §261, including, presumably, the provision that injunctive relief ‘may’ issue only “in accordance with the principles of equity,” §283.” (emphasis added)

    35 USC 283 is in tension with the Constitution:

    “Article I, Section. 8 … The Congress shall have Power … Clause 8:
    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;”

    Moreover, isn’t your view tantamount to compulsory licensing for patents owned by a select group of patent owners?, and that certainly is not what the Framers had in mind – their language cannot fairly be interpreted so.

    Also, please see my comments from Mar 11, 2009 at 03:34 PM on this link and elsewhere:

    link to patentlyo.com

  53. Just an ordinary inventor(TM) – Thanks for your comments. I, unlike many patent attorneys, personally think that the eBay decision is in line with the traditional principles of equity. The problem I see it is the fact that the CAFC had so far diverted from the “rest” of law related with equitable remedies that we as patent practitionaers got so used to presuming injunctive relief as a remedy when infringement is shown almost as an automatic default remedy. Historically, however, equitable remedies are considered an extraordinary form of relief that is reserved for extraordinary situations (where no amount of money can substitute). In a sense, the eBay court attempted to “bring back” the well-settled law into patent cases. I suppose it’s all part of the series of cases we have been seeing recently that demonstrates tension between the supreme court and the CAFC, where the supreme court feels that the CAFC has gone its own way too much and disregarding certain authority.
    There is definitely competing factors between what you are calling “fundamental” property rights and the basis of equitable relief which I described above. I guess the discrepancy comes from the notion that property rights associated with patent ownership are “absolute.” Clearly, the eBay court thinks otherwie. Patent rights are more like personal property than like real property. For the latter, equitable relief is easier to obtain, on the basis that real property is unique and thus ireplaceable. By contrast, most personal properties are considered replaceable – ehance the availability of remedies at law (damage). So if patent ownership is like personal property ownership, I suppose the presumption is that money damage should be adequate, absent evidence to the contrary.

  54. Dear Tech Spec,

    Thanks for the explanation.

    I’m leaving my office shortly, so I won’t be able to follow up today, but I have another question:

    Do you think the SC eBay decision is constitutionally unlawful in that, it prejudicially denies “the exclusive Right” to a select class of inventors?

    I harp on this faulty SC eBay decision because it is so fundamental, and:

    a) a patent w/o a threat of an injunction is like a revolver w/o bullets;

    b) it encourages litigation vs. reasonable settlement when there is a disparity between the patent owner and the alleged infringer; and

    c) “troll-trash-talk” propaganda unlawfully propagated by CISCO and its cartel for patent fairness unfairly prejudiced the American jury pool against independent inventors to the extent the SC made a “politically-correct” “result-oriented” eBay decision despite it being constitutionally unlawful (perhaps unwittingly – which may be even worse than wittingly – ignorance in high places is dangerous).

  55. Dennis, I don’t think Judge Posner is suggesting to omit the ieereparable injury element in determining whether to grant a permanant injunction. The test for preliminary injunctions considers inury during the period up to a trial on the merits. By contrast, for permanent injunction situations, you are talking about any future time (after full adjudication).

  56. Under the principles of equity, “inadequacy of legal remedies” is an absolute prerequisite for granting equitable relief. On the other hand, the “irreparable injury” factor is used for balancing hardship between the parties. This factor often relates to “timing.” If a certain event is imminent, the court is likely to grant a pretrial relief (TRO or preliminary injunction) until the issue can be fully adjudicated. This is where “irreparable injury” comes in. If there is little urgency, the court will prpobably deny a pretrial injunction but simply wait for a trial. The underlying issue of the dispute may be identical in either scenarios. That is, plaintiff may not be compensated by a damage. It’s a matter of timing, or urgency.

  57. Just an ordinary inventor(TM) – I think “cease and desist” is much broader than an injunction. A C & D may be requested not only by a judge by anyone. In the latter case, it’s not a court order and therefore the recipient is not held in conpempt if violated. Depending on the context, however, a C&D may represent a TRO, preliminary injunction or a permanent injunction.

  58. The “irreparable injury” factor required for granting a preliminary injunction has to do with injury likely to be incurred to the plaintiff if a preliminary injunction is denied, during the time of the request and a trial on the merits. Basically, this is asking whether an immediate action is required (injunctive relief) to preserve the status quo. For any equitable remedies, inadequacy at law is a prerequisite.

  59. My best guess is that the “inadequate remedy at law” prong is a vestige from the days of the English courts of Equity. In order to even have your case in them, you had to first show money damages weren’t enough. In other words, it can act as the coarse funnel and screen out claims for money damages only.

    For the most part, it seems like irreparable harm is a subset of inadequate remedy at law (e.g. all irreparable harms result in inadequate remedy)

    In summary — and to hopefully provide an answer to Dennis’ question — while the two prongs are highly similar and related, it is possible to have an injury that money can’t compensate for, but does not rise to the level of substantial (and therefore be considered “irreparable”).

  60. On your first question, there is at least a historical difference outside the IP context. While we usually think of remedies at law being damages, historically you could get injunction-like relief at law through devices such as replevin. So if you could get your property back through replevin, you would be suffering irreparable harm from its deprivation, but have an adequate remedy at law. See Ottoman Empire v. Providence Tool Co., 23 F. 572 (C.C.E.D.N.Y. 1883).

  61. Dennis, I don’t think that is a fair quote of Colleen’s article. The exact quote is: “many blame nonpracticing entities (“NPEs”) for a majority of the problems with the patent system. But they bring only a minority of patent suits.” There is only a slight tension in the two concepts. It is perfectly easy to understand how 17% of a population can cause the majority of even all the problems within that population. For example, fewer than 17% of society is comprised of criminals; that doesn’t mean that crime is not a problem.

  62. @Anonnnnon

    Seems like some of those issues should be solvable by contract. It’s not like moral hazard isn’t a big issue for other types of risk that are insured. Isn’t there insurance for product liability?

    For example, why not put something in the contract that requires the insured to get an opinion of counsel in response to every threat letter that the insurer has to sign off on, and has the option to adjust the premiums in response to? In other words, tie the insurance contract more closely to the specific threats of litigation?

  63. I reread the statistics and my above post was wrong as was the abstract.

    NPE’s filed against almost three times more TOTAL DEFENDANTS in high tech patent suits (26%) than individuals (8%) and non-profits (1%) combined (not just financial cases).

    Basically, the key statistic is that one quarter of all high tech patent sued defendants for the period 2000-2008 were sued by NPE’s.

  64. The abstract was badly written in this regard. Looking at the actual article, NPE’s filed nearly 3 times as many financial suits (26%) as individuals (8%) and non-profits combined (1%).

  65. inviting body punches,

    “I don’t understand what this means–anyone? Wrong word in the abstract?”

    I suspect that one of the “financial patent NPE suits” phases met to include “non.” That is, one of the phrases should probably read “non-financial patent NPE suits.”

  66. From the abstract of Chien’s article–

    “I also report the variation by industry based on the absolute number of suits—the share of financial patent NPE suits (26%) was nearly
    triple that of financial patent NPE suits (9%).”

    I don’t understand what this means–anyone? Wrong word in the abstract?

  67. Professor Chien’s article is very enlightning. 17% of the high-tech patent suits being brought by NPE’s in the last eight years. For anyone who has worked in-house or works in-house, that statistic probably does not seem like a trivial number or minor nuisance to them. May be the difference between seeing your family every now and then, and not.

  68. What is the difference between an “injunction” and a “cease and desist”?

    Is a “cease and desist” OK, even preferable, after a patent’s validity is upheld and infringement proven after trial?

  69. Dear West Coast Guy,

    I exercised restraint as requested.

    * * * * *

    Dear staff,

    Thank you. I could not have said it any better.

  70. any such test as “Irreparable injury” is improper. the constitution grants exclusive use to the inventor. once infringement is found the only recourse for the court is to grant an injunction. does the constitution mean anything today?? if not, then neither does the government as it derives all legal authority from it.

  71. Could “irreparable injury” be those intangible injuries such as an injury to goodwill which might be difficult to quantity? The inability to establish dominance in the marketplace for the invention which the monopoly of the patent provides? The inability to create a high barrier to entry once the patent expires?

    My comments are based on my thoughts about Xerox copiers, the dominance enjoyed by Xerox over the years, and the brand it was able to establish, all of these factors used to form a high barrier of entry against other copy machine producers once the patent expired.

  72. Re: “it appears that Judge Posner would get rid of “irreparable injury” as a separate element of permanent injunctive relief. Yet the Supreme Court chose to keep it on the list. I’m wondering why?”
    Four possibilities? Merely because older cases used both terms?, because they DID want to encompass preliminary injunctions?, and/or to cover grounds for D.C. STAYING of injunctions during appeals? [as was the case in Ebay itself], or, a mistake?

  73. Some circuits collapse the “irreparable harm” and “inadequate remedy at law” into a single inquiry, i.e. an injury is irreparable precisely because there is no adequate remedy at law. The DC Circuit, however, distinguished “irreparable injury” as a distinct inquiry, focusing on the quality or severity of the harm, while the “inadequate remedy” prong looks to whether there are alternative modes of relief available, however serious the injury.

  74. DC,

    I think the answer in quite simple. Patents should be treated like any other subject matter under the law. The courts should give no special or preferred treatment to patents. Injunctive relief is well-known, the four-element test is well-established, and courts should not fashion a different test just because the subject matter relates to patents even if one of the elements seems futile.

    Note to JAOI: For this instance, please refrain. We have discussed this before. You know my position, I know yours, and neither of us has convinced the other.

  75. Sid – Thanks for your comment and the cite to Judge Posner’s decision. In Walgreen, it apears that Judge Posner would get rid of “irreparable injury” as a separate element of permanent injunctive relief. Yet the Supreme Court chose to keep it on the list. I’m wondering why?

  76. There seems to be a considerable inconsistency in NPE impact depending on whether you just count the total number of suits filed, or, much more realistically, the total number of major defendants sued or threatened.

  77. Adequate remedy and irreparable harm conflate for permanent injunctions. Here’s what Judge Posner said on the matter in Walgreen v. Sara Creek, 966 F.2d 273: “The plaintiff who seeks an injunction has the burden of persuasion–damages are the norm, so the plaintiff must show why his case is abnormal. But when, as in this case, the issue is whether to grant a permanent injunction, not whether to grant a temporary one, the burden is to show that damages are inadequate, not that the denial of the injunction will work irreparable harm. “Irreparable” in the injunction context means not rectifiable by the entry of a final judgment. Diginet, Inc. v. Western Union ATS, Inc., 958 F.2d 1388, 1393 (7th Cir.1992); Vogel v. American Society of Appraisers, 744 F.2d 598, 599 (7th Cir.1984). It has nothing to do with whether to grant a permanent injunction, which, in the usual case anyway, is the final judgment. The use of “irreparable harm” or “irreparable injury” as synonyms for inadequate remedy at law is a confusing usage. It should be avoided. Owen M. Fiss & Doug Rendleman, Injunctions 59 (2d ed. 1984).”

  78. NPE insurance is unlikely to take off, as you face a huge selection bias (only those companies most likely to infringe a patent will seek patent insurance). And unlikely say life or medical insurance, where you can have a questionare and doctor exam identify with reasonable success a persons health, it is far more expensive to identify with reasonable success a companies likelihood of being successfully sued by a NPE.

    Once the insurance issues, you also have modified their risk considerations. A company with the insurance is more likely to take the riskier product design decisions that lead to an infringement suit.

    In order to deal with these effects the insurance needs to be sold at a premium.

    The premium is likely so high that few customers would be interested. As a result while the potential market is huge, the actual market (and hence potential profits) for the insurance company may not be worth the costs of entering the market.

  79. You know it occurred to me today that all that’s missing for the NPE segment of the patent litigation market to turn into something like shareholder derivative suit litigation market is insurance. Why don’t the big insurance companies just write NPE policies?

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