Duhn Oil Tool, Inc. v. Cooper Cameron Corp (Fed. Cir. 2010) (nonprecedential)
In a rare appeal from the Eastern District of California, the Federal Circuit has vacated the lower court’s order of preliminary injunctive relief. Duhn Oil’s patent covers a “frac mandrel” or tool for isolating the head of an oil or natural gas well. Cooper Cameron’s version is alleged to infringe when its lockscrews are engaged during installation.
Appellate Jurisdiction over Preliminary Injunction Orders: As an initial matter, the parties argued over whether the court held jurisdiction over the interlocutory appeal since the defendant (Cameron) had previously volunteered to halt the uses covered by the preliminary injunction. On appeal, the Federal Circuit found jurisdiction clearly granted by 28 U.S.C. § 1292 as interpreted by the Federal Circuit. “[I]f the district court’s order expressly grants an injunction, the order is appealable under § 1292(a)(1), without regard to whether the appellant is able to demonstrate serious or irreparable consequences.” Quoting Cross Med. v. Medtronic, 424 F.3d 1293 (Fed. Cir. 2005).
When does an order become an injunction?: A court must make particular findings before it can order preliminary injunctive relief. However, the court has much more leeway when making orders that relate more to the court proceedings such as orders for discovery, preservation of evidence, compelling witnesses, etc. This case raises, but does not answer the question of where the line is drawn between ordinary orders and preliminary injunctions.
Based on its opinion, the district court clearly believed that it had not issued a preliminary injunction. The opinion expressly held that “issuance of a preliminary injunction at this time would not be a measured and appropriate exercise of equitable discretion on the present evidentiary record.” Although it generally denied relief, the court did make a series of orders relating to Cooper Cameron’s “accounting practices.” These accounting practices primarily included maintaining specific evidence regarding equipment orders, items sold, and installation instructions given. The order also granted Duhn the right to photograph newly installed equipment. In addition, the court ordered that Cameron “provide instructions to its frac mandrel customers, which unambiguously state that the lockscrews are not to be engaged during installation or use of the frac mandrel.”
The Federal Circuit focused on the final requirement that Cameron provide installation instructions to its customers and classified that requirement as an injunction because it “specifically imposed . . . an affirmative obligation on Cameron . . . to prohibit Cameron from further allegedly infringing uses.”
The lower court had not intended to issue preliminary injunctive relief and had not specifically found either a likelihood of success on the merits nor irreparable harm absent injunctive relief. Therefore, the injunction was vacated on appeal.
In this case, there were insufficient grounds for the court to enjoin Cameron. A preliminary injunction requires the moving party to show both likelihood of success on the merits, and irreparable harm unless the injunction issues. The district court identified “strongly conflicting evidence” about the possible frequency of Cameron’s future infringement, and the absence of “a sufficient showing for injunctive relief of the scope and of the nature, [sic] including the notice requirement that Plaintiffs are seeking.” Duhn identifies no irreparable harm that it would suffer without the court’s order, and does not cross-appeal the denial of the broader injunctive relief it proposed. For these reasons alone, the injunction was improper. Therefore, we decline Cameron’s invitation to address invalidity and noninfringement in the first instance.
Vacated and Remanded.
Notes & Cases On Point:
- “[F]or purposes of appeal, requiring a party to do or refrain from doing something that is an integral part of the very matter in litigation….” Moore’s Federal Practice, ¶ 65.21 (1989). Quoted in NTN Bearing Corp. of Amer. v. U.S., 892 F.2d 1004, 1005-06 (Fed. Cir. 1989) (ITC’s stoppage of the collection of import duties was an injunction) and Norcal/Crosetti Foods Inc., v. U.S., 963 F.2d 356, 358 (Fed. Cir. 1992) (lower court’s requirement of marking of imported produce was an injunction).
- Types of non-injunctive orders include for the purposes of Section 1292(a) include “temporary restraining orders, orders regulating procedural matters, and security orders.” Wright & Miller, 16 Fed. Prac. & Proc. Juris. § 3922 (2d ed.) (Orders Not Constituting Injunctions). Wright and Miller reluctantly offer the definition of a Section 1292(a)(1) “injunction” as embracing “orders that are directed to a party, enforceable by contempt, and designed to accord or protect ‘some or all of the substantive relief sought by a complaint’ in more than temporary fashion.”
- Holmes v. Bendix Corp., 713 F.2d 792 (Fed. Cir. 1983) (“an appellant from an interlocutory adverse Rule 56 decision must point out something he said or did to alert the court that it would be passing indirectly on the availability of injunctive relief. Otherwise, the congressional care in allowing appeals from interlocutory decisions denying injunctive relief, and not allowing them for appeals from summary judgments, or from declaratory judgments (unless disposing of the whole case), is made meaningless.”).
- Woodard v. Sage Products, Inc., 818 F.2d 841 (Fed. Cir. 1987) (“an interlocutory appeal under section 1292(a)(1) requires (a) that the order be injunctive in nature, (b) that it cause a serious, if not irreparable, consequence, and (c) that the order can be effectually challenged only by immediate appeal.”)
Posted by: Wally | Mar 30, 2010 at 07:40 AM: “AI, while you’re preparing for Bilski, gloat on Myriad for a while: “because the claimed comparisons of DNA sequences are abstract mental processes, they also constitute unpatentable subject matter under Section 101.”
On the day when the Large Hadron Collider smashes protons, and sets new records we have some caveman hoping the SCOTUS rules technological processes are abstract and unpatentable subject matter.
That would be even more inane as believing there is no Constitutional Right to a patent. And even you Wally Sparks knows better to try and argue that, less you get smacked down like the rest.
See ya on Bilski day!
Wally, this is why I’m hooked on this blog. Occasionally contributions like yours come along and then, without consciously deciding to do so, I move my jaw limb, and stimulate various muscles, and laugh out loud.
No Max, regardless of what Bilski holds, AI will use his mobile goalpost system (patent pending) to change his position so that he can declare victory.
AI, while you’re preparing for Bilski, gloat on Myriad for a while: “because the claimed comparisons of DNA sequences are abstract mental processes, they also constitute unpatentable subject matter under Section 101.” Guess they should have claimed moving their arms while comparing? Oh noes!
This is just to test how much trust I can put on statements made by AI. This one for example, from yesterday:
“Now the thread is officially closed.”
I conclude that the thread he is focussed on must be a conversation he is having inside his head, rather than the real one running here.
I gather that issue of the Bilski opinions is imminent. If the event fails to live up to AI’s expectations, then perhaps he will turn away in disgust (and, in so doing, close the corresponding thread even before it opens).
Posted by: IANAE | Mar 27, 2010 at 03:23 PM: That doesn’t stop AI exercising his constitutional right to be wrong out loud in public, so how’s about we all let it go?
IANAE,
We all have let it go long long ago. Every esteemed and respected Patent professional and Actual Inventor accepts the Constitutionality of the Intellectual property clause, of the US Constitution.
What I suggest you let go is your inane idea that the IP Clause only relates to free speech.
Start by reading Federalist 10. That Madison was a smart guy that figured all this out long ago.
Now the thread is officially closed.
Next up, the Bilski smack down during which I will be back to gloat 😉
Ping, Pong, Truff whatever…… Make up all the the new alias you want. And type as many irrelevant remarks as your bored brain can produce.
But the one thing you CAN’T do is cite any Supreme Court decision, congressional act, or historical scholar that will say the intellectual property clause of the Constitution is invalid.
Yes, you have loss this debate and the Constitutional Right to a Patent remains, shining, amazing, in all its glory.
Stick your fingers in your years.
Close your eyes.
Click your restroom receptionist hills 3 times.
And when you open yours the following from the Constitution is gonna be RIGHT IN YOUR ANTI PATENT FACE!
[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. 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;]
BOOM, BOOM, POW!
It’s all text – no video. But you made the right call.
Pardon me Cranky, but I just said no to the link.
There are some things I do not need to see.
Mouth to mouth resuscitation with an animal this dead borders on the macabre.
But is not, apparently, unprecedented:
link to cbsnews.com
Wow,
I have never seen someone try so hard to revive a dead horse. Mouth to mouth resuscitation with an animal this dead borders on the macabre.
There is no constitutional right to a patent.
IANAE | Mar 27, 2010 at 03:23 PM :That doesn’t stop AI exercising his constitutional right to be wrong out loud in public, so how’s about we all let it go?
From an objective observer POV, The Actual Inventor has cited historical and legal fact while the IANAE faction has only provided personal opinion and conjecture. So if one wants to decide this debate strictly on the merits of the supporting evidence presented, The Actual Inventors have won the day.
There is no constitutional right to a patent.
That doesn’t stop AI exercising his constitutional right to be wrong out loud in public, so how’s about we all let it go?
Now that this topic has reached it’s inevitable conclusion I hope everyone has learned something and we will never again see the blissful or willful ignorance of anyone by claiming there is no Constitutional Right to a patent.
There is no constitutional right to a patent.
Mopping the floor here is much more like a janitor cleaning up long after the party is over.
AI, don’t forget to get the bathrooms too.
“And you wonder why the inventors have mopped the floor with you in this debate.”
More like, we find it very revealing that you’re confined to commenting to yourself on this backwater thread. By the way, claiming victory on a long-dead thread after everyone has left is weak, to say the least. Is that what you call “mopping the floor”, AI? Linguistic re-engineering seems to be your specialty.
Posted by: Ned Heller | Mar 09, 2010 at 09:05 PM: Now, if I had a right to a patent that arose independent of the constitution, it could only arise by act of some other government or by possession; a patent being property.
__
Okay, I think I see what is causing the trouble now. What you must understand is that the Constitutional Right to a Patent is both a natural Right and a conventional Right effected by positive law.
I know, you Ned, like to argue that it must be either or, but the source of all our Rights spring from property Rights and these property Rights are as natural and God Given as our Right to life or liberty.
And while its the Constitution that provides the usufruct for Intellectual Property man will always have the unalienable right to his ideals.
Now that this topic has reached it’s inevitable conclusion I hope everyone has learned something and we will never again see the blissful or willful ignorance of anyone by claiming there is no Constitutional Right to a patent.
Posted by: Ned Heller | Mar 09, 2010 at 09:05 PM: Now, if I had a right to a patent that arose independent of the constitution, it could only arise by act of some other government or by possession; a patent being property.
Now assuming I do not have an act of government, but simply rely on possession (which is true today if I do not apply for a patent), what gives me the right to deprive others of the right to use the invention if they somehow learn of it and begin to use it?
Ned,
I have no idea what point you are trying to make here. Perhaps it would be best if you just dropped the socratic method and came right out and said what you want to say.
IANAE | Mar 10, 2010 at 10:05 AM: In the context of this discussion, it’s fun to see a case where an argument that applicant has a constitutional right to a patent fails.”
Then you can’t see very well because that case is not concerning the validity or lack of the intellectual property clause of the Constitution, which is what this discussion is all about.
And you wonder why the inventors have mopped the floor with you in this debate. Sheeees!
Malcolm Mooney dressed as a restroom receptionist wrote: “Coal has cited law that points out that exclusive patent rights are only Constitutional rights in AI-la-la-land (your bunker), where “Constitutional right” means simply “a right mentioned in the Constitution”.”
Malcolm , Deepsouth Packing nor the Crown Die & Tool Cases include any such text or conclusion. At this point you are simply making things up.
” In the rest of the USA, where Constitutional right means a right guaranteed to the people by the Constitution, patent rights do not fall under that umbrella. No amount of convenient re-defining, or analyzing of writers who died hundreds of years before the document was written, or obsessing over Mooney, ”
LOL, Malcolm, I don’t care that you like to post under different aliases, but I do find it rather amusing how peeved you get when the regs dont play along, then address you as mooney rather than your alias of the moment.
If you want to fool people perhaps you should try a different vernacular and lexicon when using your many alias. Hint, drop the airplane rest room fixation, gay references and any use of DING DING DING in a sentence.
In the context of this discussion, it’s fun to see a case where an argument that applicant has a constitutional right to a patent fails.
Coal has cited law that points out that exclusive patent rights are only Constitutional rights in AI-la-la-land (your bunker), where “Constitutional right” means simply “a right mentioned in the Constitution”. In the rest of the USA, where Constitutional right means a right guaranteed to the people by the Constitution, patent rights do not fall under that umbrella. No amount of convenient re-defining, or analyzing of writers who died hundreds of years before the document was written, or obsessing over Mooney, or adding (p)arentheses to words, is ever going to change that.
Malcolm Money dressed as a restroom receptionist wrote: Whoops, looks like Coal has you there, AI.
_____
Malcolm, Coal has merely cited case law affirming my point that patents require legislation to establish regulatory rights for the existence of property. Looks like you need to spend less time in the restroom and more in the law library. Well, in your case any library will do.
Whoops, looks like Coal has you there, AI.
::UNBANGS AI’S GAVEL::
I included this on another post and may be of use here:
The IP Clause of the Constitution should be interpreted with this understanding in mind: “Under the common law the inventor had no right to exclude others from making and using his invention. ” Deepsouth Packing CO. v. Laitram Corp., 406 U.S. 518, 525-26 (1972).
The “negative right” to exclude is provided only through the Patent Act. See id. at 526 (“If Laitram has a right to suppress Deepsouth’s export trade it must be derived from its patent grant, and thus from the patent statute.”); see also Brown v. Duchesne, 19 How. 183, 195 (1857) (“But the right of property which a patentee has in his invention, and his right to its exclusive use, is derived altogether from these statutory provisions; and this court [has] always held that an inventor has no right of property in his invention, upon which he can maintain a suit, unless he obtains a patent for it, according to the acts of Congress; and that his rights are to be regulated and measured by these laws, and cannot go beyond them.”).
However, and more to the discussion at hand, any positive or affirmative right to exploit one’s own creations arises from the common law, not federal patent law. See Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U.S. 24, 36 (1923) (noting that “[i]t is the fact that the patentee has invented or discovered something useful, and thus has the common-law right to make, use, and vend it himself, which induces the Government to clothe him with power to exclude everyone else from making, using, or vending it.”).
AI, agreed, patents are property and ownership of property is not an aspect of liberty. In fact, the constitution, in Amendment V and XIV, both discuss “liberty” and “property” as different things that cannot be deprived without “due process.”
Property rights preexisted the constitution. When we formed the new government, we agreed that that government could not dispossess its citizens of their property without due process (and payment (eminent domain)). But what property is this?: Property rights in the form of patents granted by the crowns of Europe, the states, or by possession in the case of native Americans.
I am not sure whether there are any cases of patents on inventions being enforced in the colonies after 1776; but by 1791 I feel confident that we believed that patents on inventions granted by the English crown were no longer effective in the US.
The power to make laws protecting inventions (through the grant patents by the executive) was given to Congress, but the duration of such patents could only be for limited times. Clearly, a patent itself is property. It may be sold and it may not be deprived by the government without due process.
Now, if I had a right to a patent that arose independent of the constitution, it could only arise by act of some other government or by possession; a patent being property. Now assuming I do not have an act of government, but simply rely on possession (which is true today if I do not apply for a patent), what gives me the right to deprive others of the right to use the invention if they somehow learn of it and begin to use it?
Posted by: Ned Heller | Feb 26, 2010 at 12:03 PM: AI, on patents: Having an exclusive right to one’s inventions is not an aspect of Liberty. As a corollary, there is No constitutional right to a patent under any Liberty theory.
________
Ned, The Constitution is fashioned on Life, Liberty, and the Pursuit of Property, as that term was originally used by Locke. Therefore Patents come under property, not liberty. Property rights requires regulation in order to legally exist, thus the reason Inventors exclusive Rights to their discoveries are secured by the legislative powers of Congress, and included under the Powers of Congress section of the Constitution.
Hope this clears things up once and for all.
Posted by: broje TINLA IANYL | Mar 03, 2010 at 10:21 AM:Let’s focus on clearing up the confusion for those who mistakenly think that a Constitutional Right means a property right flowing from legislation passed by Congress according to power granted to it in the Constitution.
AI: That was about as clear as mud. Which is appropriate since your screen name is no less than mud after spewing blatant lies. You obviously don’t care about the opprobrium caused by your shameful behavior to show up here and post like nothing happened.
broge: That’s not what it means, and it is an important distinction.
AI: You have not defined anything or made any distinction whatsoever. And you have nerve to question someone’s law school education? I would fire you before I hired you then make you pay for the privilege.
Furthermore if you had studied Grotius, Pufendorf and Locke you would know that the reason the Inventors exclusive Rights are tied to and included under the Congressional Powers portion of the Constitution, as opposed to the Bill of Rights section is that Patent Rights are Property Rights and require legislation to establish regulatory rights for the existence of such property.
Now consider yourself schooled by an Actual Inventor.
Posted by: Ned Heller | Mar 04, 2010 at 02:30 PM: The Supreme Court is the body that decides whether the law unduly burdens the constitutional right, or even if the person enjoys the constitutional right in the first place.
Do we all agree on the above? If we do not, let’s hear it.
___________________
Agreed and building on your reasoning above Ned, in order for the Constitutional Right to a Patent to be declared non existent, the following events would have to occur.
a) The complete striking down of US CODE: Title 35, by Congress.
b) Followed by a case before the supreme court challenging such action as unconstitutional.
Resulting in a review of the Constitution by the Supreme Court with a interpretation ruling (preferably unanimous) Inventors have no Constitutional Right to a patent.
As it stands no such events have occurred and the Constitution explicitly states the Constitutional Rights of Inventors as quoted below, and Congress has acted to secure those rights as is required when establishing regulatory Rights for Property.
[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. 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 Constitutional Right to a Patent Shall So Remains.
::BANGS GAVEL::
broje, I think we agree on fundamentals.
But to reiterate, Congress and the states may pass legislation that restricts the right to free speech or any other constitutional right, provided there is a well articulated compelling need to do so, the law narrowly accomplishes the legislative objective and does not unduly burden the constitutional right. A law forbidding someone the right to yell fire in a crowded theater is such an example.
The Supreme Court is the body that decides whether the law unduly burdens the constitutional right, or even if the person enjoys the constitutional right in the first place. Such was the case with corporations who the Supremes decided 100 years ago did not enjoy first amendment rights and who recently decided they did.
Do well all agree on the above? If we do not, let’s hear it.
Noise, you should spend that time away learning about Patent Law.
Get out of my playground.
>>Did somebody put something in Noise’s tea>>(bag)? She’s acting really strange lately.
Sounds like an MM sockpuppet by the baboon that steals monikers and now is his own cheer leading squad.
Did somebody put something in Noise’s tea(bag)? She’s acting really strange lately.
broje,
fled? Naw, just letting others have their time on the playground.
My actual questions don’t get answered – no big deal.
People want to distract themselves – that’s ok too.
People want to clamor for others to “stay classy” and then steal monikers or play poster with a thousand monikers… – we’ve been there, done that.
I am rather glad that my travel schedule will be limiting my input over the next two weeks.
What will you do?
Well, you can count sockpuppets – that’ll keep you busy (bored, but busy).
I will see you soon!
love the Trainwreck
love each other
Be good
even to those who are not good
but
always
care enough to comment so that they will
keep coming back for more.
“Honestly, I’m scared to even speculate where they got their law degrees.
Canada, maybe?”
Nah, if she got her degree in Canada, her name would be Noise aboot Law.
Is that where these self-identified legal professionals who don’t know the difference between a constitutional right and a legislative privilege got their law degrees?
At least one of them obtained it at George Mason. Go figure.
Is that where these self-identified legal professionals who don’t know the difference between a constitutional right and a legislative privilege got their law degrees?
Honestly, I’m scared to even speculate where they got their law degrees.
Canada, maybe?
*****
It’s a failure of the public education system …
*****
Is that where these self-identified legal professionals who don’t know the difference between a constitutional right and a legislative privilege got their law degrees?
Meanwhile, it looks like NAL has fled the scene. I shall evermore picture track shoes peeking out from beneath the hem of her skirt.
Let’s focus on clearing up the confusion for those who mistakenly think that a Constitutional Right means a property right flowing from legislation passed by Congress according to power granted to it in the Constitution. That’s not what it means, and it is an important distinction.
I don’t think the free speech issue is terribly instructive when people are confused about “rights” in Section 8. Section 8 says what Congress may (“shall have the power to”) do, and the Bill of Rights (more or less) says what Congress may not do.
People’s rights are based in the limitations on the power of Congress, not the grants of power to Congress. Congress can exercise its power however it wants, until it runs afoul of one of the things it may not do.
The real confusion here is that people see random words they like scattered around the constitution, and they convince themselves that gives them some kind of “constitutional right” in those words. It’s a failure of the public education system, and not something we’ll fix on a patent blog.
Really, Ned. How does that defend NAL’s response:
**********
“Congress cannot decide who has the right to free speech”
– But Congress can decide what is free speech and what is not – think FIRE in a crowded theater.
**********
or refute my rebuttal:
*********
it is the Supreme Court that interprets the Constitution. Congress then can only overrule SCOTUS by passing a Constitutional Amendment.
*********
I know you were both originally responding to Game Over, but you are dealing with me now. The inability of SCOTUS to initiate legislation has no bearing on what is meant by a “Constitutional Right.”
Let’s focus on clearing up the confusion for those who mistakenly think that a Constitutional Right means a property right flowing from legislation passed by Congress according to power granted to it in the Constitution. That’s not what it means, and it is an important distinction.
TINLA: Congress can decide on limitations on speech and it is the supremes who decide whether this is an infringement of the right of “free speech.” The supremes do not decide cases in a vacuum, they react to laws passed by congress and by the states. Those laws are sustained to the extent they are not unreasonable and are not over broad.
So, I if want to suppress speech of al qaeda recruiters, I pass a law narrowly as possible to suppress it. I do not petition the supremes to suppress al qaeda recruitment activities.
******
Do you want the last word?
******
That would be boring.
Please continue to defend your position that it is Congress that decides what is and is not free speech, while quoting a SCOTUS decision for “fire in a crowded theater.”
Go.
Tinla, my point is that Congress can decide who can speaks and how much. The Supremes ultimately decide if the infringement on free speech is warranted or justifiable.
For 100 years, corporations did not enjoy free speech. But, now they do after the recent landmark Supreme Court decision. Clearly Congress decided once upon a time to limit the free speech of corporations and the Supremes, as you noted, being the final arbiter, recently decided they cannot. But it was a close decision and the pres. and 60% of congress are hopping mad and want to see if they can reimpose some restrictions on corporations.
Do you want the last word?
Am I actually getting the last word?
******
Congress cannot decide who has free speech?
Sure they can.
Think McCain-Feingold.
Think “Fairness Doctrine.”
*******
C’mon, Ned. I give you credit to know that Congress can pass a law tomorrow abridging free speech or any other Constitutional right, and that SCOTUS can strike it down as unconstitutional, or uphold it as Constitutional. But it is not Congress that interprets the Constitution. Allowing Congress to do that would be an end run around the Constitutional requirement that Congress muster a two-thirds majority to amend the Constitution.
It is basic political science to appreciate the balance of powers in the US. The Constitution grants Congress the power to make laws, and grants certain rights to the People. If SCOTUS can overturn a Congressional law on the basis that it violates a Constitutional Right, then a Constitutional Right exists. If Congress passes a law that grants you a right that it can then take away by repealing or changing the law, without amending the Constituion, then you really have a legislative privilege.
It is the very definition of a Constitutional Right that you have it, and SCOTUS enforces it, regardless of whatever legislation Congress passes, absent a Constitutional Amendment. That is the one true test for a Constitutional Right. If you do not see that, then we have nothing more to discuss except how uneducated you are about basic Political Science and Constitutional Law.
Since Congress can choose to repeal 35 USC, and not grant patents, without passing a Constituional amendment, and since SCOTUS would have no grounds to grant you a patent absent that law, there is no Constituional Right to a patent. That’s it. Any other view is ridiculous.
“the esclusive rights of inventors ARE set forth in the Constitution, and thus are Constitutional rights.”
That is a stupi d play on words and not worth any of our time discussing.
Congratulations on successfully trolling the boards for hundreds of comments.
/golfclap
Congress cannot decide who has free speech?
Sure they can.
Think McCain-Feingold.
Think “Fairness Doctrine.”
*******”Congress cannot decide who has the right to free speech”
– But Congress can decide what is free speech and what is not – think FIRE in a crowded theater. ******
NAL, it is the Supreme Court that interprets the Constitution. Congress then can only overrule SCOTUS by passing a Constitutional Amendment.
******Posted by: Ned Heller | Feb 26, 2010 at 12:03 PM “As others have pointed out, the grant of power to Congress to make laws does not obligate Congress to pass any law.”
This is completely irrelevant to the FACT that Congress has acted and secured for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Now, if Congress had not acted you might have a point about the inventors Rights stated in the Constitution not yet existing because because no laws had been passed to secure them.
But the Inventor Rights are stated in the Constitution.
Congress has secured those Rights by law.
So using your own theory about Rights, Inventors have a legal, bona fide, Constitutional Right to a patent.******
AI, that is pure drivel. The inventor rights exist as a legislative property right. What is in the consituttion is a congressional power.
Do you really not understand that if you had a constitutional right to a patent under certain conditions, that congress could only refuse you a patent under those conditions by passing a constitutional amendment?
As it stands, you can get a patent that conveys a property right. But you do not have a Constitutional Right to a patent.
You messed up and used the wrong word. And now you keep digging a deeper and deeper hole for yourself as you try and weasel your way out of a mistake.
Game Over,
It sounds like you are approaching a point where you are actually discussing law rather than handwaiving.
Congratulations (another victory for proper “assailing”).
There are a few distinctions for you to be aware of:
“the exclusive rights of inventors set forth in the patent clause are Constitutional rights in the same sense as other Constitutional rights.”
– ignores the fact that AI keeps hitting you with – the esclusive rights of inventors ARE set forth in the Constitution, and thus are Constitutional rights.
“Congress cannot decide who has the right to free speech”
– But Congress can decide what is free speech and what is not – think FIRE in a crowded theater. Likewise, it is not that Congress is saying “you do have a patent and we are not letting you have your rights to that patent”, it is more like “we recognize that you actually do have a patent when it meets the definitions we have set up” – You miss this because you miss the proper level of abstraction. The “what is an invention” can be thought of as on the same level as “FIRE in a theater”. The (R)ights of the inventor can be thought of as on the same level as Freedom of Speech.
AI, you truly have a tenuous grasp on logic. Because a document (the Declaration of Independence) is silent regarding patents, you conclude that it supports them?
I do not dispute that the Constitution grants Congress the power to create a patent system, nor do I dispute that the language of the Constitution indicates that the founders intended for Congress to make use of that power. What I do dispute is that the exclusive rights of inventors set forth in the patent clause are Constitutional rights in the same sense as other Constitutional rights.
Congress cannot decide who has the right to free speech or who has the right to a fair and speedy trial. However, Congress does decide who gets an exclusive right to their invention. That is, Congress cannot say “these citizens are entitled to free speech but these citizens are not” but Congress can say “these inventors are entitled to exclusive rights, but these inventors are not.” If you are thrown in jail for public T-bagging, your Constitutional right to free speech is being violated. However, if the PTO does not allow your claims, your Constitutional right to a patent is not being violated.
Malcolm Game Over Mooney wrote:
“More like you’re fully aware that rewording actual Constitutional rights using the words of the patent clause shows that exclusive rights for the inventor are not mandated by the Constitution and so you instead duck and dodge.”
Malcolm in a debate over the interpretation and meaning of the Constitution you do not get to reword the Constitution to suit your argument and then declare victory and go home. Only a child would resort to, and then believe such tactics were valid.
Now here is the proper protocol for a discussion and analysis on the Constitutional level.
Step One: Consult the SCOTUS
First, we simply go to the Supreme Court, whose job it is to interpret the Constitution and set legal precedent.
In this case we can say as a matter of FACT that the Supreme Court has not ruled that there is no Constitutional Right to a Patent.
Step Two: Consult the Federalist Papers
If there is a debate as to the meaning of terms, text, or clause, for example, what do the words, Inventors Rights, or the text, ” securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” actually mean, we then do as the Supreme Court will do, consult the Federalist Papers.
[ Note: The Supreme Court consults the Federalist papers first and more than any other document(s) when seeking guidance on the interpretation of the Constitution]
After reading and quoting over 80 Federalist Papers, no where is it found that the” Inventors exclusive Rights to their Discoveries” explicitly stated in the Constitution are to be interpreted as NOT being Constitutional Rights. Furthermore, no where in any of the Federalist Papers is it written that there is no Constitutional Right to a patent.
Step 3. CHECK THE CONSTITUTIONAL FILTER
To make sure the spirit of the Constitution is accurately reflected in current analysis, the Supreme Court and legal scholars read the Declaration of Independence.
[ Note: The Declaration of Independence is and has been the filter through which the Constitution is read and applied since Abraham Lincoln ]
After numerous readings and discussions of the text of this historical document it can be said as a matter of FACT that there is nothing in the Declaration of Independence that would indicate there is no Constitutional Right to a Patent.
.
To assail Rights so stated in the Constitution will require more than the usual ad hominem and puppyhood attacks. It will have to be done through nothing less than the time honored Constitutional analysis practiced by and before our esteemed Supreme Court and framed by our Founding Fathers over 200 years ago.
Those of us who are learned and professional have conducted that analysis. The results are conclusive. It cannot be denied, as a matter of fact, historical record, and Constitutional law, that Inventors have a Constitutional Right to a patent.
Noise, you aren’t going to win any arguments by not responding to any questions. I would think that you would have figured that out by now.
Anyhoo, your childish insults do not affect me. They are simply the defense mechanism of the intellectually outgunned, having found themselves argued into a corner.
So, in closing, it looks like the S.S. Constitutional Patent is going down, and you and AI forgot to bring a lifeboat.
He got beat up by a chick.
“Malcolm, what could it have been that Noise did to damage your psyche so badly?
Was it the way you were embarrassed and forced to flee during the Printed Matter Doctrine discussions?”
That was only the start.
I took the bully’s playground from him, beating him in the mudpit without resorting to the levels of slime that he descends to.
Its brutal for him to be so exposed – a vacuous fool provecatuer, whose ability to be provocative is limited to non-legal stale tricks (and thus not very provocative at all).
As they say… Sucks to be Malcolm (what the sam hill).
“Since no argument has been made equating the above statements your post is a classic strawman fallacy.”
More like you’re fully aware that rewording actual Constitutional rights using the words of the patent clause shows that exclusive rights for the inventor are not mandated by the Constitution and so you instead duck and dodge.
Malcolm Mooney took off his Orly Tavitz wig and wrote:
“A well regulated Militia, being necessary to the security of a free State, the right of the People to keep and bear Arms, shall not be infringed.”
vs.
“The Congress shall have power to promote the security of a free state by securing for citizens for limited times the right to keep and bear arms.”
Only a Consteetooshunal Skoltard such as yourself would think these two statements mean the same thing.”
_________
Since no argument has been made equating the above statements your post is a classic strawman fallacy. And your tactic of posting strawman fallacies by accusing others of posting strawman fallacies is beyond boring and lame.
And apparently Noise Above the Law must have intellectually scarred you and left your emotionally traumatized at some point. Why else would you obsess so and invoke NAL in different posts using differ aliases?
Malcolm, what could it have been that Noise did to damage your psyche so badly?
Was it the way you were embarrassed and forced to flee during the Printed Matter Doctrine discussions?
Hmmmmm.
“just because a Right to a Patent is not an amendment in the Bill Rights does NOT mean there is no Constitutional Right to a Patent?!?!?!?”
AI, what would your mom NAL say about responding with such straw?
“A well regulated Militia, being necessary to the security of a free State, the right of the People to keep and bear Arms, shall not be infringed.”
vs.
“The Congress shall have power to promote the security of a free state by securing for citizens for limited times the right to keep and bear arms.”
Only a Consteetooshunal Skoltard such as yourself would think these two statements mean the same thing.
Ned Wrote:
“In reality, experience taught us that men have no rights not recognized by other men and by the sovereign. From the earliest days of Rome, the people demanded written laws so they would know their rights. That is why our founders were so insistent that we engrave into stone (Bill of Rights), those rights Englishmen has won over the centuries, etc. The 5th and 14th and 14th Amendments contain a general Liberty clause. Through this, the courts have recognized fundamental Liberties not enumerated. We call these Liberties, Rights.”
“Having an exclusive right to one’s inventions is not an aspect of Liberty. As a corollary, there is No constitutional right to a patent under any Liberty theory.”
Ned:
Your Liberty Theory, as its being used here, is nothing more than the old fallacious argument that was invalidated long, long, ago in other threads and recently at | Feb 25, 2010 at 08:45 PM I above.
How many times does it have to be demonstrated that just because a Right to a Patent is not an amendment in the Bill Rights does NOT mean there is no Constitutional Right to a Patent?!?!?!?
You put a new Liberty dress on it, but it’s still the same old pig.
Posted by: IANAE | Feb 24, 2010 at 03:26 PM: “Do the founding fathers have anything to say about software patents?”
That is the most inane question yet!
Malcolm it is obvious you truly don’t care anything about this topic. You just want to badger people.
“But the Inventor Rights are stated in the Constitution.”
No one has ever said otherwise.
Posted by: Ned Heller | Feb 26, 2010 at 12:03 PM “As others have pointed out, the grant of power to Congress to make laws does not obligate Congress to pass any law.”
This is completely irrelevant to the FACT that Congress has acted and secured for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Now, if Congress had not acted you might have a point about the inventors Rights stated in the Constitution not yet existing because because no laws had been passed to secure them.
But the Inventor Rights are stated in the Constitution.
Congress has secured those Rights by law.
So using your own theory about Rights, Inventors have a legal, bona fide, Constitutional Right to a patent.
Understand now?
AI, on patents:
In nature, you have a right to your inventions only to the extent you can keep them secret. One can only prevent others from using your inventions through law. Having an exclusive right to one’s inventions is not an aspect of Liberty. As a corollary, there is No constitutional right to a patent under any Liberty theory.
As others have pointed out, the grant of power to Congress to make laws does not obligate Congress to pass any law.
Hope this helps.
“the accused shall enjoy the right to …”
“The Congress shall have power To …”
Sounds pretty similar to me.
AI, you and I do not disagree in theory. Hobbes proposed a theory of legitimate government based on consent. Man in nature is has complete liberty. He retains all liberties not granted to the government. Here, Liberty and Right are equated.
That is what Hamilton argued.
In reality, experience taught us that men have no rights not recognized by other men and by the sovereign. From the earliest days of Rome, the people demanded written laws so they would know their rights.
That is why our founders were so insistent that we engrave into stone (Bill of Rights), those rights Englishmen has won over the centuries, etc.
The 5th and 14th and 14th Amendments contain a general Liberty clause. Through this, the courts have recognized fundamental Liberties not enumerated. We call these Liberties, Rights.
So, as I said, we fundamentally agree about theory. In practice, rights (Liberties) do not exist unless they are recognized as such by other men. This is when the Supremes will also recognize them in their case law.
Hey AI, compare and contrast:
CONSTITUTIONAL RIGHTS
“the right of the People to keep and bear Arms, shall not be infringed.”
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”
“the accused shall enjoy the right to a speedy and public trial”
“the right of trial by jury shall be preserved”
NOT CONSTITUTIONAL RIGHTS
“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 language they chose appears to be quite different in the case of the patent clause, no? Perhaps “The Congress shall have power To promote the progress of science and useful arts, by” was a typo.
Hobbes, do not despair, your work here is and was appreciated. Your skill as an obfuscationiste is unparalleled (I do not use such terms lightly). It is a testament to your deft touch that neither tweedle-dee nor tweedle-dum achieved enlightenment.
If it is any consolation, know that as a nihilist, it is technically impossible for me to believe in nihilism.
Posted by: Ned Heller | Feb 25, 2010 at 05:00 PM:You do know, AI, that Hamilton’s view did not prevail. The people did not want to risk giving up the hard fought rights of Englishmen, and demanded a Bill of Rights even the face of Hamilton’s argument they were not necessary to engrave into constitutional stone for all time these very rights that previous Englishmen had won from royal prerogative.
____________
Ned:
I know we have a Bill of Rights. That was not the point I was making. Did you even bother reading the entire excerpt? If so you would have come to the conclusion where Hamilton says:
“is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations.”
Though Hamilton is addressing the issue of whether there is a need of a Bill of Rights its his sentiments that WE THE PEOPLE surrender nothing ( especially our Rights ) to Government and his expression that Congress is our Servants that I am highlighting.
Why?
Because IANAE has the INANE belief that WE THE PEOPLE are the servants of Congress and WE THE PEOPLE gave up our Rights and Power to Congress so they can Rule over us. Apparently IANAE has to believe this in order to find some basis for his non supported rational that Inventors have no Constitutional Rights to their inventions.
If its a better understand of our history that you are interested in you may be interested in the fact that Madison, a strong advocate for the Bill of Rights, initially opposed it for the same reasons as Hamilton. However like Hamilton, Madison accepted the Bill of Rights and supported it because he knew the Constitution would not be ratified by the People without it.
So it was purely political and had nothing to do with whether Rights can only exist if they are literally spelled out in the form of Law, which I think is your view.
In fact as I pointed out before it was Madison that wrote Amendment 9 – which says:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
This clause was necessary to ease the real concerns of the Federalist about the potential dangers of the Bill of Rights and its effect on the Constitution and our inalienable rights.
So Hamilton and the Federalist did not really lose, they got their Amendment 9 to help ensure WE THE PEOPLE did not surrender our inalienable Rights and the Anti Federalist got their Bill of Rights to pacify their fears that their inalienable Rights would not be recognized by the Constitution. Bottom line WE all prevailed.
I see (yet) another comment of substance from Malcolm – and someone said I was the one prodding him – oh yeah, that was a rare/usual/what-next someone.
I don’t like messing with the tags for italics and bold as much as you do. CAPS is simply an easier way to place emphasis – I’m sure you can deal with it.
If not, bite me and try to say something of merit (that’ll keep you busy for like, forever).
INANE – I asked you to stop twisting what I actually say, and yet I am finding you STILL misquoting me.
“You asked me to ignore the word that..”
– NO. I did not ask you to ignore any word – I asked you to treat adverbial phrases correctly. You have gone from me missing your point (not true) to me asking you to ignore a word (not true). What type of prevarication will you come up with next?
If the only way you feel that you can overcome my points is to mistate them (like you have yet again), perhaps it would be better if you simply kept completely quiet. Why do you have such a problem sticking to what I actually ask of you?
(yes -that’s a rhetorical question – we both know the answer is because you cannot answer my questions)
INANE – and you complaign about my reading comrehension?
“He didn’t claim eBay said anything in particular”
“If you recognized the authority of SCOTUS to say that you don’t have a Constituional right to a patent”
Posted by: broje TINLA IANYL | Feb 25, 2010 at 12:33 PM
“My citation is to Ebay. That is the case to which I was referring.” Posted by: broje TINLA IANYL | Feb 25, 2010 at 02:34 PM
Seriously INANE – your credibility keeps dropping every time you try to slam me. Glib non-answers and pathetic attempts to change my words so you do not actually answer my questions only result in your looking foolish. Stop trying to slam me and simply answer the questions.
Just answer my questions.
If you cannot answer the questions I actually asked – admit so and we can move on.
IANAE Do you see why it’s so difficult to have a sensible discussion with you about these things? You keep changing the words, and eventually I get tired of pointing out that you can’t understand one sentence by reading another. And then you accuse me of misdirection in every post.
Dude, I so tried to warn you about this.
Or, as NAL would say, “Dude, I so TRIED to warn you ABOUT this.”
I asked you to correct your reading of the constitution to properly read the words there
You asked me to ignore the word that made the text mean what you didn’t want it to mean. When we discussed 35 USC 132 you insisted on including a word you did like that wasn’t in the text.
Do you see why it’s so difficult to have a sensible discussion with you about these things? You keep changing the words, and eventually I get tired of pointing out that you can’t understand one sentence by reading another. And then you accuse me of misdirection in every post.
(plus you may need to deal with INANE, who puts forth that Ebay simply did not state what you claim)
He didn’t claim eBay said anything in particular, Ms. Direction. Only you and AI think he did, which doesn’t put you high on the reading comprehension scale.
INANE,
“…You sure do it often. I notice you’re still not addressing any of the other words in the sentence, even though my point didn’t depend at all on the word you continue to fixate on.”
Except
– I asked you the questions first – still no answer.
– I asked you to support your statements – still no answer.
– I asked you to give a plain language rendition – still no answer.
– I asked you to correct your reading of the constitution to properly read the words there – which by the way is EXACTLY on your point’s dependency – STOP misdirecting my positions. Your answer is some misdirection about my lack of answer on words. I even corrected you, yet you still prevaricate and glibly accuse me of doing what you are doing. Besides – I have already discussed the words on the January thread – you have NOT asked me for anything new or different. Is it that hard for you to actually argue the points I present?
ANSWER THE QUESTIONS ALREADY. Do you only have glib non-answers? Even Malcolm can do that – and that’s not saying much.
broje,
I am not interested in your OPINION of Ebay – I was asking for a cite to your quoted position of what that Court HELD.
I assume that you are a lawyer and know why I am asking for you to prove such a strong position with a clear cite – otherwise I must assume that you made up that point (plus you may need to deal with INANE, who puts forth that Ebay simply did not state what you claim).
sacriligious
I mean sacrilegious, of course. D@mn, that’s a hard word to spell…
… when you adopt, as you nome de plume, an English political philosopher who argued forcefully, it seems, that rights do not flow from heaven…
Ned, I used Mr. Hobbes’ name because “Jonathan Swift” would have been too obvious. I suppose I should have borrowed St. Thomas Aquinas’ name instead, but that seemed almost sacriligious.
It puzzles me, Hobbes, why you pretended to disagree with yours truly on the origin of rights when you adopt, as you nome de plume, an English political philosopher who argued forcefully, it seems, that rights do not flow from heaven, but from the consent of other men and the mutual agreement/recognition of other men.
You do know, AI, that Hamilton’s view did not prevail.
He must have forgotten that part of history, because he feels condemned to repeat it.
AI said, “Hamilton also says:
“It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations.”
You do know, AI, that Hamilton’s view did not prevail. The people did not want to risk giving up the hard fought rights of Englishmen, and demanded a Bill of Rights even the face of Hamilton’s argument they were not necessary to engrave into constitutional stone for all time these very rights that previous Englishmen had won from royal prerogative.
The Bill of Rights encodes these rights, the rights of Englishmen, and specifically reserves to the people other rights, other rights of Englishmen, not specifically enumerated.
As I mentioned earlier, the right to keep and bear arms was no. 7 in the English bill of rights. It was not some right that appeared from antiquity or from god or from some natural right as others here appear to argue.
Hope this helps you understand our history a bit better.
What makes me sad is that it’s no longer possible to satirize this whole Constitutional (R)ights discussion. Thanks a lot, guys.
See you later, Orly, Ned, and all you other nihilists.
Night Writer Patent Attorney | Feb 25, 2010 at 04:19 PM
Do you agree with AI, Martin?