Inter Partes Review: An Unconstitutional Delegation of Judical Power

Carl Cooper has now filed his constitutional challenge to the Inter Partes Review (IPR) system — arguing that the system is an unconstitutional delegation of judicial power to an administrative agency. [Petition: Cooper v. Lee]

Question presented:

Whether 35 U.S.C. §318(b) violates Article III of the United States Constitution, to the extent that it empowers an executive agency tribunal to assert judicial power canceling private property rights amongst private parties embroiled in a private federal dispute of a type known in the common law courts of 1789, rather than merely issue an advisory opinion as an adjunct to a trial court.

The brief here is well-written because it focuses on the tight issue of parallel court/proceedings and the history:

No previous court has ever approved delegating validity-determination authority over common-law-adjudicated property rights to a non-Article III decisionmaker.

And, the petition suggests a way-out via an advisory opinion from the PTAB:

[T]his Court may make the process constitutionally sound by doing what it has always done under these circumstances: make the outcome of inter partes review advisory and subject to de novo treatment in an Article III trial court. So corrected, inter partes review may still identify and appropriately target “junk patents,” though an Article III trial court will need to perform the final act of invalidation.

 

Cooper also suggests that the court link this case to Cuozzo:

This Court may thus hear the two cases together, the one raising smaller issues (Cuozzo) alongside the one raising larger issues (this case). That would secure a more complete vetting of administrative agency authority.

Obviously, a favorable decision here could render Cuozzo completely moot, and wouldn’t that be quite interesting.

 

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

149 thoughts on “Inter Partes Review: An Unconstitutional Delegation of Judical Power

  1. Cooper v. Lee, No. 15-955

    Docketed 1/28; reply due 2/29.

    Rule 37(2)(a)

    …An amicus curiae brief in support of a petitioner or appellant shall be filed within 30 days after the case is placed on the docket or a response is called for by the Court, whichever is later, and that time will not be extended….

  2. Ned: Ned: Years later, after you build on that land the world trade center, I say to you, that I made a mistake, give me the land back, what would you say?

    I’d say “Let’s see what the sales contract we signed says about how we proceed when it’s clear that you made a mistake.” But the correct answer, of course, is “Why do you h@te tall buildings?”

    Regardless, I sure am grateful that the granting of Gil Hyatt’s submarine patent claims isn’t going to present any Constitutional issues for his litigation targets … After all, secret patent applications that one can keep pending forever are toooooootally Constitutional. How do we know that? Because the people who care soooooooo much about the Constitutional infirmaties of the patent statutes would never stop complaining about them. Freedum!

    1. Bizarro response.

      You do realize that separate constitutional issues- if any – are NOT an answer to the particular constitutional issues under discussion here, right?

      The ONLY reason for your obvious attempt at conflation and confusion is that you just do not have anything inte11igent to say on the actual point here.

      PAY ATTENTION PROF – this is a type of blight that needs to be eradicated.

      Your “rules” need to handle this. YOU need to handle this.

      1. Gee, “anon”, I thought I was doing you a solid. To the extent that the AIA didn’t erase the viability of “secret” patent applications that could — theoretically — result in patent grants that sandbag the entire population of the country 20, 50, or even 100 years beyond the critical date of the application, you’ve got another potential ice cube you can use to “sink the Titanic.”

        Or is it your position that there nobody’s “Constitutional rights” are implicated by that scenario? You seem to enjoy latching on to plenty of other Hail Marys that might result in a few extra handfuls of AIA-free landgrabs (before Congress steps in with another fix that you’ll like even less). What is it about this argument that bugs you so? The other side of the coin isn’t as shiny for some reason?

        1. Nice attempted spin – doing me a “solid” by trying to obfuscate?

          No thanks.

          As to “Or is it your position that there” – nothing of the sort. But please if YOU want to make a constitutional argument – do so. Just don’t try to muck things up and use your (lack of) “argument” to NOT address the one already presented.

          What is it about this argument that bugs you so?

          What “bugs me so” is that you didn’t do EITHER. You made no real attempt at establishing a different argument AND you made NO attempt to actually address the one already present.

          1. “anon” you made NO attempt to actually address the one already present

            Oh, I’ve rebutted Cooper’s “argument” repeatedly. It’s not terribly difficult to do that.

            Of course, one first has to stop laughing over the absurdity of the judicial test that Cooper is invoking. But once that’s accomplished, it’s a simple matter of recognizing that the thing we (or, more accurately, Congress) call a “patent” today is materially different from whatever thing existed back in 1789. Remember: patent rights exist at the whim of Congress. Congress can define them however it wishes, placing all kinds of restrictions on how/when those rights can be revoked or curtailed. The only limits, really, are rational basis and substantive due process.

            In any event, since you seem so obsessed with your beloved Constitution and the Rule of Law (note the awesome capitalization!), on one hand, and the tanking the AIA on the other, I figured your juices would naturally gravitate towards my proposition. But perhaps your love for Gil Hyatt is even stronger. He did, after all, invent the semiconductor until he didn’t.

            1. Your “proposition” was – and remains – empty.

              Further your “I said so” is ALSO empty, specifically because you have never addressed the actual discussion points on these boards. You never seem able to “see” them – and you see phantom arguments that you have only made in your own head…

              Wake up son.

            2. MM: “[P]atent rights exist at the whim of Congress. Congress can define them however it wishes, placing all kinds of restrictions on how/when those rights can be revoked or curtailed. The only limits, really, are rational basis and substantive due process.”

              MM, while such may be true of any statutory right created under the commerce clause, for example, it may not be true under the patents and copyright clause of the Constitution which provides that Congress can provide inventors and authors exclusive rights for limited times. Exclusive rights for limited times actually gives the owners of the patents and copyrights legal rights.

              What really is important from a constitutional point of view is not whether the right is created by statute but whether the remedy created by Congress may be assigned to administrative agency. If the remedy was known at common law, for example infringement actions for damages or equitable actions for injunctions, only a court of law may provide for damages or injunctions.

              Furthermore, if the common law provided a right to a trial by jury for particular form of action, remedy, Congress is without power to assign such a right to the adjudication by administrative agency because the do so would deny the right holder a right to a trial by jury.

              Thus the only reasonable question here is whether there was a right to a trial by jury in a contest between two parties, a petitioner and a patent owner, where a patent will be declared invalid and revoked as a result of the litigation. Such an action was known at common law it and did in fact have a right to a trial by jury. Thus assignment of such an action to administrative tribunal whereby a patent owner’s patent will be revoked for invalidity on its face violates the Seventh Amendment and the separation of powers.

              1. Ned: What really is important from a constitutional point of view is not whether the right is created by statute but whether the remedy created by Congress may be assigned to administrative agency. If the remedy was known at common law, for example infringement actions for damages or equitable actions for injunctions, only a court of law may provide for damages or injunctions.

                The PTO isn’t hearing infringement cases. It’s reviewing its decision to grant the patent, after evidence is presented demonstrating that it likely made an error.

                I think it goes without saying that if the Constitution doesn’t permit an adminstrative agency to review and correct its own errors following a showing of error, then the Constitution is an axx. Now, I’m happy to concede all kinds of errors in the Constitution but this one would seem to have been made up by the judiciary which, I’m confident, will be happy to take the minimal steps necessary to “clarify” itself.

                1. A nice “half-truth” here by Malcolm.

                  He starts out “OK” by drawing a correct distinction between validity and infringement, but then goes off the rails by pretending that the law is something other than what it is.

                  To wit:

                  then the Constitution is an axx.

                  Translation: Malcolm’s “feelings” are hurt because he wants an administrative agency to be able to revoke the property rights created by the grant of a patent upon some later showing.

                  But that is not the law we have.

                  For property rights (which patents are), even mistake by the executive must go through the proper means.

                  The ad hominem of “then the Constitution is an axx.” is NEITHER a legal argument NOR a correct view of the law as it is. ALL that it is is an emotive plea that the law “really cannot be as it is.”

                  F A I L.

                  Now, I’m happy to concede all kinds of errors in the Constitution but this one would seem to have been made up by the judiciary

                  Double F A I L.

                  First, this “error of the Constitution” is NOT an error and
                  Second, it is NOT “made by the judiciary” as the judiciary does NOT “make” the Constitution. BASIC and fundamental understanding of the U.S> legal system please: ALL three branches of the government are under the Constitution – NO branch is above the Constitution.

                  The judiciary does NOT have the power to “clarify” itselfeven if (and for the record it is not) within itself to “make” this “constitutional axx” state.

                  We are seeing the very thing that Ned Heller’s post from Judge O”Malley warned against.

                  I am certain that if Malcolm were to dust off his State Oath that he swore when he became an attorney (assuming for argument’s sake that his statement asserting such is true), he would see that he did not swear to place the judiciary above the law. Every one of us who have taken a state oath has a duty to NOT place ANY court (or Court) above the law. We do NOT have any right whatsoever to say “Well, that’s what the Supreme Court says,” and to stop our critical thinking process. Our oath demands more.

  3. Ken: maybe [the Supreme Court will] hold that there’s something “different enough” about the way the AIA designed IPR that makes it more of a DP violation (as opposed to a mere emcumberance built into the property) [relative to reexamination].

    I highly doubt that given that IPRs have at least as much DP built into it.

    Again: the elephant in the room is the fact that there are an incredible number of junky patents out there. The vast majority of most granted patents in the computer-related arts are invalid or ineligible. And there’s no question that most of the people who are most opposed to IPRs belong to that same tiny, shrill class of entitled grifters who cheered on the granting of those junk patents in the first place and who fought at every turn the inevitable court decisions exposing that ridiculous junk for what it was.

    Reap the whirlwind.

    1. given that IPRs have at least as much DP built into

      Not enough (for the explicit reasons given already – even in short declarative sentences).

      1. “anon” Not enough (for the explicit reasons given already

        I haven’t seen any remotely compelling argument that there’s a lack of due process for patent holders in the IPR system. Since you believe it’s so straightforward, maybe you could summarize the key points for everybody. Try to do so without dr00ling on yourself. Good luck.

        If your imaginary “lack of due process” arguments held any water, you should be able to easily present evidence showing systematic unfairness to patent holders. But nobody’s come forward with that evidence — for very good reasons.

        But wait! Maybe you guys have just been sitting on them all this time, just like you sat on your “devastating” arguments in defense of [oldstep]+[newthought] claims. Really, I can hardly stand the suspense.

        1. S I G H

          New year – same vacuous dodges….

          I haven’t seen…

          Open your eyes – they are clearly and plainly stated.

          Try to do so without dr00ling on yourself. Good luck.

          Nice job Prof – I see the “rules” you have – they are the “rules” you enforce.

          you should be able to easily present evidence showing

          non sequitur – the legal point here does not need, nor require, evidnece of any sort.

          But wait! Maybe you guys have just been sitting on them all this time, just like you sat on your “devastating” arguments in defense of [oldstep]+[newthought] claims.

          Another non sequitur and application of Malcolm’s old AccuseOthersOfThatWhichMalcolmDoes attempted spin.

          It is your [oldstep]+[newthought] pet theory which has been shown to be nothing more than the “no aggregation” theory ALREADY present in the “claims as a whole doctrine” – and it is you that needs to “defend” your views with this “pet theory” in light of the proper patent doctrine of inherency. You overplay your pet theory and attempt to have [old box] somehow (magically) have all future improvements and innovations “already in there” or you attempt to move the goal posts (through dissection and LACK of integration) and talk about claims as if they were ONLY claims to things ENTIRELY in the mind.

          Your SAME short script has been shown to be woefully insufficient for an inte11ectually honest dialogue.

          Maybe you want to improve your “arguments” and not merely (and blindly) chant the same ones over and over and over – as those simply do not acknowledge and integrate the counter points long on the table for discussion.

          And PROF – maybe YOU should think about “rules” for the “ecosystem” that dissuade this type of blight.

          You know, like I suggested to you some four years ago.

          1. “anon” the legal point here does not need, nor require, evidnece

            We’re talking about due process. You think you can simply assert “not enough due process” without providing any evidence of unfairness?

            Fascinating. Maybe you should define due process for everyone as it seems likely you have a special definition for it.

            1. It is quite clear that you have no clue as to what we are talking about here.

              You seem very confused and fall back to some “gee, I will just ask for evidence” line.

              1. It is quite clear that you have no clue as to what we are talking about here.

                You did assert at 8.1 that IPRs don’t have “enough DP” in them.

                If you’d like to retract that statement, please go ahead and do so.

                1. No need to retract my statement – that is not the issue with your inability to follow along.

                  Maybe you should try to read more than just your short script…?

    2. “Again: the elephant in the room is the fact that there are an incredible number of junky patents out there.”

      Well…Congress created IPR before the Supreme Court (for better or worse) gave us Alice and the Federal Circuit ran with it. So even given your policy view, IPR might now be largely unnecessary in light of how easily courts will throw out “junk” patents in the early stages of litigation nowadays. (It’s a bit ironic perhaps, given that IPR isn’t even allowed to consider 101 issues, but the current jurisprudence on 101 has it overlapping with 102/103 anyway.)

      On another level, it’s important to note that no amount of “necessity” (however genuine) could truly justify a constitutional violation, if in fact such were deemed to occur, but I see your point in the sense that courts do at least unofficially consider such matters even if they shouldn’t.

      1. given that IPR isn’t even allowed to consider 101 issues

        Not per the PTAB Ken….

        But the real elephant here is which branch of the government is (re)writing the statutory law that is patent law.

        The “real elephant” is NOT the “an incredible number of junky patents out there

        Do NOT become mired in an ends – no matter how “just” of some desired “riddance” and PAY ATTENTION to the means to that ends.

        It really does matter.

      2. Ken: IPR might now be largely unnecessary in light of how easily courts will throw out “junk” patents in the early stages of litigation nowadays.

        I missed the part where winning summary judgment on 101 or invalidity became “easy” (I’ll grant you that it’s easier than it used to be for a number of reasons). What numbers are you relying on to support this proposition? Regardless, for most people, patent litigation is not “easy”, particulary when you’re the defendant and you don’t belong in Federal court in the first place.

        1. don’t belong in Federal court in the first place

          Because you know, presumption and all…

          Oh wait, that law works the other way.

          “Never mind” (in the best Emily Litella tones)

  4. Without question the IPR is a star chamber and disposes private property rights at the whim of the Executive department (hence, it is a favor factory for the well connected interests). Constitutional anomaly or final victory for the Administrative State? Maybe both. The Framers would be appalled.

    1. The notion that a patent is a pure private property right is absurd. When a patent is granted improperly over the prior art, its not “property”, it’s instead a TAKING from those, who are at that point unknown, among the public who may be using or making or selling the non-invention and who had no opportunity to contest the taking. Why should that taking be of less import than the loss of “property” that should never have been?

      1. Martin, and who is to say that the patent is invalid? What rights to the owners of the patents have? The rights, perhaps, guaranteed by the constitution?

        1. Ned the party that said the patent was valid in the first instance would be the party to say it is invalid when challenged, using an adversarial process- the USPTO.

          Why are the due process rights of the sufferer of a taking of less weight than the patent rights of a patentee?

          In fact, the presumption of validity is likely unconstitutional under due process, and possibly too under separation of powers, esp. in light of the high invalidity rates of litigated patents (and yes, I am fully aware of the selection bias that those patents that are litigated are more likely to have validity problems).

          1. If the party that granted the rights can itself say that it was wrong, give me my property back — well, we have a saying about that, do we not?

            I give you my car. Tomorrow I say I want my car back, I made a mistake, do you have to give the car back?

            I sell you my land. Years later, after you build on that land the world trade center, I say to you, that I made a mistake, give me the land back, what would you say?

            I am not sure you understand this. The very last person who should judge whether there was a mistake is the very party who made the mistake.

            1. Ned, if I sell you a house and I didn’t have a perfected title, yes, you have to move out of the house. That’s why you buy title insurance.

              I never quite understood why the USPTO does not have to pay out to the parties that suffer from an improper patent grant – but maybe there should be some kind of mandatory insurance fund to cover losses stemming from invalid patents.

              What I really don’t understand is why the patentee’s rights should elevated over the public’s rights.

              1. Martin, it is not about whether title is defective, but whether the parties have a right to a day in court to decide the issue. Of course, back in the day, the guy with the bigger club made the decision.

                1. Ned, If an accused but innocent infringer could have his day in an Article III court without penalty (e.g. a million bucks in legal fees to invalidate a patent) I would be more in agreement. Even the fact that the IPR filing fee and costs are not recoverable upon winning a case seems to me an unconstitutional taking. The problem is one of balance for the rights of the public as much as the patentee, and this is simply rarely recognized because the public has no particular voice.

                  1. Martin, if a patent is clearly invalid today one can get out of patent lawsuit based upon a motion to dismiss, or a summary judgment. If it is an issue that is close, there is no alternative but to conduct a trial to a jury.

                    Now Congress once provided a separate revocation action called scire facias. That was repealed by Congress in 1836. I do not understand why it was repealed but it was, possibly because it was misused by the rich to harass the impecunious inventor.

                  2. Martin Even the fact that the IPR filing fee and costs are not recoverable upon winning a case seems to me an unconstitutional taking.

                    Oh my goodness. Only a person who h@tes patents and the Constitution would ever say such a thing.

                  3. Ned: Congress once provided a separate revocation action called scire facias. That was repealed by Congress in 1836. I do not understand why it was repealed but it was, possibly because it was misused by the rich to harass the impecunious inventor.

                    If that’s the case, there should be evidence in the record books. Given the awesome manner in which the lower classes were treated by the powerful and wealthy ruling class in this country in 1836, I’m guessing there was another reason for repealing the statute. Happy to be wrong, of course.

                  4. Under your view, if congress were to pass a law that requires that all actions under the Patent Act, including infringement, be under the sole jurisdiction of the USPTO/PTAB and not the district courts, would such a law be constitutional?

                  5. Mike, no.

                    Patent rights are no more public rights than are copyright rights, civil rights, trademark rights, trade secret rights. These rights may be created by federal statute but that does not make them, for that reason, public rights. If so, there would be nothing left of Article III or the right to jury trial with respect to a federally created right.

                    And how do you like that bit in the Federal Circuit opinion in MCM where it said that Congress is justified in assigning the adjudication of patent validity to the PTAB because the PTO was expert in “patent law.”

                    Patent law.

                    LAW!

                  6. Mike – per the classification of a particular cause of action as a public right, it may be removed from the Art III courts altogether. The SCOTUS has explained as much on several occasions. I also believe that one of the 7A CAFC dissents addresses this as well (Tegal, I think).

          2. In fact, the presumption of validity is likely unconstitutional under due process, and possibly too under separation of powers, esp. in light of the high invalidity rates of litigated patents (and yes, I am fully aware of the selection bias that those patents that are litigated are more likely to have validity problems).

            Apparently not, otherwise you would not make such a sweeping statement Mr. Snyder.

            You are saying that you are aware that FAR less than .5% of all possible claims are actually litigated and found invalid (your “high rate“) and want to have the tail of the flea on the tail of the dog wag the dog….)

            You are once again venturing into an unknown land (for you) and wanting to fight a battle.

            Rad (and understand) Sun Tzu – and realize that you are speaking purely from your emotional state sans any critical thinking.

            1. ahh anon, this time around I’m going to ignore you more often, since not ignoring you is akin to arguing with a streetcorner parolee from a mental ward. That said, who should I be more influenced by; an anonymous paranoid, or a cross section of the Supreme Court?

              CHIEF JUSTICE ROBERTS: You mentioned the presumption of validity. What percentage of patents that are challenged are found to be valid.

              MR. WERBNER: Well, Your Honor, from the briefing, it appears a high number; 40 percent was an estimate.

              CHIEF JUSTICE ROBERTS: Well, 40 percent of the patents are found to be valid? Invalid?

              MR. WERBNER: Invalid.

              CHIEF JUSTICE ROBERTS: Invalid. So only 60 percent are upheld. That’s not much of a presumption of validity.

              MR. WERBNER: Mr. Chief Justice, I would submit that it would be for Congress to change the presumption of validity, if it’s out of line. . . . And it’s more than just a procedural mechanism, it’s a message that patents are presumed valued. They should be respected not just by judges and juries, but by the public who are told that until proven otherwise, patents are presumed valid. And someone who wishes to gamble on their belief that it’s invalid should bear the consequences if they’re wrong. . . .

              JUSTICE KAGAN: You’re quite right in your reply brief when you say that this is a tradition in American law, that we assume that statutes are constitutional, that we assume that contracts are valid, that’s right, but it’s because they really are. You know, almost all statutes are constitutional. And here we’re in a different universe entirely, aren’t we? Where, you know, you could flip a coin as to whether a patent is valid or invalid and be pretty close, right? It’s about 50/50. . . .

              CHIEF JUSTICE ROBERTS: Is that a ­­ is that an historical development? Did more of them used to be valid, however many decades ago and, it’s sort of changed recently?

              MS. ANDERS (US Gov’t): I think it makes sense to say that a good faith belief in invalidity is not a defense ­­even though 40 percent of patents may be invalid.
              . . .
              JUSTICE KAGAN: Well, but that might be a very good reason for Congress to take a new look at this presumption of validity. But [Cisco’s] problem is that this presumption of validity exists and that this question of validity functions in a patent suit only as an affirmative defense.

                1. Commil v. Cisco Ned. Getting to summary judgment is about 80% of the cost of getting to a jury finding, so pretty near a million bucks anyway, depending on jurisdiction…either way totally unjust for an accused but innocent infringer, esp. small businesses….

                  1. Martin, IPRs are not inexpensive as well.

                    I have actually conducted Federal cases for almost no cost at all – I was the attorney of course. I think it is the way firms litigate that is the problem.

                    Some jurisdictions try to control cost by limiting law and motion. The main drag on costs is the cost of discovery with respect to infringement and damages.

                    If validity does not really depend upon claim construction — assuming the construction proffered by the patent owner is correct for the purposes of the motion, I think an early summary judgment motion might get one our very quick.

                  2. Ned discovery is the big cost driver, but so are the costs of experts and counsel in what is usually a foreign court, and summary on invalidity is hardly a given even when the patent is weak, because some district judges just dont like to grant them on a philosophical level, let alone motions to dismiss.

              1. Mr. Snyder,

                I see that you are sleeping at Holiday Inns once more. If you want to take the “banter” of oral arguments as some on-their-face proper legal exposition, well, you will be sadly mislead.

                Note too, that you are missing the takeaways from even your own “selected” quotes:

                It is NOT up to the judiciary to remove or change the presumption of validity – no matter what hackneyed comment escapes their lips [the validity as a legislative mandate is just NOT susceptible to being “evaluated” by the selected results (remember against the point about that “high rate” that you “conveniently” glossed over…?)]

                But please, continue to show how much you just do not understand how the law works in your comments. Then, as I have suggested in the past, take my replies and discuss them with your actual counsel and come to see that I am indeed (yet again) correct.

                And in that process, try to keep your emotions from clouding your reasoning. I do get that you “feel” a certain way. But letting your feelings get the best of you and color your understanding of what the law is, and how the law works, just will not help you.

              1. “I see that you are sleeping at Holiday Inns once more”.

                Nice ecosystem you have going there anon, in your head.

                More touching is your faith is the absolute clarity between statutory law and common law (and the essential illegitimacy of the latter), or the notion that when Congress passes a law, it’s invariably perfect and not subject to any checks whatsoever. That’s how the “law” works in your mind.

                Even more touching is your faith that your little world of patent law is impenetrable by non-lawyers.

                It isn’t.

                1. As I have plainly made clear, Mr. Snyder – I abide by the rules as I see them enforced.

                  Note too – that the snideness was indulged here by you first.

                  There IS clarity between statutory and common law – what basis do you give (or have) to say otherwise?

                  Further, the “perfectness” of statutory law as passed by Congress is NOT – and never has been – one of my views.

                  Your “logic” is false.

                  But lack of perfection is simply NOT an excuse for the judicial branch to violate the separation of powers and legislate when it has no authority to do so.

                  Again – if you understood the terrain of law, you would not step into such quagmire.

                  As to “impenetrable by non-lawyers – again a fallacy from you, as I have never said such a thing. Even non-lawyers can learn and understand the terrain of law.

                  YOU – on the other hand – have NOT done so. Why else would I ask you to (and not the first time, mind you) take my answers TO your actual counsel, discuss them, and learn from them that I am correct.

                  1. I started is your response?

                    Followed by a reasoned (in tone if not content) repudiation of what you type here day after day?

                    Okey Dokey.

                    FYI, I don’t have counsel to take anything to, because I am not involved in any patent litigation at this time.

                    Someday you will be right about something. Probably not today.

                2. “I started”

                  is a part of my response.

                  CLEARLY – I included more, including directing you on actual law and explaining how your view is in error.

                  “OK”

                  FYI, I don’t have counsel to take anything to, because I am not involved in any patent litigation at this time.

                  Thanks for the update – you are aware that you can have counsel without being in litigation, right? You do realize that checking your “feelings” against what is actual law is probably a good thing, right? You do relaize that my instructing you to take my responses (which you belieb) and discuss them with an actual attorney is a good thing, right?

                  Someday you will be right about something. Probably not today.

                  Malcolm’s AccuseOthersOfThatWhichMalcolmDoes does not work for him. Why do you think it will work for you?

        2. Ned: Martin, and who is to say that the patent is invalid?

          In many cases, the answer to that question is “a fifteen year old high school student who hasn’t drank the kool-aid and who can follow basic logic.”

          It surely hasn’t escaped the world’s attention that, by and large, the most vocal defenders of software patents are also some of the least intelligent attorneys on the planet.

          1. LOL – now Malcolm wants fifteen-year olds to imbibe in his smell test and “automatic” this cannot be valid C R P.

            Until the law changes Malcolm, you will have to deal with the law as it is. That includes those things that you “feel” are de facto invalid – which includes per your on the record comments ALL software.

            In reality though, well, the law is not what you indicate. As an attorney – if indeed you are one – you do know that you ahe an ethical duty to NOT advocate in a manner that portrays the law incorrectly just because you want the law to be something different, right.

            There is NO problem with you advocating changes to the law, or even items in the law that you “feel” are not right. But clearly, that is not what your “game” is.

            And Prof – this too is one of the “rules’ that you have here in the “ecosystem”: because this is what you enforce. This type of purposeful advocacy that knowingly misrepresents what the law is today is a blight that you ALLOW. It is not something that is a “gee, some Oone on the internet is wrong” – this very much is a sAme one is wrong – a sAme one that you as editor are very much aware of and can control.

            Your choice not to is a choice.

            You want a better”ecosystem?”

            Really?

            Let’s see the clamping down on unethical misrepresentations in the advocacy by attorneys.

      2. “The notion that a patent is a pure private property right is absurd. When a patent is granted improperly over the prior art, its not “property”, it’s instead a TAKING from those, who are at that point unknown, among the public…”

        I don’t think this follows. Again I analogize to land: there was a dispute once in some states about where the property line ended for beachfront landowners – in other words, how far “into the water” did a person have to be walking to avoid trespass when walking past your house? If the deed were misconstrued to cover more than it truly did, a court would of course be right to correct the record and start permitting the public to walk closer. Maybe a case could even be made that those who had previously been wrongly stopped from walking where they should have in fact been able to deserve some compensation. But in no case does any of this mean that beachfront land cannot be private property.

        1. A person, or many persons, have developed a product and are selling it. later, perhaps much later, another person goes to the patent office and is issued a patent improperly on some fraction of that product. The patentee then sues the person or persons previously selling the product. Those persons are now subject to litigation costs (possibly crippling); the liquidly of their business is destroyed, potentially for years during the litigation, their ability to sell new product is severely compromised for the duration, and of course those persons are distracted, inconvenienced, and placed into a state of high anxiety, again, for possibly years on end. Finally, the USPTO or an Article III court recognizes the error, and everybody just walks away unless those persons happened to encounter a judge who didn’t think the whole affair was business as usual (i.e “exceptional”). And it’s not reasonable to think of this not uncommon evolution as some kind of a taking? It’s more like an errant walk on the beach?

          Please brah- it’s not hard to understand when you want to understand. That wrongful grant was not private property- it was the taking of private property.

        2. One potential problem in your analysis is that it presumes that a person would otherwise have the right to make, use, sell, and import a given product, but for the issuance of a patent.

          Although a patent is a property right that can be bought and transferred, a patent does not grant inventor, or anyone else, the right to make and use his invention. A patent grants the patentee the right only to exclude others from doing so.

          A patent is not a taking because the public does not otherwise have an right to make and use a product.

          I think the main problem is this, Congress has the power to confer property to people through legislative action, but congress does not have the power to take them away through legislative action.

          1. A patent is not a taking because the public does not otherwise have an right to make and use a product.

            A taking is not defined as to only what you would call “positive rights,” Mike.

            A taking involves ANY of the sticks of rights in the property bundle.

            And Congress CAN take – but there are constitutional protections that must be abided in that taking. Hence, my pointing out that certain sticks in the bundle are taken at the separate point of initiation, and at that point there is no remuneration of any kind, nor is the executive agency decision to initiate reviewable – per the FLAWED words of Congress.

            This is an example where the statutory law that is patent law has been written by the correct branch of the government, but even that branch may not write law that violates constitutional protections.

          2. Mike, that somewhat sums up the holding in Marbury v. Madison. The Supreme Court made the point that if Congress creates less than a right for fixed term, a revocable right for example, that there is no legal right, no property in its owner. But in contrast if Congress creates a legal right by statute, having a fixed period at least, then neither Congress, nor the executive can revoke that right itself. The right owner has a right to his day in court.

    2. s_ck_es

      nice “rules Prof.”

      You are aware – or should be aware, of Malcolm’s very own “transparency challenge” from Dr. Noonan and that intersection with “s_ck_es.” – (love the one-way street block of that word – Malcolm can post it, but a cut and paste is filtered out – gee, no “perception” issue there….right?)

      And yet, such blatant and m1nd-less insults from Malcolm are allowed to run rampant here – and NOT in an isolated instance – but in a nigh constant drumbeat fast approaching a decade.

      Your “desire” for a better ecosystem is meaningless when you refuse to enforce your own “rules.”

      Time to wake up – if you really want what you say you want.

  5. The Supreme Court has also consistently held that Article I courts can be used to the extent that the unique expertise of the regulatory agency is needed to resolve the issue on the merits. In this Article I cases. Really, by characterizing the proposition a certain way, you get the result you want. Yet multiple propositions govern each fact pattern, not one.

    In Hatch-Waxman law, the validity of patents are challenged all the time before judges with nary a jury in sight, with the patent owner having demanded a jury on all counts entitled to a jury trial, and no objection to the absence of a jury. If anyone can fight for a jury trial they are entitled to, it is big pharma.

    1. Erik, the remedy of a Hatch Waxman action is not a legal remedy, but a regulatory one in that the result is that a generic can can take advantage of the prior approval of a non-generic drugs approval.

      I think there might be some question about whether there should be collateral estoppel effect of a ruling on validity if the patent owner is denied a right to a trial by jury. But that would does suggest that the patent owner requested a right to a trial by jury the first place.

      You should note that in enforcing a patent that if the patent owner chooses only an equable remedy that he, by that action, may have waived his right to a trial by jury.

      The Supreme Court has ruled that if a patent owner has a right to a trial by jury on an issue, that Congress is without the power to assign the litigation of that that right to a court of equity. Thus the courts that determine the validity in the first instance have to be treated as a court of law to the extent that validity is raised in the action even though the all ultimate remedy may be equitable.

  6. Cooper’s petition is DOA. Article I authorizes Congress to make laws for inventions and Article II authorizes the President to execute those laws. 35 USC 101 makes patents subject to the conditions and requirements of Title 35, and 35 USC 318 is authorized by 35 USC 311, which is a condition of Title 35.

    Moreover, patents are only presumed valid under 35 USC 282. They are never issued or adjudicated as “valid.”

    1. Steve, does your opinion change at all if patent owners have a right to a jury trial if their patents by going to be revoked for invalidity?

    2. Perhaps theoretically Congress could make patents entirely Administrative (but the 7th Amendment probably prevents this in the case of patents). But what Congress cannot do is create a hybrid right to adjudication by a Art III court and then Administratively obviate a final determination. That’s Rayburn’s case.

      1. Iwasthere, the only authority Congress has is to create exclusive rights. Exclusive rights require the right to exclude. This could be an action for damages or an action for an injunction. Both kinds remedies were known at common law for patents for inventions and therefore cannot be assigned to an administrative tribunal.

        The only way Congress can assign the adjudication of patent rights to a administrative tribunal is if the remedies were unknown at common law. Perhaps, we could provide every inventor a gold star, a big shiny plaque on the wall, a handshake with the Commissioner, and other such remedies. Perhaps we can buy provide them more for example, the standard award of $100,000 or so if there invention is actually used by anybody. But if we provide legal or equitable remedies known at common law, these must be litigated in the courts of law.

        1. Once deemed property, the rest of the constitutional protections regarding property kick in.

          Even (or especially) for later acts of Congress affecting said property.

          People (here on this blog) are STILL wanting the law that Congress did pass to be something other than what it is.

          Congress did NOT repeal the property nature of a patent, and install some other right.

          They simply did not do that.

          The nature of a patent as far as its nature as property was NOT changed.

          What Congress did do was write a new law affecting that (old) property. This is quite analogous to voting rights, that once established, earn constitutional protections from further congressional laws affecting said rights.

          And even though this point has been put on the table, certain sAme people continue to post as if this FACT were not present.

            1. It is beyond reasonable debate that patents are property. In Consolidated Fruit Jar Co. v. Wright, 4 Otto 92, 96, 94 U.S. 92, 96, 24 L.Ed. 68 (1876) the Supreme Court stated:

              A patent for an invention is as much property as a patent for land. The right rests on the same foundation and is surrounded and protected by the same sanctions

              Patlex Corp. v. Mossinghoff, 758 F.2d 594 (Fed. Cir. 1985).

            2. Ryan,

              I appreciate that you are attempting to have a civil dialogue, but you really are showing a lack of historical understanding of the patent system (right from the start the system was geared to have the patent right as a fully alienable property), and you seem to be completely unaware of 35 U.S.C. 261.

              What Patlex did – and did NOT – do can be reasonably discussed – but such does not change ANY of my post.

    1. They definitely have far more important cases on their docket. I’m not sure any of them are worried that people will stop using computers to “determine” stuff if they leave the IPR regime intact.

      I’ll give credit to Cooper for this much: I didn’t see that he used the phrase “death panel” in his brief. That’s a minimum amount of class, to be sure, but certainly more than that possessed by the “amici” out there.

  7. Cooper: a private federal dispute of a type known in the common law courts of 1789

    Round and round we go.

    Are today’s “patents” the same “types” known in the common law courts of 1789?

    Today’s “patents” come with encumbrances baked into the statute written by Congress, i.e., they are subject to re-review and cancelation by the granting agency provided that certain well defined procedural requirements are met.

    No previous court has ever approved delegating validity-determination authority over common-law-adjudicated property rights to a non-Article III decisionmaker.

    The CAFC did exactly that in PatLex (1985) when it considered the constitutionality of ex parte re-exams (which are also presumably “unconstitutional” according to Cooper’s theory), and again in Joy Technologies (1992).

    All this begs the question of what the point is. The idea that Cooper is concerned about “separation of powers” is, of course, a transparent joke. So let’s say Cooper wins. The Constitution is saved! Yippee! The entire country will no doubt rejoice … because Cooper gets to “monetize” his incredibly junky patent a little while longer.

    And what happens to all the other junk patents? There’s hundreds and hundreds of thousands of them out there and they continue to be regularly asserted by some of the worst b0tt0m feeders the legal profession has ever encountered. What happens to those junk patents when a few jurisditions inevitably start ignoring the PTO’s “advisory opinions”?

    Here’s what happens, eventually: more reform. In the meantime, of course, Cooper and his fellow junk patent monetizers will shove as much additional cash in their pockets until the reforms come and they need to find another grift.

    If this microscopically tiny cadre of entitled rich whiners really cared about the Constitution, they’d be working with everyone to make it easier, not harder, to get rid of the ridiculous scourge of junk that the PTO lawlessly foisted on the public of this country for years at an ever expanding rate. But they don’t care. Instead they cheered the PTO on, in real time, and told their critics to “go to Congress.” See how they operate?

      1. “anon” The Ends do not justify the Means.,

        As most intelligent people appreciate without difficulty, whether any means is “justified” depends very much how satisfied you are by “the ends” that are achieved.

        In other words, it’s an empty aphorism. It’s also easy to remember, of course, which helps explain your clinical attachment to it.

        1. In other words, your rather empty spin is a really bad attempt to say “the Ends DO justify the Means

          They do not. No matter how much spin you try to use.

      1. Since PTO Director first has to make a substantial decision before instituting a trial, it stands to reason that the “kill rate” of PTAB trials would be much higher than those of the courts, which don’t have such a pre-litigation decision step. The fact that 85% succeed could simply mean that the Office is doing a good job in making the institution decision, couldn’t it?

      2. Ned: PTAB: 85% claims held invalid.

        Court: 25%.

        This is not an academic discussion.

        Gosh, what if the courts were “holding” only 5% of asserted patents invalid. Does that mean that the IPR system is somehow more “unconstitutional”? Of course not. Exactly what does that “25%” number refer to anyway?

        This is the key fact to remember: 85% of the claims presented in IPRs are invalidated as junk because they are junk and the PTO, when someone is holding its hand, is capable of applying its expertise and figuring that out. This isn’t surprising to anyone. It’s the reason IPRs were created. I’ve said it before and I’ll keep saying it: if you’ve got evidence that IPRs are resulting in systematic and erroneous validity findings, then present that evidence.

        What’s going on in your beloved Article III courts, as everyone is painfully aware in 2016, is a circus of dust-kicking in the faces of judges and juries, many of whom are pretty much clueless about both the technology and the law. On top of that, there’s a host of other factors involved in litigation, including emotional factors, that aren’t present in IPR proceedings that feed into the calculus. Judges and juries engage in baby splitting all the time, i.e., if they can make the non-infringement case, they’ll go soft on invalidity. And then there’s the “clear and convincing evidence” standard and the habit of patentees leaning on the fact of a patent’s survival in a re-exam or even a failed IPR institution (?!) as “evidence” of the patent’s “strength” (I note that everyone’s favorite patent apologist did that just a few days ago — bizarre).

        Bottom line: what annoys most IPR detractors about IPRs is that they actually work quite well. If you’ve got a patent that looks invalid to an articulate person with knowledge of the prior art and the law, then the IPR system represents a big brown bummer for your monetization efforts. That’s what’s driving this.

        The value of patents is going down. And it’s going to keep going down.

        This is a good thing. Deal with it.

        1. what annoys most IPR detractors about IPRs is that they actually work quite well.

          Wrong.

          So like you to only look at the Ends and completely NOT hear the actual stated reason for “annoyance.”

          “B-b-but that’s not on my script” echoes in what passes as Malcolm’s mind….

          1. “what annoys most IPR detractors about IPRs is that they actually work quite well.”

            Wrong.

            No, it’s absolutely correct. IPRs make it easier to invalidate junk patents and, by doing so, save everybody — including the courts — time and money. That’s why they were created.

            The only bigtime losers are people with junky patents and nobody cares about those people. It’s true!

            Nobody. Cares.

            Nobody cares about Cooper or his junk patents except him. The world never needed those patents and they still don’t. They’re junk. People like Cooper were the intended losers. It’s their patents that were targeted, and rightfully so.

            It goes without saying that nobody cares what you think about anything, “anon.”

            Once again: if you have evidence that the IPR system is systematically leading to unfair results for anyone, then present it.

            1. There you go again, fixating on the Ends, and neglecting the means – which, by the by – are what is what is “annoying” folks.

              You really seem unable to grasp such a simple concept.

              Maybe look at something other than your script….

              1. “anon” the means – which, by the by – are what is what is “annoying” folks.

                Again: false.

                Did you think people would forgot the “death panel” silliness. Was that a “constitutional argument”? No, it wasn’t. It was the knee-jerk reaction of an embittered class in response to a predictable outcome: junk patents being taken to the cleaners.

                We had to hold you guys by the hand and explain to you why the numbers were perfectly realistic and reasonable! I’m sorry you seem to have forgotten that.

                Congress could turn around tomorrow and make the PTAB is an Article III court. If the invalidation rate remains at 85%, you and your cohorts’ heads will still be exploding all over the comments section of blogs everywhere. You’ll come up with some other leftfield excuse. You always do.

                Cripes, it’s not like we haven’t been watching your behavior closely for almost a decade now. We all know what matters to you (“patent quality” — LOLOLOLOL).

                1. Again: false.

                  LOL – now you are declaring what annoys other people?

                  What a schmuck.

                  Your (class-less) class “b@ttle” schtick has worn through.

                  That field of rye needs no protector like you Malcolm.

                  The “decade” comment is more of your B$ spin and attempt to AccuseOthersOfThatWhichMalcolmDoes.

                  As Crouch’s most recent thread on the “ecosystem” plea shows, it is YOU that have been a blight for nearing a decade. I have not been on this blog anywhere near that timeframe.

                  See Prof? more n@ked C R P from Malcolm that simply skates by. That is the “rule” that you have because that is what you “enforce.”

                  1. “anon”: now you are declaring what annoys other people?

                    As if there’s no evidence to support my conclusion. Funny stuff.

                  2. Your “conclusion” cannot speak for everybody.

                    I really hope that you do understand that.

                    I also hope that you understand that your call for “evidence” is a non sequitur on the topic of what is annoying to others.

                    You need better writing.

        2. Malcolm, I am not sure that the IPRs were created because there are junk patents. I think the primary reason was because inter partes reexaminations were taking much too long. They needed to cut out the examiner and the right to amend to speed things up.

          Regarding litigation in courts, both sides kick dust make the best arguments they can. The triers of fact are not fooled, nor are they fools. I have been on juries and I know that jurors do the best they can and take their jobs seriously.

        1. I think that he might now – he apparently does not like the “suggestion” by Cooper – and probably rightfully so, as Cooper is out of his gourd if he thinks that the Supremes rewriting patent law in order to “amend” IPRs into some sort of “advisory notice” is ever going to fly.

          You do not cure a constitutional problem by turning to yet another constitutional problem.

      3. I am delighted that someone has finally filed a cert petition that may finally end this constitutionality argument.
        ————–
        Ned, what is your statistical support for your alleged 85%-25% invalidity ratio vis a vis patent suits? Who did that study? Is that for final patent litigation decisions after JNOV decisions and the usual Fed. Cir. appeal in which invalidity was the decisive issue? Very importantly, completely unlike patent suits, IPRs are pre-filtered for high invalidity potential – in only a minority of all patent suits do defendants contest validity with an IPR. Also,the number of IPRs refused institution, or settled without a decision, must be statistically considered. Furthermore, average IPR claim rejection rates are missleading. Recent statistics showed that the IPR claim rejection rate is very much lower if one excludes the large number of IPR rejections of broad computerized functional claims of the type that are now judicially rejected under Alice-101. Nor are valid comparisons to validly decisions in D.C. litigation easy when something like 97% of patent suits are settled, or decided solely on non-infringement, without any validity determination whatsoever.* Of the small percentage of suits with fully litigated patents, most final decisions are for non-infringement, in which case the validity challenge often become moot even in that small number. Even in E.D. TX juries in the last couple of years have been handing out a surprising high number of invalidity jury verdicts.

        * Hence, the pre-IPR ability to collect substantial cash settlements from almost all defendants from patent suits without ever facing any validity test of the asserted patents, which was a key basis of the PAE business model.

        1. Paul, I am getting the data out of the number of CERT petitions recently filed. They are all consistent. They simply cite the patent office statistical information published on its website for the source of the 85% rate. There is a study of court decisions that provides the 25% rate that is in the Cooper CERT.

          I also note that around 76% of file IPRs are instituted. I think that is that comes from Cooper’s brief as well.

          Regarding some preselection factor, it is the rare case that a patent defendants does not present a validity defense. I do not think as much preselection going on at all. One can make a good argument about patentability with respect to just about any patent base by the combination of references.

          What is rare is anticipatory reference. But, it would also be rare for patent owner to bring suit in the face of such a reference if they know about it. Which is why I think accused infringers should have an obligation to bring anticipatory of prior art to the attention of the patent owner simply to avoid litigation.

          1. Ned: What is rare is anticipatory reference. But, it would also be rare for patent owner to bring suit in the face of such a reference if they know about it.

            But it’s not rare at all for patent owners — particularly those in the “do it on the Internet/computer” “arts” to file lawsuits — hundreds of lawsuits — in the face of severe and readily apparent obviousness (and eligibility) issues.

            I also note that around 76% of file IPRs are instituted. I think that is that comes from Cooper’s brief as well.

            That shouldn’t surprise anyone either. Of the 25% rejected petitions, probably half of them are poorly written or fail to meet some procedural aspect of the petition requirement and the other half (roughly 10% of all requests) are hail mary’s that have close to zero chance of success.

    1. “Are today’s “patents” the same “types” known in the common law courts of 1789? Today’s “patents” come with encumbrances baked in…”

      Though I don’t like IPR, I think this is the strongest argument for the legality of it (although at best I think it still creates a problem for patents issued *before* such encumberances existed).

      What are the arguments against this “encumberance” notion? One seems to be a constitutional argument, i.e. that Congress is somehow not allowed to create “encumbered patents”; but this seems like a stretch. After all, *any* property right can be defined with *any* encumberances/exceptions/etc. – even land.

      I wonder if a better argument might be that that’ simply not what Congress actually did here – i.e. that an assessment of the design of the procedure established (perhaps even including the noted fact that they applied it retroactively to already-issued patents!) demonstrates that it was not intended to be some “encumberance baked in” – but rather an alternate/unconstitutional form of adjudication. The form/means matters! Analogizing to land, it would be like the difference between a state denying due process to a landowner by taking it administratively, versus having the DEED say that the land was encumbered with such a vulnerability upon purchase. Everyone agrees the latter would be legal, but at the same time any statue purporting to (prospectively) modify ALL deeds in such a way would need to be rigorously scrutinized for truly having that intent/design (as opposed to simply being a denial of DP).

      1. Ken, the key related point to consider is that ex parte re-examination has been part of the system since the early 80s. Interference proceedings against granted patents have been around at least that long. Intra parte re-exams have been around since 1999. Thus, the IPR system does not represent a new fangled type of encumbrance on one’s patent rights.

        IPRs are just another example of a granting agency reviewing its work after its been presented with evidence that it screwed up.

        1. Each of those items Malcolm are materially different in the key constitutionally protected concern areas.

          Of course, you should have already known this if you were paying attention.

          1. Each of those items Malcolm are materially different in the key constitutionally protected concern areas.

            LOL. Whatever that means. Get on your horse and ride, Humpty!

        2. “Ken, the key related point to consider is that ex parte re-examination has been part of the system since the early 80s…IPRs are just another example of a granting agency reviewing its work…”

          This is true, so it could come down to analyzing the differences. I suppose the Supreme Court could hold that all of those had *always* been unacceptable denials of DP to the extent they were involuntarily imposed, which doesn’t seem likely – or maybe they’d hold that there’s something “different enough” about the way the AIA designed IPR that makes it more of a DP violation (as opposed to a mere emcumberance built into the property).

          In any event, I still don’t see how they can apply any of this retroactively, but apparently that’s been passing muster for a while – at least by lower courts.

          1. there’s something “different enough” about the way the AIA designed IPR

            There is.

            And those differences have been made plainly evident.

            For example, at the point of initiation – regardless of any later decision on the merits – we have an executive agency taking of sticks from the bundle of property rights with NO remuneration and NO Article III court review.

            And yet, Malcolm somehow likes to pretend that this thought – clearly, succinctly, and powerfully expressed – has not been expressed at all. Instead of dealing with the legal issue, he merely plays his usual insulting games (and the moderator of this blog “enforces that “rule”) blithely.

            Is it really any wonder we have the “ecosystem” that we have here?

      2. Ken, I believe English patents also had the requirement of not being previously known or used. We did not invent that. Just because we have added examination that the English apparently did not have cannot alter the simple fact that English the validity of English patents depended upon novelty.

        1. But Ned, what do you make of the idea that ANY property can simply be defined to have whatever encumberances the seller/grantor might stipulate upon sale/transfer?

          (As an extreme hypothetical, I could even give you a parcel of land and put in the deed that it’s subject to the stipulation that every 5 years you must roll a die and if you ever roll a 3 then I get the land back.)

          1. Ken, that certainly is the thinking of Dyk — the power to create a right is the power to destroy it.

            But check Curtis v. Loether. Even newly created rights that are provided legal remedies have a right to a jury trial.

            But neither patents or copyrights are newly created. They were the stuff of common law, and the rights and remedies litigated at common law have a right to remain in a court of law.

  8. Disagree re assessment of mootness. If the process if recalibrated as advisory per con law principles, then updating BRI to plain/ordinary meaning* would go a long way in terms of preserving the usefulness of the administrative mechanism in an advisory role. Where the Article I tribunal applies the same standards as the Article III court, the Article III Dist. Ct. judges are more likely to grant the administrative expert opinion deference.

    *(unclear whether there is sufficient ambiguity in the statute for the SCOTUS to do this)

    1. “Recalibrating” of this order is itself a constitutional violation.

      Or did you forget that it was the Legislative Branch that wrote the statutory law that is patent law?

        1. What a bizarre post, David.

          Why would I be nervous?

          You are not an attorney, are you? You show no spine or recognition of a defective argument at all. You are just another Echo fixated on me. Maybe you want to shore up that argument that you never completed in talking about the frailties of this law, the AIA and the limitations imposed by the well known fact that separability was on the table and expressly rejected by Congress, thus the Court cannot put into place any “resolution” that has the effect of what was rejected.

          Instead of baseless ad hominem, can we see some actual cogent legal thinking from you?

          Your past record indicates no, but hey, it’s a new year and all.

          1. …and one week later shows that “David” was just another drive-by monologuer who did not like the “feelings” that my posts produced.

            Clearly unable to say anything legally cogent, all he had to offer was baseless ad hominem.

            Something apparently “OK” under the “rules” as enforced on this “ecosystem.”

            1. …oops a little early with that post – but let’s see my Vegas bookie cover the bet that within a week that David will still be silent as to completing a cogent legal counterpoint….

              1. …and let’s see…

                Nope, David was not interested in an actual discussion on the merits – he just wanted to throw up his little drive-by baseless ad hominem.

                (pssst, I am not surprised)

                  1. Except David, you did no such thing.

                    In fact, you F A I L ed to get me to do your research and write your argument for you.

                    You still get that F. U need to catch up, son.

                  2. Dennis has agreed to ban you (by IP address) plus all parallel accounts (by IP address) if and when the SCOTUS rules against the IPR statute and the AIA does not collapse.

                    Boxed in, child.

                  3. That makes no sense, son.

                    Any such “dictatorial” censorship would prove nothing.

                    The fact that you seem to imply a desire – and action to put such into force – speaks rather negatively of you.

                    You still get thatF. U still need to up your game.

  9. The Supreme Court has consistently held that matters adjudicated in the law courts of England prior to 1792 enjoy a right to a trial by jury. As noted by the Cooper brief, actions to have a patent declared invalid were in fact litigated in the law courts of England prior to 1792 and did in fact have a right to a trial by jury. Our own brief to the Federal Circuit made the same point, and our oral argument was heavily focused on this issue.

    I do not understand Cooper to argue that a patent owner can be haled into the patent office against his will and have his patent be determined to be invalid and have that decision in any way affect a subsequent jury trial. I think that this in fact would be inconsistent with a right to have the issue be decided by a jury and not by the patent office. This creates a problem in the question presented.

    But his brief does point out, and I fully agree, that the Federal Circuit reasoning that every federally created statutory right is a public right must be wrong. Such a rule would effectively state that only state law claims had a right to trial in an Article III court and no “cases” involving rights created by federal statute would have such a right, even if they involved legal remedies of the kind litigated in the courts of England prior to 1789. This reasoning is bizarre given that the judicial authority is over Cases, in Law and Equity, arising under the Constitutional and Laws of the United States. But the reasoning of the Federal Circuit essentially eviscerates the “arising under the laws” part of the Constitution.

    Clearly, as held in Curtis v. Loether, if Congress creates a new legal right, legal remedies involving that legal right enjoy a right to a trial by jury. Specifically citing Curtis, the Supreme Court in Granfinanciera held that Congress could not assign to administrative tribunals the trial of such legal rights as that would effectively deny the right to a trial by jury.

    But as we know, patents are not even “new” legal rights, but are the stuff litigated in common law courts of England prior to 1789 and thus presumptively enjoy a both a trial by jury regarding invalidity and a right to be litigated in an Article III court.

    The importance of the issue here is self evident. Hopefully, the Supreme Court takes up the Cooper petition, but that last bit about “advisory opinion” might be a roadblock.

    1. “Clearly, as held in Curtis v. Loether, if Congress creates a new legal right, legal remedies involving that legal right enjoy a right to a trial by jury. ”

      Iirc that’s only for private rights brosefus.

      1. Curtis:

        “Whatever doubt may have existed should now be dispelled. The Seventh Amendment does apply to actions enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law.”

        Now, 6, does a patent owner have a legal remedy? Of course: Then a patent is a legal right, not a public right.

        154: 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, of the right to exclude others from using, offering for sale or selling throughout the United States, or importing into the United States, products made by that process, referring to the specification for the particulars thereof.

        35 U.S.C. 281 Remedy for infringement of patent.
        A patentee shall have remedy by civil action for infringement of his patent.

        35 U.S.C. 284 Damages.
        Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.
        When the damages are not found by a jury, the court shall assess them.

        1. “Then a patent is a legal right, not a public right.”

          Again, as we’ve discussed, you’re focusing on the “patent” and the “remedy for INFRINGEMENT” and what kind of rights it/those are, which of course are a legal PRIVATE right. You’re not focusing on the right to bring an INVALIDITY proceeding. The right to bring an action on those grounds up in the PTO is a public right. Thus, yar boned brosef. You don’t get a jury trial on demand for just validity. Patent owners were used to getting to go to the jury for validity because it always happened in an infringement proceeding (otherwise people lacked standing). Now, wooop!

          1. 6, the reason that infringement actions enjoy a right to a trial by jury in court is because infringement actions were litigated in the common law courts of law in England prior to 1792 and had a right to trial by jury. Similarly actions to revoke a patent for invalidity were by litigated in the common law courts of England and have a right of a trial by jury.

            There is no basis to distinguish types of actions litigated in the courts of England because the Supreme Court is never made that distinction. If a cause of action was litigated in the courts of England at common law and had a right to a trial by jury it enjoys a right to a trial by jury in a court of law in the United States by the constitutional mandate of the seventh amendment.

    2. Patents do not fit very well in the private/public right distinction, in my opinion. It feels like its somewhere in the middle. I think you make a good point, Ned, that there is a private right of action, which suggests its not just another public right. But here are questions that must be answered for this challenge to prevail:

      Is there any other private right that has an expiration date?

      If Congress were to cancel the patent statute, or like the statute of monopolies, cancel most patents and start the patent system over again, could they do so without it being considered a taking?

      If a patent was a private right, why was it necessary to include in the Constitution that Congress had the right to protect it? Is there any private right that is protected explicitly in the Constitution?

      And why did the Constitution give the option of protecting this right, instead of mandating it? Is there any private right that protection of it is optional? That seems to fly in the face of other property rights.

      1. By the way, the preclusive effect of the IPRs are problematic from a separation of powers point of view. But I believe that IPRs are still constitutional.

          1. I understand the argument but I have yet to come to a conclusion on that point. I don’t think that it is of the same property right as real or tangible property, but I might be persuaded on other grounds.

            1. J, see the post about to 6 on this as well.

              However, in the case of copyrights, that are also created under federal law according to the Constitution, the Supreme Court has held that actions to enforce copyright rights to collect statutory damages enjoy a right to a trial by jury because under English statutes the rights of authors could be enforced in the common law courts of England and had a right to a trial by jury.

              Similarly, therefore patent enforcement actions in the United States have a right to a trial by jury regardless that patents are created by federal statutes because actions to enforce patents enjoyed a right to a trial by jury at common law.

              But not only did the English statutes grant a patent owner a right to enforce his patent in a common law courts, but they required that validity be determined according to common law. Pursuant to that, infringement defendants had a right to defend in court based upon invalidity and that too was tried to the jury. Furthermore the common law provided a right to revoke a patent for invalidity via the writ scire facias , which actions were alternatively tried in the English common law courts or in the common law side of Chancery and they had a right to a trial by jury.

              Thus under the consistent jurisprudence of the Supreme Court, a patent owner has a seventh amendment right to a trial by jury before his patent might be revoked for invalidity.

            1. It is well known, that in civil causes, in courts of equity and admiralty, juries do not intervene, and that courts of equity use the trial by jury only in extraordinary cases to inform the conscience of the court. When, therefore, we find that the amendment requires that the right of trial by jury shall be preserved in suits at common 447*447 law, the natural conclusion is, that this distinction was present to the minds of the framers of the amendment. By common law, they meant what the constitution denominated in the third article “law;” not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered; or where, as in the admiralty, a mixture of public law, and of maritime law and equity was often found in the same suit.

              Parsons v. Bedford, 28 U.S. 433, 447, 7 L. Ed. 732, 7 L. Ed. 2d 732 (1830)(“The suit was originally commenced by an attachment”).

      2. J, patents were protected under state law prior to the creation of the United States. Patents protect inventions and states are entirely within their right to protect patents with exclusive rights just as they are entirely within their rights to protect trade secrets, copyrights and trademarks.

        As for limited times, that is an interesting issue but even under common law patents existed and they were provided only for limited times. Even so the Supreme Court is already held that patents have a right to a jury trial in legal actions because they had a right to a jury trial at common law.

        1. State law under the Articles of Confederation. In 1790, the first patent statute was passed, less than a year after the Constitution. Its unclear whether state could grant patents if Congress did not. My guess is state are no longer allowed to do so under the Constitution, especially considering Gibbons v. Ogden (1824) which invalidated a state monopoly as an impermissible obstacle to interstate commerce.

          Forgetting the right to a jury for a moment, and focusing on the question of whether patents are a private right: is there any private right that has an expiration date on them?

          1. J, also I think that “state law” means actions litigated in the courts of England prior to 1789. See the concurrence of Chief Justice Rehnquist in Northern Pipeline.

          2. Thanks Ned.

            I feel like your argument is a circular. Patent cases were common law/state claims in England. Why? Because they are private rights? But why are they considered private rights? Because they were heard in front of juries.

            Here is the problem with using England law on this: the Statute of Monopolies invalidated all patents in England, and the system started anew. Did England have the right to do that in 1789, as well?

            I thought you would mention copyright. I’m sorry to move the goal posts on you, but is there any other example outside of intellectual property?

            1. J, even prior to the Statute of Monopolies that created statutory remedies for authors in their works, English common law recognized the right of an author to control first publication. Of course we also know from Roman law provided that one could not corrupt a slave for the purposes of the trade secrets of his master.

              Patents were first created in Venice in order to promote publication of new technology that were formally protected by trade secrets. And in England, the statue monopolies limited the right of monopoly in trade to inventions of new manufactures.

              But just as with copyright rights, English law did not create the invention. The rights involved were first created by the inventors and where his to keep secret. It is not true therefore that the rights to exclude others from making and using inventions once disclosed are solely creatures of statute. They depend upon real inventions been made in the first place by inventors.

              Now the reason for the limited times has to do with the fact that patents cover trade and monopolies over trade have to be limited in time. But that does not suggest that the ownership of invention is itself something the state created. Rather it is the property of the inventor and his to keep, or sell or disclose as he may see fit.

      3. “Patents do not fit very well in the private/public right distinction, in my opinion. ”

        Nah bro, patents, themselves are wholly private.

      4. “Is there any other private right that has an expiration date?”

        Sure – a lease.

        “If Congress were to cancel the patent statute, or like the statute of monopolies, cancel most patents and start the patent system over again, could they do so without it being considered a taking?”

        No, I think they’d have to at least let existing patents run their course. The law does say it’s “personal property” after all.

        “If a patent was a private right, why was it necessary to include in the Constitution that Congress had the right to protect it? Is there any private right that is protected explicitly in the Constitution?”

        This one’s less clear, but a possible reason could be the growing recognition of its importance at the time.

        “And why did the Constitution give the option of protecting this right, instead of mandating it? Is there any private right that protection of it is optional?”

        Because of federalism – e.g., note that the federal government has no power to protect you from trespassers on your land (only the states may do so). Tenth amendment.

        1. Regarding the last one, there’s also some question among scholars about what “securing” the rights means in the constitution – but if it (ever) means creating the rights from scratch, then that’s also a difference from other property but nevertheless does not detract from its nature as property.

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