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.
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….
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!
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.
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?
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.
“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.
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.
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.
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.
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” itself – even 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.
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.
“given that IPRs have at least as much DP built into ”
Not enough (for the explicit reasons given already – even in short declarative sentences).
“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.
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.
“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.
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.
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.
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…?
“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.
“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.
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.
“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)
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.
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?
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?
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).
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.
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.
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.
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.
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.
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.
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.
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?
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!
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).
“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.
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.
Martin, what case are you quoting from?
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….
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.
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.
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.
“anon” Rad (and understand) Sun Tzu
He’s so serious! Very literate, too.
LOLOLOLOL
LOL right back at you – jumping on a typo…?
Really?
That’s all you got?
Nice “rules” Prof.
“arguing with a streetcorner parolee from a mental ward.”
Nice “rules” Prof.
“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.
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.
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.
“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?
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.
Are high school students allowed on juries?
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.
“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.
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.
Your emotions are clouding your reasoning Mr. Snyder.
Emotional pleas just will not work.
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.
“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.
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.
“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.
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.
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.
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.”
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?
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.
Sorry Hayburn’s case.
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.
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.
Patents were never personal property.
Also “the law” changed nothing. Patlex dealt with this far before the AIA.
Wrong again anon