By Dennis Crouch and David Hricik
Kelley Drye & Warren, LLP v. Orbusneich Med. Co. Ltd., BVI, 2014 WL 1814204 (Conn. Super. Ct. Apr. 4, 2014). KDW Decision
In this case, the law firm of Kelley Drye (KDW) has sued Orbus to collect the $14,000,000 that it claims to be owed as part of its alternative fee arrangement for handling litigation on behalf of its then-client, Orbus, against Boston Scientific.
The basics: Orbus hired KDW to litigate its patent infringement and related common law claims against Boston Scientific. Orbus was advised that the suit would go quickly on the rocket docket of the Eastern District of Virginia. The fee-setup was a hybrid-contingency-fee arrangement with a guaranteed payout of $375,000 for pre-trial work and another $325,000 for the trial, if necessary. In the event of a settlement, the agreement called for KDW to then receive the full hourly rate for their work plus a “success fee” based on the settlement amount.
The case was filed in the Eastern District, but then was transferred to Massachusetts. Then, Boston Scientific moved for reexam and the suit was stayed. Thus, things were in a ditch:
At this point the exchange of correspondence between the parties (Defendants’ Exhibits B, C & D) make clear that: (1) the U.S. litigation begun by KDW on behalf of Orbus was stayed for possibly several more years; (2) no leverage whatsoever of the kind envisioned in Attorney Moore’s engagement letter (Plaintiff’s Ex. 2) had been brought to bear on Boston Scientific; (3) the settlement value of the U.S. litigation had minimal or no cash value at all; and (4) Orbus’ patents had possibly been placed in jeopardy by the continuing reexaminations. In reviewing the results obtained by counsel when determining the reasonableness of fees charged, the court cannot find on these facts that KDW added substantial value to Orbus’ legal interests as of July of 2012, after three years of litigation and millions of dollars of time expended.
Orbus then turned to replacement counsel. Their strategy had Orbus file a number of European actions, including ones in Germany, UK, Ireland, and the Netherlands. KDW was not much involved.
In 2013, Orbus and Boston Scientific came to a settlement resulting in a one-time payment to Orbus and a worldwide patent license for Boston Scientific. KDW then added-up its fees thus far in the litigation ($2.8 million) and added on its success fee bonus before sending its $14 million bill to Orbus.
When the (now former) client balked, KDW filed suit. In this decision, the trial court rejected KDW’s argument that it was entitled to pre-judgment relief, apparently in the form of some sort of state law attachment of Orbus’ assets. The question the court had to decide was whether KDW was likely to prevail on the merits.
Attorney fee arrangements are treated somewhat differently from ordinary commercial contracts – here the court indicated in can only enforce attorney fee arrangements to the extent that they are reasonable. All state professional responsibility rules prohibit the collection of unreasonable fees. Regarding reasonableness, a major question is whether the attorney exerted substantial effort and/or added substantial value.
Here, the European cases began after the US case was stayed. That fact aided Orbus’s argument that KDW added no value to the European cases. In addition, Orbus argued that the terms of the fee arrangement do not extend to those cases. And, if it had to pay KDW for the European monies then Orbus would effectively be paying “twice for the same legal service” since its European attorneys must also be paid.
Based upon these facts, the trial court stated:
[T]he court is unable to find even a reasonable suspicion that KDW would prevail on the merits at trial, and that the trier of fact would find the superseding contingent fee agreement enforceable in the full amount of $14,560,000.00.
At this point, the court has denied preliminary relief, but KDW still has the opportunity to prove its case at the trial.
OT,
But wherefore now, In re Nuitjen?
link to theverge.com
Once you’ve turned light into matter mayhap you’ll have something eligible. I don’t see why this involves Nuijten.
“ I don’t see why”
Of course not. Your belief system blinds you yet.
“Once you’ve turned”
past tense…?
(… read the article 6 – the article is speculating on an improvement of something already done)
Another example of you and your projecting habits, as elsewhere you implore me to read without misunderstanding, while it is you that happens not to be able to do so.
“past tense…?”
No, “have turned” is the present perfect tense.
I stand corrected.
Thanks DanH for finding the right tree in the wrong forest.
(the past tense – right forest – is that the making of photons into particles has already happened – just not in a manner that one does not use other matter)
In that regard, 6’s statement is not correct (whatever the tense).
Of course my statement is “not correct” because Mr. OCPD says so. Only Mr. OCPD can be “correct”. But instead of letting this ruin our interpersonal discussion anon I’ll overlook what you’re saying most recently.
However, when I talk to you about these sorts of fringe nonsense please do me a solid and just be glad you have someone to talk to about your wingnut ideas, k anon?
If you want to explain to us all, in simple terms that the everyman can understand, what this has to do with Nuijten I’ll do you a solid and listen to you. Right now I see Nuijten as simply saying light signals (and other signals) are not patent eligible as they are transitory etc. You say scientists now are theorizing yet another way of turning light into matter, this time using no matter and simply turning a huge amount of energy into matter (the opposite of what happens at a nuclear power facility). I don’t see the relevance. What a theoretical way of turning light into matter has to do with light itself (or signals made thereof) being eligible is not immediately clear to me. If you’d like to tell us all, in simple terms what the relevance is, then maybe some of us will talk to you about it. If you don’t want to, that’s cool too.
No 6, you are not correct merely because I say so.
You are not correct because, in fact, you are not correct.
That I say so is only indicative that I am sharing reality with you.
This is really not that difficult to understand.
Solid matter light has been created. The article exhibits a likely improved manner of creation.
First steps first – do you understand that?
“Solid matter light has been created”
There is no such monster and they are not proposing creating such a monster. The article is talking about making light (certain kinds of photons) into matter (various particles with mass) brosef. Not making some sort of hybrid light/matter beast called “solid matter light”. They’re merely proposing turning gamma ray (iirc) photons into electrons and other particles that have mass. As the article noted, this has already been done before, except before they had to use particles with mass along with light in the change process. The only new thing is that they aren’t going to be using those particles with mass in the conversion process, instead just using massless particles. Either way, no new thing called “solid light matter” has been proposed or exists as of now.
You need to know and understand enough physics to understand what the article is talking about before you continue this discussion. Take a few college courses.
Also recall that the whole paper is theoretical and hasn’t even been achieved. Thus, no matter what the article is proposing it hasn’t come to pass just yet brosefus.
“There is no such monster”
Obviously, you did not read the article which explicitly stated otherwise. (and yes, “solid matter light” should read solid matter from light” – that is clearly evident from the string of my posts – don’t be such a pedantic arse to hang your total argument on a typo)
You don’t need college training to engage in basic reading 6 – I do suggest that you learn how to master that simple skill before you get so haughty on these boards, as you just look like a total arse.
” solid matter from light”
Oh, well yes that is the subject of the theorization in the article. If it is so simple then I’m sure someone will try it out and we’ll just see if it works or not.
Note though that people have been theorizing about turning energy into matter for a long time. A long long time. So I wouldn’t get my hopes up.
” that is clearly evident from the string of my posts”
Sorry I thought you were just being a retard.
Alright so, we’re all more or less on board with the facts from the reference. The article has proposed an experiment that some scientists think will turn some light into matter (even though people have tried and failed to demonstrate that for probably a century). We both also understand that them proposing the experiment doesn’t mean it has been demonstrated just yet.
Now, carry on, let’s proceed down this wingnut path to where you ultimately arrive at something that is relevant to Nuijten.
“Oh, well”
LOL – “oh, well” indeed.
“Nevermind,” says 6 (in the best Emily Litella tones)
/face palm
Tell me 6 – what is the “so soundly established in physics” reason why the man-made changes in Nuitjen were not considered to be manufactures.
Are you even aware of the legal reasoning used and how that legal reasoning was built on a faulty foundation of physics?
Tell me 6 – you fancy yourself something of an aficionado in physics, right?
What was the basis in reality that the law as rendered in Nuitjen rests on?
“Tell me 6 – what is the “so soundly established in physics” reason why the man-made changes in Nuitjen were not considered to be manufactures.”
I don’t know about any “changes” or “man-made changes” in Nuitjen, I know there were some signals though. The signals were not considered to be manufactures at least for the reason that they were transitory and not within what the word “manufactures” or “products” would mean as a simple matter of law. If I recall correctly. The wording the court used was:
“A transient electric or electromagnetic transmission does not fit within that definition. While such a transmission is man-made and physical—it exists in the real world and has tangible causes and effects—it is a change in electric potential that,
to be perceived, must be measured at a certain point in space and time by equipment capable of detecting and interpreting the signal. In essence, energy embodying the claimed signal is fleeting and is devoid of any semblance of permanence during
transmission.6 Moreover, any tangibility arguably attributed to a signal is embodied in the principle that it is perceptible—e.g., changes in electrical potential can be measured. All signals within the scope of the claim do not themselves comprise some tangible article or commodity.7”
And that appears reasonable to me. From a physics perspective. And from an everyday perspective. Also from a legal perspective.
“Are you even aware of the legal reasoning used and how that legal reasoning was built on a faulty foundation of physics?”
Well I just talked about it above, so yeah I am, and was a few years ago.
“Tell me 6 – you fancy yourself something of an aficionado in physics, right?”
Sure, a bit. That’s why I’m bothering to discuss this with you in the first place.
“What was the basis in reality that the law as rendered in Nuitjen rests on?””
I’m not sure what you’re referring to as a “basis in reality” that “the law … rests on”. But what the court said has been set forth above. If you’d like to suggest a “basis in reality” that you feel like they rested “the law” on in Nuijten then I’ll hear you out.
“And that appears reasonable to me. From a physics perspective. And from an everyday perspective. Also from a legal perspective.”
LOL – your belief system gets in your way on all accounts.
At least you are consistent that way.
“In essence, energy embodying the claimed signal is fleeting and is devoid of any semblance of permanence during
transmission.”
Look up in the clear night sky and tell me of this “transience” thing.
“Look up in the clear night sky and tell me of this “transience” thing.”
Are you going to get to your point about the article at some point today or not? We’re not talking about me looking up into the sky and telling you about the gazillions of transient signals from stars that are shining down on me, we’re talking about the article and how it might be relevant to Nuijten. Please stay on topic.
You need to do a better job at reading comprehension 6 – those”transient” signals that you mention so casually have been around in most cases far far far far longer than any patent system in the known history of man.
Still feel “OK” about this from a physics standpoint (you know, a coldly rational one unaffected by your anti-patent belief system)?
“You need to do a better job at reading comprehension 6 – those”transient” signals that you mention so casually have been around in most cases far far far far longer than any patent system in the known history of man.:”
What does that, regardless of its veracity or not, have to do with the article?
“Still feel “OK” about this from a physics standpoint (you know, a coldly rational one unaffected by your anti-patent belief system)?”
I’ve heard your argument about transience before so yeah, it fails to convince me today just like it did years ago. I’m not going into the reasons why so that we can talk about the article. Could we talk about the article’s supposed relevance now?
It is not the veracity of the article, 6, but rather the ability (or lack thereof) of your reading comprehension of the article, and what the article portends to ordinary, objective physics-based understanding of reality and how the judicial (mis)understanding of that reality as exemplified in the In re Niutjen case all roll together to show that that case was in fact poorly decided.
“I’m not going into the reasons why”
LOL – of course not, as you would be forced to face the fact that you act, not in any sense of a rational and objective person of science, but rather in the sense of a lemming, marching up that anti-patent hill.
I have led you yet again to the water trough of wisdom, I cannot make you drink the water. That my friend is something that you must decide to do.
“It is not the veracity of the article”
I wasn’t talking about the veracity of the article re re. I was talking about the veracity of your previous assertion.
“6, but rather the ability (or lack thereof) of your reading comprehension of the article, and what the article portends to ordinary, objective physics-based understanding of reality and how the judicial (mis)understanding of that reality as exemplified in the In re Niutjen case all roll together to show that that case was in fact poorly decided.”
You’ve probably got a typo or grammatical error in there somewhere but I can’t tell where or what it is.
I already showed that I can read and completely understand the article, we’re in agreement on the facts set forth in the article remember?
The article doesn’t “portend” (indicate in advance) anything “to” an objective, ordinary, physics-based understanding of reality. I’m not even sure how you portend anything to an understanding. Something might portend (indicated in advance) x to a person. But I’m not really sure that you can portend (indicate in advance) something to an understanding. An understanding is something that you have right now, in the instant moment, if something has been indicated to you, then your understanding is changed, thus there is no way to portend something to an understanding.
Either way, and “pedantry” (pointing out your inability to express yourself so that I and others can understand you in English) aside, the only thing the article indicates at all (not necessarily in advance) is that some scientists have a plan that might work and that they expect will work.
If you think there is something else that the article indicates in advance that has to do with an “understanding of reality” then please SPIT IT OUT ALREADY FFS.
there is no question as to the veracity of my assertion, as I asserted what the article plainly had (and what you missed).
Try again.
Anon I don’t give two shts about the veracity of this that or the other thing. We’re agreed as to the facts of what the article explicitly said. Either you’re going to tell me something about this article that is relevant to Nuijten or we’re done talking. If you want to tell me something about what you feel like the article portends or implies or whatever then fine. If you don’t have anything to tell me about then fine.
The best thing I could do 6 is to get you to start thinking for yourself.
But you don’t care enough, or you are too afraid, or you are too wedded to your belief system, or, well, you have a million and a half reasons not to.
Not even appeals to the part of you that enjoys physics will get you to think objectively about anything.
Drink a little from the water trough that I have already led you to before you demand to be brought to even more water that you will refuse to drink.
The best thing I could do 6 is to get you to start thinking for yourself.
But you don’t care enough, or you are too afraid, or you are too wedded to your belief system, or, well, you have a million and a half reasons not to.
Not even appeals to the part of you that enjoys physics will get you to think objectively about anything.
Drink a little from the water trough that I have already led you to before you demand to be brought to even more water that you will refuse to drink.”
Well thank you for finally admitting that is the best thing you can manage. And trolling me for the last few days pretending that this article was in some way relevant to Nuijten.
That’s just it, 6 – the article is relevant.
Anyone having an objective viewpoint of science and physics would immediately see the relevance.
The fact that you do not – or that you are afraid to admit that you do – speaks volumes as to your symptoms of denying reality and/or over-imbibing in an anti-patent belief system.
anon, you are up on the AIA. Do you know why §306 was amended to eliminate the right of appeal to a District Court under §145 for ex parte re-examinations?
We have this from Wikipedia:
Judicial review of reexamination decisions
“Opponents noted that the AIA contained a provision that would deny the right of patent owners to obtain judicial review of adverse USPTO decisions in ex parte patent reexaminations by civil action in district court – a right that has existed under 35 U.S.C. § 306/ § 145 since the inception of reexamination in 1980. They contended that abolishing this right will leave direct appeal to the Federal Circuit as the only judicial recourse – an intolerable scenario for patent owners who need to rely on evidence that was unavailable during the administrative appeal stage.[44] Opponents contended that this provision will exacerbate ex parte reexamination abuses by creating an unprecedented end-run around Federal District Courts in potentially all patent disputes. They warned that alleged infringers would simply file ex parte reexamination requests with USPTO, receive a final agency decision subject only to Federal Circuit review, essentially bypassing Federal courts. Opponents feared that given the deference the Federal Circuit must accord the agency (Zurko), large number of prospective/alleged infringers would choose this new favorable path to challenge a patent, overwhelming the USPTO, causing much lengthier delays in reexamination and holding up patentees’ patent rights for years.”
Not noted here was the fact that the District Court in Patlex upheld the constitutionality of re-examinations because of this right of appeal to a District court which could conduct a trial de novo. A similar move by Congress in ’78 to remove bankruptcy jurisdiction from the District Courts resulted in the Bankruptcy Act being held unconstitutional.
(worth keeping in mind is the purposeful “too big to fail” aspect of the AIA, severabillity of any individual aspect of the AIA being found to be unconstitutional and the explicitrejection by Congress of an amendment that would have made the provisions of the AIA severable)
If a court were to draw a parallel to the Bankruptcy Act and hold a portion of the AIA unconstitutional, it is easily arguable that the entire Act would be unconstitutional, creating such a massive rollback in patent law as to be a de facto attempt by the writers of the AIA to make their work ‘judgement proof” along the lines of reasoning of constitutionality.
Such reminds me of the South Korean Chaebols, and their gambit under their own laws – a prime example of the Too-Big-To-Fail strategy.
(the refusal of Congress of including the amendment for severability can be likened to building the Titanic with deciding purposefully not to have any flood-protection bulkheads below the water line)
One unstoppable hole will bring down the entire ship.
Agreed.
Then we have the issue of 315. The PTO says it has the right to decide whether the petitioner is barred as a real party or privy based on prior suits and that dissatisfied parties, neither the petitioner nor the patent owner have a right of a appeal.
Even thought that position was just affirmed by the Federal Circuit in cases still to be discussed here by Dennis, the whole notation that the PTO can decide a JURISDICTIONAL issue and not have that issue be subject to appeal is itself unconstitutional.
Cf., Crowell v. Benson , 285 U.S. 22, 52 S. Ct. 285, 76 L. Ed. 598 (1932). “When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.[30] We are of the opinion that such a construction is permissible and should be adopted in the instant case. The Congress has not expressly provided that the determinations by the deputy commissioner of the fundamental or jurisdictional facts …. shall be final.”
But, according to the Federal Circuit and the PTO, congress in fact made the agency decision FINAL, directly violating the holding of Crowell v. Benson.
It appears that the crafters of the AIA were running amok in placing judicial power exclusively in the hands of the PTO.
The construction/interpretation dichotomy runs headlong into a Constitutional separation of powers issue.
As Prof. Hricik has provided some links on the topic (notably the writings of Calibrese), the use by the Court of the tool of construction (or re-construction) necessarily broaches the actual writing of law. In most areas of law that Congress writes, this may not be a critical thing. Patent law, however, is one of those things that authority to write is clearly provided for in the body of the Constitution, and is not something that the Court can legitimately ignore.
Even the Supreme Court cannot wave a magic wand over a hole in this AIA Titanic below the waterline and keep the ship from sinking. You cannot trade off one Constitution-proofing method and create a new, equally devastating one in its place.
anon, good point.
Then there is the whole issue regarding BRI that does so many patent owner in, that forces amendments that may cause the lose of damages.
In District Court, on appeal, the PTO cannot with a straight face argue BRI should control. I think this was a big part of staying away from District Courts.
Then there is the whole bit about the right to get evidence and trial de novo provided by a District Court. Kappos took that trial de novo issue to the Supreme court in Hyatt and lost, but that was in 2012, after the AIA.
As a whole, it looks like a large power grab by the PTO in cutting out District Courts.
The loss of damages (potential loss that is) is a bit more tricky and nuanced.
I do agree that the notion of an amendment causing loss of the doctrine of equivalents can be (but not always necessarily will be) problematic.
One possible (and easy) out would be to give full faith and credit to the entire line of the doctrine of equivalents of any final claim, regardless of amendment, or timing of amendment, with the reasoning that any such claim merits full protection as a validly approved claim by the federal agency whose authority it is to pass such claims.
One may hear quibbling about “notice.” And without fully dismissing such quibbles (the negotiation on partial rights earned with mere publication do touch on that notice aspect), any such quibbles can be answered in that there still exists a no new matter rule, and that – in essence – notice is still available with the application as filed (and published).
Of course, those that drink deeply of the populist kool-aid (for example, Dobu) would cry out that publication alone is not sufficient of ANY notice to the public. Yes, both you and I know better, but that real knowledge will not stop the QQ.
Well, anon, we do have some on the Federal Circuit who seem to want to review BRI in the context of IPRs. Such claim construction should never be allowed with respect to an issued patent because, in practice, the claim construction is more like BUR construction. During the initial examination, there is justification to force clarity. But when the patent is issued — especially when any change is scope means no past damages?
Did you know in Europe that a narrowing of scope does not result in lost damages?
” any such quibbles can be answered in that there still exists a no new matter rule, and that – in essence – notice is still available with the application as filed (and published).”
An altogether laughable position that tosses notice of what the government has deemed to set aside for the patentee to the winds. But it will be fun to hear someone try that argument in court.
“cry out that publication alone is not sufficient of ANY notice to the public. ”
It isn’t that it is not sufficient “of” any notice to the public. It is that it is not notice of what has been set aside for the patentee by the government. Fundamentally that simply is not what mere publication of the app is notice of. Publication of the app is nothing but notice of what the applicant has disclosed and what his claims at the time of publication are.
6,
I suggest that you inform yourself of what we are discussing – that being pre-granted claims, in light of the negotiations that brought about pre-granted publication.
Thanks.
6, As I noted above, in Europe narrowing the scope does not relieve anyone of liability for damages. The theory is this: if it infringes before, and infringes after, it infringes.
I have always thought that particular section of the AIA carried with it some deicidedly underhanded (and un-discussed, and perhaps purposefully un(**)foreseen) consequences.
** – yeah, right 😉
Well, anon, you have been generally right on the AIA to date.
Ned you an anon seem to have had quite a bit of fun on this topic but you both seem to be missing the point of reexamination. The whole point is to take the initial decision away from the courts and put it with the agency. If they allowed you go just appeal the PTO’s decision to the DC then the whole point of reexamination away from the courts (the proceedings happening under administrative procedures, rules and law, no new evidence etc) is lost. The AIA simply clarified that such was what congress wanted. If it is unconstitutional then cool, get harmed and bring suit.
Not at all 6 – you appear to be missing something rather important about taking a granted right away and placing that in an agency context.
Mayer, from Markman,
But today’s action is of a piece with a broader bid afoot to essentially banish juries from patent cases altogether. If it succeeds juries will be relegated, in those few cases where they have any presence at all, to rubber stamps, their verdicts preordained by “legal” and “equitable” determinations that brook only one “reasonable” result. Indeed, this movement would vest authority over patent disputes in legislative courts, unconstrained by Article III and the Seventh Amendment. See In re Lockwood, 50 F.3d 966, 970 (Fed.Cir.1995) (opinion dissenting from order denying rehearing in banc)
Declaiming that the jury is a “black box” incapable of a “reasoned decision”, several judges of the court have already advised that they are aboard this campaign. Id., at 990. The quest to free patent litigation from the “unpredictability” of jury verdicts, and generalist judges, results from insular dogmatism inspired by unwarrantable elitism; it is unconstitutional.
Dennis why is a direct quote from Judge Meyer being held up?
“results from insular dogmatism inspired by unwarrantable elitism; it is unconstitutional.”
Take a closer look at this statement Ned, and realize that the Royal Nine is the pinnacle of insularity and unwarrantable elitism. Who else would declare that no matter what, their own implicit writings would not be made into dead letters?
King Chamberlain’s raiment is as threadbare as ever.
It is the very idea that judges who are not patent lawyers, specialists, “tradesmen,” have no business deciding patent cases, etc., which is the problem.
What did Scalia say just the other day in his speech?
lol, Ned – one must know their limitations.
6, you are absolutely right. Unconstitutional as all get out.
There is a right to a jury trial and actions to revoke a patent. Ex parte Wood and Brundage.
“There is a right to a jury trial and actions to revoke a patent. Ex parte Wood and Brundage.”
Well you still have the right to a jury trial or action to REVOKE a patent. They just gave you another, completely administrative, option.
I am sorry, 6, but it is the patent owner rights that are at stake.
If he wants back into the PTO, he can do so through reissue or reexamination, his choice.
But if he is forced back in against his will, and his patent is revoked by the PTO, he has lost his right to defend the patent in court and to a jury
The Supreme Court has recognized this per se in Granfinanciera, SA v. Nordberg, 492 U.S. 33, 109 S. Ct. 2782, 106 L. Ed. 2d 26 (1989). (“Legal claims are not magically converted into equitable issues by their presentation to a court of equity. …. Nor can Congress conjure away the Seventh Amendment by mandating that traditional legal claims be brought there or taken to an administrative tribunal.” Id. at 52.)
Ned,
I do not think that 6 is capable of understanding the legal point that you are attempting to make.
“But if he is forced back in against his will, and his patent is revoked by the PTO, he has lost his right to defend the patent in court and to a jury”
I agree, now if only that “right” was somewhere made explicit as “right” then you’d be all good to go. As is, the whole system is nothing but a big entitlement program and is wholly under the thumb of one entity known as “the congress”. In other words, the congress that gave you that “right” has now taken it away in one context.
And yes, I’m familiar with the “principle” or “point” you’re making. I’m simply telling you that it isn’t as well founded as you like to belieb. And, if you think otherwise, then sue someone and let’s let the lols start rolling when they send you for a reexam and you try to appeal to the DC and render the reexam statute unconstitutional. I’m down for those lols. Yes sir. Whether you win or lose I get lols.
You know though Ned, this does bring up a good point. What if the congress decided, at its whim, to take the whole of patent validity/infringement/whatevz jurisdiction away from the courts all together and vest it in an agency called the PTO or perhaps the “Issued Patent Assertion Office”? Would that be kosher? No more dealing with the courts or their nonsense. Just take em out of the picture entirely. What do you think?
“I agree, now if only that “right” was somewhere made explicit as “right” then you’d be all good to go”
It is.
He is.
(you need to take a property course to understand the bundle of rights concept and the fact that a patent grant creates that bundle of rights that is removed from the executive agency ability to recant (see Ned’s prior posts on scire farcis [sp?]).
Well, 6, the SC recently indicated in Markman that there is a right to a jury trial in infringement cases. I assume the court would say that congress did not have the power to pull infringement cases out of the courts.
Part and parcel to every infringement case is that the defendant has the legal and constitutional right to question the legal basis for the claim, not just whether he infringes. The defense to infringement that a patent is invalid has always enjoyed a right to a trial by jury. See, ex parte Wood and Brundage.
The SC has held that while congress may create new statutory rights, it cannot withdraw from the courts jurisdiction to independently assess jurisdiction, standing, and the like. See, Crowell v. Benson. Thus, while it is true that congress can wholly withdraw patents, if it creates a right to a patent, such that it might be granted, it cannot withdraw the right from either the patent owner or the defendant a right to a trial by jury for a legal claim.
Public rights is a doctrine of sovereign immunity — government operating in a sphere in which it historically it operated without the assistance or interference from the courts. Court-martials, is one such area. The original public rights case, Murray’s Lessee, involved a customs official who treasury ascertained owed them money after an audit. Crowell v. Benson listed the following as “public rights:” “Familiar illustrations of administrative agencies created for the determination of such matters are found in connection with the exercise of the congressional power as to interstate and foreign commerce, taxation, immigration, the public lands, public health, the facilities of the post office, pensions and payments to veterans.” Id. at 51 Murray’s Lessee also talked about “political questions,” such as whether or not there was a rebellion, a state of war, diplomatic relations, the conduct of military operations and the like — government acting in its sovereign capacity.
But the liability of one person to another is not a public right, but a private, even when a new statutory right is involved. Crowell v. Benson. When the statutory right is analogous to a right that was litigated in the courts of England in 1789, it is a matter that cannot be withdrawn from the courts. Northern Pipeline. Ditto in spades if the matter has a right to a trial by jury. Granfinanciera.
There seems no way that either a patent owner or an infringer could be thrown into the PTO for a full infringement trial without their mutual consent. But, as we see in Stern v. Marshall, consent is not enough to make such trials constitutional. They would be more like mediations, and would have no collateral or res judicata effect.
” the SC recently indicated in Markman that there is a right to a jury trial in infringement cases”
Yes, that is in infringement cases (i.e. when you’re in the court), not in an administrative procedure (i.e. when you’re back in the PTO via the order of congress).
“I assume the court would say that congress did not have the power to pull infringement cases out of the courts.”
Very interesting there Ned. Why do you think that? What magic forces congress to administer its entitlement program through the court system?
I frankly don’t think there is any such magic. It’s just the way things were done in the past. Tradition. And guess what? Tradition done got busted up on the reexam front because people couldn’t resist abusing patents. Congrats.
“Part and parcel to every infringement case is that the defendant has the legal and constitutional right to question the legal basis for the claim, not just whether he infringes. The defense to infringement that a patent is invalid has always enjoyed a right to a trial by jury. See, ex parte Wood and Brundage.”
That is all in the litigation context not the administrative review context.
“it cannot withdraw from the courts jurisdiction to independently assess jurisdiction, ”
Perhaps not. But that doesn’t stop congress from reassigning jurisdiction outright.
“Thus, while it is true that congress can wholly withdraw patents, if it creates a right to a patent, such that it might be granted, it cannot withdraw the right from either the patent owner or the defendant a right to a trial by jury for a legal claim.”
And why would that be? I’m missing the magic part that forces congress to utilize the courts to hear patent claims against other folks.
“But the liability of one person to another is not a public right, but a private, even when a new statutory right is involved. Crowell v. Benson. When the statutory right is analogous to a right that was litigated in the courts of England in 1789, it is a matter that cannot be withdrawn from the courts. Northern Pipeline. Ditto in spades if the matter has a right to a trial by jury. Granfinanciera.”
Well that’s all very interesting. What a tangled web you weave. Good luck with that in court. Frankly I think you have somewhere around a 0% chance of getting the courts to overrule the will of the people as expressed by congress on this matter.
“There seems no way that either a patent owner or an infringer could be thrown into the PTO for a full infringement trial without their mutual consent.”
Well they’re sure as f thrown into a far flung district court in the ED TEX so I see no reason why they couldn’t be. Though I’m sure you have some sophisticated reasoning why not.
In either event ned, all this is tangential to the question we’re after – whether there is a problem with the reexam setup. And frankly even if there is some problem or other with withdrawing all patent cases from the courts to the PTO (or another agency, say Commerce maybe) I don’t think that really bears on the question we’re really after because even if there is some small problem with that, then it doesn’t mean that there is a problem with them doing what they have with reexams. The whole side situation is simply an experiment to help illuminate whether it would really be problematic to have reexams as they are.
“a patent grant creates that bundle of rights that is removed from the executive agency ability to recant”
It used to anon, it doesn’t anymore in the reexam context. From whence do you think these magical “bundle of rights” spring? The aether? They spring from the statute, and the statutory ways of invalidating the patent. I’m not really sure where you and guys thinking like you on this subject get your idears from, but it sure as f ain’t tha lawl as written in the statute.
6, you do know that we have a 7th Amendment?
Congress does not have the power to deny a constitutional right. That is what you seem to miss.
“Congress does not have the power to deny a constitutional right.”
You have yet to identify what “constitutional right” you think congress is “denying”. Go ahead, we’re waiting.
But yes, I’m aware that we have a 7th amendment.
6, the right to have a trial by jury when his patent is subject to revocation by the government in whole or in part.
ex parte Wood & Brundage, 22 U.S. 603, 6 L. Ed. 171, 32 S. Ct. 589 (1824)(Story, J.). link to scholar.google.com
I told you Ned, 6 is just not capable of understanding this topic.
Great decision Ned, and it demonstrates what your problem is. You’re trying to rely on the “in suits at common law” portion of the constitution to establish a “right” in a case that isn’t a suite at common law. And you’re trying to rely on an old case that explicitly goes out of its way to note that they were not going to construe the patent act in the way that the congress has now explicitly amended it.
Note how in the decision they rely on the patent act, and not the constitution, and they talk about suits in common law:
“Both of these objections are founded upon the provisions of the 10th section of the patent act, and must be decided by a careful examination of those provisions. ”
“This question must be decided by the terms of the section in controversy; but in the interpretation of those terms, if their meaning is somewhat equivocal, that construction ought certainly to be adopted which, not departing from the sense, is most congenial to our institutions, and is most convenient in the administration of public justice” <<< also note the horrible run-on sentence.
"In suits at common law, where the value in controversy exceeds 20 dollars, the constitution has secured to the citizens a trial by jury. "
Note then that the court didn't want to presume that the congress created back then what the congress has now explicitly created in modern times:
"It is not lightly to be presumed, therefore, that Congress, in a class of cases placed peculiarly within its patronage and protection, involving some of the dearest and most valuable rights which society acknowledges, and the constitution itself means to favour, would institute a new and summary process, which should finally adjudge upon those rights, without a trial by jury, without a right of appeal, and without any of those guards with which, in equity suits, it has fenced round the general administration of justice."
But the court does not say that the congress doesn't have the power to make a new process (regardless of the summary nature/or administrative nature), that should finally adjudge upon those rights, without a trial by jury, (though with a right of appeal to the federal circuit), and without any of those guards with which, in equity suits, it has fenced round the general administration of justice.
The reason the court doesn't say that is because the congress does have that power. And they just now utilized it.
The congress removed the reexam proceeding from suits at common law. Or rather, they created it as an alternate route alongside the suits at common law. You no longer enjoy the right to which you are referring in this "other" proceeding.
I know I know, you may have another decision that indicates (in your view) that so long as x was an issue decided by courts back 200 years ago that it has to be decided by courts now. Frankly I doubt that it has to be EXCLUSIVELY decided by courts now. Nowadays you could have a proceeding in courts or a proceeding in the newly authorized agency route. And I doubt that the courts would give the decision you cite the weight you want them to.
If you still think differently, then BY ALL MEANS, I invite you to bring the lulz for me. Bring em in barrels.
________________
Just an FYI, the court even in that case notes how limited their jurisdiction was in that matter:
"The jurisdiction given to the Court, is not general and unlimited, but is confined to cases where the patent was obtained surreptitiously, or upon false suggestions; where the patentee resides within the district; and where the application is made within three years after the issuing of the patent."
The jurisdiction was limited by congress, by statute, and congress gets to put it where they want it. Say, in an agency.
Also for lols:
"It would be somewhat surprising if, after such anxious legislation, there should exist in the act a clause which, in a summary manner, enables any person to repeal his patent, and thus sweep away his exclusive property, without interposing any guards by way of appeal, or any regular proceedings, by which the validity of titles, in ordinary cases, is examined and contested."
I agree such would be surprising back when, and would be today if not for the now explicit words of congress on the subject in modern times in the AIA.
Ned my comment awaits moderation. The jist of it is simply that the case you just cited doesn’t establish some sort of constitutional right to have a trial by jury AT ANY TIME his patent is subject to revocation by the government in whole or in part. That decision is quite clear that that they’re saying there is a right to a trial by jury when the suit is a suit in common law. Re exams, for what feels like the millionth time, are not suits in common law. That means they fall outside the 7th amendment.
Note also that the very decision you cite note how strange it would be to presume congress to have made an alternate route around suits at common law back then without being straightforward in explicitly adding such a route to the law. Guess wut? Now congress went ahead and explicitly added an alternate route around suits at common law. And the court in your decision certainly did not say that congress lacked that power.
6, consider, again, that if one has a right to trial by jury, congress has no power to assign adjudication of the right to an administrative agency. Granfinanciera.
Also, the US Supreme Court has already ruled that Congress has no power to allow the PTO to reexamine a patent after issuance. McCormick Harvesting Machine Co. v. Aultman, 169 U.S. 606, 18 S. Ct. 443, 42 L. Ed. 875 (1898).
link to scholar.google.com
6, it is you who is insistent that congress has the right to abrogate a 7th Amendment right. They do not.
Ned,
6 does not understand what the constitution means in the sense of what “unconstitutional” entails.
He really does think that all of this “lawl”stuff is completely subjective, up in the head, make up anything you want – and is so for any and everybody.
I have tried to teach him otherwise, but he clings too tightly to his belief system.
6, regarding the 7th Amendment, it simply refers to actions tried in the courts of law, in England, prior to 1792. That includes patent infringement, patent validity and patent revocation — all.
The SC has made this clear. See, esp., Tull v. United States, 481 U.S. 412, 107 S. Ct. 1831, 95 L. Ed. 2d 365 (1987) at Section II. link to scholar.google.com
In Granfinanciera, SA v. Nordberg, 492 U.S. 33, 109 S. Ct. 2782, 106 L. Ed. 2d 26 (1989) link to scholar.google.com, the Supreme Court further made clear that new Federal Statutes are covered by the 7th Amendment if analogous actions were tried in the English law courts. Patent infringement, patent validity and patent revocations all were tried in the courts of England prior to 1792.
I hope this helps. The distinction you make has no basis in the law.
6, my reply to you is awaiting moderation. I provide citations to Tull v. US, and Granfinanciera v. SA Norberg.
But, the distinction you are trying to make between common-law rights and statutory rights is not the correct distinction. The seventh amendment applies to actions tried in the English courts of law prior to 1792, and federally created statutes that are analogous to causes of actions tried in the Law courts of England prior to 1792 are covered by the 7th. The SC has said that patent infringement has a right to a trial by jury.
If you read In re Lundberg, you will find that patent infringement, patent validity, and patent revocation for all causes of action tried in the courts of England prior to 1792. The first two were tried in the law courts, while in patent revocation, disputed facts were tried to juries in the law courts.
Regardless of this fine detail with regard to revocation, the revocation action was commonly known as an action scire facias, and it had a right to a trial by jury as noted by Justice Story in ex parte Wood & Brundage.
Well I apparently cannot post anymore. Seeing if this posts.
“6, consider, again, that if one has a right to trial by jury, congress has no power to assign adjudication of the right to an administrative agency. Granfinanciera.”
We’ll look at gran below.
“Also, the US Supreme Court has already ruled that Congress has no power to allow the PTO to reexamine a patent after issuance. ”
The USSC said no fu cking such thing. Jesu s chr ist Ned. Read the decision.
From the old timey decision:
“Our conclusion upon the whole case is that, upon the issue of the original patent, the Patent Office had no power to revoke, cancel or annul it. It had lost jurisdiction over it, and did not regain such jurisdiction by the application for a reissue.”
They simply held that back then the patent office had no power to revoke, or cancel or annul the patent. This is because congress hadn’t granted that power. That is not a holding that the congress cannot grant that power to the PTO. Je sus chris t. Huge difference between the two things. You’re a lawlyer, screw your head on straight.
“6, regarding the 7th Amendment, it simply refers to actions tried in the courts of law, in England, prior to 1792. ”
Of course. You’re quite right of course about what the 7th amendment is referring to, suits (court proceedings) that were not suits in equity back in 1791. That is beyond question, you don’t need to cite a case about it.
“That includes patent infringement, patent validity and patent revocation — all.”
Only when we’re talking about SUITS, proceedings in court. We’re not simply talki
Sorry typo at end due to pasting.
“6, consider, again, that if one has a right to trial by jury, congress has no power to assign adjudication of the right to an administrative agency. Granfinanciera.”
We’ll look at gran below.
“Also, the US Supreme Court has already ruled that Congress has no power to allow the PTO to reexamine a patent after issuance. ”
The USSC said no fu cking such thing. Jesu s chr ist Ned. Read the decision.
From the old timey decision:
“Our conclusion upon the whole case is that, upon the issue of the original patent, the Patent Office had no power to revoke, cancel or annul it. It had lost jurisdiction over it, and did not regain such jurisdiction by the application for a reissue.”
They simply held that back then the patent office had no power to revoke, or cancel or annul the patent. This is because congress hadn’t granted that power. That is not a holding that the congress cannot grant that power to the PTO. Je sus chris t. Huge difference between the two things. You’re a lawlyer, screw your head on straight.
“6, regarding the 7th Amendment, it simply refers to actions tried in the courts of law, in England, prior to 1792. ”
Of course. You’re quite right of course about what the 7th amendment is referring to, suits (court proceedings) that were not suits in equity back in 1791. That is beyond question, you don’t need to cite a case about it.
“That includes patent infringement, patent validity and patent revocation — all.”
Only when we’re talking about SUITS, proceedings in court. We’re not simply talking about individual issues like infringement, validity or revocation. We’re talking about suits brosef, proceedings in court.
“In Granfinanciera, SA v. Nordberg, 492 U.S. 33, 109 S. Ct. 2782, 106 L. Ed. 2d 26 (1989) link to scholar.google.com, the Supreme Court further made clear that new Federal Statutes are covered by the 7th Amendment if analogous actions were tried in the English law courts. Patent infringement, patent validity and patent revocations all were tried in the courts of England prior to 1792.”
You’re telling me that you read a decision about the USSC granting someone a jury trial rather than an ordinary bench trial proceeding for fraud (what used to be an equitable issue in the courts way back when in england) as the judge in that case originally gave them, to mean that all issues that were tried in english law courts back 200 years agoe are now stuck in the courts forever?
Preposterous nonsense Ned. You go way beyond the holding of that case. Not to mention you think that the USSC has the power to take away congresses power to determine, entirely, how the legal system will be setup (within the overall constitutional framework that it itself can amend) as the voice of the people. Preposterous.
You’re going to be loled out of court if you bring this nonsense.
I’m loling at you right now dude. You have 0 chance.
Congress has the power to assign jurisdiction. So sorry. And the 7th amendment refers to actual suits (court proceedings) that are analogous to old timey english suits. It doesn’t, on an issue by issue basis determine that those issues must be decided by a court rather than an administrative agency if the congress says it wants the issue to be decided by an agency rather than the courts. Sorry brosef. It just doesn’t.
He ck, your case even says outright:
“We have consistently interpreted the phrase “Suits at common law” to refer to “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.”
Guess wut brosefus? A reexam is not a suit at all, much less a suit 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. So sorry. Not a suit. And that case doesn’t hold that every issue must be handled in a suit regardless of congresses wish. That case merely holds that, when we’re having a suit, you have to get a jury trial, rather than a bench trial or other court proceeding, when it comes to instances where there are rights to be ascertained and determined, as opposed to instances where solely matters of equity were concerned.
That’s it. That’s all. To read more into the 7th amendment than that along the lines you’re wanting is preposterous.
And be clear, it isn’t just me making this distinction. Your congress made that distinction in writing the AIA.
The tiny one 6 cannot take a hint.
At 1:47 of link to youtube.com
6, The whole point of McCormick Harvesting is that property cannot be revoked by the executive against the will of the owner, that congress cannot assign to a legislative tribunal that power, as it is constitutionally exclusive to the courts.
The cited cases rely on Marbury v. Madison, among other cases.
Ditto the right to a jury trial. Congress cannot permit a legislative tribunal to try cases that have a right to a trial by jury. Let’s quote Granfinanciera,
“6, The whole point of McCormick Harvesting is that property cannot be revoked by the executive against the will of the owner”
Horsesht, that is not what they held. And it wasn’t even explicitly at issue in the case. You’re implying that it was at issue, and then you’re implying that it was the “whole point”. They didn’t even touch that subject explicitly. You think the USSC is hiding an elephant in a mousehole.
“, that congress cannot assign to a legislative tribunal that power, as it is constitutionally exclusive to the courts.”
They didn’t talk about that what so ever in the case. You’re just making that up out of whole cloth.
“The cited cases rely on Marbury v. Madison, among other cases.”
Whoptie do. They cite to a case where the courts themselves ruled that they didn’t have jurisdiction because congress overstepped in having given the courts too much jurisdiction, and you want to now bring that up as a plus for your side being able to claim that the courts have jurisdiction over all these patent law questions no matter the will of the congress? Preposterous.
“Ditto the right to a jury trial. Congress cannot permit a legislative tribunal to try cases that have a right to a trial by jury. ”
You’re asserting that based on nothing. And let me tell you they did permit an aministrative “tribunal” to “try” (here they really just “decide”) cases that, if they were in court, would have a right to a trial by jury rather than having a judge do a bench trial. And Granfinanciera doesn’t say otherwise, we’ll talk about it in a sec. Nothing else says otherwise either. And keep in mind, that the decisions of this article 1 tribunal are ultimately reviewed by the federal circuit (article 3 court) and involve a newly created public right, the right of citizens to have a patent reviewed for validity by the agency. So it’s all cool mah brosefus.
6, once again, you are saying congress has the power to do that which the supreme court says they do not have the power — based on Art. III and the 7th Amendment.
In order to justify reexaminations, they are going to have to overrule a long line of authority that goes back to Marbury v. Madison, ex parte Wood, Murray’s Lessee, Tull v. US, Granfinanciera and ends in Stern v. Marshall. And you think we have no chance?
Really?
Can you cite me one case, just one, were congress withdrew private rights from the court system and allowed such rights to be revoked by the executive against his will and where the Supreme Court upheld that law? Just one?