Does the Constitution Provide for a Right to an Injunction in Patent Cases?

Summer is almost here — How would you fare on this final exam question:

The Progress Clause (Article I, Section 8, Clause 8) of the U.S. Constitution provides that:

“Congress shall have the power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Using this clause as a basis for analysis:  

  1. Would it be Constitutional for Congress to eliminate the right to an injunction for patent infringement?
  2. Would it be Constitutional for Congress to modify the right to an injunction so that one is only available if the patentee is “making use” of the invention?

15 thoughts on “Does the Constitution Provide for a Right to an Injunction in Patent Cases?

  1. 14

    For all practical purposes, Constitutional amendment is the only way to remove a Constitutionally enabled right once put in motion by Congress then established in 200+ years of legal tradition.

  2. 13

    Unfortunately the “due process” clause effectively prohibits the removal of any right once it has been granted to the people. Plus law in general pivots on the idea of irrevocable traditional.

    If Congress does not wish to people to have a certain right their best course is to not ever grant it in the first place.

    So no Congress cannot remove patent rights except by a very long process of erosion or face being overruled by the Status quo for which the Supreme Court stands 99% of the time. And that 1% deviation is itself 95% for social agendas not financial or technical areas.

  3. 12

    1. No.
    2. No.

    All other posters should get marked 20% off for thinking that this was some sort of essay question!

    But I do have a comment: it is noteworthy that the word, “discoveries,” was used by the Framers instead of the word “inventions.” The former word is much more general than the latter and includes somewhat abstract things such as equations and the process of fusion. Their word choice makes the answers to your exam very clear.

    It also answers the related question of whether or not “patent trolls” (entities that discover new technologies but that, typically to enjoy an economies-of-scale cost benefit, outsource the mass-manufacturing of the products they patent to others more efficient at doing so) are legitimate: the Framers clearly wanted to reward basic R&D, not merely the final manufacturers.

    On the other hand, if Anon is correct, and “the consensus is that this clause of the constitution is just a bunch of meaningless words,” any answers questions #1 and #2 are correct, provided you have given enough apples to the teacher recently.

    Jason Taylor

  4. 11

    The PTP Patent Reform Library – June 1, 2005

    This post contains the PTP Patent Reform Library as of June 1, 2005. Background Information The following resources are considered by many to be the primary catalysts behind the current patent reform movement: The NAS Report A Patent System f…

  5. 10

    Mr. Crouch, it is an intriguing question.

    Patent Hawk,

    I disagree with your politics and I think that your statement is gratuitous on a patent blog. However, I agree with the substantive thrust of your argument as to this issue.

    While the clause is permissive, and thus limiting the right to injunctive relief might not be strictly unconstitutional, I think the intent of the clause was to allow patent holders to prevent, i.e. by injunction and preliminary injunction where there are facts showing irreparable harm, others from using their inventions. A patent in the U.S. is, and has always been, an exclusive right or right to exclude, and not a right to use, nor a “right” to enter into a compulsory licensing scheme. I think this is the correct result.

  6. 8

    I think its clear that the government can do this constitutionally and does not even have to pay owners for reduction of their rights as a result (as long as it does not amount to a taking, which I believe it would not here). However, I think a policy question is how fair is that ? Shouldn’t the government be taking more responsibility when it takes actions that diminish peoples existing rights, similar to the complaints people have made in the area of zoning and environmental issues ?

  7. 7

    Of course, the consensus is that this clause of the constitution is just a bunch of meaningless words. Because (i) the powers granted in the clause are already granted by the commerce clause and (ii) the powers granted by the clause are permissive and thus include no requirements.

  8. 6

    I challenge the “experts” (patent geeks devoid of legal common sense seems more descriptive of reality) who seek to turn your “question” into an argument to provide any originalist or other justification for their position. Not only is the clause a grant of power to Congress (not a requirement that any rights or remedies exist) but it has never been interpreted to mean that extraordinary equitable remedies are always required. I’d submit that any tweaking of remedies for patent infringment has no constitutional difficulties; rather, TRIPS could pose a barrier to abolishing patent injunctions (which is, of course, much more extreme a change than anyone is suggesting…). I’d suggest anyone caught making this argument be sent to remedial ConLaw training.

  9. 5

    Playing devil’s advocate (I actually agree with you :P), the same argument could be made for “Author” in regards to Copyright. There is nothing in the constitution I’m aware of that defines Author *or* Inventor.
    You are simply relying on connotations of the word in an attempt to say that the first to file is not *an* Inventor (note it doesn’t say secure to *the* Inventor). Relying simply on the literal words, you could grant this right to *any inventor* for their discoveries. Some definitions of discovery doesn’t actually require that the thing being discovered be new (to make known or visible), some do (to obtain sight or knowledge for the first time).
    I’m not sure what definition of discovery our founders were shooting for 🙂

    I’m also not sure if anyone has challenged the copyright act on the grounds that it gives rights to non-authors and non-inventors, under some definition of the word “Author” and “Inventor” (unless such a thing could be supported under some other power of congress).

  10. 4

    Constitutional argument against changing injunctive relief

    Dennis Crouch at the Patently-O blog raises an interesting point…is there a Constitutional argument regarding whether or not injunctive relief can be only available if the patentee is using the patent and/or injunctive relief could eliminated outrigh…

  11. 3

    The proposed patent law reforms also call for switching to a first inventor-to-file system. Is that Constitutional? Is the second, or third, or fourth, etc., person who conceives of and reduces an invention to practice, but who nevertheless files a patent application first, the “Inventor” named in the Progress Clause?

  12. 2

    The language of the clause says Congress is empowered to act (to creat rights), but it does not by itself create any rights for inventors. Based on this view, it is constitutional for Congress to decide what remedies are/aren’t available.

  13. 1

    That pesky Constitution

    Dennis Crouch is asking tough questions on the reform proposal that stands to be the mostly hotly debated topic of the season:  changing the standard for awarding injunctive relief. Basically, Dennis is asking readers whether there is a Constituti…

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