A major reason for the current USPTO budget shortfall is the dropping rate of renewal. According to the USPTO annual reports, the "maintenance fees have traditionally been the largest category of patent fees." Renewal rates are charged in three-stages. The first-stage payment of $980 is due 3.5 years after issuance. The second-stage payment of $2,480 is due 7.5 years after issuance. And, the third-stage payment of $4,110 is due 11.5 years after issuance.
In FY2009 renewal rates dropped for each stage. Most troubling for future PTO revenue, the first-stage renewal rate for FY2009 was the lowest in a decade. The graph below is based on historic USPTO Annual Reports.
methinks too
methinks you may have already started on the bourbon, JAOI
Thanks, you to, but I don’t fancy “lawyer’s arguments,” I prefer inventor’s arguments.
My Mommy told me I could talk anybody into anything, Bless her soul.
Perhaps we can pick this up another time.
I will be snowed later tonight — lucky I have enough Bourbon and other provisions for the duration.
It has been stimulating — I love a good debate.
“You have shown yourself to be a formidable tool”
methinks that’s not a compliment JAOI
“You have shown yourself to be a formidable tool”
methinks that’s not a compliment JAOI
that’s what the big guys do to screw We the People all the time,
The big guys are people too. And they also have to prove the same things you have to prove if they want an injunction. Namely, that an injunction is necessary to compensate them for the infringement.
The reason everyone points to eBay is because it’s such a blatant case of a patentee only wanting money, having no use for anything but money, and clearly intending to use even an injunction only to leverage more money, and yet asking for something other than money to grief the other party. Extortion like that might look good from your perspective as an inventor, but it’s probably another one of those irregular verbs.
so why not little guys like me have a tool to fight back.
Keep fighting. You have shown yourself to be a formidable tool.
Dear IANAE,
Re:
“eBay was pretty clear on that.”
All eBay did was to give big-bus-oriented Judges an easy way to screw the little guy.
I say, phuck the Supreme’s Constitutionally unlawful eBay decision.
Dear IANAE,
Re:
“If you can show that money does not remedy the violation of your exclusive right, you will get your injunction.
eBay was pretty clear on that.”
I shouldn’t have to showshit – if my patent is infringed, and I want the infringement to be stopped so that I continue to have my Right to exclusivity, then the Court should make it so.
Your comments about “squeeze money out of your patents” are a red herring – that is the American way, that’s what the big guys do to screw We the People all the time, so why not little guys like me have a tool to fight back.
But then again, money does not remedy the violation of exclusiveness either.
If you can show that money does not remedy the violation of your exclusive right, you will get your injunction.
eBay was pretty clear on that.
Dear IANAE,
Re:
“Your point is wrong. It’s completely unfounded in law (even without referring to eBay), it’s unsupported by the plain language of the constitution, …“
To what plain language in the Constitution do you refer?
Exclusive: adj. not divided or shared with others;
So your honor, we agree that I have a valid and enforceable patent on this, correct?
Court: Yes.
And we agree that the patent, since the Congress has established a patent system, gives me a constitutional right, correct?
Court: Yes. (Note – this step optional)
And we agree that a patent gives me the exclusive right, correct?
Court: Yes.
We agree that exclusive means that only I can do this, right?
Court: Yes.
We agree that company X is violating my right and doing this, correct?
Court: Yes.
Since I have the exclusive right, I can have you make them stop and thus maintain my exclusive right, correct?
Court: Um, no. well you see, we have them pay you, so you are OK, after all exclusive means, um shared, but paid, um, ok?
But my right is exclusive, the Patent Act at 35 USC 154 explicitly states “right to exclude others from making, using, offering for sale, or selling the invention”. My right is to exclude others. That means NOT to share at whatever amount you want to pay. My remedy to my right means restoring that right to exclude. This is not about money, this is about my rights. I want my exclusive rights.
Court: Svcks to be you.
Note: the optional step does not impact the “remedy” for violating exclusiveness. But then again, money does not remedy the violation of exclusiveness either.
Exclusive: adj. not divided or shared with others;
So your honor, we agree that I have a valid and enforceable patent on this, correct?
Court: Yes.
And we agree that the patent, since the Congress has established a patent system, gives me a constitutional right, correct?
Court: Yes. (Note – this step optional)
And we agree that a patent gives me the exclusive right, correct?
Court: Yes.
We agree that exclusive means that only I can do this, right?
Court: Yes.
We agree that company X is violating my right and doing this, correct?
Court: Yes.
Since I have the exclusive right, I can have you make them stop and thus maintain my exclusive right, correct?
Court: Um, no. well you see, we have them pay you, so you are OK, after all exclusive means, um shared, but paid, um, ok?
But my right is exclusive, the Patent Act at 35 USC 154 explicitly states “right to exclude others from making, using, offering for sale, or selling the invention”. My right is to exclude others. That means NOT to share at whatever amount you want to pay. My remedy to my right means restoring that right to exclude. This is not about money, this is about my rights. I want my exclusive rights.
Court: Sucks to be you.
Note: the optional step does not impact the “remedy” for violating exclusiveness. But then again, money does not remedy the violation of exclusiveness either.
I’m curious whether copyright law gives the authors of writings any “exclusive rights”. I assume it does.
If it does, then how about those natural philosopher “inventors” who, rummaging through the natural world, “discover” in it a new method with which humans can do business with each other, and proceed to patent it? Should they be given exactly the same amount of “exclusive rights”?
And, if so, would that mean that inventors, although enjoying “exclusive rights”, would not have the right to enjoin anybody (except copyists)?
Would that then be in accordance with the US Constitution?
The Constitution’s phrase “the exclusive Right” subsumes, nay, commands, an explicit remedy in its inherent meaning – no other meaning can rightly be implied from “the exclusive Right”, nonewhatsoever.
That’s my point.
Your point is wrong. It’s completely unfounded in law (even without referring to eBay), it’s unsupported by the plain language of the constitution, and it’s primarily motivated by your desire to squeeze money out of your patents. But don’t let that stop you.
We go around and around like Abbot and Costello, or maybe Monty Python.
Dear IANAE,
Re:
“The right is exclusive. We both agree on that. It says “exclusive right”.
The constitution doesn’t say anything about the remedy, …”
The Constitution’s phrase “the exclusive Right” subsumes, nay, commands, an explicit remedy in its inherent meaning – no other meaning can rightly be implied from “the exclusive Right”, nonewhatsoever.
That’s my point.
I wonder if we have an audience?
Oh, so now you want to debate politics; really?
Sure, if you want to compare narrow-minded biases, let’s go.
You’re politics are showing
Thank you for correcting my English.
The Constitution is clear and ambiguous – it specifically specified “exclusive”, i.e., the Right to exclude any one else from “making, using …”.
The right is exclusive. We both agree on that. It says “exclusive right”.
The constitution doesn’t say anything about the remedy, just like it doesn’t say anything about the remedy if your right to free speech is violated. Maybe you’ll get an injunction, maybe you won’t. It depends on whether you can prove that’s an appropriate remedy in your case.
You’re politics are showing – you don’t even respect the Constitution enough to capitalize “Constitution.”
Oh, so now you want to debate politics; really?
Dear IANAE,
Now we get to the nub of it:
Re:
“The constitution doesn’t provide for a particular remedy…”
Of course it does! The Constitution is clear and ambiguous – it specifically specified “exclusive”, i.e., the Right to exclude any one else from “making, using …”.
I knew you would not be happy when we got to the nub.
Careful, your narrow-minded bias is showing.
That’s one of those right-wing irregular verbs, isn’t it?
I have a constitutional right
You have a narrow-minded bias
He/she has an opinion
So, do you really want to throw out the Constitution’s specified “exclusive Right” provision based on a single lousy contrived example?
1. Nobody is throwing out anything. The exclusive right is still there. Comes free with every patent. If you allege that someone else did what you have the exclusive right to do under your patent, you always have a cause of action. The constitution doesn’t provide for a particular remedy, but Congress was nice enough to list a whole bunch of them.
2. It’s not a “contrived example”, it’s an actual example that actually went to trial, and appeal, and to the Supreme Court. It’s not unique, either.
Nor is the Supreme Court buying the Constitution any longer on various issues.
3. This isn’t a constitutional issue. It’s a remedies issue.
Furthmore,
Re:
“No, I know exactly what goes on with those patents.”
Careful, your narrow-minded bias is showing.
Dear IANAE,
So, do you really want to throw out the Constitution’s specified “exclusive Right” provision based on a single lousy contrived example? Is that the kind of guy you really want to be?, or have I Just got your goat?
Re:
“The Supreme Court isn’t buying it.”
Nor is the Supreme Court buying the Constitution any longer on various issues.
How’s that work for ya’?
Man, are you really that naive when it comes to making money with a patent?!
No, I know exactly what goes on with those patents.
The patentee stands before the judge with his best approximation of a straight face, and says “the fact that he’s practicing my patent doesn’t harm me at all, and I actually want him to keep doing it and paying me money, but please order him to stop doing it so I can force him to pay me more money than you would ordinarily award me for future infringements.”
If you think that kind of BS is a good enough reason for an injunction, that’s wonderful. The Supreme Court isn’t buying it.
Dear IANAE,
Man, are you really that naive when it comes to making money with a patent?!
If really can’t answer your own questions, some will think you were born yesterday on a banana boat.
But I know better — you’re just put’in me on, I bett’ca. Tnaks for the funn.
” Most troubling for future PTO revenue, the first-stage renewal rate for FY2009 was the lowest in a decade.”
My guess is that the chaff has been filtered out early and that a higher percentage of future second and third stage fees for the remaining patents will be paid.
Shame, shame on you!
Why?
Take the eBay case, for example. The patentee had an exclusive right. Someone infringed that right. The patentee sued for infringement and won.
The next step is to determine what available remedy is sufficient to compensate the patentee for the infringement of his right.
In eBay, the patentee didn’t have a business, and didn’t license exclusively to anyone who had a business. The patentee’s entire reason for existing was to allow people to infringe and to collect money from those people. The fact that other people were practicing the invention did not harm the patentee at all, let alone irreparably, except that they weren’t paying for the privilege. Only, the court has now ordered them to pay for the privilege.
So tell me, what’s the point of an injunction on those facts?
Dear IANAE,
Finally, you fess up to being Okay with (the dreaded) “compulsory licensing.”
Shame, shame on you!
Now, we can start to go around and about with “how do you stop a fargin’ infringer?”
“!=” means “does not equal”. The exclamation point is negation.
Here’s your problem. You think a right to exclude implies a remedy to exclude. It doesn’t.
See? I told you you wouldn’t like the answer.
Dear IANAE,
Above, you said, with my inserts in brackets:
“To recap:
“right to exclude others from making, using, … or selling” = [A] right
[C] injunction = [B] remedy
[A] right != [B] remedy”
Now, if A=B and B=C, than A=C QED
However, is you are relying on a !, as in
“The statement !A is true if and only if A is false”
it shows that you still do not know what “exclusive” means.
What I am after is for you to learn what the word “exclusive” means.
Exclusive means you have it, and other people don’t have it. “It” being the right to make, use and sell whatever you claimed.
That’s why it’s actionable when other people do what you have the exclusive right to do.
What I am after is for you to learn what the word “exclusive” means.
Why do you not just look it up?
Did you come up with Billy’s “is, is” line?
This isn’t complicated. You (hypothetically) have an exclusive right. Infringement of that exclusive right does not necessarily entitle you to the remedy of an injunction.
Dear IANAE,
You are funnier that a barrel of monkeys.
Thanks a bunch for the entertainment.
I phrased the questions so that only a
Yes, Yes or No, No are logical answers,
not one of each.
Now, don’t you think your answers were funny?
On what does it depend?
Mostly, on a showing of irreparable harm. It’s an injunction you’re after, right?
Dear IANAE,
Thanks for your answer.
But I am still unclear.
Re:
“Yes, and it depends.”
On what does it depend?
At the conclusion of a simple, run-of-the-mill patent infringement case, if the validity of my patented invention – an invention which I do not practice – is upheld, and infringement is proven, do I have the right to exclude the infringer from infringing my patent even if the infringer offers to license the patent?, or can the Judge allow, under some basis, the infringement to continue against my will?
Yes, and it depends.
Dear IANAE,
I am still not clear – please answer this simple two-part question with a simple two-part answer:
At the conclusion of a simple, run-of-the-mill patent infringement case, if the validity of my patented invention – an invention which I do not practice – is upheld, and infringement is proven, do I have the right to exclude the infringer from infringing my patent even if the infringer offers to license the patent?, or can the Judge allow, under some basis, the infringement to continue against my will?
Hobbes, I could also remark upon your own obfuscations, but you seem to be enjoying yourself so thoroughly, I shan’t spoil your fun. Carry on.
What’s the problem with that characterization?
The Supremes recognized the exclusive rights of the patentee (subject to further proceedings before the PTO), recognized that the exclusive rights had been infringed (by one or more of making/using/selling), and determined an appropriate remedy to compensate the patentee.
That’s exactly what courts are supposed to do.
Dear IANAE.
Re:
“Yes, that’s correct. That’s how the Supreme Court characterized the patentee’s right in eBay, quoting from 35 USC 154. Page 3 of the opinion.”
The Supreme Court also characterized patents in eBay thusly:
Page 3
…Indeed, the Patent Act itself indicates that patents shall have the attributes of personal property “[s]ubject to the provisions of this title,” 35 U. S. C. §261, including, presumably, the provision that injunctive relief “may” issue only “in accordance with the principles of equity,” §283. (emp. added)
Page 5
…We hold only that the decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts, and that such discretion must be exercised consistent with traditional principles of equity, in patent disputes no less than in other cases governed by such standards.
“NAL, you just made Hobbes’ day.”
Mr. rox, this is likely the most accurate and least obfuscating posting you’ve ever made at our beloved “Trainwreck.”
NAL: JAOI is using “exclusive right” as in the patent right gives him the right to exclude others from making or using his invention.
JAOI: My point is, a patent’s grant of “the exclusive Right” gives all patent owners the right to exclude others from practicing the invention if the patent is upheld and proven infringed in court.
Yes, that’s correct. That’s how the Supreme Court characterized the patentee’s right in eBay, quoting from 35 USC 154. Page 3 of the opinion.
Also, as you pointed out, the Supremes added this: But the creation of a right is distinct from the provision of remedies for violations of that right.
That’s a pretty basic distinction. Like, first day of law school. A right is not a remedy. A remedy is how you get compensated for the violation of your right.
To recap:
“right to exclude others from making, using, … or selling” = right
injunction = remedy
right != remedy
Dear crakrox and IANAE.
Please note: the last post I read before drafting this comment was at 10:22 AM; I have not yet read the interleaving.
It appears we are all on the same page on my primary concern.
Please correct to me if I am wrong. I am under the impression, in the post-eBay patent courtroom, that some infringements were allowed to continue even though the validity of the patent-in-suit was upheld and proven infringed.
Such court’s rationale to allow some infringement to continue unabated was, citing eBay, that, in essence, the patent owner was not practicing the invention. If the patent owner had been practicing the invention, the infringement would have been stopped.
My point is, a patent’s grant of “the exclusive Right” gives all patent owners the right to exclude others from practicing the invention if the patent is upheld and proven infringed in court.
Anything less is tantamount to compulsory licensing, and there’s no way to properly interpret the Framers’ patent clause to encompass compulsory licensing for any inventor – the Framers’ words made “exclusive” compulsory; the meaning of “exclusive” is unambiguous.
Page 3 of the United States Supreme Court eBay ruling:
To be sure, the Patent Act also declares that “patents shall have the attributes of personal property,” §261, including “the right to exclude others from making, using, offering for sale, or selling the invention,” §154(a)(1). According to the Court of Appeals, this statutory right to exclude alone justifies its general rule in favor of permanent injunctive relief. 401 F. 3d, at 1338. But the creation of a right is distinct from the provision of remedies for violations of that right. Indeed, the Patent Act itself indicates that patents shall have the attributes of personal property “[s]ubject to the provisions of this title,” 35 U. S. C. §261, including, presumably, the provision that injunctive relief “may” issue only “in accordance with the principles of equity,” §283. (emp. added)
Page 5 of the United States Supreme Court eBay ruling:
Because we conclude that neither court below correctly applied the traditional four-factor framework that governs the award of injunctive relief, we vacate the judgment of the Court of Appeals, so that the District Court may apply that framework in the first instance. In doing so, we take no position on whether permanent injunctive relief should or should not issue in this particular case, or indeed in any number of other disputes arising under the Patent Act. We hold only that the decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts, and that such discretion must be exercised consistent with traditional principles of equity, in patent disputes no less than in other cases governed by such standards. (emp. added)
The way I read it, this critical USSC ruling was based on a mere “presumption”!
NAL, you just made Hobbes’ day.
Crakrox,
I was set to give you credit for constructively adding to the conversation at the onset of the day, yet you seem incapable of not dragging the discussion off course into obfuscation.
Your path to obfuscation starts with a bald assertion concerning “Constitutional Right” and runs through purposeful twists, badly blurring the appropriate abstraction levels as explained in other threads on (R)ights and (r)ights and the levels of (L)aw and (l)aw that are instructional to a discussion on Constitution Law.
Such purposeful confusion as a tactic of discussion nullifies any value you would otherwise bring.
Starting then, back at the possible constructions of a list of prepositional phrases describing “the power” (IANAE – not “the power to”, as “to” begins the first prepositional phrase): the ascendancy of the directive intent (and not the abandonment of the first prepositional phrase as is the want of the obfuscating crakrox), does not in its own stead speak to whether the patent right is a constitutional right – at least not directly.
The power is to secure. It is not to create. Now semantics can cause much additional confusion, and the noise created by the obfuscators must be meticulously screened out.
What does it mean to say that something is a Constitutional Right? It is a heady question indeed. One meaning can be a right recognized at the bedrock level of our legal system (Ned, I put it this way so as not to invoke the nihilist/anti-nihilist discussion). Such rights can be recognized through the Constitution or through the Bill of Rights – as amendments to the Constitution. Notice that Clause 8 while not creating the right, recognizes the right and directs the government to do something with that right, to secure it. Therefore, (and unfortunately Ned, here is where the nihilist view must be purged), the patent (R)ight was recognized at the foundational level to be a true (R)ight. In this sense, Consitutional Rights are not created by the Constitution – but recognized by the Constitution for what they are – Rights that the laws of man can only attempt to capture in codification and thus, enforcement. In this sense, the patent Right, as directly recognized by the Constitution is very much a Constitutional Right.
No further obfuscations with “all” or with lower level (l)aws should impact this understanding.
As with any other Constitutional (R)ight, patent Rights are not unlimited, as clearly the Constitution prescribes power to administer the (R)ights. This however does not make the patent Right any less a Constitutional (R)ight, just as any transgression of a right does not nullify its status as a right (for example Pirates murdering Cavemen do not nullify the Cavemen’s rights) – violation does not cause the right to cease to exist.
IANAE, you seem to be using “exclusive right” as in if JAOI gets a patent, then he alone holds the right to that invention. JAOI is using “exclusive right” as in the patent right gives him the right to exclude others from making or using his invention. That is, if a court determines that monetary measures are sufficient, then JAOI would “exclusively” get the money from the damages or licensing fees, but he would not be able to exclude the infringer from further making or using his invention.
you’ve already taken things that you don’t think should be patentable (e.g. business methods) to be non-inventions,
I never said I didn’t think business methods should be patentable.
A novel and non-obvious sandwich or soup is arguably an article of manufacture, yet it would not currently receive patent protection.
What is your source for that? Some USPTO policy statement that I missed?
@ JAOI-
Ignore my previous remarks about the exclusiveness of the patent right. I see your point.
@ IANAE-
You don’t mind “inventors” being taken as “all inventors” because you’ve already taken things that you don’t think should be patentable (e.g. business methods) to be non-inventions, and therefore those who came up with them to be non-inventors. A novel and non-obvious sandwich or soup is arguably an article of manufacture, yet it would not currently receive patent protection. This can be made consistent with the patent clause by taking “inventors” to mean “all inventors” but a sandwich to be a non-invention, or by taking the sandwich creator to be an inventor but Congress having deemed that granting him an exclusive right would not serve to promote the progress.
I do not think you have bothered to understand the nuances of my eBay position.
I don’t see any nuances. You keep saying that there should be an exclusive right, and in fact there is an exclusive right. That’s what patents are for. If you have a valid and enforceable patent, you have an exclusive right.
It’s right there in 35 USC. I quoted it earlier.
“Nihilists are for the most part harmless these days (other than potential rug damage). A lot has changed since your time.”
That’s what they want us to think, crakrox. Say what you like about Nihilism’s tenets, it’s still an ethos.
JAOI, I’m not seeing the basis for “all inventors”, unless you’re meaning “all inventors listed on a particular patent”?
I don’t mind “all inventors”, with the qualification that the inventors first need to produce a specification in compliance with the Act and Rules. That makes it look a lot less like an entitlement and more like a privilege, but I’m good with that too.
This isn’t an eBay issue. eBay actually did recognize the exclusive right of the patentees. The patent was held valid and infringed.
Dear IANAE,
That, right there, is where we disagree.
I do not think you have bothered to understand the nuances of my eBay position.
crakrox wrote:
“The power that is being given to Congress is the power “to promote the progress of science and useful arts”, and “by securing for limited times [to Authors and Inventors the exclusive Right to their respective Writings and Discoveries]” is telling Congress how, when they choose to use that power, they are to do it.”
That’s it in a nutshell…
JAOI, I’m not seeing the basis for “all inventors”, unless you’re meaning “all inventors listed on a particular patent”? Aside from that, I don’t have much to say on the exclusive stuff. Are you saying that 283 is in tension because the inventor has an exclusive right to his invention, and therefore courts have no basis for deeming whether the actions he takes are reasonable? Maybe the distinction you’re talking about is “exclusive right” vs. “exclusive control of a right” (if there is one, I’ve got no strong opinion).
I.e., “the exclusive Right” rules out any kind of “compulsory licensing,” directly or indirectly, for one type inventor but not other inventors – the very concept of “compulsory licensing” is inconsistent with the notion of patents – patents, in one essential regard, entail “the exclusive Right.”.
That, right there, is your most fundamental misunderstanding related to this issue.
The Supreme Court eBay decision relied on 283 and nothing more in rendering its eBay decision!, and thus, the eBay decision is constitutionally unlawful – the Constitution is the supreme Law of the Land.
This one’s a close second. The Supreme Court isn’t bound by a grant of power to Congress, because it’s not Congress. Even if 35 USC 283 is unconstitutional in some way, that has to be raised (or at least argued) by the parties before the Supremes will consider it.
Dear crakrox et al.
crakrox wrote:
“The power that is being given to Congress is the power “to promote the progress of science and useful arts”, and “by securing for limited times…” is telling Congress how, when they choose to use that power, they are to do it.”
That has been my view for years. Is that the general consensus of other on this thread today?
crakrox wrote:
“But even ignoring the inconsistency, it still wouldn’t support a Constitutional right to a patent any more than the traditional interpretation.”
There is no “…Constitutional right to a patent…”, never was.
However, if Congress exercises its discretion to enact patent laws, the patent grant must be
“…for limited Times…” and the grant must include
“…the exclusive Right…” for all inventors.
I.e., “the exclusive Right” rules out any kind of “compulsory licensing,” directly or indirectly, for one type inventor but not other inventors – the very concept of “compulsory licensing” is inconsistent with the notion of patents – patents, in one essential regard, entail “the exclusive Right.”.
Congress can do anything else it wants re: enacting patent laws as long as what they do is consistent with the Constitution’s directives in the patent clause (as described directly above). For example, design patents can be different from utility patents, and they can have a different category for software patents, and patent terms can vary, etc.
Thus, “35 U.S.C. 283 Injunction” is in tension with the Patent Clause:
“The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.”
The Supreme Court eBay decision relied on 283 and nothing more in rendering its eBay decision!, and thus, the eBay decision is constitutionally unlawful – the Constitution is the supreme Law of the Land.
A patent must be for a “limited Time…” and, for all inventors, a patent must respect “the exclusive Right” provision in the Constitution, just as patents have always done up to the flawed USSC eBay ruling.
Clause 8: 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;
Hobbes, you need to rent the Big Lebowski. Nihilists are for the most part harmless these days (other than potential rug damage). A lot has changed since your time.
“Also also, the actual issue with business methods is whether they’re inventions.”
Ah, that is where you are mistaken, my dear IANAE. The issue is the essential distinction between (r)ights and (R)ights. You’re implicitly endorsing arbitrary and capricous distinctions in the inventive skein from which our technology-based culture is woven. The path that you propose inevitably leads to nihilism. I implore you to reconsider.
Sidenote to AI:
Take NAL’s suggestion and run with it. Here’s the suggested twisted logic –
1. “The Congress shall have power… by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
This is a statement of whence Congress derives its power. As the only “by” clause in section 8, it is the only statement alluding to where Congress gets its power.
2. As the only statement of whence Congress derives its power, it is the only source of power, and Congress therefore has power solely by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
3. Find some reason that “Authors and Inventors” means “all Authors and all Inventors”.
4. Not only do you have your Constitutional right to a patent, but if Congress denied any inventor a patent, they would lose the source of their power.
5. …
6. Profit!
I’m not saying that any reasonable reader of the Constitution is going to agree with you, but it will at least be better than simply repeating “WE THE PEOPLE DO SO ORDAIN!!!” over and over.
which is to make it impossible (or at least all or nothing) to exclude business methods and software from patent protection.
That’s kind of a pointless distinction to make, because Congress is not attempting to exclude business methods or software from patent protection, and there are international treaties (that Congress is free to ignore, granted) that say they can’t discriminate between areas of technology.
Also, this isn’t the eBay point, because in eBay the patent was held valid and infringed.
Also also, the actual issue with business methods is whether they’re inventions. If they’re not, coming up with one doesn’t make you an inventor, so you’re still not entitled to a patent.
IANAE, yes they would prefer that because then all they need to do is implicitly place “all” before authors and/or inventors and they’ve got the result they’re after, which is to make it impossible (or at least all or nothing) to exclude business methods and software from patent protection.
Also consider that amongst the larger list, there are clauses which are not truly optional.
Every single one of those is optional. Sure, some of them are a practical necessity from time to time, and some of them are a practical necessity most of the time, but you could easily contrive a situation where Congress could completely ignore any one of them without ill effect.
Unfortunately, most of those situations involve people being civilized and nice to each other, so they’ll never really happen, but you could easily imagine them.
Would you guys prefer if it said the following:
The Congress shall have power
*****to secure for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries
*****so as to promote the Progress of Science and useful Arts.
Because to my mind that wouldn’t change the meaning at all. They have the power to grant exclusive rights that we recognize as patents and copyrights, and the framers were hoping the use of this power would promote the sciences. Because promoting the sciences isn’t something you can legislate directly.
I honestly don’t know what you people are nitpicking about.
“The Congress shall have power by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” That is a grammatically complete sentence, but it is a statement indicating from whence Congress’ power comes, rather than listing a power given to Congress. As such, it would be contextually inconsistent with the rest of the listed clauses.
But even ignoring the inconsistency, it still wouldn’t support a Constitutional right to a patent any more than the traditional interpretation.
This dialogue has been fascinating and edifying!
Insofar as I am able, I am planning to summarize the salient points, my schedule permitting, hopefully today.
I am also hesitant to ascribe the full force of the optional characteristic of “may” – as in equally “may not” that some will to the phrase “shall have power”.
I do recognize that with some of the clauses (larger list), Congress has not always employed the power given to them. However, the scope of the powers is more a segregation to which branch of the government that power is assigned, than it is a list of items that that branch can choose to do (or not). Also consider that amongst the larger list, there are clauses which are not truly optional. The directive nature seems to compel rather than advise.
Interesting – I see your point of view – and that of IANAE more clearly.
Although if the “by securing” is a prepositional phrase, then IANAE is incorrect concerning the list construction.
Unless, of course, the phrase “to promote” is also viewed as a prepositional phrase, then we are back to a series of prepositional phrases, but now following “shall have power”:
The Congress shall have power
*****to promote the Progress of Science and useful Arts,
*****by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Your suggestion is much stronger in that the prepositional phrases act as an adverbs to the “shall have power”. However, there still appears differences in the strength of the prepositional phrases, one being descriptive and the other directional. I do not think the directional phrase is subordinate to the descriptive phrase based on the 2nd amendment construction theory.
Ok, but you seem to be interpreting the wording as if it said “to promote the Progress of Science and useful Arts, and secure for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
It says “by securing”, making the latter part of the clause a prepositional phrase modifying “to promote the Progress of Science and useful Arts”. Even ignoring “have power to”, I don’t think “shall promote by securing” is the same thing as “shall promote and secure”. The power that is being given to Congress is the power “to promote the progress of science and useful arts”, and “by securing for limited times…” is telling Congress how, when they choose to use that power, they are to do it.
Mr Hobbes,
Thank you for the sound advice (if I do say so myself).
crakrox,
Let’s look at it this way:
The Congress shall
*****have power to promote the Progress of Science and useful Arts,
*****by securing for limited Times to Authors and Inventors the exclusive Right
to their respective Writings and Discoveries.
In this immediate context, the two verbal phrases start with “have power” and “by securing”. breadcrumbs noted that it was IANAE that pointed out that the “shall” part is NOT a part of any of the verbal phrases.
It is important to stress this – This is evidently what confused breadcrumbs. I was not confused – IANAE did have a method to his madness as it were.
For argument’s sake let’s take this as a matter of fact.
Later, IANAE applied the “shall” term only to the first of two equal verb phrases – setting up his logical distinction that “shall” only modified “have power to” but not “by securing”.
What I pointed out is that such a construction violates IANAE’s own professed logic. If you are going to hold that “shall” is not a part of any verb phrase and you are going to distribute “shall”, you cannot arbitrarily distribute the word, and apply to a first verb phrase, and then use the modified first verb phrase to control the unmodified second verb phrase.
But, I see where you are getting confused. You are trying to apply the construction discussion from the patent section across more than just that one section. Simple mistake, and easy to make. There was a note that the construction across the other sections varied the meaning of “shall”. This point was put forth by AI and accepted by IANAE. The multiple meaning capability of “shall” was then applied to the specific section under discussion – since in proper construction the verb “shall” is applied to each verb phrase in the list. It was then noted that each verb phrase serves a different function – one descriptive and one directive. As we have seen in discussions of the second amendment, descriptive sections are not accorded as much weight as directive sections.
Under IANAE’s faulty construction of applying the verb “shall” unequally amongst the verb phrases, he attempts to eliminate the directive verb phrase with the modified descriptive verb phrase. Sure, it suits his point of view, but it is a faulty construction based on his own rule.
I hope that clears up my part.
a good evening to all,
Noise, I think that the credibility of a self-confessed crackhead should speak for itself. Nevertheless, this latest personal attack on you brings to mind those words you were good enough to share with me in a similar context:
“Do not distress yourself with the small minds that so gleefully attack. Remind yourself that although big minds and big thoughts make big targets, they are worth having and expressing nonetheless.”
And, addressed to one of the many nihilists (or is there just one?) lurking amongst us:
“No matter how tightly you cling to a nihilist view – you cannot make the founding fathers change their beliefs. You only too readily throw the big R into your pile of theory, when it is so much more important than the little r that you put on the flip side of the coin of law.”
I encourage you to keep the faith. Your efforts are not in vain!
Noise, I don’t know what you and breadcrumbs are smoking, but it must be some good stuff.
IANAE is saying that the construction is “… shall have power
1) to lay and collect…
2) to borrow…
…
8) to promote the progress…
…”
You guys are saying that “have power” is only tied to “lay”?
“… shall
1) have power to lay and collect…
2) to borrow…
…
8) to promote the progress…
…”
That’s not even grammatically correct. Even I can see that and I’m a crackhead.
breadcrumbs,
You are not confused – IANAE is making up his construction rules as he goes along.
Clearly he was correct in that the “shall” is what is missing from each verbal phrase, not “shall have the power to” as he wants to hand waive later.
“have the power to” is the first verbal phrase in the list of verbal phrases. It no more deserves the single application of “shall” than any other verbal phrase singularly having the “shall” applied.
It is expedient to him to limit the distribution of “shall” only to the first verbal phrase and subordinate all other verbal phrases because any other construction dooms his position.
Perfectly logical, just not correct.
You seem to violate your own point by limiting “shall” to only the first in the list of verbal phrases. Did you misunderstand the nature of the list, or did I misunderstand your point about “shall” not being in any of the verbal phrases?
Okay, it turns out that technically there is another occurrence of the word “shall” in one of the clauses, which is not a “shall have power to”. I wasn’t talking about that.
What I was saying is that there is a single “shall have the power to” at the top, that is to be read as a part of each clause, and that logically would have to mean the same thing each time because it’s only written once.
Even if “shall have the power to” or “have the power to” had been explicitly repeated at the beginning of each clause, it wouldn’t change the meaning. It’s just that having it once at the top is even more obvious.
But the meaning of “shall have the power to” isn’t JAOI’s point at all. He takes issue with a different term, and rather than strawman him I’m going to wait until he gets around to mentioning it.
The USSC eBay decision, which is in direct conflict with the Constitution’s patent clause, did more to de-value independent inventors’ patents than any other decision.
De-valuing patents is not a constitutional issue. It’s normal for the value of patents to go up and down as laws change and technology evolves and such. There’s no constitutional right for patents to maintain their value. Heck, the constitution provides for patents to be time-limited, so they inherently lose their value at some point.
Try to articulate in one sentence what aspect of eBay you think runs afoul of the constitution. I know what you’re trying to say, and it should be easy to say in a relatively short sentence. You shouldn’t even need legal terms (other than “patent”) to do it.
IANAE,
I have to admit that I lost step with your logic along the path. You raise a valid point that “shall” belongs to no verbal phrase, appearing only at the top of a list. See the post at 04:37 PM: “The word “shall” isn’t in any of the individual clauses – it’s only written once at the top.”
Then, I lost the crumbs. You seem to violate your own point by limiting “shall” to only the first in the list of verbal phrases. Did you misunderstand the nature of the list, or did I misunderstand your point about “shall” not being in any of the verbal phrases?
– with your logic, the “shall” does not only apply to the first verbal phrase of the list, the “have power to” phrase. Yet, the rest of your post depends on the meaning of “shall” exactly limited to “shall have the power to”.
But that’s not how the distributive “shall” would be applied to the list of verbal phrases.
Help me get back on the path.
Dear IANAE,
I posted this above; please check out the link and the links therein.
Dear IANAE,
…
Re:
“I’m not really seeing the constitutional issue here.”
The USSC eBay decision, which is in direct conflict with the Constitution’s patent clause, did more to de-value independent inventors’ patents than any other decision.
Because of eBay, inventors who chose not to practice their patents, or who cannot for reasons you discuss, are little threat to Patent Pirate infringers. More on this link and the links in the comment:
link to patentlyo.com
JAOI, just to be clear, I’m not trolling you. I’m trying to get you to articulate your actual point about eBay so I can address your actual point. It has nothing to do with this “shall” nonsense, so I’m hoping we can move past that now.
You won’t like the answer when you get it, but at least it will address your actual point.
you were just pulling my chain to be entertaining. Very funny, haha ,good one. Or are you Just a jerk?
I could ask you the same question, since you’re the obvious non-lawyer arguing at length over the meaning of a strikingly unambiguous set of words.
Please explain to me, nice and slow, what you think the problem is with eBay. Other than your patents won’t make you as much money now. The constitutional problem with eBay.
Yes, I’m serious.
Dear IANAE,
I get it now — you were not serious all along — you were just pulling my chain to be entertaining. Very funny, haha ,good one. Or are you Just a jerk?
Please excuse me — I thought you had heard about the USSC’s eBay decision.
Obviously not the same one you heard about. In the version I read, there was a patent and it was held infringed. Also, the eBay decision I read wasn’t an act of Congress.
Tell me about the eBay decision you heard about.