When does an Ordinary Order become a Preliminary Injunction?

Duhn Oil Tool, Inc. v. Cooper Cameron Corp (Fed. Cir. 2010) (nonprecedential)

In a rare appeal from the Eastern District of California, the Federal Circuit has vacated the lower court’s order of preliminary injunctive relief. Duhn Oil’s patent covers a “frac mandrel” or tool for isolating the head of an oil or natural gas well. Cooper Cameron’s version is alleged to infringe when its lockscrews are engaged during installation.

Appellate Jurisdiction over Preliminary Injunction Orders: As an initial matter, the parties argued over whether the court held jurisdiction over the interlocutory appeal since the defendant (Cameron) had previously volunteered to halt the uses covered by the preliminary injunction. On appeal, the Federal Circuit found jurisdiction clearly granted by 28 U.S.C. § 1292 as interpreted by the Federal Circuit. “[I]f the district court’s order expressly grants an injunction, the order is appealable under § 1292(a)(1), without regard to whether the appellant is able to demonstrate serious or irreparable consequences.” Quoting Cross Med. v. Medtronic, 424 F.3d 1293 (Fed. Cir. 2005).

When does an order become an injunction?: A court must make particular findings before it can order preliminary injunctive relief. However, the court has much more leeway when making orders that relate more to the court proceedings such as orders for discovery, preservation of evidence, compelling witnesses, etc. This case raises, but does not answer the question of where the line is drawn between ordinary orders and preliminary injunctions.

Based on its opinion, the district court clearly believed that it had not issued a preliminary injunction. The opinion expressly held that “issuance of a preliminary injunction at this time would not be a measured and appropriate exercise of equitable discretion on the present evidentiary record.” Although it generally denied relief, the court did make a series of orders relating to Cooper Cameron’s “accounting practices.” These accounting practices primarily included maintaining specific evidence regarding equipment orders, items sold, and installation instructions given. The order also granted Duhn the right to photograph newly installed equipment. In addition, the court ordered that Cameron “provide instructions to its frac mandrel customers, which unambiguously state that the lockscrews are not to be engaged during installation or use of the frac mandrel.”

The Federal Circuit focused on the final requirement that Cameron provide installation instructions to its customers and classified that requirement as an injunction because it “specifically imposed . . . an affirmative obligation on Cameron . . . to prohibit Cameron from further allegedly infringing uses.”

The lower court had not intended to issue preliminary injunctive relief and had not specifically found either a likelihood of success on the merits nor irreparable harm absent injunctive relief. Therefore, the injunction was vacated on appeal.

In this case, there were insufficient grounds for the court to enjoin Cameron. A preliminary injunction requires the moving party to show both likelihood of success on the merits, and irreparable harm unless the injunction issues. The district court identified “strongly conflicting evidence” about the possible frequency of Cameron’s future infringement, and the absence of “a sufficient showing for injunctive relief of the scope and of the nature, [sic] including the notice requirement that Plaintiffs are seeking.” Duhn identifies no irreparable harm that it would suffer without the court’s order, and does not cross-appeal the denial of the broader injunctive relief it proposed. For these reasons alone, the injunction was improper. Therefore, we decline Cameron’s invitation to address invalidity and noninfringement in the first instance.

Vacated and Remanded.

Notes & Cases On Point:

  • “[F]or purposes of appeal, requiring a party to do or refrain from doing something that is an integral part of the very matter in litigation….” Moore’s Federal Practice, ¶ 65.21 (1989). Quoted in NTN Bearing Corp. of Amer. v. U.S., 892 F.2d 1004, 1005-06 (Fed. Cir. 1989) (ITC’s stoppage of the collection of import duties was an injunction) and Norcal/Crosetti Foods Inc., v. U.S., 963 F.2d 356, 358 (Fed. Cir. 1992) (lower court’s requirement of marking of imported produce was an injunction).
  • Types of non-injunctive orders include for the purposes of Section 1292(a) include “temporary restraining orders, orders regulating procedural matters, and security orders.” Wright & Miller, 16 Fed. Prac. & Proc. Juris. § 3922 (2d ed.) (Orders Not Constituting Injunctions). Wright and Miller reluctantly offer the definition of a Section 1292(a)(1) “injunction” as embracing “orders that are directed to a party, enforceable by contempt, and designed to accord or protect ‘some or all of the substantive relief sought by a complaint’ in more than temporary fashion.”
  • Holmes v. Bendix Corp., 713 F.2d 792 (Fed. Cir. 1983) (“an appellant from an interlocutory adverse Rule 56 decision must point out something he said or did to alert the court that it would be passing indirectly on the availability of injunctive relief. Otherwise, the congressional care in allowing appeals from interlocutory decisions denying injunctive relief, and not allowing them for appeals from summary judgments, or from declaratory judgments (unless disposing of the whole case), is made meaningless.”).
  • Woodard v. Sage Products, Inc., 818 F.2d 841 (Fed. Cir. 1987) (“an interlocutory appeal under section 1292(a)(1) requires (a) that the order be injunctive in nature, (b) that it cause a serious, if not irreparable, consequence, and (c) that the order can be effectually challenged only by immediate appeal.”)

263 thoughts on “When does an Ordinary Order become a Preliminary Injunction?

  1. 263

    Posted by: Wally | Mar 30, 2010 at 07:40 AM: “AI, while you’re preparing for Bilski, gloat on Myriad for a while: “because the claimed comparisons of DNA sequences are abstract mental processes, they also constitute unpatentable subject matter under Section 101.”

    On the day when the Large Hadron Collider smashes protons, and sets new records we have some caveman hoping the SCOTUS rules technological processes are abstract and unpatentable subject matter.

    That would be even more inane as believing there is no Constitutional Right to a patent. And even you Wally Sparks knows better to try and argue that, less you get smacked down like the rest.

    See ya on Bilski day!

  2. 262

    Wally, this is why I’m hooked on this blog. Occasionally contributions like yours come along and then, without consciously deciding to do so, I move my jaw limb, and stimulate various muscles, and laugh out loud.

  3. 261

    No Max, regardless of what Bilski holds, AI will use his mobile goalpost system (patent pending) to change his position so that he can declare victory.

    AI, while you’re preparing for Bilski, gloat on Myriad for a while: “because the claimed comparisons of DNA sequences are abstract mental processes, they also constitute unpatentable subject matter under Section 101.” Guess they should have claimed moving their arms while comparing? Oh noes!

  4. 260

    This is just to test how much trust I can put on statements made by AI. This one for example, from yesterday:

    “Now the thread is officially closed.”

    I conclude that the thread he is focussed on must be a conversation he is having inside his head, rather than the real one running here.

    I gather that issue of the Bilski opinions is imminent. If the event fails to live up to AI’s expectations, then perhaps he will turn away in disgust (and, in so doing, close the corresponding thread even before it opens).

  5. 259

    Posted by: IANAE | Mar 27, 2010 at 03:23 PM: That doesn’t stop AI exercising his constitutional right to be wrong out loud in public, so how’s about we all let it go?

    IANAE,

    We all have let it go long long ago. Every esteemed and respected Patent professional and Actual Inventor accepts the Constitutionality of the Intellectual property clause, of the US Constitution.

    What I suggest you let go is your inane idea that the IP Clause only relates to free speech.

    Start by reading Federalist 10. That Madison was a smart guy that figured all this out long ago.

    Now the thread is officially closed.

    Next up, the Bilski smack down during which I will be back to gloat ;-)

  6. 258

    Ping, Pong, Truff whatever…… Make up all the the new alias you want. And type as many irrelevant remarks as your bored brain can produce.

    But the one thing you CAN’T do is cite any Supreme Court decision, congressional act, or historical scholar that will say the intellectual property clause of the Constitution is invalid.

    Yes, you have loss this debate and the Constitutional Right to a Patent remains, shining, amazing, in all its glory.

    Stick your fingers in your years.

    Close your eyes.

    Click your restroom receptionist hills 3 times.

    And when you open yours the following from the Constitution is gonna be RIGHT IN YOUR ANTI PATENT FACE!

    [We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. 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;]

    BOOM, BOOM, POW!

  7. 256

    Pardon me Cranky, but I just said no to the link.

    There are some things I do not need to see.

  8. 254

    Wow,

    I have never seen someone try so hard to revive a dead horse. Mouth to mouth resuscitation with an animal this dead borders on the macabre.

  9. 253

    There is no constitutional right to a patent.

    IANAE | Mar 27, 2010 at 03:23 PM :That doesn’t stop AI exercising his constitutional right to be wrong out loud in public, so how’s about we all let it go?

    From an objective observer POV, The Actual Inventor has cited historical and legal fact while the IANAE faction has only provided personal opinion and conjecture. So if one wants to decide this debate strictly on the merits of the supporting evidence presented, The Actual Inventors have won the day.

  10. 252

    There is no constitutional right to a patent.

    That doesn’t stop AI exercising his constitutional right to be wrong out loud in public, so how’s about we all let it go?

  11. 251

    Now that this topic has reached it’s inevitable conclusion I hope everyone has learned something and we will never again see the blissful or willful ignorance of anyone by claiming there is no Constitutional Right to a patent.

    There is no constitutional right to a patent.

  12. 250

    Mopping the floor here is much more like a janitor cleaning up long after the party is over.

    AI, don’t forget to get the bathrooms too.

  13. 249

    “And you wonder why the inventors have mopped the floor with you in this debate.”

    More like, we find it very revealing that you’re confined to commenting to yourself on this backwater thread. By the way, claiming victory on a long-dead thread after everyone has left is weak, to say the least. Is that what you call “mopping the floor”, AI? Linguistic re-engineering seems to be your specialty.

  14. 248

    Posted by: Ned Heller | Mar 09, 2010 at 09:05 PM: Now, if I had a right to a patent that arose independent of the constitution, it could only arise by act of some other government or by possession; a patent being property.

    __

    Okay, I think I see what is causing the trouble now. What you must understand is that the Constitutional Right to a Patent is both a natural Right and a conventional Right effected by positive law.

    I know, you Ned, like to argue that it must be either or, but the source of all our Rights spring from property Rights and these property Rights are as natural and God Given as our Right to life or liberty.

    And while its the Constitution that provides the usufruct for Intellectual Property man will always have the unalienable right to his ideals.

    Now that this topic has reached it’s inevitable conclusion I hope everyone has learned something and we will never again see the blissful or willful ignorance of anyone by claiming there is no Constitutional Right to a patent.

  15. 247

    Posted by: Ned Heller | Mar 09, 2010 at 09:05 PM: Now, if I had a right to a patent that arose independent of the constitution, it could only arise by act of some other government or by possession; a patent being property.

    Now assuming I do not have an act of government, but simply rely on possession (which is true today if I do not apply for a patent), what gives me the right to deprive others of the right to use the invention if they somehow learn of it and begin to use it?

    Ned,

    I have no idea what point you are trying to make here. Perhaps it would be best if you just dropped the socratic method and came right out and said what you want to say.

  16. 246

    IANAE | Mar 10, 2010 at 10:05 AM: In the context of this discussion, it’s fun to see a case where an argument that applicant has a constitutional right to a patent fails.”

    Then you can’t see very well because that case is not concerning the validity or lack of the intellectual property clause of the Constitution, which is what this discussion is all about.

    And you wonder why the inventors have mopped the floor with you in this debate. Sheeees!

  17. 245

    Malcolm Mooney dressed as a restroom receptionist wrote: “Coal has cited law that points out that exclusive patent rights are only Constitutional rights in AI-la-la-land (your bunker), where “Constitutional right” means simply “a right mentioned in the Constitution”.”

    Malcolm , Deepsouth Packing nor the Crown Die & Tool Cases include any such text or conclusion. At this point you are simply making things up.

    ” In the rest of the USA, where Constitutional right means a right guaranteed to the people by the Constitution, patent rights do not fall under that umbrella. No amount of convenient re-defining, or analyzing of writers who died hundreds of years before the document was written, or obsessing over Mooney, ”

    LOL, Malcolm, I don’t care that you like to post under different aliases, but I do find it rather amusing how peeved you get when the regs dont play along, then address you as mooney rather than your alias of the moment.

    If you want to fool people perhaps you should try a different vernacular and lexicon when using your many alias. Hint, drop the airplane rest room fixation, gay references and any use of DING DING DING in a sentence.

  18. 243

    Coal has cited law that points out that exclusive patent rights are only Constitutional rights in AI-la-la-land (your bunker), where “Constitutional right” means simply “a right mentioned in the Constitution”. In the rest of the USA, where Constitutional right means a right guaranteed to the people by the Constitution, patent rights do not fall under that umbrella. No amount of convenient re-defining, or analyzing of writers who died hundreds of years before the document was written, or obsessing over Mooney, or adding (p)arentheses to words, is ever going to change that.

  19. 242

    Malcolm Money dressed as a restroom receptionist wrote: Whoops, looks like Coal has you there, AI.

    _____

    Malcolm, Coal has merely cited case law affirming my point that patents require legislation to establish regulatory rights for the existence of property. Looks like you need to spend less time in the restroom and more in the law library. Well, in your case any library will do.

  20. 240

    I included this on another post and may be of use here:

    The IP Clause of the Constitution should be interpreted with this understanding in mind: “Under the common law the inventor had no right to exclude others from making and using his invention. ” Deepsouth Packing CO. v. Laitram Corp., 406 U.S. 518, 525-26 (1972).

    The “negative right” to exclude is provided only through the Patent Act. See id. at 526 (“If Laitram has a right to suppress Deepsouth’s export trade it must be derived from its patent grant, and thus from the patent statute.”); see also Brown v. Duchesne, 19 How. 183, 195 (1857) (“But the right of property which a patentee has in his invention, and his right to its exclusive use, is derived altogether from these statutory provisions; and this court [has] always held that an inventor has no right of property in his invention, upon which he can maintain a suit, unless he obtains a patent for it, according to the acts of Congress; and that his rights are to be regulated and measured by these laws, and cannot go beyond them.”).

    However, and more to the discussion at hand, any positive or affirmative right to exploit one’s own creations arises from the common law, not federal patent law. See Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U.S. 24, 36 (1923) (noting that “[i]t is the fact that the patentee has invented or discovered something useful, and thus has the common-law right to make, use, and vend it himself, which induces the Government to clothe him with power to exclude everyone else from making, using, or vending it.”).

  21. 239

    AI, agreed, patents are property and ownership of property is not an aspect of liberty. In fact, the constitution, in Amendment V and XIV, both discuss “liberty” and “property” as different things that cannot be deprived without “due process.”

    Property rights preexisted the constitution. When we formed the new government, we agreed that that government could not dispossess its citizens of their property without due process (and payment (eminent domain)). But what property is this?: Property rights in the form of patents granted by the crowns of Europe, the states, or by possession in the case of native Americans.

    I am not sure whether there are any cases of patents on inventions being enforced in the colonies after 1776; but by 1791 I feel confident that we believed that patents on inventions granted by the English crown were no longer effective in the US.

    The power to make laws protecting inventions (through the grant patents by the executive) was given to Congress, but the duration of such patents could only be for limited times. Clearly, a patent itself is property. It may be sold and it may not be deprived by the government without due process.

    Now, if I had a right to a patent that arose independent of the constitution, it could only arise by act of some other government or by possession; a patent being property. Now assuming I do not have an act of government, but simply rely on possession (which is true today if I do not apply for a patent), what gives me the right to deprive others of the right to use the invention if they somehow learn of it and begin to use it?

  22. 238

    Posted by: Ned Heller | Feb 26, 2010 at 12:03 PM: AI, on patents: Having an exclusive right to one’s inventions is not an aspect of Liberty. As a corollary, there is No constitutional right to a patent under any Liberty theory.

    ________

    Ned, The Constitution is fashioned on Life, Liberty, and the Pursuit of Property, as that term was originally used by Locke. Therefore Patents come under property, not liberty. Property rights requires regulation in order to legally exist, thus the reason Inventors exclusive Rights to their discoveries are secured by the legislative powers of Congress, and included under the Powers of Congress section of the Constitution.

    Hope this clears things up once and for all.

  23. 237

    Posted by: broje TINLA IANYL | Mar 03, 2010 at 10:21 AM:Let’s focus on clearing up the confusion for those who mistakenly think that a Constitutional Right means a property right flowing from legislation passed by Congress according to power granted to it in the Constitution.

    AI: That was about as clear as mud. Which is appropriate since your screen name is no less than mud after spewing blatant lies. You obviously don’t care about the opprobrium caused by your shameful behavior to show up here and post like nothing happened.

    broge: That’s not what it means, and it is an important distinction.

    AI: You have not defined anything or made any distinction whatsoever. And you have nerve to question someone’s law school education? I would fire you before I hired you then make you pay for the privilege.

    Furthermore if you had studied Grotius, Pufendorf and Locke you would know that the reason the Inventors exclusive Rights are tied to and included under the Congressional Powers portion of the Constitution, as opposed to the Bill of Rights section is that Patent Rights are Property Rights and require legislation to establish regulatory rights for the existence of such property.

    Now consider yourself schooled by an Actual Inventor.

  24. 236

    Posted by: Ned Heller | Mar 04, 2010 at 02:30 PM: The Supreme Court is the body that decides whether the law unduly burdens the constitutional right, or even if the person enjoys the constitutional right in the first place.

    Do we all agree on the above? If we do not, let’s hear it.

    ___________________

    Agreed and building on your reasoning above Ned, in order for the Constitutional Right to a Patent to be declared non existent, the following events would have to occur.

    a) The complete striking down of US CODE: Title 35, by Congress.

    b) Followed by a case before the supreme court challenging such action as unconstitutional.

    Resulting in a review of the Constitution by the Supreme Court with a interpretation ruling (preferably unanimous) Inventors have no Constitutional Right to a patent.

    As it stands no such events have occurred and the Constitution explicitly states the Constitutional Rights of Inventors as quoted below, and Congress has acted to secure those rights as is required when establishing regulatory Rights for Property.

    [We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. 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;]

    The Constitutional Right to a Patent Shall So Remains.

    ::BANGS GAVEL::

  25. 235

    broje, I think we agree on fundamentals.

    But to reiterate, Congress and the states may pass legislation that restricts the right to free speech or any other constitutional right, provided there is a well articulated compelling need to do so, the law narrowly accomplishes the legislative objective and does not unduly burden the constitutional right. A law forbidding someone the right to yell fire in a crowded theater is such an example.

    The Supreme Court is the body that decides whether the law unduly burdens the constitutional right, or even if the person enjoys the constitutional right in the first place. Such was the case with corporations who the Supremes decided 100 years ago did not enjoy first amendment rights and who recently decided they did.

    Do well all agree on the above? If we do not, let’s hear it.

  26. 232

    >>Did somebody put something in Noise’s tea>>(bag)? She’s acting really strange lately.

    Sounds like an MM sockpuppet by the baboon that steals monikers and now is his own cheer leading squad.

  27. 231

    Did somebody put something in Noise’s tea(bag)? She’s acting really strange lately.

  28. 230

    broje,

    fled? Naw, just letting others have their time on the playground.

    My actual questions don’t get answered – no big deal.

    People want to distract themselves – that’s ok too.

    People want to clamor for others to “stay classy” and then steal monikers or play poster with a thousand monikers… – we’ve been there, done that.

    I am rather glad that my travel schedule will be limiting my input over the next two weeks.

    What will you do?

    Well, you can count sockpuppets – that’ll keep you busy (bored, but busy).

    I will see you soon!
    love the Trainwreck
    love each other

    Be good
    even to those who are not good

    but
    always
    care enough to comment so that they will
    keep coming back for more.

  29. 229

    “Honestly, I’m scared to even speculate where they got their law degrees.

    Canada, maybe?”

    Nah, if she got her degree in Canada, her name would be Noise aboot Law.

  30. 228

    Is that where these self-identified legal professionals who don’t know the difference between a constitutional right and a legislative privilege got their law degrees?

    At least one of them obtained it at George Mason. Go figure.

  31. 227

    Is that where these self-identified legal professionals who don’t know the difference between a constitutional right and a legislative privilege got their law degrees?

    Honestly, I’m scared to even speculate where they got their law degrees.

    Canada, maybe?

  32. 226

    *****
    It’s a failure of the public education system …
    *****

    Is that where these self-identified legal professionals who don’t know the difference between a constitutional right and a legislative privilege got their law degrees?

    Meanwhile, it looks like NAL has fled the scene. I shall evermore picture track shoes peeking out from beneath the hem of her skirt.

  33. 225

    Let’s focus on clearing up the confusion for those who mistakenly think that a Constitutional Right means a property right flowing from legislation passed by Congress according to power granted to it in the Constitution. That’s not what it means, and it is an important distinction.

    I don’t think the free speech issue is terribly instructive when people are confused about “rights” in Section 8. Section 8 says what Congress may (“shall have the power to”) do, and the Bill of Rights (more or less) says what Congress may not do.

    People’s rights are based in the limitations on the power of Congress, not the grants of power to Congress. Congress can exercise its power however it wants, until it runs afoul of one of the things it may not do.

    The real confusion here is that people see random words they like scattered around the constitution, and they convince themselves that gives them some kind of “constitutional right” in those words. It’s a failure of the public education system, and not something we’ll fix on a patent blog.

  34. 224

    Really, Ned. How does that defend NAL’s response:

    **********
    “Congress cannot decide who has the right to free speech”

    – But Congress can decide what is free speech and what is not – think FIRE in a crowded theater.
    **********

    or refute my rebuttal:

    *********
    it is the Supreme Court that interprets the Constitution. Congress then can only overrule SCOTUS by passing a Constitutional Amendment.
    *********

    I know you were both originally responding to Game Over, but you are dealing with me now. The inability of SCOTUS to initiate legislation has no bearing on what is meant by a “Constitutional Right.”

    Let’s focus on clearing up the confusion for those who mistakenly think that a Constitutional Right means a property right flowing from legislation passed by Congress according to power granted to it in the Constitution. That’s not what it means, and it is an important distinction.

  35. 223

    TINLA: Congress can decide on limitations on speech and it is the supremes who decide whether this is an infringement of the right of “free speech.” The supremes do not decide cases in a vacuum, they react to laws passed by congress and by the states. Those laws are sustained to the extent they are not unreasonable and are not over broad.

    So, I if want to suppress speech of al qaeda recruiters, I pass a law narrowly as possible to suppress it. I do not petition the supremes to suppress al qaeda recruitment activities.

  36. 222

    ******
    Do you want the last word?
    ******

    That would be boring.

    Please continue to defend your position that it is Congress that decides what is and is not free speech, while quoting a SCOTUS decision for “fire in a crowded theater.”

    Go.

  37. 221

    Tinla, my point is that Congress can decide who can speaks and how much. The Supremes ultimately decide if the infringement on free speech is warranted or justifiable.

    For 100 years, corporations did not enjoy free speech. But, now they do after the recent landmark Supreme Court decision. Clearly Congress decided once upon a time to limit the free speech of corporations and the Supremes, as you noted, being the final arbiter, recently decided they cannot. But it was a close decision and the pres. and 60% of congress are hopping mad and want to see if they can reimpose some restrictions on corporations.

  38. 218

    ******
    Congress cannot decide who has free speech?

    Sure they can.

    Think McCain-Feingold.

    Think “Fairness Doctrine.”
    *******

    C’mon, Ned. I give you credit to know that Congress can pass a law tomorrow abridging free speech or any other Constitutional right, and that SCOTUS can strike it down as unconstitutional, or uphold it as Constitutional. But it is not Congress that interprets the Constitution. Allowing Congress to do that would be an end run around the Constitutional requirement that Congress muster a two-thirds majority to amend the Constitution.

    It is basic political science to appreciate the balance of powers in the US. The Constitution grants Congress the power to make laws, and grants certain rights to the People. If SCOTUS can overturn a Congressional law on the basis that it violates a Constitutional Right, then a Constitutional Right exists. If Congress passes a law that grants you a right that it can then take away by repealing or changing the law, without amending the Constituion, then you really have a legislative privilege.

    It is the very definition of a Constitutional Right that you have it, and SCOTUS enforces it, regardless of whatever legislation Congress passes, absent a Constitutional Amendment. That is the one true test for a Constitutional Right. If you do not see that, then we have nothing more to discuss except how uneducated you are about basic Political Science and Constitutional Law.

    Since Congress can choose to repeal 35 USC, and not grant patents, without passing a Constituional amendment, and since SCOTUS would have no grounds to grant you a patent absent that law, there is no Constituional Right to a patent. That’s it. Any other view is ridiculous.

  39. 217

    “the esclusive rights of inventors ARE set forth in the Constitution, and thus are Constitutional rights.”

    That is a stupi d play on words and not worth any of our time discussing.

    Congratulations on successfully trolling the boards for hundreds of comments.

    /golfclap

  40. 216

    Congress cannot decide who has free speech?

    Sure they can.

    Think McCain-Feingold.

    Think “Fairness Doctrine.”

  41. 215

    *******”Congress cannot decide who has the right to free speech”

    – But Congress can decide what is free speech and what is not – think FIRE in a crowded theater. ******

    NAL, it is the Supreme Court that interprets the Constitution. Congress then can only overrule SCOTUS by passing a Constitutional Amendment.

  42. 214

    ******Posted by: Ned Heller | Feb 26, 2010 at 12:03 PM “As others have pointed out, the grant of power to Congress to make laws does not obligate Congress to pass any law.”

    This is completely irrelevant to the FACT that Congress has acted and secured for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

    Now, if Congress had not acted you might have a point about the inventors Rights stated in the Constitution not yet existing because because no laws had been passed to secure them.

    But the Inventor Rights are stated in the Constitution.

    Congress has secured those Rights by law.

    So using your own theory about Rights, Inventors have a legal, bona fide, Constitutional Right to a patent.******

    AI, that is pure drivel. The inventor rights exist as a legislative property right. What is in the consituttion is a congressional power.

    Do you really not understand that if you had a constitutional right to a patent under certain conditions, that congress could only refuse you a patent under those conditions by passing a constitutional amendment?

    As it stands, you can get a patent that conveys a property right. But you do not have a Constitutional Right to a patent.

    You messed up and used the wrong word. And now you keep digging a deeper and deeper hole for yourself as you try and weasel your way out of a mistake.

  43. 213

    Game Over,

    It sounds like you are approaching a point where you are actually discussing law rather than handwaiving.

    Congratulations (another victory for proper “assailing”).

    There are a few distinctions for you to be aware of:

    “the exclusive rights of inventors set forth in the patent clause are Constitutional rights in the same sense as other Constitutional rights.”

    – ignores the fact that AI keeps hitting you with – the esclusive rights of inventors ARE set forth in the Constitution, and thus are Constitutional rights.

    “Congress cannot decide who has the right to free speech”

    – But Congress can decide what is free speech and what is not – think FIRE in a crowded theater. Likewise, it is not that Congress is saying “you do have a patent and we are not letting you have your rights to that patent”, it is more like “we recognize that you actually do have a patent when it meets the definitions we have set up” – You miss this because you miss the proper level of abstraction. The “what is an invention” can be thought of as on the same level as “FIRE in a theater”. The (R)ights of the inventor can be thought of as on the same level as Freedom of Speech.

  44. 212

    AI, you truly have a tenuous grasp on logic. Because a document (the Declaration of Independence) is silent regarding patents, you conclude that it supports them?

    I do not dispute that the Constitution grants Congress the power to create a patent system, nor do I dispute that the language of the Constitution indicates that the founders intended for Congress to make use of that power. What I do dispute is that the exclusive rights of inventors set forth in the patent clause are Constitutional rights in the same sense as other Constitutional rights.

    Congress cannot decide who has the right to free speech or who has the right to a fair and speedy trial. However, Congress does decide who gets an exclusive right to their invention. That is, Congress cannot say “these citizens are entitled to free speech but these citizens are not” but Congress can say “these inventors are entitled to exclusive rights, but these inventors are not.” If you are thrown in jail for public T-bagging, your Constitutional right to free speech is being violated. However, if the PTO does not allow your claims, your Constitutional right to a patent is not being violated.

  45. 211

    Malcolm Game Over Mooney wrote:

    “More like you’re fully aware that rewording actual Constitutional rights using the words of the patent clause shows that exclusive rights for the inventor are not mandated by the Constitution and so you instead duck and dodge.”

    Malcolm in a debate over the interpretation and meaning of the Constitution you do not get to reword the Constitution to suit your argument and then declare victory and go home. Only a child would resort to, and then believe such tactics were valid.

    Now here is the proper protocol for a discussion and analysis on the Constitutional level.

    Step One: Consult the SCOTUS

    First, we simply go to the Supreme Court, whose job it is to interpret the Constitution and set legal precedent.

    In this case we can say as a matter of FACT that the Supreme Court has not ruled that there is no Constitutional Right to a Patent.

    Step Two: Consult the Federalist Papers

    If there is a debate as to the meaning of terms, text, or clause, for example, what do the words, Inventors Rights, or the text, ” securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” actually mean, we then do as the Supreme Court will do, consult the Federalist Papers.

    [ Note: The Supreme Court consults the Federalist papers first and more than any other document(s) when seeking guidance on the interpretation of the Constitution]

    After reading and quoting over 80 Federalist Papers, no where is it found that the” Inventors exclusive Rights to their Discoveries” explicitly stated in the Constitution are to be interpreted as NOT being Constitutional Rights. Furthermore, no where in any of the Federalist Papers is it written that there is no Constitutional Right to a patent.

    Step 3. CHECK THE CONSTITUTIONAL FILTER

    To make sure the spirit of the Constitution is accurately reflected in current analysis, the Supreme Court and legal scholars read the Declaration of Independence.

    [ Note: The Declaration of Independence is and has been the filter through which the Constitution is read and applied since Abraham Lincoln ]

    After numerous readings and discussions of the text of this historical document it can be said as a matter of FACT that there is nothing in the Declaration of Independence that would indicate there is no Constitutional Right to a Patent.
    .

    To assail Rights so stated in the Constitution will require more than the usual ad hominem and puppyhood attacks. It will have to be done through nothing less than the time honored Constitutional analysis practiced by and before our esteemed Supreme Court and framed by our Founding Fathers over 200 years ago.

    Those of us who are learned and professional have conducted that analysis. The results are conclusive. It cannot be denied, as a matter of fact, historical record, and Constitutional law, that Inventors have a Constitutional Right to a patent.

  46. 210

    Noise, you aren’t going to win any arguments by not responding to any questions. I would think that you would have figured that out by now.

    Anyhoo, your childish insults do not affect me. They are simply the defense mechanism of the intellectually outgunned, having found themselves argued into a corner.

    So, in closing, it looks like the S.S. Constitutional Patent is going down, and you and AI forgot to bring a lifeboat.

  47. 208

    “Malcolm, what could it have been that Noise did to damage your psyche so badly?

    Was it the way you were embarrassed and forced to flee during the Printed Matter Doctrine discussions?”

    That was only the start.

    I took the bully’s playground from him, beating him in the mudpit without resorting to the levels of slime that he descends to.

    Its brutal for him to be so exposed – a vacuous fool provecatuer, whose ability to be provocative is limited to non-legal stale tricks (and thus not very provocative at all).

    As they say… Sucks to be Malcolm (what the sam hill).

  48. 207

    “Since no argument has been made equating the above statements your post is a classic strawman fallacy.”

    More like you’re fully aware that rewording actual Constitutional rights using the words of the patent clause shows that exclusive rights for the inventor are not mandated by the Constitution and so you instead duck and dodge.

  49. 206

    Malcolm Mooney took off his Orly Tavitz wig and wrote:

    “A well regulated Militia, being necessary to the security of a free State, the right of the People to keep and bear Arms, shall not be infringed.”
    vs.

    “The Congress shall have power to promote the security of a free state by securing for citizens for limited times the right to keep and bear arms.”
    Only a Consteetooshunal Skoltard such as yourself would think these two statements mean the same thing.”

    _________

    Since no argument has been made equating the above statements your post is a classic strawman fallacy. And your tactic of posting strawman fallacies by accusing others of posting strawman fallacies is beyond boring and lame.

    And apparently Noise Above the Law must have intellectually scarred you and left your emotionally traumatized at some point. Why else would you obsess so and invoke NAL in different posts using differ aliases?

    Malcolm, what could it have been that Noise did to damage your psyche so badly?

    Was it the way you were embarrassed and forced to flee during the Printed Matter Doctrine discussions?

    Hmmmmm.

  50. 205

    “just because a Right to a Patent is not an amendment in the Bill Rights does NOT mean there is no Constitutional Right to a Patent?!?!?!?”

    AI, what would your mom NAL say about responding with such straw?

    “A well regulated Militia, being necessary to the security of a free State, the right of the People to keep and bear Arms, shall not be infringed.”

    vs.

    “The Congress shall have power to promote the security of a free state by securing for citizens for limited times the right to keep and bear arms.”

    Only a Consteetooshunal Skoltard such as yourself would think these two statements mean the same thing.

  51. 204

    Ned Wrote:

    “In reality, experience taught us that men have no rights not recognized by other men and by the sovereign. From the earliest days of Rome, the people demanded written laws so they would know their rights. That is why our founders were so insistent that we engrave into stone (Bill of Rights), those rights Englishmen has won over the centuries, etc. The 5th and 14th and 14th Amendments contain a general Liberty clause. Through this, the courts have recognized fundamental Liberties not enumerated. We call these Liberties, Rights.”

    “Having an exclusive right to one’s inventions is not an aspect of Liberty. As a corollary, there is No constitutional right to a patent under any Liberty theory.”

    Ned:

    Your Liberty Theory, as its being used here, is nothing more than the old fallacious argument that was invalidated long, long, ago in other threads and recently at | Feb 25, 2010 at 08:45 PM I above.

    How many times does it have to be demonstrated that just because a Right to a Patent is not an amendment in the Bill Rights does NOT mean there is no Constitutional Right to a Patent?!?!?!?

    You put a new Liberty dress on it, but it’s still the same old pig.

  52. 203

    Posted by: IANAE | Feb 24, 2010 at 03:26 PM: “Do the founding fathers have anything to say about software patents?”

    That is the most inane question yet!

    Malcolm it is obvious you truly don’t care anything about this topic. You just want to badger people.

  53. 201

    Posted by: Ned Heller | Feb 26, 2010 at 12:03 PM “As others have pointed out, the grant of power to Congress to make laws does not obligate Congress to pass any law.”

    This is completely irrelevant to the FACT that Congress has acted and secured for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

    Now, if Congress had not acted you might have a point about the inventors Rights stated in the Constitution not yet existing because because no laws had been passed to secure them.

    But the Inventor Rights are stated in the Constitution.

    Congress has secured those Rights by law.

    So using your own theory about Rights, Inventors have a legal, bona fide, Constitutional Right to a patent.

    Understand now?

  54. 200

    AI, on patents:

    In nature, you have a right to your inventions only to the extent you can keep them secret. One can only prevent others from using your inventions through law. Having an exclusive right to one’s inventions is not an aspect of Liberty. As a corollary, there is No constitutional right to a patent under any Liberty theory.

    As others have pointed out, the grant of power to Congress to make laws does not obligate Congress to pass any law.

    Hope this helps.

  55. 199

    “the accused shall enjoy the right to …”
    “The Congress shall have power To …”

    Sounds pretty similar to me.

  56. 198

    AI, you and I do not disagree in theory. Hobbes proposed a theory of legitimate government based on consent. Man in nature is has complete liberty. He retains all liberties not granted to the government. Here, Liberty and Right are equated.

    That is what Hamilton argued.

    In reality, experience taught us that men have no rights not recognized by other men and by the sovereign. From the earliest days of Rome, the people demanded written laws so they would know their rights.

    That is why our founders were so insistent that we engrave into stone (Bill of Rights), those rights Englishmen has won over the centuries, etc.

    The 5th and 14th and 14th Amendments contain a general Liberty clause. Through this, the courts have recognized fundamental Liberties not enumerated. We call these Liberties, Rights.

    So, as I said, we fundamentally agree about theory. In practice, rights (Liberties) do not exist unless they are recognized as such by other men. This is when the Supremes will also recognize them in their case law.

  57. 197

    Hey AI, compare and contrast:

    CONSTITUTIONAL RIGHTS
    “the right of the People to keep and bear Arms, shall not be infringed.”
    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”
    “the accused shall enjoy the right to a speedy and public trial”
    “the right of trial by jury shall be preserved”

    NOT CONSTITUTIONAL RIGHTS
    “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”

    The language they chose appears to be quite different in the case of the patent clause, no? Perhaps “The Congress shall have power To promote the progress of science and useful arts, by” was a typo.

  58. 196

    Hobbes, do not despair, your work here is and was appreciated. Your skill as an obfuscationiste is unparalleled (I do not use such terms lightly). It is a testament to your deft touch that neither tweedle-dee nor tweedle-dum achieved enlightenment.

    If it is any consolation, know that as a nihilist, it is technically impossible for me to believe in nihilism.

  59. 195

    Posted by: Ned Heller | Feb 25, 2010 at 05:00 PM:You do know, AI, that Hamilton’s view did not prevail. The people did not want to risk giving up the hard fought rights of Englishmen, and demanded a Bill of Rights even the face of Hamilton’s argument they were not necessary to engrave into constitutional stone for all time these very rights that previous Englishmen had won from royal prerogative.
    ____________

    Ned:

    I know we have a Bill of Rights. That was not the point I was making. Did you even bother reading the entire excerpt? If so you would have come to the conclusion where Hamilton says:

    “is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations.”

    Though Hamilton is addressing the issue of whether there is a need of a Bill of Rights its his sentiments that WE THE PEOPLE surrender nothing ( especially our Rights ) to Government and his expression that Congress is our Servants that I am highlighting.

    Why?

    Because IANAE has the INANE belief that WE THE PEOPLE are the servants of Congress and WE THE PEOPLE gave up our Rights and Power to Congress so they can Rule over us. Apparently IANAE has to believe this in order to find some basis for his non supported rational that Inventors have no Constitutional Rights to their inventions.

    If its a better understand of our history that you are interested in you may be interested in the fact that Madison, a strong advocate for the Bill of Rights, initially opposed it for the same reasons as Hamilton. However like Hamilton, Madison accepted the Bill of Rights and supported it because he knew the Constitution would not be ratified by the People without it.

    So it was purely political and had nothing to do with whether Rights can only exist if they are literally spelled out in the form of Law, which I think is your view.

    In fact as I pointed out before it was Madison that wrote Amendment 9 – which says:

    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    This clause was necessary to ease the real concerns of the Federalist about the potential dangers of the Bill of Rights and its effect on the Constitution and our inalienable rights.

    So Hamilton and the Federalist did not really lose, they got their Amendment 9 to help ensure WE THE PEOPLE did not surrender our inalienable Rights and the Anti Federalist got their Bill of Rights to pacify their fears that their inalienable Rights would not be recognized by the Constitution. Bottom line WE all prevailed.

  60. 194

    I see (yet) another comment of substance from Malcolm – and someone said I was the one prodding him – oh yeah, that was a rare/usual/what-next someone.

    I don’t like messing with the tags for italics and bold as much as you do. CAPS is simply an easier way to place emphasis – I’m sure you can deal with it.

    If not, bite me and try to say something of merit (that’ll keep you busy for like, forever).

  61. 193

    INANE – I asked you to stop twisting what I actually say, and yet I am finding you STILL misquoting me.

    “You asked me to ignore the word that..”
    – NO. I did not ask you to ignore any word – I asked you to treat adverbial phrases correctly. You have gone from me missing your point (not true) to me asking you to ignore a word (not true). What type of prevarication will you come up with next?

    If the only way you feel that you can overcome my points is to mistate them (like you have yet again), perhaps it would be better if you simply kept completely quiet. Why do you have such a problem sticking to what I actually ask of you?

    (yes -that’s a rhetorical question – we both know the answer is because you cannot answer my questions)

    INANE – and you complaign about my reading comrehension?

    “He didn’t claim eBay said anything in particular”

    “If you recognized the authority of SCOTUS to say that you don’t have a Constituional right to a patent”
    Posted by: broje TINLA IANYL | Feb 25, 2010 at 12:33 PM

    “My citation is to Ebay. That is the case to which I was referring.” Posted by: broje TINLA IANYL | Feb 25, 2010 at 02:34 PM

    Seriously INANE – your credibility keeps dropping every time you try to slam me. Glib non-answers and pathetic attempts to change my words so you do not actually answer my questions only result in your looking foolish. Stop trying to slam me and simply answer the questions.

    Just answer my questions.

    If you cannot answer the questions I actually asked – admit so and we can move on.

  62. 192

    IANAE Do you see why it’s so difficult to have a sensible discussion with you about these things? You keep changing the words, and eventually I get tired of pointing out that you can’t understand one sentence by reading another. And then you accuse me of misdirection in every post.

    Dude, I so tried to warn you about this.

    Or, as NAL would say, “Dude, I so TRIED to warn you ABOUT this.”

  63. 191

    I asked you to correct your reading of the constitution to properly read the words there

    You asked me to ignore the word that made the text mean what you didn’t want it to mean. When we discussed 35 USC 132 you insisted on including a word you did like that wasn’t in the text.

    Do you see why it’s so difficult to have a sensible discussion with you about these things? You keep changing the words, and eventually I get tired of pointing out that you can’t understand one sentence by reading another. And then you accuse me of misdirection in every post.

    (plus you may need to deal with INANE, who puts forth that Ebay simply did not state what you claim)

    He didn’t claim eBay said anything in particular, Ms. Direction. Only you and AI think he did, which doesn’t put you high on the reading comprehension scale.

  64. 190

    INANE,

    “…You sure do it often. I notice you’re still not addressing any of the other words in the sentence, even though my point didn’t depend at all on the word you continue to fixate on.”

    Except
    – I asked you the questions first – still no answer.
    – I asked you to support your statements – still no answer.
    – I asked you to give a plain language rendition – still no answer.

    – I asked you to correct your reading of the constitution to properly read the words there – which by the way is EXACTLY on your point’s dependency – STOP misdirecting my positions. Your answer is some misdirection about my lack of answer on words. I even corrected you, yet you still prevaricate and glibly accuse me of doing what you are doing. Besides – I have already discussed the words on the January thread – you have NOT asked me for anything new or different. Is it that hard for you to actually argue the points I present?

    ANSWER THE QUESTIONS ALREADY. Do you only have glib non-answers? Even Malcolm can do that – and that’s not saying much.

    broje,

    I am not interested in your OPINION of Ebay – I was asking for a cite to your quoted position of what that Court HELD.

    I assume that you are a lawyer and know why I am asking for you to prove such a strong position with a clear cite – otherwise I must assume that you made up that point (plus you may need to deal with INANE, who puts forth that Ebay simply did not state what you claim).

  65. 189

    sacriligious

    I mean sacrilegious, of course. D@mn, that’s a hard word to spell…

  66. 188

    … when you adopt, as you nome de plume, an English political philosopher who argued forcefully, it seems, that rights do not flow from heaven…

    Ned, I used Mr. Hobbes’ name because “Jonathan Swift” would have been too obvious. I suppose I should have borrowed St. Thomas Aquinas’ name instead, but that seemed almost sacriligious.

  67. 187

    It puzzles me, Hobbes, why you pretended to disagree with yours truly on the origin of rights when you adopt, as you nome de plume, an English political philosopher who argued forcefully, it seems, that rights do not flow from heaven, but from the consent of other men and the mutual agreement/recognition of other men.

  68. 186

    You do know, AI, that Hamilton’s view did not prevail.

    He must have forgotten that part of history, because he feels condemned to repeat it.

  69. 185

    AI said, “Hamilton also says:

    “It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations.”

    You do know, AI, that Hamilton’s view did not prevail. The people did not want to risk giving up the hard fought rights of Englishmen, and demanded a Bill of Rights even the face of Hamilton’s argument they were not necessary to engrave into constitutional stone for all time these very rights that previous Englishmen had won from royal prerogative.

    The Bill of Rights encodes these rights, the rights of Englishmen, and specifically reserves to the people other rights, other rights of Englishmen, not specifically enumerated.

    As I mentioned earlier, the right to keep and bear arms was no. 7 in the English bill of rights. It was not some right that appeared from antiquity or from god or from some natural right as others here appear to argue.

    Hope this helps you understand our history a bit better.

  70. 184

    What makes me sad is that it’s no longer possible to satirize this whole Constitutional (R)ights discussion. Thanks a lot, guys.

    See you later, Orly, Ned, and all you other nihilists.

  71. 182

    MM: >>Patent Blog Derangement Syndrome.
    >>It’s ugly. And there is no cure.

    Turns people into baboons.

  72. 181

    Well if the Supremes did outight say in Ebay there is no Constitutional Right to a Patent why can’t anyone cite the *&^% statement???

    Because eBay never said that, of course.

    Riddle me this, though. If you have a constitutional right to a patent, how come Congress can deny you a patent on your invention if you don’t pay a fee? Shouldn’t you just get the patent once you’ve tendered a set of patentable claims?

  73. 180

    [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;]

    Posted by: IANAE | Feb 25, 2010 at 10:38 AM:Shall have the power to. Not “shall promote” or “shall secure”. It helps to read the whole sentence.

    AI: Then why don’t you do it?

    Or at least type it out so that we know you are aware the sentence exist, whether you accept it or not.

  74. 179

    Posted by: Noise above Law | Feb 25, 2010 at 02:22 PM “broje, I am aware of AI’s position – that is not my immediate concern – ”

    AL: Whether we agree or disagree on the issues I want to make it clear that broge lied about my position. I have not stated any opinion on Ebay.

    NAL: “you stated a Supreme Court holding – I wanted to know if that was accurate or not. Do you have a citation, or were you just making that statement up? ”

    AI: For as I can tell he made it up! Then claimed I said it!! Well if the Supremes did outight say in Ebay there is no Constitutional Right to a Patent why can’t anyone cite the *&^% statement???

    Posted by: Actual Inventor | Feb 25, 2010 at 03:57 PM

  75. 178

    Are you so bruised and injured from being intellectually slapped around, by an Actual Inventor no less, that you have to resort to mischaracterizations, and outright lies?

    Patent Blog Derangement Syndrome.

    It’s ugly. And there is no cure.

  76. 177

    Posted by: Noise above Law | Feb 25, 2010 at 02:22 PM “broje,

    I am aware of AI’s position – that is not my immediate concern – ”

    NAL: Whether we agree or disagree on the issues I want to make it clear that broge lied about my position. I have not stated any opinion on Ebay.

    NAL: “you stated a Supreme Court holding – I wanted to know if that was accurate or not. Do you have a citation, or were you just making that statement up? ”

    AI: For as I can tell he made it up! Then claimed I said it!! Well if the Supremes did outight say in Ebay there is no Constitutional Right to a Patent why can’t anyone cite the *&^% statement???

  77. 176

    Posted by: broje TINLA IANYL | Feb 25, 2010 at 02:07 PM: Noise, AI has been saying that the SCOTUS decision in Ebay is unconstitutional because it violates his constitutional right to a patent.

    Thats a bald face lie. I have never made such a statement or rendered any opinion whatsoever on Ebay. You have lost all credibility with me.

    Ned, NAL and others may disagree with me on certain issues including this debate on Inventors Constitutional Rights.

    And thats fine, they are honest individuals that have a reason for their beliefs and can cite some authority as a basis for what they say.

    But broje, you are low as Malcolm IANAE Mooney to resort to blatant lies in a debate.

    IANAE :”AI’s problem is that Bilski stands as SC precedent against there being a constitutional right to a patent. Not sure where he gets it from, but it really bugs him.”

    WTH? I have never stated such a position. What’s wrong with you people lying?

    Are your egos that sore?

    Are you so bruised and injured from being intellectually slapped around, by an Actual Inventor no less, that you have to resort to mischaracterizations, and outright lies?

    broje is now saying the SCOTUS has ruled there is no Constitutional Right to a Patent. Yet when NAL called for the citation broge has none.

    Just like IANAE claiming the word “MAY” was used in the Patent Clause when in fact the word SHALL is used.

    When asked for citations or direct text from the Constitution you BOTH remain silent and provide nothing but your sullied opinions.

    You BOTH have failed to provide ANY citations.

    You BOTH have failed to quote one Founding Father that agrees with you.

    You BOTH have failed to provide any direct text from the Constitution itself stating what you claim to be fact.

    You are BOTH no good liars.

  78. 175

    So, on that premise, Ebay stands as a SCOTUS precedent against there being a Constitutional Right to a patent.

    AI’s problem is that Bilski stands as SC precedent against there being a constitutional right to a patent. Not sure where he gets it from, but it really bugs him.

    NAL’s problem is that eBay stands as SC precedent that an exclusive right does not necessarily imply an injunctive remedy.

    Does that clear up the confusion about their respective confusions?

  79. 174

    My citation is to Ebay. That is the case to which I was referring. The entire proposition here that individuals have a Constitutional Right to a patent has been premised on the decision in Ebay violating that right. So, on that premise, Ebay stands as a SCOTUS precedent against there being a Constitutional Right to a patent.

    Are you saying that there is a Constitutional Right to a Patent, but that injunctive relief is not required as a matter of right? Please clarify the specific limb upon which you have gone out.

  80. 173

    is that a common tactic when your position falters?

    I think it’s pretty common. You sure do it often.

    I notice you’re still not addressing any of the other words in the sentence, even though my point didn’t depend at all on the word you continue to fixate on.

  81. 172

    No semantic misdirection by me IANAE – your argument falls apart given that I provided a perfectly acceptable hypothetical for “defendant”, and you were the one who needed to make the argument extreme with everyone. Now you are starting to accuse me of things you are doing – is that a common tactic when your position falters?

    There is no tax to reading comprehension – although you should pay for your misdirecting tactics. Try to stay on point and answer the actual questions.

    broje,

    I am aware of AI’s position – that is not my immediate concern – you stated a Supreme Court holding – I wanted to know if that was accurate or not. Do you have a citation, or were you just making that statement up? (it’s not too clever to have a constitutional law debate and make up Supreme Court holdings, but I give you the benefit of the doubt – I may have truly missed that holding).

  82. 171

    Seriously, we can’t say oxy-m0r0n.

    You’d have to pay royalties to the estate of Billy Mays. And since it’s a trademark, they’d probably get an injunction.

  83. 169

    Noise, AI has been saying that the SCOTUS decision in Ebay is unconstitutional because it violates his constitutional right to a patent. My point is that saying a SCOTUS decision is unconstitutional is some kind of hyper-ironic oxy-m0r0n.

  84. 168

    I never said stop EVERYONE. That is not a part of the argument.

    Sorry to tax your reading comprehension skills so heavily.

    Feel free to mentally substitute “the defendant” for “everyone else”, and respond accordingly. Unless these semantic misdirection games are more fun for you.

  85. 167

    “is for everyone else” – IANAE – you really gotta stop arguing points that I am not making. I never said stop EVERYONE. That is not a part of the argument. (you really should stop this, as you can see – others (rare/usual/etc) latch onto the misdirections – “would not be a business model we would want to promote.” – that’s clearly not the point of Promote – weren’t you paying attention sock?)

    I appreciate that you are taking some time to formulate some answers. I hope that they are answers to my actual questions.

    Jules – That was funny.

  86. 166

    …even NPE’s can want to merely exclude…

    That’s certainly a theoretical possibility, although I can’t think of a scenario where a commercial entity’s entire strategy consists of (1) we plan to never produce this invention, and (2) we’re not going to let anyone else produce it, either.

    Even if it were a rational approach, from an economic point of view, that would not be a business model we would want to promote. Under the patent bargain, we’re willing to give up monopoly rents in return for the disclosure. There is still some consumer surplus generated in the buying and selling of the patented product, despite the monopoly rents. (If there weren’t, there would be no sales at all.) But if a patentee just sits on his patent, and refuses to work it or license it, then there’s no consumer surplus at all. That kind of behavior would disrupt the balance of the quid pro quo, besides being completely irrational.

    IANAE is right, the value of an injunction to the NPE is that it allows the extraction of higher rents. That doesn’t mean that either NPE’s or injunctions are bad per se, it’s just economic reality.

  87. 165

    Noise: “Careful Malcolm, I still have my stick.”

    Yes, be careful, Malcolm. The safety word is “teabagger”.

  88. 164

    The right to exclude, however, is clearly part of the invention.

    Part of the patent. But, yeah.

    except the point you were making with the distinction now is gone.

    The distinction you cleverly argued into nonexistence was not the distinction I was making.

    the right to exclude is there

    Yes, but the right to exclude is not what entitles the patentee to an injunction. Irreparable harm is what entitles the patentee to an injunction.

    your attribution of the only thing an NPE wants is in error – I have already shown this

    You seem to think that they want an injunction simply because they are asking for one, and that they’re entitled to one simply because they want one. The very last thing in the world an NPE wants is for everyone else to stop using its patented inventions, and believing the contrary is an exercise in self-delusion.

    You can do better IANAE…

    Probably, but you’re all I’ve got at the moment.

  89. 163

    “If you recognized the authority of SCOTUS to say that you don’t have a Constituional right to a patent”

    I must have missed this – citation please.

    Careful Malcolm, I still have my stick.

    IANANE – “More misdirection by NAL.” except you avoided the question and provided no sense of misdirection. Answer the question, IANAE.

    Use of invention – I grant that the use of a house is different than the use of an invention. The right to exclude, however, is clearly part of the invention.

    “That’s right” – except the point you were making with the distinction now is gone. That’s why I included the extra about exclusion (even NPE’s can want to merely exclude) – You missed that.

    Million dollars… misdirection – the right to exclude is there – a million dollars is not. Pretty big miss on your account. Also – your attribution of the only thing an NPE wants is in error – I have already shown this – double negative points for you.

    “…words not part of the sentence?” – yet another misdirection – part of the sentence has nothing to do with proper reading of the sentence – as I stated – including the start of the first prepositional phrase in “the Power”, you are purposely misreading the sentence. Clearly, you are aware of this – no? – Clearly “part of the sentence” is not the issue of properly reading prepositional phrases, is it not?

    You can do better IANAE…

  90. 162

    The only question that remains is whether it is intellectual dishonesty masquerading as zealous ineptitude, or the opposite, or both.

    Obfuscation! Fluffery! Nihilism!

  91. 161

    broje The only question that remains is whether it is intellectual dishonesty masquerading as zealous ineptitude, or the opposite, or both.

    You forgot “personality disorder”.

  92. 160

    OK, guys.

    You either accept the role of Congress in passign legislation and amending the Constitution, and the role of SCOTUS in interpreting the Constituion to determine when legislation is unconstitutional, or you don’t. If you recognized the authority of SCOTUS to say that you don’t have a Constituional right to a patent, and that your patent right is not automatically entitled to an injunction, then we would not be haviong this conversation. But then it strikes me as irrational and unsupported for you to turn to the same constitution that established that authority to find a Constitutional Right for you to assert (and only throught gross misinterpretation of legal concepts and twisting of definitions of words). The only question that remains is whether it is intellectual dishonesty masquerading as zealous ineptitude, or the opposite, or both.

  93. 159

    Would the only action by a court (in remedy) be payment? Or would it rather include enforcement of your (R)ight to keep and bear arms?

    More misdirection by NAL. Remedies always depend on the facts of the case. Also, there are lots of patent infringement cases where injunctions are a completely appropriate remedy on the facts, so I’m not sure what you’re trying to prove.

    And your argument about limited supply as a distinction for remedy is misguided. How much more limited in supply can a non-obvious and novel thing be? – by law there is only one of them.

    By law there is only one patent for that invention, but the patented invention is in limitless supply. No matter how much sildenafil someone decides to make, someone else can always make more. That’s what makes it different from your house, where you can’t really live if someone else is living in it.

    And yet more misdirection – the entire purpose of ANY business is to make money. Some make money through goods, some by service, some by renting a piece of property (real or otherwise) – the end result is all the same.

    That’s right. The system doesn’t owe a profit to any of them. A rule or decision isn’t right or wrong because the guy you like gets more or less money.

    My point was not that NPEs are the only ones who like money. Nice misdirection, by the way. My point is that their business model revolves around not excluding people from practicing their patented inventions. Giving them an injunction may serve their financial interests, but it has nothing at all to do with justice.

    You ask “what if the only thing wanted is to exclude?” Well, what if the only thing wanted is a hundred billion dollars? Merely wanting it doesn’t entitle them to the remedy. Anyway, “to exclude” is the opposite of what NPEs want. They want people practicing their invention and paying them royalties. If the court gives them royalties, that sounds like justice to me.

    Further – by including the start of the first prepositional phrase in “the Power”, you are purposely misreading the sentence.

    Oh, are those words not part of the sentence? Maybe I should have thrown in an “entire” to be extra sure I had the correct meaning.

  94. 158

    More dodging by INANE:

    “That’s always the remedy, no matter what right you assert. – you never answered the part about how much money your (R)ight to keep and bear arms would bring in remedy if violated. Would the only action by a court (in remedy) be payment? Or would it rather include enforcement of your (R)ight to keep and bear arms?

    And your argument about limited supply as a distinction for remedy is misguided. How much more limited in supply can a non-obvious and novel thing be? – by law there is only one of them. By Law, the only right is the right to exclude. You glibly hand waive away this important facet of the argument – because your position is not defensible in the light of this (R)ight.

    And yet more misdirection – the entire purpose of ANY business is to make money. Some make money through goods, some by service, some by renting a piece of property (real or otherwise) – the end result is all the same. Whether the system decides money or not as a remedy is a red herring – the argument you are not answering is what if the only thing wanted is to exclude? Stop dodging and answer that particular question.

    (and to counter your NPE example, an NPE may want to exclude certain people – and only include a few select people – in order to drive a limited supply scenario, a perfectly legitimate business use of ones exclusive rights).

    Further – by including the start of the first prepositional phrase in “the Power”, you are purposely misreading the sentence. Clearly, you are aware of this – no?

    As to “give it up why dontcha?” – you have the prefect right not to bother reading what we have a perfect right of writing. I suggest you exercise that right. As to “sticking” it to Malcolm, that too is my right. You of course realize that if Malcolm were to cease his inanities, my sticking would naturally decline. (kinda the point of the stick – hmmm?)

  95. 157

    The NAL&Mooney puppetshow got real old a real long time ago – and let’s be clear it’s NAL with the stick that can’t stop poking…

    …and this infinitely looped yes-it-is/no-it-isn’t constitutional ding-dong is infecting every thread, and now shedding practically no heat, let alone any light.

    You guys must have the highest boredom thresholds in the known universe.

  96. 156

    Unless your name is Goldman Sachs.

    I considered adding that myself, but I felt it would distract from my point. Which is NAL’s exclusive right.

  97. 155

    IANAE – we have gone over this – it is NOT “Shall have power to”, it is Shall have Power” followed by two distinct adverbial phrases, one of which is clearly directive.

    Which one is clearly directive? It says they shall have the power to further a particular goal in a particular manner. You might be able to argue that they don’t have the power to further that goal in any other manner, but:

    1) they equally have the power not to further that goal at all; and

    2) they have, in fact, chosen to further that goal in exactly that manner.

    To ignore the implications of these particularly chosen words is to mis-read the whole sentence.

    To fixate on those particularly chosen words is to not-read the whole sentence.

    It’s wonderful that you found some words that are also in another important document, but I fail to see how that informs your understanding of the patent clause. Especially the really important words in it, which aren’t “rights” or “exlcusive” or “secure”, but “have the power to”.

  98. 154

    >> The system does not owe anybody a profit on >>any particular business model.

    Unless your name is Goldman Sachs.

  99. 153

    Courts have no business in determining how much rent I might want to charge for my property.

    You could say that about any claim for damages, and you’d be just as wrong. Courts are in exactly that business. It’s the reason they exist.

    If you want to determine for yourself how much rent you might want to charge for your property, get a contract and take that contract to court.

    INANE, you give a blind eye to justice.

    Sure, if by “justice” you mean “granting injunctions to people who do not benefit from injunctions other than as leverage to extract money from other people”.

    NPEs exist to make profit. They exist because the profit is there for the taking. If there is no profit, they will go do something else instead. That’s the free market at work. The system does not owe anybody a profit on any particular business model.

  100. 152

    It helps NOT to mis-read the whole sentence.

    IANAE – we have gone over this – it is NOT “Shall have power to”, it is Shall have Power” followed by two distinct adverbial phrases, one of which is clearly directive.

    Also as a point to IANAE, Ned and Nihilistic Tendencies – the Declaration of Independence ALSO has the language concerned with “Securing” and “Rights”. To ignore the implications of these particularly chosen words is to mis-read the whole sentence.

  101. 151

    No doubt. But you fail to address the main point: If the “right” protected is the exclusive right to the invention, why is an injunction granted only if one is selling a product covered by the patent? This IS a non sequitur.

    It’s not a non sequitur, unless you think rights and remedies are the same thing.

    Your right is to exclude. To fence off a metaphorical territory. Any encroachment into that territory is a violation of your right. You have to show that encroachment to make out a cause of action.

    Your remedy is not to exclude. Your remedy is for the defendant to compensate you for your damages. That’s always the remedy, no matter what right you assert.

    By analogy, if I have real property and a trespasser occupies, do I have an exclusive right to may land if I cannot, by law, force him off the land?

    Yes, if you can make out a cause of action every time he sets foot on your land. The thing about real property is that it’s in limited supply. It’s pretty easy to argue that your exclusivity makes no sense if you can’t kick him off your land, because you can’t use the land while he’s using it. That doesn’t apply in patents, because the whole world can use a patented invention at the same time. That’s where your analogy breaks.

    Any regime that only provides for rent, determined by a judge, not by the land owner, is not a regime that will long work.

    On the contrary, the entire purpose of NPEs is to make money. Not to monopolize an industry or a market. All they want is money, and all the system gives them is money. It’s a match made in heaven. The only flaw, as far as you can identify, is that the system doesn’t give them even more money.

  102. 150

    INANE said:

    “Ned: which is why I initially proposed that as an ALTERNATIVE to a Prelim. Inj., the court provide for a compulsory license during litigation just as they would at the conclusion of litigation in lieu of a permanent injunction.

    Your position is “money isn’t enough, they need an injunction”, and your fallback position is “okay, a little more money would be fine”? I think we’ve established what you are, we’re just negotiating price at this point.

    Put another way, NPEs don’t want an injunction so they can have an injunction. They don’t want an injunction because the infringer’s business harms them in any way. They want an injunction so they can extract more money than the court thinks they’re entitled to. Why should the court be complicit in granting more money than the court thinks the plaintiff is entitled to?”

    “Extract” more money than the “court” thinks they are entitled too, he smirks, nodding his head slowly in derision.

    This attitude is obscene, in my view. Courts have no business in determining how much rent I might want to charge for my property. Such attitudes erode property values, commerce and liberty. They are applied, disastrously, by socialists worldwide in many different contexts, such as rent control and regulated prices for drugs.

    INANE, your anti-patent attitude betrays you for what you are. You side strongly with the powerful against the week, as it is the powerful who today want to take other people’s property for their own use without paying what the property owner wants, if he wants to license at all. You and your kind are like the big land developers in the movie UP who coveted the land upon which the aged hero had dwelt since his marrying his sweetheart.

    INANE, you give a blind eye to justice.

  103. 149

    Yet commenters like broge have the audacity to claim the preamble is just a bunch of fancy words that don’t mean anything.

    Have you read it? From what I can tell, it means “here is a document that we think says important stuff, and we hope it makes things work out okay”.

    And yet we have Moonie-IANAE … claiming Congress is not our servants and is not accountable to the people.

    Only because the constitution made Congress that way.

    More important what school did they attend????

    Sorry, what law school did you attend? I didn’t catch the name.

    the argument / implication that there is no Constitutional Right to a patent because its not in the bill of rights.

    Nobody was making that argument.

    Finally there can be no dispute that by the Power delegated by the Constitution Congress has secured for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

    Nobody was arguing against that, either.

  104. 148

    INANE said:

    “Ned: It is the right to exclude which gives the patent value. It is the only thing Congress is authorized to do to protect inventions.

    That’s all Congress has done. The right the patentee has under 35 USC is the right to exclude.

    The question in eBay is what the remedy should be when that right is violated.

    I might add that neither the constitution nor Congress entitles a patentee to any assurance that his patent will have a particular monetary value. When your exclusive right under your patent is violated, you prove your damages, and you collect based on the damages you can prove. Just like every other right in every other court.”

    No doubt. But you fail to address the main point: If the “right” protected is the exclusive right to the invention, why is an injunction granted only if one is selling a product covered by the patent? This IS a non sequitur.

    By analogy, if I have real property and a trespasser occupies, do I have an exclusive right to may land if I cannot, by law, force him off the land?

    Any regime that only provides for rent, determined by a judge, not by the land owner, is not a regime that will long work. Chaos will ensue as the powerful will occupy all the land and pay whatever little rent the meek or bought off judge decrees.

  105. 147

    not what you think | Feb 24, 2010 at 05:16 PM: Federalist No. 84 is enlightening.”

    The Moonies seem to think that if a Right is not in the bill of rights then there is no Constitutional Right. This can’t be further from the truth.

    Hamilton wrote:

    “WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.”

    Yet commenters like broge have the audacity to claim the preamble is just a bunch of fancy words that don’t mean anything.

    Hamilton also says:

    “It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations.”

    And yet we have Moonie-IANAE running thru all the threads like a chicken with his head cut off claiming Congress is not our servants and is not accountable to the people.

    What country do these people live in?

    More important what school did they attend????

    And Hamilton makes a point of beauty when he writes:

    “There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.”

    And down goes the argument / implication that there is no Constitutional Right to a patent because its not in the bill of rights. For the very rights inventors enjoy for their inventions was literally inscribed in the Constitution even before a bill of rights was written!

    _______________________________

    Section 8 – Powers of Congress
    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;
    ______________________

    Finally there can be no dispute that by the Power delegated by the Constitution Congress has secured for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

    Boom Boom Pow!

  106. 146

    AI said:

    “Ned: “Rights exist only to the extent they are recognized as such by men, protected by law and enforced by a government.”

    So according to your thinking , men, women, and children of African decent were indeed animals and not human beings with equal Rights, until the law was changed and enforced by the government. I disagree with you Ned.

    I believe these human beings were always human beings with equal Rights regardless if the laws of man said otherwise.”

    AI, think on this: I think the founders got it backwards in the Decl. of Ind. It is NOT self evident that all men are created equal. But, in the eyes of the Lord, they are. This principle has been a Christian principle since the earliest days of the church and is what drove the early Christians to advocate for better treatment of and more rights for slaves, and the idea that powered the abolitionist movement.

    But the rights themselves do not exist until they are recognized by other men. A right to a patent, for example, did not exist until the last few centuries, and then, for the most part, just here and there in the world. It took awhile for most people to understand the concept and accept it.

  107. 145

    [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;]

    Shall have the power to. Not “shall promote” or “shall secure”.

    It helps to read the whole sentence.

  108. 144

    Ned: It is the right to exclude which gives the patent value. It is the only thing Congress is authorized to do to protect inventions.

    That’s all Congress has done. The right the patentee has under 35 USC is the right to exclude.

    The question in eBay is what the remedy should be when that right is violated.

    I might add that neither the constitution nor Congress entitles a patentee to any assurance that his patent will have a particular monetary value. When your exclusive right under your patent is violated, you prove your damages, and you collect based on the damages you can prove. Just like every other right in every other court.

    Ned: which is why I initially proposed that as an ALTERNATIVE to a Prelim. Inj., the court provide for a compulsory license during litigation just as they would at the conclusion of litigation in lieu of a permanent injunction.

    Your position is “money isn’t enough, they need an injunction”, and your fallback position is “okay, a little more money would be fine”? I think we’ve established what you are, we’re just negotiating price at this point.

    Put another way, NPEs don’t want an injunction so they can have an injunction. They don’t want an injunction because the infringer’s business harms them in any way. They want an injunction so they can extract more money than the court thinks they’re entitled to. Why should the court be complicit in granting more money than the court thinks the plaintiff is entitled to?

    Ned: I think the framers should have said in the Declaration of Independence that the right to life and liberty were “self-evident.” Instead, they accorded self-evidence to “born equal,” which is not self-evident at all.

    They had to say that we all start out equal, but still make provision for taking away your life and liberty via due process if you did anything that made you less equal. Like committing a crime or choosing to be black.

    AI: I believe these human beings were always human beings with equal Rights regardless if the laws of man said otherwise.

    They may have been human beings as a matter of fact, but they were chattel as a matter of law. Bizarre and morally reprehensible, yes, but the law – like the patentee – is often its own lexicographer. You won’t get anywhere if you keep arguing legal issues without knowing what the words mean in that context.

  109. 143

    Ned: “The constitution says NOTHING about protecting one’s business or products or something else. It says that Congress may protect discoveries by granting exclusive rights in those discoveries, NOT products or businesses or something else, to the inventor.”

    Ned,

    Where do you find the word “May” in the Patent Clause, particularly in regard to the actions of Congress?

    Here is what I am seeing and reading:

    [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;]

    The word “MAY” which is means to have an option, is no where to be found. Instead we see the word “SHALL” which is a direct order/instruction.

    You really need to stop using the word “MAY” when discussing Congressional duties in regard to the Patent Clause. Its not correct.

  110. 142

    Ned: “Rights exist only to the extent they are recognized as such by men, protected by law and enforced by a government.”

    So according to your thinking , men, women, and children of African decent were indeed animals and not human beings with equal Rights, until the law was changed and enforced by the government. I disagree with you Ned.

    I believe these human beings were always human beings with equal Rights regardless if the laws of man said otherwise.

    I believe WE THE PEOPLE are endowed by our Creator with certain inalienable Rights and among these are life, liberty, and property.

    And I believe every human being has these God given Rights even if they don’t believe in God.

  111. 141

    Posted by: not what you think | Feb 24, 2010 at 05:16 PM

    “A constitutional right is a freedom granted by a government’s constitution (on the national or sub-national level), and may not be legally denied by that government.

    Does anyone disagree with that definition?”

    I wouldn’t say it’s a freedom “granted” by a constitution. For example, the 2nd Amendment doesn’t grant individuals the right to keep and bear arms, it recognizes that individuals already had the right prior to the ratification of our Constitution and the right shall not be infringed.

    I would make the same argument about, for example, due process. Our Constitution doesn’t grant individuals the right of due process, they already had it before the Constitution was ratified.

    Same with unreasonable searches and seizures.

    Federalist No. 84 is enlightening.”

    I agree with this. The right to keep and bear arms was in the English bill of rights (no. 7) that was the result of the glorious revolution. Other such rights are rights Englishmen fought dearly for over the century.

    As I noted much earlier in this conversation, in a tread many threads ago, the rights preserved to the people are rights the people had at common law, not rights that the people had from some god. It is the latter concept which I have fundamental disagreement with. It is, in point of fact, ridiculous as many peoples believe in a god, but a belief in god does not automatically translate into a right to life and liberty. Rights exist only to the extent they are recognized as such by men, protected by law and enforced by a government.

    For example, I think the framers should have said in the Declaration of Independence that the right to life and liberty were “self-evident.” Instead, they accorded self-evidence to “born equal,” which is not self-evident at all.

    They got it backwards, and I think intentionally so.

  112. 140

    Careful not what you think – you risk the wrath of nihilists everywhere with this “rights” before law stuff. Very very dangerous stuff you are preaching.

  113. 139

    Posted by: IANAE | Feb 24, 2010 at 04:55 PM

    “‘The assumption here is that the patent owner moved for a preliminary injunction, demonstrated likelihood of success on the merits, but failed to demonstrate irreparable harm.”

    That’s a new assumption. Your original proposal said nothing about demonstrating likelihood of success.

    I still don’t think it’s an appropriate remedy. Likelihood of success is meant to deny a preliminary injunction in frivolous cases, not to affect the final outcome of the case.

    Besides which, what would this rule do to the intent requirement for willful infringement? The defendant may still have a bona fide defense to infringement, and may even think he’s likely to win at trial. The judge’s opinion shouldn’t be enough to establish willfulness.

    Also, the reason NPEs don’t generally get injunctions is that they don’t generally need injunctions. That doesn’t mean they should be entitled to some other remedy in lieu.”

    IANAE, which is why I initially proposed that as an ALTERNATIVE to a Prelim. Inj., the court provide for a compulsory license during litigation just as they would at the conclusion of litigation in lieu of a permanent injunction. Please see my OP in this thread.

    IANAE, as to the need for an injunction, what do you mean? This IS the fallacy of eBay. It is the right to exclude which gives the patent value. It is the only thing Congress is authorized to do to protect inventions. The constitution says NOTHING about protecting one’s business or products or something else. It says that Congress may protect discoveries by granting exclusive rights in those discoveries, NOT products or businesses or something else, to the inventor. The Supremes in eBay really screwed the US patent system royally with their decision there.

    What a patent owner needs is a right to exclude. That is what the patent owner needs. He, not the court, should decided how much to charge for a license.

  114. 138

    Posted by: not what you think | Feb 24, 2010 at 05:31 PM : I’m with Hamilton on this one. The “recognition” of certain rights in the Constitution carries with it the danger that by implication “rights” not recognized are not retained by the people. That is the trap that idiots like Scalia fall into.”

    ….as well as ones like Malcolm Mooney, IANAE, Orly Tavitz, and whoever else it is at any given moment.

    It is refreshing that someone has at least demonstrated they are familiar with the Federalist Papers and Hamilton in particular. Now if the Moonies would start reading maybe we could finally advance this topic to it’s proper level of intellectual abstraction and sophistication.

  115. 137

    “Wow, really really reaching. Sockpuppetry at its absolute worse.”

    Actually Malcolm, sockpuppetry at its absolute wors[t] was when you asked for evidence of your sockpuppetry within the last six months and I delivered the evidence. You getting caught is getting to be like 6 being wrong. The only amazing thing is your lack of shame and audacity to keep showing up and posting the same stale crap.

    Do you have anything NEW to reply with?

    My guess is what the sam hill not.

    Your tricks have gone stale Malcolm, just add water to make them malcolmy.

  116. 136

    IANAE : Except that the particular right you identified is reserved to Congress, not to the people.

    AI: Yet you can’t find that statement anywhere in the Constitution.

    IANAE : What do you say to that, Congressman?

    IANAE : I am not a Congressman. I have not been delegated the Power by WE THE PEOPLE through the United States Constitution.

  117. 135

    IANAE: On the other other hand, if they rule that business methods are abstract ideas and therefore not patentable, your tiny, hard-wired brain would explode.

    In which case SCOTUS would be correct and WE THE PEOPLE that are inventors would continue to exercise our Constitutional Rights to our Inventitons for Technological Processes.

    Check and Mate, Again!

  118. 134

    “Would you settle for ‘recognized’?”

    I agree that’s more accurate than “granted”.

    I’m with Hamilton on this one. The “recognition” of certain rights in the Constitution carries with it the danger that by implication “rights” not recognized are not retained by the people. That is the trap that idiots like Scalia fall into.

  119. 133

    I wouldn’t say it’s a freedom “granted” by a constitution.

    Would you settle for “recognized”?

  120. 132

    “A constitutional right is a freedom granted by a government’s constitution (on the national or sub-national level), and may not be legally denied by that government.

    Does anyone disagree with that definition?”

    I wouldn’t say it’s a freedom “granted” by a constitution. For example, the 2nd Amendment doesn’t grant individuals the right to keep and bear arms, it recognizes that individuals already had the right prior to the ratification of our Constitution and the right shall not be infringed.

    I would make the same argument about, for example, due process. Our Constitution doesn’t grant individuals the right of due process, they already had it before the Constitution was ratified.

    Same with unreasonable searches and seizures.

    Federalist No. 84 is enlightening.

  121. 131

    I disagree. The Government can legally deny your Constitutional rights. Ever read the Patriot Act?

    The same Patriot Act that has had portions struck down as unconstitutional?

    You inventors may be smart, but only if “smart” includes not knowing what words mean.

    For example, I can be denied a Patent for any number of reasons including my invention is an abstract ideal, law of nature, or natural phenomenon, or known, non useful, or obvious. None of which are unconstitutional or illegal.

    On the other hand If SCOTUS should adopt Sotomayor’s idea and rule Business Methods are now not patentable that would be a clear violation of my Constitutional Rights.

    On the other other hand, if they rule that business methods are abstract ideas and therefore not patentable, your tiny, hard-wired brain would explode.

    Sure, the definition you provided above supports my position…”Constitutional rights n. rights given or reserved to the people by the U. S. Constitution, “

    Except that the particular right you identified is reserved to Congress, not to the people. What do you say to that, Congressman?

  122. 130

    broje : “A constitutional right is a freedom granted by a government’s constitution (on the national or sub-national level), and may not be legally denied by that government.
    Does anyone disagree with that definition?”

    AI: I disagree. The Government can legally deny your Constitutional rights. Ever read the Patriot Act? But the Government has not as of yet denied the Constitutional Rights of Inventors so your question does not help your argument that inventors have no Constitutional Rights to their inventions.

    broje : AI, you’ve already admitted that it would not be illegal for SCOTUS and Congress to deny you a patent. Rather, you’ve said that the People can then elect new members of Congress to reinstate the patent right. But under the definition above (which is from Wikipedia) it is not a Constitutional right.

    AI:Well, for the reasons stated above I do not agree with the Wikis that wrote the above definition. But you are already conflating here so let’s clear matters up. Denying me a Patent and impeding on my Constitutional Right to my invention are two different things. For example, I can be denied a Patent for any number of reasons including my invention is an abstract ideal, law of nature, or natural phenomenon, or known, non useful, or obvious. None of which are unconstitutional or illegal.

    On the other hand If SCOTUS should adopt Sotomayor’s idea and rule Business Methods are now not patentable that would be a clear violation of my Constitutional Rights.

    broje : Here is another definition I did not make up.
    constitutional rights n. rights given or reserved to the people by the U. S. Constitution, and in particular, the Bill of Rights (first ten amendments). These rights include: writ of habeas corpus, no bill of attainder, no duties or taxes on transporting goods from one state to another, (Article 1, Section 9), jury trials (Article III, Section 1), freedom of religion, speech, press (which includes all media), assembly and petition (First Amendment), state militia to bear arms (Second Amendment), no quartering of troops in homes (Third Amendment), no unreasonable search and seizure (Fourth Amendment), major (“capital and infamous”) crimes require indictment, no double jeopardy (more than one prosecution) for the same crime, no self-incrimination, right to due process, right to just compensation for property taken by eminent domain (Fifth Amendment); in criminal law, right to a speedy trial, to confront witnesses against one, and to counsel (Sixth Amendment), trial by jury (Seventh amendment), right to bail, no excessive fines, and no cruel and unusual punishments (Eighth amendment), unenumerated rights are reserved to the people (Ninth amendment), equal protection of the laws (14th amendment), no racial bars to voting (15th amendment), no sex bar to voting (19th amendment), and no poll tax (24th amendment). Constitutional interpretation has expanded and added nuances to these rights. Here is another one. A liberty or right whose protection from governmental interference is guaranteed by a constitution. None of these definitions support that you have a Constitutional Right to a Patent. Can you come up with a definition of Constitutional Right that does support your stance?

    AI: Sure, the definition you provided above supports my position…”Constitutional rights n. rights given or reserved to the people by the U. S. Constitution, “ This definition fully supports a Government by the people and for the people and the Inventor Rights explicitly stated in the Constitution as follows:

    [We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. 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;]

    Face it Bro, the only way you are going to eliminate Inventors Constitutional Rights to their Inventions is to amend the Constitution. And even that would be temporary.

    Trying to “spin” the Constitution just won’t work. We Inventors are just too smart ;-)

  123. 129

    The assumption here is that the patent owner moved for a preliminary injunction, demonstrated likelihood of success on the merits, but failed to demonstrate irreparable harm.

    That’s a new assumption. Your original proposal said nothing about demonstrating likelihood of success.

    I still don’t think it’s an appropriate remedy. Likelihood of success is meant to deny a preliminary injunction in frivolous cases, not to affect the final outcome of the case.

    Besides which, what would this rule do to the intent requirement for willful infringement? The defendant may still have a bona fide defense to infringement, and may even think he’s likely to win at trial. The judge’s opinion shouldn’t be enough to establish willfulness.

    Also, the reason NPEs don’t generally get injunctions is that they don’t generally need injunctions. That doesn’t mean they should be entitled to some other remedy in lieu.

  124. 128

    Posted by: IANAE | Feb 24, 2010 at 03:01 PM

    “(quoting me)’if a preliminary injunction were denied because their was no irreparable harm, there would be a per se rule that continued infringement was intentional subjecting the infringer to full treble damages.’

    Aren’t single damages presumptively sufficient compensation for reparable harm?”

    ONLY, for non willful infringement. The assumption here is that the patent owner moved for a preliminary injunction, demonstrated likelihood of success on the merits, but failed to demonstrate irreparable harm. If the PI is denied on the basis of no irreparable harm, further infringement should be considered willful.

    GIVEN, that a NPE can hardly ever prove irreparable harm post-eBay, the courts should allow a preliminary motion akin to a preliminary injunction that would determine that any further infringement was WILLFUL. The situation as it stands now categorically denies a PI to a NPE and provides the NPE no realistic way of determining whether continued infringement is willful. Seagate PRESUMED that willful infringement would be suppressed by a PI.

  125. 127

    ********I’m pretty sure that Wikipedia is not the Constitution, nor was it written by the Founding Fathers.*******

    Neither was the pythagorean theorem.
    ba dump bump

    If you don’t get that joke, you know nothing about Hobbes.

    But seriously, I think Wikipedia is usually a pretty good source of information concerning what popular views regarding what things mean. Of course, you could go try and change what Wikipedia says to fit what you want it to say, but your changes would not last long, and you’d lose your editing privileges if you kept it up. Notice I said “privilege.” Is it a (P)rivilege or a (p)rivilege?

  126. 126

    “NAL the repetitious misdirections
    NWPA/NAL you know all about those, don’t you?
    Posted by: Malcolm Mooney | Feb 24, 2010 at 02:59 PM”

    Malcolm, as I asked on another thread – NEW tricks. Accusing others of what you do is such stale old slime.

    Really, is that all you got? Really?

  127. 125

    “NAL the repetitious misdirections

    NWPA/NAL you know all about those, don’t you?

    Posted by: Malcolm Mooney | Feb 24, 2010 at 02:59 PM ”

    Malcolm – as I have asked – NEW tricks please – accusing others of what you do – stale old slime.

    Really, is that all you got? Really?

  128. 124

    AI: Anyone arguing the unconstitutionality of software, information processing systems, and so called business business methods for starters.

    Honestly, I’m surprised people as stoopit as AI know how to post comments on a computer.

    Unless of course he’s not stoopit but just a dissembling tool.

    Difficult to tell. But of course what’s most important is that AI “believes” his own horseshxt.

  129. 123

    AI: Anyone arguing the unconstitutionality of software, information processing systems, and so called business business methods for starters.

    IANAE | Feb 24, 2010 at 03:26 PM: “I don’t think anybody credible is actually arguing that. Not even in Bilski.”

    You can’t possible be serious.

    Read the transcripts of Bilski and see what Sotomayer and Scalia have to say.

    Go back and read the Amicus briefs in support of the Government in Bilski.

    Search the law Journals on the Unconstitutionality of Business methods.

    Find out what Steven’s view has been on Software over the years.

    Credible or not, they have influence and Power to impede on and take away inventors Constitutional Rights.

  130. 122

    I’m pretty sure that Wikipedia is not the Constitution, nor was it written by the Founding Fathers.

    You’re going to have to do better than that, broje.

    Fluffery and nihilism!

  131. 121

    Anyone arguing the unconstitutionality of software, information processing systems, and so called business business methods for starters.

    I don’t think anybody credible is actually arguing that. Not even in Bilski.

    Do the founding fathers have anything to say about software patents?

  132. 120

    A constitutional right is a freedom granted by a government’s constitution (on the national or sub-national level), and may not be legally denied by that government.

    Does anyone disagree with that definition?

    AI, you’ve already admitted that it would not be illegal for SCOTUS and Congress to deny you a patent. Rather, you’ve said that the People can then elect new members of Congress to reinstate the patent right. But under the definition above (which is from Wikipedia) it is not a Constitutional right.

    Here is another definition I did not make up.

    constitutional rights n. rights given or reserved to the people by the U. S. Constitution, and in particular, the Bill of Rights (first ten amendments). These rights include: writ of habeas corpus, no bill of attainder, no duties or taxes on transporting goods from one state to another, (Article 1, Section 9), jury trials (Article III, Section 1), freedom of religion, speech, press (which includes all media), assembly and petition (First Amendment), state militia to bear arms (Second Amendment), no quartering of troops in homes (Third Amendment), no unreasonable search and seizure (Fourth Amendment), major (“capital and infamous”) crimes require indictment, no double jeopardy (more than one prosecution) for the same crime, no self-incrimination, right to due process, right to just compensation for property taken by eminent domain (Fifth Amendment); in criminal law, right to a speedy trial, to confront witnesses against one, and to counsel (Sixth Amendment), trial by jury (Seventh amendment), right to bail, no excessive fines, and no cruel and unusual punishments (Eighth amendment), unenumerated rights are reserved to the people (Ninth amendment), equal protection of the laws (14th amendment), no racial bars to voting (15th amendment), no sex bar to voting (19th amendment), and no poll tax (24th amendment). Constitutional interpretation has expanded and added nuances to these rights.

    Here is another one.

    A liberty or right whose protection from governmental interference is guaranteed by a constitution.

    None of these definitions support that you have a Constitutional Right to a Patent. Can you come up with a definition of Constitutional Right that does support your stance? Please let it not be one that you make up. Please actually find an established definition, one that is widely recognized, that does not contradict your stance in view of what you have already admitted.

  133. 119

    Posted by: IANAE | Feb 24, 2010 at 02:46 PM: Seriously, who do you think is trying to take away your right to a patent?

    Anyone arguing the unconstitutionality of software, information processing systems, and so called business business methods for starters.

  134. 118

    if a preliminary injunction were denied because their was no irreparable harm, there would be a per se rule that continued infringement was intentional subjecting the infringer to full treble damages.

    Aren’t single damages presumptively sufficient compensation for reparable harm?

  135. 116

    Posted by: Lionel Hutz | Feb 23, 2010 at 05:14 AM

    “Preliminary injunctions should only be given in cases where monetary damages are wholly inadequate (and the patentee is likely to win on the merits, etc.) It’s one thing to question the eBay decision, but preliminary injunctions should raraely be granted.”

    Assume this is true. Then what of the “Seagate” rule that there are can be no “willful” infringement during litigation — the premise being that the patent owner would otherwise show likelihood of success on the merits and obtain a preliminary injunction?

    I would be very, very comfortable with an alternative rule — that if a preliminary injunction were denied because their was no irreparable harm, there would be a per se rule that continued infringement was intentional subjecting the infringer to full treble damages.

  136. 115

    JD/NAL MM switched to IANAE and wrote: “Yes, really.

    Now NAL(JD) is using AI’s identity too?

    Wow, really really reaching. Sockpuppetry at its absolute worse.

  137. 113

    Because every American should be aware of and involved in the recognition and fair and honest enforcement of their Constitutional Rights.

    That doesn’t answer my question at all. Patents continue to be recognized and enforced, whether they’re constitutional or not.

    AI: The same argument was made recently when a Southern Congressman openly opposed and voted against renewal of the 1965 voting rights act.

    I’m sure that will be completely relevant as soon as some Congressman openly votes to repeal 35 USC.

    Seriously, who do you think is trying to take away your right to a patent?

  138. 112

    Posted by: Noise above Law | Feb 24, 2010 at 12:23 PM: BTW, Nihilistic Tendencies and IANAE need to read other documents of the founding fathers – like the declaration of independence – that’ll show you what “man” thought about “law”.

    It is my understanding that Nihilists do not believe in documents like the Declaration of Independence.

  139. 111

    you have not, as yet, provided an answer to what happens when a constitutional Right is abrogated

    You mean, like when the government infringes a patent? Or are you implying that a private citizen infringing a patent claim violates the patentee’s constitutional rights?

  140. 110

    IANAE | Feb 24, 2010 at 02:06 PM :You mean “inventors have rights that are not-unconstitutional”.

    AI: No, thats what YOU mean, or at least type over and over. What it means to anyone else is anyones guess.

    IANAE: I reiterate my earlier question. What difference does it make to you whether the constitution is involved?

    AI: Because every American should be aware of and involved in the recognition and fair and honest enforcement of their Constitutional Rights. It’s part of ones duty as a citizen and deeply ingrained in our Social Contract with one another.

    IANAE : You already have a right to a patent, and nobody is trying to take it away.

    AI: The same argument was made recently when a Southern Congressman openly opposed and voted against renewal of the 1965 voting rights act. Look up and see what the the reaction to his position was and you may learn something, even about yourself.

    IANAE : Why invoke the constitution at all?

    AI: Because Inventors Rights are so stated explicitly in the Constitution and have been secured by Constitution Power.

  141. 109

    “Would someone tell JD(NAL) that everyone can see through his sockpuppetry?”

    poor, poor Malcolm. So that’s your latest obfuscation in response to being slammed? NAL is a sockpuppet of JD?

    Sorry Malcolm, I am not JD.

    You will still be slammed as I see fit for your inanities (here’s a hint – stopping your inanities pretty much may mean a stop to you being slammed).

    Your slimy well feeling a bit dry Malcolm?

    IANAE,

    ” …reiterate my earlier question. What difference does it make to you whether the constitution is involved?”

    The difference is obviously the shift key. D’Oh!

    Seriously, I have shown you the difference and you have not, as yet, provided an answer to what happens when a constitutional Right is abrogated (as opposed to the remedy that you want to lean on).

    You continue to repeat the same duck and weave to these points clearly laid before you. The fact that you don’t have a real answer and must resort to the repetitious misdirections is very clear. You do not have to repeat yourself if you face up to and answer the questions previously put to you.

  142. 108

    There can be no denying that Congress has acted and secured for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

    So Inventors Constitutional Rights exist

    Oh. You mean “inventors have rights that are not-unconstitutional”. Well then, yeah. That’s true. We all knew 35 USC existed even before you showed up.

    I reiterate my earlier question. What difference does it make to you whether the constitution is involved? You already have a right to a patent, and nobody is trying to take it away. Why invoke the constitution at all?

  143. 107

    MM switched to IANAE and wrote: “Yes, really.

    I see a part where it talks about Congress’ rights to make laws about inventions.

    I don’t see any part of it that gives inventors qua inventors any rights at all.”

    __________

    You are being deliberately obtuse as only an intellectual scoundrel can be, or the vacuity of your preferred MM persona is simply shining through. In either case, WE THE PEOPLE of the Constitution do not give Congress any rights at all.

    People have Rights. Institutions have Power.

    WE THE PEOPLE through the Constitution DELEGATE Power to Congress.

    There can be no denying that Congress has acted and secured for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

    So Inventors Constitutional Rights exist and until Congress acts to abolish those Rights, the Legal Constitutional Rights shall so remain.

    FACT!

    FACT!

    and Double FACT!

  144. 106

    JD: some of us like to slam you

    Would someone tell JD(NAL) that everyone can see through his sockpuppetry?

  145. 105

    IANAE – really? after the sheer number of comments you cannot find the consitutional portion dealing with inventor’s rights?

    Yes, really.

    I see a part where it talks about Congress’ rights to make laws about inventions.

    I don’t see any part of it that gives inventors qua inventors any rights at all.

  146. 104

    Many people say that patent rights are anti-social and anti-competitive. But despite that, the Founding Fathers, in their ineffable wisdom, had the good idea to provide the Congress with the freedom to pass a Patent Act, should they so decide.

    Have I got it right?

    No, stop. Don’t answer that. Please.

  147. 103

    “Quote me the part of the constitution that is not silent on inventor’s rights.:”

    [We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. 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 Your Face!

  148. 102

    BTW, Nihilistic Tendencies and IANAE need to read other documents of the founding fathers – like the declaration of independence – that’ll show you what “man” thought about “law”.

  149. 101

    IANAE – really? after the sheer number of comments you cannot find the consitutional portion dealing with inventor’s rights?

    WAKE UP.

  150. 100

    “Why does anyone engage fundy m0r0ns? They are pathological l.i.a.r.s. and will only waste your time.”

    Because some of us like to slam you like the silly strawman that you are Malcolm.

  151. 99

    AI And yet you can’t quote a single person that wrote the constitution that agrees with you.

    Game Over.

    AI’s not only a 101 fundamentalist, but a Constitutional fundamentalist. Except of course where the text of either undercuts his positition — just like your garden variety fundy.

    Why does anyone engage fundy m0r0ns? They are pathological l.i.a.r.s. and will only waste your time.

  152. 98

    First, IANAE, you are simply wrong about whether or not the constitution is silent on inventor’s rights.

    Quote me the part of the constitution that is not silent on inventor’s rights.

    The right to write your Congressman a letter about patent legislation doesn’t count, by the way.

  153. 97

    “I wonder if any of those founding father’s owned any slaves. lawl”

    “so anything the constitution says about Congress is completely irrelevant.”

    Wow INANE, your passion for your stand really dulls your thinking. broje – I’ll just chalk your comment up to historical ignorance.

    First, IANAE, you are simply wrong about whether or not the constitution is silent on inventor’s rights. You need to get over your problem with this – it weakens everything else you say. As I have posted on the other thread, this is only a small error, and I don’t care to educate you on exactly why you are wrong.

    The long and short of it is that (L/l)aw is made by man. (L/l)aw is changed by man. Our current law is what it is – As you point out, Ebay is good law (law is not the sole providence of Congress – our system is set up so that the judiciary gets to provide the interpretation at the constitutional level. It is at THIS level that sand is introduced into AI’s knickers (I will give you one educational hint – if you were correct about the lack of constitutional standing – the Supreme’s reasoning would lack the constitutional element necessary to have the effect it does – as annoying as it is – abstraction levels per Mr. Hobbes can be important in constitutional law discussions).

    So you are both wrong – only IANAE’s error is far less important to the actual issue at hand. In a nutshell, the constitutioanl right is there, but it only means what the Supremes have said it means in Ebay. That’s the rules of the game. Rules made by man, for man.

  154. 96

    O wait. i know where the Constituion says that Congress shall not abridge peoples’ rights to patents. It’s in the second amendment that protects the right of the People to keep and bear arms. After all, patents are the weapons with which corporations arm themselves. And SCOTUS recently said that corporations are “people” for puposes of the first amendment.

    So there you go, AI. You have the right to a patent under the 2nd amendment, and Congress shall not limit that right in any way, just like Congress shall not prohibit you form owning your own nuclear missiles. And, just in case you missed the sarcasm, NOT legal advice.

  155. 95

    *******In and across three threads going on nearly 90 days, and what may be over 1000 comments, I have quoted many times, the founding fathers who wrote the Constitution …

    After all the Court once ruled those of African descent were property and had no legal Rights, and look how that turned out.**********

    I wonder if any of those founding father’s owned any slaves. lawl

  156. 94

    I have never posted any opinion about eBay.

    Okay, let’s try again.

    Why do you keep insisting that there’s a constitutional basis for a right you have already and nobody is trying to take away?

  157. 93

    AI: So in that case did the Supremes really say Inventors have no Constitutional Rights to their inventions?

    Posted by: IANAE | Feb 24, 2010 at 11:23 AM : So why are you so upset about eBay?

    WTH? I have never posted any opinion about eBay. You must be transitioning to one of your other personalities or be low on meds.

  158. 92

    Posted by: IANAE | Feb 24, 2010 at 09:12 AM :”Nowhere does the constitution say that ….All it says is that Congress can, if it wants, make laws about patents.”

    There is no such text in the Constitution. What you really mean is that is how you choose to interpret the Constitution and really really really wish everyone else would too! Fortunately for everyone else your interpretation does not mean squat.

  159. 91

    So in that case did the Supremes really say Inventors have no Constitutional Rights to their inventions?

    So why are you so upset about eBay?

  160. 90

    Posted by: Nihilistic Tendencies | Feb 24, 2010 at 06:40 AM:The point is, the law is alive and can change. The founding fathers set it up so. Yes the patent (R/r)ights are established in the Constitution, so you do have your Constitutional Right, but so what? ”

    So, you can my Constitutional Right to a Patent when you pry it from my cold dead hands! THATS WHAT!

    Now, you throw the Resident Troll and his RA a bone with eBay. So in that case did the Supremes really say Inventors have no Constitutional Rights to their inventions?

    If so then quote it right here right now!

    I want to read it for myself. And even if the Supremes do rule that inventors have no Constitutional Rights to their Invention. WE THE PEOPLE, that are Inventors will take action to undo an unjust injury by any means necessary!

    After all the Court once ruled those of African descent were property and had no legal Rights, and look how that turned out.
    ::

  161. 89

    Indeed, my argument that Inventors have the Constitutional Right to their inventions has more depth, substance and historical authoritative weight than (etc.)

    Indeed, the only way your argument could have more weight would be if the constitution supported it.

  162. 88

    Posted by: Nihilistic Tendencies | Feb 24, 2010 at 06:40 AM Actual Inventor, neither can you quote a single person that wrote the constitution that agrees with you – does game over mean stalemate?

    Oh, but you are soooooo wrong. In and across three threads going on nearly 90 days, and what may be over 1000 comments, I have quoted many times, the founding fathers who wrote the Constitution. Indeed I have quoted extensively from the Federalist Papers, which anyone, that had actually read these documents would have recognized. I have even quoted the philosophers whose words were in many instances lifted by the framers to write the constitution.

    Indeed, my argument that Inventors have the Constitutional Right to their inventions has more depth, substance and historical authoritative weight than any trite, shallow, troll bait posted by the opposition and his/her multiple personality disordered aliases.

  163. 87

    Yes the patent (R/r)ights are established in the Constitution, so you do have your Constitutional Right,

    No, actually. They’re not.

    Nowhere does the constitution say that Congress may pass no law abridging the freedom to secure a patent, or that the right of the people to secure a patent shall not be infringed, or anything like that. All it says is that Congress can, if it wants, make laws about patents.

    More importantly (for addressing the actual sand in AI’s girl-parts) is that even if the constitution actually said “The Congress shall secure for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”, eBay would still be good law. And Congress didn’t make eBay either, so anything the constitution says about Congress is completely irrelevant.

  164. 86

    “And yet you can’t quote a single person that wrote the constitution that agrees with you.

    Game Over.”

    Talk about your pedantic argument.

    Actual Inventor, neither can you quote a single person that wrote the constitution that agrees with you – does game over mean stalemate?

    The point is, the law is alive and can change. The founding fathers set it up so. Yes the patent (R/r)ights are established in the Constitution, so you do have your Constitutional Right, but so what? The Judiciary has been charted with the power of interpretation of those rights. Like law itself, interpretations change over time. The current interpretation of what the (L/l)aw means from Ebay is stuck in your craw – but that is the way it is – your Constitutional Right is the Ebay way. The apparent unfettered rights you seek are not there at the constitutional level because those charged to determine that have said so.

  165. 85

    Posted by: IANAE | Feb 23, 2010 at 12:10 PM :The important point is not whether the constitution could grant rights to inventors, but whether it does. On that point you and I agree with probably the entire English-speaking world…”

    IANAE : And yet you can’t quote a single person that wrote the constitution that agrees with you.

    Game Over.

  166. 84

    ******
    “Where does it say in law, logic, or the other world, that Statutory rights cannot also be Constitutional Rights?”
    It doesn’t. Nobody is making that claim.
    *******
    Posted by: broje TINLA IANYL | Feb 23, 2010 at 11:58 AM I’m making it.

    Congress cannot create a Constitutional Right by passing a Statute. Only an Amendment to the Constitution can create or take away a Constitutional Right, and Constitutional Amendments are not Statutes.
    And to be precise, the Constitution does not grant Congress a Right regarding patents, it empowers Congress to enact legislation granting a statutory property right in the form of a patent. It is a Congressional Power. There is no Constitutional Right granted to anyone regarding patents.

    _____________________

    broje:

    Anyone that is familiar with your comments on this blog knows you are an intelligent and well versed individual that is capable of a certain depth in your comments. So why would you post such an obvious fallacious response?

    Are you doing it to invoke some kind of reaction in the spirit of the resident troll Malcolm? If that is the case you are so much better than that!

    I will skip the pedantic line item correction of each fallacious statement your post begs for and offer you this bit of advice.

    Rather than lower yourself to the likes of Mooney and his league of imaginary friends why not post a legitimate response to what was actually stated. And in so doing provide an opposing argument based on historical fact and legal precedent.

    BTW, if broge is Mooney, Mooney is a SUPER GENIOUS!

  167. 83

    That’s Tigers Business. And if a Bimbo is going to get upset because he cheated on her? Consider what she knew about him. Oh yah she’s going to say I didn’t know even who he was, or that he was married. oh yah sure 25,000 for a story why not. the tiger Train, choo choo. Get real. And as for DEPLANE guy, some people get angrier than most. That’s what makes us all individuals. If you cross the wrong guy. You get fall out. Simple as that.
    Hey mooney choo choo with a littlte phonetics backwards is ooch ooch.. hm that sounds like ook ook.
    last train to Moonies.

  168. 80

    The thing I find about history is that it generally one-sided. The history of the civil war is one example. If you take what you learned in school you are ignorant. You need to do serious research to understand it. What I personally enjoy most is reading first hand accounts of people who fought honorably regardless of their political beliefs.

  169. 79

    I am sure that the victems of the Weather Underground feel that justice has been served since their are greater criminals.

    Assuming what you said is grammatical, it sounds like you now think they had a coherent ideology after all.

  170. 78

    >>that killed at least 10,000-fold more innocent >>people than anything the Weather Underground >>ever did.

    I am sure that the victems of the Weather Underground feel that justice has been served since their are greater criminals.

  171. 77

    Look at the documentary film about the Weather Underground of the 1960’s and 1970’s. Violence without a coherent ideology.

    You might also want to learn about this war called the Vietnam War. Just for context.

    If you want to be disgusted, watch the documentary and then realize that the leaders are not in prison

    Or you can just read today’s paper and realize that George W. Bush, Dick Cheney and Don Rumsfeld aren’t in prison. That’s also disgusting. They are responsible for “violence without a coherent ideology” that killed at least 10,000-fold more innocent people than anything the Weather Underground ever did.

  172. 76

    If you want to be disgusted, watch the documentary and then realize that the leaders are not in prison and one is a professor of law at Northwestern.

  173. 75

    Look at the documentary film about the Weather Underground of the 1960’s and 1970’s. Violence without a coherent ideology.

  174. 74

    IANAE: “And yet, a constitutional democracy is the best of all systems in terms of minimizing the number of things the government can force you to do against your will. Do we really want to undermine that system?”

    A constitutional democracy is the best of all *current* systems. I am hesitant to say that it can never be made better.

    Hobbes: “I wasn’t trying to make you look bad, I simply disagree with any implication that Stack had a point that was actually relevant to his actions”

    Point taken. Sensitive subject.

    Hobbes: “For what it’s worth, I’ll pick on another one of your points: I also think that Stack is a poor model for a wanna-be revolutionary. An effective revolutionary has a coherent ideology.”

    That’s a bold statement, and one I would like to look into. I’m somewhat of an amatuer when it comes to history. It’s a field that has always taken a backseat to my work, but has always been increasingly stirring my interest. I simplified the revolutionary to violence. I’ll see what I can do refine that definition. Do you happen to have any examples off hand?

  175. 73

    Hobbes I simply disagree with any implication that Stack had a point that was actually relevant to his actions, which I think were despicable.

    Rather sad that something so obvious as this needs to be explained to an adult.

  176. 72

    “I don’t take it personally that you chose the one point that agreed with Stack, thereby trying to make me look bad.”

    I merely disagree with you, Jules. I wasn’t trying to make you look bad, I simply disagree with any implication that Stack had a point that was actually relevant to his actions, which I think were despicable. For what it’s worth, I’ll pick on another one of your points: I also think that Stack is a poor model for a wanna-be revolutionary. An effective revolutionary has a coherent ideology. As far as I can tell, Stack’s ideology consisted largely of “I don’t want to pay taxes” (Come on, a piano is a “business asset” for a software engineer?) and “All of my problems are someone else’s fault.”

  177. 71

    It’s all about control. You’re being forced to pay for things that you don’t want to pay for.

    It’s inherent in the nature of democracy (especially representative democracy) that you will wind up being forced to pay for some things that you don’t want to pay for. The majority gets to decide, and the minority has to go along with it. The constitution protects us from the most egregious abuses, but by and large the majority runs the show.

    And yet, a constitutional democracy is the best of all systems in terms of minimizing the number of things the government can force you to do against your will. Do we really want to undermine that system?

    Maybe the lesson is that you shouldn’t throw a hissy fit on this large a scale just because the government spends some money on other people. You won’t even draw attention to your cause if there’s a celebrity sex scandal on the same news day.

  178. 70

    “I don’t see how you get from “Congress is corrupt” to “let’s fly airplanes into government offices.”

    Nor from “let’s fly airplanes into government offices” to “the government will stop doing what it’s been doing”.”

    Ain’t that the truth. Nobody said Stack was smart.

  179. 69

    “OK, but what’s that got to do with the IRS?”

    It’s all about control. You’re being forced to pay for things that you don’t want to pay for. And for what cause? To buy into the idea that your tax dollars are going to the public good, that they even matter the slightest bit when the government can just create money, which you then pay for with inflation? Inflation is just another tax.

    I don’t take it personally that you chose the one point that agreed with Stack, thereby trying to make me look bad. I’m not saying anything about morality here… it’s just one point among the many, that people can learn from.

  180. 68

    I don’t see how you get from “Congress is corrupt” to “let’s fly airplanes into government offices.”

    Nor from “let’s fly airplanes into government offices” to “the government will stop doing what it’s been doing”.

    Maybe the lesson is that even in a country that holds sacred the right to bear arms in the name of self-defense against government tyranny, even in a country that holds sacred the rights of free speech and democracy, no combination of violence and publicity will stop the government doing what it wants to do. All it does is kill a poor, innocent family man who was just trying to do his job.

    The more I think about it, the more I like the lesson “winning a game doesn’t make you a good person”.

  181. 67

    You might realize that Stack had a point. Congress and the rest of the government are pawns of the people with the most money.

    OK, but what’s that got to do with the IRS? I read Stack’s “manifesto” as the pathetic, largely incoherent ramblings of a guy who appears to have devoted a large part of his time and energy on unsuccessfully cheating on his taxes, justifying a significant portion of that effort with the claim that “organized churches do it.” I don’t see how you get from “Congress is corrupt” to “let’s fly airplanes into government offices.”

  182. 65

    What should we learn from the IRS story?

    Mooney’s sympathies always lie with the government employee.

    No, wait, that’s also been played out a million times before.

  183. 64

    “What should we learn from the IRS story?”

    By all means this is not an all-inclusive list. In no particular order:

    One: Stack’s manifesto was taken off his website, but the FBI could not keep it secret – regular people reproduced it and posted it on their own websites.

    Two: If you read the manifesto, you might realize that Stack’s position was very much that of a revolutionary/communist. His “the only solution is violence” position is in line with that of Fidel, Che, etc.

    Three: The end of Stack’s manifesto had a nice little summary of communism and capitalism. If you evaluate the ideas with your own mind, one might find that capitalism very much represent human nature much better than communism. You can’t force people to be altruistic, aka communism, and you can definitely count on being taken advantage of if you are gullible, aka capitalism.

    Four: You might realize that Stack had a point. Congress and the rest of the government are pawns of the people with the most money.

    Five: Pay your taxes or else.

    Thanks for asking =)

  184. 63

    The story about the IRS is one that can be used to learn from.

    I’ll bite, Jules. What should we learn from the IRS story?

  185. 62

    broje We just have more sympathy for Tiger than for the IRS.

    My sympathies lie with the family of Vernon Hunter, the 67 year old father who was killed in the terrorist attack.

    I’m sure JAOI feels the same way, as he loves talking about the victims of terrorist attacks.

  186. 61

    “We just have more sympathy for Tiger than for the IRS.”

    You may have a point, but that is a “We” that I am not part of. The story of Tiger should have been dead 3 months ago, but the Media and everyone else lapped it up like dogs. The story about the IRS is one that can be used to learn from. Not that we can’t “learn” from Tiger’s story, but its a lesson that’s played out a million times before.

  187. 60

    *****My amazement came when Tiger took page 1 of at least one newspaper that I know of, while the Texas man who bombed the IRS building took page 3. We could argue till we are blue in the face regarding the logic behind that decision.********

    No mystery. We just have more sympathy for Tiger than for the IRS. That’s all.

  188. 59

    “…apologise to his sponsors. … nearly every legal person in the USA”

    corporate legal person…

    MaxDrei, I would say that you are SUPREMELY on your game today.

  189. 58

    You guessed right IANAE. Thanks for that illumination. One shouldn’t laugh, I suppose, but it is quite entertaining. No doubt that’s why it was on page 1 and the pilot from Texas on page 3.

  190. 57

    If he did have to apologise to each one he slept with, why was that then?

    I guess you weren’t following the story when it first broke. His (primary, I guess) mistress was very upset to hear that he had been cheating on her with other mistresses, and that’s why she went public.

    I’m not even making that up.

  191. 56

    IANAE, good point there. My compliments. I hadn’t thought of that. 3rd good laugh of the day.

    But I’m curious. If he did have to apologise to each one he slept with, why was that then?

    I was thinking maybe had would feel the need to apologise to his sponsors. As they are nearly as numerous though, I suppose the efficiency argument works there too.

    And if the sponsors and the women form two mutually exclusive sets, with no overlap, that’s in aggregate nearly every legal person in the USA I suppose.

  192. 55

    “I await an apology from the Media.”

    You’ll be waiting for a long time. My amazement came when Tiger took page 1 of at least one newspaper that I know of, while the Texas man who bombed the IRS building took page 3. We could argue till we are blue in the face regarding the logic behind that decision.

  193. 54

    He had no need to apologise to the media or the public, did he?

    Ordinarily I would agree, but considering that Tiger slept with something like 25% of all Americans, a media apology was probably the most efficient way to do it.

  194. 53

    AI: Like the point you made of agreeing with WCG that the Constitution is silent on Inventors Rights? At least you had enough sense to back away from such a blatantly false assertion.

    If you mean “the constitution does not give inventors any rights in their inventions”, I stand by that assertion. If you refer to your Inventors Rights, defined as the right to send a letter to your Congressman, I’ve never denied you have that right.

    broje: I’m making it.

    Not exactly. I think AI is arguing that the constitution can give you a right, and a statute can purport to give you the same (or an overlapping) right. There’s no problem with that, as I’m sure you’ll agree.

    The important point is not whether the constitution could grant rights to inventors, but whether it does. On that point you and I agree with probably the entire English-speaking world, and AI is in a state of perpetual semantic confusion.

  195. 52

    NAL, don’t worry about it. We like arguing, don’t we? You were wrong, that’s all. No need to keep on with these embarrassing, self-flagellating “I am to blame” lamentations. What has blame got to do with it? You’re beginning to remind me of the even more embarrassing public confessions of a certain golfer. He had no need to apologise to the media or the public, did he? It was the press, not the Tiger, who told all the innocent little children in glorious Technicolour detail what the golfer was getting up to in his free time. I await an apology from the Media.

  196. 51

    ******

    “Where does it say in law, logic, or the other world, that Statutory rights cannot also be Constitutional Rights?”

    It doesn’t. Nobody is making that claim.

    *******

    I’m making it.

    Congress cannot create a Constitutional Right by passing a Statute. Only an Amendment to the Constitution can create or take away a Constitutional Right, and Constitutional Amendments are not Statutes.

    And to be precise, the Constitution does not grant Congress a Right regarding patents, it empowers Congress to enact legislation granting a statutory property right in the form of a patent. It is a Congressional Power. There is no Constitutional Right granted to anyone regarding patents.

    This is still not legal advice.

  197. 50

    IANAE | Feb 23, 2010 at 11:26 AM:It doesn’t.It doesn’t. Nobody is making that claim.

    Thats right. I think you know better now to make such inane claims, unless you want get smacked down again.

    IANAE | Feb 23, 2010 at 11:26 AM: You can add it to your list of 10 points nobody else is making, with which you so vocally disagree.

    Like the point you made of agreeing with WCG that the Constitution is silent on Inventors Rights? At least you had enough sense to back away from such a blatantly false assertion.

  198. 49

    Where does it say in law, logic, or the other world, that Statutory rights cannot also be Constitutional Rights?

    It doesn’t. Nobody is making that claim.

    You can add it to your list of 10 points nobody else is making, with which you so vocally disagree.

  199. 48

    IANAE | Feb 22, 2010 at 03:01 PM : But patents are statutory rights, as should be clear to anyone who has taken a grade school civics class or English as a second language. Statutory rights with a statutory remedy.”

    Where does it say in law, logic, or the other world, that Statutory rights cannot also be Constitutional Rights?

  200. 47

    “Mr. Mooney, as an expert in low standards, I defer to your judgement.”

    I see the error of my ways – my sentence is ambiguous and your meaning can be correctly attributed to it. I was relying on context to make the difference (what other standards besides low ones would Malcolm be an expert in – given his propensity for, well, you know).

    More correctly put:
    “Mr. Mooney, as you are an expert in low standards, I defer to your judgement.”

    I humbly offer my second mae culpa of the day.

    ;-p

  201. 46

    NAL, I’ve just seen your “mea cupla” typo. Brilliant. 2nd best laugh of the day, if it were intended. But never mind it it wasn’t. Very Freudian. These typo’s can be fantastic.

  202. 45

    NAL, I’m glad we agree on the c word. Now to grammar.

    Haven’t you ever received a letter that begins with something like:

    “As a loyal customer of Bloggs, Inc., I am writing to you to tell you that….blah, blah, blah”

    Is the writer the loyal customer? Grammatically, that would be a Yes, no?

    Is your sentence distinguishable? I think not.

    So, can we now agree on grammar too?

    Your turn.

  203. 44

    “construed them according to the ordinary rules of grammar”

    Unfortunately, you did not construe them to the ordinary rules of grammar (re boasting). The rules do not permit the improper logical reach that you overstretched to, when the subject of the sentence is regarded in a certain state. Such a sentence impugns no exclamation nor boast as to the status of the one delivering the sentence.

    You inferred when there was no implication. You now have compounded that mistake by making a second error in your hopes of correcting me.

    As to the C-word, mea cupla – I stand corrected.

  204. 43

    They didn’t sit back from a blog and take shots daily at the system under smarmy pseudonyms like Malcolm Mooney or INANE.

    Thanks for the constructive advice, snarky pseudonymous blog poster.

  205. 42

    “oh heavens…blah blah clutching pearls blah blah”

    I don’t really care if you besmirch Michel and or Kayton. My point is, these are two people who have gotten out there and, despite a perfectly horrible state of jurisprudence before the Federal Circuit, shaped what patent law really is. They didn’t sit back from a blog and take shots daily at the system under smarmy pseudonyms like Malcolm Mooney or INANE. They didn’t consider the system a “lottery” which, to sophisticated practitioners, it isn’t.

  206. 40

    We are talking at cross-purposes NAL, (as we often are). Directing yourself specifically to M Mooney you declaim:

    “as an expert in low standards, I defer to your judgement.”

    and I just took your words and construed them according to the ordinary rules of grammar. If I am out of line with your rules of grammar, feel free to give me more free education. Readers will then decide, won’t they, which one of us is making more of a fool of himself.

    Have you checked the dictionary yet, on your “c” word? I thought insemination by mouth was something that only happens in the imaginations of not yet adolescent girls.

  207. 39

    Lawyers like to argue about what words mean. It’s fun, and good exercise.

    Indeed. Intellectual m@sturbation, as it were. Not to be confused with oral copulation.

  208. 38

    “n which I find NAL telling his gentle readers that he, NAL, as an expert, knows when to defer.”
    Hardly, MaxDrei – you are reading into my statements boasts that are simply not there. I would venture that even you can be considered an expert when compared to Malcolm. I would not say that type of statement is boasting to any degree. Your attempt at fluff and puff is misguided. Amusing play of words, but nonetheless misguided.
    “Lawyers like to argue about what words mean. It’s fun, and good exercise.” = better keep that on this blog and away from prospectors – no flying squirrels over there.
    As to the grammar lesson – it is unclear which idiom you are trying to correct. “Freudian slip” IS a correct idiom. As to the other matter – the one that you do recognize as originating from our “professional”, the thrust is to point out just how professional this person is – when that person stops with his inanities, well, then, I won’t have to thrust his words back at him, will I? This is at least the second time you have attempted to correct me and looked foolish in the process (if you repeat something often enough…).

    amusing it is that the part of my response that hangs is a reply to Malcolm, using his own words….

  209. 37

    Sorry MaxDrei,

    My response cannot overcome the filter and I don’t have time to figure out why.

  210. 36

    Thanks Hobbes. We must agree to differ, on whether there is anything metaphorical about the oral activity. I don’t see any. I do recall Mr Reagan’s entry into this blog, courtesy of Malcolm Mooney, if that’s what you were driving at. But I suspect we now have another former President, Mr Clinton, getting dragged in. How did it go? Something like: “I did not have sex with that woman” with all the ensuing argy-bargy about what “sex” actually means. Lawyers like to argue about what words mean. It’s fun, and good exercise.

  211. 35

    That way, you will avoid coupling with a noun an adjective that’s incompatible with it.

    Incompatible? Interesting – I thought the coupling was for metaphorical effect – you know, like “verbal wrestling,” or “linguistic swordplay.” But, that doesn’t explain where the deceased Presidents come in, does it?

  212. 34

    A propos Charles Dickens and NAL, and scrolling again down this thread, my eye was caught by NAL’s:

    “Mr. Mooney, as an expert in low standards, I defer to your judgement.”

    in which I find NAL telling his gentle readers that he, NAL, as an expert, knows when to defer.

    I’m wondering what NAL’s boasting of his own expert status brings to the thread. Is it fluff or is it puff? NAL?

  213. 33

    Preliminary injunctions should only be given in cases where monetary damages are wholly inadequate (and the patentee is likely to win on the merits, etc.) It’s one thing to question the eBay decision, but preliminary injunctions should raraely be granted.

  214. 31

    Nice post from MM at 6.25. NAL, when you use a plain word that appeals to you, especially if you are going to thrust it into our face over and over again, can you first check out what it means? That way, you will avoid coupling with a noun an adjective that’s incompatible with it.

    Correct spelling would be good too, but I can live with those sorts of error. Sometimes they are funny. They might even be Freudian, for all I know.

    You will, I am sure, understand that I’m no more prudish than the average American, but just having fun here.

    Would be grateful. Thanks.

  215. 30

    “NAL’s mumbo jumbo is absolutely brutal to read and basically says nothing.”

    I believe the technical term is “fluff”.

  216. 29

    “professionalism does not include references to oral copulation”

    You’re not part of the boys club so you wouldn’t know even if it did. I on the other hand have substantial evidence that it does, in fact, include such references or ones like them.

  217. 28

    NAL professionalism does not include references to oral copulation with dead presidents

    So why do you contiually refer to “oral copulation with dead presidents”, NAL?

    Malcolm, talking to himself,

    Nope. I was replying to another commenter.

    lets loose another Fruedian Slip

    There was no “slip” and there was nothing Freudian about it.

    So when are you going to dazzle us with your latest tricks?

    I have no idea what you’re talking about, as usual.

  218. 27

    Mr Mooney, NAL might be a better trained attorney than you give him credit for. As far as I understand it, what the specialist, high powered, patent litigators require of hack drafters is that their work product “is absolutely brutal to read and basically says nothing”.

  219. 26

    Malcolm, talking to himself, lets loose another Fruedian Slip – taking the position of an examiner.

    …those malcomy fingerprints.

  220. 25

    NAL’s mumbo jumbo is absolutely brutal to read and basically says nothing

    No kidding. Now try to imagine a specification or a response to an Office Action written by NAL. Worse, try to imagine being forced to read it and respond to it.

  221. 24

    Sorry Malcolm,

    Yourself and “others” only includes you and your sockpuppets (rare, usual or otherwise).

    Your views simply don’t matter when it comes to professionalism. In most people’s books, professionalism does not include references to oral copulation with dead presidents.

    The Dickensian repartee with Mr. Hobbes is a delightful break from the usual slamming I get to do with your inanities. I have no problem being forceful and direct.

    So when are you going to dazzle us with your latest tricks? As mentioned (on a pretty typpical basis), you’ve been getting pretty stale.

  222. 23

    Irving Kayton.

    Was the great genius of Irving Kayton besmirched? Oh heavens!

    I just felt a disturbance in the force, as if a million sockpuppets clutched their pearls all at once.

  223. 22

    Agreed Mooney. NAL’s mumbo jumbo is absolutely brutal to read and basically says nothing. For example:

    “Luckily (or unluckily) I do not have a horse in that fight and I am prevented from pursuing the legal actions challenging the constitutionality of the decision. Silence, though, may not be an appropriate response (or it may be). . . .”

    Huh??

  224. 21

    INANE (Mooney)

    Oook.

    So now you know more about patent law than Judge Michel and Irving Kayton.

    I couldn’t say if I know more about this issue than Michel. What does he have to say on the subject?

    As for Kayton, assuming you didn’t misquote him, I’d charitably attribute his statement more to wishful thinking or general patent advocacy than a fundamental misunderstanding of how the law fixes problems. He has a JD, so I’d expect more of him if he were pressed for an objective view.

  225. 20

    NAL I would only add that my discussion is based on a certain level of professionalism

    Yes, a very low level of professionalism, as has been noted by myself and others. You write like an 8th grader trying to emulate some Dickensian ideal of civility, but with none of the irony that Chuck typically brings to the table.

  226. 19

    INANE (Mooney)

    So now you know more about patent law than Judge Michel and Irving Kayton.

    No wonder your mother can’t stand the sight of you.

  227. 18

    IANAE declines to recognize the Right in the Constitution.

    I very much recognize the right in the constitution. That right belongs to Congress. The language couldn’t be clearer.

    I don’t know when you started channeling Inventors, but I strongly suspect you’re trolling at this point.

    As Irving Kayton used to say, the right to exclude (e.g. high likelihood of injunctive relief, or automatic injunctive relief) is the ONLY meaningful patent right.

    Did you add that parenthetical, or does Kayton also not know the difference between a right and a remedy?

  228. 17

    As Irving Kayton used to say, the right to exclude (e.g. high likelihood of injunctive relief, or automatic injunctive relief) is the ONLY meaningful patent right. From it, all the appropriate things flow.

  229. 16

    Mr. Hobbes, you are correct, the essential distinction has not been acknowledged.

    Mr. Mooney, as an expert in low standards, I defer to your judgement. I would only add that my discussion is based on a certain level of professionalism, and since you do not belong to that group, you are probably misreading the gist of my message.

  230. 15

    Noise, I appreciate your trying to clear up my confusion. If I might try to paraphrase, you’re saying that IANAE is still refusing to acknowledge the essential distinction between (R)ights and (r)ights?

  231. 14

    NAL: I trust, good sir, that you likewise respect those who fight for what they believe.

    That’s a very low standard (possibly the lowest possible standard) for determining who deserves one’s respect.

  232. 13

    Mr. Hobbes,

    Consider the Constitutional Right of exclusivity. IANAE has improperly read only from the statutory (r)ight section of (l)aw, ignoring the Constitution section of (L)aw. Of course, in view of statutory rights, the remedy is typically money. No one (I believe) is actually arguing otherwise. “He lacks data” is a nice euphemism for “my argument doesn’t hold” at the different level of abstraction – No Constitutional Right would be “bought” as a remedy for any level of money – the Right would be enforced, pure and simple.

    Of course, “ignoring” is the center of the debate – as IANAE declines to recognize the Right in the Constitution. Others do recognize the Right. It is precisely this mismatch in views that will not be resolved, even over several hundred posts on multiple threads. You can lead a horse to water, but you cannot make it drink.

    If I may further be so bold as to point out a fallacy in the view held by the respectable Paul F. Morgan, being that (if indeed) Rights are being transgressed, the decision in Ebay is indeed unconstitutional. Luckily (or unluckily) I do not have a horse in that fight and I am prevented from pursuing the legal actions challenging the constitutionality of the decision. Silence, though, may not be an appropriate response (or it may be) – depending on your beliefs and strengths of those beliefs. Championing a belief may lead to the desired change – being quiet and “learning to live with it” will not lead to change.

    Thus, when I envision the proper scope and abstraction of Constitutional Law, I do not disparage those who are vocal in their beliefs, those that want a change. I trust, good sir, that you likewise respect those who fight for what they believe.

  233. 12

    I couldn’t say for sure. I would expect a somewhat higher rate of injunction-like orders for constitutional rights because those rights feel more important, but I don’t have data to back that up.

    They are more important, because most of them are protecting us from unlawful government action. Money damages are usually a poor substitute for an injunction in cases where the government has overstepped its fundamental limits.

    Sorry, Noise, I don’t see how this tells us anything about patent rights and remedies.

  234. 11

    Are the courts in the habit of remedying abuse of Constitutional Rights the same as lower level law rights?

    I couldn’t say for sure. I would expect a somewhat higher rate of injunction-like orders for constitutional rights because those rights feel more important, but I don’t have data to back that up.

    But patents are statutory rights, as should be clear to anyone who has taken a grade school civics class or English as a second language. Statutory rights with a statutory remedy.

  235. 10

    Judging by an article in the latest JPTOS, some courts still don’t seem to appreciate that they need to apply the Sup. Ct. eBay factors for a preliminary injunction for even stronger reasons than for a post-trial injunction?
    [Not to mention some readers of this blog apparently still gagging on eBay in general, rather than necessarily learning to live with it.]

    BTW, how long or how economically disasterous to a defendant or the public would a TRO have to be in a patent suit to be a de facto and appealable preliminary injunction? I don’t recall TRO’s in patent suits, but maybe someone who has can enlighten us here?

  236. 9

    Now IANAE, take this to the appropriate abstraction level and apply it to Constiutional Rights – Are the courts in the habit of remedying abuse of Constitutional Rights the same as lower level law rights?

  237. 8

    (hint – the exclusion is what is desired, NOT some degree of money)

    Exclusion is always what is desired. Generally, money is also desired to some extent.

    To paraphrase a certain quotable celebrity, you can’t always get the remedy you desire, but if you try sometimes, you just might find you get the remedy the court considers appropriate under the circumstances.

  238. 7

    “Assuming that to be the case, what do you think is an appropriate remedy?”

    ah ah – no fair – that was the question for you to answer.

    This is central to our favorite poster’s claim that the exclusivity promised by the Constitution cannot be violated by forcing a license when the holder of a (R)ight wants to purely exclude another (hint – the exclusion is what is desired, NOT some degree of money).

  239. 6

    Posted by: Night Writer Patent Attorney | Feb 22, 2010 at 01:25 PM

    Just because I mistook you for NAL last week, that doesn’t mean I’m likely to do it again.

  240. 4

    You never did provide a proper level abstraction answer about what happens to your Constitutional Rights if they are violated.

    Assuming that to be the case, what do you think is an appropriate remedy?

  241. 3

    Ok, I’ll go there – IANAE, it depends on which remedy you are seeking – (r)emendy for a (r)ight, or (R)emedy for a (R)ight.

    You never did provide a proper level abstraction answer about what happens to your Constitutional Rights if they are violated. You took the easy path and gave a non-answer (mis-direction) to the Habeas Corpus element rather than an answer to the actual question.

  242. 2

    Can a NPE obtain temporary and permanent relief if it eschews damages?

    The standard is whether money would be an adequate remedy, not whether the plaintiff would prefer an injunction to money.

    If so , why not a preliminary compulsory license?

    They have that, it’s called not granting a temporary injunction and later ordering damages for past infringement if the plaintiff wins at trial.

  243. 1

    Can a NPE obtain temporary and permanent relief if it eschews damages?

    Will a court day always grant a royalty-bearing compulsory license?

    If so , why not a preliminary compulsory license?

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