Federal Courts Closely Scrutinizing and Slashing Patent Damage Awards

Michael Kasdan and Joseph Casino discuss recent shifts in reasonable royalty jurisprudence with a particular focus on the recent cases of Cornell, Lucent, and Lansa.  Together, these decisions "indicate an emerging trend to more carefully scrutinize the evidentiary and economic basis of reasonable royalty-based patent damages awards in the setting of the appropriate royalty base, the application of the entire market value rule, and the calculation of the appropriate royalty rate." [Download Kasdan.Casino.Damages]

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327 thoughts on “Federal Courts Closely Scrutinizing and Slashing Patent Damage Awards

  1. 301

    “I withdraw the analogy of Equal Protection Violation for prosecution of trespass against orchards versus prosecution of trespass against factories.”

    Translation: “I was wrong.”

    See, NAL, it’s not that hard. And once you admit it, the healing can begin.

  2. 300

    Dear Lionel Hutz,

    Re:
    “I learned a long time ago that JAOI believes “exclusive right” = “absolute right to an injunction barring important public policy considerations” He’s incorrect and cannot cite any case law to support his position, but that is what he believes.”

    Would you agree with me that the answer to the question at the bottom of a previous post (repeated below) to Mr. IANEA, is,
    (a) resoundingly, “Yes”?,
    or just plain

    (b) “Yes”?

    —————-

    Re:
    “What if, after a trial finding validity and infringement of the patent-in-suit, the Judge simply said:

    I hereby Order you to stop the infringement forthwith. If you do not, you will be guilty of contempt of court and I will issue a warrant for your arrest.

    That would be a little thing we in the biz call an ‘injunction’.”

    The substantive answer is that the pharking infringer may seek a Stay of Execution pending an Appeal, and he may have grounds for Appeal at the CAFC citing the USSC’s (corrupt) eBay decision which discriminates against one class of inventors, i.e., non practicing entity patent owners.

    Supposed the pharking infringer were to prevail in the CAFC Appeal, and the District Court’s Order to Stop the Infringement was reversed, and the case was remanded for further litigation consistent with the CAFC decision.

    What if, after further litigation, the DC Judge were favor the patent owner again and issue a TRO to stop the infringement and an Order to Show Cause against the pharking infringer as to why he would be justified to continue infringement (given, of course, that the pharking infringer has not come to terms with the patent-in-suit owner).

    Then, the pharking infringer takes another CAFC Appeal – how would the CAFC deal with that?, if, e.g., the patent owner argued that the fee from a forced license from him to the pharking infringer would not assuage the patent owner’s his mental anguish?

    And, arguendo some more, suppose the patent-in-suit covered the 2001 revolutionary Ticket in Ticket out tickets used in casino slot machines (so the casino didn’t have to deal with the labor and other horrendous distractions from handling coins or tokens in slot machines).

    And further, that the NPE patent owner argued that he was against gambling on his personal moral grounds, and he did not want his patent used to fleece gamblers out of rent and college funds with the greater efficiency afforded by his patent. Further still arguing that, when my patent runs out, that’s soon enough for the casino to use the invention.

    Is not the NPE patent owner absolutely entitled to stop the infringement notwithstanding the USSC’s eBay ruling?
    —————-

  3. 298

    nah,

    That might involve a tort, or you might start punching somebody in the face, and I did not want to infringe on that discussion, because I might be accused of being unconstitutional.

  4. 297

    In fact I pointed out that you were not a total liar.

    You could do him an even bigger favor by pointing out that he hardly ever beats his wife.

  5. 296

    ping, true. Forgive my orchard trespasses, please.

    Speaking of the one the focus of whose eye I am obsessed with, where is she?

  6. 295

    Cranky,

    Hey, don’t get touchy with me, bright boy – I wasn’t the one that called you a liar.

    In fact I pointed out that you were not a total liar.

    Keep your eye on the focus of who you are obsessed with, or else I will get my sharks. And yes, each of them have lasers because I only had to click once when I purchased them.

  7. 294

    ping, as NAL would say, “keep your eye on the focus of what we are talking about.” Besides, it would be a violation of Equal Protection to call me a liar when there are orchard tresspassers out there.

  8. 293

    Nal,

    According to Lionel, Cranky only prevaricated in 6 of the 8 times.

    It’s not like Cranky’s a total liar.

  9. 292

    awww, Cranky has a crush on NAL – look how he folows her like a little puppy dog.

    It’s true. I dated a psychopath for a brief time, during high school – that experience has completely distorted my love life ever since.

    Cranky is right. I am not saying he never asked for a case cite, but I checked the last two posts cited by you and he asked for no such thing in either.

    Keep bringing the rope, Noise. Don’t let your adoring public down.

  10. 291

    IANAE,

    I learned a long time ago that JAOI believes “exclusive right” = “absolute right to an injunction barring important public policy considerations” He’s incorrect and cannot cite any case law to support his position, but that is what he believes.

  11. 290

    NAL,

    Cranky is right. I am not saying he never asked for a case cite, but I checked the last two posts cited by you and he asked for no such thing in either. The basic question is whether all persons committing a particular act need to be treated equally under the law regardless of the nature of the nature of the perpetrator and the victim. I agree with Cranky that they do not.

  12. 289

    …any time your position is threatened, you deflect and refuse to answer the questions put to you. This behavior of yours is reflected not just on this thread, but pretty much anywhere your position is challenged.

    Gee, that sounds familiar. Here’s a simple question for you. Just one:

    Do you stand behind your statement that “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex,” or do you admit that it was incorrect?

  13. 288

    …as you refuse to move forward and actually address anything of substance until the analogy issue is satisfied to your contentment…

    I don’t think you get to unilaterally decide what is “of substance” here. In any event, I’m perplexed at your reference to “the analogy issue.” I told you expressly that I don’t care about your analogies. You made a statement that looks like a statement of law to me. To wit, “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.” That’s no analogy. Yes, you were using that statement in an analogical argument, but I’m challenging the statement, not the analogy. (The analogical argument is logically invalid if your premises are false, but right now we’re focused on that single, simple statement.) I suspect that you actually understand that the statement at issue is not an analogy, but you’re attempting more of your patented obfuscation.

    …. even though you prevaricate in , “I never asked for a citation to a case specifically involving orchards and factories.” (as this is EXACTLY what you asked for at …

    Who is prevaricating? I asked only for a citation “to support” your statement. Surely you know that case support for a proposition doesn’t require that the facts are identical. Don’t you?

    Mar 16, 2010 at 02:33 PM
    Mar 16, 2010 at 04:27 PM
    Mar 16, 2010 at 05:44 PM

    I’m amazed that you continue to think we’re sluggish enough not to check your cites. In none of these posts did I ask you for a citation at all. Prevarication, did you say?

    …And even your last post of Mar 17, 2010 at 09:27 AM asks for specifically orchards and factories

    Your prevarication is shameless! In that post, I specifically told you that I wasn’t asking for a citation. Just a simple “I stand by my statement” or “I withdraw it.”

    I withdraw the analogy of Equal Protection Violation for prosecution of trespass against orchards versus prosecution of trespass against factories.

    This actually makes no sense. My best guess it that it’s probably intentional, since you appear pathologically unable to admit that you’re wrong. I asked you to simply tell us whether you stand behind your statement of law that “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.” But instead, you respond with this mush.

    I’m going to assume that what you mean to say is “I was incorrect when I said that ‘It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.'” If that’s not what you meant, please let us know.

  14. 287

    awww,
    Cranky has a crush on NAL – look how he folows her like a little puppy dog.

    Noise,
    You were living in another world tryin’ to get your message through.

    No one heard a single word you said.
    They should have seen it in your eyes
    What was going around your head.

    Ooh, she’s a little runaway.
    Daddy’s girl learned fast
    All those things he couldn’t say.
    Ooh, she’s a little runaway.

    And attractive alliteration – “penetrate your penchant for perversion.”

    Was that for me?

  15. 286

    Inadequate legal remedy: anytime the patent has not expired and the PO is unwilling to grant a license.

    Balance of hardships: this is where the poor willful infringer argues that the PO is not harmed. But clearly he is if he his to go to court again to stop further infringement. And this is exactly where the court orders the PO to grant the infringer a compulsory license.

    Net net, the infringer has gone to court and obtained an injunction against the PO.

  16. 285

    Curious,

    You have fallen for IANAE’s misdirection. My mouth was never where IANAE wants it to be. It is amazing how many times I have given my position, yet incredibly difficult for people to accept that position. Now IANAE needs DETAILS.

    IANAE,

    “don’t do anything you’re going to complain about later” – funny my complaining has to do with your behavior. I do not control that behavior (obviously), therefore, no matter what I do – you will do something that will cause me to complain.

    The opinion that I will give you is that you are not interested in any real discourse, and any time your position is threatened, you deflect and refuse to answer the questions put to you. This behavior of yours is reflected not just on this thread, but pretty much anywhere your position is challenged.

    Why would I bother giving you details for you to twist? You have your hands full as it is in re-calibrating your understanding of the patent right and what the holding in Ebay actually said (got that harm factor down yet? – perhaps if you STAREd at it, long enough, the DECISI[S]ons by the courts may penetrate your penchant for perversion).

    Cranky,

    As I do not need the statement to back up my premise, and
    as you refuse to move forward and actually address anything of substance until the analogy issue is satisfied to your contentment, and
    even though you say I won’t answer after I have answered in telling you that I cannot provide a case citation for a made-up analogy, and
    even though you prevaricate in , “I never asked for a citation to a case specifically involving orchards and factories.” (as this is EXACTLY what you asked for at
    Mar 15, 2010 at 01:32 PM
    Mar 15, 2010 at 06:35 PM
    Mar 16, 2010 at 09:28 AM
    Mar 16, 2010 at 10:23 AM
    Mar 16, 2010 at 02:33 PM
    Mar 16, 2010 at 04:27 PM
    Mar 16, 2010 at 05:44 PM
    And even your last post of Mar 17, 2010 at 09:27 AM asks for specifically orchards and factories,

    I withdraw the analogy of Equal Protection Violation for prosecution of trespass against orchards versus prosecution of trespass against factories.

  17. 284

    ********
    The patent holder and the nature of the patent are not the proper focus here.
    ********

    IANAE, please. Either there is a bright line automatic injunction, or it devolves into a popularity contest. Of course, whether or not there is an automatic injunction is really subject to a popularity contest anyway. Same with whether or not there are patents, and what words mean.

    The best thing about popular rule is that it is imminently practical, and most resistant to violent revolution. But then, whether or not to have a violent revolution is, itself, subject to a popularity contest.

  18. 283

    Dear IANAE,

    Re:
    What if, after a trial finding validity and infringement of the patent-in-suit, the Judge simply said:

    I hereby Order you to stop the infringement forthwith. If you do not, you will be guilty of contempt of court and I will issue a warrant for your arrest.

    That would be a little thing we in the biz call an ‘injunction’.”

    The substantive answer is that the pharking infringer may seek a Stay of Execution pending an Appeal, and he may have grounds for Appeal at the CAFC citing the USSC’s (corrupt) eBay decision which discriminates against one class of inventors, i.e., non practicing entity patent owners.

    Supposed the pharking infringer were to prevail in the CAFC Appeal, and the District Court’s Order to Stop the Infringement was reversed, and the case was remanded for further litigation consistent with the CAFC decision.

    What if, after further litigation, the DC Judge were favor the patent owner again and issue a TRO to stop the infringement and an Order to Show Cause against the pharking infringer as to why he would be justified to continue infringement (given, of course, that the pharking infringer has not come to terms with the patent-in-suit owner).

    Then, the pharking infringer takes another CAFC Appeal – how would the CAFC deal with that?, if, e.g., the patent owner argued that the fee from a forced license from him to the pharking infringer would not assuage the patent owner’s his mental anguish?

    And, arguendo some more, suppose the patent-in-suit covered the 2001 revolutionary Ticket in Ticket out tickets used in casino slot machines (so the casino didn’t have to deal with the labor and other horrendous distractions from handling coins or tokens in slot machines).

    And further, that the NPE patent owner argued that he was against gambling on his personal moral grounds, and he did not want his patent used to fleece gamblers out of rent and college funds with the greater efficiency afforded by his patent. Further still arguing that, when my patent runs out, that’s soon enough for the casino to use the invention.

    Is not the NPE patent owner absolutely entitled to stop the infringement notwithstanding the USSC’s eBay ruling?

  19. 282

    broje, please. The patent holder and the nature of the patent are not the proper focus here. None of your scenarios deal with the patent right itself. I therefore misconstrue your scenarios as follows:

    Scenarios 1-4: Inventor of a thing has a patent on the thing.

    Is that a case where you think an injunction should not be granted? NAL, same question.

  20. 281

    Scenario 1: Inventor of cold fusion refuses to let anyone use the technology unless Congress amends the Constitution to make the government a theocracy enacts laws that mirror those of his or her preferred religion.

    Scenario 2: Inventor of cold fusion charges such an astronomically large amount of money that absolutely NO ONE can afford to use the technology.

    Scenario 3: Inventor of cold fusion charges licensing fees calculate to make cold fusion cheaper than oil, but not cheaper than coal.

    Scenario 4: Inventor of cold fusion licenses the patented invention exclusively for use in automotive vehicles.

  21. 279

    Ned: Hypo for Willton and IANAE: you are a judge. On your calendar are requests for restraining orders by two women raped by the same man, both after offering them the prevailing rate for prostitutes in the area.

    I think I could make a pretty good case for irreparable harm on those facts whether or not the lady was, shall we say, of negotiable affection.

    NAL: The fact that you STILL keep saying that I am calling for automatic injunctions show that you simply do not understand my position.

    Give us one set of facts, just one, on which you personally think an injunction should be denied for a patent found valid and infringed. Don’t go back to the literature, don’t do any research, don’t do anything you’re going to complain about later. Give us your opinion. We know you enjoy giving your opinion for free, so there’s no irreparable harm issue.

    Be sure your facts involve nothing peculiar about the patent holder or the nature of the patent. Maintain your focus on the patent right, which is blind to these factors.

    “(1) the patent holder and the nature of the patent are not the proper focus because the patent right itself is blind to these factors and (2) the focus that must be maintained is on the patent right”

    And keep it brief, please. Bullet-point it if you have to.

  22. 276

    Is it a violation to tell someone to go down pigeon road, when Eagles Landing is the other way? And the person going down the wrong road is without a compass. And the person that sent them down the wrong road is true north for Eagles Landing?

  23. 275

    Cranky – you fool no one.

    You’re very clever. But you’re still not answering the question.

    The fact that you are stuck on the analogy and refuse to let go reveals the malcolmy fingerprints.

    I’m not the slightest bit concerned with your analogy. If you go look at my original post on this particular topic, I simply challenged your ridiculous statement that “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.” Since then I’ve asked you repeatedly whether you stand by that statement or not. For some reason, you won’t answer. And I have “malcolmy fingerprints.”

    You wanted a specific cite to an actual case with orchards and factory when I EXPLICITLY told you that I took that analogy from NEW B. (specifically his Mar 12, 2010 08:39 AM post).
    Obviously NEW B has stated that he is not an attorney.

    Wow! Several stunning (despicable?) displays of intellectual dishonesty, not to mention arrogance, in just two sentences. You don’t think we’re smart enough to go back and read what was said? Yes, NEW B raised the “orchards and factoy” examples. But the jump to the Equal Protection clause was all yours. YOU said “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.” Now you want to hide behind NEW B’s lack of education?

    Incidentally, I never asked for a citation to a case specifically involving orchards and factories. Does that sort of misdirection ever work for you?

    Obviously, there will be no case cite forthcoming.

    That has been pretty apparent for a while now. That’s why my last several requests have been for a simple declaration of whether you stand by YOUR statement or not. The lengths to which you’ve gone to avoid answering are impressive.

    And just as obviously, you do not understand the significance of the case cites I did provide, since you think that they speak against my position. You have let the messenger blind you to the message. Pay attention to the legislative call for equity (funny how you so quickly dropped THAT part of the argument when I reminded you of it), and to the strict classification of the patent right.

    You’re trying to change the subject again. Once more, go look at my Mar. 15, 1:32 PM post. I challenged your single statement, and demanded you to support. For some reason, you want to obfuscate, instead. Isn’t that what you accuse IANAE and others of?

    It’s a simple question, Noise. YOU said “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.” YOU have stated numerous times that your mission is to attack false statements and to defend truth. So, what’s it going to be? Do you stand behind your statement, or do you withdraw it? I don’t need a citation. Just a simple “I stand behind that statement” or “I withdraw it.”

  24. 274

    I see you guys saw the point in my analogy.

    I agree wholeheartedly with NAL. The Feds simply shorthanded centuries of law on injunctions. The Supremes overruled the shorthand, but did not go further. The minority, argued for the position now being advanced as the law by Willton et al. But, that position was not accepted by the majority.

  25. 272

    “What you want to call pigeon-holing has a legal term: stare decisis.”

    You sound like Roberts in the Concurrence.

  26. 271

    ” You wanted a specific cite to an actual case with orchards and factory when I EXPLICITLY told you that I took that analogy from NEW B.”

    TRACK SHOES, CHECK.

    “Obviously NEW B has stated that he is not an attorney. Obviously, there will be no case cite forthcoming.”

    SKIRT THE ISSUE, CHECK.

    “And just as obviously, you do not understand the significance of the case cites I did provide”

    AD HOMINEM, CHECK.

    “Pay attention to the legislative call for equity, and to the strict classification of the patent right. The patent right classifications simply do not distinguish by what the four Justices in the minority opinion consider AS law.”

    AND WITH THAT GOBBLEDYGOOK, SHE’S OUTTA HERE!

  27. 270

    There is no pigeon holing – I am merely clearing the anti-patent rhetoric growing like weeds after the Supremes’ smack-down of the CAFC.

    The desired outcome is just the natural outcome of understanding what the rights involved actually entail (the right to exclude)and what they do not (the right to make money or any other form of “do”). The Patent Right is no lottery. Just because a person has a patent and wants to lead does NOT mean that anyone must choose to follow.

    What you want to call pigeon-holing has a legal term: stare decisis.

  28. 269

    The so-called “four factors” are the proper focus, that is what that case said. Your attempt to short-cut it by pigeon-holing your desired outcome into a four-factor analysis undercuts the holding of the case. Stop it.

  29. 268

    Here is the Ebay Supreme court ruling – all 376 words less the concurring opinions:

    A company owned a business-method patent for an electronic market designed to facilitate the sale of goods between private individuals. The company sought to license the patent to two operators of Internet Web sites that allowed private sellers to list goods for sale, but the parties failed to reach an agreement.

    The company subsequently filed a patent-infringement suit against the Web site operators in the United States District Court for the Eastern District of Virginia. A jury found that the operators had infringed the patent and that an award of damages was appropriate. However, the District Court, in denying the company’s motion for permanent injunctive relief, expressed the view that a “plaintiff’s willingness to license its patents” and “its lack of commercial activity in practicing the patents” would be sufficient to establish that the patent holder would not suffer irreparable harm if an injunction did not issue.

    The Court of Appeals, in reversing the District Court’s judgment in pertinent part and in ordering a remand, (1) articulated a “general rule,” assertedly unique to patent disputes, that a permanent injunction would issue once infringement and validity had been adjudged; and (2) indicated that injunctions against patent infringement ought to be denied only in the “unusual” case, under “exceptional circumstances” and “in rare instances . . . to protect the public interest” ( 401 F.3d 1323).

    On certiorari, the United States Supreme Court vacated and remanded. In an opinion by Thomas, J., expressing the unanimous view of the court, it was held that:

    (1) In disputes arising under the Patent Act (35 U.S.C.S. §§ 1 et seq.)–no less than in other cases governed by the standards of equity–a prevailing plaintiff seeking a permanent injunction must demonstrate that
    (a) the plaintiff has suffered an irreparable injury;
    (b) remedies available at law, such as monetary damages, are inadequate to compensate for that injury;
    (c) considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and
    (d) the public interest would not be disserved by a permanent injunction.

    (2) Neither the District Court nor the Court of Appeals had correctly applied this traditional four-factor test.

    (3) Remand was necessary so that the District Court could apply that test in the first instance.

    THAT IS IT.

    Here are the takeaways –

    The District Court was wrong- the view that a “plaintiff’s willingness to license its patents” and “its lack of commercial activity in practicing the patents” are NOT sufficient to establish that the patent holder would not suffer irreparable harm if an injunction did not issue. (IANAE especially needs to drink this in)

    The Court of Appeals was wrong – There is no general rule unique to patents that excuses the application of the traditional four-factor test. Note that the CAFC reasoning was not held to be wrong – what was held to be wrong was that they skipped applying the four factor test. Had they applied the reasoning in each proper step, and not tried to place patents above the four factor test, the Supreme Court decisiosn would have been even shorter (both IANAE and Willton need to recognize that this is the position that I took, the position that I have not wavered from – my insightful additions may add color, but do not stray from this position)

    The Supreme Court offered two concurring opinions and NEITHER are even considered dicta, as neither reached a majority standing. These concurring opinions do not hold even persuasive authority.

    What the Supreme Court did NOT do:

    The Supreme Court did not wipe out the large body of law that underpins the shortcut that the Court of Appeals attempted to take. That body of law largely holds that there is a presumption of irreparable harm if the patent is found valid and infringed (the CAFC needed to APPLY this reasoning in a step one analysis). IANAE asking for more than this is completely lacks legal foundation (I will still accept a citation IANAE if you can keep that citation on the actual point under discussion and not go of on a lark as you are want to do).

    The minority view offered by Roberts, Scalia and Ginsburg contains neither a call for action, nor a change in jurisprudence. It is a mere observation and changes NOTHING.

    The Supreme Court’s concurring opinion of Kennedy, Stevens, Souter, and Breyer, expressed the view that (1) in many modern patent cases, the nature of the patent being enforced and the economic function of the patent holder presented considerations that were unlike those in earlier cases; and (2) the equitable discretion over injunctions, granted by the Patent Act, was well suited to allow courts to adapt to the rapid technological and legal developments in the patent system. This was a call for change and that call was rejected.

    The concurring opinions ARE NOT LAW.

    Note that what Willton wants to consider as law deals with the nature of the patent being enforced and the economic function of the patent holder. Willton – this position has no legal foundation. You need no SCOTUS quote – as the fact that the group of four could not convince one other Justice to agree with them means that (1) the law does not hold that the NATURE of the patent being enforced and the economic function of the patent HOLDER make a difference to, nor should they make a difference in the evaluation of the four factors; and (2) courts should not be attempting to adapt to so-called rapid technological and legal developments of the patent system.

    The most obvious reasons why are the reasons I have provided – (1) the patent holder and the nature of the patent are not the proper focus because the patent right itself is blind to these factors and (2) the focus that must be maintained is on the patent right – a right that LARGELY is unchanged from the original Constitution (in especially the most critical element of that right). The critical right, the right to exclude, is the EXPRESSED aim of protection (not evisceration), and that right belongs EXCLUSIVELY to the patent holder. This takes paramount status in the equity consideration. Again, for the umpteenth time, the four factors still need to be applied – but they need to be applied with the proper focus in mind. Willton, I will make a deal with you – I will drop the “thief” aspect if you will recognize the proper focus aspect.

    Yes, the four factors of equity should be applied. Yes, that means that there is no such thing as an automatic injunction, yes that means that in most likelihood, there will be injunctions based on the large body of case law that prompted the Court of Appeals to attempt a short cut, Yes this was a p_ssing match that the CAFC lost, No, I will not go back through two essays to find Willton the specifics of when an injunction would be denied – Willton, you need to take the time to actually read those essays, instead of sticking so dogmatically to your views and outright dismissing other views. The fact that you STILL keep saying that I am calling for automatic injunctions show that you simply do not understand my position. Take the time to read what I actually wrote. Do not be like IANAE and make up crap just so he can respond to positions I do not hold.

    Cranky – you fool no one. The fact that you are stuck on the analogy and refuse to let go reveals the malcolmy fingerprints. You wanted a specific cite to an actual case with orchards and factory when I EXPLICITLY told you that I took that analogy from NEW B. (specifically his Mar 12, 2010 08:39 AM post). Obviously NEW B has stated that he is not an attorney. Obviously, there will be no case cite forthcoming. And just as obviously, you do not understand the significance of the case cites I did provide, since you think that they speak against my position. You have let the messenger blind you to the message. Pay attention to the legislative call for equity (funny how you so quickly dropped THAT part of the argument when I reminded you of it), and to the strict classification of the patent right. The patent right classifications simply do not distinguish by what the four Justices in the minority opinion (and what Willton wants to) consider AS law.

  30. 267

    “Did the NPE suffer physical injury? Mental anguish?”

    The NPE’s wallet was raped. The NPE’s children are going to starve, and the infringer gets to make royalty-free widgets. How is that fair???

  31. 266

    Can we talk about patent law now?

    Can we start?

    All I see is ad hominem and people talking past each other.

    Has anyone here actually read the EBAY case? Does anyone here know what a holding means?

  32. 265

    Coming soon: patent enforcement vigilantes!

    Paul Kersey doesn’t need a court to enjoin his infringers.

  33. 264

    Oh, and by the way, if the prostitute was only seeking a restraining order so that she could bargain for a higher price from the john for the next time he wanted to have sex with her, then no, I probably would not issue the restraining order. In that instance, the prostitute probably wasn’t even raped.

    But thanks for taking us on that absurd detour. Can we talk about patent law now?

  34. 263

    Hypo for Willton and IANAE: you are a judge. On your calendar are requests for restraining orders by two women raped by the same man, both after offering them the prevailing rate for prostitutes in the area. One woman actually is a prostitute. Should you not grant the restraining order to the prostitute on the basis that the price was right?

    Nice strawman. How does this relate to patent infringement? How is a rape victim in any way similar to a non-practicing entity? How is the absurdity of giving a raped hooker her going rate as damages in any way comparable to issuing a reasonable royalty to a non-practicing entity as a remedy for patent infringement?

    It’s pretty easy to see how the rape victim was harmed: she likely suffered physical injury and psychological damage. How is a non-practicing patentee harmed by a patent infringer? Did the NPE suffer physical injury? Mental anguish? Was the NPE’s business interfered-with? Did the NPE see a drop in income as a result of the patent infringement?

    No, of course not. Why? Because a non-practicing entity, by definition, does not practice his invention. The NPE has no business that is being harmed by the patent infringer. The NPE did not see a drop in income as a result of the patent infringement because the NPE was not marketing a competing product.

    By the way, next time you have a thought, let it go.

  35. 262

    “Should you not grant the restraining order to the prostitute on the basis that the price was right?”

    You probably shouldn’t grant the restraining order anyway. In either case. On the other hand, you probably should issue a warrant for the man’s arrest.

  36. 261

    You are an imb*cile. Your name is Carrie Buck. I am Justice Oliver Wendell Holmes, Jr. What do I do?

    I’m sure a restraining order would be effective in Ned’s hypo. Why didn’t anyone think of that before? We should have no more crime! This is wonderful!

  37. 260

    Hypo for Willton and IANAE: you are a judge. On your calendar are requests for restraining orders by two women raped by the same man, both after offering them the prevailing rate for prostitutes in the area. One woman actually is a prostitute. Should you not grant the restraining order to the prostitute on the basis that the price was right?

  38. 258

    Looking back, when I wrote “Obviously, the best way to prevent the right from being violated is to issue the injunction,” I should have wrote that an injunction is the most effective way, not the best way.

    “Best” implies “most right”, and clearly an injunction is not the most right way to prevent a patent right from being violated in every instance. If it were, the Patent Act drafters would not have included the language “in accordance with the principles of equity,” as such language implies that there are instances where an injunction is NOT the best way to prevent a right from being violated.

  39. 257

    Wrong. The principles of equity are ALSO concerned with the respective states of the parties to the suit. I’m sorry that I can’t provide you with some quote from SCOTUS that says as much (doing so would be time consuming), but if you had taken a course in remedies in law school, you would have known that.

    You don’t need to provide a quote, Wilton. Noise already provided one; she’s just refusing to acknowledge the important part. Here it is:

    The legislative discretion to grant or withhold equitable relief in any class of cases must, under the equal protection of the laws clause of US Const 14th Amend, be so exercised as not to grant equitable relief to one, and to deny it to others under like circumstances and in the same territorial jurisdiction.
    Truax v Corrigan, 257 US 312

    For purposes of the current discussion, the “class of cases” must be taken to refer to patent infringement cases. But what does the court mean by “under like circumstances”? Noise would have you believe that the “like circumstances” also means the “violation of the patent right”. See post at 11:17 PM, March 14 (“The crux of the matter, and the proper focus is on ‘like circumstances.’ Focus must be on the right that has been violated.”) Of course, this makes no sense whatsoever. Which seems to be Noise’s standard approach. Make incomprehensible arguments, and then accuse you of obfuscation.

    She also won’t answer the much simpler question of whether she stands behind her assertion that “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.” Fancy that.

  40. 255

    I’m thinking that the EPO’s oft-cited “Principle of Legitimate Expectations” is also playing a role here. A lot of excited people legitimately have high expectations, when they get issued with a patent, for they have been led, over many years, to believe that it is no more nor less than a hunting licence to commit unconstrained slaughter.

  41. 254

    Actually Willton – I don’t miss this at all. And to both you and IANAE, in fact I point out that where the CAFC erred was in missing this. I DO point out that the Four Factors DO need to be run through. You need to take the time and actually read what I have written. Repeatedly correcting mistakes of people that arise out of such sloppy reading habits detracts from the meaningful discussion we could be having on the law.

    You point it out, but you then provide no analysis as to when the Four Factors (as you name them) would bear a decision to not issue an injunction. All you do is say is “The Four Factors do need to be applied, but their application requires short work.” Based on this and the rest of your posting, it is very clear that you think “the Four Factors” is merely a test that the court must undertake pro forma before issuing the automatic injunction. Such an interpretation eviscerates Section 283 of the Patent Act, and that clearly could not have been intended by the framers of the Patent Act.

    Second, the analysis should focus on the correct issues. This is another area where courts have overstepped – and not surprising that you find my position here difficult to swallow given your predilection for thieves’ rights. The proper focus (once again) on hardships must pinion on the actual right involved. How hard is it for a thief to do the right thing (for an infringer to stop infringing) balanced against how hard is it to recognize the patent right to exclude? (at the point in our discussion we are at – patent valid and infringed – this may be a trivial step – trivial, but necessary – highlighting the trivial does not eliminate the necessary).

    First of all, for someone who likes analogizing patent infringement to trespassing, you really like using the analogy of theft, which is clearly inapt. Nothing is being stolen in a patent infringement case. No piece of property is being taken away from the patentee. There is nothing criminal about patent infringement, so stop calling patent infringers “thieves”. Give it a rest.

    Secondly, you clearly do not understand how businesses are run. When a patent infringer is enjoined, s/he is ordered to cease all business operations. This causes the infringer to lose money because nothing is being made or sold. All the sunk costs of setting up said business go to waste unless the injunction is lifted. This may be fair when the infringer’s infringement is interfering with the patentee’s business of producing goods or providing services pursuant to its patent. But it is decidedly unfair to levy such hardship on an infringer when the patentee has no harm to speak of, other than the infringement itself.

    Why defintely not Willton. Please re-read what I have said. Included therein is a reference to JAOI’s well versed exceptions that do provide meaning – full meaning at that.

    Where? Show me. I shouldn’t have to comb through the two essays that both you and JAOI posted when you claim to know where the pertinent situations are.

    All I am asking is for you to show me when, under your construction of the law, an injuction would be an improper remedy to fashion for the patentee. It appears that, despite your claim that you are taking equitable principles into consideration, you are still deluded into thinking that a patentee has an unqualified right to an injunction upon a finding of infringement. But please, feel free to show me that you are not so deluded.

    The Principles of equity are constrained to the matter at hand, regardless of the permissibility of section 283 that IANAE gloms onto – that matter at hand is the PREVENTION of patent right violation.

    Wrong. The principles of equity are ALSO concerned with the respective states of the parties to the suit. I’m sorry that I can’t provide you with some quote from SCOTUS that says as much (doing so would be time consuming), but if you had taken a course in remedies in law school, you would have known that.

    Prevention does not mean evisceration. In your excitement to read section 283 – you gloss over the main point and seek to have the tail wag the dog (I am so jealous of hindsight for making this point – even the esteemed Dave Boundy used it on another thread) Connect the dots Willton – you are big boy – I know you can do it – start with step one – what is the patent right? Ask yourself, how best is this patent right to exclude prevented from being violated. Stay out of the weeds.

    Obviously, the best way to prevent the right from being violated is to issue the injunction. However, if you ever took a remedies class in law school (or even a contracts class), you would know that an injunction is an extraordinary remedy. And just like in every other area of law, when an injunction would do more harm than good, it is the improper remedy for the judge to issue. That’s why injunctions are only issued when they are “in accordance with the principles of equity.”

  42. 253

    So does “the exclusive Right” case I’ve been making.
    That’s all I’m saying.

    Well, you’re wrong.

    The constitution gives you a lot of rights (of which a patent isn’t even one), and pretty much sets out no particular remedies for any of them. The remedy is always up to the court to decide based on the facts of the case, or left to Congress to “enforce by appropriate legislation”.

  43. 252

    Dear IANAE,

    Re:
    “That hypothetical raises a clear constitutional issue…”

    So does “the exclusive Right” case I’ve been making.
    That’s all I’m saying.
    Me thinks you may be too embarrassed to fess up.

  44. 251

    …keep your eye on the focus of what we are talking about.

    Excellent advice, NAL. But surely you can handle two conversations at once, especially since the issue is quite simple in at least one. So, are you standing behind your assertion that “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex,” or are you withdrawing it? Why won’t you simply answer the question?

    Isn’t all this dodging, ducking, and running precisely the behavior that you condemn Mooney for?

  45. 250

    JAOI: supposed the Congress issued a 35 USC xxx that said “a patent issued by the PTO covering improved widgets shall last in perpetuity.”

    That hypothetical raises a clear constitutional issue, and there’s no way any appellate court would let it slide without at least hearing arguments on that point. The feds would have to justify the statute under some power other than Clause 8. If it was well argued on both sides, and the Supremes (equally hypothetically) had a good reason for finding that it was covered by the commerce clause or something, I’d be okay with it. In that unbelievably outlandish hypothetical case that would never ever happen.

    Now, let’s get back to your current complaint about a situation that raises no constitutional issue at all.

    NAL: “proving damages” as you would have it in a punch in the face scenario is vastly different than “prove irreparable harm to get an injunction” as one of the four factors.

    It’s only different in a way that doesn’t support you. Proving damages in the punching case immediately entitles you to the remedy, but proving irreparable harm (the type of damages that entitles you to an injunction) is only one of several factors for an injunction. Granted, it’s the most important one, but still.

    I don’t know why you think we disagree on the test for an injunction, other than you thinking the test ends with “and then grant the injunction anyway”.

    NAL: Fixed your sentence for you.

    That’s not “fixed”, it’s exactly what I said. Trespass is an excellent analogy for the right. It’s a terrible analogy for the remedy. Keep your eye on the actual ball, NAL – keep your eye on the focus of what we are talking about.

  46. 248

    Whooohooo!

    This threads already at 251!

    NAL,

    It’s not hard to have an honest conversation with you – it’s just too boring.

    JOAI,

    From NAL’s post(s) – or is that post(S)? – she implies that there is nothing wrong with the Supreme’s eBay decision, nor with section 283.
    How do you feel about the splinter in the Constitutional Rights Club?

  47. 246

    IANAE states:

    “You want a citation for “plaintiff has to prove his damages”? Because I already have a pretty authoritative citation for “plaintiff has to prove irreparable harm to get an injunction”. It’s even a patent case.”

    IANAE – once again you resort to the twist mode: “proving damages” as you would have it in a punch in the face scenario is vastly different than “prove irreparable harm to get an injunction” as one of the four factors. I have already rejected your attempt to switch the standard, so your citation would have to be to the actual point I am making (not your usual changed-point-because-I’m-wrong-on-the-point-actually-being-discussed). I have already stated that the four factors have to be applied. Why do you insist on arguing points that are not mine? Is it really that hard for you to have an honest conversation?

    “You love the trespass analogy because it is the most appropriate analogy to the actual rights under discussion”

    Fixed your sentence for you. The Supremes never said to eliminate the presumption – they said only that the test must be walked through. As I have pointed out – the statement of the four Supremes doesn’t even rise to the level of dicta.
    Keep your eye on the actual ball IANAE – keep your eye on the focus of what we are talking about.

  48. 245

    “I DO point out that the accused deserves a fair trial. After which he will be hanged.”

    “The issue in this thread here is not back damages; the issue here is the future license fee.”

    Psst, JAOI, don’t tell IANAE what the issue is, he is having too much fun blowing smoke up NAL’s skirt.

    Mr. IANAE lawyer is phucked because he isn’t going to be paid. Nothing else matters there.

    Cranky, NAL told you not to be petulant, doesn’t she know that would mean that you would have to come up with a new sockpuppet? Don’t listen to her – I like this one.

  49. 244

    Dear IANAE,

    Hypothetically,
    supposed the Congress issued a 35 USC xxx that said “a patent issued by the PTO covering improved widgets shall last in perpetuity.”

    And the PTO issued such a patent.

    And Mr. Inane infringed the widget patent.

    And a District Court, the CAFC and the USSC upheld the validity and infringement of the widget patent and Ordered Mr. Inane to quit infringing else go to jail for contempt.

    If you were Mr. Inane’s lawyer, would you think about that?

    Don’t tell me, please let me guess – you’d think you got phucked.

    Why would you think so?

  50. 243

    However, as back when the Constitutional was drafted, and as now, there is one and only one meaning of “the exclusive Right.”

    There is indeed, and that meaning tells you absolutely nothing about whether the patentee is entitled to an injunction. Exclusive right means that if someone else does the thing you can take them to court and win.

    What if, after a trial finding validity and infringement of the patent-in-suit, the Judge simply said:

    I hereby Order you to stop the infringement forthwith. If you do not, you will be guilty of contempt of court and I will issue a warrant for your arrest.

    That would be a little thing we in the biz call an “injunction”.

    With all due respect, please repeat after me 100 times:
    The Constitution trumps all. Always.

    The Supreme Court is the final word on the constitution, and they didn’t see any constitutional issues with their ruling on the statutory patent right.

    The constitution allows Congress to grant an exclusive right. Congress granted an exclusive right. MercExchange got an exclusive right. The Supremes said “okay, you have an exclusive right, your right was infringed, now let’s talk remedy.” The constitution is completely silent on the question of remedy, it turns out.

  51. 242

    Clarification:

    However, as back when the Constitutional was drafted, and as now, there is one and only one meaning of “the exclusive Right.”

    At least in the context of patents.

  52. 241

    Dear IANAE,

    Re:
    “Two interesting points there. (1) The nation’s foremost authorities on constitutional law described the exclusive right as a “statutory right”, and (2) they explicitly said that an exclusive right isn’t the same as entitlement to an injunction.”

    (1) I agree — Right on.

    (2) “they explicitly said that an exclusive right isn’t the same as entitlement to an injunction.”

    Of course they are not the same. I never said they were. Any asswhole can understand that they are not the same. Language can be complicated. Of course “exclusive right” and “injunction” can overlap in some meaning.

    However, as back when the Constitutional was drafted, and as now, there is one and only one meaning of “the exclusive Right.”

    What if, after a trial finding validity and infringement of the patent-in-suit, the Judge simply said:

    I hereby Order you to stop the infringement forthwith. If you do not, you will be guilty of contempt of court and I will issue a warrant for your arrest.

    link to en.wikipedia.org
    Excerpt:
    “A finding of contempt of court may result from a failure to obey a lawful order of a court…”

    Re:
    “I realize you’re not a lawyer, so you might need to be told this. In the event of any inconsistency between the CAFC en banc and the Supreme Court, the Supreme Court always wins. Always.”

    Be careful or else readers may think you are a condescending asswhole.

    With all due respect, please repeat after me 100 times:
    The Constitution trumps all. Always.

    And let that be the end of it.
    Pull your head out and smell the coffee.

  53. 240

    JAOI: Re: (JAOI, are you there?)

    Yep.

    Thanks a lot, Max :P

    JAOI: “It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention to which the patentee is entitled the right to exclude.’”

    a patentee is entitled to the right to exclude

    the exclusive Right, i.e., the right to exclude

    the exclusive Right to their respective Writings and Discoveries

    “[T]he exclusive Right”

    Have you read eBay v. MercExchange? You’ll be surprised to learn that the Supreme Court was aware of this little-known “right to exclude” of which you speak.

    “According to the Court of Appeals, this statutory right to exclude alone justifies its general rule in favor of permanent injunctive relief. 401 F.3d, at 1338. But the creation of a right is distinct from the provision of remedies for violations of that right.”

    Two interesting points there. (1) The nation’s foremost authorities on constitutional law described the exclusive right as a “statutory right”, and (2) they explicitly said that an exclusive right isn’t the same as entitlement to an injunction.

    Repeat yourself all you want, it won’t make you right.

    what does that say about the inconsistency between the CAFC’s en banc Phillips the Supremes’ eBay decision?

    I realize you’re not a lawyer, so you might need to be told this. In the event of any inconsistency between the CAFC en banc and the Supreme Court, the Supreme Court always wins. Always.

  54. 239

    Re: Period. above.

    Of course, other than the Constitutional exceptions previously discussed.

  55. 238

    Slight less cranky – get out of the weeds. Please focus on the real issue. If you accept the application to the legislated concern at hand, do not become petulant with the analogy. Catch up to where the rest of the class is at.

    Nice dodge – those track shoes are giving you some nice traction. But are you standing behind YOUR assertion that “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex,” or are you withdrawing it? Why are you afraid to simply answer the question?

  56. 237

    Hello Max et al.,

    Re: (JAOI, are you there?)

    Yep.

    Above I commented that, typically, if a patent Plaintiff prevails, and the patent-in-suit is found valid and infringed, “back” damages are set by the Judge or Jury, usually after listening to damage experts from both side as to what is appropriate, for example, is there a comparable “going rate”?

    The issue in this thread here is not back damages; the issue here is the future license fee.

    Importantly, and most relevantly, according to the Framers’ plain, literal writings in the Constitution, nobody but the owner of the patent gets to set the (future) license fee – nobody.

    That is the most inherent & fundamental feature of a United States patent.

    I’d like to hear anybody explain why they think it is more appropriate for a Judge or anyone else, after an infringement trial, to set the license value of a patent s/he or they don’t own, rather than the owner of that patent setting the value. And if the infringer refuses terms if they are offered, or if the owner does not offer terms, the infringer must cease the infringement. Period.

    Here is some of my commentary previously posted:

    It is interesting to note again that, Phillips, e.g., cited on page 7 of Gillespie v Dywidag, does not wash with the Supremes’ eBay anti-injunction decision. Page 7 Phillips citation:

    “See Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention to which the patentee is entitled the right to exclude.’”).”

    The following was noted by Professor Crouch on this thread “Injunction against ‘any products’ that infringe is overlybroad …”
    link to patentlyo.com

    “WHERE ARE THOSE PRINCIPLES OF EQUITY: Interestingly, the injunction portion of the decision did not discuss the Supreme Court’s recent case of eBay v. MercExchange. EBay focused [almost solely] on the language of the statute typically associated with patent infringement injunctive relief – 35 USC 283.” (emp. added)

    I (JAOI) have been attacking the USSC’s eBay decision from the top down. Better would be to attack from the bottom up, i.e., it is 35 USC 283 that doesn’t wash with Article I, §8, Clause 8. My argument, as you may recall, is that 283 is inconsistent with any literal, loyal or lawful interpretation of the Constitution, because there has been no amendment whatsoever to Article I, §8, Clause 8. This patent clause has always been interpreted literally, e.g., on the face of U.S. patents and in Phillips.

    And since 35 USC 283 is therefore, at the very least, “suspect,” what does that say about the inconsistency between the CAFC’s en banc Phillips the Supremes’ eBay decision?

    “Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) “It is a ‘BEDROCK PRINCIPLE’ of patent law that ‘the claims of a patent define the invention to which THE PATENTEE IS ENTITLED THE RIGHT TO EXCLUDE.’” (emp. added)

    Bedrock is BEDROCK.

    “35 U.S.C. 283 Injunction:
    The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.”

    How can any court deem it “equitable” to allow infringement to continue against the will of the patentee after a patent has been found valid and infringed?, when it is a bedrock principle of patent law that a patentee is entitled to the right to exclude?

    Like bullets to a gun, Nothing is as Constitutionally fundamental to a patent as is the exclusive Right, i.e., the right to exclude:
    “Section 8. The Congress shall have Power …
    Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

    “[T]he exclusive Right” can only be modified by a Constitutional Amendment (please see Article V, the procedure to amend the Constitution, and the Supremacy Clause, Article VI).

    35 USC 283, and the USSC eBay decision based thereon, are in tension with the Constitutional.

  57. 236

    I DO point out that the Four Factors DO need to be run through.

    I DO point out that the accused deserves a fair trial. After which he will be hanged.

    Make both Still cranky and myself happy with a citation to a court that applies that different standard.

    You want a citation for “plaintiff has to prove his damages”? Because I already have a pretty authoritative citation for “plaintiff has to prove irreparable harm to get an injunction”. It’s even a patent case.

    IANAE, what’s with you and being punched in the face,

    Like arguing with you, it feels so good when I stop.

    when the tort of trespass is so much more the better analogy?

    You love the trespass analogy because the common law pretty much always gives injunctions for trespass to land. It supports your argument at exactly the point where the analogy fails – irreparable harm is trivial and presumed in trespass to land, whereas even reparable harm is often non-existent in patent infringement.

  58. 235

    “And you fail to notice that Section 283 conditions an injunction on whether it is “in accordance with the principles of equity”.”

    Actually Willton – I don’t miss this at all. And to both you and IANAE, in fact I point out that where the CAFC erred was in missing this. I DO point out that the Four Factors DO need to be run through. You need to take the time and actually read what I have written. Repeatedly correcting mistakes of people that arise out of such sloppy reading habits detracts from the meaningful discussion we could be having on the law.

    “would fail to undertake an analysis with the purpose of balancing of the hardships, as equity demands. “

    First, as I have said, the analysis should be undertaken. Second, the analysis should focus on the correct issues. This is another area where courts have overstepped – and not surprising that you find my position here difficult to swallow given your predilection for thieves’ rights. The proper focus (once again) on hardships must pinion on the actual right involved. How hard is it for a thief to do the right thing (for an infringer to stop infringing) balanced against how hard is it to recognize the patent right to exclude? (at the point in our discussion we are at – patent valid and infringed – this may be a trivial step – trivial, but necessary – highlighting the trivial does not eliminate the necessary).

    “That is utter nonsense and is contrary to the intent of the drafters of the Patent Act.”

    Citation please (I already know your faulty opinion of section 283, I want to see if you can show an actual case where that opinion is shared.)

    “Under your construction of the law, that language would be meaningless.

    Why defintely not Willton. Please re-read what I have said. Included therein is a reference to JAOI’s well versed exceptions that do provide meaning – full meaning at that.

    “The patent right may be blind to whether the holder is an NPE, but the principles of equity are certainly not so blind.”

    The Principles of equity are constrained to the matter at hand, regardless of the permissibility of section 283 that IANAE gloms onto – that matter at hand is the PREVENTION of patent right violation. Prevention does not mean evisceration. In your excitement to read section 283 – you gloss over the main point and seek to have the tail wag the dog (I am so jealous of hindsight for making this point – even the esteemed Dave Boundy used it on another thread) Connect the dots Willton – you are big boy – I know you can do it – start with step one – what is the patent right? Ask yourself, how best is this patent right to exclude prevented from being violated. Stay out of the weeds.

    “I attacked only one thing… Or are you withdrawing it?”

    Slight less cranky – get out of the weeds. Please focus on the real issue. If you accept the application to the legislated concern at hand, do not become petulant with the analogy. Catch up to where the rest of the class is at.

    “The right not to be punched in the face is blind to whether the face belongs to a model or a prizefighter or a hermit. And yet, the civil remedy varies depending on the harm you personally suffer and can prove in court.”

    IANAE, what’s with you and being punched in the face, when the tort of trespass is so much more the better analogy? I reject your repeated attempts to change the standard for patent infringement as a baseline for harm. There’s no way you can have an actual legal background in PATENT law and still argue your “harm you personally suffer and prove in court” concept. You want the different standard? Make both Still cranky and myself happy with a citation to a court that applies that different standard. BTW – the dependency on who has to show what simply was NOT part of the Supreme’s redirection. Get over it.

  59. 234

    There’s no way you can have an actual legal background and still argue “same right violated = same remedy always” with straight face.

    Sadly, that doesn’t appear to be strictly true.

  60. 233

    The patent right is blind to whether the holder is an NPE or not.

    The right not to be punched in the face is blind to whether the face belongs to a model or a prizefighter or a hermit. And yet, the civil remedy varies depending on the harm you personally suffer and can prove in court.

    There’s no way you can have an actual legal background and still argue “same right violated = same remedy always” with straight face.

  61. 232

    Please read my missive carefully before attacking it.

    I attacked only one thing – your assertion that “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.” Where is the citation that supports this proposition? Or are you withdrawing it?

  62. 231

    I address the “under like circumstances”. I also give citations there. Reasoning cannot be arbitrary and must have some basis in the scope of what is being examined. What is being examined is the patent right, which carries with it no basis of actual practice. The patent right is blind to whether the holder is an NPE or not. To import a distinction when the right does not have that distinciton is arbitrary. This is hardly silly.

    The patent right may be blind to whether the holder is an NPE, but the principles of equity are certainly not so blind.

  63. 230

    Missive??? Something to do with missing the point? Like a ground to air projectile is a hittile (rather than a missile)?

    That lawyers get hold of the wrong end of the stick is nothing special. But, when they continue to assail folks after it has been pointed out, that’s when it gets to be specially unfortunate.

    Cranky, keep posting. My first laugh of the day.

  64. 229

    slightly less cranky,

    I address the “under like circumstances”. I also give citations there. Reasoning cannot be arbitrary and must have some basis in the scope of what is being examined. What is being examined is the patent right, which carries with it no basis of actual practice. The patent right is blind to whether the holder is an NPE or not. To import a distinction when the right does not have that distinciton is arbitrary. This is hardly silly.

    Please read my missive carefully before attacking it.

    As to the stretch – see Section 283, this relief section is granted by legislation, is it not? The citation is not nearly a stretch as you might imagine.

  65. 228

    IANAE, don’t be duplicitous. It is a violation of Equal Protection for you to dispute NAL’s arguments when there are so many other people that are wrong on the Internet.

  66. 227

    NAL,

    Your ignorance and/or denial of what the patent remedy is mars any point that you want to bring to the discussion.

    Re-Read Section 283. The courts of equity are bound to the PREVENTION of the VIOLATION of any RIGHT secured by patent.

    Re-read it yourself. I re-read it (again), and they’re really not bound to anything of the sort.

    “The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.”

    The power to grant an injunction is permissive, the plaintiff must satisfy the principles of equity (the usual test for injunction), and the terms of the injunction are as the court deems reasonable. That’s a far cry from “the successful plaintiff shall get an injunction”.

    NAL, even with your creative reading skills and dubious understanding of basic legal concepts, I fail to see how you managed to convince yourself that section 283 even marginally supports anything you’ve ever said.

  67. 226

    Let’s not be duplicitous and ask for citation, when citation has been provided.

    Nice dodge. Your Truax citation was discussing equitable relief, and equitable relief granted by legislation, at that, so it’s quite a stretch to say that it supports your assertion that “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.” I’m still waiting for that citation, but I’m content to wait until you finish lacing up your track shoes.

    You might also care to notice that the court in Truax was quite careful to qualify its statement by noting that the Equal Protection clause forbids arbitrary distinctions between persons “under like circumstances.” Is the owner of an orchard “under like circumstances” to that of the owner of the factory complex? Maybe, or maybe not, depending on the distinction that the law is drawing and the reason for the distinction.

    Is an NPE “under like circumstances” to a patentee that is producing patented products? Is an NPE who has already licensed several parties “under like circumstances” to an NPE who has not? I think not, but you can argue this point if you like, keeping in mind that rational basis review applies to any distinctions like these. But please don’t base your arguments on silly pronouncements like the one under discussion.

  68. 225

    35 USC 283 is a gem. Thank you NAL for drawing it to my attention.

    It gives a court enjoying the necessary jurisdiction the power to grant injunctive relief “to prevent the violation of any right secured by patent”. Now, the right secured by patent is, for me, the right to exclude. So, if anybody has “violated” the “right to exclude” then it must be the CAFC in the EBay case. (JAOI, are you there?) Does that mean that, under 283, a court with jurisdiction can, at the request of the patent owner, and so long as it is equitable, enjoin the Federal Circuit (tell it not to do it again like it did in EBay)?

    I thought I should look up the UK Statute, Section 60. There it says that you, if you are the patent owner, have the right to petition the court for relief (injunction, damages, account of profits, delivery up and destruction) but the court will decide whether you get the relief you request. Interesting.

  69. 224

    hiding Hindsight
    noxious Noise
    wrecked Willton

    and Dr. Evil, I am your mini-me and always will be.

  70. 223

    NAL, thank you and welcome back. now i can return to the sidelines and stop typing. good luck with the bozos.

  71. 222

    (the ha_te filter nabbed the post)

    Focus people. Let’s focus.

    I know its asking a lot – there’s a lot there, and a lot do not want to acknowledge what is there because it flies in the face of cherished beliefs.

    So put aside the sniping and think about the substance.

    Let’s not ask questions that are already answered. Let’s not be duplicitous and ask for citation, when citation has been provided. Let’s not ignore positive and meaningful comparison points that were previously openly disclaimed. And let’s not ha_te the message because of the messenger.

    I have provided a legal scenario that fits exactly what the Supreme Court DID say (and explicitly distinguishes a minority view in a consent opinion that lacks any force of law from what the Court’s holding actually was) into exactly what the CAFC should have done and exactly what the proper legal focus of what the patent right to exclude is (covering section 154) and the limitation that the courts of equity are prescribed to (covering in section 283).

    Marshall your angst and act like intelligent people.

  72. 219

    Put another way, infringement is the patentee’s cause of action, not the patentee’s harm.

  73. 218

    NAL, you base an entire essay on this one faulty premise: “The injury is the loss of the right to exclude.”

    No, it is not. When a patent is infringed, the patentee does not lose his or her right to exclude. The right is still there; the patentee just has to exercise it. What happens to that right is that it is infringed. That merely means that it is violated, not stolen, removed, or lost.

    A right is an entitlement to use the legal system to address a harm. It is not an object or a state of being. If a right is lost, it is because the legal system says “You’re not allowed to have that anymore.” In the case of patents, that happens when a patent is deemed invalid or unenforceable. It does NOT happen when a patent is deemed infringed.

    When a right is lost, the loss of that right is the harm a plaintiff suffers. When that happens in the patent context, the patentee may have a remedy against his or her prosecuting attorney. However, when a right is infringed, the right is not harmed, especially when one can still exercise it in a court of law.

    When a trespasser is trespassing on a plot of land, the owner of the plot of land loses the ability to use or enjoy the plot of land. That is the harm that serves as the basis for an injunction in the real property context, and the Four Factors (as you titled them above) will bear that out.

    However, when a patent infringer is infringing a patent, the patentee does not lose the ability to practice the invention, and he certainly does not lose the ability to exercise his right to exclude in court. Therefore, the patentee never loses his or her right of exclusivity and cannot use that as a basis for measuring harm. Something else must serve as the basis for measuring harm in order an injunction to square with the principles of equity.

  74. 216

    IANAE,

    Are you that dull that you can’t see that making a big deal out of this only pleases her? She seems to live for your replies in which you sound even more loopy than usual. It’s a game to her to see just how much bending and contorting you will do when you lack an answer.

    Poor 6 hardly ever has anything to say anymore, virtually hogtied and afraid to present the rope that he used to twirl about his daily prowls.

    The way that she toys with poor Malcolm, it just makes your heart ache to see him donning sockpuppet after sockpuppet trying to salve his devastated ego. It was his playground once upon a time.

    And now IANAE froths into an incoherent puddle of blabbering goo.

    NAL’s the conductor on this trainwreck, but she’s wrecking all of her toys. Pretty soon, there will be no one to play with.

  75. 215

    “Still waiting for a citation. Too busy lacing up those track shoes?”

    Give her a break Crankier, she just got back from rehab.

  76. 214

    getting crankier,

    NAL gave you a citation that addressed the exercise of equitable relief. That citation covers your question. See below. Or do you just like repeating yourself?

    “The legislative discretion to grant or withhold equitable relief in any class of cases must, under the equal protection of the laws clause of US Const 14th Amend, be so exercised as not to grant equitable relief to one, and to deny it to others under like circumstances and in the same territorial jurisdiction.”

    Truax v Corrigan, 257 US 312

  77. 213

    It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.

    Still waiting for a citation. Too busy lacing up those track shoes?

  78. 212

    Calm down IANAE, NAL nailed you

    I suppose it’s possible. I hear that sort of thing can be tough to find in a sufficiently large haystack.

  79. 211

    LOL – now who’s reacting in excitement?

    “That explains why you’re dragging the conversation back to realty when we’re supposed to be talking patents.”

    Not sure what you are trying to say in this comeback, if anything at all. Calm down IANAE, NAL nailed you – no big deal. This is the internetz – it will be forgotten tomorrow.

    Here’s an idea – misstate one of NAL’s positions – that always riles her. Say something like she’s proposing a one-size fits all remedy, or insinuate that the Supremes said something other than the Four Factor test must be applied. Get her all worked up – Dennis needs another four page article for his law journal.

    “practicing the invention” – do you really want to serve this softball back to NAL? My grandmother could hit that one out of the park – and she’s dead.

    Criminal law – that’s the ticket! Let’s make trespass a criminal offense. Oh wait – didn’t we comment on that already?

  80. 210

    “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.”

    This is absolutely laughable.

  81. 209

    It is also no surprise to see IANAE engage in misdirection, jumping on minor mistakes of hindsight’s language and avoiding any real discussion of the underlying points – sorry hindsight, that’s IANAE’s way of saying “you got me, I’m wrong, I’ve got nothing else to reply with”.

    Oh, is that what misdirection means? That explains why you’re dragging the conversation back to realty when we’re supposed to be talking patents.

    “The analogy to the deed is a good one because U.S. claims serve to define the outer limits or boundaries of the invention in the same fashion as the description of land in a deed defines the outer limits of the land monopoly.”

    Yes, the analogy is a good one to the extent that both say “here is a thing, don’t use this thing”. The right is similar. That’s wonderful when you’re drafting claims. The analogy is also a remarkably bad one when it comes to damages and remedy, because it’s very easy to infringe almost any patent right in a way that causes the patentee no actual harm, does not hinder his practicing the invention in any way, and that he might not even notice at all. Since we’re talking about remedy here, and nobody disputes the nature of the underlying right, your analogy to a similar right with a completely different remedy structure is classic misdirection.

    If you like analogies to other areas of law so much, how come you haven’t yet noticed that in every other area of the law your remedy depends on what actual or future harm you can prove? Even in criminal law, where every conviction is for a Bad Thing and every criminal act is to be prevented in the future, the sentence for each crime varies at the court’s discretion depending on the severity of the crime, the degree of harm suffered by the victim, and a host of other factors.

    My question to you is the same one the Supremes asked in eBay. Why should patents have a different remedy structure than the rest of the legal world? How can a one-size-fits-all remedy possibly be the right answer?

  82. 208

    It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.

    Absolute nonsense. Please provide a citation in support of this.

  83. 207

    Reinforcing the analogy to trespass of land as previously developed by Ned, hindsight, and NEW B, (and in direct contradiction to IANAE at his Mar 12, 09:54 AM post – why am I not surprised that IANAE plays loose with something that defeats his views – like I haven’t seen THAT before):

    Both trespass of land and trespass of the patent right to exclude are concerned with the right, put colloquially as “Keep out.”

    Both trespass of land and trespass of the patent right to exclude, when violated, are not material to what is on the “land” (the proper focus). In an example provided earlier by NEW B at Mar 12, 08:39 AM (beautifully crafted btw – nice job NEW B), trespass of a factory complex, an orchard, or a vacant lot are all equivalent: trespass of someone else’s “Keep out” area. It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.

    For both trespass of land and trespass of the patent right to exclude, regarding injunction as PREVENTION to trespass, each should apply the Four Factor test in short order. IANAE, your pedantic semantics at trying to avoid the analogy are downright comedic. It is also no surprise to see IANAE engage in misdirection, jumping on minor mistakes of hindsight’s language and avoiding any real discussion of the underlying points – sorry hindsight, that’s IANAE’s way of saying “you got me, I’m wrong, I’ve got nothing else to reply with”.

    I had the opportunity this morning to tutor a new associate in claim drafting. While reviewing the seminal work: Faber on Mechanics of Patent Claim Drafting, I was particularly struck by just how analogous these areas are – specifically Faber’s § 10:8.1
    “The analogy to the deed is a good one because U.S. claims serve to define the outer limits or boundaries of the invention in the same fashion as the description of land in a deed defines the outer limits of the land monopoly.”

  84. 205

    Um, Noise, just because Dennis quotes to himself like this is a law journal does not mean that you actually have to write a full journal article.

  85. 204

    Oh come on, Ned. Rein in that wishful thinking. You cannot be serious when you put forward as proof that Jefferson was dead wrong, that:

    “On that last point — that other nations are a fruitful, etc., as England, well that is demonstrably false. England lead the world in industrial development during the 1700’s and until the early 1900s, had the strongest economy in the world, often double or triple the next closest nation. The nation that overtook her first was America. Next, Germany. Both were nations whose industrial growth was pinioned on a viable patent system.

    So, Jefferson was dead wrong about England at the time…”

    You might just as well say that America and Germany overtook England because:

    1. more of its citizens got refrigerators in their kitchens, or

    2. more white wine was being consumed, or

    3. More people were smoking, or

    4. These countries got more swagger, self-confidence (stop me when I go to far) belligerent, aggressive, war-like.

    What I mean is: just because their industry developed and they got themselves a patent system doesn’t mean the one caused the other.

  86. 203

    Please excuse the length of this post, as the flight has been long and I have been too wired to sleep.

    More than just the Section 8 Patent Clause is invoked under Constitutional concerns in the eBay (and its progeny) line of cases.

    In what it actually held in the Ebay case, the Supreme Court has NOT pronounced that injunctions are not a proper (or even nearly inescapable) conclusion. The narrow eBay holding is that cases involving patents cannot skate by without actually applying the traditional Four Factor test merely because they are associated with patents (yet another anti-brightline CAFC position shot down – more on this p-ssing match later).

    However, the proper focus of the Four Factor test, or more precisely, the IMPROPER focus raises concerns for the rights of Due Process and Equal Protection.

    It is important to recognize that since a patent right to exclude is concerned merely with a negative right, and not with the right to “do” (and “do” includes any actual use of the subject of the patent including licensing, or any other making of money from either the subject of the patent or the patent right itself). Any evaluation of equity related to the harm caused by violation of the patent right to exclude that differentiates on items not covered directly by the actual patent right to exclude are liable to induce inequity, rather than equity.

    “The legislative discretion to grant or withhold equitable relief in any class of cases must, under the equal protection of the laws clause of US Const 14th Amend, be so exercised as not to grant equitable relief to one, and to deny it to others under like circumstances and in the same territorial jurisdiction.”
    Truax v Corrigan, 257 US 312

    The crux of the matter, and the proper focus is on “like circumstances.” Focus must be on the right that has been violated. That right is the patent right to exclude, and such focus necessitates that equitable considerations must be strictly limited to the right in question and its violation. Here, the explicit and unique nature of the patent right, being a negative right to exclude, and not requiring anything further is critical. There is no further governmental classification to the right itself (there are classifications as to Design and Plant patents, but those are outside of the scope of our discussion).

    “The initial discretion to determine what is different and what is the same resides in the [legislature]”
    Plyler v Doe, 457 US 202

    “While reasonable classification is permitted, without doing violence to the equal protection of the laws, such classification must be based upon some real and substantial distinction, bearing a reasonable and just relation to the things in respect to which such classification is imposed”.
    Truax v Corrigan, 257 US 312

    Since the legislature has clearly defined the right (35 USC 154), and has directed the courts latitude in terms of injunction merely in regard to PREVENTING the violation of ANY right secured by patent (35 USC 283), that latitude is constrained by the actual right (as hindsight put it – lots of tails wagging dogs here).

    Losing sight of the proper focus results in some serious bad law. Since the actual patent right as defined by Congress does not make any classification or distinction of the patent right (there is no requirement to practice based on the unique nature of negative rights), based on the patentee status as a practicing entity or not, any such determination outside the right is contrary to the Equal Protection right of the 14th Amendment.

    This is not withstanding, and in fact QUITE CONTRARY to the minority view offered by four Supremes (Kennedy, Stevens, Souter and Breyer) in the eBay v MercExchange case, that such conditions of who holds the patent and what has been done with the subject of the patent contribute to the deliberations of equity. The injury is the loss of the right to exclude. The right carries no guarantee of making money. Considerations as to making money are simply misplaced. Since this minority view offered in the 2nd concurring opinion does not even rise to the level of dicta, such minority viewpoint remains in contradiction to the actual rights stated under the Constitution and under law (exclusivity / the right to exclude), and it should be repeatedly stressed that the nature of the right to exclude actually granted is without regard to the types of external conditions that the minority aim to control, and that the fabric of the right to exclude needs no adaptation based on any purported “rapid technological and legal developments”, since the basis for the patent right has consistently and steadfastly maintained its direct lineage from the Constitution.

    There are extra-legal concerns over items not directly associated with the actual right to exclude, nor incumbent to that right to exclude, being desired to be included in equitable considerations, but for non-law reasons. The minority state that the conditions in the patent world have evolved – but this is a legal non-sequitur, and provides the clearest hint that there is extra-legal considerations being included that should not be. I daresay that the four Supremes show a lack of understanding in that the patent law was robustly written so that the right so given would not depend on any such rapid technological developments.

    The patent right to exclude itself does not change over time as much as these extra non-legal concerns would have one believe. It is not up to the court to differentiate the patent right to exclude by patent holder nor by subject matter within a type of patent – those are purely legislative functions. Such adaptation is simply NOT in the purview of the judiciary, and such selective and baseless control violates the constitutional protection of Equal Protection under the Fourteenth Amendment.

    The courts themselves have HELD this very concept in ruling that business method patents are not categorically rejected (a holding that I would hazard will soon be again repeated in the Bilski opinion) – selective emasculation of the right to exclude is not then a matter to be surreptitiously back-doored into jurisprudence by lesser courts.

    For a district court, then, the application of the considerations of equity need to focus on the true issue at hand – that of the patentee’s right of exclusion being violated, and not on the whim of any particular Judge’s disdainful view of type of patent matter or type of patent holder. Extraneous issues, not involved with the immediate right to exclude that is at hand should not be part of any consideration on equity, even if the plain language of the Four Factors of equity seem on their face to indicate otherwise. To over reach to what is beyond the power of the right to exclude that is violated is to deny equal protection of the actual right to exclude that is involved and subvert the due process rights of the patentee, who holds that very special right to exclude under question.

    Future events that are the sole propriety of the holder of the right to exclude should NOT under any sense of equity be stripped from the patentee and the patentee should NOT have that right to exclude lessoned because of who he is or what he has chosen to do (or not do), given that such secondary considerations are absent from the very right to exclude that has been violated.

    Again, the courts of equity only have latitude in PREVENTING violation of ANY right secured by patent – stripping or reducing the actual right of exclusion is simply NOT PREVENTING. The peculiarity of the holder does not impact whether the right to exclude has been violated, nor if the right to exclude will be violated again – which is the proper focus of the act in question (to PREVENT the violation of the patent right to exclude). One does not prevent a violation by attacking the right being protected.

    Equal Protection under the 14th Amendment demands that any person holding the right to exclude have equal restoration of that right to exclude, and not restoration dependent on issues categorically divorced from the right at hand. Use of the Four Factors cannot serve as a smokescreen violation of other constitutional rights.

    Application of the Four Factors needs to be done, but in the narrowest and strictest sense possible in consideration of the very special right to exclude that has been violated. Equity should be applied in strict measure and kind to exactly what the patent right is. The negative patent right is an animal unto itself and it should surprise no one – even those with anti-patent agendas, that the application of equity should reflect this critical aspect, and not steamroll that right to exclude, causing inequity out of some misguided sense of fairness to thieves who violate the right to exclude. This is not to say that there are reasons to not award injunctions – the constitution lists several which allow the government to intrude based on more universal conditions (as aptly pointed out by JAOI).

    Much like the posts prior that allude to the fact that there is no such thing as thieves’ rights, any purported consideration outside of the actual right that is violated, simply introduces reversible legal error.

    It is indeed a false difficulty that the courts face in trying to uphold or make whole this right to exclude, when the courts ignore the ultimate question at hand, at instead look to apply value judgments on patent holders and/or infringers, and/or particular subject matter of a patent. When the proper focus is brought to bear, the path is simple. The error of the CAFC was in taking the simplicity for granted, and neglecting to address the factors. The price of laziness has indeed been high.

    It is not that the Supreme Court, in ruling that the Four Factors test was applied incorrectly by both the district and the CAFC, ruled that the MERITS of the CAFC holding were incorrect; but rather, in an obvious p-ssing match, the Supremes, once again, marked their territory as the arbiters of finality and put the CAFC on notice that just because the matter involved patents, the CAFC could not take a short cut and not run through a Four Factors analysis.

    A proper analysis of the Four Factors is still VERY different than that provided by the district court. Just as bad facts make bad law, the wrong focus will give the wrong result. The focus is not on the infringer at all, and not on the particular matter covered by the patent right to exclude – rather, the proper focus should be on the actual right to exclude being violated – the patent right itself.

    The district court in incorrectly grabbing the wrong material for equitable consideration, has provided the most inequitable result possible for the true violation of right – the patent right to exclude. Equal protection of this right to exclude should be evident in the enforcement of the actual right to exclude. Section 154 of the Patent Act clearly establishes that the right to exclude is blind to the state of the patentee. The right to exclude calls for no further action from the patentee less payment of maintenance fees. To enforce based on principles not present in the right to exclude necessarily means an unequal application of the law where the right under concern is quiet on those very matters. To subject a right to exclude to different processes and different metrics based on factors purely outside the scope of the actual right to exclude, and then to attempt to call this a proper consideration of the right to exclude and its violation, necessitates violation of due process since the supposed “prevention” itself violates the right to exclude.

    The Four Factors do need to be applied, but their application requires short work. The Supreme’s Actual limited Holding is not that this work need be long, only that it need be taken. It need be taken on the correct issue, with the correct focus.

  87. 202

    “The fact is that one new idea leads to another, that to a third, and so on through a course of time until someone, with whom no one of these ideas was original, combines all together, and produces what is justly called a new invention.”
    – Thomas Jefferson, Director of the 1st U.S. Patent Board –

    shamelessly stolen from the patent prospectors.

    Adds a touch of flavor to Mr. Jefferson, whose predilictions for ironic juxtapositions are well known – even outside of the slave/mistress/freedom for all men circles.

  88. 201

    On that last point — that other nations are a fruitful, etc., as England, well that is demonstrably false. England lead the world in industrial development during the 1700’s and until the early 1900s, had the strongest economy in the world, often double or triple the next closest nation. The nation that overtook her first was America. Next, Germany. Both were nations whose industrial growth was pinioned on a viable patent system.

    So, Jefferson was dead wrong about England at the time. Further, his wrongness was demonstrated again by America and by Germany.

    But, read what you quoted from Jefferson and compared that with what you wrote. You implied that patents “affix property rights to things that are abundant.” This statement is akin to a statement that patents withdraw from the public things they already have in abundance, which is not the way patents work. Patents can only be granted today (as opposed to the patents on, for example, the trade in salt that were granted by the English crown) on things that are new and non obvious. Such things, by definition, cannot exist in abundance.

    So, your statement is about “affixing” property right to things in abundance is misleading as Hades.

  89. 199

    This is your view of patents, it seems. They somehow affix property rights to things that are abundant. Tax on society, and all that.

    I’m not alone. Allow me to quote one of our founding fathers, Thomas Jefferson:

    If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

    That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

    Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.

    –Thomas Jefferson, letter to Isaac McPherson, 13 August 1813
    link to press-pubs.uchicago.edu

  90. 198

    Dear Ned Heller,

    Below is taken from a previous comment of mine. It is directed in part to your concern voiced at 3:24PM (in particular, the last paragraph):

    Here is one relevant part:
    Thus, Congress has absolute Constitutional Power to administer our patent system, and it has rightly or wrongly done so. Further, within the Constitution itself, one finds authority for Congress to exercise its Power to moderate “the exclusive Right” under certain constitutionally certified circumstances:
    (A) To regulate Commerce,
    (B) provide for the common defense, and to
    (C) promote the general Welfare.

    Excerpt:
    The Patent Clause 8, which has never been amended, in Article I, §8, of The Constitution reads:
    “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;”

    Above the red ribbon and gold seal on the cover of every United States patent “granted under the law” by the Director of the USPTO, the following is printed:

    “Therefore, this United States Patent
    Grants to the person(s) having title to this patent THE RIGHT TO EXCLUDE OTHERS FROM MAKING, USING, OFFERING FOR SALE, or selling the invention throughout the United States of America or importing the invention into the United States of America for the term set forth below, subject to the payment of maintenance fees as provided by law.” (my emphasis added)

    Thus, a patent does not grant the patentee the right to make, use or sell his invention. Rather, a patent grants the patentee THE RIGHT TO EXCLUDE EVERYONE ELSE from making, using or selling his invention. Under the Constitution, traditionally, when a District Court found that a patent was valid and was infringed, the Judge granted a patent injunction to stop the infringement. The exposure, for any infringer who did not obey the court injunction order, was contempt.

    Most of the 18 Clauses of Article I, Section 8 of the Constitution allow Congress discretion to set the limits for the Powers given to it. For example, the limits of the following Powers granted to Congress are left to Congress’s discretion: taxes; duties; pay debts; borrow money; regulate commerce; rules for naturalization and bankruptcies; coin money; punishments; rules governing military bodies; and to make laws as necessary to fulfill its “Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department thereof.” (Clause 18).
    However, three Clauses of Article I, Section 8 of the Constitution contain SPECIFIC, ENUMERATED LIMITS. The limits in these three Clauses have never been amended.
    The limit in Clause 17 is: “100”:
    The limit in Clause 12 is: “two”;
    The limit in Clause 8 is: “one”;

    It has never even been suggested that the Framers of the Constitution meant for these three specific limits to be interpreted in any way other than plainly, naturally, by the numbers; and so, historically, until the eBay ruling, they have been interpreted literally.

    Clause 17: “The Congress shall have Power …
    “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, …”
    Washington, D.C. is 68 sq. miles; “ten Miles square” = 10 x 10 = 100 sq. miles.

    Clause 12: “The Congress shall have Power …
    “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;” (emphasis added).
    Congress’s military appropriations (which may include appropriations to pay for patent royalties, discussed below) have never exceeded two years.

    Clause 8: “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;” (emphasis added).
    The “exclusive Right” means the Right to exclude all but “one,” the inventor (please see a patent’s cover).
    Congress, by permissible statute, i.e., 35 USC 261, gave inventors the further right to formally assign their patents.

    The Exclusive Right Yes, But Only for a Limited Time …

    The Framers give Congress the means and the Power UP FRONT to regulate the “exclusive Right.” By including in Clause 8, “securing for limited Times,” Congress can pass patent statutes that grant more or less time to a patent, and, by statute, Congress has done so. And, also by statute, Congress has the Power to create different types of patents with different lifetimes, as they have done for Design Patents. Congress has also created Trademark statutes that live somewhere between Copyrights and Design patents.

    Thus, Congress has absolute Constitutional Power to administer our patent system, and it has rightly or wrongly done so. Further, within the Constitution itself, one finds authority for Congress to exercise its Power to moderate “the exclusive Right” under certain constitutionally certified circumstances:
    (A) To regulate Commerce,
    (B) provide for the common defense, and to
    (C) promote the general Welfare.

    Article I, §8, Clause 3: “The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”
    Thus, in its body of antitrust statutes, Congress imposes certain limits when exercising a patent’s “exclusive Rights” in order to regulate Commerce.

    The Preamble: “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.”

    Eminent domain power, when exercised over a patent’s “exclusive Rights,” for national security and defense, is absolutely consistent with the Preamble, i.e., to “provide for the common defence.” Thus, military appropriations bills in peacetime and wartime routinely include allocations for patent royalties.

    If an independent inventor discovered and patented a vaccine for Anthrax, but refused to license or manufacture it for his anti-American religious reasons, eminent domain could absolutely and reasonably be asserted to “promote the general Welfare.”

  91. 197

    Dear IANAE,

    Re:
    “Because, and this may have escaped your notice too, when you go to court it’s the judge who gets to decide stuff.”

    Juries get to decide stuff, such as past (“back”) damages.

    Importantly, and most relevantly, according to the Framers’ plain, literal writings in the Constitution, nobody but the owner of the patent gets to set the (future) license fee – nobody.

    That is the most inherent & fundamental feature of a United States patent.

    IANAE you too miss the boat. I fear you always will because you are intellectually-blinded to the truth.

  92. 196

    Be that as it may, what I’d like to hear you describe from a logical business perspective, if you can, is
    (i) the devaluation of a patent in those circumstances.

    I don’t understand the question. You want me to describe the devaluation of a patent? Like, you want me to show you a big number and a smaller number and explain to you which one is less?

    Or do you want me to explain from a business perspective how the value of a thing they own can change? Because I’m pretty sure they understand that concept.

    And secondly,
    (ii) I’d like to hear you explain why you think it is more appropriate for a Judge, after an infringement trial, to set the license value on the intellectual property of a patent he doesn’t own, rather than the owner of that patent setting the value.

    What Cranky said. Also, it may have escaped your notice that the judge doesn’t pick a number randomly out of the ether. The judge asks the patentee to tell him what he thinks is the value of a license under the patent. He then uses that information to make a decision. Because, and this may have escaped your notice too, when you go to court it’s the judge who gets to decide stuff.

  93. 195

    I must say, this thread is rooting out the basic philosophical differences between the pro- patent and anti- patent positions.

  94. 194

    Dear Cranky today,

    With all due respect, you miss the boat.

    FYI:
    Typically, “back” damages are set by the Judge who listens to experts from both side as to what is appropriate, for example, what is the comparable “going rate.”

    The issue here is not the back damages; the only issue here is the future license fee.

  95. 193

    “When property right are affixed to things that are abundant….”

    Wow.

    This is your view of patents, it seems. They somehow affix property rights to things that are abundant. Tax on society, and all that.

    Wow.

    Wow! Wow! Wow!

    No comment needed.

  96. 192

    I’d like to hear you explain why you think it is more appropriate for a Judge, after an infringement trial, to set the license value on the intellectual property of a patent he doesn’t own, rather than the owner of that patent setting the value.

    I’ll take a stab at that one. Because something tells me that if we let the patent owner set the rate for BACK royalties, AFTER infringement has been found, that the royalty rate will be say, $1 BILLION DOLLARS per unit.

    Where would you set the rate, JAOI, once the court has found infringement and tells you that you can set the rate at anything you like?

  97. 191

    Dear IANAE,

    How have you been? Let me start by saying I’ve been out of pocket – I’ve only read enough to get the gist of this part of your teaching at 9:54AM:

    Re:
    It [i.e., not practicing] doesn’t make the patent right any less valid. What it does is change the remedy that will make you whole for the infringement.”

    What you say is, of course, Just about right after the faulty USSC eBay decision (that decision, as any constitutional thinking knows, is in tension with the Constitution).

    Be that as it may, what I’d like to hear you describe from a logical business perspective, if you can, is
    (i) the devaluation of a patent in those circumstances.

    And secondly,
    (ii) I’d like to hear you explain why you think it is more appropriate for a Judge, after an infringement trial, to set the license value on the intellectual property of a patent he doesn’t own, rather than the owner of that patent setting the value.

  98. 190

    If I invent the cure for cancer, I may never be able to get an injunction; and as a corollary, I may never ever get what I would consider to be an adequate royalty, as any royalty whatsoever would be considered “unfair” by some.

    That’s okay, Ned. There are quite a few competent scientists out there working to develop treatments for “cancer” who are doing it for reasons that have little or nothing to do with “adequate royalties”.

    Of course, there could be even more of them but everyone knows it’s more important for owners of drug manufacturing businesses to have vacation homes than it is to support government funded research.

  99. 189

    “Government intervention on behalf of “fairness”, in the end, is really unfair to the inventor and discourages rather than incents further invention.”

    The original “government intervention” on behalf of “fairness”, in the end, is way too “fair” to the inventor and discourages people getting your cure for cancer in your little hypothetical.

    So, what’s your point Ned?

  100. 188

    I’m sorry, Willton, but your view of free enterprise is just a bit much. Is title to a piece of property, real or personal, an interference with the free market?

    It is when the thing associated with the property is not scarce. When property rights are affixed to things that are abundant, all they do is act as a tax on society. It’s the main reason why the Patent Act provides for patents to expire after a limited period of time; if they were to be owned in perpetuity, they would create burdens on one’s ability to innovate and generally live in society.

  101. 187

    I’m afraid you are right, and that scares me. If I invent the cure for cancer, I may never be able to get an injunction;

    I think I speak for everyone when I say how incredibly sorry I am that you’ll never be able to stop people from curing cancer.

    Also, it’s really unfortunate that “some countries” don’t care about enforcing your US patent. What’s this world coming to?

  102. 186

    broje, I’m afraid you are right, and that scares me. If I invent the cure for cancer, I may never be able to get an injunction; and as a corollary, I may never ever get what I would consider to be an adequate royalty, as any royalty whatsoever would be considered “unfair” by some. Some countries would simply take the patent, giving me pennies on the dollar, allowing public or private companies to manufacture and sell at a very low price. Soon, a black market would evolve anywhere where royalties were higher.

    We sooner be better off with trade secret protection to the extent that the way a final product was made could be kept secret.

    Government intervention on behalf of “fairness”, in the end, is really unfair to the inventor and discourages rather than incents further invention.

  103. 185

    I’m going to go out on a limb and say that a showing of irreparable harm will result in an injunction a whole lot of the time.

    There you go with your anti-patent bias again.

  104. 184

    Is title to a piece of property, real or personal, an interference with the free market?

    No, title to real or personal property is the very essence of the free market.

    Telling someone that he can’t make certain things with the raw materials to which he holds good title, or use or sell items to which he holds good title, is an interference with the free market.

  105. 183

    I don’t care if he wants an injunction. I don’t care if he wants a pony. I don’t care if he wants sharks with fricking lasers on their foreheads. He’s no worse off, so there’s no need to make him any better off in the interest of rights or fairness or anything.

    Indeed. The patent teabaggers are similar in that respect to the fundys who complain when the government refuses to endorse their bigotry.

    Of course, that’s not a coincidence.

  106. 182

    IANAE, kudos on the Austin Powers reference. :)

    I can’t take credit for it, someone else used it earlier today in another thread.

    For example, what if the Court just thinks the public interest would be disserved by having no competition in the market place? What if it think the public interest would be disserved by preventing any and all software programmers from using an important algorithm that they can’t do without? It almost seems like, the more valuable the patent, the less likely the patentee is to get an injunction.

    Oh, we’re doing the slippery slope thing now?

    I would hope that most reasonable courts (at least on appeal) would stop well short of holding that we should never grant injunctions because patents are anti-competitive and that’s a bad thing. Everybody knows that patents are supposed to be anti-competitive to some extent. What’s more, the patent system is presumptively in the public interest of promoting the useful arts, so you’d have to reach pretty far to say that injunctions for patent infringement are generally not in the public interest.

    I’m going to go out on a limb and say that a showing of irreparable harm will result in an injunction a whole lot of the time.

  107. 181

    I’m sorry, Willton, but your view of free enterprise is just a bit much. Is title to a piece of property, real or personal, an interference with the free market?

  108. 180

    I think some people are forgetting that there are four factors to be weighed in determining whether or not to grant an injunction:

    “According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.”

    It’s short sighted to focus purely on whether the patentee asked for money, or tried to go to market, etc. There are other factors to be considered. In particular, a practicing entity who has never indicated that they would settle for money may not be entitled to an injunction if the public interest would be disserved. In othert words, there is a whole lot of wiggle room in there for doing away with an injunction in almost every case if the court desires. For example, what if the Court just thinks the public interest would be disserved by having no competition in the market place? What if it think the public interest would be disserved by preventing any and all software programmers from using an important algorithm that they can’t do without? It almost seems like, the more valuable the patent, the less likely the patentee is to get an injunction.

  109. 178

    the absurdity of the statement speaks for itself. think about it. i do not know of any single legal property that cannot accommodate the physical presence of more than one person.

    Pick a spot on the ground. Ask someone else to stand there. Can you stand there?

    Someone else’s mere presence on your land necessarily interferes with your ability to occupy that land. Someone cranking out a billion tablets of patented sildenafil doesn’t have any effect on your ability to do the same.

    trespassing is an offense whether you are present or not – whether you are even capable of being present or not – thus there is no dependence on you being at the exact same spot for the offense to occur.

    That’s right. Had you chosen to stand there, which is within your property right, the trespass would have interfered with your ability to stand there. As legal fictions go, that can’t even hold a candle to patent infringement. Even had you chosen to practice your patented invention, which a patent does not give you the right to do, no amount of infringement would have interfered with your ability to do so.

    that trespass is every bit a crime.

    That trespass is a tort. I think your emotions might be getting the better of you.

    and you provide NOTHING to the person who has been violated.

    The person hasn’t been violated. The right has been violated. If the person had been violated, a restraining order would probably be wholly appropriate.

    If you suffer no damage from the violation of your right, other than your hurt feelings because somebody is doing a thing you wish they weren’t doing, why should you be compensated in any way? You should consider yourself lucky that you get money damages in that situation, because even if your patent right existed at common law you wouldn’t get a cent, much less an injunction.

    If you do actually suffer damage, you get money. Quite possibly an injunction. This whole “compulsory license” strawman is only even remotely applicable in the case of a patentee who suffers no damages from the act of infringement. I don’t care if he wants an injunction. I don’t care if he wants a pony. I don’t care if he wants sharks with fricking lasers on their foreheads. He’s no worse off, so there’s no need to make him any better off in the interest of rights or fairness or anything. Anybody who comes to court unable to show that he has been harmed in some way should be sent packing.

    If he still feels “violated”, he can take it up with his therapist.

  110. 177

    Socialism! From each according to his abilities, to each according to his needs. Screw the market.

    Ned, just so you know, a true capitalist would do away with patents and copyrights altogether, as they are government-issued restrictions on the free market. Perhaps you should think about that before pulling out the socialism card.

  111. 176

    Cranky,thanks for joining but you too are missing the point. the point isn’t about money or how much money. money simply isn’t a part of the right that we are aiming for.

    I didn’t say a word about money. I understand exactly the right that you are aiming for. By the way, who is this “we”?

    Now, would you like to argue with points that I actually made?

  112. 175

    Ned, close the gap nothing – we are a far cry from Willtons’ boastful ‘ANAE, don’t even bother. Hindsight’s rant is rife with strawmen, red herrings, and ad hominem attacks. His judgment is clearly clouded by his selfish desires as an independent inventor and his lack of a legal education. It would be more productive to shout at a wall than to engage Hindsight and his delusions. The man cannot see the forest for the trees.”

    Willton says “contesting…would give the patentee a windfall.”

    no you are contesting something that gives the patentee the closest thing possible to his right to exclude (section 154). this is not a windfall, this is something the patentee has already earned. your sense of windfall only comes from your outlandish view of the patent right and the patent bargain – which you still have failed to establish in law.

    IANAE says “You and another person can’t both be on the same piece of land at the same time. “

    the absurdity of the statement speaks for itself. think about it. i do not know of any single legal property that cannot accommodate the physical presence of more than one person.

    “If you lost your patent, no other patent could replace it. That’s very relevant if you’re suing the lawyer whose negligence cost you your patent, but completely irrelevant if you’re suing an infringer. The infringer didn’t take away your patent. He didn’t even take away your ability to make the patented invention.”

    neither of which has anything to do with the patent right, or with the prevention of the violation of that patent right – what are you trying to say? try righting down (pun intended) what the patent right is just so that you understand exactly what the core issue is.

    “Trespassing on your land physically excludes you from that part of your land. It costs you the use of that parcel of land, whether you’re using it or not. It may also damage the land.”

    trespassing is an offense whether you are present or not – whether you are even capable of being present or not – thus there is no dependence on you being at the exact same spot for the offense to occur. you can very easily be on a portion of your land and still be trespassed on another portion – that trespass is every bit a crime. may or may not damage the land is also not at all related to trespass. such would be a different crime. do you have a point here? try, try try to accept the analogy instead of fighting it – you won’t have to look so ridiculous man.

    compare

    “If someone infringes your patent, you have been wronged. Your right has been violated”

    and

    “Put another way, if the status quo ante is you sitting in your basement with a patent in a filing cabinet somewhere, and the current state of affairs is someone else making a product while you sit in your basement with a patent in a filing cabinet somewhere, you’re already whole.”

    now I know that you will point out that one is talking about right and the other is talking about remedy – except that your version of remedy in the second instance still has the right violated in the first instance and you provide NOTHING to the person who has been violated. this just doesn’t wash. this is intellectually dishonest. being made whole would mean that the patentee has the right as given in section 154. that section means that if i am the patentee, i can sit in my basement with my patent in a filing cabinet somewhere and someone else making a product that infringes STILL means that i am violated and trespassed, and that directly means that i am not whole. the land and trespass example is a PERFECT analogy and that is exactly what injunction is for.

    “but only because the statute is so generous as to mandate a royalty in the case where no harm at all has been proven.”

    except the statute does not mandate a royalty. what is in the statute? why, it is an injunction that is in the statute. also, nice throw in of the word “generous”. there is nothing “generous” about the return to status of one’s rights. maybe you are thinking like Willton that people are just darn selfish for wanting to have their right to exclude others and that the court is generous when they give them remedy less than that possible in order to make them whole – but that is quite simply not the simplest and best way to make them whole – given an understanding of exactly what their patent right is – and since you agree with what the patent right is, why do you fight the inevitable logic of what is the best, simplest and most complete return to that right? (i think this is where you post some silly answer that you agree that injunction is possible, BUT…)

    “…where no harm at all has been proven.”

    PREVENTING violation necessarily means that harm is avoided. that’s the point. that’s what is actually said in the statute. now, STOP misrepresenting the law.

    Cranky,

    thanks for joining but you too are missing the point. the point isn’t about money or how much money. money simply isn’t a part of the right that we are aiming for. the point is the fairness of restoring the right to exclude to the person holding that right. that is the patent right and that is the patent bargain. anything less is not fair, because it strictly is possible to achieve the state desired, and by desired I do mean the return of the power of the right that was justly earned – what other sense of fairness is even needed to be considered?

    and don’t tell me that you buy that crap about a thief having rights to continue to steal from you.

  113. 174

    No. His infringement is willful. Damages should be enhanced.

    Agreed. And they probably will be. That’s your legal remedy. If you want a better one, then write your Congressman, as IANAE suggests. Now enough already.

  114. 173

    Cranky today, you got it.

    The problem of injecting “fairness” into the equation is that the infringer would seemingly have the right to willfully infringe if the patent owner is unwilling to grant a license on terms the infringer thinks fair.

    Assume the following: PO wins and is awarded damages based on RR. PO is not satisfied with the RR and does not offer a license at the RR rate.

    Does the infringer have a right to infringe? What if he deposits the RR into an escrow account? Does that make his infringement lawful?

    No. His infringement is willful. Damages should be enhanced. If they are not enhanced, the infringer has, in effect, been granted a compulsory license.

    We can go on and on and on about this, but as Blackstone said, a right without a remedy is no right at all. If the infringer can willfully infringe and, in the end, obtain the same license as those who abide by the law, what we have is a lawless system. In such a environment, we might as well have some bureaucrat decide what a proper royalty is and pay that to the patent owners as we do some copyrights, where the populace at large is taxed to support the patent system. We might even go one step further and simply award inventors a uniform inventor award upon granting his or her patent, as all inventions are, without some market to test there value, equal.

    Socialism! From each according to his abilities, to each according to his needs. Screw the market.

  115. 172

    Willton, why don’t you quote the passage in 284 that supports your view that the court has the power to order the patent owner grant a license to the infringer?

    Section 284 of the Patent Act reads:

    “Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.”

    While not in such terms, Section 284 authorizes a court to award damages to the patentee in the form of a compulsory license (read “reasonable royalty”) if the court deems such license “adequate to compensate for the infringement”.

  116. 171

    allege willful infringement, and move the court for an award of enhanced damages.

    If you could do that, you’d still be better off getting trebles for future infringement at the first trial. No court is going to issue a ruling that keeps the same parties coming back with the same questions.

    Write your Congressman. They’re trying to change the patent statute anyway, so ask them to put in trebles for future infringement.

    Eventually, the courts should say enough is enough, and grant the injunction.

    What makes you think they would do that? Is your harm getting increasingly irreparable? Is that irreparable harm corroborated by your clever strategy of waiting until damages accumulate before going back to court? Do judges normally give you what you want when they get tired of hearing from you?

    Is the legal remedy really sufficient where I, the patent owner, am not willing to grant a license except on terms I, the patent owner, choose?

    The remedy is not legally insufficient merely because the plaintiff would like to have more remedy, any more than the remedy is legally excessive because the defendant wasn’t willing to pay that much.

  117. 170

    Is the legal remedy really sufficient where I, the patent owner, am not willing to grant a license except on terms I, the patent owner, choose?

    This is what it all boils down to, isn’t it? You (and several others) think fairness (equity) is best served by allowing you, the owner of “property” to unilaterally dictate any and all terms for its “use.” Others, including the majority on the Supreme Court, think that fairness (equity) involves several other factors. Fine, we don’t agree on what’s fair. Can we please move on now, or do we really think that it’s possible to come to a consensus on “fairness” here on the Internet?

  118. 169

    Willton, why don’t you quote the passage in 284 that supports your view that the court has the power to order the patent owner grant a license to the infringer?

    IANAE, well, if I am the PO, once the case is over, I again send the infringer a cease and desist letter if his infringement continues. After a period, where the amount of damages justifies the lititgation costs, I haul his rear end back into court, but this time use res judicata to determine the outcome, allege willful infringement, and move the court for an award of enhanced damages. I also move for a preliminary injunction — which will be denied, of course, because as a non practicing patent owner, I have no irreparable harm.

    This procedure can be repeated and repeated and repeated. Eventually, the courts should say enough is enough, and grant the injunction.

    Which is why we must circle back to the original thought? Is the legal remedy really sufficient where I, the patent owner, am not willing to grant a license except on terms I, the patent owner, choose?

  119. 168

    The reason for an injunction in property cases as opposed to general tort cases or breach of contract cases is that the violation continues.

    There has to be some apprehension that the violation will continue, of course. While that’s a necessary condition, it is not a sufficient one.

  120. 167

    But, what in fact happens in these cases is that the court orders a compulsory license. We seem to all agree that this is wrong legally and should be beyond the power of the court.

    Incorrect. A court is well within it’s power under the law to order a compulsory license (or as the statute puts it, a reasonable royalty) for past and future harm. See Section 284 of the Patent Act.

  121. 166

    Willton and IANAE, now we are beginning to close the gap. The reason for an injunction in property cases as opposed to general tort cases or breach of contract cases is that the violation continues. We seem to agree that the infringer has no right to a compulsory license under any legal theory.

    But, what in fact happens in these cases is that the court orders a compulsory license. We seem to all agree that this is wrong legally and should be beyond the power of the court.

  122. 165

    in trespass, there is no loss of the underlying asset, someone is just violating your right to keep them off. This indeed is a very strong analogy to patents.

    Land is a physical thing. You and another person can’t both be on the same piece of land at the same time. Any infringement of your ownership right in land excludes you from that land to some extent. A patent is very much unlike that. No amount of infringement will ever prevent you from practicing your own patent. The only thing it can ever do is reduce your revenue from practicing your patent.

    a patent right is unique – only one patent per that item

    If you lost your patent, no other patent could replace it. That’s very relevant if you’re suing the lawyer whose negligence cost you your patent, but completely irrelevant if you’re suing an infringer. The infringer didn’t take away your patent. He didn’t even take away your ability to make the patented invention.

    just like trespassing on your land doesn’t really cost you anything

    Trespassing on your land physically excludes you from that part of your land. It costs you the use of that parcel of land, whether you’re using it or not. It may also damage the land.

    the patent right is a negative right and simply does not require you to be doing anything to be wronged.

    I’ve never disputed that. If someone infringes your patent, you have been wronged. Your right has been violated, and you have a cause of action against that infringer.

    We part company at the next step. The step that every plaintiff faces. The step when the court says “okay, you’ve been wronged, what do we owe you?” If the violation of your right to exclude harmed nothing but your feelings, you get a royalty – but only because the statute is so generous as to mandate a royalty in the case where no harm at all has been proven.

    Ned: The one will permit the patent owner to sue once again if the trespasser to patent trespasses again — but this time as a willful infringer.

    That’s an excellent argument for allowing higher damages in compensation for future infringement, but it doesn’t speak to the issue of entitlement to an injunction. And why should you have to sue again if you’ve already made your case for infringement? Price that in to the future reasonable royalty.

  123. 164

    Willton and INANE, denying an injunction and ordering a compulsory license are two different things. The one will permit the patent owner to sue once again if the trespasser to patent trespasses again — but this time as a willful infringer.

    This is true. I am not contesting the practical effect of an injunction. What I am contesting is the patentee’s entitlement to an injunction when doing so would give the patentee a windfall.

    But, where in the law of is there any right for an infringer to go into court and obtain a compulsory license?

    There is no such right, just like there is no unqualified right of the patentee to obtain an injunction. And indeed, no one is claiming that such a right of the infringer exists. However, the infringer can argue that the more proper remedy for infringement is a reasonable royalty as opposed to an injunction, and depending on the circumstances, the infringer may be right in that regard.

  124. 163

    Willton and INANE, denying an injunction and ordering a compulsory license are two different things. The one will permit the patent owner to sue once again if the trespasser to patent trespasses again — but this time as a willful infringer.

    But, where in the law of is there any right for an infringer to go into court and obtain a compulsory license?

  125. 162

    IANAE,

    man you know how much I dislike typing, but if you are going to present legal argument in a way a non-lawyer can understand, you need to make certain that the legal argument you are presenting is correct in the first place. there are quite a few items that you are simply wrong about.

    “wikipedia quote was talking about a right to land being violated…the only remedy is usually that you get the land. That specific plot of land, because every piece of land is different. The loss of land is presumptively irreparable harm. But that’s only for land.”

    IANAE – you draw the wrong analogy to land. The quote in wikipedia is not about the loss of land itself, as not every right concerning land has to do with actual loss of the physical property. it is about the trespass against that land. in that context, land and patent are indeed very much similar. in trespass, there is no loss of the underlying asset, someone is just violating your right to keep them off. This indeed is a very strong analogy to patents. no matter how many times you and Willton say otherwise, what you say is just wrong.

    “If someone violates your right to chattel (i.e. “stuff” other than land), you don’t need that chattel back” … They can pay you the market price of the cow and you’re whole. There are exceptions, like if someone stole your unique blue-ribbon state fair champion cow, but you have to prove that exception if you want an injunction to return that particular cow.”

    the analogy to a cow is poor, because a patent right is unique – only one patent per that item – thus, violating that “stuff” cannot be replaced with other “stuff”. you keep on forgetting that the patetn right is not a right to money or to actually making anything tangible. you need to get the patent right correct first. the proof you ask for is a given, considering the “stuff” is patented. given this uniqueness, your analogy to the cow here and later fails udderly (pun intended).

    “Patents… They’re a right to sue someone who does a thing.”

    no, they are not a right to sue somebody. you, like Willton, are confusing an action taken to enforce a right with the right itself. the patent right is the right to exclude. section 154 – read it.

    “A violation of your patent right doesn’t actually cost you anything, unless you are (for example) operating a business and the violation of your patent right interferes with that business. “

    just like trespassing on your land doesn’t really cost you anything – the analogy to injunction is actually strengthened with this point, keeping in mind what the patent right actually is – quite the opposite effect that you may think.

    “Even if you do have a business in Wyoming and someone’s infringing in Nebraska, they’re not necessarily costing you profit, because you can’t “run out” of practicing a patent.”

    the patent right (once again) is not a right to practice anything. do you see why the nature of a patent right being a negative right is so very much a core issue, rather than a red herring or a straw argument?

    “That is the historical legal context in which patent rights exist. It’s not intellectually dishonest to ignore statements about land when discussing patents.” …” There is no valid analogy to land.”

    completely, and utterly false. there is a very real reason why intellectual property uses the word property, much that land is property. it is intellectually dishonest to purposely draw the wrong analogies to fit an agenda based on the philosophical view that patents are “unfair” and the very essence of the right should be somehow determined by just who has the patent and what that person decides to do with that property. it is much more precise to use the land analogies. you don’t have to like it, but don’t tell anyone that it is wrong in a legal sense.

    “When you have no damages, it takes exactly zero remedy to make you whole.”

    again – reference the theory of trespass – someone waking across your property is very much a valid analogy. the fact that your right is damaged without monetary redress speaks more to injunction than you let on, and that is obviously why Willton (not you, unless you are Willton), left out the key section of the statement. Willton has repeatedly shown the tendency to leave out key sections of law that do not support his argument (like section 154). to say this is not intellectually dishonest is itself intellectually dishonest – try that tactic in an actual court room, to the degree and repetitiveness done here and you will be luck only to be sanctioned.

    “When you routinely accept money in exchange for your right, you are saying that money is sufficient compensation for the loss of your right. The court isn’t imposing that on you, you’ve imposed it on yourself. “

    not exactly true and the lie contains enough of the truth to be a damning lie. stemming from your incorrect view of what the patent right is, you compound this by taking away from the only person who can decide what to do with the property the very right that person has. to continue with the trespass analogy, a land owner has the perfect right to let whomever he wants to cross his land and keep out others. the court cannot say that because you let certain people across that you must let anyone across. the decision is the patentee’s and not the courts, and that decision to let certain specific individuals cross in no way detracts from his ability to NOT let others. your logic is simply wrong here.

    reference 35 U.S.C. 271(d) No patent owner otherwise entitled to relief for infringement or contributory infringement of a patent shall be denied relief… by reason of his having done one or more of the following:
    (1) derived revenue from acts which if performed by another without his consent would constitute contributory infringement of the patent;
    (2) licensed or authorized another to perform acts which if performed without his consent would constitute contributory infringement of the patent;
    (3) sought to enforce his patent rights against infringement or contributory infringement;
    (4) refused to license or use any rights to the patent; or
    (5) conditioned the license of any rights to the patent or the sale of the patented product on the acquisition of a license to rights in another patent or purchase of a separate product, unless, in view of the circumstances, the patent owner has market power in the relevant market for the patent or patented product on which the license or sale is conditioned.

    “Put another way, if the status quo ante is you sitting in your basement with a patent in a filing cabinet somewhere, and the current state of affairs is someone else making a product while you sit in your basement with a patent in a filing cabinet somewhere, you’re already whole.”

    completely wrong yet again. the status quo ante is not return to the state where someone is stealing from you, just because you are not practicing the patent. the patent right is a negative right and simply does not require you to be doing anything to be wronged. the analogy of the vacant lot is very much directly on point here. the status quo ante is to return to the state where your right to exclude means that someone else making a product must do so without your stuff. you have the right to exclude them from your stuff. to say that you don’t need a remedy simply ignores what the right is that is being violated.

  126. 161

    Thank you, IANAE. You saved me many keystrokes.

    Oh, and by the way NEW B, I took that quote from the Legal Information Institute of Cornell University Law School’s website. If you had clicked the link I provided, you would have known that. The content of the site has since changed because the site is constantly updated, but at the time, it had the language I quoted regarding injunctions. And yes, Cornell indeed has a law school.

    n that same March 5th post, Willton stated “In my view, unless the patentee is commercializing embodiments of his invention, the patentee is not being harmed by another person doing so. And furthermore, depriving society of the benefits of an invention because an inventor or patentee is being obstinate is not reasonable.” This seems very much like the thief example, where the commercializing by another is like the thief buying lunch. It may be selfish for me to keep my money and not let the thief buy some poor homeless guy a lunch, but it is still against the law to steal from me. No matter how noble the thief is, he is still a thief, and he has no right to steal, or to keep on stealing.

    Your comparison of a patent infringer to a thief who steals money is utter BS, and you should know better. When a thief steals money from someone, the thief takes a scarce resource from that person. When a company infringes a patentee’s patent, the company is not taking a scarce resource from the patentee. Only when the patentee is practicing his invention does the infringing company take a scarce resource from the patentee: market share. If the patentee does not have a market that is being harmed, he has no market share of which he is being deprived, and thus has no equitable reason to be asking for an injunction.

  127. 160

    NEW B: I have been upfront that I am not a lawyer, but it seems that others here do not seem to want to be as upfront or as straightforward, and would rather mock people and talk in lawyer circle talk than answer the questions asked.

    I try to explain things in a way a non-lawyer will understand, but you need to remember that these are fundamentally legal issues, and they can only really be discussed in “lawyer circle talk”. Certain words mean a certain thing in a legal context that they don’t mean in a non-legal context. Look at the arguments with Actual Inventor, all because he doesn’t know how to read the constitution from a legal perspective and he doesn’t know what the phrase “constitutional right” means. If you don’t want to be him, you have to learn and accept what the legal terms mean, and go forward from there.

    Here’s an example:

    NEW B: I think that is is dishonest to leave out the part about the inadequacy of money damages when the wronged person wants a right prevented from being violated.

    Every plaintiff wants to prevent rights from being violated. Always. A little law school experience will tell you that your wikipedia quote was talking about a right to land being violated. Land has a special place in the history of the common law. Land is the archetypal form of property, and rights to land are the archetypal “unique” right for which money is no substitute. When someone interferes with your right to land, the only remedy is usually that you get the land. That specific plot of land, because every piece of land is different. The loss of land is presumptively irreparable harm. But that’s only for land.

    If someone violates your right to chattel (i.e. “stuff” other than land), you don’t need that chattel back, and you won’t get that chattel back. If someone steals your cow, they can buy you some other cow and you’re whole. They can pay you the market price of the cow and you’re whole. There are exceptions, like if someone stole your unique blue-ribbon state fair champion cow, but you have to prove that exception if you want an injunction to return that particular cow.

    Patents aren’t even chattel. They’re not a thing you have. They’re a right to sue someone who does a thing. A violation of your patent right doesn’t actually cost you anything, unless you are (for example) operating a business and the violation of your patent right interferes with that business. Even if you do have a business in Wyoming and someone’s infringing in Nebraska, they’re not necessarily costing you profit, because you can’t “run out” of practicing a patent. There’s only so much meat on a cow, but there’s no limit to how many infringing articles you can make. It’s not even cow-theft, where you’re deprived of a cow that has an ascertainable money value. That’s why, if you want that injunction, you have to prove irreparable harm.

    That is the historical legal context in which patent rights exist. It’s not intellectually dishonest to ignore statements about land when discussing patents. We implicitly understand that the same principles don’t apply. There is no valid analogy to land. I realize you didn’t spend years studying this, but you need to understand and accept it at least a little.

    NEW B: (so IANAE, you can keep your comment about the court deciding to yourself – the court only has to decide to make my whole)

    Yes, that’s what the court decides. The court decides what remedy will be sufficient to make you whole. If someone stole the cow you were about to slaughter, maybe two sides of beef will make you whole. From any cow, not necessarily yours. When your patent is infringed, sure, your right is violated, but it might not actually have cost you anything. That’s why there’s a statutory minimum compensation of a reasonable royalty – because many patentees can’t show any damages at all. When you have no damages, it takes exactly zero remedy to make you whole. When you routinely accept money in exchange for your right, you are saying that money is sufficient compensation for the loss of your right. The court isn’t imposing that on you, you’ve imposed it on yourself. It’s (mostly) not about the infringer’s right to your stuff, it’s about how much remedy it takes to make you whole.

    Put another way, if the status quo ante is you sitting in your basement with a patent in a filing cabinet somewhere, and the current state of affairs is someone else making a product while you sit in your basement with a patent in a filing cabinet somewhere, you’re already whole. You’re no worse off. You don’t need a remedy.

    NEW B: You have been asked a couple of times to show where in the patent act or in the patent bargain how not practicing somehow makes the earned patent right any less valid.

    It doesn’t make the patent right any less valid. What it does is change the remedy that will make you whole for the infringement.

  128. 159

    I have been upfront that I am not a lawyer, but it seems that others here do not seem to want to be as upfront or as straightforward, and would rather mock people and talk in lawyer circle talk than answer the questions asked.

    Willton, you haven’t yet said anything that makes me believe you know what you are talking about. For all the shouting at the wall, red herrings and what not, you don’t seem to answer anything that hindsight from the future asks of you. You keep saying the same thing and you keep saying that you are right.

    Even the thing you keep saying is not convincing.

    Way back on March 5th, at 11:24 AM you said

    “Injunctions are an equitable remedy, and such remedies are supposed to restore the status quo ante, (i.e., make the aggrieved party whole again).”

    Did you take this from wikipedia? Does wikipedia offer a law degree program? At the wikipedia website, the rationale behind injunctions is explained as

    “This injunctive power to restore the status quo ante; that is, to make whole again someone whose rights have been violated, is essential to the concept of fairness (equity).”

    However that wikipedia site continues: “For example, money damages would be of scant benefit to a land owner who wished simply to prevent someone from repeatedly trespassing on his land.”

    I think that is is dishonest to leave out the part about the inadequacy of money damages when the wronged person wants a right prevented from being violated. You don’t appear to be able to be straightforward and you just cherry pick concepts to fit your paternalistic agenda.

    With keeping in mind the difference between right and remedy, I still haven’t seen any offering of a solution that meets the essential concept of fairness in making my right to exclude whole through anything less than injunction. In comparison to the wikipedia example, a patent holder simply has to tell the judge that his right is being trespassed and he wants that trespassing stopped. The patent holder does not have to say anything else about his stuff, or how (or even if) he uses his stuff at all. The analogy to land is that he doesn’t have to tell the judge whether there is a factory on the land, an orchard or a vacant lot. Such things simply do not matter to the sense of equity under consideration for the prevention of the person’s right being violated. All he has to say is that he wants the trespassing stopped. That’s it. There is nothing more essential to the concept of fairness then this. Please, don’t give me any crap about how an infringer has a right to my “stuff”. He has been judged to be infringing which means that he does not have any right at all to my stuff. There is no infringer’s right that comes into the consideration. The right to exclude cannot be made whole if I cannot exclude. The right to exclude is up to me to decide (so IANAE, you can keep your comment about the court deciding to yourself – the court only has to decide to make my whole). The phrase “essential to the concept of fairness” is very compelling to me. The analogy to trespassing seems very appropriate to patents and the desire to prevent someone from trespassing my patent right. I know that IANAE will likely chime in again that the patent holder only wants one thing or another, so the court should decide what the patent holder wants. Can we skip that and just agree that the court should just address the patent right and not what could be done with the patent right? Why should a judge decide to give money, when getting money is not a part of the patent right? Money would not restore the status quo ante.

    In that same March 5th post, Willton stated “In my view, unless the patentee is commercializing embodiments of his invention, the patentee is not being harmed by another person doing so. And furthermore, depriving society of the benefits of an invention because an inventor or patentee is being obstinate is not reasonable.” This seems very much like the thief example, where the commercializing by another is like the thief buying lunch. It may be selfish for me to keep my money and not let the thief buy some poor homeless guy a lunch, but it is still against the law to steal from me. No matter how noble the thief is, he is still a thief, and he has no right to steal, or to keep on stealing.

    It seems that Willton has a bigger problem with the idea of the patent right itself. It took you forever to even acknowledge what that right is and you still think it is unfair, or that having the right to exclude creates an unfair bargaining power, and that you think that I am selfish for wanting to exercise my right to this power to exclude. But you give no reason why this power is unfair other than your opinion that it is unfair. Calling me selfish because I want what’s mine is absolutely ridiculous. Can you be any more ad hominem? Returning me to the status quo ante gives me the right that I have earned and lets me use that right as I see fit. What could be more fair than that? I earned the patent right, why can I not use my right?

    You have been asked a couple of times to show where in the patent act or in the patent bargain how not practicing somehow makes the earned patent right any less valid. There was a post that you ignored that showed that society is not deprived when a patent holder simply wants to use his right to exclude without doing anything at all with the stuff being excluded and that the patent bargain has been met without any further postgrant requirements or actions from the patent holder, and yet you still do not want to make the patent holder whole in the simplest and best way because for whatever reason you just do not think the patent right is fair to begin with. Let’s see a straight forward and honest answer to this concept. That would be a postive discussion for me.

    It seems that you simply do not like patents and will try to circumvent the actual right to exclude that is the sole right of the patent holder (not the right of the court to decide who is excluded and who is not).

  129. 157

    IANAE,

    Very funny link, the “dwell” caption reminds me of what NAL says regarding shields of ignorance. Are you NAL (you never answered my question about being in academia)?

  130. 156

    “without bothering to check if he’s entitled to it.”

    Hmmm, wasn’t this a discussion about the point in time looking forward, rather than looking backward, where the check for entitlement was complete (patent valid, infringer infringing)?

    Seems like the question of “if” was already given as answered.

  131. 154

    IANAE, don’t even bother. Hindsight’s rant is rife with strawmen, red herrings, and ad hominem attacks. His judgment is clearly clouded by his selfish desires as an independent inventor and his lack of a legal education. It would be more productive to shout at a wall than to engage Hindsight and his delusions. The man cannot see the forest for the trees.

  132. 153

    ah, another who believes in honoring the rights of thieves. and compulsory licensing.

    All I did was read the statute. If you think the statute admits of a different interpretation, I’d love to read your explanation.

    the equity in question is equity in preventing violations, NOT equity in remedy for past violations where only money may suffice.

    I have no idea what you’re trying to say there. You probably meant to say it’s “not for future violations where only money may suffice”.

    IANAE, what is your proposed solution for PREVENTING violations,

    An injunction, obviously. Any patentee who can demonstrate entitlement to one should get one, in my humble opinion.

    whatever happened to judicial efficiency?

    You’ve got a point there. Cases would be much quicker if we gave the plaintiff whatever remedy he asked for without bothering to check if he’s entitled to it.

  133. 152

    ah, another who believes in honoring the rights of thieves. and compulsory licensing.

    go figure.

    except – the equity in question is equity in preventing violations, NOT equity in remedy for past violations where only money may suffice. two heads up the horse’s remedy.

    what is the right? how close to that right does an injunction get you? IANAE, what is your proposed solution for PREVENTING violations, and how close to the right does that solution get you? as NEW B says, why do you want to make this more complicated than need be? whatever happened to judicial efficiency?

  134. 151

    the patent right itself is blind to the status of the patentee.

    Indeed it is, but the remedy is not.

    An injunction to prevent future infringement is granted in accordance with the principles of equity, and not in accordance with the principle that the winner automatically gets one.

    The principles of equity with regard to injunctions are well established and well known. The mere fact that the Federal Circuit has been ignoring them for a while makes them no less so.

  135. 150

    Willton,

    i love how you admonish me with your crap about “First of all, no one can be found “guilty” of infringement; one can only be found “liable” for infringement. The patent laws are not criminal statutes.” And then post in response to NEW B “You’re right: we should just give the patentee what he wants in every instance. And while we’re at it, we should just execute anyone who breaks the law. Trying to decide how much jail time a criminal must serve for his crime is just making things more complicated than they have to be.”

    your poetic hyperbole however is crap. no one is asking for anything more than the actual right in question. what the patentee wants is what he deserves – no more, no less. what he deserves is based on patent law and the patent bargain – no more, no less. the patent bargain (try to pay attention) is the right to exclude others in exchange for the knowledge provided in the patent application. in the discussion before us, that application has not only been judged and a patent granted, but has been adjudicated. (NEW B – you did well) what the patentee wants is his right. somehow, you think that right should not be enforced. you think that that right is somehow not fair to anyone who wants to violate that right, or who has violated that right. you think that there is some EXTRA post grant requirement to take some action on the “stuff” in order to preserve the patent right. you have failed to establish any of your basic grounds and assumptions about the patent right and the patent bargain in law. the only law you provide is the section on remedy – and you even misapply that, mixing up remedy for past actions with enforcement to prevent future violations.

    there is nothing positive nor normative about what you post, you have 10% knowledge on remedy and wag the dog with that tail.

    its absolutely hilarious that the non-lawyer NEW B is so much closer to the plain truth when he points out the difference between remedy and PREVENTION in the section you oh so love to quote.

    the patent right itself is blind to the status of the patentee. artificially deciding on the level of prevention based on anything except for the right itself is mere social engineering. you can call this paternalism, you can call it socialism, but either way, it is over-reaching by the courts. NEW B’s simplistic call to simply return the patentee to as close as possible to his given right is amazingly crystal clear in its righteousness.

    you plainly state what you think is righteous: “It’s not fair to infringers (and yes, someone has to speak up for infringers, especially when they innocently infringe)”. except there is no such defense to the violation of a patentee’s patent rights as “innocent infringement”. you may be confusing the triple penalty for knowingly infringing – but innocently infringing is still culpable of violating the patentee’s rights.

    what next? straight up thief rights? a thief robs you and take your money. he is caught and appears before the Judge. he offers the defense that you weren’t using your money and that he used your money to buy a meal (and a few beers) for a homeless man. since the thief better used your money than you did, why should he be punished for stealing your money? in Willton’s world, the judge would then pass an order permitting the thief to CONTINUE to steal your money unless you prove that you are going to use your money in some way to make the world a better place.

    and speaking about ad hominem, you use such loaded words as extort and unequal bargaining power and unfair to the thief, and holding the infringer’s business for ransom, and that evil patentee is only interested in his own selfish interests – when you are forgetting just whose rights have been violated – innocently or not. and why should the patentee not be only caring about his own selfish interest? last i checked, that wasn’t against the law, even if it is against your social re-engineering agenda. the infringer’s business built on stolen “stuff” simply is not justification to keep on stealing. once again your view that it is OK to take something that belongs to someone else seems lost in the mix. you first need to go back and look at what the patent right is and what the patent bargain entails. your whole line of logic falls apart because you start with a false premise, as Ned points out. you so much want to apply your social engineering that you forget just what the patent right is, and you add extra-post grant requirements that you have yet to show a basis for in patent law.

    beside the obvious problem, there is no law that says you have to use your money in any particular way. now compare this with the patent world, where the right of the patent gives the patentee the right to exclude (but not the right to make money or even the right to make the object of the patent – thus the person who mentioned that the negative right was straw is dead wrong). the infringer has been caught stealing from what the patentee has the legal right to. going forward (and stop mixing up remedy with enforcement if you don’t mind), the equivalent of not letting the thief steal your money – the actual enforcement of your right to exclude others – is an injunction.

  136. 149

    Willton, experience has taught us that there are no monopolies created by patents other than in the short term when the patented product is completely new. Morse, for example, tried to get a claim to any way of using electro magnetism for communicating at a distance. He was held to his apparatus and code. Other soon could and some did build telegraphs and later telephones that used different apparatus and different codes.

    (BTW, the patent on the code actually did effectively monopolize telegraphs for a long time.)

    But the bottom line, patents do not give anyone a monopoly on any particular goods and services, as others can and will soon do invent non infringing alternative means for doing the same thing.

    But, back to US history, in the heyday of antitrust, patents were loosely called monopolies by anti-patent bigots and courts actually held that patents conferred monopoly power. Cases like the Motion Picture Patents cases, the IBM-card cases and the Ethyl gasoline cases, gave great weight to the “misuse” of the patents to promote the illegal tying and monopolization that occurred there. We actually had to legislatively reverse these cases so that the mere existence of a patent or its use in tying was not misuse absent independent proof of market power.

  137. 148

    Ned: Wilton, Microsoft has the right to compete, to make its products better, to add to its products good ideas from its competition; but it does not have the right to ignore the patents and copyrights of others or to condition the license of its products on a refusal to deal with its competition.

    What if those patents are not infringed? What if those patents are not valid? Does Microsoft have the right to ignore them? I suppose it would be hard to determine whether a patent is infringed or invalid without a court proceeding, but what would you have Microsoft do in the meantime? Pay a license fee to every patentee who has his hand out?

    I will give you that when Microsoft engages in activities that violate the Sherman Act, it is doing something bad. However, conditioning a license of Microsoft’s products on a refusal to deal with Microsoft’s competition is just another way of describing an exclusive license, which is perfectly legal in this country.

    Microsoft in the recent case involving Word was found to had deliberately infringed the patents of a competitor even while adopting the functionality of their product into Word.

    And for that, Microsoft was enjoined from practicing the patented invention. Why? Because i4i was able to convince the judge that it was being irreparably harmed by Microsoft’s continued infringement. That’s the way it should be. i4i should not get an injunction merely by virtue of the fact that it owns a patent; it should have to show that an injunction is necessary to prevent i4i from being further irreparably harmed. Most NPEs cannot do that, and rightly so.

  138. 147

    Martin, I was suggesting that anyone who views patents as monopolies and not as properties is has a bigoted view. It was this kind of thinking that infected the US for a long time – so much so that we actually had to place into the statute in 1952 that a patent does not per se confer market power. See, e.g., 271(d).

    No, I have a realistic view of patents, especially regarding what they can do. Yes, a patent is indeed a property grant from the government, but that property grant conveys the ability to exercise a monopoly over a certain market for goods or services. While a patent may not be a monopoly as a matter of law, it can give the patentee a de facto monopoly. Again, if a patentee has a patent on a product or service, and a competitor cannot provide the same product or service without infringing the patent, what would you say the patent provides the patentee?

  139. 146

    Martin, I favor a strong US patent system, not just the little guy. I have argued here that the requirement for marking is unfair to the big company. This has nothing to do with the little guy.

  140. 145

    Wilton, Microsoft has the right to compete, to make its products better, to add to its products good ideas from its competition; but it does not have the right to ignore the patents and copyrights of others or to condition the license of its products on a refusal to deal with its competition.

    Microsoft in the recent case involving Word was found to had deliberately infringed the patents of a competitor even while adopting the functionality of their product into Word.

    Microsoft has been adjudge to be an illegal monopoly in that it acquired and maintained its monopoly using unfair practices.

    I deplore the illegal and unfair practices of Microsoft while at the same time recognize it has a right to compete and to improve its products.

  141. 144

    Martin, I was suggesting that anyone who views patents as monopolies and not as properties is has a bigoted view. It was this kind of thinking that infected the US for a long time – so much so that we actually had to place into the statute in 1952 that a patent does not per se confer market power. See, e.g., 271(d).

  142. 143

    “Bigot.”

    Ha ha, now not only do corporations have the same rights as individuals, but so do patents. Ned toils tirelessly for equal rights for poor, oppressed little patents.

  143. 141

    And if one cannot provide the same product or service without infringing (which is more common than I think you’re willing to admit), what would you say the patent provides the patentee?

    As I said before, it is loose thinking like this which is the bane of patent law. It assumes false premised and draws the inevitable nasty conclusions.

    There is nothing false about a patent’s ability to exclude others from the marketplace. Be it narrow or broad, a patent allows a patentee to obtain market exclusivity in a particular market, which is what a monopoly is. Your inability to accept this clouds your judgment.

    I’m not saying that the fact that a patent imparts a monopoly on the patented invention is a bad thing. I am merely calling a spade a spade. And in truth, a truly free market economy does not allow one entity to use the legal system to restrict or limit another’s ability to develop a competing business. That’s why it is called a “free” market.

    Bigot.

    I’m sorry, what?

    Back to Microsoft, I said their business practices were unconscionable. Not providing an injunction allows their unconscionable business practices to occur without any practicable deterrent.

    Why is it considered unconscionable to try and compete in the marketplace? And why is it considered unconscionable for Microsoft to continue to do so when presented with an issued patent that would seemingly appear to cover Microsoft’s products or services? Must Microsoft always stop what it is doing, even if Microsoft deems the patent invalid or not infringed? (I don’t know if you’ve noticed, but the PTO has not been very good at rigorous examination of patent applications as of late.) Must Microsoft always kowtow to every patentee who comes a long and wants a piece of Microsoft’s business?

    Back to the LE, they can get full value from the patent only by threat an injunction. If the infringer has no serious threat of an injunction, he or she has no incentive to take out a license at all. The LE may have to low-ball his offers to get some licensees. But he should not be bound by these low-ball offers to late settlers, particularly those who choose to litigate.

    Then, like I said, the LE should become a PE. If the LE can’t get full value from the patent from its licenses, too bad. It’s not fair to infringers (and yes, someone has to speak up for infringers, especially when they innocently infringe) to give patentees the Sword of Damocles (thanks IANAE) that they may hold over the infringer’s head in order to extort higher license fees, especially when the infringer’s commercial success was generated by the infringer’s efforts in marketing and engendering goodwill with the purchasing public. Patentees should only be allowed to enjoin infringers if they can show that they’ve been irreparably harmed, and if the LE cannot show that, then the LE should not be entitled to an injunction.

    And by the way, alleged infringers have plenty of reasons to take a license before judgment, not the least of which being to avoid the high cost of future litigation.

    Your consistent misunderstanding of the basics of economics, of patent law and of business is remarkable, leading me to believe you either are a socialist or …. Let me stop there just to be civil.

    No, please, continue with the ad hominem attacks. They sure make you look good.

  144. 140

    Wilton, you have a woefully inadequate understanding of what a monopoly is. No patent grants a monopoly on anything. Other are free to provide the same product or service, provided they do not infringe.

    As I said before, it is loose thinking like this which is the bane of patent law. It assumes false premised and draws the inevitable nasty conclusions.

    Bigot.

    Back to Microsoft, I said their business practices were unconscionable. Not providing an injunction allows their unconscionable business practices to occur without any practicable deterrent.

    Back to the LE, they can get full value from the patent only by threat an injunction. If the infringer has no serious threat of an injunction, he or she has no incentive to take out a license at all. The LE may have to low-ball his offers to get some licensees. But he should not be bound by these low-ball offers to late settlers, particularly those who choose to litigate.

    Your consistent misunderstanding of the basics of economics, of patent law and of business is remarkable, leading me to believe you either are a socialist or …. Let me stop there just to be civil.

  145. 139

    This is utterly ridiculous. Secure property rights are critically essential to a free market as they permit investments and the formation of capital. Patents are a form of property, and do not grant anyone a monopoly in the sense that the English crown granted monopolies on trade to certain companies.

    Wilton, your world view is 180% out-of-whack with reality.

    Really? So if a person gets a patent on widgets, does that person not have a limited monopoly on widgets? Is that person not the only source where one can purchase widgets? What is your definition of monopoly?

    Whether the monopoly is broad or narrow in scope, a patent still grants the patentee a monopoly.

    Now back to the injunction. The real vice of no injunction is shown by past actions of the likes of Microsoft, who seems to have a business practice of incorporating into their products the best features of software invented by others. Even when they are appraised that the features they are incorporating are patented, they seem to be unconcerned — almost as if they existed in a world without exclusive IP rights except when it benefits them.

    Then they get to court and lose. They argue that they are entitled to the same license everyone else gets and at the same royalty. If they get this because the company suing them is now an NPE, even though it desired to be in the business, they win big time because the courts have effectively sanctioned their business practices, which by any ethical measure is unconscionable.

    Why is that unconscionable? Why should Microsoft pay a higher royalty than, say, Redhat? Or Corel? Or a startup company? Why should a patentee be able to extort more money from Microsoft than it accepts from the other licensees? Because it has deep pockets? Or is it because Microsoft is better at doing business than the other licensees?

    If the patentee agreed to a lower royalty rate with other licensees, that’s the fault of the patentee for making a bad deal.

    Now a licensing entity, to get full value from its patents, must have a “right” to an injunction, otherwise the powerful can simply ignore the patent knowing that even if sued that they will owe on a going-forward basis the same royalty as paid by everyone else.

    First of all, a licensing entity DOES have a “right” to an injunction. It’s just that said right is qualified. Again, read Section 283 of the Patent Act.

    Second, if a licensing entity wants to get full value from its patents, then it should stop being a licensing entity and start being a practicing entity. Then it will see how valuable the patent is truly is once it actually has to work at producing a product or service that customers like in order to earn money.

  146. 138

    Wilton:

    “‘What the business man wants to do with his right should not be ANY concern whatsoever to the judge. That concern is what I am calling paternalism. There is no place for that in a free market society. There is no place for that in the patent law. None.’

    “Boo-f’ing-hoo. You want to know what else has no place in a free-market society? Patents themselves. Patents are government-granted monopolies, which are antithetical to free market economics. If you want the government to excise itself from the marketplace, then you should be in favor of abolishing patent law. Something tells me that you haven’t thought this out very well.”

    This is utterly ridiculous. Secure property rights are critically essential to a free market as they permit investments and the formation of capital. Patents are a form of property, and do not grant anyone a monopoly in the sense that the English crown granted monopolies on trade to certain companies.

    Wilton, your world view is 180% out-of-whack with reality.

    Now back to the injunction. The real vice of no injunction is shown by past actions of the likes of Microsoft, who seems to have a business practice of incorporating into their products the best features of software invented by others. Even when they are appraised that the features they are incorporating are patented, they seem to be unconcerned — almost as if they existed in a world without exclusive IP rights except when it benefits them.

    Then they get to court and lose. They argue that they are entitled to the same license everyone else gets and at the same royalty. If they get this because the company suing them is now an NPE, even though it desired to be in the business, they win big time because the courts have effectively sanctioned their business practices, which by any ethical measure is unconscionable.

    Now a licensing entity, to get full value from its patents, must have a “right” to an injunction, otherwise the powerful can simply ignore the patent knowing that even if sued that they will owe on a going-forward basis the same royalty as paid by everyone else.

    Fortunately, the Fed. Cir. did grant the injunction in the recent case involving WORD and an NPE. The injunction will allow the NPE to get back into the market, grant others an exclusive license, or grant Microsoft a license on terms it can accept.

  147. 137

    Perhaps you’re right. Unfortunately the only thing he cares about is his own selfish interests. He does not take into consideration the interests of the public in being able to enjoy his invention. Thankfully, the Patent Act did, at least to some extent.

    I look forward to the day Mr. NEW B finds himself on the wrong end of a patent lawsuit after he has created a legitimate and thriving busines and, in doing so, unwittingly stumbles upon a patent owned by an NPE that he infringes. Perhaps then he won’t think that such one-size-fits-all solutions are fair and equitable.

  148. 136

    You’re wasting your time, Wilton. 90% of your discussion of the law is positive, with a little bit of normative discussion thrown in there. NEW B isn’t very interested in what the law actually is; he’s exclusively interested in telling you what he thinks it should be.

  149. 135

    So what? This is no basis for the courts to decide. Let MerExchange decide. As you point out, they would probably decide that way anyway –

    BUT IT WOULD BE THEIR DECISION,

    not a court playing nanny.

    No basis for the courts to decide? Um, then why is MercExchange going to court?

    Because the dispute is placed before the court, it is eminently the court’s decision as to what remedy the aggrieved party is entitled. The Patent Act says as much.

    Holy crap man, you sound like a broken record. It is not up to YOU to decide want the patentee wants. Enforce the right and let the patentee decide. The patentee may want money in one case, and may want to exclude in another. In both cases the decision should be his. Get the F out of the way!

    No it shouldn’t. A patentee who just wants money should not get an injunction so that he can practice extortion. An injuction in this instance gives the patentee unequal bargaining power when the infringer has already spent time and resources developing a business that benefits the public. This is especially unfair when the patentee has sat on his hands and waited for the infringer to do all the work of developing a market for the invention before filing suit.

    And by the way, ordering a reasonable royalty for the patentee IS enforcing the right. If the infringer does not want to pay it, the infringer is free to stop practicing the patented invention. Just because the patentee wanted more money does not mean that the patentee’s rights were not vindicated.

    You make a false argument with the “If you were a judge” hypothetical. The proper argument before the judge would be: I want you to enforce my patent right to exclude whomever I want. Do that and let me go about my business, thank you.

    And such an argument would rightly get laughed out of court without further justification that you are being irreparably harmed.

    What the business man wants to do with his right should not be ANY concern whatsoever to the judge. That concern is what I am calling paternalism. There is no place for that in a free market society. There is no place for that in the patent law. None.

    Boo-f’ing-hoo. You want to know what else has no place in a free-market society? Patents themselves. Patents are government-granted monopolies, which are antithetical to free market economics. If you want the government to excise itself from the marketplace, then you should be in favor of abolishing patent law. Something tells me that you haven’t thought this out very well.

    The judge has every right to be concerned with how a business man uses his monopoly when (1) the monopoly is granted by the government, and (2) the Patent Act gives the judge that discretion.

    No, I am attached to the rights as defined in the patent act and to the best, simplest way of preventing violations of those rights.

    Perhaps you need to read the Patent Act again, because nowhere does the Patent Act define the right to exclude as an unqualified right to obtain an injunction against infringers.

    An automatic injunction is the most ham-fisted way of preventing violations of said rights. It allows the non-practicing patentee to kidnap the infringer’s business for ransom when the patentee had no business that was being harmed by the infringer.

    I am too emotionally attached to bloggers who feel that they must muck things up, make things more complicated than they have to be, feel that they or the courts should be making personal business decisions on behalf of patent holders (no surprise that you feel the way that some paternalistic judges feel – doesn’t make it right), and plainly want to somehow rewrite the patent bargain and steal my rights. Sorry – but that does get me emotional.

    You’re right: we should just give the patentee what he wants in every instance. And while we’re at it, we should just execute anyone who breaks the law. Trying to decide how much jail time a criminal must serve for his crime is just making things more complicated than they have to be.

  150. 134

    Paternalism should be obvious to you. You seem smart – why must you play so dumb?

    ” need ” – who the f are you to determine need?

    “MercExchange basically telling the whole world”
    So what? This is no basis for the courts to decide. Let MerExchange decide. As you point out, they would probably decide that way anyway –

    BUT IT WOULD BE THEIR DECISION,

    not a court playing nanny.

    “What the patentee wants, FOR THE FUTURE, is for the maximum number of people to use his patented technology ”

    Holy crap man, you sound like a broken record. It is not up to YOU to decide want the patentee wants. Enforce the right and let the patentee decide. The patentee may want money in one case, and may want to exclude in another. In both cases the decision should be his. Get the F out of the way!

    You make a false argument with the “If you were a judge” hypothetical. The proper argument before the judge would be: I want you to enforce my patent right to exclude whomever I want. Do that and let me go about my business, thank you.

    What the business man wants to do with his right should not be ANY concern whatsoever to the judge. That concern is what I am calling paternalism. There is no place for that in a free market society. There is no place for that in the patent law. None.

    “emotionally attached to this whole injunction idea”

    No, I am attached to the rights as defined in the patent act and to the best, simplest way of preventing violations of those rights.

    I am too emotionally attached to bloggers who feel that they must muck things up, make things more complicated than they have to be, feel that they or the courts should be making personal business decisions on behalf of patent holders (no surprise that you feel the way that some paternalistic judges feel – doesn’t make it right), and plainly want to somehow rewrite the patent bargain and steal my rights. Sorry – but that does get me emotional.

  151. 133

    You really have to stop being so paternalistic and stop deciding what business makes sense and what business decisions other people must make.

    How am I being paternalistic by MercExchange basically telling the whole world that their technology can be had in exchange for money?

    I think you’re too emotionally attached to this whole injunction idea to see that some businesses really do want everyone using their technology and sending them a check. It’s not paternalistic to give those businesses exactly that.

    You’re also missing the very important point that a great many patentees will (and should) still get injunctions. The ones who need injunctions will get injunctions.

    Once again, the distinction between remedy for past (where an automatic injunction may not make sense before a judge even decides whether the patent is valid and whether the other party is indeed using my stuff, and the enforcement to prevent future occurance seems to be clouded by your answer.

    It’s not clouded at all. It’s crystal clear. What the patentee wants, FOR THE FUTURE, is for the maximum number of people to use his patented technology and send him a check. When the facts bear that out, money is enough to make that patentee whole. It’s not complicated. He wants money, he gets money, problem solved, bring on the next plaintiff.

    Enforcing the patent right means one thing – it is very simple and it does not depend on who owns that patent right and what they want to do with that patent right.

    If you were a judge, and a plaintiff argued before you that “I don’t want him to use my technology in exchange for money, I want an injunction to stop him using my technology so I can let him use my technology in exchange for money”, do you really think you could grant that injunction with a straight face? I couldn’t, and some very important judges agree with me.

  152. 132

    IANAE,

    You really have to stop being so paternalistic and stop deciding what business makes sense and what business decisions other people must make.

    It is not up to you, nor the courts to make business decisions. Let the courts decide that the right should be enforced and get out of the way.

    Once again, the distinction between remedy for past (where an automatic injunction may not make sense before a judge even decides whether the patent is valid and whether the other party is indeed using my stuff, and the enforcement to prevent future occurance seems to be clouded by your answer. Why do you like to make things more complicated than need be?

    Patent rights simply do not come with provisio’s dictating how the rights should be applied based on who happens to own the property. Enforcement does not, nor should it, matter because the right to be inforced is the same.

    I think one of the points that hindsight was hammering Willton on was Willton’s assertion that the patent bargain carried some extra post-grant requirement. Your provisio to wrap patent right enforcement in a similar basis of who the owner is likewise seems to require some extra post-grant judgement. I cannot see how there is any sense of equity in making such a distinction. Enforcing the patent right means one thing – it is very simple and it does not depend on who owns that patent right and what they want to do with that patent right.

  153. 131

    Yes, I do get that there is a distinction between remedy and right, but I find the argument that the right to exclude is most closely approximated by what an injunction accomplishes very compelling. At least that argument make the most real world sense.

    It is a compelling argument. It’s the reason an injunction is provided for in the statute, and it’s the reason a whole lot of patentees should still be getting injunctions when they win on the merits.

    There’s a difference between an injunction being a mostly-appropriate remedy for patent infringement, which probably nobody disputes, and injunction being an automatic remedy.

    An injunction is appropriate when the patentee wishes to exclude others from his market (e.g. pharmaceuticals, where market exclusivity is business critical; Microsoft, who makes a business model of exclusivity), and it gives him exactly what he wants his patent to do. This will usually be the case if you’re selling something and you’d rather not have the market competition.

    An injunction is NOT appropriate when the patentee wants everyone to use his invention and pay him royalties, because while it may approximate his patent right it does not directly further his business purpose. All it does is give him a sword of Damocles to hold over the infringer’s head until he pays a higher price than what would normally be a fair market royalty. This patentee does not want to exclude others from his market, and he’s only asking for it so he can resell it for profit.

    MercExchange is the perfect example of this. It was well documented that they were more than willing to let others use their technology in exchange for money. By their own tacit admission, money was compensation enough. Money makes them whole. They were just angling for a little more.

  154. 130

    Does allowing someone to violate a right and later pay for it, or allowing someone to continue to violate a right for money (compulsory licensing) PREVENT a violation of the right?

  155. 129

    It seems that the patent act is a bit light on enforcement.

    Part III Patents and Protection of Patent Rights Chapters 28 and 29 address what to do up to the point that infringement is adjudicated (I hope that is the right use) and remedy for past actions is being decided.

    Most of what is in these chapters defines what makes an infringer, what is infringement, and possible defense to infringement, and are backward looking. The Damages section clearly only address the past as well.

    It seems that the only section that speaks to the future is injunction, which in its rather non-highly qualified entirety is:

    35 U.S.C. 283 Injunction.

    The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.

    It seems that the only option the patent act positively gives to “preventing” violation is injunction, although the use of the permissive “may” seems to allow some other form of prevention.

    I do not find the arguments presented so far that the patent right does not equal injunction all that compelling. Yes, I do get that there is a distinction between remedy and right, but I find the argument that the right to exclude is most closely approximated by what an injunction accomplishes very compelling. At least that argument make the most real world sense.

    Given that Willton doesn’t seem to want to answer hindsight about what a patent right is (Section 154), and Hobbes and IANAE do not address how else a court can make the patent holder and his rights whole (the principle of equity is best served by the closest approximation of the actual right – and that right is the right to exclude). What other option to make whole is better than injunction? What do the other patent experts out there think?

    In a preventitive state, the other options of remedy (for past actions) simply pale in making the patent holder whole. Trying to shoe horn backward looking remedial actions into a forward looking action to prevent something from happening is just way too complicated and just way too inefficient. It seems that people want to make all of this much more complicated than is necessary.

    It does not seem contested that the patent right is a right to exclude (at least I haven’t seen the argument yet). Any argument that section 283 is complicated or highly qualified seem to ignore that the best, quickest and most sure way of making the patent holder whole is injunction.

    If you do not meet the patent holder on his terms, I do not see how the sense of equity favors forcing the patent holder to anything less than his rights.

    There may be a better way to approximate those rights and make the patent holder whole, and the statute allows this possibility with its permissive “may”, but I have not seen anything here that is a better alternative than injunction.

  156. 126

    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.”).

  157. 125

    a lot of tails wagging dogs and people inventing law by inserting material not present in the patent law that i provided.

    The law that you provided does not speak to what a patentee or a court can do when the determination is made that a patent has been infringed. As such, it is utterly unhelpful in this discussion. Law that governs the prosecution end of things is not very helpful in determining what can be done post-grant. If you went to law school, I imagine you would have recognized this.

    Willton, it is your turn to provide the location in the patent statute the requirements for post-grant activities a patent holder must do to return his rights to the status as i have shown, exclusivity, prior to someone being found guilty of infringing his patent, and enforcing those rights marching into the future.

    First of all, no one can be found “guilty” of infringement; one can only be found “liable” for infringement. The patent laws are not criminal statutes.

    Second, again, read Section 283 of the Patent Act. In order to enjoin infringers from infringing, a patentee must show the court that an injunction would be justified under the principles of equity and that the terms of such an injunction would be reasonable. And a court is not going to allow a patentee who sat on his hands to completely destroy a competitor’s legitimate business that benefits the public because said legitimate business infringed a patent. That would not be the equitable thing to do.

    the fact that “not one bit of the statutory law that you quote speaks to what a patent does or how it is used.” is exactly my point – patent law is about negtive rights – not positive actions. why do you seem to have a hard time grasping this?

    Because it does not support the position you hold. Nothing you quoted describes how to enforce one’s patent. All you quoted was law directed to the legislative power of Congress (Article I, Section 8, Clause 8 of the Constitution); what the word “patentee” means in the Patent Act (Section 100); how the Patent Office determines when to grant a patent (Section 131); and what a patent should contain (Section 134). If all that you quoted was the entirety of patent law, then obtaining a patent would be utterly worthless because it would provide no mechanism for enforcing any sort of right that the patent imparts.

    If you want to enforce your patent, guess what? You have to take positive action! That’s what filing a lawsuit is: positive action. And thankfully, Section 281 of the Patent Act describes how one takes positive action to enforce one’s patent (civil action for infringement). And after that section, there’s a whole host of statutes that inform a patentee to what remedies he is entitled in case his patent is infringed. And not one of those sections states that a patentee has an unqualified right to an injunction for infringement of his patent.

    What you seem to fail to understand is that while a patent grants the patentee a right of exclusivity, it does not give the patentee carte blanche to make others conform to a certain conduct. A patent’s right of exclusivity has limits, and those limits are specifically spelled out in the Patent Act. If you don’t like it, talk to your Congressman.

  158. 124

    “If a right to exclude meant an automatic injunction, the statute wouldn’t need to mention injunctions at all under remedies, and in particular wouldn’t need to mention limited access to injunction (according to the principles of equity, rather than automatic).”

    i am not so sure this is true.

    the point in the law where remedy is mentioned has to do with proceedings in court prior to a final holding on validity and infringement, and then, with damages already done to that point – the future past as it were – that the only thing you can do is provide money as restitution. the fact that section 283 is limited, does not work in reverse to limit the overarching rights under patent law.

    there is a clear separation between remedy and enforcement – the dividing line between marching forward with the right of exclusivity that makes the patent holder whole, and the point that the actions are done and complete. IANAE gets so close when he states that there is a difference between right and remedy before Willton crashes that party with his a right is only as good as the remedy line.

    we still haven’t gotten Willton to recognize just what a patent right is yet. the right to exclude others is meticulously absent in Willton’s discussion of exclusive addressed to Ping. perhaps because once the recognition of what a patent right is dawns on him, the fact that this exclusivity is what the patent holder is entitled to blows his position out of the water.

  159. 123

    a lot of tails wagging dogs and people inventing law by inserting material not present in the patent law that i provided.

    Willton, it is your turn to provide the location in the patent statute the requirements for post-grant activities a patent holder must do to return his rights to the status as i have shown, exclusivity, prior to someone being found guilty of infringing his patent, and enforcing those rights marching into the future.

    the fact that “not one bit of the statutory law that you quote speaks to what a patent does or how it is used.” is exactly my point – patent law is about negtive rights – not positive actions. why do you seem to have a hard time grasping this?

  160. 122

    Big infringers out there will make sure you lose money by offering infringing products (packaged with lots of other goodies) for less money or even for free until you go bankrupt…

    Which is grounds for an antitrust suit alleging predatory pricing, assuming you can prove the facts that consitute predatory pricing.

    But in any case, IANAE is right: that’s irreparable harm, which you can nip in the bud if you file suit quickly and ask for a preliminary injunction. In that instance, you aren’t just sitting on your hands waiting for someone to infringe your patent so that you can leverage a license fee from it; you’re actually doing something.

  161. 121

    Big infringers out there will make sure you lose money by offering infringing products (packaged with lots of other goodies) for less money or even for free until you go bankrupt…

    Great, that’s irreparable harm. Unless it already happened, in which case (1) you should have asked for a preliminary injunction in addition to your permanent one, and (2) all the court can do at this point is give you money, because the damage is done and you won’t be harmed any further in the future.

    It’s not irreparable harm to wish you had more than $25 million.

  162. 120

    “I’m not sure wasting money counts as commercial activity. Maybe on Wall Street. In real life you probably have to have a currently or imminently operating business. That sells things”

    You can always sell something to somebody for close to nothing and continue to “sell” (give away) and lose your money until you run out of money and have to close your shop

    Big infringers out there will make sure you lose money by offering infringing products (packaged with lots of other goodies) for less money or even for free until you go bankrupt…

    This IS real life, my friend

    The one you are talking about isn’t

  163. 119

    Wasn’t MercXchange patent exclusively licensed to ubid.com ?

    Non-exclusively apparently, since they offered to license the technology to eBay. Also notable is that they didn’t ask eBay to stop, but instead asked eBay for money. They only became interested in injunctions when they got to court.

    Lack of commericial activity you say ?

    Lack of commercial activity the judge says. All they did was license their patents to everyone, and the judge said pretty much what I’ve been saying all along: “MercExchange has followed a consistent course of seeking to maximize the money it can obtain from licensing its patents to market participants allegedly utilizing such patents; a substantial damages award against eBay, apparently the primary infringer on MercExchange’s ‘265 patent, will accomplish precisely such goal.”

    How much money do I have to raise and waste competing with corporate bullies to qualify for sufficient commercial activity ?

    I’m not sure wasting money counts as commercial activity. Maybe on Wall Street. In real life you probably have to have a currently or imminently operating business. That sells things. Or at least a licensing program with a goal of continuing to develop your technology, instead of merely griefing everyone who is already selling something.

    Okay, it’s a pretty fine distinction. I don’t think that judge was ever going to let MercExchange get away with an injunction it only ever wanted as a bargaining tool. He mostly focused on MercExchange’s willingness to let anybody use its stuff for money, with only one footnote about MercExchange’s mom doing the same.

  164. 118

    “Partly because he never wanted to stop eBay or anybody else from using the technology in the first place”

    Wasn’t MercXchange patent exclusively licensed to ubid.com ?

    Lack of commericial activity you say ?

    AS far as I remember he was talking abot 10 mil raised from investors and then wasted

    is this commercial activity or what ?

    How much money do I have to raise and waste competing with corporate bullies to qualify for sufficient commercial activity ?
    Will any sane investor give me any money if it’s an uphill battle with uncertain rights and uncertain outcome ?

  165. 117

    So why didn’t Tom Woolston get an injunction?

    Partly because he got stuck with the same judge who denied him an injunction the first time.

    Partly because the court found “a lack of commercial activity in practicing the patents”.

    Partly because he never wanted to stop eBay or anybody else from using the technology in the first place, he only wanted money from them, and was consistently able to assign a dollar value to the fact of other people practicing his patent.

  166. 116

    “If you can show a bona fide attempt to start your own business selling your patented invention, you should be very likely to get an injunction.”

    So why didn’t Tom Woolston get an injunction?

  167. 115

    If you are 800-pound gorilla monopoly with the market cornered then you get your injunction, but if you are a pre-product upstart or individual then forget about it !

    I don’t know where you people get your wacky paranoid ideas that only multibillion-dollar companies get injunctions. If your job is inventing stuff and selling stuff, you will probably get an injunction. If your job is buying patents to license them out to people who have been making stuff for years, you will probably get cash.

    How can you raise any money and start making your patented invention and be profitable at it if everybody else and his brother starts infringing on your patent from the moment your patent app is published ?

    If you can show a bona fide attempt to start your own business selling your patented invention, you should be very likely to get an injunction.

  168. 114

    If a “right to exclude” is supposed to be congruent with an unqualified right to an injunction, then I’d like to see some language that says so.

    If a right to exclude meant an automatic injunction, the statute wouldn’t need to mention injunctions at all under remedies, and in particular wouldn’t need to mention limited access to injunction (according to the principles of equity, rather than automatic).

    I understand how an exclusive right sounds like an injunction to people who haven’t been to law school, but that’s not what those words meant to the people who put them in the constitution and in the statute, and it’s not what those words mean to the judges who apply the statute.

  169. 113

    “Patents do allow patentees to obtain injunctions against infringers, just not all the time and not in every circumstance”

    Bravo, Willton !!!

    You nailed it on the head !!!

    If you are 800-pound gorilla monopoly with the market cornered then you get your injunction, but if you are a pre-product upstart or individual then forget about it !

    One question arizes though:
    How can you raise any money and start making your patented invention and be profitable at it if everybody else and his brother starts infringing on your patent from the moment your patent app is published ?

    What are your grades in law school ?

    You seem to be right material to become a SCOTUS justice

  170. 112

    If a “right to exclude” is supposed to be congruent with an unqualified right to an injunction, then I’d like to see some language that says so. Thus far, you have not provided any such statutory language.

    Indeed, the statutory language of Section 283 speaks to a highly qualified “right” to an injunction. Appeals to the statute to find the desired “exclusive right = unqualified right to exclude = automatic injuction” are clearly unavailing. Likewise, since Section 283 clearly mandates the use of the principles of equity, the circumstances surrounding the request for injunction, such as whether the patentee practices its invention, are clearly relevant.

    None of this says that eBay is constitutional, but it’s a waste of time to look to the statute to prove that injunctions should be automatic or that a patentee’s situation is irrelevant. eBay is certainly consistent with the statute.

  171. 111

    Hindsight, you lay out a lot of statutory law that speaks to who is entitled to a patent and what it should have, but not one bit of the statutory law that you quote speaks to what a patent does or how it is used. If a “right to exclude” is supposed to be congruent with an unqualified right to an injunction, then I’d like to see some language that says so. Thus far, you have not provided any such statutory language.

    To Ping, an exclusive right means that only one person or entity owns the right. However, that does not mean that one has the unqualified right to obtain an injunction from the court for violation of that right.

    Patents do allow patentees to obtain injunctions against infringers, just not all the time and not in every circumstance. My guess is that if any of you did any litigation or studying of the law of remedies, you would know that. Alas, it appears that a majority of the vocal posters on this blog see things only through the narrow frame of prosecution.

  172. 110

    Why does “exclusive” not equate to “right to injunction”?

    There’s no such thing as “right to injunction”. Injunction isn’t a right, it’s a remedy.

    To quote the Supreme Court in eBay, “the creation of a right is distinct from the provision of remedies for violations of that right.”

    Granted, I don’t know for sure that those guys are all lawyers, but they seem to have the last word in most legal arguments.

  173. 108

    Hang on a minute, let me go consult Actual Inventor’s team of Constitutional scholars about this.

  174. 106

    Willton is correct:
    “My position is what the law says. A right is only as good as the remedy to which it is entitled.”

    IANAE is correct:
    All remedy comes down to money.

    Does it really surprise anyone that justice is bought and sold? Does it really surprise anyone that he who has the gold makes the rules?

    This is the land like any other land that if you have enough money you can buy any right, or pay any remedy to ignore anyone else’s rights. The rest is just window dressings.

    That’s the game we play every day.

  175. 105

    “exclusive” from the Constitution does not equate to “right to injunction” hindsight, aka noise.

  176. 104

    at the pain of turning this thread into yet another constitutional debate, (trust me folks it is not my intention of going there)

    lets look at the rights for exclusivity:

    at the top – the Constitution:

    Article I, Section 8, Clause 8 of the United States Constitution:

    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.

    What was your definition of exclusive again?

    next up:

    35 U.S.C. 100(d):The word “patentee” includes not only the patentee to whom the patent was issued but also the successors in title to the patentee.

    that means NPE = non-NPE at a more fundamental level of law than the remedy section.

    let’s throw in :

    35 U.S.C. 131 Examination of application.
    The Director shall cause an examination to be made of the application and the alleged new invention; and if on such examination it appears that the applicant is entitled to a patent under the law, the Director shall issue a patent therefor.

    since this is the pre-grant area of law that you fail to include in your so-called grounding when you repeatedly forget to do something – thats right you forget to take your head out of the remedy horse and ground your view of that something extra needing to be done after grant to maintain the same rights.

    no, your position is not grounded in law. the sliver of your position dealing with remedy for past wrongs is grounded in law. remedy is the wrong vehicle for enforcement of rights moving forward.

    and lets not forget:

    35 U.S.C. 154(a)(1) Every patent shall contain
    a short title of the invention and a grant to the patentee, his heirs or assigns, of the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States, and, if the invention is a process, of the right to exclude others from using, offering for sale or selling throughout the United States, or importing into the United States, products made by that process, referring to the specification for the particulars thereof.

    right to exclude others pretty much says it all. and you know what? there is no mention of the need for the patent holder to make anything.

    imagine that.

    what was your definition of exclusive again?

  177. 103

    and clearly your head is stuck up in the proverbial horse of remedy.

    or do you think this discussion is only and exclusively (pun intended) about the remedy determination for past wrongs? you ask me to show you something about infringers, but the discussion is large than that. it seems that you cannot say anything except – remedy, remedy, remedy. you adroitly do not answer any question about rights except the rather weak “I don’t think the rights should be any different”. saying that and then going on as if you didn’t say it. show me the magic Willton. tell me about these rights that are the same but different, especially different post-grant depending on who the patent holder is.

    “then I don’t see the fair or equitable reason why the patentee should be allowed to prevent the invention from ever being practiced during the patent term.” – its called the patent right of exclusivity – look it up sometime. nowhere will you see an asterisk saying that the patent right is contingent on the holder’s status. you eant to see where a patent holder has the right of exclusivity – look for it. if you open your eyes, you may actually find it. you certainly wont find it looking in the horse you are stuck in.

  178. 102

    putting it directly – what rights do you think a freshly minted patent has, minus exclusivity? why do you think that those rights should be any different after someone wrongs the patent holder? how is equity served by changing what those rights are after someone wrongs the patent holder and then even basing that change on who happens to be holding the patent rights at the time? somehow, you think invoking equity makes the patent right flexible in a post-grant environment. that is simply a wrong view.

    I don’t think the rights should be any different, but just like in every other area of law, I do think that the remedy available for infringement should depend on the circumstances.

    A patent gives a patentee the exclusive right to practice an invention. But if the patentee is not practicing or licensing the invention, then I don’t see the fair or equitable reason why the patentee should be allowed to prevent the invention from ever being practiced during the patent term. A reasonable royalty is more than enough to satisfy the patent rights of a non-practicing entity; anything more would give the patentee a disproportionate benefit compared to the infringer’s burden.

    i am interested in how you think remedy as you apply the law changes the negative rights of a patent into positive action requirements, post grant even, in order to maintain the rights already granted? that is some magic trick.

    Clearly you have never taken a course in remedies.

  179. 101

    now i know that you are not a lawyer. you are misreading what the law says, painting the entire right with a section paintbrush.
    before you point, once again, to section 283, you need to recognize the limitation that section has on speaking to the underlying right – that section is not speaking to enforcement of the original right. remedy for past actions that cannot be changed is one thing – enforcement of patent rights is another. you fail to show how returning to the original right is accomplished, because you ignore the original right and think that the remedy section alone allows you to trim that right.

    Then feel free to point to the section in the Patent Act that gives the patentee the unqualified right to obtain an injunction against an alleged infringer. If I’m so wrong, you should be able to point to where your view is supported by the law.

  180. 100

    now i know that you are not a lawyer. you are misreading what the law says, painting the entire right with a section paintbrush.
    before you point, once again, to section 283, you need to recognize the limitation that section has on speaking to the underlying right – that section is not speaking to enforcement of the original right. remedy for past actions that cannot be changed is one thing – enforcement of patent rights is another. you fail to show how returning to the original right is accomplished, because you ignore the original right and think that the remedy section alone allows you to trim that right.

    “A right is only as good as the remedy to which it is entitled.”

    there is an important word that you gloss over, bub. entitled – the whole point of patent law is that a patent entitles the owner to exclusivity, clearly you have lost sight of this.

    if your statement concerning ‘only as good as’ was true, then the patent would be printed with that statement. it is not. perhaps you should read what is actually printed on a patent. perhaps you have never seen a patent. if you are applying a remedy that does not give what the patent holder is entitled to, clearly it is the remedy that is lacking. your tail is wagging your dog.

    putting it directly – what rights do you think a freshly minted patent has, minus exclusivity? why do you think that those rights should be any different after someone wrongs the patent holder? how is equity served by changing what those rights are after someone wrongs the patent holder and then even basing that change on who happens to be holding the patent rights at the time? somehow, you think invoking equity makes the patent right flexible in a post-grant environment. that is simply a wrong view.

    i am interested in how you think remedy as you apply the law changes the negative rights of a patent into positive action requirements, post grant even, in order to maintain the rights already granted? that is some magic trick.

    putting it just as directly, you fail to show how you then require new action from a post-grant patent holder who has been wronged – that he must now do something extra in order to re-gather the original rights. that is not equity by any lawful definition. and there is no section of law you can point to defining what these new post-grant requirements are. clearly you are making this up. your position is as ethereal as the requirements of the post-grant-reinstatement-of-original-rights law you conjure.

  181. 99

    Hindsight: you are basing your view on what the patent bargain is on the small section of the act dealing with remedy, a mere subset? you ignore what is actually said about rights and jump to equity? you have got to be kidding. my god i hope that you are not a lawyer.

    That small section of the Patent Act governs injunctions. If you, as a patentee, want to enjoin a defendant from infringing, you have to obtain it through that small section. If you find that unfair, petition your Congressman.

    your position is worthless as you ignore rights completely.

    My position is what the law says. A right is only as good as the remedy to which it is entitled.

  182. 98

    There seems to be a small problem in that Willton would read the law to take away a patentee’s rights (or at least create more post-grant requirements that change a patentee’s rights) for ‘equitable’ purposes when those rights are violated by an infringer.

  183. 97

    you are basing your view on what the patent bargain is on the small section of the act dealing with remedy, a mere subset? you ignore what is actually said about rights and jump to equity? you have got to be kidding. my god i hope that you are not a lawyer.

    step one: “upon deciding that the plaintiff’s rights are being” know what the rights are.

    your position is worthless as you ignore rights completely.

  184. 96

    n order to induce this sharing (and it is this sharing that is the aim of promoting the arts), the patent law specifically and unequivically gives to the inventor the exclusive rights to that “keep out” zone.

    That’s it – there is no exchange of money or guaranteed profits, and likewise, no further requirements to make or use. There is no post-grant requirement for further promotion.

    Where are you grounding the additional policy argument that additional activity after patent grant is necessary to enjoy what is given in the patent grant? In light of the benefits already present in the system, on what basis are you demanding more of the patent holder – after patent grant – in order for him to maintain his rights?

    I’m basing it on the Patent Act itself. Yes, the Patent Act does provide rights to a patent holder once an applicant discloses and distinctly claims his invention, so long as it is useful, novel, and non-obvious. However, the Patent Act did not dispense with the usual rules and principles of equity. A mere look at Section 283 of the Patent Act (which governs injunctions) evinces that fact.

    Have a read:
    link to topics.law.cornell.edu

    “Injunctive relief is a discretionary power of the court in which the court, upon deciding that the plaintiff’s rights are being violated, balances the irreparablility of injuries and inadequacy of damages if an injunction were not granted against the damages that granting an injunction would cause.

    If the patentee is not practicing his invention, then the only reasonable purpose for suing the infringer is to procure a license from the infringer. Thus, it makes no sense to enjoin the infringer so that the patentee can extort a bigger license fee.

  185. 95

    broje And that is why portayal of NPEs as greedy trolls who just want to hold markets for ransome is so unfair. It’s hardly ever the case.

    Hmm. I’m sure there’s some data on the number of suits filed by patent holding companies on an annual basis. What number of suits would qualify as “hardly ever”?

  186. 94

    Willton,

    You seem to think that there is some requirement for activity after the patent grant to ensure that society is not deprived of something.

    I would like to understand why you think this way. What is your understanding of the Quid pro Quo of the patent deal?

    As I understand it, society benefits in at least two ways without depriving the patent holder of his exclusive rights in the intervening patent term.

    1) Society benefits from the initial disclosure.

    Not only is the ground around the “keep out” zone spelled out in the claims and specification, this material provides a roadmap for others to engage in creative efforts to work around this zone, thus adding to the art.

    2) Society benefits after the patent term.

    Since no patent is forever, all of the material in the “keep out” zone becomes the common property of man after the patent term expires.

    In order to induce this sharing (and it is this sharing that is the aim of promoting the arts), the patent law specifically and unequivically gives to the inventor the exclusive rights to that “keep out” zone.

    That’s it – there is no exchange of money or guaranteed profits, and likewise, no further requirements to make or use. There is no post-grant requirement for further promotion.

    Where are you grounding the additional policy argument that additional activity after patent grant is necessary to enjoy what is given in the patent grant? In light of the benefits already present in the system, on what basis are you demanding more of the patent holder – after patent grant – in order for him to maintain his rights?

    If indeed your policy argument has a basis in law, where is that basis? If there is no basis in law and if this is merely something that you think is a good idea, then you need to be more explicit with people who have limited understanding of law such as NEW B. Confusing your ideas with actual law does a disservice both to the law and to your ideas.

  187. 93

    Wilton, I did read what you said, and even in the context of an NPE, depriving one infringer of the right to use the invention hardly has anything to do with depriving SOCIETY of the invention.

    No, but if the NPE were to deprive ALL infringers of the right to use and licensed NO ONE to use the invention, that DOES IN FACT deprive SOCIETY of the invention.

    And honestly, when was the last time an NPE only went after one infringer when there were multiple known infringers in the marketplace?

  188. 92

    broje: But, if I remember correctly, Merc xchange allegedly had a website practicing its invention, and went out of business, before suing Ebay. Based on that, I think you need to adjust your definition of what an NPE is. It’s not intent of the patentee, or even whether the patentee ever practiced their invention. Apparently, it’s whether the patentee is actually practicing the invention at the time the injunction is to be granted. I’m thinking that the important factors here are that there are no potential future lost profits and that the potential detriment to the public could be great.

    That’s an interesting perspective. I would tend to agree that it comes down to the present and future intent of the patentee. What happened in the past can only be compensated in money.

    We also get too caught up in the terms NPE and patent troll. Sometimes we use them interchangeably when we shouldn’t, and sometimes we use one term or the other to distinguish the two.

    This is more complex than simply whether the patentee makes a competing product. An inventor-patentee who immediately approaches licensees upon receiving his ribbon copy is not a practicing entity, but he is also not a patent troll. He has contributed his invention to society, and now demands his due. He is trying to make a business of his patent in perhaps the only way he can afford, and we should not deny him a remedy if it would seriously harm his business prospects. The Supremes said it was okay for universities to do it, so why not individuals? Treat him as a practicing entity.

    broje: Would shutting down all the blackberries at the Pentagon be more appropriate if the patentee makes a competing product?

    Maybe. It might be necessary to save the patentee’s own business, and the Pentagon would have the patentee as an alternative service provider. Presumably a sensible judge would allow enough time to switch over to the new system. That’s why injunctions are decided on a case-by-case basis, and shouldn’t be reduced to a simplistic question of whether the patentee is selling something.

    Willton: If the patentee never wanted his invention to be practiced, why did he apply for the patent?

    Why did he even invent it? It can only be in the rare pathological case that someone invents a technology only to deprive the world of using what the world didn’t know existed before. It’s almost as if people are contriving bizarro-world hypothetical inventors in a feeble effort to argue the law toward their own financial interests.

    Ned: Wilton, I did read what you said, and even in the context of an NPE, depriving one infringer of the right to use the invention hardly has anything to do with depriving SOCIETY of the invention.

    If a patentee wants someone held accountable for infringement, would he not want everyone held accountable for that infringement? Or is this one of those rare NPEs who has a particular desire to deprive one defendant of his invention at all costs, and lets everybody else use the invention? Patent trolls in particular want everyone paying them royalties. They typically want as many licensees as possible, at as high a royalty rate as possible, same as any other company that sells any other product or service. If they took all those other infringers to court at the same time, they’d be seeking an injunction against every last one of them. That’s how they make money.

  189. 91

    Wilton, I did read what you said, and even in the context of an NPE, depriving one infringer of the right to use the invention hardly has anything to do with depriving SOCIETY of the invention.

    It is just THIS kind of loose, absurd thinking that pollutes the argument and biases congress into supporting the pirates/500 pound guerillas/illegal monopolists who are doing everything in their power to strip inventors of any effective remedy in court.

  190. 90

    Poster Willton, I may not be a lawyer, but I know enough about patents to know that your view does not correctly state what the patent bargain is. Many of my comments to poster IANAE apply to what you post. There is absolutely no requirement in a patent that the holder of the patent must take an active role in any way in practicing his stuff. There is nothing in public policy that even suggests this.

    There’s also nothing in the law that says that a patentee is entitled to an injunction against all users, no matter what the surrounding circumstances are. Feel free to read Section 283 of the Patent Act if you don’t believe me.

    The public policy of what the public gains is already attained by the disclosure. The public has already gained by the sharing of the knowledge that the inventor had to do to get the patent. In seventeen years, the public has unlimited use to that knowledge.

    And in the meantime, if the patentee does not want his invention practiced, even by himself, you think that it’s fair for the public to be wholly deprived of that invention? If the patentee never wanted his invention to be practiced, why did he apply for the patent?

    A patent is supposed to impart market exclusivity, not total exclusivity. The drafters of the Patent Act did not do so with the intention of giving inventors the power to create black holes in the marketplace.

    Once the patent is obtained, the inventor is then rewarded. For that short period of time, those seventeen years, the reward is his to do with as he pleases, including selling it to someone else or doing absolutely nothing with it.

    And if he does absolutely nothing with it, he is not entitled to prevent others from doing something with it. Again, read Section 283 of the Patent Act.

    Your view of required commercialization is not a real requirement under the law, nor is your view of what anyone else can do with their property any basis for “reasonable”.

    You’re right: it’s not a real requirement under the law. But then, neither is an injunction as a remedy for infringement. An injunction is only ordered if the injunction is justified by the facts and “such terms as the court deems reasonable.”

    It just isn’t any of your business what I do with my stuff, and what I do, as long as it is legal, is as reasonable as I say it is. It is not up to a judge to force a patent holder to do something with his stuff.

    You’re right: it’s not up to a judge to force a patent holder to do something with his stuff. But it is up to a judge to enforce the patent, and it is up to the judge to determine to what compensation the patent holder is rightly entitled. And if a judge notes that you have not done anything with your patent stuff, he can rightly deduce that granting an injunction would unjustly reward you for sitting on your hands, and he can therefore fashion proper compensation to you without causing the market for your patented invention to grind to a screeching halt.

    And a judge certainly does not have to listen to what a litigant believes is reasonable, especially if that litigant’s definition of reasonableness is wholly contrary to what is generally accepted as reasonable.

    You can do whatever you want with it when it becomes the publics stuff in seventeen years. Someone remind me that this is the United States still.

    Appeals to patriotism are not logical arguments for why you should get what you want.

    Poster WIllton, you also use a fancy term “restore the status quo ante”. I put to you- how much closer to that status quo ante when enforcing (just to be clear that I am not talking about past action that cannot be controlled) a patent holders rights of exclusion can it be to prohibit the continued action of violating that right?

    If the patentee was not commercializing a product prior to the infringement, he does not have a market that is being harmed by an infringer producing and marketing an infringing product. Therefore, if the patentee is granted an injunction by the courts, the patentee becomes better off than he was before.

  191. 89

    But whose to say an NPE did not want to practice the invention, but just can’t afford to enter that market?

    If the movie is accurate, Kearns actually acquired a warehouse as a manufacturing facility and ordered manufacturing equipment, which was deleivered and set up in preparation for manufacturing the product. But the fact is, he never manufactured it or sold it to the public. I guess he did offer to sell it, if the movie is accurate. Is that the distinction in your mind?

    But, if I remember correctly, Merc xchange allegedly had a website practicing its invention, and went out of business, before suing Ebay. Based on that, I think you need to adjust your definition of what an NPE is. It’s not intent of the patentee, or even whether the patentee ever practiced their invention. Apparently, it’s whether the patentee is actually practicing the invention at the time the injunction is to be granted. I’m thinking that the important factors here are that there are no potential future lost profits and that the potential detriment to the public could be great.

    And that is why portayal of NPEs as greedy trolls who just want to hold markets for ransome is so unfair. It’s hardly ever the case. But at the same time, the prospect of millions of blackberries suddenly not working seems like a threat to national security or something, and points out the kind of situation that should prompt us to admit that an injunction is not appropriate in every circumstance. But why should it matter, then, whether the patentee is or is not an NPE? Would shutting down all the blackberries at the Pentagon be more appropriate if the patentee makes a competing product?

  192. 88

    presume, assume, it does not matter. It is not up to you to decide.

    Let the market be – let the patent holder decide.

    McDonalds and selling food – a somewhat more related analogy would be franchise rights of having no other McDonalds open up within a certain distince of your franchise. Then you do have competing interests of the major corp wanting more franchises in a given area than each franchise – in essence, your example falls apart. And to be certain, contracts and real estate are limited analogies because of the differences between those and the fact that a patent is something else. A patent is a right to exclude. This property of exclusion is the power of the patent. If you are going to come up with examples to show the prinicples that you want to show, can you come up with examples that include this key difference?

    I’ll take then that you don’t mind getting punched in the face repeatedly.

  193. 87

    He was an NPE who refused to license, was he not?

    I can’t speak to the factual accuracy of the movie, but if he wanted to manufacture and sell the wipers himself, he was not an NPE.

    One way or another, I presume he must have wanted the technology to be used on cars.

  194. 86

    I can think of one example in which the NPE patentee did not want to license.

    Did you ever see the movie, “Flash of Genius?” It’s based on the true story of the inventor of the intermittent windshield wiper, Bob Kearns. According to the movie, he wanted to manufacture and sell the wipers. However, Ford offered to license or buy the patent, and he refused. Then, Ford supposedly agreed to let him supply their wipers, but demanded a working model of the invention (which had still not published ’cause it was the good ‘ol days). Then they allegedly canceled the contract, which put the inventor out of business. Next thing you know, they have intermittent wipers on their automobiles. Took that guy 20 years to get it through court so he could get paid.

    He was an NPE who refused to license, was he not?

    But then, the wikipedia entry says he was trying to get them to license it. Does anyone know which is the case?

    link to en.wikipedia.org

  195. 85

    NPE’s may want licenses, but they may not

    They do. They all do. It’s their business model. Saying NPEs may or may not want licenses is like saying that restaurants may or may not want to sell food.

    If McDonald’s wanted a court to order you not to eat, just so they could charge you $50 for a quarter pounder, does that sound like fair market value to you? Is McDonald’s in the business of preventing people from eating? Does you think McDonald’s really wants that injunction, or are they just leveraging it to extort more money for something they were going to sell you anyway?

    That’s why MercExchange doesn’t get an injunction. They only want it so they can squeeze more money out of a deal.

    Just give me my rights!

    You have your rights. If someone violates your rights, they’ll send you a check.

  196. 84

    Here is a question. If a patentee does not make the product themsleves, but they exclusively license the patent to someone else under a contract in which they promise to enforce the patent against others on behalf of the licensee, then are they still an NPE?

    Assuming that the answer is no, what if they license non-exclusively to one entity under contractual terms that they will not license to another entity except for a higher royalty, and that they will enforce tha patent against non-licensees on behalf of the licensee? At some point, the royalty becomes so haigh that no future licensees can be added. They get defacto excluded, and the set of licenses becomes, in effect, an exclusive license shared by a few licensees. The amount of the royalty paid by the latest of those licensees is also only reasonable if no additional licensees are added. In that case, does allowing a mandatory license make sense? If mandatory licenses are allowed in that case, doesn’t it make it hard for latecomers to place an appropriate value on the license they will be taking?

  197. 83

    Punching in the face is a better analogy (tort?).

    You mention a restraining order. In other words, if the transgressor continues to transgress, further action and penalties are involved – including forcing the transgressor to keep his distance from the stuff. Further violations remove this person from society.

    Apply this to patents and the patent right of excusion – further violations result in increased penalties including forced separation from the stuff and even further transgressions gets the transgressor locked up.

  198. 82

    that s a good moniker Wilton… I mean moonie, Cakes in the Rain. You’ll never have that recipe again. It was a bad recipe anyway. You forgot the baking powder. I did that once. My son was so angry at me for not letting him take the Banana Bread to School that day. He would have been the only one to enter. So sad. But still it would have been a bad win. And I told him so. but now I can really use that lesson. I’d rather win good.

  199. 81

    Remedy-remedy-remedy – poster IANAE, you sound like a broken record. You also sound like you haven’t read a word of what I am saying in regards to remedy versus enforcement. Remedy is fine for that portion of past actions that require remedy because there is nothing you can do about it. It is a completely different matter about moving forward. Contracts and real property can only go so far in comparisons because the differences between what a patent is, or should be, and what these other things are, are critically different in enforcement. A patent, plain and simple says stay out, this is my stuff. You can have this in seventeen years, but until then only I get to decide.

    I have agreed that considerations for remedy are proper to figure out the past action value of damage, and that judicial reckoning of value makes sense there. But I strongly disagree with what you are trying to say when remedy is not an issue, when enforcement and returning the patentee to the state that he was in before the transgressor transgressed is the issue. Injunction may be a possible action in remedy and this would apply in the time frame before the court decides whether the transgressor was guilty and the patent valid. That is not the injunction that I am talking about.

    I think it amazing that lawyers think that the patent law requires such things and that patent lawyers will argue out of both sides of their mouths. By this I mean poster IANAE responds to poster Willton “What the patentee does with it afterward is his business (literally),” but then poster IANAE goes on to preach what the patent law “really says” meaning what he thinks it says, and that ‘NPEs want licenses” and “The purpose of a patent to make you money however you can make it, to reward you economically for disclosing your invention.”

    Instead of simply reading what the actual given rights are, you lawyers make this stuff up. Just give me my rights! I don’t know why it is so hard for you to understand – it is not up to you or the court to decide what a patent holder wants. The point of remedy is past – enforcement is the point in question. Enforce the rights of the patent and get out of the way of the market.

    The statement “Even the patent grant itself is not really intended to exclude other people from practicing your invention.” Is unbelievable nonsense. I cannot believe that a lawyer actually wrote that.

    NPE’s may want licenses, but they may not – it is up to them, not you and not the nanny state to decide. Money is not the only motivator, and in the part that it is, you acknowledge that “however you can make it” applies, but then turn around and out of the other side of your mouth say that it is improper to use the leverage of exclusion – given as a fundamental right of the patent – to its effect as I, the owner of the right see fit to use it. Believe me, if I can use my patent rights to the full effect of excluding who I want, this will directly impact other potential licensors. If you force me to license, I lose a critical ability to set terms in negotiations – I have been hamstrung by a court making a decision that has nothing to do with remedy and everything to do with my ongoing business (I am talking post-damage determination for actions past).

    You say “Some patentees use the exclusivity to grab a whole market for themselves, others license the technology out. If you’re doing neither of those things, you’re missing the point of owning a patent, despite what 35 USC technically says your rights are.”

    No – I am doing what is technically said, not what some lawyer on a blog thinks I should do, and you are missing the point that my business decisions are my own and should not be dictated to me by you or by the courts. Again, get out of the way of the market. A patent’s purpose is not to tell what the patent holder should do with his quid – that is the very definition of paternalism, and that is not needed, wanted, desired, or necessary by law.

    Poster Willton, I may not be a lawyer, but I know enough about patents to know that your view does not correctly state what the patent bargain is. Many of my comments to poster IANAE apply to what you post. There is absolutely no requirement in a patent that the holder of the patent must take an active role in any way in practicing his stuff. There is nothing in public policy that even suggests this. The public policy of what the public gains is already attained by the disclosure. The public has already gained by the sharing of the knowledge that the inventor had to do to get the patent. In seventeen years, the public has unlimited use to that knowledge. There is nothing more. Once the patent is obtained, the inventor is then rewarded. For that short period of time, those seventeen years, the reward is his to do with as he pleases, including selling it to someone else or doing absolutely nothing with it. Your view of required commercialization is not a real requirement under the law, nor is your view of what anyone else can do with their property any basis for “reasonable”. It just isn’t any of your business what I do with my stuff, and what I do, as long as it is legal, is as reasonable as I say it is. It is not up to a judge to force a patent holder to do something with his stuff. You can do whatever you want with it when it becomes the publics stuff in seventeen years. Someone remind me that this is the United States still.

    Poster WIllton, you also use a fancy term “restore the status quo ante”. I put to you- how much closer to that status quo ante when enforcing (just to be clear that I am not talking about past action that cannot be controlled) a patent holders rights of exclusion can it be to prohibit the continued action of violating that right? I’m pretty sure that the rights spelled out in a patent do not call out for either the requirement to commercialize, nor the requirement to have a forced license at any rate – at least none of the patents I have say that. Do your patents say something different?

  200. 79

    JV: So why award any damages at all?

    Sorry, I should have used the term “irreparably harmed.”

    Ned Heller: Wilton, an injunction does not deprive society of the invention- it simply deprives the infringer the right to use the invention. The two are NOT the same thing. They are not even remotely close.

    You did not read what I wrote. My point was framed in the context of the patentee being a NPE. If the patentee does not practice the invention, then enjoining anyone else from doing so does deprive society of the invention. In essence, it would be as if the invention never existed.

    Sarah: That’s another sick Statement! Your saying you can just take what doesn’t belong to you because he or she hasn’t practiced it? Okay you have decided to go on Vacation. A bum moves into your Home. He eats all your food. Filthies your house. And his dog uses your floor as his yard. And then he also breaks your Televsion. Tuff Tootties. You weren’t there. So because you weren’t in your house using it,he has no Liabilty. Sick!

    You apparently have never heard of the law of adverse possession. But in any event, see IANAE’s comments.

    And by the way, Sarah, I would not be calling anyone a baboon if I wrote like you did in your past 3 posts. People in glass houses should not throw stones.

  201. 77

    IANAE, What is wrong with the parties negotiating the royalty rate?

    Ask the two parties who are standing before a judge instead of negotiating a royalty rate.

  202. 74

    sarah’s working hard to fill in the stinky hole that NAL usually fills.

    Good luck, sarah.

  203. 73

    If someone is making your product? Then they thought it was worth stealing! So if it was worth stealing. Tt is also worth paying a license to the Patentee to make it.

    I’m glad we could agree on that.

  204. 72

    mooney ie. you, is a babboon. You ie. mooney, is a Rooster crowing to his flock of forty. The only difference between the two of you. Is one is banging his chest making no sense. and the other nonsense.

  205. 71

    It cost money to get the Patent. It cost time! It cost a stroke of Genius.
    I locked my door.
    You are mixing apples with oranges. The result is the same. you own the house. You own the rights to the Patent.You are just fluffernutting. If someone is making your product? Then they thought it was worth stealing! So if it was worth stealing. Tt is also worth paying a license to the Patentee to make it. So quit your fluff. And pay for the right to make and sell! obfuscation

  206. 70

    IANAE really really likes compulsory licensing.

    When the patentee’s sole reason for existence is to license out patents, I am very much in favor of a license as an appropriate remedy for infringement.

    Why is it not normal to you that a person going to court and seeking a judicial remedy should have to explain his entitlement to it?

  207. 69

    in the real property law injunction like relief is much more common.

    Each piece of real property is typically considered unique. Personal property can generally be adequately replaced by different personal property. Intellectual property is inexhaustible – an unlimited number of people can practice a patent without affecting anybody else’s ability to practice it.

    There’s also the whole historical thing where realty was the only important kind of property back when these rules were being made.

    Okay you have decided to go on Vacation. A bum moves into your Home.

    Houses are different. If there’s someone else in the house you can’t live there at the same time. He’ll probably break stuff or whatever. You’ll come back to a house in a different condition. That’s why you lock the front door to assert your exclusive property right. It’s not a right two people can meaningfully exercise at the same time. Someone else has deprived you of your right, and the only meaningful remedy is to make them stop.

    Infringing a patent doesn’t diminish the patent itself in any way. Your damages are for your deprivation of royalties or loss of sales or whatever else you can show that you personally suffered, but throughout all of this the patent itself remains unchanged and you remain able to practice the claimed invention. All it costs you is money, and the injunction generally turns on whether or not it’s a finite or ascertainable amount of money.

  208. 68

    IANAE really really likes compulsory licensing. There is one no other explanation to his tonedeafness on this topic.

  209. 67

    That’s another sick Statement! Your saying you can just take what doesn’t belong to you because he or she hasn’t practiced it? Okay you have decided to go on Vacation. A bum moves into your Home. He eats all your food. Filthies your house. And his dog uses your floor as his yard. And then he also breaks your Televsion. Tuff Tootties. You weren’t there. So because you weren’t in your house using it,he has no Liabilty. Sick!

  210. 66

    Wilton, an injunction does not deprive society of the invention- it simply deprives the infringer the right to use the invention. The two are NOT the same thing. They are not even remotely close.

  211. 65

    “unless the patentee is commercializing embodiments of his invention, the patentee is not being harmed by another person doing so”

    So why award any damages at all?

  212. 64

    Lets just say eBay= Hardly no taxes for each State YET!
    Falsely marked and advertised as the real thing products!
    Need i say the packaging/mailing companys at the head of the line in Congress!
    And lots of scum bags scre*ing anyone they can with marketing schemes to boot!And pleny of people not going back a second time to eBay because of most of the above,
    Lets turn this around and act like the free and law abiding people we are
    eBay collects the taxes for each State.
    eBay not only discourages fakes but reports them. Thereby helping the lawyers and the government who go after the bad guys.
    Charging a bigger tariff or Fee to countrys outside the US. And Visa Versa.Thereby bringing back the people that find eBay repulsive and not worht a second look because they prey on the money they can make instead of keeping people safe. Now what is that going to take. And everybody worthy of the rules Prospers. Now how easy is that? And how easy is it for congress to do that?

  213. 63

    “I wanted to point to an area of law that ordinary people are involved with”

    People are invovled with contract law and real property law. In one area injunction like relief is rare, in the real property law injunction like relief is much more common.

  214. 62

    My comment was that the policy behind contract *remedies* encourages breaking the contract when it is beneficially for *one party* to do so. We seem to agree on that.

    We do agree on that, but that’s not what I’m talking about. If you contract with a guy to paint your house, but he decides he’d rather be watching TV that day, the court won’t order him to paint your house.

    The courts may tacitly be taking into account economic efficiency when considering injunctions, especially when they use the word “troll”, but the real consideration should be whether this is a remedy the plaintiff really needs. It’s the same consideration when the plaintiff asks for a sum of money – he needs to show that he’s entitled to that sum.

    But we do have enhanced (up to treble) damages under patent law which suggests to me that the policies behind patent law and contract law are quite different.

    There’s no reason why there couldn’t be treble damages for willful breach of contract, but I agree with you that they are not provided. Clearly there’s a punitive aspect to patent damages that is absent in contract law, but contract law also gives the parties a chance to negotiate penalties for breach in a way that is unavailable to a patentee dealing with an unlicensed infringer.

    It wasn’t a perfect analogy to begin with. I wanted to point to an area of law that ordinary people are involved with and can sort of understand, where a party assumed an obligation and breached it – which to me makes them look more “guilty” than skirting a statutory obligation. My general point is that injunctions are not a go-to remedy in most areas of law, no matter how bad the “bad guy” looks, and all eBay did was re-align patent infringement with the rest of the common law world in that respect.

  215. 61

    New B, society is not advanced if nothing comes of your disclosure. If you disclose your invention, obtain a patent, and then prevent that invention from being used by the public, society gains very little benefit from your disclosure.

    While I also agree with the laws of economics and free market pricing, I also know that your discussion of market value lacked any consideration for a very big topic in economics: externalities. If a NPE is able to obtain an injunction, you may think that’s great, as it allows market forces to determine what a fair price is for using the patented technology. But what you don’t consider is that while you and the infringer are haggling over price, the public is unduly deprived of the benefit of that invention because you are not contributing to its use. That does not further public policy, and courts should be allowed to recognize that when deciding what is just compensation for your invention.

    The Patent Act’s injunction statute (i.e., 35 USC 283) states that a court may grant an injunction to protect a patentee’s rights “in accordance with the principles of equity” and “on such terms as the court deems reasonable.” Injunctions are an equitable remedy, and such remedies are supposed to restore the status quo ante, (i.e., make the aggrieved party whole again). In my view, unless the patentee is commercializing embodiments of his invention, the patentee is not being harmed by another person doing so. And furthermore, depriving society of the benefits of an invention because an inventor or patentee is being obstinate is not reasonable.

  216. 60

    “Breach of contract is a discouraged activity.”

    My comment was that the policy behind contract *remedies* encourages breaking the contract when it is beneficially for *one party* to do so. We seem to agree on that.

    Given that policy, when a contract is broken, the proper thing to do is to give the innocent part the money that he would have been made under the contract. Under contract law, the court doesn’t even bother policing efficiency.

    It wouldn’t make sense to have treble damages in contract law and such damages are not allowed based even on a deliberate breach.

    But we do have enhanced (up to treble) damages under patent law which suggests to me that the policies behind patent law and contract law are quite different. We might well have easier access to injunctions than under patent law than under contract law.

  217. 59

    HDT, sad. Did you know that many NPEs are failed startups or licensing entities that represent such startups or individual inventors? All that is left are the patents. Licensing the patents provides the inventor some return on his investment, which incents the investment in the first place. This is THE fundamental reason for a patent system.

    Focusing on the “rights” of the infringer to use the IP of the small inventor is beyond immoral, it is vicious and cruel. The powerful can protect themselves. But they have no right to use someone else’s property just because they are big and powerful and the other party is small and weak.

  218. 58

    The policy behind contract law remedies is to *encourage* the breaking of contracts when the result is enconomically beneficial to the breakor (taking into account the award of damages. On the other hand, infringement is a discouraged activity, and the remedies ought to reflect that.

    Breach of contract is a discouraged activity. The purpose of contracts is to be able to negotiate in advance, and later rely on, the future conduct of the other party. I’m not talking about efficient breach, I’m talking about plain old breach of contract with no arguments to redeem it. What’s your remedy for that? Probably money. Probably not an injunction ordering the defendant to perform the contract.

  219. 57

    “As I said, even in a breach of contract case, when the defendant has agreed in writing to act in a certain way, the court will hesitate to grant an injunction ordering him to perform the contract”

    The policy behind contract law remedies is to *encourage* the breaking of contracts when the result is enconomically beneficial to the breakor (taking into account the award of damages. On the other hand, infringement is a discouraged activity, and the remedies ought to reflect that. I don’t believe arguments comparing patent law to contract law are all that persuasive. Doesn’t mean that Ebay is wrong …

  220. 56

    broje: If we are going to take the tact that NPEs don’t get an injunction, then maybe they should not get treble damages for wilfull infringement either. […] It certainly makes no sense to treble the “reasonable royalty” for an ongoing mandatory license that is “forced on” on NPE.

    What’s wrong with trebled past damages (where appropriate) and single future damages?

    Willton: If a patentee is using his monopoly for purposes that do not “promote the progress of science and useful arts,” then the government should be able do something about it.

    My understanding of the system is that the grant of the patent itself is supposed to promote the useful arts, by incentivizing public disclosure of inventions. What the patentee does with it afterward is his business (literally), and he might as well squeeze as much money out of it as the law allows.

    Ned: Well, for one, we need Congress to overrule eBay and start thinking about overruling other disastrous Supreme Court cases while they are at it.

    The holding in eBay is that if you only want money, you only get money. If you’re asking for an injunction just so you can get more money from a defendant you want to license (i.e. not actually prevent from using your invention), too bad. That’s not what injunctions are for.

    Ned: If any b**stard DJs me, or if I have to sue, all I will ask for is for equitable relief — a preliminary and final injunction. I will stand on my RIGHT to choose who I license and who I will not license and anyone who takes me to court is someone who will never get a license.

    In the end, I suppose the court will simply ignore me and provide the guerrilla a compulsory license under the same terms and conditions as anyone else.

    It would be funnier if the court didn’t give you your injunction (because in their estimation you’re a filthy troll), but also didn’t give you a royalty for future infringement because you were so adamant about not wanting money.

    Ned: “Forced on the NPE” is the key. The NPE could sue, prevail on all points, and still have to appeal the grant of a compulsory license to the willful infringer. What kind of system is this where the winner has to appeal? What kind of “right” do I have if I sue a party, prevail on liability and have the remedy granted in favor of the defendant?????

    I don’t know why this is so hard to understand, but NPEs want licenses. They want royalties. They don’t want injunctions, except as a means to get royalties. A court-ordered license for an NPE is a win, and the NPE should be happy to get it.

    HDT: If they aren’t using their invention, then hey sorry buddy, but it doesn’t have much relative value.

    Someone else seems to think it has much relative value. After all, someone else is using it. Independent invention is not a defense to patent infringement.

    NEW B: From what I understand about remedy, money may provide a remedy for actions to a point, but when a court says the transgressor was wrong and my patent is valid, shouldn’t my patent be enforced for what it is? To me, remedy is for actions in the past that cannot be changed. Enforcement of my patent rights marching into the future does not call for remedy – it calls for the law to be enforced. Any talk about remedy is misplaced when we are talking about enforcement of my patent. Don’t get me wrong – I will take the remedy for the past actions that I cannot control, but making the transgressor stop is something that can be controlled.

    I see your point. The legal rationale, which you clearly find unsatisfying, is that although your rights are not being respected when someone else practices your patent, your losses are essentially monetary and calculable, so the appropriate sum of money is adequate compensation for you. Please don’t forget that the patentee is still just as entitled to an injunction as ever if he can show damages that cannot be fairly compensated in money. It’s just that the emotional hardship of someone else using your patent isn’t actionable. If you aren’t using the technology in your own business and you don’t intend to, what have you really lost? (That’s not rhetorical, the court really wants to know the answer.)

    NEW B: This is like your example of being punched in the face and letting the other person continue to punch you in the face.

    Yes and no. You’d probably get an injunction (restraining order) for the punching, because being punched and the threat of being punched affects your life in ways other than money. There’s pain, recovery time, diminished quality of life, maybe permanent disfigurement. If someone else is on your land, you can’t use that land at the same time. If your patent is infringed, someone else is selling a thing. If you didn’t get an injunction, it’s probably because you’re not selling the same thing. What’s really at stake, other than your feelings?

    New B: I think it very paternalistic to even consider that I have to show the court anything about market conditions in order to get them to let market conditions play out. This sounds way too much like lawyer circular logic.

    It’s not circular logic. It’s something we in the business call “evidence”. The dispute is before the court, and the court has to settle it. To do that, the court needs information about what a fair outcome would be. That’s not information the court already has. Everything from what your patent covers to what the defendant is doing to how much money you should get depends on facts that must be proven.

    NEW B: I cannot see how you think it disingenuous for a patentee to want to be able to use the leverage of exclusivity – that is the reason he got the patent in the first place.

    I don’t think it’s disingenuous for all patentees to leverage exclusivity. I think it’s disingenuous for patentees who want to license the defendant to leverage exclusivity. When Pfizer leverages exclusivity, it’s because Pfizer wants the market all to itself. When MercExchange leverages exclusivity, it’s because it wants eBay to continue using its technology, just at a really high price. If I were a judge and you asked me “tell him to stop so I can sell him the right to continue”, I’d tell you exactly where to go.

    Even the patent grant itself is not really intended to exclude other people from practicing your invention. The purpose of a patent to make you money however you can make it, to reward you economically for disclosing your invention. Some patentees use the exclusivity to grab a whole market for themselves, others license the technology out. If you’re doing neither of those things, you’re missing the point of owning a patent, despite what 35 USC technically says your rights are.

  221. 55

    And everyone of you Patent Attorneys and Agents, this is you Bread and Butter. You should be raising H***. If the system gets any weaker, you’ll be behind the rest of us in the bread line. You are supposed to write the best Patent application you can. Prosecute to the very best of your ability. And then to defend the Rights of your Client, and his or her property. To hear someone say Infringers are ok? They give to the economy. That is a sick upside down statement. Okay, so next you’ll say it’s okay for China to make our stuff. Because Walmart sells the suff they copy. And Walmart, employs people and people pay taxes?

  222. 54

    Poster not what you think – thanks, your post was decidedly not helpful. Perhaps you can explain yourself in such a way that I can actually learn something. I hope that you will appreciate that I simply do not take your word, which does not help me understand where I may have made an error. Perhaps you can explain like the Poster IANAE. Even if I don’t agree with poster IANAE, I can see where he is coming from most of the time.

    Most of the time, but not all of the time. For example, I cannot see why the reply to my comment about judges getting in the way draws the statement that without judges the patentees would get nothing. Such a statement is a truism and is not even in question. My point was not that there should not be judges, but that the judges should take the simplest and easiest route to returning the situation to its intended state. We were talking about paternalism and market forces. I don’t see an answer to my earlier questions. I think that poster IANAE’s idea that an injunction dictates the terms of the agreement is completely wrong. If the transgressor and I cannot come to terms, we do not have an agreement and he cannot use my patent stuff. An injunction means that he cannot use my patent stuff. How much closer to the original state can you get?

    There is no sense of any agreement and if the transgressor cannot use my patent stuff, the purpose of a patent is satisfied. If he wants to use my stuff, he has to meet me on my terms. It is my stuff, isn’t it?

    Poster IANAE, I used your word happy. Now you throw out a bigger word “anthropomorphize”. It means the same thing, I think. And my answer is the same. You talk about the punishment being too strict, but it is not punishment for the transgressor to be denied use of my stuff. It is a return to the original state of the fact that for the time permitting, my stuff is my stuff and only I have the right to my stuff. I choose who may use my stuff. It simply does not make sense that someone else can choose to make my stuff when I don’t want them to.

    From what I understand about remedy, money may provide a remedy for actions to a point, but when a court says the transgressor was wrong and my patent is valid, shouldn’t my patent be enforced for what it is? To me, remedy is for actions in the past that cannot be changed. Enforcement of my patent rights marching into the future does not call for remedy – it calls for the law to be enforced. Any talk about remedy is misplaced when we are talking about enforcement of my patent. Don’t get me wrong – I will take the remedy for the past actions that I cannot control, but making the transgressor stop is something that can be controlled. The transgressor cannot be found guilty and be allowed to continue to act in the actions that were found guilty. This is like your example of being punched in the face and letting the other person continue to punch you in the face.

    I am not sure I understand what you are saying about people not free to choose to buy. I think you have the choice situation wrong. The choice is for me to control because it is my stuff. Having the patent means I control that choice. If I do not want to offer that choice, the court should not force me. I think it very paternalistic to even consider that I have to show the court anything about market conditions in order to get them to let market conditions play out. This sounds way too much like lawyer circular logic. I just got done saying that the court’s should not have any say in setting royalty rates because its my stuff and you suggest I let the courts set royalty rates because its quicker than negotiating. This make no sense. As the owner of the patent stuff, I am not interested in the quickness of negotiations and I can control the quickness by changing what I am asking for. It makes no sense to give up my right on this because this right is not part of the patent right directly – it is a part of the property right after I have the patent. The court should limit itself to giving me back the force of my patent right and keep its nose out of my business dealings. I do not need the court to “hurry up” my negotiations. The infringer shouldn’t be able to choose to change so that he does not infringe – he should be made to obey the law that says he cannot infringe. I cannot see how you think it disingenuous for a patentee to want to be able to use the leverage of exclusivity – that is the reason he got the patent in the first place.

    Poster Wilton, whether the government allows me to have a patent or not is not the point that we are talking about here in enforcing the patent after a court has found the transgressor guilty. The government has a patent system and the patentee has followed the rules and obtained a patent through that system At that point, he has every right to expect that the rights of the patent will be enforced. The rights of that patent do not dictate that he must then use it to promote the progress of science and the useful arts. That part is already done. That part was his sharing the knowledge and giving up the privacy of his stuff. It is time for him to get the quid for the quo already given. My point is that it seems ridiculous that a court can decide to not enforce those rights by creating a contract where one does not exist at terms that the owner of the property does not agree to. Forcing a reasonable royalty rate is a heavy handed paternalistic justification for robbing the market system of its due course and simply does not enforce the patent for what it is. I don’t want the courts help in this manner. I do not want help negotiating. I want the control that the patent gives me. I want enforcement of the law behind that patent.

    Now if you are talking about figuring out the remedy part and damages of actions in the past, I can see the logic and the wrangling about how to determine the amount of money for the past actions. But anything going forward short of my right to exclude is just wrong.

    Poster HDT, I do not think the question of NPE or not NPE is material to the point of enforcement after the transgressor is found guilty and the patent is found valid. Patent rights are property rights and do not depend on any type of action by the holder for enforcement. It sounds like you are thinking like poster Wilton, that some form of quo continues to be needed to be met by the holer of the patent. Now I can see whether being a NPE or not an NPE could be a factor in determining money for the past actions that cannot be controlled. That makes sense.

  223. 53

    Why do we care about NPEs? They don’t make or use their invention, so their entire investment in the idea is the prosecution costs of the patent. Infringers actually make or use the invention and have drastically larger investments on the line, and they are the ones that are contributing to society. Just because the infringer is infringing doesn’t mean that the infringer knew about the patent prior to being sued. I say scroo NPEs. If they aren’t using their invention, then hey sorry buddy, but it doesn’t have much relative value. If they’re using it and it’s their core business, then that’s a different story.

    I realize that not all NPEs are parasites, but the sad fact is that many of them are.

  224. 51

    TINLA:

    “I’m just thinking out loud here (figuratively, of course). Just looking at what’s fair, calculating a reasonable royalty seems like it ought to take into account both:

    (a) the value of the infringing product compared to the value of the non-infringing product; and

    (b) the profits lost to the patentee due to the inability to price-gouge consumers as a result of the loss of the monopoly.

    Both of these considerations, in turn, ought to factor in whether there exists a non-infringing alternative that fulfills the same market demand.

    I’ll venture that the patentee ought to recoup a fraction of (a) and all of (b). If an injuction is denied, then the royalty payments ought to be ongoing. If we are going to take the tact that NPEs don’t get an injunction, then maybe they should not get treble damages for wilfull infringement either. It seems to me that treble damages only make sense for multiplying damages that are awarded once and are accompanied by an injunction preventing future lost profits. It certainly makes no sense to treble the “reasonable royalty” for an ongoing mandatory license that is ‘forced on’ on NPE.”

    “Forced on the NPE” is the key. The NPE could sue, prevail on all points, and still have to appeal the grant of a compulsory license to the willful infringer. What kind of system is this where the winner has to appeal? What kind of “right” do I have if I sue a party, prevail on liability and have the remedy granted in favor of the defendant?????

    The NPE, after spending years and millions would have no effective remedy. A right without a remedy is no right at all.

    eBay literally destroyed the US patent system.

  225. 49

    You don’t need a Gun. All you need is a Pen. And the most important thing to veto is Babboons.And the good thing is it’s beginning to happen everywhere.
    JUST DO IT! TAKE BACK YOUR COUNTRY WITH YOUR VOTE. PASS IT ON. TAKE NO BABBOONS.

  226. 48

    How does one combat eBay? Could I the patent owner announce a uniform, non discriminatory licensing program, with incentives for early signers, etc., but with this twist:

    If any b**stard DJs me, or if I have to sue, all I will ask for is for equitable relief — a preliminary and final injunction. I will stand on my RIGHT to choose who I license and who I will not license and anyone who takes me to court is someone who will never get a license.

    In the end, I suppose the court will simply ignore me and provide the guerrilla a compulsory license under the same terms and conditions as anyone else.

    I would argue to anyone here that such a result is beyond unjust.

  227. 46

    The gubermint needs to keep its hands outta mah patent (r)ights! (also my Medicare)

    Patent Reform is a death panel for small inventors!!! Amirite, AI?

  228. 45

    ” If a patentee is using his monopoly for purposes that do not “promote the progress of science and useful arts,” then the government should be able do something about it.”

    This is the most ridiculous statement I read on this entire blog

    Bravo, Wilton !!!

  229. 44

    Once upon a time in a land far removed from the present, I read an obviously fictional account of a patent owner having the right not to license his patent if he so chose, or to license it to whosoever he chose, if he chose to license it. Americans prided themselves on being one of only places on earth that did not provide for compulsory licensing of patents.

    Today we know that might makes right, and the 500 pound guerrilla can sit anywhere he chooses. In fact, if he adjudged to be an illegal monopoly, so much better the argument that the public interest requires that he have a right to use the IP of others because the public has no other provider.

    And yes, we have heard of similar cases in real property. If the 500 pound guerrilla wants your land to enhances his domain, he gets it at the price set by the government.

    What we have is a Supreme Court run amok, fundamentally altering the landscape in favor of the 500 pound guerrilla and against the rights of the individual property owner.

    How do we fix things? Well, for one, we need Congress to overrule eBay and start thinking about overruling other disastrous Supreme Court cases while they are at it. But, what we find instead is a congress, in the pay of the 500 pound guerrilla, doing exactly the opposite. They are dancing like puppets for the guerrillas, doing their every bidding, and calling anyone who disagrees with the powerful and the mighty, “trolls” or the like.

    I still think of the movie UP with the aged hero refusing to sell to the greedy land developer. What happened to him in the film was unjust. But in the modern world of PC patent morality, the immoral is de rigeuer.

  230. 43

    ” Why shouldn’t the patent holder be able to negotiate with the strength of a valid patent? If the patent holder asks too much, no one will buy. So what? A patent isn’t a guarantee that anyone will buy anyway. Again, market conditions will prevail without government interference. I also think that you are wrong in thinking that a patent holder doesn’t want a say in who gets the patent’s legal stuff. I think it is a big deal to be able to control who gets your legal stuff. I think it simply wrong to think that the government through the courts can tell you what to do because your patent means that you control what to do.”

    Just so you know, the only reason you have a patent is because the government allows you to have one. Patents are legal constructs, not natural rights. If a patentee is using his monopoly for purposes that do not “promote the progress of science and useful arts,” then the government should be able do something about it. If you don’t want government involvement, don’t apply for the patent.

  231. 41

    I’m just thinking out loud here (figuratively, of course). Just looking at what’s fair, calculating a reasonable royalty seems like it ought to take into account both:

    (a) the value of the infringing product compared to the value of the non-infringing product; and

    (b) the profits lost to the patentee due to the inability to price-gouge consumers as a result of the loss of the monopoly.

    Both of these considerations, in turn, ought to factor in whether there exists a non-infringing alternative that fulfills the same market demand.

    I’ll venture that the patentee ought to recoup a fraction of (a) and all of (b). If an injuction is denied, then the royalty payments ought to be ongoing. If we are going to take the tact that NPEs don’t get an injunction, then maybe they should not get treble damages for wilfull infringement either. It seems to me that treble damages only make sense for multiplying damages that are awarded once and are accompanied by an injunction preventing future lost profits. It certainly makes no sense to treble the “reasonable royalty” for an ongoing mandatory license that is “forced on” on NPE.

  232. 40

    I disagree with your thinking that letting the market dictate the terms of an agreement is just as paternalistic as the court deciding.

    What I meant to say was that the court ordering an injunction dictates the terms of an agreement just as much as the court ordering a royalty. It dictates different terms, but it still forces your hand.

    If the patent infringer wants what the patent holder has, it should be up to the patent holder to name his price.

    It should also be up to the infringer to choose an alternative technology. That’s the scenario when both parties get together while the product is still being designed and hash out a license agreement. By the time a court decides a patent is infringed (and the infringer might even have had a good faith reason to believe that he did not infringe), it’s sometimes too late for the infringer to change what he’s doing. Put another way, it’s not fair for one party to name its price when the other party is forced to accept, so the court will only impose that hardship when the patentee can show that the opposite ruling causes him a similar injustice.

    You say that one party will be unhappy, but there is nothing wrong with that because that unhappy party was the guilty infringer.

    Maybe the word “unhappy” is confusing. If we are to anthropomorphize the infringer, his emotional state could range anywhere from “unhappy” to “dead”. Just because somebody did something wrong, that doesn’t mean no punishment could possibly be too harsh. Besides which, it’s not really supposed to be a punishment. It’s supposed to be a compensation for the patentee.

    If the patent holder asks too much, no one will buy. So what? A patent isn’t a guarantee that anyone will buy anyway. Again, market conditions will prevail without government interference.

    That’s all well and good if people are free to choose not to buy. That’s not always the case. If market conditions will prevail anyway, why not show the court what market conditions are, let the court assign the royalty (it’d be quicker than negotiating, probably), and the infringer can still choose to change his product so he doesn’t infringe anymore.

    I also think that you are wrong in thinking that a patent holder doesn’t want a say in who gets the patent’s legal stuff.

    I’m not saying no patentees care who gets to use their inventions. I’m saying that when a particular patentee openly wants money for future use of his invention from a particular defendant, it’s disingenuous for him to say that he wants to control who is using his invention. All he’s really trying to control is the price, and both sides are entitled to some leverage on that point.

    It seems to me that anything else means that the courts are just getting in the way.

    If the courts didn’t get in the way, no patentee would get anything.

  233. 39

    “It seems like the courts are getting in the way of nature by trying to force equity when it is law that would serve a better solution to what is actually going on. I don’t know if I phrased that correctly in a legal way…”

    You didn’t.

  234. 38

    if you look at what a patent is, trying to force money seems to be a very weak alternative to simply enforcing what the patent is for

    But how will I know when it’s my turn to use the airplane restroom?

  235. 37

    You are right that it seems odd that something that so closely matches the original condition is somehow deemed extreme. I think that trying to separate remedy in an equity sense and remedy in a law sense makes no sense if you are ignoring what a patent is for. It seems like the courts are getting in the way of nature by trying to force equity when it is law that would serve a better solution to what is actually going on. I don’t know if I phrased that correctly in a legal way, but if you look at what a patent is, trying to force money seems to be a very weak alternative to simply enforcing what the patent is for. If this hasn’t been done before, maybe that is the type of reform we need.

    I disagree with your thinking that letting the market dictate the terms of an agreement is just as paternalistic as the court deciding. That makes no sense to me. Because the patent was found valid and because the infringer was found guilty, somehow the patent loses the strength of what is was for? If the patent infringer wants what the patent holder has, it should be up to the patent holder to name his price. You say that one party will be unhappy, but there is nothing wrong with that because that unhappy party was the guilty infringer. I’m sorry but to me, this is a good thing. This is justice, not paternalism. All the courts would be doing would be upholding what the patent holder has already earned. I cannot figure out why this is bad in any way. I also do not think that you are at all correct in regards to negotiating. Why shouldn’t the patent holder be able to negotiate with the strength of a valid patent? If the patent holder asks too much, no one will buy. So what? A patent isn’t a guarantee that anyone will buy anyway. Again, market conditions will prevail without government interference. I also think that you are wrong in thinking that a patent holder doesn’t want a say in who gets the patent’s legal stuff. I think it is a big deal to be able to control who gets your legal stuff. I think it simply wrong to think that the government through the courts can tell you what to do because your patent means that you control what to do.

    It seems the opposite of paternalism for the courts to make the situation as close to the purpose of the patent as possible because it returns the situation to a pure market condition between seller and buyer. It seems to me that anything else means that the courts are just getting in the way.

  236. 36

    Well, the government (and only the government) should be able to break or force you to license any patent if it’s a matter of national security or something like that

    “The Conshitution ish shnot a shooicide pact!!!!”

    [burp]

  237. 35

    Well, the government (and only the government) should be able to break or force you to license any patent if it’s a matter of national security or something like that

    What if it’s not strictly a matter of national security, or a private party is acting in the interest of national security, but a judge decides it would be way better for the public if the infringement continued? Maybe somebody’s handing out free generic Cipro or something.

  238. 34

    “(except Federal Government)

    Why? I thought your right was exclusive.”

    Well, the government (and only the government) should be able to break or force you to license any patent if it’s a matter of national security or something like that

    Same applies to real estate – we have eminent domain so the government can build things like airports and highways

    But this does not mean that Scotus should (mis)treat eminent domain like they did in Kelo case

  239. 32

    “If it were as simple as you say, the mere existence of the patent would entitle you to an injunction against everyone in the country.”

    It is simple, dude, or should be simple

    If patent is recognized as valid (new and unobvious contribution to the state of the art of some particular field) and a fact of willfull infringement is established (in common sense, not in legal sense, which does not make any sense after Seagate), then patent should entitle you to an injunction againts each and every entity in this country (except Federal Government)

  240. 31

    Dude, the most hated (by the general clueless public) “patent trolls” are the ones with multiple licensees going after even more potential licensees

    Okay, suppose they’re hated by the public. What legal difference does that make? If instead of manufacturing your own product you license to other parties who are manufacturing product, don’t you have the same arguments about infringers causing you irreparable harm? The finer points of the argument might depend on the terms of the licenses, but as long as you’re making money from the sale of patented product I don’t see why your damages should depend on who owns the factory.

    That’s what written on a patent’s front face – “the right to exclude others … blah blah blah”
    What else do I have to show ?

    That your right entitles you to the remedy you seek. Same as when you ask for money, or anything else.

    If it were as simple as you say, the mere existence of the patent would entitle you to an injunction against everyone in the country.

  241. 30

    IANAE wrote:
    “Don’t forget that once you’ve got a licensee, you’re arguably not an NPE anymore and maybe you can even leverage the threat of an injunction against the next guy.”

    WHaaaat ???

    Dude, the most hated (by the general clueless public) “patent trolls” are the ones with multiple licensees going after even more potential licensees

    “…and it seems clear to me that a plaintiff should always have to show his entitlement to any remedy.”

    Hillarious

    That’s what written on a patent’s front face – “the right to exclude others … blah blah blah”
    What else do I have to show ?

    Maybe you should be a used car salesman:
    everything you write is complete BS

  242. 29

    I have been thinking about why it would be unfair to someone to have to stop using someone else’s patent stuff. The only thing I can come up with is that it can be very expensive to set up a large scale operation only to find out later that you infringe and have to shut it down.

    I am not sure that this is enough reason, or that this happens often enough to justify all the extra effort that everyone else has to go through. I also think that anyone about to go through a large scale effort should exercise a certain level of business preparation that at a minimum would involve a patent and published patent applications search. As many people have mentioned, this is the modern age where access to the patent system is a mouse-click away.

    This would also motivate the public to actually involve themselves in published patents and patent applications and wouldn’t that be a major victory for the purpose of the Patent Office? As it is now, it just seems like a racket to keep lawyers employed representing both sides in overly and needlessly complex squabbles.
    I am not talking about unproven assertions, and for interim damages, maybe something else is necessary, but after guilt of infringement is found, the patent’s validity is no longer in question and setting the remedy/damages situation at an automatic injunction seems like the truest form of reform. Let the market actually determine the reward, instead of having lawyers and men in black robes removed from the business haggling over it. I don’t see how the balance is shifted over too far if an injunction is the closest thing to the meaning of the patent to begin with and the guilt has been established.

  243. 28

    But why must there be a showing of irreparable harm in order to get an injunction? Isn’t an injunction the closest thing to restoring the rights of the inventor, and wouldn’t that alone make the most and easist sense?

    It seems odd to people who haven’t been to law school, but injunctions have always been considered an extreme remedy. They weren’t originally part of the common law at all, and people had to resort to a separate court system for injunctive relief when the common law had no remedy for them. Today the same courts have jurisdiction over both law and equity, but there is still some history there. As I said, even in a breach of contract case, when the defendant has agreed in writing to act in a certain way, the court will hesitate to grant an injunction ordering him to perform the contract. It’s shocking to me that judges in patent cases ever granted injunctions as a matter of course, even though it sometimes feels like an injunction ought to be the natural remedy for an exclusive right.

    It seems that any type of forced license violates both the reason to have a patent and forces a license in a heavyhanded paternalistic manner that may make neither party happy, and especially the party with a patent, because he is the only one that should have a say in who gets his legal stuff.

    That reasoning breaks down when you start talking about patentees asking for an injunction for the purpose of negotiating a license. For one thing, the injunction still essentially forces a license in a heavy-handed paternalistic manner that leaves at least one party unhappy. For another, you don’t really want a say in who gets your legal stuff – we’ve decided that part already, we’re just haggling on the price.

  244. 27

    The problem for guys like me is exactly what Bad Joke highlighted. If my invention is not worth a significant settlement, I will not find a lawyer to help me, and therefore all of my efforts and money go to waste.

    If injunctive relief is removed and damages are limited, there is no reason on earth for an infringer to settle short of an court order. Why would they?

    I agree that this is a big concern for individual inventors. A big part of the problem is that it’s so expensive to enforce your rights. To some extent you can turn this to your advantage because settlement is cheaper for the infringer than challenging your rights, but in the absence of a contingency fee arrangement you still have to commit to significant expense before you recover any damages.

    Don’t forget that once you’ve got a licensee, you’re arguably not an NPE anymore and maybe you can even leverage the threat of an injunction against the next guy.

    Didn’t they have something to sell before they incorporated the invention into their product? Won’t they still have something to sell if they take that invention back out? If they no longer have something to sell, well, isn’t the invention then the product?

    When they were first designing or assembling the product, they may have had the option to incorporate the patented feature or not. That doesn’t mean it’s possible to remove it from the completed product and still have a saleable article. Lines of code refer to other lines of code in ways that can’t always be untangled, chips might have to be completely redesigned, molds for physical products might have to be replaced. It might not even be possible to isolate individual lines of code that embody the invention. That doesn’t necessarily mean that the entire product is the invention, but you can see how an injunctive remedy on a small component might be severe for a manufacturer.

    Don’t get me wrong, I do think a patentee who goes to court should get more than what a reasonable royalty would have been on a patent of then-untested validity. The risk of invalidating the patent should definitely be priced out of the court’s calculation, and possibly a little more to make sure it’s not economically worthwhile for companies to ignore reasonable licensing proposals or design-around costs. I just don’t think an injunction is the way to solve the problem because it shifts the balance too far in the opposite direction, and it seems clear to me that a plaintiff should always have to show his entitlement to any remedy.

  245. 26

    This is great stuff. But why must there be a showing of irreparable harm in order to get an injunction? Isn’t an injunction the closest thing to restoring the rights of the inventor, and wouldn’t that alone make the most and easist sense? Thats how I see what Paul Morinville is saying anyway. I don’t think the argument is about how hard the math really is. Its almost why bother doing the math if you have something better that approximates the original situation? Isn’t the whole point of the patent that you can tell people to stop doing what you alone can do? If you are not the only one who can do it, do you really have a patent? I think the reasoning that someone would lose their business shouldn’t matter if their business is based or affected so much by what you have the legal rights to. I also think that the reasoning that the two parties would have come to a licensing agreemetn anyway should not be forced by the court. It sounds odd, but if the two would have done so, they would have already done so before coming to court. The reason they are in court is because they could not come to an agreement. It seems that any type of forced license violates both the reason to have a patent and forces a license in a heavyhanded paternalistic manner that may make neither party happy, and especially the party with a patent, because he is the only one that should have a say in who gets his legal stuff.

  246. 25

    IANAE, thank you for your reasoned response. As you may have guessed, I am an individual inventor.

    The problem for guys like me is exactly what Bad Joke highlighted. If my invention is not worth a significant settlement, I will not find a lawyer to help me, and therefore all of my efforts and money go to waste.

    I spend a lot of time and money getting patents on the things I invent. It’s not possible on the onset to determine an invention’s future value. If I can’t get legal help on a contingency basis, I’ve wasted all that effort and money. Why would any inventor submit some new idea for others to build upon if it can be stolen and there is not recourse? Why not just go fishing?

    I see and understand the argument that an infringer brings. In the case of computers or software, I have some questions. Didn’t they have something to sell before they incorporated the invention into their product? Won’t they still have something to sell if they take that invention back out? If they no longer have something to sell, well, isn’t the invention then the product?

    If they lose a line of business because they have incorporated someone else’s property without permission, it seems to me to be a just solution.

    If injunctive relief is removed and damages are limited, there is no reason on earth for an infringer to settle short of an court order. Why would they?

    On the goatee, I use it for my public image and I never sell my hair.

  247. 24

    Yes, but my understanding is that an inventor without a product is strangely not allowed an injunction,

    An inventor who can’t show irreparable harm is not allowed an injunction. Having a product is a big part of that, but it’s not the only factor.

    The idea behind it is that you can’t get the court to go around ordering people to stop doing what they’re doing, unless you have a compelling entitlement to such orders. Usually, you can’t even get the court to order the other guy to perform on a contract, and that’s an obligation he agreed to.

    “Math is hard” is not a reason to give up on the calculation and grant an injunction. Courts evaluate damages all the time, in all sorts of fact situations, in all areas of law. It’s their job.

    Besides which, the grant of an injunction completely changes the market value of the license, because the infringer is faced with huge costs and possibly the loss of his entire business, which would not have entered his mind had he negotiated a license in the first place. That’s not a recipe for “fair market value”.

    Furthermore, if the infringer had been willing to pay fair market, and the patentee willing to accept fair market, they’d have signed a license agreement anyway. They’re only in court because they have a dispute to settle. The court should settle it, not threaten to put one party out of business if the two don’t come to terms.

    If the courts aren’t awarding enough money, either the patentee needs better experts and better evidence, or the courts need to revisit the criteria for calculating damages. It’s ridiculous to give the plaintiff an injunction just because he wants more money. If he wants more money out of a judicial remedy, let him show his entitlement to the money.

    My body is made up of hundreds of parts. If my goatee infringes,

    This isn’t really a hard calculation. First step: how much do you normally sell your body for?

  248. 23

    Yes, but my understanding is that an inventor without a product is strangely not allowed an injunction, which necessarily leads to a discussion of damages. I think that leads to the problem inherent in this discussion.

    My body is made up of hundreds of parts. If my goatee infringes, I may or may not pay to grow it back. I think that there is a willing buyer/willing seller equation that will bring a fair market value. Why should I have the ability to argue to a court what my goatee is worth? Order me to shave it and I can negotiate with the patent holder for a license.

  249. 22

    The courts would only need to determine infringement and grant injunctions. No need to think about, analyze or award damages.

    The patentee is not required by law to ask for money.

  250. 21

    “Terrible news for small inventors and small companies as this means that contingency fees will be going by the wayside when firms can no longer recoup their costs from recoveries for low volume items.”

    Yep. Bad Joke hit it on the head. It’s license for large companies to steal.

    Maybe the best way to handle this is as the founders reasoned… injunction. Take it away and if they want it back, they can buy it at market value from the inventor.

    The courts would only need to determine infringement and grant injunctions. No need to think about, analyze or award damages.

  251. 20

    “If the infringement is in the form of software do you base the royalty on:

    1. Relative number of lines of code? (Does that include comment lines?)

    or

    2. The price that the infringer charges for the “software module”.
    **********************************************

    Pointless discussion, fellas

    Software and (silicon) hardware are two faces of the same medal – impossible to separate

    You can always sell dumb CPU hardware chip with some add-ons and have someone else develop and freely distribute (on the Internet) all the firmware and application software for it, so the device becomes e.g. an Ipod or cell phone or something else

    What is the value of an RSA patented cryptography algorithm implememted in 15 lines of code which is included in sofware codebase for the SSL-enabled web-browser of e.g. 2 million lines of code?

    Nonsense discussion for anybody who does understand the issues (courts don’t, especially the Supremes)

    “The fate of all mankind I see is in the hands of fools”

  252. 19

    I am curious as to how much of a chilling effect there might be in general business terms if damages for infringement of all improvements are started at cost.

    Isn’t a basic driver in making processes and products better to make the components and inputs cheaper?

    Would tieing damages to cost dissuade efforts to making lower cost items?

  253. 17

    “If the infringement is in the form of software do you base the royalty on:
    1. …
    or
    2. …”

    Ah, a trick question. The correct answer is “Neither; software should not be patentable”.

  254. 16

    Re: “but what if the only reason the $500 item has an appreceable increase in sales is due to the infringement of a $.50 part?”
    In a case where that can actually be proven, you CAN get a different infringement damages recovery calculation.

  255. 11

    We won’t hold that against you IANAE (there’s too many other good things to use). Besides, in one of my past lives I managed a marketing and sales division, I just won’t say that I’m part salesman…

    What is being sold here? (kudos to No One in Particular for several excellent points).

    Such a starting point as suggested (part cost) plays directly into the hands of the mega corps who have the power to dictate price (especially in nascent conditions before “value” can be established.

    As such, I would posit that “cost” is a lousy place to start.

    If you really want to stir things up – take the actual “part” cost of any pharmaceutical, the actual chemical parts and take out the “cost” of development – this exercise will reveal that “cost” is at best a shell game.

    As to “options”, well, the question of options is a red herring – you ALWAYS have options – and this has nothing to do with choosing the BEST option or the option that advances the state of the art.

    I think the courts will find the way with the Georgia pacific factors.

  256. 10

    These folks know the price of everything and the value of nothing.

    If the infringing $0.50 part only adds $0.50 to the value of the $500 product they should take it out.

    If the infringement is in the form of software do you base the royalty on:

    1. Relative number of lines of code? (Does that include comment lines?)

    or

    2. The price that the infringer charges for the “software module”.

    The infringer can give the infringing software module away for free so he will not have to pay any royalties.

  257. 9

    But I think we’re in agreement that the cost of the part is a good starting point.

    I think we’re in agreement on a lot of things.

    I’m part salesman myself, on my mother’s side.

  258. 8

    You’re conflating cost of manufacture with value here. If a company makes all the parts in its own factory, it’s always going to be a 50-cent part. What we’re discussing is the appropriate royalty for the fact that the part infringes a patent.

    Of course I am. But the original “but for” scenario is overly simplistic, and your scenario of “if a company makes all the parts in its own factory” is unrealistic. How many manufacturers of $500 products are stamping out their own $0.50 parts?

    My point is that if a patented $0.50 really adds that much value to the end product, then the supplier of the $0.50 should be the one capturing a chunk of that added value. If he can’t, that means there’s a cheaper alternative, which means that the part is not really adding that much value.

    What often happens is that the patentee goes after the seller of the $500 unit (e.g., a cellphone manufacturer), even when there’s a supplier of a $0.50 part (e.g., a memory device, a display, or the like), precisely so that the patentee can argue higher damages.

    But I think we’re in agreement that the cost of the part is a good starting point.

  259. 7

    What this article demonstrates very clearly is that the “excessive damage award” problem alleged to require so-called “patent law reform” on damages determinations is a complete canard. Also, what the courts, especially the Federal Circuit after Lucent Technologies, scrutinize closely is the evidentiary support for damage awards, especially “mega damage” awards. Chief Judge Michel in Lucent Technologies very carefully pointed out the paucity of evidence to support the “mega damage” award, including evidence relating to the Entire Market Value Rule (aka factor 13 of the Georgia-Pacific factors). The proposed damage provision in the so-called “patent law reform” legislation is completely unnecessary and will simply spawn more (and also costly) litigation to determine what the parameters of this new damage provision are.

  260. 6

    Terrible news for small inventors and small companies as this means that contingency fees will be going by the wayside when firms can no longer recoup their costs from recoveries for low volume items.

    It’s an interesting system where only big companies are granted enforcable monopolies.

  261. 5

    Then someone should be charging a lot more for that $.50 part.

    You’re conflating cost of manufacture with value here.

    If a company makes all the parts in its own factory, it’s always going to be a 50-cent part. What we’re discussing is the appropriate royalty for the fact that the part infringes a patent.

    Sure, the royalty might exceed the cost if the tiny part adds so much value to the final product that the patent would be licensed in even at a high price (how many people would even buy a car without an airbag?), or if the part is incrementally free (e.g. a different shape of a part you were making anyway), but that doesn’t mean the cost of the part relative to the cost of the product isn’t a good starting point in most cases.

  262. 4

    “but what if the only reason the $500 item has an appreceable increase in sales is due to the infringement of a $.50 part?”

    Then someone should be charging a lot more for that $.50 part.

  263. 3

    but what if the only reason the $500 item has an appreceable increase in sales is due to the infringement of a $.50 part?

    the cost of a part is a poor indicator.

  264. 2

    Closely scrutinize = not base a royalty against a $500 item for infringement of a $.50 part.

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