By Dennis Crouch
In Avid ID, the Federal Circuit denied Avid's motion for en banc rehearing on the issue of whether inequitable conduct exists when the non-inventor, non-attorney CEO of a company applying for a patent failed to submit information to the USPTO about pre-filing but non-invalidating trade-show exhibit of a prior version of the patented product. Judge Newman dissented.
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Avid Identification Systems v. Crystal Import Corp. (Fed. Cir. 2010).
In its original decision in this case, the Federal Circuit held that the president of Avid ID Systems was "substantially involved" with the prosecution of the asserted patent and therefore was subject to the duty of disclosure. The court went on to find that the president had failed that duty by failing to advise the PTO of a trade-show demonstration that occurred more than one-year before the patent application was filed. The inequitable conduct decision was important to the case because the trade-show demonstration of a prior product did not leave the patent invalid under the statutory bar of 102(b)/103(a).
Avid requested rehearing en banc and that its case join with the pending TheraSense en banc case or, in the alternative, to stay the rehearing decision until after Therasense is decided. The Federal Circuit has denied Avid's motion for rehearing en banc.
Judge Newman dissented from the rehearing denial and would have stayed the case to await changes in the law of inequitable conduct:
The law as applied in Avid is subject to conflicting precedent, a conflict whose resolution is reasonably likely to alter the result. Thus it is prudent, and just, to hold Avid’s petition while the law is clarified. The court today has declined to do so, rendering the subject patent permanently unenforceable, although the patent was found valid on the same prior art that is the basis for its unenforceability.
. . .
This court held that Dr. Stoddard’s demonstration during the Livestock Committee trade show of what the panel calls “some of Avid’s technology,” and Avid calls a “precursor product,” was material to patentability and that Dr. Stoddard was required to assure that the patent examiner was informed. According to the panel opinion, the district court “found that the precursor product, while not invalidating, reflected the closest prior art, and thus was highly material to patentability.” Avid Identification Sys., Inc. v. Crystal Import Corp., 603 F.3d 967, 973 (Fed. Cir. 2010)(“Avid II”). While “closest prior art” has been discussed in the context of whether certain information is cumulative of that already presented to an examiner, see, e.g., AstraZeneca Pharms. LP v. Teva Pharms. USA, 583 F.3d 766, 773-75 (Fed. Cir. 2009), it has never been the law that information is “highly material” simply because it is “closest.” It is not disputed that whatever was demonstrated was not an invalidating disclosure of the patented invention, and not a sale or offer to sell the patented invention, for the jury found that the demonstration at the Livestock Committee was not invalidating. See Avid I, 2007 WL 2901415, at *1.
Dr. Stoddard, who is the president of Avid, is a veterinarian whose principal occupation is running an animal hospital; he is not an electronics engineer and not a chip designer and not an inventor of the patented device and not a lawyer. See Avid II, 603 F.3d at 970. On the undisputed fact that the challenged information is not invalidating, the court’s holding of inequitable conduct is sufficiently questionable to warrant a stay until this court resolves the larger issues before us, including the en banc Order’s query: “Should a finding of materiality require that but for the alleged misconduct, one or more claims would not have issued?” Order, 2010 WL 1655391, at *1. It is at least possible that the court will answer this question in the affirmative. Although I do not venture to guess how Therasense will fare overall, it is not unreasonable to expect that it may affect the Avid decision.
The Avid panel applied the former Rule 56 standard of materiality as stated in J.P. Stevens & Co. v. Lex Tex Ltd., 747 F.2d 1553, 1559 (Fed. Cir. 1984), although this standard was abandoned by the PTO in 1992. The information here criticized does not appear to violate the current Rule 56 standard, and Dr. Stoddard is not within the cadre upon whom is placed the obligation of understanding the patent law, as Judge Linn explained in his dissent. I must, respectfully, dissent from the court’s refusal to stay this appeal in view of the en banc proceeding in Therasense.
Documents:
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Avid En Banc Order (Avid III)
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Avid Inequitable Conduct Decision (Avid II)
Money Talks–I think we’re all aware that patent cases are federal–my digression was just to give background to Max, who is Euro (I think Deutsch). Just to let him know that people in the U.S. have considered his point to have some validity, even though it has never been adopted at the federal level.
Cy Nical–I probably read that case in Con Law ~4 years ago in law school, but forgot the issue you raise. Thanks for the heads-up, I’ll check it out. Justice Thomas has written a number of interesting takes on the Fourteenth Amendment, not least of which was his concurrence in the McDonald gun case this past term.
No more comments from Kenny? – He must be busy Finding Nedo.
So when did they kick you out of the priesthood Mooney?
smash, are you familiar with Justice Thomas’ concuring opinion in ELK GROVE UNIFIED SCHOOL DISTRICT et al. v. NEWDOW, the (in)famous Pledge of Allegiance case? As you may recall, the Supreme Court generally punted on the substantive issues, holding that the plaintiff lacked standing to challenge the compulsory pledge policy at issue. However, in what I recall to be a little-remarked opinion, Justice Thomas explained why he believed that the Establishment Clause was not applicable to the States under the 14th Amendment, while the Free Exercise Clause was. An interesting opinion, and a seldom discussed aspect of the 14th Amendment.
And which States’ laws would apply in the instant point of a federal question (or was it forgotten that Patents are items in the federal realm)?
Good answer Smash. Thanks. I see that, even if the Constitutional USD 20 were to be raised to today’s money worth, it would not shut out any of today’s patent actions then.
“PPPS. 20 dollars in 1787. How much is that, in today’s money?
Posted by: MaxDrei | Jul 22, 2010 at 08:19 AM”
Best estimation method I’m aware of compares prices of common, stock articles in terms of ounces of gold. Turns out, for instance, a decent mens’ suit or a pound of ground beef have remained remarkably fixed in price over more than a century, if prices are measured in gold. Don’t have the hard data at my fingertips, but based on much greater U.S. price stability throughout the 19th century, and the then-extant official price of $20.67 per troy ounce, compared with today’s price around $1,200 per ounce, I guess $20 in 1787 is approximately worth $1,200 and certainly at least $1,000 if you like round figures. (Obviously all dollars are U.S. in this context.)
In a strange quirk of U.S. Constitutional law, the Seventh Amendment right to jury trial is one of the few provisions of the Bill of Rights held not applicable to the States through incorporation by the Fourteenth Amendment. (Digression–the Fourteenth Amendment, adopted at gunpoint in the aftermath of the War Between the States, 1861-65, much later was interpreted by SCOTUS as “incorporating” the Bill of Rights of the U.S. Constitution against the separate U.S. states.)
This quirk left states to apply their own constitutional jury trial provisions in civil cases. Many of them have raised the minimum dollar amount to reflect your point. In Maryland, where I live and practice, for instance, Article 23 of the Declaration of Rights states in relevant part:
“The right of trial by Jury of all issues of fact in civil proceedings in the several Courts of Law in this State, where the amount in controversy exceeds the sum of $10,000, shall be inviolably preserved.”
Ken, thanks. I am thinking about attending the AIPLA annual meeting. Other than that, I hang out in Silicon Valley.
I do not believe that you have the intellectual capacity to grasp the nuances of patent practice to realize the veracity of my position.
So now you’re a socialist and an elitist?
My witty comments are being blocked. Suffice to say that I welcome the edification for all readers your explanation as to why all of sudden your “corps has a duty” is not a capitulation to Anon’s recitation of Rule 3.71(a).
Pong I do not believe that you have the intellectual capacity to grasp the nuances of patent practice to realize the veracity of my position. Far be it for me to overcome what years of exposure to education failed to achieve with respect to your intellectual acumen.
Kenny,
Well we will just have to place your opinion next to Ned’s IMHO-Law opinion. Right there on the shelf of irrelevancy.
Can you esplain how Anon was wrong in the rule that he quoted? (I noticed he one-upped ya as you merely quoted the MPEP and he quoted the CFR). Ya don’t have to worry abouts me tellin ya that you overcharge your clients, as long as you believe that you are giving thema repeated valuable service and don’t have any ethical dilemmas about it. In fact, your clients probably think that they are something special getting all that personal attention.
Funny tho – being wrong and all how you still changed your story and now say Corps have a duty under 1.56 – wasn’t that the starting point of you being wrong with Anon?
Ping pong those facts are not sufficient in my opinion. By the way Anon was wrong.
“then the knowledge of every agent of that Corporation must be analyzed for materiality?”
Why would company agents have materiality? Seems pretty amateurish to me.
“They have the duty pursuant 1.56, as does the Corporation”
Thank you Kenny – I sees that you have learned from Anon, who had to beat you up pretty severely with the actual rule of 37 CFR § 3.71(a)? regarding your O-so-amatuer: “Each time an assignee seeks to take action in the case the assignee must prove ownership. The inventor is always presumed to be the owner.”
I still have chuckles over that from a self professed non-amateur.
Still more chuckles:
“It must be more than the fact that he is an Officer of the company and that he participated in the prosecution. ”
No – that about do it. Right there with your Rule knowledge. What was that word you be eating? – absurd?
One last chuckle for the night: “I saw none of this in this case” – look closer Sunshine at the case facts:
“Avid is a small, closely held company that designs and markets biocompatible radio frequency identification chips for implantation in animals. Avid markets its chips to pet owners as a way of increasing the chances that an estranged companion animal will be identified and reunited with its family. Avid markets devices for reading its chips to animal hospitals and shelters.
Avid’s founder and president, veterinarian Dr. Hannis Stoddard, testified that he decided to form the Avid corporation after visiting an animal shelter to reclaim his own lost dog. He explained that most animals at the shelter were clearly lost pets, but there was no way to find their homes. Dr. Stoddard made it his mission to implement a better system of dealing with the identification and processing of recovered animals.
Dr. Stoddard demonstrated some of Avid’s technology at a U.S. Livestock Committee trade show in around April of 1990.
A few days before the patent application was filed, the inventors assigned their rights to Avid. Dr. Stoddard signed the small entity status affidavit filed with the patent.”
Ida say that was personally as well as Officer-like involvement bucko. How do your words taste?
You wanta meet Ned? why not make it a dinner date – ya each can bring your comments about me.
Ned I would like to meet you one day.
Ken, the consequences of the welfare state were known. We already had the example of Indian reservations. Nixon made it an issue in ’68 and called for integration and affirmative action, not welfare, as the long term solution. He won the election and began an aggressive affirmative action program with quotas and timetables designed primarily to integrate unions in the South. But the Dems always held sway in Congress. Nixon was unable to undo the welfare state.
But back to Jim Crow Johnson. So long as the black man was kept under the iron boot of Jim Crow, the democrats actively resisted all forms of integration. But, once blacks got their rights as a result of Brown v. Board (Earl Warren, Republican chief) and Eisenhower’s use of troops to enforce, blacks now could attend white schools, ride on white busses; eat in white restaurants and the whole nine yards, the fabric of Jim Crow was rent asunder. Something had to be done, and it was.
It is tragic that the blacks think their continued poverty is something that Republicans did to them. All they have to do is look to their Democrat masters to find out why they are consigned to the ghetto with no way out.
Back to Brown v. Board, that was the work of Earl Warren, a Republican, who forced the court into an united opinion based on this argument:
“Warren convened a meeting of the justices, and presented to them the simple argument that the only reason to sustain segregation was an honest belief in the inferiority of Negroes. Warren further submitted that the Court must overrule Plessy to maintain its legitimacy as an institution of liberty, and it must do so unanimously to avoid massive Southern resistance. He began to build a unanimous opinion.”
link to en.wikipedia.org
Republicans freed the slaves and Republican ended Jim Crow. Had Nixon a Republican congress, he would have ended defacto segregation as well.
But little do we know of this history today, as all we hear from are the like of IANAE and Malcolm who really don’t seem to care about history.
Race is not that importat. What I want to know is why deBeers gets to have a monopoly on diamonds and the Rothchilds, Morgans and Rockerfellers have a monopoly on money. It is these monoplies that must be terminated. The argument over race is merely a distraction set up to further these monopolies. Jackson was right, as was Kennedy. The Federal Reserve bank must end. How many people of the non-white race have you seen running Western Civilization’s money supply. Why don’t we start there is ending racism. Then we could get trickle-down affirmative action.
Very good comment about Johnson Ned. I was often puzzled by the welfare state, because the people operating within it would always want to ensure that they have people to service in order to achieve job security. In other words, the welfare state, as designed promotes keeping people in poverty. I believe you hit the nail on the head. Perhaps it was Johnson’s intent to maintain segregation under the guise of ending it.
Ping pong your logic borders on the absurd. So if a Corporation Acts in a matter before the USPTO then the knowledge of every agent of that Corporation must be analyzed for materiality? That is absolutely insane.
Now the Corporate Form is treated as a person. However, a Corpration cannot represent itself before a court or the USPTO. It must be represented by an agent. That would be the attorney/agent of record. They have the duty pursuant 1.56, as does the Corporation. As the CEO is not a registered practitioner or an inventor, and not the Coproation (remember the Corporation is a separate entity) I ask you again, how is it that the CEO has a duty pursuant to 1.56? It must be more than the fact that he is an Officer of the company and that he participated in the prosecution. In fact, the only justification I can see for imputing the duty of disclosure upon the CEO is that he was acting in his official capacity as CEO and not merely in his own self interest, i.e., he was curious. If the duty pursuant to 1.56 is merely because he is an officer of the company and participated in the prosecution what one is doing is one of two things: 1) completely ignoring the corporate veil: or 2) holding the corporation liable for all information contained by its agents to determine the materiality of the same.
Now let’s say it is within the CEO’s job description to assist with the prosecution of patents . . . well then that makes him an agent of the corporation for which the duty pursuant to 37 CFR 1.56 should apply. However, it should be up to the Corporation and not the courts to determine the function of the agents of a corporation. In other words, a business entity should be able to arrange its internal affairs as it sees fit. In my opinion the court has reached too far in and imposed a liability upon an individual in contravention to the 13th Amendment by ingoring the Corporate Form. The Federal Circuit opinion does violence to so many areas of law to reach a result that it would take a law review article to clearly articulate why this opinion should be depublished and/or rescinded and/or overturned by a higher court. I have touched only upon the areas that I think people who read this blog with the time alloted could quickly grasp. However, there are several areas that are problematic. Once you start messing around with internal operations of a corporation all sorts of issues must be considered. I saw none of this in this case.
Kenny,about that 13th Amendment issue:
Yeah – the company that the CEO heads has not put themselves under the rules of the PTO cause they have nothing to do with patent application’s prosecution. Nothing whatsoever.
O wait – they do have something to do with the prosecution cause they have claimed the right to prosecute the application. Well in that case, Kenny, you be full of Sheepdip.
Excerpt from Nixon’s acceptance speech:
“And this brings me to the clearest choice among the great issues of this campaign.
For the past five years we have been deluged by Government programs for the unemployed, programs for the cities, programs for the poor, and we have reaped from these programs an ugly harvest of frustrations, violence and failure across the land. And now our opponents will be offering more of the same – more billions for Government jobs, Government housing, Government welfare. I say it’s time to quit pouring billions of dollars into programs that have failed in the United States of America.
To put it bluntly, we’re on the wrong road and it’s time to take a new road to progress.
Again we turn to the American Revolution for our answers. The war on poverty didn’t begin five years ago in this country, it began when this country began.
It’s been the most successful war on poverty in the history of nations. There’s more wealth in America today, more broadly shared than in any nation in the world.
We are a great nation. And we must never forget how we became great.
America is a great nation today, not because of what government did for people, but because of what people did for themselves over 190 years in this country.
And so it is time to apply the lessons of the American Revolution to our present problems.
Let us increase the wealth of America so we can provide more generously for the aged and for the needy and for all those who cannot help themselves.
But for those who are able to help themselves, what we need are not more millions on welfare rolls but more millions on payrolls in the United States of America.
Instead of Government jobs and Government housing and Government welfare, let Government use its tax and credit policies to enlist in this battle the greatest engine of progress ever developed in the history of man-American private enterprise.
Let us enlist in this great cause the millions of Americans in volunteer organizations who will bring a dedication to this task that no amount of money can ever buy.
And let us build bridges, my friends, build bridges to human dignity across that gulf that separates black America from white America.
Black Americans – no more than white Americans – do not want more Government programs which perpetuate dependency. They don’t want to be a colony in a nation. They want the pride and the self-respect and the dignity that can only come if they have an equal chance to own their own homes, to own their own businesses, to be managers and executives as well as workers, to have a piece of the action in the exciting ventures of private enterprise.
I pledge to you tonight that we shall have new programs which will provide that equal chance. We make great history tonight. We do not fire a shot heard round the world, but we shall light the lamp of hope in millions of homes across this world in which there is no hope today.
And that great light shining out from America will again become a beacon of hope for all those in the world who seek freedom and opportunity.”
IANAE, feel backed into a corner, do we?
allow gay marriage with the proviso that they cannot automatically be considered to be a “nuclear” family for the purpose of adopting kids.
Do you think we should do the same for black people? AFAIK most black people do not disagree with it. But I haven’t asked a whole lot of them. I prefer not to visit that part of town.
On gay rights my position is simply this: allow gay marriage with the proviso that they cannot automatically be considered to be a “nuclear” family for the purpose of adopting kids. The central argument of anti-gay marriage folks is just this: that kids should be raised in nuclear families. AFAIK, most gays do not disagree with this.
And, just to make this clear: Tea Party people think Dems are anti-white. What I am saying here is that Dems are anti-black.
Mooney, “it” is everything that maintains the ghetto.
One more point: vouchers. Now most people think the Dems oppose vouchers to maintain union schools. But it is also necessary so that the poor blacks stay put in the ghetto and not be allowed in the pristine hallways of the schools of rich white folk.
Add it to the evidence and the pattern becomes overwhelming that Dems intend blacks to stay segregated.
Besides, at the time (1967-8) everyone knew what the welfare state was intended to do. Put the blacks on reservations just like the Native Americans. Put them there, keep them there and ignore them except when you need their votes.
Yes Malcolm, when we know the effects of government policies, and yet we still maintain them, you could accurately state that we intend the effects.
Turning the page, Malcolm, to planned parenthold. It was established by an avowed racist, a woman named Sanger, in order to reduce and eliminate inferior peoples. The primary target were black folk. Sanger spoke at KKK ralies and was one of their heroes. She remains a hero to Hillary Clinton.
Now, what was Roe v. Wade all about? Allowing the poor to have abortions. That’s what. (Justice Ginsberg recently acknowledged this.) Now, who are the poor? Yeah that’s right. The blacks.
And so on and so on and so on.
Yeah the Dems are not racists. But they certainly know how to segregate. It is not an accident that a Southerner, Johnson, came up with the welfare state even as separate-but-equal was being dismantled.
What is more telling is whether you are a socialist.
I’m more curious about whether you’re a socialist. You support the 13th Amendment, which clearly weakens private property rights and distorts the free market economy, while giving free benefits to people who apparently couldn’t be bothered to get paying jobs.
See, “socialism” is the new Republican buzzword for cooperation, basic civil rights, basic government services, and any regulation of the free market economy. As long as you’re using the word in that sense, I’ll proudly call myself a socialist.
“Whether or not you are a socialist largely irrelevant.”
Fixed.
I don’t care what political philosphy you like, this country says that as long as you obey the laws, you can believe what you want.
Another reason the US sets the Gold standards.
Whether or not you are inane is largely irrelevant. What is more telling is whether you are a socialist.
You know it just dawned on me, IANAE, you mispelled your monikor: INANE.
You know, it just dawned on me that you misspelled “moniker”. And “misspelled”. And “suddenly”.
It just dawned on you? Really? People have been calling me “INANE” pretty much since I got here.
Lucky for you I’m unarmed, or that could have gotten embarrassing for you in a hurry.
Ned, your 12:08 post contains so much ridiculous b.s. that I am not going to bother with all of it. No surprise that you are reciting the tea party line about who the “real” racists are (Democrats! Of course!). But this part takes the cake:
Now some may argue that this was an unintended consequence of the welfare state state created by Democrats. I would argue in contrast that it was intended and intentional and the reason that the Democrats want to maintain it is to keep the blacks segregated.
Can you elaborate? What is “it” exactly? Unemployment benefits? Food stamps? Social security? What? And you are proposing that Democrats (including many black congresspeople??) support such measures because they want to “keep blacks segregated”? If there is “no residual issue of civil rights today” (LOL), then why do Democrats want to “keep blacks segregated”?
Looney tunes, man.
There is no residual issue of civil rights in America today except perhaps for gay rights.
Of course the fact that the party which is plainly and most vehemently opposed to equal rights for gays is the Republican party … but that’s just a coincidence, right, and has nothing to do with the fact that it’s the same tolerant white people whose heads are exploding because we have a black President (remember when McCain had to kick his own constituents in the teeth because they couldn’t keep their traps shut during his campaign)? Remember the grown white openly racist McCain supporters weeping because “America was changing”? This actually happened. There’s a movie about these people, Ned. Rather than dig a hole trying to defend them, better to dissociate yourself from them in a clear way becuase they are trying to take over the Republican Party.
Unless of course you don’t really care.
You know it just dawned on me, IANAE, you mispelled your monikor: INANE. The guilt has overcome me for I suddently realize I have been having a battle of wits with an unarmed man.
Q.E.D.
that’s latin.
Ned: I would even argue that Democratic Party today continues to favor segregation. It supports welfare without a requirement for work. Now exactly what happens when a family can live in government housing, eat government food, etc.? They live in a ghetto, separate and apart from society.
I believe you’re referring to the phenomenon of rich white Republicans taking their money and moving to gated communities while the ethnic folk have no choice but to live separate and apart from them in poverty.
Give the poor government housing in a gated community, and watch how fast the white people move away again.
the 13th Amendment ends an institution that is the epitome of socialism: slavery.
I wonder if the abolitionists of the day were asked silly and biased questions like “why do you oppose strong personal property rights?” and “if I can’t spend my money on slaves, won’t I lose my incentive to excel?”
In conclusion, any patent with fewer than 13 amendments is clearly invalid.
Avid’s patent still unenforceable.
Yes Malcolm and as I have been trying to make patently clear, in my opinion, the rationale for that has a great deal more to do with the economic philosophy of the authors of the opinion than any justification that could be found in equity or law: because in my opinion there is not justification for imposing a duty upon the CEO in equity and law, especially when the 13th Amendment is considered. More to the point, to ignore the 13th Amendment is to be a socialist, because the 13th Amendment ends an institution that is the epitome of socialism: slavery. There I have connected the dots.
In short every single act in the United States must be measured against the prohibition of the 13th Amendment. Remember it is the only amendment that applies to both private and public conduct. Why is it constantly ignored? I already answered that question.
IANAE, I clearly suggested once before that times have changed. No main party supports segregation and denial of equal rights to blacks. That era is over.
The issues that divide the parties today are mainly economic and to some degree social. There is no residual issue of civil rights in America today except perhaps for gay rights.
What I object to is labeling Republicans as racist when the party has never in its history supported racism, but has consistently supported civil rights. The only party that ever supported slavery and segregation is a Democratic Party. I would even argue that Democratic Party today continues to favor segregation. It supports welfare without a requirement for work. Now exactly what happens when a family can live in government housing, eat government food, etc.? They live in a ghetto, separate and apart from society. Now some may argue that this was an unintended consequence of the welfare state state created by Democrats. I would argue in contrast that it was intended and intentional and the reason that the Democrats want to maintain it is to keep the blacks segregated.
Did you know for example that this very issue was argued in the 1968 presidential campaign. Nixon argued that the problem with welfare was that it would lead to segregation. He rather wanted to promote integration as the way forward which was why he came up with affirmative action. However the Democrats controlled Congress and he could not reverse the welfare state that they had created.
Update: Avid’s patent still unenforceable.
So, IANAE, just to be clear, in your opinion the South today is racist and not just patriotic, anti-socialist, pro-life, low tax, small government types?
Just to be clear, Ned, in your opinion it’s the South as a whole that has changed and not the ideologies of the Democratic and Republican parties?
And I’m starting to tire of the implication that disagreeing with conservatives somehow makes one unpatriotic. Disagreeing with conservatives is one of the founding principles of this country, which is why it was the very first civil right amended into the Constitution.
The only explanation for their allegiance to a party who believes in economic freedom, business, anti-unionism, anti-socialism, pro-life, and small government is race?
It was your only explanation when they voted Democrat. I don’t mind if you say it’s my only explanation when they vote Republican, but I note for your reference that many of those issues do appeal to the same demographic.
So, IANAE, just to be clear, in your opinion the South today is racist and not just patriotic, anti-socialist, pro-life, low tax, small government types? The only explanation for their allegiance to a party who believes in economic freedom, business, anti-unionism, anti-socialism, pro-life, and small government is race?
Nice.
6: Isolated, of course. Oh wait, is that your natural state?
Well played, 6. Well played.
Max: In that the US Constitution takes all power from one King George and gives it to the many People in the USA, it is the mother of all “socialist” tracts, isn’t it?
You mean that whole bit about the taxpayers controlling the means of tax production? Doesn’t sound remotely socialist to me.
they are also the party of Lincoln,
They have the same name as the party of Lincoln. I think it’s been long enough now that they shouldn’t be entitled to reach back to Lincoln as a symbol of their racial tolerance.
during the era of Jim Crow where the Democrat-run South kept the blacks enslaved even though they were nominally free.
How has the South been voting lately?
IANAE, you really do not understand how free enterprise works. It takes government power to enslave workers.
No, free enterprise does a pretty decent job of it. I guess you’ve never worked for a railroad or a textile mill during the industrial revolution. Or, say, Wal-Mart.
Workers who are truly free can leave an oppressive master.
Black people who felt oppressed by slavery could just up and leave for more tolerant places. That was easy to do, right? I assume there are lots of companies these days that would gladly pay their unskilled and fungible workers quite well out of the goodness of their heart-analogues.
Laws that support this, by preventing black listing and the like, benefit the worker.
Ah, I see. It takes government power to prevent the enslavement of workers by free enterprise.
laws that allow unions to artificially drive up labor costs beyond what a free market would pay,
I’ve always been puzzled at how conservatives don’t see unions as part of the free market. A union is a group of individuals who, when they get together, have legitimate economic power that they collectively exercise. Nobody ever complains that a corporation is unfair because it has more market power (and now, political power) than an individual. Nobody ever complains that the army is unfair because a bunch of people band together to buy weapons none of them can individually afford and kill more enemy combatants than they’d be able to kill individually. All that cooperation sounds pretty socialist to me.
This is absolutely beautiful. Now, that you are all in the right frame of mind, when you read an opinion on IC from any District Court pay close attention to the reasoning and you will be able to identify socialists from non-socialist on our Federal Benches.
MaxDrei you are so confused in your understanding of governmental and economic structures that I it becomes difficult to straighten you out. Firstly, it is my quote that you are addressing not Ned’s. Secondly, you assertion of the U.S. being socialist begins with the premise that King George owned us in the first place. Well that is a premise that started the conflict. No man owns another. That is verboten.
Assuming, arguendo, that you are correct, King George would not have been our owners, because contrary to the propaganda that is taught in school, King George was not an absolute rulers. If anything the King George weilded power pretty much in the fashion of our modern President. The King had a court and politically powerful people who he could not upset beyond a certain degree. Remember the Cromwellian revolt that ended with the beheading of a King. Well that was pretty much the Kenndey assination for the Royal Family of England. From then on the Kings knew they could go only so far and then off with their head. So you would be wrong to think that the King owned everything. Rather, the King was the authority under which the business interests of England justified the opression of our ancestors.
With respect to socialism, that is directly related the to distribution of wealth in a society . . . not the structure of political power. It is interesting, however, that you recognize that democracy is inherently socialists, in its distribution of political power. This is exacly correct. The is the beauty of democracy. By distributing the power among the many, personal property and liberty are believed to be secured. This sets the stage for the tension in our country in which capitalism is exhaulted. Democracy does not require capitalism to survive. In fact, in the agrarian capitalism was not needed at all when a person supplied virtually all their needs themselves. In fact China has a capitalistic economy and a communist government. We see that capitalism thrives in China. Moreover, we see many capitalists wanting to adopt the China governmental structure because it advances capitalism. These individual are analogous to the ones in the 1930s, that wanted to adopt German socialism, now called fascism, in order to advance capitalism in the U.S.
I would say this, however, I am not convinced that democracy and capitalism can co-exist absent a certain threshold of wealth in a culture. This is why we, in the U.S. are feeling incredible pressure on our institutions to be socialized.
I did not mean to impugn that “over there” you are not individuals. If you took my comment that way, it is easy to see why you missed th epoint of my “big difference”. The difference is purely in the political philosophy arena.
Your 20 dollar question was not answwered, not due to the ease or difficulty, but rather due to the lack of any point that the answer would provide. Any particular cost comparison would be lost in the extraneous factors of type of society and government rules of funding operations. The 20 dollar question simply isn’t worth answering.
Thanks, ADD. I will look for Rich in Stevens.
Lost me there, on your “big difference” but I’ll mull it over. Meanwhile, just to reassure you, over here we are individuals too you know.
One view is that the 20 year monopoly is the price to be paid for the Progress that comes from the publication of an enabling disclosure of the invention. Another view is that the Progress comes from being forced to design around. Either way, a properly functioning patents system does Promote the Progress of Useful Arts. In that way, the individual inventor wins, but no more and no less than “The People” (individual or in aggregate) win.
I guess my 20 dollar question is not so easy to answer without looking it up.
“and gives it to the many People in the USA, it is the mother of all “socialist” tracts, isn’t it?”
MaxDrei,
The big difference is that in America, the giving to the many is the giving to the many “individuals” as opposed to the giving to the many “as a collective state” with the government in place of the collective state. I cannot stress the “as individuals” strongly enough.
To your PS – you only reach half way there in your understanding. You need to reach both the Quid and the Quo. Yes, there is a collective as in the people as a whole are enriched, but there is also a non-collective individual, the inventor, that is equal to the collective. It is this individual exalted for his creativity and for which the “monopoly” is so deservedly and liberally rewarded with patent rights that must be recognized. Surprisingly, a source that richly supports this is the Rich reference cited in the Steven’s dissent (dressed as a concurrence) in the Bilski decision. Ironic it is that Stevens quotes the Rich article only in dicta for a point that Rich was not addressing and ignores the meat of the article of which Rich was discussing.
Ned, you say:
“It is the epitome of socialism. It takes all from one and gives to the many.”
and it set me thinking. In that the US Constitution takes all power from one King George and gives it to the many People in the USA, it is the mother of all “socialist” tracts, isn’t it?
And that’s even before I see that bit about taxing the individual, in order to provide the “general Welfare of the United States”. The Framers here were not talking about the welfare of the United States in the sense of the health of its rocks, soil and bodies of water, were they?
But if they were talking about the “welfare” of US citizens, well that’s um socialist then, isn’t it?
Don’t get me wrong. I’m not lecturing. Quite the reverse. I’m just curious.
PS. How about the patent system contemplated in the Constitution. That too is driven by a socialist urge, isn’t it. It takes an invention from one and, in publishing it, gives it to the many, thereby to stimulate progress (for the many to enjoy) in useful arts.
PPS: what’s this I see, about “Offenses against the Law of Nations”. So, there is such a thing as the “Law of Nations”. I had supposed you thought not.
PPPS. 20 dollars in 1787. How much is that, in today’s money?
I even envy you for your ability to design your blog so beautiful! I like it very much it is just my favorite style! Thanks a lot !
“Then they claimed me.”
Isolated, of course. Oh wait, is that your natural state?
“Workers who are truly free can leave an oppressive master. ”
Hardly. Especially if there is nothing but oppressive masters in your area. You presume, without evidence, that there are non-oppressive masters or other opportunities in this situation, especially for a given worker.
“But laws that allow unions to artificially drive up labor costs beyond what a free market would pay”
Wait wut? I think you mean they artificially drive up labor costs beyond what a boss would pay. How much the customer would pay and how much the boss would pay are two distinct things.
I lol this whole thread.
But laws that allow unions to artificially drive up labor costs beyond what a free market would pay
There’s that old “free market” being brought up again. What country are we talking about? Certainly not the U.S.
Must be some other country. Which one?
IANAE:
“Unions favor the few at the expense of the many? More than, say, exploiting workers for pennies a day in awful working conditions to increase the profits for the owners of a company?”
IANAE, you really do not understand how free enterprise works. It takes government power to enslave workers. You saw this in the Roman Empire, in Russia during its socialist phase, in Haiti, in Communist China, in Nazi Germany during the war; and indeed, in the US during the slave era and also during the era of Jim Crow where the Democrat-run South kept the blacks enslaved even though they were nominally free.
Workers who are truly free can leave an oppressive master. Laws that support this, by preventing black listing and the like, benefit the worker.
But laws that allow unions to artificially drive up labor costs beyond what a free market would pay, appropriate to themselves the wealth of the country — as labor costs are passed on to a business’s customers through price increases.
Oh certainly so my friend. It is the epitome of socialism. It takes all from one and gives to the many.
He smashed one of the dispicable socialist institutions in the history of the United States: Slavery
Slavery was a socialist institution?
I would look at the Volkswagen pay structure during the 1930s and 1940s. It is what made me weary of receiving stock as payment. I like my money up front.
Volkswagen’s pay structure made you weary of receiving stock as payment? What did you do during your time at Volkswagen?
And, may I remind you IANAE, that it was the Democrat party that was the party of slavery, who revolted both South and North against the black man, who ruled the South until civil rights was made the law of the land; who invented the KKK as its terrorist wing; who forced Jim Crow on a divided nation in 1878; whose most prominent presidents including Wilson and Roosevelt were open and notorious racists; who proudly calls the anti-Semite Jimmy Carter one of their own; whose former president Clinton just a few days ago defended Senator Byrd for being a leader of the KKK.
I grew up in the North, but I saw a lot of racism in the 50s and 60s. ALL of it was from working class Democrats.
To this day I do not understand just how the racist Democrat party was able to convince blacks that it was the Republican party that was the party of slavery, when it was they who were the racists in America.
Ah, come on IANAE. Stop this about the Repubs being racist. They certainly are anti-communist, anti-socialist, anti-union, pro-tax cut, pro free enterprise; but they are also the party of Lincoln, the party who brought us the Civil Rights acts of the 1860s and 1957, the party who brought us the 13th and 14th Amendments, the party whose every platform from 1860 ’till the present day is pro-civil rights, the party who opposed slavery, Jim Crow and the party who sent the troops South to enforce Brown v. Board of education; the party who invented affirmative action in the ’50s and gave it teeth under Nixon; the party who united with Northern Democrats to pass the Civil Rights Act of 1964; the party that has a long an proud history of supporting civil rights and opposing slavery.
To call this party racist is to rewrite history.
Here ya go Ned: link to rexcurry.net
By the way you may want to rethink that whole being for the working man thing with the Nazis. I would look at the Volkswagen pay structure during the 1930s and 1940s. It is what made me weary of receiving stock as payment. I like my money up front.
Let us not forget that the first Republican President was Lincoln. He smashed one of the dispicable socialist institutions in the history of the United States: Slavery
Republicans are simply non-racist Nazis.
Wow. That truly hammers home just how racist the Nazis were.
Excuse me for interrupting, but did someone just compare the status of US inventors to that of the Jews during the Holocaust?
First they claimed the hedges, and I said nothing because they were abstract.
Then they claimed the software, and I said nothing because it was not directed to a particular machine.
Then they claimed the medical devices, and I said nothing because I was insured.
Then they claimed the canola, and I said nothing because it wasn’t in my field.
Then they claimed the genes, and I said nothing because they were isolated.
Then they claimed me.
Excuse me for interrupting, but did someone just compare the status of US inventors to that of the Jews during the Holocaust?
No, I don’t think so. But we have learned that Republicans are simply non-racist Nazis. They’re for the common folk.
Excuse me for interrupting, but did someone just compare the status of US inventors to that of the Jews during the Holocaust?
It actually shows us that … unions hurt prosperity as a whole, favoring the few at the expense of the many.
Unions favor the few at the expense of the many? More than, say, exploiting workers for pennies a day in awful working conditions to increase the profits for the owners of a company?
Ken, Nazi r acism did not help Germany — ever. Had they not been so r acist, they may have gained the allegiance liberated Soviet peoples, for example, who could have helped them against partisans and the like that in the end helps k ill the Nazis. Further their r acism drew the ire of rest of the world who grew to h ate the Nazis. It is largely all that we can remember of them. Racists — to be h ated.
True the Nazis started off as anti-capitalist socialists; but, in the end, they did a deal with German industry to suppress the more radical anti-capitalist elements of the party. Regardless of the deal with the industrialists, the Nazi power base remained centered on the worker and the common man, not on suppression of his interests.
What happened in Germany showed us that one can be for the common folk without being a socialist and without favoring unions. It actually shows us that socialism and unions hurt prosperity as a whole, favoring the few at the expense of the many. Real wages for German workers rose across the board as the economy as a whole boomed.
Oh, right. We don’t torture.
You’re not being fair, IANAE. Ken suggested only that we don’t target people for execution and/or torture. Torturing people who just happen to fall into your clutches is different. At least in degree.
IANAE Sunni muslims round up Shiite muslims and slaughter them and vice versa. Would you say that those two religious groups are opposites?
No, I would not.
Would you say they’re both communists? Or would you say that comparing one very abstract aspect of what a government does without any examination of the underlying motivation is a lousy basis for comparing ideologies?
in my view a government that would be opposite to either the Nazi Socielists and the Soviet Socialists would not target people for execution and/or torture. … The 20th century United States government would be the opposite form of government.
Oh, right. We don’t torture.
That’s beautiful, ping. Sarah, do you have anything to add?
Inspired by “Ping, despite your childish rhetoric“:
Like a child you whisper softly to me
You’re in control just like a child
Now I’m dancing
It’s like a dream, no end and no beginning
You’re here with me, it’s like a dream
Let the choir sing
You know I really need to get back to work but this phrase by IANAE speaks loudly about his underlying thought processes-it disturbs me.
“And the fact that both governments targeted completely different groups as enemies of their policies, for completely different reasons, is what you consider a “difference of degree”. Both governments had people they disliked, so their underlying ideologies were probably basically the same, right?”
Yes IANAE that would be correct, because in my view a government that would be opposite to either the Nazi Socielists and the Soviet Socialists would not target people for execution and/or torture. Apparently, you do not even consider such a government as a choice, which is a sad statement on todays culture. The 20th century United States government would be the opposite form of government. That is probably why spurious codes in state laws were repealed, like the Calfornia Chinese Exclusion Acts. The U.S. wanted to be a country that was opposite to those of Nazi Germany and the Soviet Union and not merely different in degree.
IANAE Sunni muslims round up Shiite muslims and slaughter them and vice versa. Would you say that those two religious groups are opposites? Here is a real test of the intellectual prowess, what is the difference between the Sunni and the Shiite ideology. I will give you a hint, it is one of degree not polarity LOL
It is clear that in our society there are several classes of people that have been targeted as not being worthy of sharing the benefits of our society. The war against inventors based upon IC clearly, in my mind, makes them such a class. This is a war that started under Bush ’43 and continues today.
Don’t you long for the good old days, when America only targeted the Japanese and communists? Wait, I guess America was a communist country back then too.
Good thing we’ve smartened up since then, and now we’re targeting those wealthy independent inventors and Mexican vegetable-pickers. Once we take all their money we’ll be on the road to a speedy recovery for the remaining capitalists who clearly have no intention of getting their hands on other people’s money.
As a side note, Einstein was at best agnostic.
As a side note, it doesn’t matter how you self-identify if the Nazis say you’re a Jew.
Ned I have to disagree with you on your points that “the racism of the Nazis had nothing to do with their economic recovery. If anything, it hurt Germany as many well-educated and wealthy Jews left the country.”
Racism was the exact reason that the German people saw meteoric recovery. They decided which ethnic groups to remove and then confiscated their wealth and redistributed it to the acceptable ethnic groups. Some of those ethnic groups were very wealthy. Let us not forget that is was the world banking community that was funding both sides of the war, but that is a different story. Without confiscating the wealth of those ethnic groups Nazi Germany would have had a tough time of it. As for the exodus of smart people, suffice it to say that Germany had plenty of intelligent people. We used their technology to send men to the moon and many other systems. The smart bomb that we use today was invented by the Luftwaffe. Even infra-red technology was perfected by the Nazis during WWII. Our interstate system is based upon the Autobahn. I can go on, but it is most irrelevant as you get the point.
Nonetheless, it could be said that this principle is alive in the U.S. I have seen tens of thousands of my fellow citizens cast out of their homes and living is abject poverty as a result of the bail out of the banksters. It is clear that in our society there are several classes of people that have been targeted as not being worthy of sharing the benefits of our society. The war against inventors based upon IC clearly, in my mind, makes them such a class. This is a war that started under Bush ’43 and continues today. It did, however, culminate is a resounding triumph for the American way of life when the socialists were stopped dead in the tracks in the Glaxo Smithkline case.
Most assuredly some type of class warfare is why Communist China is doing so well. Chinese prison labor is well known source of many of the goods coming to our shores.
As a side note, Einstein was at best agnostic. He didn’t believe in religion, but did believe in a God. Here is a quote “The word God is for me nothing more than the expression and product of human weakness, the Bible a collection of honorable, but still purely primitive, legends which are nevertheless pretty childish.”. Hardly the ideology of a religious man.
This has to be one of the most educational threads we’ve had in a while. So far, I’ve learned that the Nazis were pretty cool (a lot like Republicans, apparently) except for that racism and war-mongering stuff. (“But the trains ran on time,” isn’t that the expression?) Plus, I’ve learned that refusing to pay workers (and/or mutilating them for fun and profits) is a socialist strategy, and that “economic socialism” is a capitalist’s dream, because you can’t lose! Great stuff!
I would contest your assertion that Nazi Germany was the opposite of the Soviet Union.
They rounded up and killed communists.
Moreover, the term Nazi is based upon their name Nationalist Socialist German Workers Party. (Just in case you didn’t notice Socialist is the second word in their name)
Just in case you didn’t notice, right-wing governments love putting fancy names on things. Look at No Child Left Behind that left every child behind, the Patriot Act that subverted fundamental American values, the American Dream Downpayment Assistance Act that laid the shaky foundations for so many American dreams, the Homeland Security Act that emboldened terrorists and didn’t make anybody any safer…
It seems to reliably fool people like you.
The Nazi socialists believed in removing from the population certain ethnic groups. (By they way remove is a euphemism for exterminate) The Soviets believed in removing from society certain economic classes.
And the fact that both governments targeted completely different groups as enemies of their policies, for completely different reasons, is what you consider a “difference of degree”. Both governments had people they disliked, so their underlying ideologies were probably basically the same, right?
I guess that explains why all these “socialist” Nazi policies culminated in war against their Soviet “brethren”.
Pretty much everybody who is vocal against patents these days is being purely capitalist about it. They believe they would personally be richer or more successful (i.e. have more personal property rights) without patents getting in their way. “cuse me while I sneeze . . . ah choobull $hit”
Yes, yes, yes. Those pesky personal property rights keep getting in the way of prosperity. Very, very interesting ideology. You know what also gets in the way of personal wealth and affluence, perhaps having to pay the workers. Perhaps if the workers can do with less than personal wealth of the capitalist would increase. At least that is what the Krupp family believed-one of the most powerful industrial families in Germany link to en.wikipedia.org
Of course if the workers won’t work without pay what is a good capitalist to do: King Leopold of Belgium had an idea: link to en.wikipedia.org . . . mutilate their bodies (you can think of this as an expedited way of showing the workers they don’t have health care . . . why wait until they are old and sick . . . give them a reason to need it and don’t provide it)
But returning to Nazi Germany, I would contest your assertion that Nazi Germany was the opposite of the Soviet Union. Moreover, the term Nazi is based upon their name Nationalist Socialist German Workers Party. (Just in case you didn’t notice Socialist is the second word in their name) The is a dearth of history you have been taught in school about the development of Nazi Germany. The Cold War has much to do with this. The fact is that the Soviet Union embraced the fledgling Nazi party in the 1920s. The Nazis also embraced the Soviet Union as a brethren socialist state. It was not until the elections of the 1920s that the Nazis realized that they had to distance themselves from the socialist ideology of the Soviet Union. However, the difference between the two ideologies was one of degree-not polarity. The Nazi socialists believed in removing from the population certain ethnic groups. (By they way remove is a euphemism for exterminate) The Soviets believed in removing from society certain economic classes. However, both had the common goal of accumulating to the state the wealth and resources of private citizens and removing from the population vasts members found not worthy of sharing the property of the state. In addition both achieved the goal of merging the merchant class with the state. They were not opposite ideologies by any stretch of the imagination.
The socialist agenda of the current ruling class of the United States is most interesting. It is an economic socialism: the privatization of profits is maintained; however, losses are socialized. If you think about it, I would say that the true architect of modern U.S. socialism is the Courts of the United States. For this is an ideology that finds itself deeply entrenched in tort law whereby the losses are attributed to the party in the best position to absorb the loss. Unfortunatley for most of U.S. it is the U.S. taxpayer.
In a way true, in a way not true.
Certainly the racism of the Nazis had nothing to do with their economic recovery. If anything, it hurt Germany as many well-educated and wealthy Jews left the country. Einstein among them.
The warmongering occurred long after the German economic recovery was well underway. That was not the reason for the economic recovery.
What the Nazis did to is ban communism, arrest the Communists and put them in concentration camps, suppress unions, fix both wages and prices, forbade employers to lay off workers without government, kept taxes low while massively increasing government spending, built the autobahns, the VW, vacations for the common man, provided radios in every home.
Now some of this does sound like the policies advocated by the Republican Party. Some of it does not. But what is very true is that racism and war mongering had very little to do with why the German economy took off. Rather it had a lot to do with suppressing communism, unions, controlling wages, keeping taxes low while increasing government spending on infrastructure, and bringing the people autobahns, VW’s, radios and vacations.
Iit was about the common folk and jobs.
the fact remains that if one is anti-patent, one is against personal property rights,
Oh, just like Bill Gates. He hates all those personal property capitalist things like successful businesses, ambition, and personal wealth. What a big fat socialist he is.
Pretty much everybody who is vocal against patents these days is being purely capitalist about it. They believe they would personally be richer or more successful (i.e. have more personal property rights) without patents getting in their way.
Being against other people’s property rights because you want all the property for yourself is capitalist. It’s only socialist if you’re also against your own.
the socialist agenda of Germany in the 1930s and 1940s
You’re aware that Nazi Germany was the exact opposite of socialism, right? They were the first economy to emerge from the Great Depression, and they eventually brought the rest of the world with them. They did it with core Republican-type values like racism and a big army for fighting pointless unwinnable wars.
the health care reform
I remember all that fraud on the public during the health care debate. People were spreading all kinds of lies, like death panels and how America already had the best health care in the world. I’m glad that was one fraud that didn’t succeed.
Ping, despite your childish rhetoric the fact remains that if one is anti-patent, one is against personal property rights, which, in my book is a hallmark of a socialist. All one needs to do is study the socialist agenda of Germany in the 1930s and 1940s and the socialist agenda of the Soviet Union from the 1930s to the 1950s to understand that the loss of propery rights under such a regime is the least of our worries. The movement of couching a socialist ideology under the guise of stopping fraud using equitable principles is a fraud in itself. However, it is a fraud upon the public . . . aparrently defrauding the public has no consequence. Just look at the Banksters, BP, the health care reform and the list goes on.
a valid patent?
What is the point of holding an invalid patent unenforceable?
Had the intent would be to receive an invalid patent,
The intent was clearly to receive a patent by not letting the examiner see some art that someone involved in the prosecution of the application thought he’d rather the examiner didn’t see before allowing the patent.
That doesn’t strike you as a bad thing, irrespective of the ultimate validity of the patent?
But the intention to receive a valid patent is legal.
Yes, intending to receive a valid patent is legal. Intending to kill someone is also legal. It’s how you act on it that matters.
“the diligent inventors get the shaft”
They weren’t too diligent Kenny if they prosecuted as sloppily as we are to ASSume. Now mind you if they hired a couple of sharp lawyer folk – well they be sitting pretty no matter what happened down the road. If they be NPE, we strike a deal accordingly. If they be Empire building we strike a different deal.
C’mon Kenny – a trap has got ta have a few branches covering the snare. Try to pay attention to Malcolm’s traps – they have plenty of branches and will capture all kinds of small varmits.
LOL’s at Kenny – a poor man’s Malcolm.
“It is presumed” – No Kenny, you mean it is ASSumed.
Sigh, yet another blogger who has no experience in making deals.
At least my pal Cy recognizes what Kenny ASSumes – wtg Cy!