Libertarians Moving Against Patent Rights

Of interest on the political economy of patents.  Libertarians are now coming around to Stephen Kinsella’s point-of-view: that patents are not the type of property rights that libertarians should support.  From Cato:


140 thoughts on “Libertarians Moving Against Patent Rights

  1. 17

    FYI: is the Cato Institute’s website, not

    Most libertarians do not have an issue with patent rights, as it is a form of incentive-based economy. Where libertarian’s like me have a problem is when the government comes in and begins to pick winners and losers and regulate where the market is more efficient on its own.

  2. 16

    Libertarians who want to eliminate modern government functions should have to eat their own words. Specifically, eat food that has never been regulated or inspected, supplied by unregulated suppliers free to maximze profits by any competitive means. Like the Chinese libertarian companies that made money by selling chemically adulterated milk that poisoned numerous children. Plus, be able to invest their life savings in stock or bonds or banks in an entirely unregulated and uninsured industry that can be run by successful practicing libertarians like Jay Gould or Bernie Maddoff. Investing in R&D to invent publicly valuable new products would be a waste of time and money since without patent protection anyone else could take the same technology for free to make and sell the same products for less. But that does not mean that patent litigation does not need any regulation.

    1. 16.1

      Cur, food inspection? Why does government have to do that? Don’t you think that if the government simply stepped aside, that the private industry wouldn’t inspect food products as well?

      Ask yourself, does the FDA really do any good? Why not let the doctors decide based on published data, etc. They get sued if they make mistakes.

      And the beat goes on.


          Breach of contract

          Surely at least one of these would exist/be punished/be upheld in a libertarian society… even if it were done in the absence of a rational moral foundation.


            In a full libertarian society, the only rule is caveat emptor. If a person is dumb enough to buy soap packaged as cheese (a real case), that is that person’s problem.

    1. 15.1

      Phil – Last we checked, this site was about patents, not about personal attacks against those who disagree with our views on patents. If you feel Kinsella is wrong, show us, in precise terms, just where he strays from the path. Most here do not agree with Kinsella but none other than you has resorted to name calling. Let us show some class, please.

      1. 15.1.1


        “Godless commie” is not necessarily an insult, anymore than, “God-fearing capitalist” is an insult.

        Certainly, IF person A is “God-fearing” he may be insulted by being called “Godless”, BUT if in fact he is an Atheist he will be flattered to be called “Godless”, and in fact would be INSULTED to be called “God-fearing”.

        Equally, if Kinsella IS a socialist he may be flattered at being equated with the purest/best kind of socialist: the “commie” (communist) whereas he would be insulted at being called a “capitalist”.

        So, in summary, “Godless commie” is a statement of fact which may or may not be false, and may or may not be insulting to the degree by which it misses the facts of reality.

        I suspect from the reasoning in his article and from general statistics (although I have no real evidence) that Kinsella is a God-fearing socialist, and hence is partly half-flattered (called a commie) and half insulted (Godless).

        So “Godless commie” is sort of a 0.25 insult… but not necessarily so.


          Nonetheless, it was an ad hominem attack which lowers the level of discourse. Further, the attack contained no substantive refutation of the position of Kinsella. (Again, I do not agree with Kinsella.)


            Indeed the intent as does lower “the level of discourse”. Plus there is no evidence Kinsella does not know he is a communist…


              I am not defending Kinsella by any means. I just feel that name-calling does not further the discussion.

              Your statement “there is no evidence Kinsella does not know he is a Communist” turns evidence rules inside out. You attempt to make the absence of evidence into evidence. We have no evidence that you are not an agent provocateur who visits these pages to disrupt discourse and that you have been merely waiting for the right moment to spring.


            I don’t think it was an ad hominem attack at all. The point was really that in the case of patents, Kinsella’s libertarian views align with communist views because he is against patents, which protect (intellectual) property rights. So if you’re against patents, you’re advocating that people donate their property to the public for all to share freely, i.e., putting the property in the ‘commons’–thus a ‘communist’ idea. The “Godless commie” comment was IMO just a throwaway joke and should not be misconstrued as name calling or an attack, or used to distract from the main point.


              Unless the man declared himself a Communist, it was an ad hominem attack. “Communist” is a highly-charged word carrying with it images of gulags and pogroms. Let us not forget that in the McCarthy Era, which I lived through, people lost jobs and property merely because they were accused of being Communists. It was inappropriate for a discussion at this level. It is not the sort of thing sane adults joke about.


                Let us not forget that in the McCarthy Era, which I lived through, people lost jobs and property merely because they were accused of being Communists. It was inappropriate for a discussion at this level. It is not the sort of thing sane adults joke about.

                Pay attention, people.

  3. 14

    I think the author swings and misses on the biggest critique of the patent system. The best argument, from a libertarian point of view, is that a patent is not a natural right, but an instrument of government policy. Therefore, patents are big government, granting the privilege of one person to prevent another from doing what he would otherwise do. Obviously, the major premise here is disagreed by many, but that would be the author’s best argument. He missed it.

    I’m not against the patent system. I think the social benefits outweigh the social harm (at least for well-developed countries like the United States).

    1. 14.1

      I assume you are not throwing out “property rights” altogether (i.e. all not natural rights).

      What makes “ownership of land” a natural right, registered/defined according to government policy and whose rights are upheld/protected/enforced in court or by the police (i.e. by government), assuming (as you say) patents are not ? Please provide the differentia which are relevant to “natural rights”.

      1. 14.1.1

        First, I recognize patent as a legal right, but not a natural right. I think that it is an important legal right, and one we should continue to have.

        Real property as a natural right is one that is difficult to make for me, and not a great comparison, anyways. May I use the natural right to chattel, instead?

        If I were to make, let’s say, a violin from a piece of wood. Natural rights would let me keep that violin that I make. Paraphrasing Locke, anything made by one’s body or hands should belong to him or her. But does that mean that the violin maker should interfere with someone else’s ability to make a violin from another piece of wood… or even that tree that was cut down?

        You see the difference between a natural right to chattel (of which the creator made) and the right to prevent others from making similar chattel. The property interest is the conception of the invention, not merely the invention itself.

        I am very much aware of the counter-argument: the inventor should have the property interest on the market that the inventor created by his invention. To that I say, then why is it limited in time? If it is a natural right, why doesn’t the inventor have the right in “fee simple”? Because the government limits it… because it is a government granted right, not one that comes from natural law.

        If patents were a natural right, why did the founding fathers have to expressly provide in the Constitution that Congress had the ability to grant patents? Why do we have any requirement other than novelty? I will finally point out that most countries in the world do not view patents as a property right, but an instrument of government policy.


          Had the Kings not been granting patents to get skilled tradesmen to move to England whereby patents were a royal prerogative, the protection of inventions may have developed under common law just as did copyrights.

          The principle involved is that every man has a right to the sweat of his brow. This was the very principle under which common law copyright developed.


            I absolutely disagree. The courts at law HATED patent rights from the beginning. They held that it was a violation of common law for hundreds of years.

            The difference between copyright and patents is that you can get a copyright by just being creative (like a novelty requirement.) Correct me if I am wrong, you don’t have to apply for a copyright to get one. Furthermore, you can place it all the blame on letters patent in England as somehow stopping development of a common law right. Why hadn’t it developed in common law in other common law countries? No matter where you go in the world, you don’t get patent rights unless the country gives it to you. That is strong evidence that it is an instrument of public policy.

            Even if you are right that it would have developed, you are implicitly agreeing that the current state of patent law is not from natural law rights.


              J, well trade secret law is a form of protection of an invention.

              However, what makes patents different from trade secrets is the requirement of disclosure coupled with a limit on term.

              Copyrights could and probably should be indefinite.


          Thanks J for your thoughtful dialectic. One correction however: A persons unique thoughts are the natural right. There is no natural right to a patent. The patent construct is (was?) the American experiment in providing a State that would protect a person’s unique thoughts, subject to disclosure, novel, non-ob, enablemen, etc, in exchange for a limited right. The right to ‘sue out a patent’ comes from the constitutional experiment. Not from a natural right per se.

                1. Not according to the article which you probably have not read. Prior to printing, it was not much of an issue. Books had to be copied by hand. Few were literate. Once printing took off, the English Crown granted copy rights, often through “patents” and “monopolies”. First copy rights went to Richard Pynson in 1518.

                  Read the article. Note that the article does not mention common law rights If you have a cite, please copy if for us, ahem.

                2. Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 349, 118 S. Ct. 1279, 140 L. Ed. 2d 438 (1998).

                3. Where is Feltner does it state that common law copyright came first? To be first it must predate 1518. Feltner stands for the right to jury trial in copyright cases. It was decided on the copyright statute.

                4. Donaldson v. Beckett, UK, 1774 and Wheaton v. Peters, US, 1834. Both hold that copyright is not a “natural right” but a creature of statute.

                5. From Felther at 349, the page I cited.

                  I have tried to paste and post an exact quote, but no matter how many times I try, it will not post.

                6. As usual for Justice Thomas, a sloppy opinion in Feltner. I disagree with your conclusion that the holding necessitates that copyright be viewed as a common law right. The first two paragraphs under III (the first is quoted below) seems to support tifoso’s argument.

                  The Seventh Amendment provides that ” [i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . . ” U.S. Const., Amdt. 7. Since Justice Story’s time, the Court has understood “Suits at common law” to refer “not merely [to] suits, which the common law recognized among its old and settled proceedings, but [to] suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered.” Parsons v. Bedford, 3 Pet. 433, 447, 7 L.Ed. 732 (1830) (emphasis in original). The Seventh Amendment thus applies not only to common-law causes of action, but also to “actions brought to enforce statutory rights that are analogous to common-law causes of action ordinarily decided in English law courts in the late 18th century, as opposed to those customarily heard by courts of equity or admiralty.” Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42, 109 S.Ct. 2782, 2790, 106 L.Ed.2d 26 (1989) (citing Curtis v. Loether, 415 U.S., at 193, 94 S.Ct., at 1007-1008). To determine whether a statutory action is more analogous to cases tried in courts of law than to suits tried in courts of equity or admiralty, we examine both the nature of the statutory action and the remedy sought. See 492 U.S., at 42, 109 S.Ct., at 2790.

                7. J, I think the salient point of Felton, for the purpose of this discussion, was a copyright had developed it, law and England.

                  Whether and how common law copyright would’ve developed in United States without statutory support is a thing we cannot know. What is true though is that with the constitutional provision requiring limited terms, copyrights cannot extent forever in contrast to common law rights.

                8. You misread Feltner. It is about the right to jury trial on damages in a copyright action.

                  Copyright Act of 1976 abolished all state and federal copyrights, including any common law rights if such existed.

                9. tifoso,

                  Do you know why the discussion of whether copyright was a common law prior to 1792 right might be relevant to a decision on the 7th Amendment right to a trial by jury?

                10. First, it was Clarence Thomas who authored Feltner. His legal mind stopped at 1789.

                  Second, the decision does not depend on the definition of common law as set out in Blackstone’s Commentaries but on the distinction between law and equity. The terms “law” and “common law” are one and the same in the decision.

                  Third, nowhere does the decision hold that there was a common law, qua Blackstone, right to copyright.

                  You are making mistakes of interpretation that a middle range first-year law student would not make. You argue for the sake of arguing. Enough of your yah but.


                Ned – FYI. Thomas is an advocate of what is called “original intent”. To him, the Constitution means what it meant what he thinks the Framers meant in 1789.

                1. tifoso, If you have a link to where Thomas said what you just said, I would appreciate it.

                  However, it is hornbook law regarding statutory construction to interpret the terms of the statute as they were understood at the time of enactment of the statute. I presume the same should be true with respect to the terms in the Constitution.

                  In fact, I’d like a quotation to Supreme Court case that actually holds that the terms of the Constitution are not to be interpreted according to their meaning at the time of the Constitution so that they can be twisted and turned any which way at all such that the Supreme Court can effectively amend the Constitution by conveniently forgetting the original intent.

                2. Ned – You should know how to your own research.

                  You obviously have not taken Con Law yet, have you?

                  Think hard. What did the 14th Amendment do to the Constitution and that hornbook notation?


            Iwasthere: I’m not sure you are correcting me, I agree that a person’s thoughts, and concepts of an idea, are natural rights. That’s why I say there is a natural right to use the method one uses to make a violin. In fact, the second person who comes up with the same method should have a natural right to use that method.

            Ned, how do natural rights works in this situation (assuming first to invent system)… Person A makes method X, and Person B makes method X as well, after but independent of A. In our patent system, if A gets a patent, B is excluded from his “sweat of the brow” creation.

            Furthermore, lets say C derives/copies B in the above scenario (still first to file). B cannot stop C, because B was not the first to invent. But if the right to exclude was a natural right, then B should be able to stop C whom absolutely is copying B.

            I made all those assumptions under first to invent. But I cannot think how the right to exclude is a natural right. It seems in direct contradiction.


              J, I think trade secrets are form of protection of invention, but require some unlawful activity misappropriate the trade secret. The problem is of course that trade secrets do not protect against independent invention. That’s where a patent comes in. However the genius of the patent is the requirement for disclosure.

              So look at trade secret protection as a form of common-law patent, with additional rights provided by statute in exchange for disclosure.


                Reverse engineering, the simplest way around a trade secret, is not illegal activity. Trade secret protection in today’s world is all but useless.

                1. Regardless of the utility of trade secret protection, it is an example of common law protection of invention.

                2. Ned –

                  So what if trade secret is an example of common law protection of IP? What does that have to do with a claim that common law copyright came first?

                3. tifoso, I think we are running in circles here.

                  IIRC, the original statement was that the protection of inventions was not a natural right.

                  I begged to differ, as inventions, and copyright both flow from the right of a man to the sweat of his brow. The original English copyright cases held this. I suspect, the same would have developed for inventions and did develop to an extent by protecting trade secrets.


                What I am saying is that the right to exclude, the heart of the patent rights, is not a natural right. Trade secret might be a natural right, but that doesn’t give one the right to exclude.

                The fact of disclosure enforces my view that it isn’t a natural right. Patents are an instrument of government policy, to get it you have to do something that would normally be your right (keeping it secret.)

                1. Why is the right to exclude not a natural right? If I own a house, I have the right to exclude you from it. If I do not have that right, then I do not own that house. If I farm and produce crops, I have the right to exclude others from just helping themselves the fruits of my labors. If I write a book, I have the right to exclude others from copying my book. If I create a useful and novel piece of software, why can I not exclude others from simply taking the fruits of that labor? Where is the dividing line and why?

                2. J, well, we might never know what common law might have done absent the Statute of Monopolies.

                  Patents were a creature of crown prerogative. Patents on invention were one such creature.

                  But, assuming no Statute of Monopolies, the protection of trade secrets might have developed and did develop under common law. Just how far that might have gone in protecting against truly independent development is another thing. We know that copyright requires actually copying and independent invention is a defense. So, the common law on inventions might have developed some sort of limited protection on copying without the direct intervention of statutes.

                3. Tifiso:

                  The difference is this. If you cannot exclude me from your home, you cannot enjoy your home. If I copy your intellectual property, that doesn’t stop you from enjoying the fruits of your conception… it only erodes your right to make money from it.

                  The right to exclude is directly contrary to natural rights of one enjoying one’s labor. You invent/file something first, and I independently invent the same thing. Why do you get to stop me from making my creation?

                4. J, “The right to exclude is directly contrary to natural rights of one enjoying one’s labor. You invent/file something first, and I independently invent the same thing. Why do you get to stop me from making my creation?”

                  J, copyright requires copying.

                  Could a common law invention right require copying as a necessary element of proof?

                5. J, but Felton demonstrated that common law copyright had developed before the Statute of Queen Ann.

                  Your personal opinion on the matter is not controlling.


                “The problem is of course that trade secrets do not protect against independent invention.”

                Ned that is exactly what I am saying. And you have not adequately addressed this question, if you get a “sweat of the brow” right, why don’t I get a “sweat of the brow” right? What is so special about you thinking of it first that you get to exclude me from my creativity?

                1. J, of course independent invention would allow the second inventor to use the same invention.

                  But, if one were to show copying of one’s product?

                  Think how easy it would have been for Apple to enjoin Samsung if it had common law invention protection. All it would have had to show was copying of the product and that aspects of the copied product were original.

                2. Ok, copying it that way is trade secret misappropriation. I agree that could develop through common law.

                  But trade secret, though a form of intellectual property, is contrary to patent law. That is why we have a patent/trademark election in this county. You can pick common-law type protection, or patent law protection. Trade secret is not the right to exclude.

                  In my mind, you conceded when you said, “of course independent invention would allow the second inventor to use the same invention.” That is fundamentally different than any patent system.

                  Going back to what Libertarians could argue (rather than whine about the Fed. Cir.) is argue that the patent system should be abandoned and only use a trade secret system.

                  As far as your hypothesis that Apple could easily enjoin Samsung, I’ll just point out that you completely washed out the difference between damages and equity. You only get equity if your damages are inadequate. That is true whether it is a common law or statutory right.

                  Finally, let me admit that I misread Feltner above. Thomas does say that copyright was developed at common law. But I will say two things to that: it doesn’t matter, because it was not necessary for the holding given the language that I cited above, and two, just because the Supreme Court says it was the history doesn’t make it so (see for example the Court’s assertion that Thomas Jefferson wrote the 1793 statute.)

  4. 13

    We all know of the recent decision of the Federal Circuit, penned by Chen, that held that a later-issuing, but first-to-expire, patent having a terminal disclaimer with respect to an earlier-issuing patent, will cause the premature termination of that earlier-issued patent. It struck me today that this will effectively eliminate any extension-of-patent-term benefits one might have in the earlier-issued patent when the two patents have the same effective filing date.

    Does anybody disagree with this?

    If so, I think a lot of us will have to modify our databases to take care of the situation.

    1. 13.1

      I think this is right and a very good point Ned. It brings up tactics that should be taken for important patents.

      1. 13.1.1

        Night, I just re-read the Gilead case and it appears that, under it, a lot of earlier-issued, but later to expire patents may now be invalid because they have no terminal disclaimers.

        This result seems compelled by the Gilead case.

      1. 13.2.1

        Ned, thanks for the post–could you clarify which case? Neither Scientific Plastics nor Interval Licensing seem relevant to this point, unless I’m being particularly dense this morning.

      2. 13.2.2

        GILEAD SCIENCES, INC. v. NATCO PHARMA LIMITED, No. 2013-1418 (Fed. Cir. Apr. 22, 2014). link to

        Here, the second-to-issue patent expired first. It had a terminal disclaim wrt the first-to-issue patent. But the first-to-issue patent had no terminal disclaimer.

        “With those principles of double patenting in mind, we now turn to the question presented by this appeal: whether a later-issued patent can serve as a double patenting reference for an earlier-issued patent if the later one expires first.”

        “Looking instead to the earliest expiration date of all the patents an inventor has on his invention and its obvious variants best fits and serves the purpose of the doctrine of double patenting. Permitting any earlier expiring patent to serve as a double patenting reference for a patent subject to the URAA guarantees a stable benchmark that preserves the public’s right to use the invention (and its obvious variants) that are claimed in a patent when that patent expires.

        Furthermore, using the expiration date as a benchmark in post-URAA cases of obviousness-type double patenting preserves the ability of inventors to use a terminal disclaimer of later-expiring patents to create one expiration date for their term of exclusivity over their inventions and obvious variants, “which is tantamount for all practical purposes to having all the claims in one patent.” Braithwaite, 379 F.2d at 601. Such disclaimers would preserve the public’s right to use a patented invention and obvious modifications of it when the earliest patent expires and would effectively overcome any objection to improper term extension.

        We therefore hold that an earlier-expiring patent can qualify as an obviousness-type double patenting reference for a later-expiring patent under the circumstances here. In cases where such obviousness-type double patenting is present, a terminal disclaimer can preserve the validity of the later-expiring patent by aligning its expiration date with that of the earlier-expiring patent. That disclaimer will most effectively enforce the fundamental right of the public to use the invention claimed in the earlier-expiring patent and all obvious modifications of it after that patent’s term expires.”

        Thus, if the second to issue patent is filed on the same day as the first and it has a terminal disclaimer, but the first to issue patent expires later and it does not have a terminal disclaimer, the first to issue patent is now invalid.

      3. 13.2.3

        GILEAD SCIENCES, INC. v. NATCO PHARMA LIMITED, No. 2013-1418 (Fed. Cir. Apr. 22, 2014). link to

        Here, the second-to-issue patent expired first. It had a terminal disclaim wrt the first-to-issue patent. But the first-to-issue patent had no terminal disclaimer.

        Thus, if the second to issue patent is filed on the same day as the first and it has a terminal disclaimer, but the first to issue patent expires later and it does not have a terminal disclaimer, the first to issue patent is now invalid.

        I bitterly complained about this case at the time.


          Thus, if the second to issue patent is filed on the same day as the first and it has a terminal disclaimer, but the first to issue patent expires later and it does not have a terminal disclaimer, the first to issue patent is now invalid.

          That does seem to follow from Chen’s decision, Ned. Of course, this all assumes that the claims in the first-to-issue patent are, in fact, obvious variants of those in the second-to-issue patent.

          For all of the reasons that Rader gives, however, it seems unduly harsh that the first-to-issue patent is invalid even before the other patent expires.

          For what it’s worth, I think many practitioners will file a terminal disclaimer every time the examiner brings up OTDP, thinking that there’s little harm done, especially when the priority dates are the same. But, these OTDP rejections are often without merit, I tend to push back, since the terminal disclaimers are certainly not without consequences.


            DanH, I do not think that most of us are thought things through about this case. It is unbelievably harsh, and it must be wrong.

            We are probably going to need a statutory fix.

    2. 13.3

      Actually, the Gilead case simply held the first to issue patent could be invalid because it had no terminal disclaimer with respect to a second to issue but earlier expiring patent. This today is a common occurrence in patent families because of patent term extensions. Any patent receiving an extension may be invalid if it does not have a terminal disclaimer on file with respect to other family members. This may be impossible if there is a later continuation filed.

      The principle of Gilead case is that all patents that claim the “same” invention must expire at the same time or any later-expiring patent is invalid.

      This now creates a virtual nightmare because of patent term extensions made the exact termination date of many patents a virtual unknown. Moreover, none of us, that I know, ever include terminal disclaimers in all patents in a family just as a precaution.

      Wow! Wow! Wow!

      1. 13.3.1

        Ned, I think this is easy to fix, but it does put the onus on patent applicants to make sure it is fixed because the examiners will not catch the problem.

        Easy to fix in two ways:
        (1) always ensure that you file two-way terminal disclaimers (one in each case); or
        (2) whenever you have a patent issue, check to ensure that you don’t need to file any terminal disclaimers.


          #2 only works if you can file a terminal disclaimer in the file of an already issued patent, since the problem doesn’t become apparent until the second patent (with the earlier expiration date) is ready to issue. If you can do this, that would suggest that this problem could more generally “cured” by filing the terminal disclaimer some time after issuance. That doesn’t seem consistent with Gilead, which seems to say that the patent (claims) are invalid now, rather than unenforceable after the expiration of the first patent.


          Dennis, I think the PTO should issue an opinion and/or seek legislation that any patent term extensions do not count with respect to determining whether the patentee is extending term.

      1. 13.4.1

        MM, I think so. But I always use the PTO form. I think they should come up with something now to address this case.

  5. 12


    I would suggest having a maximum number of posts per day per person. That way people can say what they want without being shouted out.

  6. 11

    link to

    Newman and Wallach affirmed the Board in a inter partes reexamine that the claims were obvious.

    Moore dissented based on lack of evidence.

    “The Board concluded that “known problem of leakage
    in threaded connections of plastic LPLC cartridges . . .
    provides a reason for one of ordinary skill in the art to
    have turned to King or Strassheimer to improve the
    sealing arrangement [of] Yamada.” Board Op. at *8. The
    majority cites two factual findings in support of this
    conclusion—that Yamada’s use of an O-ring “implicitly
    acknowledges” a “potential leakage issue,” and that the
    inventors’ statements in the patents allegedly identify a
    prior art leakage problem. Maj. Op. at 6; see also Board
    Op. at *7. Neither factual finding is supported by substantial
    evidence. These were contested inter partes
    reexaminations with experts on both sides, yet there is no
    testimony or other evidence of a known leakage problem
    in prior art cartridges that would have motivated one of
    skill in the art to modify Yamada.

    The Board’s finding regarding Yamada’s O-ring,
    Board Op. at *7, ignores the reality of the situation, which
    is that Yamada did not have a leakage problem. Yamada
    does not disclose leakage problems. Id. Even Biotage’s
    expert admitted that Yamada’s configuration did not have
    leakage problems at the pressures identified by the patents-
    at-issue. J.A. 501 ¶ 9, 613 ¶ 9, 713 ¶ 9. In fact, the
    Board found that Yamada’s configuration “ensure[s]
    liquid tightness.” Board Op. at *5.

    “The Board’s conclusion that Yamada’s O-ring
    “implicitly” acknowledges a “potential” leakage problem
    such that one of skill in the art would have been motivated
    to modify Yamada is pure conjecture.”

    “The patents at issue do say: “This operating pressure
    is sufficiently high that these cartridges, which have
    relatively large diameter bodies, leak at the seams.
    Threaded connections are thus not used to form the body
    when the body is made of polymer.” ’061 patent col. 1 ll.
    16–19. As a preliminary matter, the statement, as the
    parties acknowledge, is inaccurate. Yamada, for example,
    uses threaded connections. This statement, in the patents,
    is not a recognition of a known prior art problem
    that would have motivated one of skill in the art to want
    to modify the Yamada design. It was a problem identified,
    not in the prior art, but by these inventors.

    “It is troubling that the majority and the Board rely on
    the inventors’ disclosure of the problem their inventions
    solve as the primary basis for modifying the prior art.
    This is hindsight of the worst kind”

  7. 10

    link to

    Chen and Taranto, by Chen.

    Holds a set of claims invalid as indefinite because a claim term “in an unobtrusive manner that does not distract a user ” from primary interaction with a display device. Content images are displayed on a background, or perhaps on a screensaver, but whether the screensaver was included was unclear.

    What an unobtrusive manner was not defined, and there were no examples specifically limiting the scope of the term. The written description had one example, and that was an “e.g.”

    Too subjective, with no definitions nor definitive examples.

    1. 10.1

      a claim term: “in an unobtrusive manner that does not distract a user ” from primary interaction with a display device.

      Hinging patentability on a functional element is not a great idea. Hinging patentability on a subjective functional element is a very bad idea, indeed.

      See also “appropriate” “relevant” “useful” etc.

      1. 10.2.2

        I’m not really sure if bringing up another, relevant to patent law, topic in the thread is “thread jacking”. Here on PO we have no other suitable place to bring up other topics. And in fact no better way to draw some attention to another recent news event in patent law from D or the readers.

        Though I can understand why some others may see it as such.

      2. 10.2.3

        For some reason, Dennis does not cover all the precedential patent law decisions. If we did not post them ourselves, there never would be a discussion on them.

        Also, from time to time, I bring nonprecedential decisions to the attention of the blog. The post about the bingo game decision was one such.

  8. 8

    I for one am willing to hold my fire to see how the Federal Circuit reacts to Alice before joining any serious effort to do something about the court. I continue to believe that the main cause of defiance of the CCPA and the Federal Circuit was due to specific judges, namely Judge Rich who authored State Street Bank, and Judge Rader who wrote the opinion in Ultramercial, and who argued for the patentability of the system claims in Alice.

    On June 30, the Supreme Court once again vacated Rader’s opinion in Ultramercial. If the Federal Circuit once again, for the third time, upholds the eligibility of the claims in that case, I will see that there is no hope. I would then have to believe that the Court has an institutional problem, not a problem of people.

    Part of the problem may also be that the court is in Washington surrounded by patent bar lobbying groups who, as Egon stated, all have a PC view of things; and one of their commonly held views is that it is the Supreme Court that is the problem. Any decision by the courts adverse to patents is bound to be met with hostility by the local bar, who will give the judges an earful at their conventions which members of the court routinely attend. Being human, they are going to be careful how they tread — and this is a problem that cannot be solved unless we restore the status quo ante and end the court’s monopoly on patent law.

    (Perhaps a partial solution to the patent bar problem would be a rule that would prevent the court from participating in bar events.)

    I await Ultramercial.

  9. 7

    In short, even libertarians are falling for the crony capitalist propaganda. Nice work lobbyists. Seriously, that’s impressive.

  10. 6

    Is there even one country in the world that could be regarded as a “libertarian” state, and if not, why not?

    1. 6.1

      There is also no country that has a strong innovation engine and that does not have strong patent protection.

      I guess we are going to find out whether or not that is a causation relationship.

      1. 6.1.1

        Night, also, there are no countries that have strong engines without strong innovation.

        Did you know that there is a strong correlation between airplane takeoffs and plane crashes?

        Also, until Reagan, every president elected in a year ending in 0 died in office. Coincidence?

      2. 6.1.2

        For proof innovation can happen without patents to motivate it, you need only look at software. There was plenty of innovation in software before it was ruled patentable, and much of it was made public, adding to state of the art. Nor is software the only such field.

        Basically, academia doesn’t need patents to motivate innovation. Researchers are instead driven by factors such as desire for the respect of their peers and enjoyment of intellectual challenges.

        Early software came out of academia, so its writers were motivated by the same factors, and many still are.

        Of course, we can’t rely on academia alone for innovation – academics tend to be more interested in theoretical elegance than commercial practicality – but nor can academia be completely ignored. Any argument that patents are required for innovation has to explain how academics have managed to innovate without patents for centuries.


          Not so. Early software came from corporations and the govt. When Grace Hopper developed COBOL, she worked for Univac and the Navy. Fortran came from IBM. Yes, Von Neumann was at IAS when he wrote his seminal paper and designed what is at the heart of almost every computer today. But to claim that the 360 OS, Exec VII, and the great CSC Fortran compiler came out of academia is flat out wrong.

          These inventions were protected by a form of trade secret.


            Inventions protected by trade secrets don’t add to the publicly known state of the art, the way patents and academic research does, but instead lead to a lot of wasteful reinventing of the wheel.

            However, I wasn’t thinking about the invention of the various computing languages, but about the origins of all the standard algorithms. Quicksort was invented by Tony Hoare, while he was a student; smoothsort was invented by the Dutch computer scientist E Dijstra.; shellsort was invented by the US computer scientist D L Shell, and so on.

            One particularly influential computer scientist is D E Knuth, who wrote the seminal ‘The Art of Computer Programming’, and invented the TeX typesetting software because no existing software was suitable. Tex, and its descendent, LaTex, are now standard packages used for writing scientific papers. Patents were not required to for Knuth to produce this innovation.

            Nor, for that matter, are patents needed to get people to write PhD theses, every single one of which is supposed to contain some new innovation – not necessarily practical, but definitely original.


              Your claim was that early software came out of academia. That is not true. You cite a few examples of software that did come out of academia but can you seriously equate some sort program with COBOL? Is a mouse the same as an elephant because they are both mammals? You cite Knuth and we all know his works but he was, in essence, reporting on the work of others. TeX? How many sites used it? How many today? Compare that to Fortran, a language which has many millions of lines of code still running and doing so efficiently. Yes, academia did provide *some* of the early software but those examples are miniscule in effect compared to what industry developed.


                I didn’t claim all early software came out of academia, though I’ll concede I may have phrased my words ambiguously.

                However, the presence of innovative commercial software developed by software patents merely strengthens my point by further demonstrating patents were not a necessary prerequisite for innovation. Certainly, some of the techniques were initially protected as trade secrets, but that just confirms patents aren’t the only possible way to protect them, and some of the techniques were freely shared.

                Your dismissive reference to ‘some sort program’ might suggest a lack of familiarity with the field. Sorting algorithms are among the basic building blocks of software, comparable with standard components like screws in conventional engineering. Improvements to sorting algorithms make all the software employing them more efficient, which is no small thing.

                Tex and LaTex are pretty universally used in the scientific community. That may be a niche market on the global scale, but it’s still a significant piece of innovation, comparable with writing a word processing program.

                1. You live and die by the words you used. You made an overly broad statement. That statement was wrong.

                  I was there when much about which you write was going on. I wrote my first programs on machines such as the Univac Solid State 80 and IBM 1401 in 1964. I was there when Fortran was Fortran II and COBOL was in its infancy. I used punch cards and a TTY. The sorting programs you cite were mere blips on the screen. (OK. We did not have screens.) Unlike compiled languages, sorting was not a major function at every installation. Most installations had their own sort programs or used ones from the manufacturers.

                  There were dozens of manufacturers, each with proprietary software. It was a virtual Tower of Babel (credit Jean Sammet, one of the members of CODASYL, for that image.) There were many architectures and many operating systems. A lot of code was written in assembly language. Thus, most software did not work across platforms. Piracy was almost non-existent. If you took a sort program from a Philco, it would not work on a GE. In addition, customers were usually well-established companies who, when they signed the non-disclosure agreements, honored them.

                  Further, because there were so few installations then that everyone knew someone at another installation. People moved from job to job within a system type. User conferences hosted a few hundred people, not tens of thousands. If one company stole another company’s software, it would be discovered quickly. It was not that the protection was trade secret. It was more that honest companies just did not do that sort of thing.

    2. 6.2

      Imagine someone 400 years ago asking the same question but replaced “libertarian” with each of:




      I think the simple answer is “no” to all three questions, simply because it did/does not exist.

      1. 6.2.1

        I guess my question was more along the lines of: if libertarianism is the answer to all of our problems, how come nobody’s ever implemented it successfully? My guess is because the first time somebody puts up, or even proposes to put up, a pig farm or a slaughter house or an oil refinery next to a libertarian’s house, they suddenly see the wisdom of pesky things like zoning laws and land use restrictions, etc. Just a guess.


          if libertarianism is the answer to all of our problems, how come nobody’s ever implemented it successfully
          As I alluded to earlier, I think libertarianism is a philosophy based upon the ideals — not reality. The reality is that one having unfettered liberty and personal freedom will soon lead to infringement of the liberty and personal freedom of another. This leads to “might makes right,” which I would imagine is not part of the libertarian platform.

          Its an ideal — not a workable system.

      2. 6.2.2

        I think the simple answer is “no” to all three questions, simply because it did/does not exist.
        There isn’t much separating someone supporting libertarianism from one supporting anarchy. They are both strongly anti-state.

        That being said, I don’t think we’ll see an anti-state state anytime soon … somehow, it sounds contradictory.

    3. 6.3

      Athens was very democratic, but very PC as well. Anybody who strayed from the party line was banished or ordered to take Hemlock.

      In contrast, prior to Tiberius, people in the Roman Republic and Empire were quite free to express their opinions, write what they wanted, do what they wanted, without much restraint at all. I would say the Roman Republic and early empire was very libertarian – at least for its citizens.

  11. 5

    This is not a libertarian nation and I would not make too much out of what a libertarian academic has written about IP rights. The greater problem is that years of grasping and pushing for maximalist approaches by some elements of the IP corporate-legal-judicial complex has poisoned substantial elements of its natural constituency against IP rights. And so we have many artists opposing or indifferent to the copyright laws that corporations like Disney push through Congress (copyright terms without end), scientists and engineers who see patents as an impediment to their creative work, and many programmers deeply opposed to the patenting of software on both practical and philosophical grounds. I think that the way around this is to return to the roots of our system, the Constitution, which presents a clear and limited rationale for having a system of IP rights. And that rationale is not to enhance any individual’s income, but “To promote the Progress of Science and useful Arts.” No matter what other argument anyone has, if it fails to do that, the IP right (patent, copyright) should not be permitted.

  12. 4

    Too many likely don’t understand patent rights and/or the massive recent reforms we had before Alice Corp. et al. (e.g, KSR, MedImmune, Nautilus, etc.).

    They should read Atlas Shrugged (perhaps again) to better understand how patent law aligns with libertarian views.

    1. 4.1

      They should read Atlas Shrugged (perhaps again) to better understand how patent law aligns with libertarian views.

      I think you mean “Randian” views, not “libertarian” views.

      I’ve spent a lot of time with a lot of libertarians (some famous ones whose name you’d recognize) and they view Rand as little more than a shallow narcissist and wannabe cult leader. Of course, that view of Rand is infinitely more common and accepted among non-libertarians. On top of that, the book is unreadably dull and poorly written in the opinion of many (myself included).

      That said, the classic movie The Fountainhead with Gary Cooper and Patricia Neal is a hoot.

      1. 4.1.1

        I’d recommend actually reading Atlas Shrugged before making any assumptions (the movie didn’t measure up at all). I enjoyed it.


          I have read Atlas Shrugged. MM is correct. It is a dull, poorly written tome that does little more than set up straw man arguments and knocks them down.

      2. 4.1.2

        I don’t think of Ayn Rand as a libertarian. But in the book she seems to be in agreement with patent rights as one of the “calamaties” to befall Hank Rearden is to have his patents confiscated. I think she regarded ownership of one’s “intellectual property” to be required for personal happiness. Same with Howard Roark in The Fountainhead.

        The book is too long and is poorly written.


          One ideas are one’s property, same as a piece of land. Yes, she saw that as problematic because she understood the effects on commerce and the individual.

      3. 4.1.3

        MM, I read Atlas Shrugged when I was a kid. I to agree it was way too long and not very well written, the kind of book that it takes a great effort to read because of his tediousness.

        That said, its premise that leftists want to use government simply to tear down successful people is almost ridiculous.

        But, since I have been personally involved in antitrust suits, I do know that big companies use government all the time to feather their nests. And just as much, politicians use big companies to feather theirs.

        I would say that you simply cannot trust big companies to be altruistic and have the public interest at heart in what they do. When they tell you something about the public good, it probably is a lie intended to induce you to do something to their advantage.

  13. 3

    Libertarians think that they will survive best when there is anarchy (and I am not saying that we would have anarchy if there were no patents).

    1. 3.1

      Fish, I am not so sure that most libertarians would agree with the view that anarchy is better than any government. We know that in anarchic systems, that might makes right.

      Government has a role, to protect people from others, to protect people in their possession of property, and to protect people from invasion by other nations, etc. Governments require police, armies, courts and elections.

      But go beyond core functions, the utility of government becomes questionable. Jefferson was right. The government that governs least, governs best.

      1. 3.1.1

        Ned – Where people differ, and why we have political disagreements, is there is no carved-in-stone list of what are those core functions. Is having pure food and drug laws a core function? How about a system of highways? Public schools? Or, shudder, national health care? As to the Jefferson quote, it has never been found among any of his papers.


          tifoso, of course people differ in what they think is necessary.

          Speaking of roads, once upon a time there were no public roads. Then the Romans began building roads as a means for moving troops from one place to another quickly. Soon these roads begin carrying commerce, and the roads developed an independent justification.

          One can trace the decline if not the fall of the Roman Empire to its building and maintenance of roads. The last roads were built in the mid 300s, and the Romans stopped maintaining them not that far thereafter. Commerce began to fall apart; and with it the Roman economy. The failure of the economy ended all ability to maintain the army, and when it ceased to exist, so did the Empire.

          The take away? Roads were very important to the Roman Empire.

          We take freeways for granted today, but it was not long ago that Eisenhower had to convince Congress to spend the money to build the interstate highway system. I think Eisenhower was convinced of the necessity of this from his experience running Germany after World War II where he saw the advantages of Germany’s autobahns.

          But what is necessary must be considered in light of the ability to pay. Certainly at the beginning of our Republic, we did not need nor could we have afforded to build interstate highways. Nor could we have afforded a welfare system. Today, we can afford both. But the ability to pay for something does not correlate with that something being a core function of government. However, as in the case of roads, some things are necessary to have a viable and functioning economy.


            Ned – Agree on most things except the fall of the Roman Empire. It is easy to seize upon one element and claim that is the sole cause of some effect. Different historians cite different causes. Gibbon cited the rise of Christianity.

            As to “ability to pay”, depends on whether one believes what Keynes taught. To Keynes, everyone prospers if the government “primes the pump”. A system of public roads – and software patents – is simply pump priming.

            Core functions? Depends on whom you ask.


              tifso, I am not suggesting the failure to maintain the roads was the sole cause of the collapse. But it contributed.

              There was a vicious downward spiral in the last two centuries, where the cost to maintain the empire could not be maintained for one reason or another.


                Fair enough. Deterioration of the roads – read “infrastructure” – was likely a symptom of a general collapse of the system. May we learn from their bad example? Unlikely.

  14. 2

    I hope this is not another anti-patent fallout from the thousands of patents that U.S. companies have been “monetizing” by assigning them to highly aggressive PAEs to sue on? Or is it the “letter license threats” mailed to thousands of small businesses clamiing to have patents covering whatever they do which some state A.G.s are going after?
    There are far less draconian and more realistic existing and proposed partial solutions than “throwing the baby [the entire patent system] out with the bath water.” Better education and PR is apparently needed.
    [I also hope, per the immediately below blog appeal from Dennis, that this will not lead to pointless political view exchanges.]

    1. 2.1

      Better education about patents is what is fueling the calls for reform. The more people know, the more they realize how corrupt the system is.

      If you don’t want people to “throw tge baby out with the bathwater”, then yoy need to be amenable to at least modest reforms such as disbanding the Federal Circuit and returning patent issues to the entire federal judicial system. But when patent lobbyist resist even this modest proposal (which, in their warped view, remains a radical notion), even more moderate reformers throw their hands up in frustration and eventually say “just junk the whole system”.

      Sorry, but offering to tackle corruption and bad legal policies with “P.R.” is a symptom of the problem – not an offering of a solution.

      1. 2.1.2

        Having been in a good patent litigation firm well before the Federal Circuit existed [unlike many current patent attorneys] I respectfully disagree that going back to all those different Courts of Appeal doing their widely varying own things with relatively infrequent patent cases [after the intense forum shopping] is a “solution.” Nor could it affect whatever changes were made by patent legislation or the Sup. Ct. that one may disagree with. Nor is the patent system “corrupt,” but it is impacted by the excessive costs and time of judicial resolution of patent issues, and that in turn forces some otherwise unnecessary settlements.


          The same argument could be said with ANY aspect of law. Why not have a circuit dedicated to personal injury cases instead of “all those different Courts of Appeal doing their widely varying own things” which encourages forum shopping?

          Having different courts give widely varying interpretations of the law is far better than a centralized court which has wrongfully and routinely exhibited a pro-patent/corporatism bias.

          Given your comments, the fact that you have been in a patent litigation firm does not surprise me. But it merely evidences the reason for your biases, rather than providing any insight. Patent firms such as yours are part of the patent lobbying industry that the Cato article criticizes.


            Having different courts give widely varying interpretations of the law is far better than a centralized court which has wrongfully and routinely exhibited a pro-patent/corporatism bias.
            Do you realize that the “pro-patent” bias is enshrined in the US Constitution?

      2. 2.1.3

        This is the craziest thing I’ve read in a good long while. Eliminate patents because the federal circuit exists? Say what?


          No rational person could interpret my clear comments as wanting to “eliminate patents because the federal circuit exists”. I merely offered an explanation as to why people are willing to entertain the notion of eliminating patents – because even modest, rational reforms are uniformly opposed by the patent lobby.

          If forced into a binary choice between the current system (with no hopes of meaningful reform) and no system, more and more people will start to seriously consider the latter.


            because even modest, rational reforms are uniformly opposed by the patent lobby
            How is eliminating a court specialized in a particular area of law a rational reform? We have bankruptcy courts and tax courts. Many administrative agencies also have their own specialized courts.

            The reason behind this specialization is that it is very hard for anybody to have a grasp on all the various fields of law. Moreover, specialization allows judges to have the ability to appreciate the specific issues associated with specific areas of law. The world is full of examples that go along with the concept of “unintended consequences.” Being specialized allows one to better appreciate how interpreting one facet of the law will impact other facets of the law. This just isn’t realistically possible with a generalist court.

            I merely offered an explanation as to why people are willing to entertain the notion of eliminating patents.
            Nobody of consequence is entertaining that notion. Every modern country has had patents for longer than anybody typing on this blog has been alive. Unless anarchy does reign in the US, we are going to have a patent system.


            Mr. Reply If forced into a binary choice between the current system (with no hopes of meaningful reform) and no system, more and more people will start to seriously consider the latter

            No doubt about that. That’s why it’s such a common tactic when trying to persuade people to dismantle a system entirely (e.g., Medicare, Social Security, etc) to argue that the system is “beyond repair.”


            Can any of the litigators imagine the free-for-all that would occur if Congress today eliminated the Federal Circuit and we suddenly have thousands of patent cases being appealed to a set of judges who have never before even seen a patent?


              You mean the way it happens when patent cases are appealed to a Supreme Court made of justices who have never before even seen a patent?

  15. 1

    Not particularly surprising. To quote wiki, Libertarians seek to maximize autonomy and freedom of choice, emphasizing political freedom, voluntary association and the primacy of individual judgment

    The patent system is implemented by the government and (necessarily) limits the ability of individuals/companies to practice inventions. Certainly cringe-worth if you are a libertarian.

    While there are many flavors of libertarians, Mr. Kinsella appears to fall into the category of being anti-state.

    Personally, I see much of libertarianism as being a philosophy grounded upon idealistic behavior more so than a philosophy that recognizes the reality of the human condition.

    patents are not the type of property rights that libertarians should support
    There are some flavors of libertarians that don’t support any property rights whatsoever.

    1. 1.1

      “There are some flavors of libertarians that don’t support any property rights whatsoever.”

      Sounds like Communism or… complete anarchy. Property rights are by definition one of the most fundamental of the individual rights. Astounding… and they call themselves libertarians?

      I suppose if one divorces the concept “freedom” from ethics, morality, and politics, and endeavors to make it the supreme and sole end, the result can be someone of this “flavor”.

    2. 1.2

      That’s not maximum liberty (i.e., individual rights), it’s anarchist.

      Too many “libertarians” don’t understand what a libertarian is. They’re just rebelling against the over growth of the government in general. Many should take a minute to think about what is they do NOT like instead of just assuming that getting rid of any regulation or government system at all is a good thing. It’s not.

      1. 1.2.1

        They’re just rebelling against the over growth of the government in general.
        I suspect most would change their tune pretty quickly if they actually lived in a society without a government. IMHO, might = right would be an awful society to live in.


            Isn’t that about where we are?
            No. Despite the many leaks, creaks, and groans, the rule of law still has a lot of bite in the US. Even the very powerful aren’t immune.


          Might still makes right. Might currently is exercised by government, at the behest of corporations with deep pockets.

          Might will always make right. The question is only who will wield it.

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