First Possession and Patent Law

This is a bit abstract, but I’m wondering how you might describe the actual moment that a patent issues in terms of the creation of a new property right and transfer of that right to the patentee.  If we could slow-down time to look at what exactly happens: Is the right first created by the government and then granted to the patentee? Or, is the right simply created already in the hands of the patentee.  Assuming the inventor is no longer the right-holder, does anything pass through the inventor’s hands at that moment?

In the “land patent” system, ownership is originally vested in the sovereign and then transferred to the recipient, but it seems to me that the patents on inventions probably work differently.  In the end, I expect that this may have some impact on the public-rights cases. -DC

Dennis Crouch

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

124 thoughts on “First Possession and Patent Law

  1. Ron,

    In your linked brief, Ron, I especially like this point of yours, as it removes the dicta (read that as attempted scrivining to rewrite the patent laws) of the Supreme Court in trying to diminish the importance of the stick in the bundle of property rights of the Presumption of Validity by Breyer and company:

    “The presumption of validity under the clear and-convincing-evidence standard in patent law is not based on any deference to the PTO examination prior to the patent grant. The heightened standard was used even before the Office started examining applications in 1836.

    See Ron D. Katznelson, Brief of Amicus Curiae in Support of Affirmance, Microsoft Corp. v. i4i et al., at 30-32, U.S. Supreme Court (March 18, 2011) (quoting passages from Sen. Rep. Accompanying Senate Bill No. 239, 24th Cong., 1st Sess. (April 28, 1836), as endorsing the heightened standard of proof and the presumption of patent validity), available at link to j.mp .

    Rather, the presumption of validity under the clear and-convincing-evidence standard is an immutable adjudicatory standard matched to the large asymmetry in the countervailing risks to the litigants due to factfinder errors in validity determinations.

    That [symmetry of risk] is not the case for invalidity determinations. When the factfinder erroneously upholds an invalid patent, the defendant risks the unjust loss of damage award only for his own infringement, whereas when the factfinder erroneously finds a valid patent invalid, the patentee risks the unjust loss of damage awards from hundreds or thousands of infringers or licensees, and the unjust enrichment of the public with a “disclosure of the invention that was published upon consummation of the patent bargain**.
    The asymmetry arises immediately upon the grant of the exclusive patent right and is irreversible thereafter because the patentee’s loss and the dedication of his invention to the public is irreversible.
    ” (emphasis added)

    I starred the old view of disclosure to also point out a “slippery slope” attack on the Quid Pro Quo that has occurred since that decision with the publication prior to grant (and note that many academics push even more for an immediate publication scenario). The slippery slope being that the well respected Quid Pro Quo is in fact violated with these pre-grant publications. What impetus is there remaining for the Office to dutifully examine (promptly and FULLY accurately applying the law, including full application of all legal elements for obviousness, including walking through all of the Graham factors as well as establishing properly the level of a Person Having Ordinary Skill In The Art), when the Office has already obtained the maximum amount of their end of the bargain?

    The answer of course, is nothing.

    Why bother with the heavy lifting after the horse has left the barn?

    Why not then aim for power grabs to make the Office job “easier?” (and make no mistake, this is exactly what the Tafas debacle for the Office of the Claims and Continuations rule changes were all about.

    Maybe an academic should look into the slide of “patent quality” (being, the only item that the Office controls in relation to the quality of their product IS examination quality) tied to this change in the treatment of the Quid Pro Quo…

    1. Ron Katznelson is a self-dealing hack and the fact that “anon” — the blog’s resident path0 l0gical l i @ r and a habitual apo l0gist for the worst patents and the worst patentees who ever walked the earth — adores him pretty much tells you all you need to know.

      As for this: Maybe an academic should look into the slide of “patent quality”

      what could possibly be more hilariously hypocritical coming from the mouth of “anon”?

      LOLOLOL Yes, let’s get the “ivory towerists” to work. Because “anon” really cares about “patent quality.” Sure he does.

      1. I look for anything besides empty ad hominem in your post, Malcolm, and there is nothing there.

        Maybe you want to try something else.

        Anything else.

        Yay 11 years!

        1. “anon” has a 5 foot cardboard cutout of Ron Katzenlson that he salutes and prays to every day.

          Also: everybody has a “private right” to practice anticipated or obvious unpatentable cr@p. There is no “dedication” of anything to anyone when non-novel obvious cr@p is disclosed.

    2. The Quid Pro Quo is embodied in the patent laws, including the protection afforded and the requirements to obtain patent protection. As a government agency, the impetus for the PTO performing quality patent examinations is its obligation to the public–not the Quid Pro Quo. The USPTO itself doesn’t obtain any benefit from pre-grant publication beyond a larger source of invalidating prior art. I seriously doubt that the public disclosure bargain is a significant motivating factor for any PTO employee.

      The terms of the bargain may have changed over the years, but those terms are generally determined by Congress. Pre-grant publication is simply a risk associated with patent applications assuming that trade secret protection was an option. If inventors don’t think that patent protection is worth the cost, they will just stop filing patent applications.

      Rather than look at the impetus for the patent office to examine patents, consider the impetus for requiring patent examination in the first place. If the bargain from Congress’ perspective was premised on quality patent examination, poor patent examination might be a cause rather than an effect. Rather than attempt to improve the quality of patent examination, Congress could choose to balance the scales by devaluing patents or increasing the risk of patent applications via pre-grant publication.

      1. If inventors don’t think that patent protection is worth the cost, they will just stop filing patent applications.

        But if Ron Katznelson and his s00per do0per important wealthy entitled bros stop filing patent applications then the world will stop turning!

        It used to be that every other garage on my block was being used by “little guys” to innovate the most marvelous stuff. Methods of liking your cousin on the Internet using just one button. A computer with diagnostic information stored on it, wherein the diagnostic information related to something that just turned up in the news. Sorting DVD reviews by featured actors, on a plane. And more!

        Now it’s just the one garage every four blocks being used as a fermentation tank for this special kind of genius. That’s why the economy is failing! Plus all those scary brown people who don’t go to the same church with the normal people. Just as the IP Puppydogs. They’re very serious people.

      2. If inventors don’t think that patent protection is worth the cost, they will just stop filing patent applications.

        And patent application filings continue to soar.

        I guess the facts are just “biased” against the deep deep thinkers at IP Puppydog. Or maybe it’s just an especially needy class of “innovator” that’s being “oppressed” by bad ol’ Michelle and her diabolical plots.

      3. NS II,

        Sorry but I could not see the point that you were trying to make there.

        It appears almost as if you were sayin that there would be more value with weaker patents, which of course would be an outright fallacy.

        Could you summarize your point for me?

        Thanks.

        1. “anon” : that there would be more value with weaker patents [is] of course … an outright fallacy.

          Because “anon” says so!

          Bow down everyone.

  2. I share the question — how would this influence either a case outcome or a policy choice?

    Isn’t this close to a contract — it comes into existence at the time that all the prerequisites are satisfied by all parties:
    * for a contract, offer, acceptance, consideration, definite terms, etc.
    * for a patent, application and grant
    * for provisional rights, application, publication, knowledge, issue
    Is it meaningful or analytically helpful to speak of some legal “thing” preexisting?

    1. From down below at 2.1.1.1.1 – but worth noting here as well in response to David:

      As I indicated elsewhere, the Quid Pro Quo should not be viewed in the legal sense of “contract” as that falls too easily into the Efficient Infringers’ propaganda zone.

      Yes, the Quid Pro Quo is an essential element of the US patent jurisprudence, but any relation to contract law falls short in that contract law (by and large) can comprise a heavy mix of statutory and common law, whereas patent law, due to its more direct Constitutional allocation of authority falls directly (first and foremost) to being statutory law.

      How many times in these boards have we seen the uninformed (purposefully or otherwise) confuse, conflate, and for some, even obfuscate discussions based on not respecting the differences between statutory law and common law?

    2. Except that every inventor has a right to a patent unless….

      Even under statutory framework, inventors have an inchoate right to a patent from the date the invention is made, that is reduced to practice, that cannot be denied under statutory law if the inventor complies with the “formalities.”

      Of course statutory framework could be changed where the granting authority would have complete discretion. But that is not system we have in the United States.

      1. Ned,

        Your first comment is rather odd, as you seem intent on even misrepresenting what an inchoate right means.

        Your second comment is accurate – and as I explain in other comments on this thread, it is critical to account for ALL of those sticks in the bundle of property rights and just when some of those sticks may be taken improperly.

        Have you grasped the basics in property law yet?

          1. Ned,

            I suggest that you read and contemplate Ron’s linked brief, particularly beginning on Page 18 with:

            “III. IPR’S CONSTITUTIONAL INFIRMITY IS COMPOUNDED BY IMPROPERLY PRESCRIBING A RELAXED EVIDENTIARY STANDARD FOR INVALIDATING PATENT CLAIMS

            The AIA codified 35 U.S.C. § 316(e) which directs the PTO to apply the “preponderance of the evidence” standard in adjudicating the validity of the claims in post grant proceedings even though patents are presumed valid, 35 U.S.C. § 282, and invalidity must be proven by clear and convincing evidence, Microsoft v. i4i, 131 S. Ct. 2238 (2011); Radio Corp. of Am. v. Radio Eng’g Labs., Inc., 293 U.S. 1, 7-8 (1934) (“one otherwise an infringer who assails the validity of a patent fair upon its face bears a heavy burden of persuasion, and fails unless his evidence has more than a dubious preponderance”); Coffin v. Ogden, 85 U.S. 120, 124 (1874) (“The burden of proof rests upon [the patent challenger], and every reasonable doubt should be resolved against him.”)

            To be sure, it is within the domain of Congress to establish presumptions and rules respecting burden of proof. Nonetheless, the Due Process Clause of the Constitution does not permit the deprivation of liberty or property upon application of a standard of proof too lax to make reasonable assurance of accurate factfinding.”

            And then realize exactly when the taking by the government of that stick in the bundle of property rights (the presumption of validity) occurs:

            at the initiation decision point

            a point that was strictly written by Congress to lack Article III appeals,

            a point that is performed by a politically appointed and controlled Executive branch agent, and

            a point that involves ZERO recompense for the sticks in the bundle so taken.

            Put these points together under traditional takings law, and let me know if you understand the necessary conclusion.

            1. …and let me add one more point:

              a point that is completely separate from any additional “court” (PTAB) proceedings dealing with the remaining sticks in the bundle of property rights that a granted patent provides.

              I add this last one because you have in the past failed to recognize what a takings law analysis requires, and you want to inappropriately lump the whole bundle of sticks together – you need to realize the separate legal point of the initiation decision and the takings that occurs at that separate legal point.

            2. Congress defines what a “patent right” is.

              There is no “taking” of anything when Congress has defined the “patent right” to include revocability in a post-grant proceeding, where the post-grant proceeding uses a lower standard of proof.

              Good grief is there anything more p@thetic on the earth than the whining of the wealthy entitled patent maximalists? Get a l i fe.

              1. You missed the part that Congress itself is not free to ig nore the other Constitutional protections of property.

                The part – you know – that I have reminded you of every time you try to dive into the weeds like you do here.

                1. oh dear, not another misreading of the constitution. The constitution does not grant any patent rights, but instead it merely allows congress to set up a patent system.

                2. Just,

                  I am speaking to OTHER portions of the Constitution (that protect property rights).

                  Oh dear, your comment is seriously misplaced.

            3. [T]he Due Process Clause of the Constitution does not permit the deprivation of liberty or property upon application of a standard of proof too lax to make reasonable assurance of accurate factfinding.

              I agree with this.

              I also think that the due process clause requires an independent trier of fact in order to guarantee lack of bias when ownership or validity of valuable property is at stake. Certainly, the accused infringer has a right to a day in court trial by an independent judge or by jury at his choice not only because tradition in the seventh amendment so, but the due property is at stake – at times a great deal of money.

              As Ron points out, the amount in controversy a particular trial represents X. But the value of a patent is normally 10 X or more. If the due process clause requires a trial in an independent court for an infringer, surely the due process clause requires a trial in an independent court for the patent owner before his property is revoked/taken.

              Every time I see a film made in China were a local party boss, and a couple of his henchmen, preside over a “fair” trial of a “citizen,” I see instantly the problem with due process.

      2. Hence the classic view of a right to ‘sue out’ a patent. Not so sure about your second paragraph. Pretty sure that the patent and copyright clause abolished the ‘kings grant’ of patent or monopoly to favored subjects. In other words, a US patent is limited to the Lockean view of a property right to your thoughts and unique expressions.

  3. The inventor’s right is an inchoate right, which vests at the moment of patent grant. If the inventor assigns the right, the successor stands in the shoes of the inventor….
    ******
    Inchoate Definition: A legal right or entitlement that is in progress and is neither ripe, vested nor perfected. In reference to a claim in law, or an entitlement, that has not yet vested.
    ******
    Public right ??? The inventor is the one with the perfected “right to exclude”…. the Public has the right to the knowledge set forth in the patent, but not the right to infringe….

        1. …or maybe someone recognizes ultra vires attempts at re-writing statutory law (broaching the separation of powers)…

          How is that effort of yours to find your State attorney oath coming along, Ned?

        2. This question seems somewhat related to the Federal Circuit’s Filmtec rule that present assignments of future inventions are effective as of when the invention takes place, without needing a further written assignment.

          An inventor might have inchoate rights in his invention before the patent is granted, but does an inventor have an inchoate right even before there is an invention?

          1. Pilgrim, there is some case law that suggest that an equitable assignment becomes a legal assignment when the assignee comes into possession. That is why I think an equitable assignment of an invention yet to be made may become a legal assignment if the inventor signs an application prepared by the assignee and that application is filed by the assignee, but not otherwise.

            Filmtec will be reversed and by the Supreme Court.

            1. …this seems to mirror your incorrect views on a case already decided by the Supreme Court, Ned (hint: Stanford v. Roche)

              Please do yourself a huge favor and visit the archives to review what I have already extensively tried to teach you there.

  4. Once Congress established the legal formalities for obtaining a patent, every inventor in the United States has a legal right to a patent for his invention upon complying with the formalities. The scope of that right varies according to the invention. The formalities may include filing before another inventor of the same invention, and filing before one discloses the invention to the public or commercially exploiting it.

    Chief Justice John Marshall called it an inchoate right to a patent.

    However from the even bigger picture, absent congressional action, no one has a right to a patent for any invention. He may petition Congress who might grant him a patent (for limited time) at their discretion. But once granted, not even Congress can revoke the patent because it is the property of its owner. Only a court can revoke the patent, either because the inventor did not tell the truth, Congress has previously granted the same patent to another or that there is no invention in fact. These grounds have not changed since the mid-1700s.

    As others have said, the idea that the granting authority may revoke a patent is alien to the United States. From the earliest days, patents have been considered the property of their owners and may not be revoked except by a court in accordance with due process of the law.

    1. Ned – I would only add that at least American Bell answers either in whole or in part the questions proposed in the prompt.

    2. As others have said, the idea that the granting authority may revoke a patent is alien to the United States. From the earliest days, patents have been considered the property of their owners and may not be revoked except by a court in accordance with due process of the law.

      The current understanding may have changed since “the earliest days”, but revocation by the granting authority is certainly not alien today.

      In any case, is there some reason that Congress cannot grant a patent that is subject to administrative revocation? 35 U.S.C. 261 recites “Subject to the provisions of this title, patents shall have the attributes of personal property.” Is the “subject to” clause unconstitutional with the rest being superfluous?

      1. but revocation by the granting authority is certainly not alien today.

        That completely depends on how the government meets any other Constitutional protections afforded the item being revoked.

        In any case, is there some reason that Congress cannot grant a patent that is subject to administrative revocation?

        They would have to deal directly with the fact that they have also mandated patents to be property (legally).

        So many here – including Ned who was “this close” to being in front of the Supreme Court – continue to fail to see the bigger issue of patents as property and the other Constitutional protections that kick in for ALL sticks in the bundle of property rights when it comes to government takings (very much like eminent domain).

        Way too many people want to hide the elephant in a mouse hole and only look at the portions of “subject to the provisions of this title” without realizing that any new provisions must still accord with the existing Constitutional protections of the bundle of sticks known as the property of a patent grant.

        Even Congress itself – the proper branch of the government authorized to write patent law – is not free to ig nore those other protections.

        1. Am I correct in understanding that you consider “patents shall have the attributes of personal property” to mean the exact same thing as “patents [are] personal property”?

          “In any case, is there some reason that Congress cannot grant a patent that is subject to administrative revocation?”

          They would have to deal directly with the fact that they have also mandated patents to be property (legally).

          Are you saying that patents are property solely because Congress says so?

          1. Would you suggest otherwise? Especially given that the Constitution allocated the authority to set the law for patents to only one particular branch of the government? Under what authority then, would you say otherwise?

      1. Lot’s property is taken by the US government, Paul.

        I am not seeing your point.

        Are you saying that you know that the patents were taken with some type of due process violation?

      2. Paul, I think you may be right. Can you point to any cases where this issue was discussed a legal point of view? I can see some justification for the United States confiscating the assets of another country with whom we are at war, but it really does not make sense me to confiscate the assets of individual citizens of that country with whom we at war without compensation. That is not civilized – it seems to violate fundamental principles of human rights.

        Recall that our relationships with Cuba were fundamentally disrupted when Castro seized the assets of private American citizens without just compensation. Whatever dispute Castro may have had with the United States for whatever reason did not justify outright theft of private assets.

        Anyhow, it just seems wrong to me that the United States would participate in punishing private citizens of a country just for the sake of revenge.

      3. I was trying to recall whether the United States confiscated the properties of Southerners who fought in the war against the union after the Civil War. We could have, but I do not think we did. How would we ever expect to get along with Southerners if we treated them in such shameless fashion.

        I think one of the things we learned from of both World Wars is that when we treat the conquered nation with barbarity, they will never forget. That is why after World War II we went out of our way to the civil with both Germany and Japan, and to assist them as best we could to recover.

  5. One way to look at is that the grant of a letters patent creates an exclusionary right that has property attributes as opposed to creating a new property right.

    It is also important to consider the converse. In other words, what happens when the claims of a patent are cancelled or expire? Is the government taking rights away from the assignee and then destroying them, or is it simply extinguishing rights in the hands of the assignee?

      1. The Quid Pro Quo, which I agree is not arguable, deals with why a right to exclude is granted–not the nature of the right to exclude.

        By converse, allow me to rephrase the original question. How might you describe the actual moment that a patent is invalidated in terms of the destruction of a property right and transfer of that right from the assignee? If we could slow-down time to look at what exactly happens: Is the right first seized from the assignee by the government and then destroyed? Or, is the right simply destroyed already in the hands of the assignee?

        Presumably, patent rights leave the world the same way they come in. If not, why?

        1. To your last question, one might equally ask why you would presume such. After all, the beginning and the end have nothing in common (metaphysically).

          1. Does your rejection of my presumption prevent you from answering my questions?

            In any case, I do not believe that creation/destruction are necessarily symmetric. However, I believe that there is always a relationship. For example, take the creation and destruction of an automobile. When does a collection of parts become an automobile? When does an automobile cease to be an automobile? One could look at operability, presence of certain components, configuration of certain components, the owner’s intentions to fix or scrap. Whatever lines are drawn, the relationship between the two defines what it means to be an automobile.

            Regarding patent rights, understanding the end may help inform the beginning. Is an invalid patent not property or is it just worthless property (assuming that past damages are not an issue)?

            1. As to: “Does your rejection of my presumption prevent you from answering my questions?

              While I did not directly answer ALL of your questions, NS II, I did answer the last one (with a question). I did this to expose the assumption inherent in all of your questions.

              You first have to grasp that before any other answers that are supplied to you will be understandable BY you.

              Now then, to your first question of: “ How might you describe the actual moment that a patent is invalidated in terms of the destruction of a property right and transfer of that right from the assignee?

              When you are talking about a patent right being invalidated, you can approach this in two ways:
              1) The existing and actual property that is the right is nullified at the time of invalidation. This can be viewed as a taking of property – and is why court procedures and such must might Due Process and other Constitutional protections that guard against the government performing an illicit takings.

              2) The grant of the right which supplies the property was itself invalid, and the property never actually existed. Therefore, the invalidation merely restores the status quo ante.

              The problem of 2) of course, is that Congress has already directly addressed that line of thought in the presumption of validity and the notion that – at first blush – credit for actually examining an application and thereby granting the property rights of a granted patent MUST be recognized. This is established in the presumption of validity stick in the bundle of property rights that inures at the time of grant.

              Of course, when you have other such things as Fraud on the Office, your 2) may be in play. But this should not be conflated with how most invalidations occur – and in truth, is the source of the most angst on this subject.

              Either of these approaches does not need to consider any such “transfer” that you have in your question. Your question is simply ill-formed for the actual mechanism that you are asking about.

              This then also negates your follow on questions two and three (and I have already answered your fourth question).

              Feel free to ask any additional questions my friend.

              1. In short, you could have just said, there is no transfer. My question was whether or not there was a transfer-just as in the original posting. Anyway…

                “The existing and actual property that is the right is nullified at the time of invalidation.” __ I assume you are using the word “actual” to distinguish a patent from some other type of non-actual property. However, the fact that a patent can be nullified as opposed to destroyed distinguishes it from other types of property. Given that nullification does not include a transfer, it must be a taking under some other theory.

                I’m not sure what this means: “The grant of the right which supplies the property was itself invalid, and the property never actually existed.” __ Is there some tangible property analogy that can be made here or a way to rephrase this? I don’t understand this concept of “a right which supplies the property”. I understand that a right can be property, but “supplies the property” suggests an independent existence. Do you mean “The grant of the right was itself invalid, and the right never actually existed”?

                Moreover, I don’t see how “the invalidation merely restores the status quo ante” distinguishes between your two approaches. Either approach results in restoration of the status quo. The distinction is the path used to get there.

                “This is established in the presumption of validity stick in the bundle of property rights that inures at the time of grant.” __ How exactly is the presumption of validity a stick? It is not transferable. It doesn’t impose a duty nor does it confer a right. At best, it modifies other sticks.

                I don’t see how the examination process or presumption of validity is relevant to understanding patent rights as property. They certainly affect the value of patent rights, but the nature of property does not generally depend on value.

                1. The presumption of validity very much is transferable. Perhaps you meant not separately transferable, but that too is a distinction without a difference.

                2. …also, I think that you jumped over the premise I put to you in my second response in this sub-thread by your “in short” comment – I did say that my first response in question form was intended for you to reevaluate your own presumptions, and that that was necessary for you to grasp the other answers that I supplied to you.

  6. The general moral right to ownership of one’s own mental labor pre-exists creation of the invention by the inventor. The specific right in the invention by that individual is born at the moment of invention. The “securing” of the right to the individual for the limited time, requires a process to validate and define the right. Once secured the right is protected and enforced.

    Unlike land which exists in a bounded bordered geography patrolled and protected by a State, the vast infinitude of the undiscovered and as yet to be invented, is NOT pre-owned by anyone, and hence by no group, no gang, (no mob, Nation, Kingdom, Tyranny or World Order, each of which is only a collection of individuals) who has not preformed the act of invention in respect of that infinitude.

    The State does not possess rights, for distribution (or re-distribution) nor do they grant them, they secure, recognize, protect, and enforce individual rights.

    The above is a little abstract…

    1. Unlike land which exists in a bounded bordered geography patrolled and protected by a State

      Presumably you are referring to land on Earth and not the surfaces of other objects in the galaxy.

      moral right to ownership of one’s own mental labor

      What if I’m going insane from ingestion of some toxic plant-derived chemical and in order to save my life the doctors put me into a drug-induced coma. While in the drug-induced coma, my brainwaves are monitored and translated by the doctor’s computer (which the doctor programmed). The translated brainwaves depict the process of navigation through an imagined maze which corresponds to a physical healing event that can be subsequently replicated in others by inducing the identical pattern of brainwaves.

      Who possesses the “moral” right to that useful pattern of brain waves?

      1. The doc, that’s not hard. Problem is, it was a naturally occurring healing event. Not patentable. It would be like trying to write a patent on the immune system.

        1. The doc, that’s not hard.

          But it wasn’t the doc’s mental labor that created the solution. It was mine.

          it was a naturally occurring healing event

          Fascinating. Assuming you’re correct, is that true of all mental processes that can be converted into signals which are useful? Or just this one for some reason?

          It would be like trying to write a patent on the immune system.

          Except the claim doesn’t cover the immune system, nor does it cover any bodily system. It’s a particularly claimed process for inducing a physical change with a signal.

          1. it was a naturally occurring healing event

            Fascinating. Assuming you’re correct, is that true of all mental processes that can be converted into signals which are useful? Or just this one for some reason?

            Love the twist you put on that – from healing event to mental step….

            Maybe you should stick with the thrust there: healing process.

            Does that make all pharma into a non-eligible group?

          1. I see in my paper this morning the comparison with Ricky Gervais in “The Office”. Will the series run for more than a few weeks more, i wonder.

            Mind you, it is kinda gripping to watch isn’t it?

            1. The other day I was thinking that Trump has been dominating the news for such a long time that almost no one can talk about anything else. If, one day, we talk about something else and do not talk about Trump, we are going to feel really down because right now we are all on an adrenaline rush.

              I do not think that anybody, anywhere in the world, or at any time except perhaps in Deutschland back in the 30s, has seen anything quite like this.

              1. We all are thinking the same thing. It creates the illusion that nothing is happening elsewhere in the world; and maybe the world too has taken its gaze from its usual mayhem to stare at this all-too precedented train-wreck.

                We all knew that Germany and the USSR and North Korea were well within the portfolios of evil men anywhere. This is going to be the ultimate test of the modern age, which explains the coverage.

                1. Interesting, that incantation of “evil”. The modern view is that it is the complete absence of empathy with your fellow human beings, simple as that.

                  But if it is that simple, it raises questions about people in positions of power all over the world. Like CEO’s of huge corporations. Are some of them “evil” too?

                2. Two out of 10 people are just no good.

                  An ideology can be evil even if some participants, or even some of its leaders are decent people. The Confederate States of America was full of honorable people, but it was an evil regime.

                  The plain common clay of the New West can be led in horrible directions, just as people anywhere can be mislead. This is as old as humanity.

                  Since the late 1970’s, the Republican party has been consumed by nihilism and the belief in a one-party state. We are nearing the apotheosis of that drive.

                  What caused it? I think the trauma of the Greatest Generation writ into the Boomers and the sheer difficulty for any great empire to gracefully let its peak moment pass.

                  It happens in families and businesses too.

                3. “Interesting, that incantation of “evil”. The modern view is that it is the complete absence of empathy with your fellow human beings, simple as that.”

                  That’s the moral relativist inspired “modern” view. Which is more or less tar de d. They’re just recasting people that lack empat hy as being the old school notion of “e vil”.

                4. Continued…

                  “But if it is that simple, it raises questions about people in positions of power all over the world. Like CEO’s of huge corporations. Are some of them “evil” too?”

                  Anybody familiar with psychology can tell you that CEO’s and presidents are rife with literal bona fide psychopaths (so cio paths). That particular me ntal il lness (or super power depending on the outcome of situations) is way over-represented in the halls of power. Always has been. And psyc hop aths often do e vil (regardless of whether you define ev il in old school moral terms or in new school empathy terms).

                5. “6, have you taken the IPIP-NEO test that I provided a link to yet?

                  We should compare results.”

                  I didn’t notice you posted the link. But no I didn’t hit it up yet. Just googled it, and it seems to be a personality trait test. I’ve taken them before, but not that one. I can’t remember if I’m like INTJ or whatever. But iirc I’m the INTJ. I don’t know if your test is better than that one or not or whatever.

                  link to 16personalities.com

                6. This one is a professed improvement over the standard 4-factor one.

                  It even has a whole category that you would like 😉

        1. Whites without a college degree are one major demographic group for which most approve of Trump’s job performance (56%) and strong approval outweighs strong disapproval (46% vs. 32%).

          Nobody could have predicted that. LOL

          And now we know what “white people without college degrees” have in common with “white patent attorneys who favor stronger patents.”

          1. “Whites without a college degree ”

            Read: whites without university level political indoctrination.

            “Trump’s job performance”

            He hasn’t even been “on the job” more than a month or so.

    2. Anon2, absolutely correct and this is the view of Madison and Federalist 43. Madison viewed copyrights and patents as equally common law rights, and deserving of the assistance of government and their protection.

    3. Superb. In other words, the right to one’s own thoughts and mental labors spring from ‘natural law.’ And we were given the structural protections of three co-equal government departments to protect those natural rights. And of course, those rights are then capped with the 7th Amendment. This is the view of Locke and the framers. Indeed, the patent and copyright clause itself, embodies the ‘individuals’ view property in relation to the sovereign. The ‘public right’ theory that so polutes modern thinking comes from the Rousseau camp (rights come from the society). And, eventually that ends with a head chopping French revolution. No thanks.

      1. I am glad, iwasthere, that you understand that the headchoppers, the Jacobins, were socialists. The modern socialist seems to want to cover that up.

        Most people do not even know that the flag of the Jacobins was the red flag and that when they took over in ’92, that flag, like the Swastika, became the national flag. The Jacobin flag remains the flag of socialism worldwide.

        1. That would be indicative of your favorite “swagger” person (Malcolm), Ned.

          You tend to have alignment blindness to that particular strain of thought, though.

  7. As a preface, while it’s possible that it might be necessary to answer this question to resolve a ripe issue, I think there is a very real risk that consideration of this question in the absence of any specific context is akin to jumping down a rabbit hole that leads to a wonderland where you can make up whatever rules you wish.

    If I was to try to consider this question, I would likely start from the fact that the Constitution only provides Congress the power to secure for inventors the exclusive right to their respective discoveries. Congress has vested this power in the PTO, but the PTO’s authority is still limited to securing the exclusive right for inventors.

    First considering the simplest case where an inventor is the applicant, a narrative in which the right initially vests in the government before being transferred seems at odds with the constitutional grant of power, which is limited to securing an exclusive right for inventors.

    Developments in this area have made clear that an inventor’s right can be assigned, and under the AIA an assignee can even apply for a patent as the applicant, but I don’t think this otherwise changes the analysis.

    Whether any right passes through an inventor upon grant seems a more difficult question that I am again not sure is ripe for consideration.

    I feel like trying to settle these questions without the context of an actual case or controversy risks creating a framework that may dictate results that were neither desired nor intended.

    That being said, there may very well be an interesting argument starting from this thought experiment that would assist in resolving the public/private rights issue. I myself am going to opt not to jump down that rabbit hole, but I would love to see someone put something together. For that alone, I think your post is interesting and productive.

  8. The way I see it, the government does not bestow any “right to exclude” when it issues a patent to a party that asks the PTO for a patent.

    Instead, the government causes the PTO to issue a certificate which entitles its owner to petition the court for relief from infringement.

    But the court will refrain from granting such relief if the issued patent (or the claim sued upon) is not valid. Possession of a Grant Certificate is no guarantee of possession of any enforceable property rights.

    1. Max, that is not consistent with American law. The only reason one has a right to damages is because one has a right to exclude. This is a property right and it is enforceable in court.

      1. Ned I wasn’t thinking of relief in the form of damages. Rather, I had in mind relief in the form of an injunction to cease the infringing acts.

        But I still don’t see your inconsistency or anon’s oddness. Perhaps one or both of you would like to expand on your respective opinions?

        1. First step in that “not seeing,” MaxDrei, is having a mind truly willing to understand.

          For you, that would mean dropping the “EP uber alles” mindset.

          It’s been years since I first pointed this out to you.

          Expanding on perspective here – without you first expending that necessary effort – is rather like leading a horse to water (you can search the archives for that reference to see just how long you have avoided that mind willing to understand…

        2. Max, well the right to exclude gives one the legal right to damages for infringements. But there is no right to an injunction. You are correct that the patent owner must prove up that the equities are balance in their favor and that is legal remedies are inadequate.

          But there is no doubt that when one has a legal right, he has a right to go to court and use the coercive processes of the law to force the defendant to pay damages.

          1. Even if you, Ned, anon, think it pedantic or illusory, I continue to see a distinction between i) a right to relief and ii) a right to ask the court for relief.

            It still seems to me that mere possession and ownership of a patent issue certificate, gives you ii) but not automatically of i).

            1. Max, there is no discretion in the court. The court must grant relief if there is an infringed legal right. Of course, defendant has due process, which means, the right holder has to prove infringement and damages.

              1. Ned thanks. No discretion. As you say.

                My thoughts were more on the defence to infringement, that the right asserted is not valid. The issued patent is presumed valid but that validity is not a fact but merely a rebuttable presumption. Having an issued patent then, is not enough to guarantee relief from infringement, despite the unavailability to the court of any discretion in the matter.

                1. ?

                  Not sure how your thought on the defense along with the Congress mandated presumption of validity intersects with the topic here MaxDrei.

                  Then again, the presumption of validity has always given you fits and is one of your Windmills to remove from US jurisprudence, isn’t it?

  9. It’s a contract with the government. Give me a useful disclosure, and in return, the government will give you a right to exclude etc.

    1. J,

      While you do sound in the Quid Pro Quo exchange, it would be a mistake (from a legal understanding) to think of the patent as a contract (falls far too easily into the manipulations of the Efficient Infringer crowd, for example).

  10. I would say there is a distinction between the “patent” (the “letters patent”) and the patent “rights.” Under 35 USC 152, the patent itself is created by the government and then transferred to the patentee. The patent “rights” (i.e., the right to exclude) are granted by the government to the patentee as part of the grant of the patent (see 35 USC 154(a)(1)), but I would say those rights are created already in the hands of the patentee. They are not “transferred” to the patentee because the government did not itself have the exclusionary rights, even for a nanosecond.

    If this is the case, then it follows that nothing ever passes through the inventor who had already assigned away all of his rights prior to the patent issuing.

    Also, I would say that the ribbon copy is the “letters patent” and the evidence of the patent rights, but that the initial grant of the patent rights and subsequent assignments of those rights does not require a physical transfer of the ribbon copy.

    1. Yeah, this seems like it must be right. The sovereign has the right to exclude people from any lands within the nation, and it then grants those rights to an individual landowner. But the US government never has the right to exclude people from practicing an invention made by a private citizen.

  11. Created in the hands of the patentee. The government never enjoys a right to exclude, which is then conferred upon an individual. The right to practice the invention is theretofore enjoyed by all (even if subsequent issuance might give rise to a sui generis claim for compensation during application). Quite different with land/real property, all originally vested in the sovereign. Nothing passes ‘through’ the inventor, who if not the patentee, enjoys a different bundle of rights (including the right to have the title of the patent correct, I presume ab initio).

  12. Is the right first created by the government and then granted to the patentee?

    I think it must be. “Patents shall be issued in the name of the United States of America” 35 USC § 153 (patent right is created by the government). “Every patent shall contain … a grant to the patentee … of the right to exclude others” 35 USC § 154(a)(1) (patent right is granted to the patentee).

    Assuming the inventor is no longer the right-holder, does anything pass through the inventor’s hands at that moment?

    I don’t think so. “Patents may be granted to the assignee of the inventor of record” 35 USC § 152. Together with § 154(a)(1) I think this implies that the patent right is granted directly to the assignee-as-patentee without passing through the hands of the inventor.

          1. As I indicated elsewhere, the Quid Pro Quo should not be viewed in the legal sense of “contract” as that falls too easily into the Efficient Infringers’ propaganda zone.

            Yes, the Quid Pro Quo is an essential element of the US patent jurisprudence, but any relation to contract law falls short in that contract law (by and large) can comprise a heavy mix of statutory and common law, whereas patent law, due to its more direct Constitutional allocation of authority falls directly (first and foremost) to being statutory law.

            How many times in these boards have we seen the uninformed (purposefully or otherwise) confuse, conflate, and for some, even obfuscate discussions based on not respecting the differences between statutory law and common law?

  13. That is an interesting question, but I am having a hard time imagining a circumstance where it could matter to the outcome of the case whether the patent had to have vested in the inventor for a nanosecond before it shifted to the purchaser for value.

    In other words, I am dubious that there will actually be any law on this point, even if one were to search very thoroughly, although I would be delighted and fascinated to be proven wrong on that doubt.

    Uninformed by any actual binding authority, it seems to me like the right way to think of it is that (1) the sovereign creates the right (such that it belongs to the sovereign for a nanosecond); (2) then it passes to the inventor, where it can remain indefinitely, but where it must linger for at least one nanosecond; (3) then, if there has been an assignment, it passes to its assignee like any other chattel, possession transfering with the movement of the ribbon-document or the recordation of the transfer, whichever comes first.

    Do you care to expand on how you imagine these metaphysics might matter to the public rights question? I confess that the relation is not immediately evidence to me.

    1. Wouldn’t there be tax/transfer/gift sorts of implications if we don’t regard everything as truly instantaneous/simultaneous?

      1. Maybe. I confess I do not spend a lot of time thinking about tax, so I really do not know. Do you care to unpack your thinking on the point?

    2. Greg,

      Review the Stanford v Roche case of a few years back, then read some Chisum (chapter 23, if I recall correctly…)

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