by Dennis Crouch
Another interesting en banc petition by Robert Greenspoon and Phil Mann: Cascades Projection v. Espon and Sony, Appeal No. 17-1517 (Fed. Cir. 2017). The petition asks one question: “Whether a patent right is a public right.” Of course, the Federal Circuit has already decided this in MCM – which is why the petitioner is bypassing the initial appeal and asking directly for an en banc hearing.
[S]ince this Court has not had a chance (as a full court) to consider the exceptionally important constitutional question, since intervening decisions after MCM have encroached upon the MCM constitutional holding, since patentees continue to bring the same constitutional challenge in hopes of overturning the MCM constitutional holding, and since overturning the MCM holding will potentially reduce this Court’s ballooning USPTO docket, Appellant seeks initial en banc review.
The “public rights” issue is complicated, but the basic outcome is simple – if patents rights are not public rights (but instead private rights) then an administrative agency cannot lawfully revoke a patent once issued (without the permission of the patentee).
The Supreme Court appeared to speak directly on this issue in McCormick Harvesting Mach. Co. v. Aultman-Miller Co., 169 U.S. 606 (1898):
The only authority competent to set a patent aside, or to annul it, or to correct it for any reason whatever, is vested in the courts of the United States, and not in the department which issued the patent. Moore v. Robbins, 96 U. S. 530, 533; U. S. v. American Bell Tel. Co., 128 U. S. 315, 364, 9 Sup. Ct. 90; Lumber Co. v. Rust, 168 U. S. 589, 593, 18 Sup. Ct. 208.
Although the direct case is 100+ years ago, we’re still working with the same United States Constitution that protects private property rights against governmental intrusion that violate due process and equal protection principles.
In MCM, the Federal Circuit distinguished these old cases by noting that patent office cancellations were not authorized by Congress: “McCormick … certainly did not forbid Congress from granting the PTO the authority to correct or cancel an issued patent.” MCM (opinion by Judge Dyk, joined by Judges Prost and Hughes). The petition offers several responses: (1) McCormick does not actualy provide the ‘statutory caveat’ but instead limits PTO authority “for any reason whatever.” (2) The reissue statute in force in McCormick did expressly authorize examiners to reject the issued claims – whether original or amended. Thus, the McCormick decision did limit the power of Congress to increase PTO power.
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One of the petitioner’s justifications for en banc review here is that it might allow the court to limit its docket. In the process, the petition cites my recent Wrongly Affirmed Without Opinion article for the proposition that the court’s opinion writing docket may soon be further ballooning. “If Professor Crouch is right, it could be serendipitous if the Court overrules MCM, thus reducing docket load through reduction of incentives of patent owners to appeal.”
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- Read the petition: petition-for-initial-en-banc-hearing.
- Amicus filings will be due March 1.
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The public/private divide is, in reality, a false dichotomy since the Court is comfortable with the notion of “quasi-private right” — which has the aspects of a private property right, but which can be subjected to administrative agency control. A key recent opinion on point is B&B Hardware (2015) – albeit the dissent by Justice Thomas (with Scalia):
Trademark registration under the Lanham Act has the characteristics of a quasi-private right. Registration is a creature of the Lanham Act, which “confers important legal rights and benefits on trademark owners who register their marks.” Because registration is merely a statutory government entitlement, no one disputes that the TTAB may constitutionally adjudicate a registration claim.
By contrast, the right to adopt and exclusively use a trademark appears to be a private property right that “has been long recognized by the common law and the chancery courts of England and of this country.” In re Trade–Mark Cases, 100 U.S. 82, 92, 25 L.Ed. 550 (1879). As this Court explained when addressing Congress’ first trademark statute, enacted in 1870, the exclusive right to use a trademark “was not created by the act of Congress, and does not now depend upon it for its enforcement.” Ibid. “The whole system of trade-mark property and the civil remedies for its protection existed long anterior to that act, and have remained in full force since its passage.” Ibid. Thus, it appears that the trademark infringement suit at issue in this case might be of a type that must be decided by “Article III judges in Article III courts.” Stern, 564 U.S., at ––––, 131 S.Ct., at 2609.
B & B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293, 1317, 191 L. Ed. 2d 222 (2015) (Thomas, J. Dissenting).
MCM makes much of the fact that Congress enacted a process to invalidate a patent through the PTO, and that the PTO should be given Chevron deference, does not adequately address the underlying issue of whether such a process is a taking of property without compensation or due process.
BRI, without the opportunity to amend, and weak estoppel provisions are very far from the rights available in court doesn’t meet proper due process protection in current IPR proceedings, IMO.
In my opinion, the petitioner and the Federal Circuit in MCM v HP have wrongly framed the IPR constitutionality question as “whether a patent right is a public right,” where the term “patent right” is indefinite. The “public” vs. “private” right issues that determine the constitutionality of IPRs must be decided by answering a different and more precise question. According to the Supreme Court, in deciding whether the adjudicated right is “private” or “public,” “the Court must examine both the nature of the action and of the remedy sought.” Tull v. United States, 481 U.S. 412, 417 (1987) (emphasis added); Curtis v. Loether, 415 U.S. 189, 195 (1974) (“a jury trial must be available if the action involves rights and remedies of the sort typically enforced in an action at law”) (emphasis added); Ross v. Bernhard, 396 U.S. 531, 538 (1970) (“The Seventh Amendment question depends on the nature of the issue to be tried rather than the character of the overall action.”) (emphasis added).
IPR adjudications involve traditional legal claims of patent invalidity and the actual rights adjudicated in IPR are not the patent enforcement rights. Those “patent rights” are adjudicated in the federal courts which are empowered to award damages and grant equitable relief against infringers.
Rather, the ”issue to be tried” in an IPR adjudication is the cancelation of patent claims that voids the exchange of rights in the patent bargain, but without restoring to the inventor the common law private secrecy rights, which became publicly available upon patent grant. Instead, upon claim cancellation, the inventor’s private right is necessarily dedicated to the public (including to the petitioner challenging the patent). Indeed, the “remedy sought” by the petitioner in an IPR is to cancel patent claims, in order to obtain the private right to practice the invention. Thus, in an IPR proceeding in which claims are cancelled, the petitioner receives private benefit, the right to exploit the inventor’s published description of an invention that would otherwise enjoy private rights of secrecy, and the inventor incurs a net loss of that private right because the loss of secrecy (by publication of the patent) is irreversible. It is this economic transfer of a private right to the petitioner at the expense of a net loss to the inventor’s private right that is at the heart of IPR adjudications. The Federal Circuit failed to address the real nature of the action and of the remedy sought” in IPRs in its decision.
See my full legal and historic analysis in the Amicus Brief I authored on behalf of IEEE-USA and filed in support of the MCM’s cert petition at link to bit.ly.
Ron, the action scire facias was a form of action that had specific legal relief — the revocation of a patent for invalidity. It had a right to a trial by jury. I argued this point extensively, particularly in oral argument.
The problem was that the Patlex court had held that patents were public rights and that this somehow negated the patent owner’s 7th Amendment right to a jury trial in a court of law. We had to address that issue as well.
The MCM court followed Patlex.
In the end, the Federal Circuit has ruled that patent owners have a 7th Amendment right to a jury trial for validity (Lockwood) and at the same time do not have a 7th Amendment right to a jury trial for validity (Patlex, MCM). They seem comfortable that their views will not be considered by higher authority because of policy reasons.
Reminds me (granted, a bit tangentially) of the Supreme Court spiderman web shooters case.
The Supreme Court took their typical anti-patent position, and even acknowledged the error in the case law used, but deigned not to disturb the lower court’s holding because of “policy.”
The High Court has far too much of an addiction to the power of setting policy. Especially when it comes to the statutory laws of patent law.
ps – and it is precisely this addiction why the only real long term solution is for Congress to exercise its Constitutionally granted power of jurisdiction stripping to strip the non-original jurisdiction of hearing patent appeals from the Supreme Court and in maintaining the judicial review portion of Marbury, creating a new (untainted) Article III court as a true last word on patent law.
Funny that for all the attempts at belittling this suggestion, no one has yet advanced a plausible legal rationale as to why this could not be done.
No one – not hear, not anywhere.
Because if there isn’t a “legal” argument against doing something, then it’s definitely worth discussing the awesomeness of doing it, especially if the discussion is with a path 0 l0gically l y in g narcissist.
That’s why Donald Trump is so popular, after all.
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Ron Katznelson Instead, upon claim cancellation, the inventor’s private right is necessarily dedicated to the public
If the claim is invalid in view of the prior art, then the “right” belonged to the public before the application was filed. Everyone is free to practice the method “privately”, of course, if that’s what turns their crank. Go craaaaaazy!
Key point to remember here: Ron Katznelson is a self-dealing hack with really really silly “arguments”.
Please go back to writing your whiny baby letters to Barack Obama, Ron. He needs them now more than ever because his daughter has a pet parakeet.
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MM,
I suggest you refrain from personal attacks, take a course in civility, and a basic course in logic. You do not address the question at hand: whether the rights are “public” or “private” because under your infirm logic, every patent is invalid. However, whether or not an issued patent is valid is only determined at the end of the adjudication process. Under § 282, a patent is presumed valid going into an IPR. Thus, the rights to be adjudicated are (a) whether the petitioner should gain a private right to practice the invention which he is not entitled under the presumption of patent validity, and (b) whether the patentee should retain the benefit of disclosing trade secrets (which are private common law rights) – a retention to which he is entitle under the presumption of patent validity. In either outcome, private rights are at stake.
Ron,
All three of your suggestions have been repeatedly made over the course of the last eleven years by many many many people.
The blight remains unchecked.
Is this request tied to a case or controversy? The court should only decide if it is a public or private right to answer a particular question, not just opine the general nature of the patent without more, correct?
My recollection is that the early cases on fraud on the Patent Office (the cases back in the 1930’s and even the CCPA case Norton v. Curtiss from the early 1970’s) mentioned that the duty of disclosure arises because “patents are affected with the public interest.” Assuming my recollection is correct, how, if at all, does this affect the private right/public right debate?
Also more recently (2014) the Supreme Court has reiterated in Medtronics v. Mirowski:
the “public” also has a “paramount interest in seeing that patent monopolies . . . are kept within their legitimate scope.” Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U. S. 806 (1945).
It’s very easy to understand why this is the case: every improvidently granted patents unlawfully takes from the entire public its right to freely engage in the invalid/ineligible activities described by the improvidently granted claim.
Translation: “wah”
From the self-appointed watcher of the “public” playing in the Fields of Rye.
Tell me something Malcolm, aside from your feelings concerning software or business methods, do you have anything constructive to suggest to the Office so that it can do its “Fn job right the first time.” (That last bit being of course my emphasis)
yes, but does that mean a patent is a public right, or a private right affected by the public interest.
Or are we counting dancing dervishes in the head of a pin?
does that mean a patent is a public right
It’s certainly a relevant consideration. Consider the source.
And so, MM, shortly before the creation of re-examinations the Supreme Court ruled that the government has authority to challenge the validity of patents in court as a necessary part of challenging monopolistic conduct by a patent owner.
But the Supreme Court affirmed the long-standing rule that not even the government had a right to challenge a patent in court unless it had standing. This standing did not include the right to defend the public interest against invalid patents, only the right to defend itself against patent challenges, or to sue the patent owner if the patent owner had obtained a patent by defrauding the government.
Standing….
Another wrinkle to iron out if patents are not property…
That speaks more to the general interest of the public in bringing declaratory actions
the Mirkowski quote, that is
American Cowboy, it affected somewhat because Patlex originally created the idea that patents are public rights not only because they were created by statute but because the public as an interest that patents be valid.
“In contrast with the private rights at issue in Northern Pipeline, the grant of a valid patent is primarily a public concern. Validity often is brought into question in disputes between private parties, but the threshold question usually is whether the PTO, under the authority assigned to it by Congress, properly granted the patent. At issue is a right that can only be conferred by the government. See Crowell v. Benson, 285 U.S. at 50, 52 S.Ct. at 292. Thus we find no constitutional infirmity, under the analysis suggested by Northern Pipeline, in patent reexamination by the PTO.”
Patlex at 604. link to scholar.google.com
Can someone more conversant than am I with the public rights case law answer a question that troubles me: if patents are public rights, does that mean that Congress could (if it chose) remove them entirely from judicial supervision? That is to say, right now, one can appeal and adverse IPR decision to the CAFC. Assuming for purposes of this question that patents are public rights, is that right of appeal to the CAFC a pure act of legislative grace, or is there some other legal doctrine that compels even public rights disputes to be subject at some level to judicial supervision?
is there some other legal doctrine that compels even public rights disputes to be subject at some level to judicial supervision
At some level, due process and equal protection concerns may lead to “judicial supervision.”
Even just at the statutory level, there’s the A.P.A. for example that doesn’t allow arbitrary decision-making by any administrative agency.
So presumably, this means we’d always need at least enough judicial oversight to make sure that the administrators are in fact being non-arbitrary.
Even just at the statutory level, there’s the A.P.A. for example that doesn’t allow arbitrary decision-making by any administrative agency.
Ah, but that is my question. Could Congress amend the IPR statutes to say “notwithstanding any provision of Title 5, the exclusive remedy for a party disatisfied with the PTAB’s judgment shall be to seek reconsideration from the PTAB”?
The APA is not binding on Congress. The APA is merely a default rule that Congress has provided. Congress is free to create special provisions that supplant the APA in any given statutory scheme.
I think that due process and equal protection do constitute an answer to my question, but the APA does not.
That may be fair…
We get back to the separation of powers infinite loop….Essentially no one branch may deny any of the other branches their ultimate interests in legislating, executing, and interpreting anything that the government may do.
Turtles all the way down, or politics depending on your philosophy of the finite.
I’d have to remember my fed courts, but I think under Crowell, if a right is public, the rule is “Congress giveth, and Congress may taketh away”. If it’s public, no Article III review is required beyond that necessary to safeguard due process.
See, 8.4. link to patentlyo.com
Probably unconstitutional on separation of powers grounds. You can’t take away the power of judicial review for due process and constitutionality of the statute.
Now the only remedy in enforcing the patents, and where to get damages, ect… yes, that can be confined to an administration, just like Worker’s Compensation, for example.
Probably unconstitutional on separation of powers grounds. You can’t take away the power of judicial review for due process and constitutionality of the statute.
Agreed.
Now the only remedy in enforcing the patents, and where to get damages, ect… yes, that can be confined to an administration, just like Worker’s Compensation, for example.
This seems really strange to me. Enforcing a patent is precisely the aspect of the patent that seems most like land, and therefore the most like a matter for the courts of common law. I have a hard time wrapping my head around the idea of a non-Art. III tribunal that is empowered to decide infringement and award damages.
Indeed, this is where the analogy to Workers Comp really breaks down. The Workers Comp board can award you a payment out of the government treasury. It most definitely cannot order the employer to pay the injured worker. Similarly, the Workers Comp board has no injunctive powers.
To my mind, the public rights aspect of patents is the question of validity. Congress can assign the assessment of validity to an Art. I agency (indeed, it has done so for hundreds of years now—the PTO). Congress cannot assign the enforcement of patents to any tribunal other than an Art. III tribunal, because enforcement applies to the private property aspects of patents.
Greg, the defendant has right to trial by jury in a court of law before his property – his money – is taken from him. If this is true, why is not the owner of a patent recorded the same constitutional protections before his property is taken from him?
Ah, but that answer assumes the very point in debate—are patents wholly analogous to personal property, such as the cash in your example? It seems clear to me that the answer is no.
But, under controlling SC case law, a right for a fixed period IS property. See, e.g., Marbury v. Madison.
It is constitutionally mandated that the exclusive rights be for a limited period, right?
Ned,
I have put the same foundational case to Greg in a slightly different manner and have received the same insightful non-response.
He must be stumped.
Albeit not nearly as virulent as Malcolm, I believe that what is stumping Greg is his evident Leftist leaning belief system.
I just don’t think patents are at all like real or tangible property.
And I think that the employer’s of the state, in one way or another, pay into the worker’s compensation fund.
I just don’t know if that’s true. Many agencies can adjudicate legal issues between private parties.
J,
Please flesh this out a little bit more:
“I just don’t think patents are at all like real or tangible property.”
How much “like” do you have to be in order to inure the other Constitutional protections for protecting against takings by the government?
Does your “thinking” preclude these other Constitutional protections?
“Assuming for purposes of this question that patents are public rights,”
Maybe you glossed too quickly over the many items that I have pointed out that will unravel because of “public rights”…
Greg – yes. If a public right, the issue can be removed from the Article III courts altogether.
I suppose that would be one way to enact an “Eliminate the Supreme Court from hearing Patent Appeals” methodology….
(I like my idea of jurisdiction stripping of the non-original jurisdiction of patent appeals, coupled with a new Patent Article III Court much better)…
Wouldn’t it just be easier to change the patent statute to go around the Supreme Court interpretations?! It’s not like the Supreme Court invalidates patents on constitutional grounds.
No, it would not be “easier.”
You haven’t been paying attention to the history lesson of the Act of 1952.
Do you mean “altogether” in the strong sense, or “altogether (except for the exceptions that everyone knows about)”?
I assume that if patents are held to be public rights, and if Congress decided to entrust their disposition entirely to an Art. I agency—with no appeal to the CAFC—but it was found that this agency always cancels claims in patents with Jewish inventors, that there would still be equal protection review, no?
Basic due process concerns likely operate at the foundational agency level.
Greg, if patents were public rights Congress could both grant and revoke a patent at its discretion. Obviously, if it had that right itself, it could delegate that discretionary power to the executive.
In England, all patents until 1903 included a clause allowing the privy Council to revoke a patent for convenience – the convenience of the public of course. The validity of patent still was litigated in court. But if the public was inconvenienced by the patent, the Crown retained the right to revoke it.
But you will note that this prerogative is not granted to Congress in the Constitution. Congress is authorized only to grant exclusive rights for limited times. If Congress retains the right to revoke a patent at any time for any reason, there is some question about whether it is exceeding its power because the grantee has not been given an exclusive right for a limited time.
But you will note that this prerogative is not granted to Congress in the Constitution. Congress is authorized only to grant exclusive rights for limited times.
I am not sure how this argument is supposed to work. Congress is also not accorded the power to exclude computer implemented inventions from eligibility. Congress is not accorded the power to require one to obtain a foreign filing license before filing on an invention invented in the U.S. Congress is not accorded the power to institute a body to examine applications prior to grant.
In other words, almost every aspect of our patent system goes beyond that which is explicitly permitted in the constitution. Nobody, however, supposes that foreign filing licenses or pre-grant examination is unconstitutional, and only cranks argue that judicial exceptions to subject matter eligibility are unconstitutional. From this it follows that we all understand that Congress’ powers to grant, revoke, and condition go far beyond that which is explicitly set out in the constitutional text.
Greg,
Your argument here is a fallacy. Most of what you say is not there, is in fact, there (through the power of creating laws FOR a patent system, which is what the allocation of authority of the Constitutional phrase provides).
Throwing CRP against the wall to see what sticks seems to be what you are doing here…
Greg, anon and I agree here.
That is transparent special pleading, no? Silence is significant when it suits my purpose for it to be significant, but not significant when it suits my purpose for it not to be?
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Greg, the counter examples you cite pertain to before a patent is granted. Regardless of the merit of such matters, the fact remains that AFTER a patent is granted it is arguably another matter because a new property right has been vested…
I have pointed that out to him before…
The US signed the TRIPS agreement which explicitly recites that patents are private rights, a statement that was inserted to make clear that individual signatory countries would not have the obligation (and expense) to enforce/defend patents of its citizens in other signatory countries. If patents were public rights, the US should indeed be obligated to enforce/defend US patents in other countries at its expense.
A few responses:
(1) It is not possible to enforce U.S. patents outside of the U.S. It really would not matter if Uncle Sam were willing to pick up the tab or not, if you show up in a Mexican court with a U.S. patent, you are not going to get anywhere.
(2) It is perhaps unfortunate that the “public” rights are called that. It is a category error to suppose that “public” here means “opposite of private.” There is no inconsistency with patents being both public rights and private property.
(3) TRIPS is not a self-executing treaty. For purposes of U.S. law, what matters is what our domestic legislation and case law says. It is possible that we are out of compliance with our TRIPS obligations (indeed, I feel certain that Myriad put us out of compliance), but this does not create any sort of legally enforceable obligation that can be brought against the U.S. gov’t in U.S. courts. In fact, U.S. patent holders have no enforceable rights under TRIPS. The U.S. government can bring an enforcement action at the WTO against another government if it thinks that the other government is not honoring its TRIPS obligations, but mere corporations and citizens have no standing to sue in the WTO. In other words, if you really think that you have found a way to make Uncle Sam pay to enforce Apple Computer’s Chinese patent rights, you need to convince France, or Brazil, or some other TRIPS signatory to bring that action against the U.S.
“If patents were public rights, the US should indeed be obligated to enforce/defend US patents in other countries at its expense.”
Not only that – but a recent cert petition by Oil States Energy makes the interesting argument that if patents were public rights then the government would be responsible to actually police them (even just domestically) rather than making the patentee actively sue, etc.
(I don’t know enough public rights law to have an opinion on that aspect.)
Sure. Someone can make that argument, but it is silly. The reason why some people are so hung up is that they see the words “public” and “private,” and they think “must be one or the other, but not both.” This is just a false choice. Patents are both public rights and private property. Government is not responsible for searching out and stopping infringement because the enforcement of patents is the part that implicates their private property aspect. Government is responsible for policing the validity of patents, however, because that is the aspect that implicates their status as public rights.
Selectively saying “that part” is a private property part, while turning around and not providing Constitutional protection to A property by saying “well, that part is NOT a private property part – absolute “silliness.”
You are trying for a “little bit pregnant” routine.
That too was one of the tidbits that I presented… (although I thank you for adding the international treaty obligation part, as I had forgotten to add that)
Dennis, I think you’re exactly right on the quasi-public/private right. At least with trademarks, there’s been a history of common law trademarks. Is common law patents even a thing? It’d be very easy for the court to say that as part of your bundle of rights with a patent, you get the private right to enforce, but the patent right itself is subject to review and cancellation by ALJs, etc. I don’t see the court overturning years of PTAB/re-exam/etc. on the basis that patents are a private right.
Also, would this actually reduce the Fed. Cir.’s workload? Isn’t it far more likely that their workload would increase given the lack of other avenues of review for patents?
[W]ould this actually reduce the Fed. Cir.’s workload?
Prof. Crouch can correct me if I am misunderstanding, but I think that what he is trying to say is that if the en banc CAFC reverses MCM and declares that patents are not part of a public rights scheme, then it follows that IPRs are unconstitutional. If IPRs are unconstitutional, then the CAFC will no longer have to hear IPR appeals from the PTO (because there will be no more IPRs). The disappearance of IPR appeals would constitute a significant shrinkage in the CAFC’s docket.
I would clarify that further as IPR’s – as currently legislated – would be unconstitutional.
Congress could always “try again” (but respect the other Constitutional protections afforded property.
RN . I don’t see the court overturning years of PTAB/re-exam/etc. on the basis that patents are a private right.
That’s because it’s not going to happen. And if it were to happen, rest assured the blowback to the rest of the system would be extreme.
The people who rail most strongly against the Constitutionality of PTO review of granted patents fall mainly into two classes: (1) the maximalist whiners who rail against literally everything that decreases the value of a patent by whatever amount; and (2) fake Constitutional concern tr0llers who see a Constitutional problem with pretty much everything they don’t like. With respect to this latter class, you can smell them a mile away because their obsession with the Constitution disappears when the junk patent is improvidently granted. Even worse, if you should dare to bring up the Constitution in the context of challenging a patent’s eligibility you’ll be accused of senility. That’s what happened to Judge Mayer over at the Puppydog Patent Klub.
would this actually reduce the Fed. Cir.’s workload?
In the immediate aftermath it would but that’s about it. It’s a pretty ridiculous argument, though. “Hey, you guys can get out of doing your job if you subscribe to our ridiculous argument. Think about it!”
Your 0bsess10n and your mischaracterizations continue…
I think it’s clear that the Court isn’t going to junk the myriad post-issuance procedures a patent can go through at the office. With respect to the 7th Amendment issue, the history seems murky enough to let the Court uphold adjudication of validity in an administrative context, which would mean finding them public rights I think.
I actually wrote a somewhat contrarian article awhile back that argued that they were best considered public rights from an historical and logical perspective, and should be considered in the administrative context akin to regulations. In any case, as patents get fully drawn into the maw of administrative law, there will be many questions to answer, especially at the PTAB.
“Patents as Regulations: How the America Invents Act and the Seminole Rock Doctrine Could Change Claim Construction After Teva v. Sandoz.” 97 JPTOS 307 (2015).
Thanks Jordan
I think it’s clear that the Court isn’t going to junk the myriad post-issuance procedures a patent can go through at the office.
Exactly. That is the hardest part of the constitutional challenge to believe. If the challengers are correct about IPRs, it follows that not only are IPRs illegal, but so are ex parte re-exams without the patent owner’s consent. That is sort of like discovering that the manufacture of pistachio ice cream is unconstitutional. Sure, it is possible that such is the case, but decades of pistachio ice cream manufacturing without a problem make the contention highly implausible.
Didn’t they say the same thing (b-b-but decades) about the meaning of the False Marking statute (which saw the huge and frenzied drive to include that change in the AIA…
It is a bit dangerous to rely on the logic of “that’s always the way it’s been done”.
Finding agency review of granted patents to be unconstitutional would create absolute chaos. That would be true even if we weren’t faced with a historically massive mountain of ineligible and improvidently granted g@r bage.
We could, of course, step back a moment and ask: who would benefit from that chaos? The answer: the people with the money, i.e., the same entitled people who were milking the patent system like there was no tomorrow and who just can’t get over the fact that nobody likes them.
Everybody else loses. That would be pretty much every business, big and small, that doesn’t want or need patents, the people who work in this businesses, and everybody who uses a computer for anything. In other words: just about everybody.