Court-Agency Allocations of Power and the Limits of Cuozzo

Guest post by Saurabh Vishnubhakat, Associate Professor at the Texas A&M University School of Law and the Texas A&M College of Engineering.  Although Prof. Vishnubhakat was an advisor at the USPTO until June, 2015, his arguments here should not be imputed to the USPTO or to any other organization.

Prof. Vishnubhakat was counsel of record for the amicus brief by patent and administrative law professors in this case.

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Yesterday’s argument in Wi-Fi One, LLC v. Broadcom Corp. suggested that the en banc Federal Circuit are grappling with at least three important issues as they consider the reviewability of PTO decisions to institute inter partes review that arguably violate the one-year bar of 35 U.S.C. § 315(b):

  • How does the IPR statute allocate power between the PTAB and the district courts to reevaluate patent validity?
  • How does the Supreme Court’s opinion last Term in Cuozzo Speed Techs., LLC v. Lee allocate power between the USPTO Director and the Federal Circuit to oversee the PTAB?
  • How might this case resolve (or aggravate) rule-of-law concerns that the Federal Circuit has recently expressed, especially as to separation of powers under the Chenery doctrine?

The Federal Circuit’s panel decision in Achates Reference Publ’g, Inc. v. Apple Inc. held that PTAB decisions to institute IPR are unreviewable even where the § 315(b) time bar may have been violated.  The en banc question here is whether to overrule Achates.

The USPTO’s interest in the case was clear from the large group of agency employees in attendance, including members of the PTAB and the Solicitor’s Office as well as Director Michelle Lee herself.  The USPTO also formally intervened in the case and designated Mark Freeman from the DOJ Civil Division’s Appellate Staff to argue.

The PTAB-District Court Balance of Power

Historically, of course, the power to invalidate patents in the first instance resided in the district courts.  An opening exchange with Chief Judge Prost laid the groundwork that although the AIA sought efficient patent validity review outside the courts, it also constrained the administrative alternatives in a variety of ways.  The USPTO would later elaborate this point as well, that challenges that would have gone to court would now go to the agency, but this reallocation of power would not be total.  District-court defendants and their privies would have to act within a year, or never at all.  Judicial review can police this balance of power—but not without disruption of its own, and so the dispute over appealability.

The Main Cuozzo Exception: Relatedness to Institution

From early in Wi-Fi’s argument, several members of the court starting with Judge Dyk explored whether the § 315(b) time bar is distinguishable from the § 312(a)(3) particularity requirement that was found nonappealable in Cuozzo.  A well-known passage in Cuozzo orients the holding toward institutions that are made “under this section [§ 314]” or that are “closely tied” to institution-related statutes.  Meanwhile, several types of “shenanigans” may still merit review, such as constitutional defects, interpretations of less closely related provisions, or decisions whose scope and impact reach well beyond institution.  As a result, arguments to limit Cuozzo and afford review have often focused on these exceptions, especially on framing the statute as “less closely related” to institution “under this section [§ 314].”  Judges Chen and Stoll also followed up at several points with Broadcom and the USPTO about the “under this section” limitation.

Reconciling Cuozzo’s Majority and Dissent

Judge Chen also took an interesting further approach to how closely related a statute must be for Cuozzo to apply.  He noted that the dissent in Cuozzo complained specifically that the majority’s approach swept broadly and harmfully.  The Cuozzo dissent argued that the majority’s position would foreclose review even of issues such as the § 315(b) time bar because timeliness is “no less . . . closely tied” to institution.  The majority disclaimed various other horribles but was silent about the alleged relatedness of the one-year bar to institution.  Was this colloquy from Cuozzo a signal of consensus that the time bar is, indeed, the type of PTAB decision that is immune from review?

One sensible answer is that the Cuozzo dissent’s argument about the one-year bar should be seen as hortatory, intended first to build a majority and later, when the case was lost, to cabin the impact of the majority’s reasoning.  In other words, the dissent did not merely read the majority’s logic broadly but read it broadly as a reason to reject that logic.  To accept part of the Cuozzo dissent’s premise now while continuing to reject the dissent’s urged conclusion may itself be problematic cherry-picking, especially if any supposed agreement by the Cuozzo majority were to be inferred from its silence on the matter.  Indeed, Wi-Fi answered Judge Chen along just these lines by discussing what the Cuozzo dissent was trying to accomplish—limiting nonappealability to a prohibition of interlocutory review—not merely what the dissent said.

The Other Cuozzo Exception: Scope and Impact

Apart from “less closely related” statutes, the argument also started at times to explore Cuozzo’s “scope and impact” exception, particularly where the PTAB might act outside its statutory authority and thereby lose immunity from review.  It was the USPTO to whom Judge Chen suggested that the one-year bar of § 315(b) may well have been a Congressional allocation of power between the agency and the district courts to resolve patent validity disputes.  This view of the time bar would make it a statutory limit on the agency’s authority, a violation of which would render the PTAB susceptible to appellate review despite Cuozzo.

The scope and impact of § 315(b) are also stark when seen through the lens of court-agency substitution.  Arti Rai, Jay Kesan, and I have reported in recent research that a substantial share of petitioners (about 30%) seek PTAB review before being sued in district court on the patent in question.  This and related findings indicate that, in addition to ordinary court-agency competition over who resolves the validity of a patent in an ongoing infringement lawsuit, the PTAB also competes with the courts over who should resolve preemptive strikes against patents.  As the law professors’ amicus brief argued in this case, the one-year bar of § 315(b) sets an important boundary line in this competition and—as Judge Chen suggests—preserves an inter-branch allocation of power.  Thus, its scope and impact reach well outside the walls of the agency and into the federal courts, empirically as well as analytically.

The USPTO Director-Federal Circuit Balance of Power

One of the most significant aspects of this case, and why it was an apt choice for en banc review, is that the Federal Circuit is shaping its own ability to shape future cases.  Much like the balance of power between the PTAB and the district courts to evaluate patent validity in the first instance, also at stake is the power to correct errors and bring uniformity to the decision-making of the PTAB.  This latter power, too, was reallocated away from the Federal Circuit by the AIA’s nonappealability provisions.

The Source(s) of Uniformity

One might suppose, as Wi-Fi began to argue, that the absence of judicial oversight would leave individual PTAB panels to generate consensus in a common law fashion, and that consensus is unlikely to emerge because of the PTAB’s sometime disregard for its own prior analogous precedents and for prior court judgments regarding the validity of the same patent.  (Even a Federal Circuit panel endorsed the latter as recently as a month ago in Novartis AG v. Noven Pharms. Inc.)

Judge Wallach, however, strongly rejected Wi-Fi’s view that nonreviewability might leave uniformity and oversight to individual panels of the PTAB.  Instead, he noted, the Director of the USPTO can impose uniformity by assigning additional judges to particular panels to resolve contentious issues in a certain way.  To this, one might add that the Director can also generate uniformity directly through the ordinary chain of administrative command as an ex officio member of the PTAB and through the process for designating PTAB opinions as precedential, representative, or informative.  Judge Wallach raised the issue with Broadcom as well, asking whether “stacking the panel” to reach certain outcomes would qualify as judicially reviewable shenanigans.

This alternate view of uniformity is significant for its implicit but direct potential not only for displacing the Federal Circuit but also for making patent validity decisions more responsive to political constituencies.

The APA Presumption of Reviewability

The counterargument to this potential injection of politics into patent adjudication came in the closing minutes of the hearing.  For all the discussion about Cuozzo and its enumerated exceptions, Wi-Fi argued that the Cuozzo holding did not make nonreviewability the new baseline in administrative reviews of patent validity.  Rather, Cuozzo was one instance where the Administrative Procedure Act’s ever-present presumption favoring judicial review was rebutted clearly and convincingly enough as to institution decisions.  To construe the nonappealability statute as to timeliness under § 315(b) or any other issue would require a fresh analysis of statutory text, purpose, legislative history, etc.

Judge Moore engaged this argument, suggesting that Cuozzo need not be limited entirely to its facts with nonappealability decided from scratch each time.  She suggested, for example, that Cuozzo could be seen as precluding a range of appeals from institution and institution-related decisions, but that the opinion’s limitations apply here and thus dispel the indications that were clear and convincing in the Cuozzo case itself.

Notably, Judge Moore was also one of several, including Judges Newman and Reyna, to ask whether PTAB actions that are plainly invalid or ultra vires would enjoy immunity from review.  This concern, too, is of a piece with the balance of power between the Federal Circuit as judicial overseer and the Director of the USPTO as political overseer because it highlights a necessary choice between correcting agency errors and tolerating them in the name of Congressionally intended agency autonomy.

Making the PTAB Better Explain Itself

Finally, the en banc court referred at various points to the need for greater transparency in the PTAB’s own decision-making.  This is a concern that Federal Circuit panel decisions increasingly voice in PTAB appeals.  An early colloquy with Chief Judge Prost explored whether the PTAB might be shielded from review of certain issues in final written decisions simply by omitting discussion of those issues from its final written decisions, in light of the APA’s general requirement that an agency articulate its “findings and conclusions, and the reasons or basis therefor.”  Similarly, in the discussion over political panel-selection by the USPTO Director, Judge Wallach suggested that rule-of-law values such as predictability, uniformity, and transparency of judgments and the neutrality of decision-making may be threatened.

These concerns are also consistent with recent decisions finding fault with the PTAB’s failure to explain its reasoning with enough detail even to enable meaningful review.  For example, citing the Chenery doctrine, the In re NuVasive, Inc. panel decision last December reversed a finding of obviousness not because it was necessarily wrong, but because the reasoning that the PTAB had articulated could not support the decision, while the separation of powers forbade the Federal Circuit to supply its own rationale.  Similarly, in the Shaw Indus. Group., Inc. v. Automated Creel Sys., Inc. panel decision early last year, Judge Reyna wrote separately to chastise the USPTO for its opaque practice of making partial institutions while denying certain grounds or prior art as “redundant.”

Conclusion

The opportunity to clarify these allocations and reallocations of power is likely to be a welcome aspect of en banc consideration.  The power in question may be to adjudicate (as between the PTAB and the district courts), to oversee (as between the USPTO Director and the Federal Circuit), or simply to force a clearer account of the PTAB’s own reasoning.  All of these powers have seen significant revision under the AIA, reflecting the more general ascendancy of administrative adjudication in patent law.  In seeking the right balance for each of these powers, the Federal Circuit appears to be taking seriously the warning that “no legislation pursues its purposes at all costs” and that if the goals of the AIA are important, so also are the particular means that Congress enacted to achieve those goals.

Case Information

  • Oral Argument Recording
  • En Banc Panel: Prost, Newman, Lourie, Bryson, Dyk, Moore, O’Malley, Reyna, Wallach, Taranto, Chen, Hughes, Stoll
  • Arguing for Appellant Wi-Fi One, LLC: Douglas A. Cawley (McKool Smith)
  • Arguing for Appellee Broadcom Corporation: Dominic E. Massa (WilmerHale)
  • Arguing for Intervenor Michelle K. Lee, Director of the USPTO: Mark R. Freeman (DOJ Civil Division, Appellate Staff)

About Dennis Crouch

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

103 thoughts on “Court-Agency Allocations of Power and the Limits of Cuozzo

  1. The USPTO’s interest in the case was clear from the large group of agency employees in attendance, including members of the PTAB and the Solicitor’s Office as well as Director Michelle Lee herself. The USPTO also formally intervened in the case and designated Mark Freeman from the DOJ Civil Division’s Appellate Staff to argue.

    Why is the PTO hellbent on grabbing up every last bit of power over issued patents? Power that can only be used to destroy its own work! The entire scheme is a shenanigan. This is not what was intended by the drafters of the AIA, who expected the PTO would remember their charter to promote progress in useful arts and science. That was the last thing in the minds of the PTO crowd gathered for the hearing.

    1. Public choice theory dictates and an Agency will always seek to expand it’s jurisdiction. This is doubly true, here, where the PTO past expansive power grabs in statutory interpretation has not resulted in a “bridge to far” let’s invalidate the statute result from the Courts. Mark my words patriots, this bend over backwards modus operandi of CAFC to find a way to reconcile this Constitutional anomoly that is the AIA, will end up creeping into all aspects of administrative law and other agencies. 7th Amendment be damned, we have experts!

  2. It does seem likely the Fed. Cir. en banc might allow more challenges to IPR institutions consistent with the Cuozzo exceptions or a clear statutory deadline violation. But as a practical matter there are few IPR petitions that raise institution issues like that – issues that could get the IPR stopped.

  3. I was very eager to listen to the oral argument on this one. I heard three things that I consider potentially very significant:

    (1) Judge Moore (or was it O’Malley? I have a hard time telling their voices apart) said at one point that the patentee’s attorney was “swinging for the fences” when he had a man on third and no outs. That appear to imply that she not only intends to rule for the patentee, but also that she thinks that a majority of the court also intends to do so, just not on so broad a ground as the patentee seemed to be arguing.

    (2) Judge Dyk groused at one point that if the patentee wins, what is left of Cuozzo‘s bar to appellate review. This is a strange question to ask (“what is left”?!?), because the obvious answer is that even if Achates goes down, Cuozzo‘s bar to appellate review still remains for every patentee (like Cuozzo itself) who goes all the way to final decision, and then uses the appeal as an opportunity to attack the institution decision. In other words, it really takes nothing away from Cuozzo if the en banc court reverses Achates. Dyk, however, likes Achates, and therefore he is trying to save it by making out as if it were joined to the hip with Cuozzo. I take his strange question to imply that he feels that the majority of the court is not with him, and he is trying to use Cuozzo as a prod to herd them over into his camp.

    In other words, I get the sense from listening that both the pro- and anti-Achates factions on the court sense that Achates is going down. I would be delighted if that is so.

    (3) The PTO made a very good point, that appeals on §315 grounds only make sense if the claims were unpatentable on the merits. That is to say, if I lose my claims in an IPR that was wrongly instituted by a party who should have been barred by the 1-year time bar, but the invalidity arguments were wrong on the merits, then I can always simply point out the infirmity of the invalidation on the merits. The only occasion where the §315 argument is outcome determinative is if the claims really deserve to be tanked, but the party who brought the challenge was improper under §315. The PTO considers this an argument as to why §315 challenges should not be available (as a matter of public policy) in the CAFC.

    Judge Bryson (I think) suggested in answer to this point: the Director has the statutory authority to order ex parte reexamination sua sponte. If the PTO feels that a set of claims were rightfully scratched in IPR, but wrongfully reinstated by the CAFC on §315 grounds, the Director can always pull those same claims back into re-exam on the Director’s own authority, and make the same rejections that the PTAB had affirmed.

    To my mind, this really is a brilliant point. Everyone could be happy with that outcome. For the public, it means that bad claims are not left on the books. For the patentee, it means that you end up in a forum in which you may amend as of right, rather than by the (stingily granted) leave of the PTAB. Here’s hoping that Judge Bryson’s suggestion becomes the new normal.

    1. Does your (3) take into account the dichotomy that with the different standards, a “decision on the merits” between the PTAB and the courts does NOT mean the same thing?

      I think that perhaps your use of the word “merit” indicates a single value of “merit” as opposed to the actual fact that “merit” may in fact mean two very different things.

      (And yes, this is drawing to the legal distinction, as opposed to any “empirical” argument – 😉 )

    2. Greg, all this goes to show is that 315(b) decisions should be interlocutorily appealable by right if the decision is to institute because the whole point of 315(b) is to not have the IPR at all in order to avoid patent owner harassment. They should be appealable under the collateral order doctrine.

      1. Ned, the idea of the Fed. Cir. or Congress ever approving case-delaying and court-overwhelming interlocutory appeals of any or all IPR declaration decisions [requiring the appellate court to review the claims against the cited prior art like an APJ] is a new level of unreal wistful thinking. Stick to more active trying to somehow get rid of the whole system if you want to, not just making it worse.

        1. BTW, for the small percentage of IPRs in which more than one IPR has been petitioned for against the same patent, the PTAB already has authority to refuse or combine them, and has done so.

        2. Paul, 315(b) issues relate to issues of real party and privity, entirely collateral to the merits, and never reviewed for error at this juncture by any court of law thereby permitting free reign by an Article II tribunal.

          The PTO assumes that if Achates is reversed that 315(b) court review will take place after the IPR is over. But that makes no sense, as the point of review is to decide whether the IPR should have moved forward at all.

        3. case-delaying and court-overwhelming

          How neat – look at those Ends justify the Means from IPR apologist.

    3. Greg, your observation that this en banc review seems likely to be decided for the patent owner but “just not on so broad a ground as the patentee seemed to be arguing” is even more applicable as to the likelihood of this decision being based on the broad legal policy issue questions listed with bullets in Prof. Vishnubhakat’s blog above.

  4. [A]ll of the discussion appears to presume that patents are personal property and that the courts will continue to have their historic place into the future of patent adjudications.

    This may not be a valid assumption, and may be yet another wrinkle that could flow from a reclassification of patents as property to patents as public rights.

    Your comment appears premised on the idea that patents-as-public-rights is a sort of unexploded bomb sitting on the patent law landscape, and one of these days it is going to go off and sweep away dozens of familiar features of the law. This is not a realistic premise.

    Patents have been classified as public rights for more than two decades (at least) by now. Patlex Corp. v. Mossinghoff, 758 F. 2d 594, 604 (Fed. Cir. 1985). In other words, decades worth of jurisprudence has grown up around the idea that patents are simultaneously both public rights and private property. This might be a surprising new discovery to you personally, but the Judges on the CAFC are all aware of this. Judge Newman wrote the Patlex decision. Nothing about the existence of patents as public rights is liable to trigger any sort of “radical” change about the system. The system (with the exception of a few attorney hold-outs) has fully assimilated the idea of patents as both public rights and private property, and keeps on chugging undaunted.

    1. Whoops, sorry. I had meant this to append from Anon’s comment #1 below. My browser crashed while I was typing. Evidently, when I reopened it, my text was recovered, but not my status as “reply”ing to Anon’s comment #1.

      1. No prob, Greg, with the “up top” post.

        However, your feelings to whether or not my view is “a realistic premise” is sadly mistaken.

        It is not a matter that this is an explosive device waiting to go off.

        But it is a matter that so many patent doctrines are in fact tied to the notion – either directly or indirectly, explicitly or implicitly, of patents as property.

        Move patents to a state that they are not property, and you must move completely.

        There is no “partially pregnant” when it comes to the right being property or not being property. You just cannot be “a little bit pregnant.”

        Once people realize that – and then realize how the entire “public rights” argument must flow from whether or not patents are property – and all of the due process concerns that flow from that fact; then my points really must be taken into consideration.

        The larger thrust of course is that these considerations have not been put into play with the continued writings / such as the immediate writing of this thread.

        Your attempt here to portray some type of “acceptable” “little bit pregnant” -particularly with a nod to Patlex – only shows that you have not grasped the fact that such a view will not stand and that decisions that attempt to “split the baby” do not in fact split the baby.

        You will not be able to continue to be “a little bit pregnant.” The sooner that you realize that, the sooner that all of these doctrines resting on the notion of patents as property can start to be updated (or those decisions resting on patents as NOT personal property can be seen for the errors that they be).

        Whether or not the end choice is “wrong” really isn’t the point – the point is that it is wrong to have both end choices at the same time.

        1. There is no “partially pregnant” when it comes to the right being property or not being property.

          This is the original source of your problem. The exact point of departure at which your argument jumps off the rails is the analogy to “partially pregnant.”

          It is not a relevant analogy, and that is why you cannot see your error. You are too invested in the analogy. I would urge you to stop using the analogy, and explain the perceived inconsistency between patents as public rights and patents as private property. Once you drop that analogy, you will see that your argument is not supportable.

          1. …or perhaps you cannot see that the analogy is in fact correct, and that the squinting to accept “little bit pregnant” will no longer work as the baby comes to term…

          2. Do you have any other item of personal property that has been deemed to be a public right?

            Any?

        2. [S]o many patent doctrines are in fact tied to the notion… of patents as property.

          Correct. And those doctrines have continued unabated and unimpeded for the last several decades, even though throughout that time period the PTO has been able to invalidate granted claims in administrative proceedings with only a prepoderance-of-the-evidence presumption of validity and with a BRI claim construction standard.

          In other words, because patents claims are public rights, the PTO may adjudicate their validity (even as Art. III courts have concurrent powers to adjudicate validity), and this feature of the patent law landscape has worked without major disruption for decades. That is because all that the PTO may adjudicate is the validity, which is the public rights aspect of the patent.

          What the PTO may not adjudicate is the status of patents as property. If you have a question of who owns a patent, you need to take that to an Art. III court, because the PTO has no authority to adjudicate that. If you want an injunction to stop someone from infringing your patent, you must take that to an Art. III court, because the PTO cannot grant you an injunction. Ownership and infringement are private rights, and as such can only be adjudicated by Art. III courts.

          In other words, patents are both private and public rights. Private as to ownership and infringement. Public as to validity of claims. It is not a case of being “a little bit pregnant.” It is, rather, a case of being private in some aspects and public in others. No contradiction in either theory or practice.

        3. Our illustrious Congress saw fit to grant patents the attributes of personal property. Would it not be reasonable to then infer that patents are not property, per se, since such statutory grant of attributes was deemed necessary?

          ;^)

          35 U.S.C. 261 Ownership; assignment.
          Subject to the provisions of this title, patents shall have the attributes of personal property.

    2. Wrong.

      1. Looks like you just got “decimated”, Greg.

        LOL

          1. Cinco de Pedo is for you and your fellow Pud Boys to enjoy, 6.

            The rest of us have better things to do. Of course, the rest of us aren’t scrambling around looking for Clearasil coupons like you.

              1. …or is this just him triggering you?

                😉

      2. Gould directs our attention to Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), wherein the Supreme Court refused to uphold the legislative assignment to bankruptcy courts of common law disputes historically adjudicated by Article III courts. Gould observes that the outcome in Northern Pipeline shows the Court’s unwillingness to allow rights that traditionally had been adjudicated in Article III courts to be shifted to Article I courts. But other factors were relevant, particularly that the matters proposed to be committed to Article I courts involved “private rights”; the Court therefore found inapplicable authority upholding “the constitutionality of legislative courts and administrative agencies created by Congress to adjudicate cases involving `public rights'”. The Court observed that “a matter of public rights must at a minimum arise `between the government and others'”. Id. at 69-70, 102 S.Ct. at 2870-71, quoting Crowell v. Benson, 285 U.S. 22, 51, 52 S.Ct. 285, 292, 76 L.Ed. 598 (1932).

        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.

        For those following along at home:

        (1) Public rights arise between the government and others;
        (2) Patents are rights that can only be conferred by the government; but
        (3) Patent validity is primarily a public concern.

        In other words, all conditions are satisfied for patent validity = public rights. On this exact basis the CAFC affirmed the constitutional soundness of the original re-exam statute.

        Back in 1985.

        Over two decades ago.

        Using the very words “public rights” in the part of the decision explaining why there is no due process problem with the ex parte re-exam system.

        If the idea of patents as public rights bids fair to cause a “radical” change to the system, one has to wonder why it has not done so already? Or why we might expect it to do so now, merely because the issue just came up again in a recent (but far from earth-shaking) CAFC decision?

        This is not unexploded ordinance. It is, at most, an empty bomb casing.

        1. Greg, there are also a line of cases that hold that the stuff of the common law courts of England are not public rights, and particularly, that when a matter has a right to a trial by jury it must be tried in an Article III court and to a jury at the behest of the right holder. To do otherwise would be to, in the words of the Supreme Court, “conjure away” the right to a trial by jury guaranteed by the Constitution.

          Wouldn’t you think that the courts would have some interest in determining whether patent validity was tried in the courts of England before 1789 (it was) and to a jury before 1792 (it was) before deciding that patent holders had no right to trial by jury just because patents rights are created by statute (as are many other rights)?

        2. If the idea of patents as public rights bids fair to cause a “radical” change to the system, one has to wonder why it has not done so already? Or why we might expect it to do so now…
          ?

          Because of the AIA and the current Director’s aggression toward issued patents.

          1. Well then, no problem. Michelle Lee will not be director for the rest of history. I am not convinced that Director Lee is really all that bad, but if you think that she is the source of serious problems, we can all take comfort in the thought that she will leave the job. Probably fairly soon.

    3. Since there is no longer a trial de novo available for board decisions, one could argue that Patlex, no longer applies (since that was decided under the de novo review schema, and was sub silento the Constitutional safety valve that allowed for the ex parte re examination statutory scheme). I would bet that Newman regrets Patlex now, because as originally passed, having the right to trial de novo of an adverse board decision in an ex parte reexamine, in essence, put the PTO in no greater position than any other challenger to an issued patent, albeit to the bench and not a jury, due to some historically complex sovereign immunity doctrines, and therefore was Constitutional IMHO. But now, with no right to de novo review, abolished by the AIA, you have the star chamber scenario in which all patents now exist.

      1. Bingo – and why Greg’s reliance on such is simply infirm from a legal standpoint.

      2. Needless to say, Iwasthere, I agree with this and so does apparently the Supreme Court who ruled in Executive Benefits that if one actually receives a trial de novo in a court of law, it cures the constitutional defect with respect to so-called Stern claims where there was statutory jurisdiction to adjudicate a claim but not constitutional jurisdiction.

        1. Of recent vintage is Nextwave v. FCC – nutshell – spectrum auction, license granted. Nextwave failed to make good on all payments and filed for bankruptcy. FCC, says, let’s have a do over – and auction the spectrum again – several conflicting 4th circuit and DC circuit cases. SCOTUS – Scali – once the property right had issued – there is no do over – FCC is creditor. Administrative ‘mistake’ is no cause for ‘do over’ (void ab inito anyone?) because it is an judicable property right, that invoked the courts. Which, of course, gets me back to Hayburn’s case. Congress can creates lots of property rights (like a right to a soldier pension) – but it can’t create a hybrid right – wherein the Art III department can adjudicate the pension right – but independently The Sec of State can remove a petitioner from the pension rolls, if he finds there was a mistake. This violates the structural protection of an independent judicial department (and non-reviewabily of the political branches).

          1. Bravo iwt – a real gem.

            1. …and reinforces what I have previously noted as to Congress and the AIA: once a property right has been established, even Congress (being the single branch afforded by the Constitution to write patent law), is not free to write any old law that it wants, and other protections afforded property under the Constitution will protect the prior-created rights.

              I will also remind people that there are no elephants to be found hidden in the mouse holes of the AIA, as Congress not once indicated that the actual designation of patents as property was being changed.

          2. Anon asked me above in 5.1.1.1.2 for an example of something that is both private property and a public right. I would cite broadcast licenses as such an example.

            Your citation to this case (that I had never read before), therefore, gave me pause. If broadcast licenses really are not subject to adjudication by Art. I tribunals by dint of their private property status, then my arguments for the constitutional soundness of IPR are untenable.

            I have to say, however, that now that I have gone and read Nextwave, I really cannot concur with your “nutshell” summary. The case was not decided on anything like a property-rights basis. It was decided based on the interpretation of § 525 of the Bankruptcy Code:

            [A] governmental unit may not… revoke… a license… to… a person that is… a debtor under this title… solely because such… debtor… has not paid a debt that is dischargeable in the case under this title…

            Well, the FCC was trying to take back and re-auction the spectrum because the purchase price was not paid, and the Bankruptcy code says that a government license may not be revoked merely because a purchase price is not paid. Justice Scalia’s logic for holding for Nextwave seems unassailable to my mind, but it really tells us nothing about the constitutional implications of what the FCC was trying to do. No constitutional provision is ever invoked in Nextwave.

            1. Can you flesh out a little more your view that a broadcast license is both personal property and a public right?

              1. The broadcast license permits the holder to broadcast on a particular spectrum. Considered in that light, it is a prohibition on the rights of the public (because WKXU can broadcast at 90.5 MHz, I cannot transmit signals on that bandwidth). On the other hand, it is also an assignable right, and considered in that sense it is private property. It has both public rights and private property aspects simultaneously, and the law treats it as such. The public rights aspects of the broadcast license are subject to administrative regulation, while the private property aspects are adjudicated by Art. III courts.

              2. Incidentally, I tried to answer you above, but that reply is one of the many of mine on this thread that still will not show.

                1. Please pardon the (potential) filter doubling…

                  Thanks Greg – I figured that an inordinate number of attempts at dialogue are being stifled with the latest “editorial controls” system in place (although with you, it is often difficult to tell when a point is being conceded in silence).

                  That being said, ALL personal property can follow the “logic” that you are attempting in so far as if something is “yours,” then the law prevents the public from merely taking that which is yours. Your “logic” needs to be fleshed out a little more for me to even begin according your view a chance of starting to be compelling.

                2. ALL personal property can follow the “logic” that you are attempting in so far as if something is “yours,” then the law prevents the public from merely taking that which is yours.

                  No. This response clearly bespeaks a misunderstanding. The fundamental distinction here that one must understand is “rivalrous” and “non-rivalrous” goods.

                  The ground on which your house is built is a rivalrous good. The mere fact that your house is built on that ground means that some other building cannot be built on that ground.

                  The idea of an internal combustion engine is non-rivalrous. I can use that idea, and you can use that idea at the same moment, and no inherent contradiction ensues. Similarly, the electromagnetic spectrum is non-rivalrous. I can broadcast my signals at 90.5 MHz and you can broadcast your signals at the same time at 90.5 MHz.

                  It is precisely because ideas and electromagnetic spectrum are both non-rivalrous in their essential natures that the government has to step in and enforce a legally imposed exclusivity to make them economically viable in certain circumstances. These legally imposed exclusivities act as a burden on the rights of the public—that is to say, these legally imposed schemes create a “public rights” issue.

                  That is why there can be a public rights issue with patent validity (or electromagnetic spectrum allocation) but not with land grants. It stems from the initial and essential distinction between the rivalrous or non-rivalrous nature of the subject matter being granted out in a “letters patent.”

                3. No Greg – it is but (another) bald assertion to state that the difference between a “rivalrous” and “non-rivalrous” is somehow critical or essential to something being either personal property or a public right.

                  I do not think that you understand what “public right” actually means.

                4. Further points…

                  Spectrum is just as rivalrous as land (maybe you never had walkie-talkies growing up),

                  And ideas are not patents / quite in fact, there are ZERO patents that stop you or anyone from having an idea, and such is not and never was the intent of patents. The very fact that a majority of patents are “follow-on” patents should have clued you in that your argument was drifting into the weeds.

      3. Since there is no longer a trial de novo available for board decisions, one could argue that Patlex…

        Sure, this is a perfectly sensible ground on which to distinguish Patlex.

        Here, however, is why I do not agree with the argument you are making. The IPR statutes allow for review of the Art. I tribunal by an Art. III court, viz. the CAFC. I am told that this, however, is not good enough. The Art. III court review must be free to make new fact findings or else the delegation of adjudication to an Art. I tribunal violates separation of powers.

        However, the SCotUS just recently told us in B&B Hardware that it is fine for an Art. III court to be bound by the fact-findings of an administrative tribunal according to the doctrine of collateral estoppel. Justice Thomas’ dissent noted that this (in his opinion) violated the separation of powers, but you will note that he was writing in dissent.

        In other words, it seems to me that those challenging the constitutionality of IPRs cannot win without calling B&B Hardware into question, and this will be hard to do, given that almost everyone who was on the court in B&B is still there.

        However, if the Court is content to let that contradiction stand (it is not ok for the PTAB to make fact findings without Art. III supervision, but it is fine for the TTAB to make fact findings without Art. III supervision), then you are certainly correct, that the SCotUS could rule IPRs to be problematic, without necessarily touching Patlex, on the grounds that ex parte re-exams are appealable to the ED Va (and then to the CAFC), while IPRs go only to the CAFC.

        1. I don’t think that case you want to lean on (or the mere notion of fact finding) bridges the gap.

          You want to remain unconvinced, as is your right, but that does not make your remaining unconvinced itself “right.”

          It merely means that you don’t want to see what is there before you (item and sufficiency).

          1. I don’t think that case you want to lean on (or the mere notion of fact finding) bridges the gap.

            You are certainly correct, of course, that one need not overturn B&B in order to tank IPRs. It is possible to distinguish the facts of the procedural posture in B&B from the facts of the structure of IPRs. My point is that the outlook expressed in B&B is suggestive of a given outcome in a facial challenge to IPRs, but certainly not dispositive.

            You want to remain unconvinced, as is your right…

            This is fair enough, as far as it goes. I concede that I am as susceptible to motivated reasoning as you are.

            1. Lol – we be just two peas in the same pod, eh?

              :-)

  5. An essential requirement for due process, in fact the most essential requirement for due process, is an unbiased court.

    It is good to see that the Federal Circuit has finally hit upon the most glaring defect of the IPR/PTAB structure. A political body, acting politically, cannot ever guarantee an unbiased, apolitical court.

    This Director’s constant effort to listen to and serve stakeholders is a case in point. Who are these stakeholders but the big companies and big firms, who have been behind IPRs from the beginning as a tool to help invalidate patents asserted against them. Not only did they get Congress to legislate a lower standard of proof, they supported the PTAB’s use of BRI and other unfair procedures adopted by the PTO to make it more likely than not that any patent brought before the PTAB could easily be dispatched if the petitioner was one of the stakeholders and the patent owner was not.

    1. Good points Ned. I would think/hope the Court would be more than a little disturbed to see the reigning PTO Director watching over this attempt to limit her dictatorial powers. It makes no sense for her to have been there.

    2. Due process for a public right is very different (as applied) than due process for personal property.

      1. anon, I was going to say this as well. With public rights, there is no due process requirement at all, except to the extent Congress imposes one by law.

        Thus, we have in the concept that patents for inventions are public rights the idea that the underlying invention itself is a public right that can be taken and distributed to the public free of charge simply because the inventor asked the government to “secure” his exclusive rights in the first place. That is the consequence of publication of the invention with no corresponding right of access to a court of law and due process before one’s exclusive rights are taken and revoked.

        1. IMHO, the debate falls into two camps. The camp that believes Congress can conjure way and just create any right – and to be sure – maybe Congress could create a purely administrative only patent right – that, of course, might not be true under the 7th Amendment. ( Historical footnote, even the New Dealers didn’t attempt that – but they sure the heck made everything else the subject of expert administrators!) But, I don’t believe Congress can create the hybrid right we now have with patents- that is a dual system of adjudication by both the Art III department and the Executive department – That old land patent case (‘Comstock load?) is exactly on point – it’s the structural protection of the Constitution that protects us from one President issuing an adjudicable right (a right that can be vindicated by the Art III department), election, and then another President – reviewing that adjudicable right for ‘mistake’ in issue, and making it void or re-issuing it to another. That’s raw politics and power. Which, by the way, we were assured during ratification – could never happen under the checks and balances afforded by our Constitution.

          1. Well, I was there, I believe Coke decided in Darcy v. Allen (the Case of Monopolies) circa 1602 that the common law courts had exclusive authority over the validity of patents. The Statute of Monopolies only enacted “existing” law on this point.

            The US cases in the 1800’s simply followed these well understood English traditions. The 7th Amendment guarantees, however, that factual disputes regarding validity must be tried to a jury in a common law court.

            The public rights vs. 7th Amendment right issue is one of the more interesting constitutional questions ever presented, which is why the Supreme Court needs to address it.

            1. As I have mentioned Ned, your lack of full commitment to the property aspect is why I think the Court passed on selecting you and your case as the vehicle for that decision.

          2. That old land patent case (‘Comstock load?) is exactly on point…

            Hm, here I disagree. Your citation to Nextwave above gives me real pause, but land patent cases are eminently distinguishable. Once a land patent grants (even if wrongly), the issues at stake are only issues between private citizens. Mr. K thinks that the land should be his, while Ms. P thinks that it should be hers. This is exactly the sort of situation for which the Article III courts exist, and we would have to worry greatly about separation of powers if one moved this sort of a dispute into an administrative tribunal.

            Patent validity, however, implicates far more than just two private citizens. During its term of enforceability, a patent is like a private law, binding on all people within the U.S. borders. That is the quintessential feature of a public right (i.e., that it affects the public, even if its effects can be crystalized most particularly in a dispute between two individuals).

            There are many ways in which land patents and utility patents are similar, but this is not one of them.

            1. Removing a parcel of land similarly affects everyone as not everyone can now purchase it.

              The problem with these creative arguments – and they are everywhere – is that the Supreme Court already tossed them.

              The CAFC opened Pandora’s box with its shameful politicking.

              1. The problem with these creative arguments – and they are everywhere – is that the Supreme Court already tossed them.

                Maybe they have. You care to cite your best case(s)?

            2. You are assuming the very conclusion being sought to be proven with the bald statement of “but land patent cases are eminently distinguishable.

              Whatever “concerns” are present in IP patents finds a ready correlary to land patents. Obviously the two are different things, but those differences do not support the legal differences that you are presuming.

              1. You are assuming the very conclusion being sought to be proven with the bald statement of “but land patent cases are eminently distinguishable.”

                Did you read my post? I explained the distinction. My distinction might be wrong, but at a minimum the fact that I offered such a distinction rather precludes the possibility that I “assumed” my conclusion.

                Whatever “concerns” are present in IP patents finds a ready correlary to land patents.

                Sure, some things about land are analogous to IP. Then again, some things about land are not analogous to IP. The obvious distinction is that land is quintessentially rivalrous (if I build my house on a given 16’x16′ square, you cannot build your house on the same 16’x16′ square). That aspect, right there, precludes a “public rights” problem. The dispute over who gets to build the house on a given 16’x’16 square is always a private dispute (even if it potentially could engage many individual parties).

                Not so with IP. The fact that you came up with a brilliant idea does not necessarily preclude every other human on earth from acting on that idea. Patent law exists to stop the other 299,999,999 U.S. residents from acting on the patent-holder’s idea, and in that regard the dispute is essentially public, in precisely the same way that the land dispute is not public.

                It is precisely that distinction that makes land patent cases distinguishable for this one purpose (validity disputes), even if they are relevant for all sorts of other purposes.

                1. Sorry but no – the public could very well try to live on your land, or to build on your land, and your own building there does not change the legal argument.

                  The difference you want to depend on is not the distinction at law that you think it to be.

                2. I see above that you are depending on the notion of “rivalrous” as somehow essential to the legal point that you are trying to make.

                  You need to try harder to establish that “essentialness.”

                3. My understanding of the old land patents, were you filed a claim to a mineral discovery (like a gold vein) and the land patent was granted as to the mineral claim – indeed, the metes and bounds of that claim were somewhat undetermined as to it’s definitive scope because one could not know how far the gold vein would run. Here, another land patent granted second in time to ‘another’ gold vein (but subsequently was determined by trial court to be part of the original gold vein) would award the gold claim to the first in time land patent and cancel the second land patent. Because the commercial incentive was to reward discovery of ‘new’ minerals, not me too claims. Obviously, the stakes were high for the Comstock load patent – a massive gold strike – and money flowed into politics. Having lost the land patent ‘interference’ the challengers turned to politics – and attempted to invalid the land patent – for administrative mistake. SCOTUS, took jurisdiction. Indeed, as I recall the land patent cases often looked to ‘invention’ patent law as an analogous body of law to be applied over these contested land patent claims. SCOTUS answered that we have structural protection and therefore no
                  ‘do overs’ for purported mistakes of the prior Executive. So your ‘rivalrous’ theory (which makes it sound like there was a survey conducted) does not fit the facts of what a land patent is or was.

                  So here we have a scenario that is directly analogous to our current patent system – basically the IPR is a collateral (political) attack on the underlying claims, claims that invoke the Art III courts for vindication.

                  To be sure, there are some AIA bells and whistles, and your point above, Greg about whether the CAFC review of the IPR court is ‘enough’ due process – is beside the point. It’s not that the Courts are always ‘right,’ and even if we had a magical wand that always made the IPR panel ‘right’ and everyone agreed the Commissioners were as pure as Caesar’s wife, it’s still a collateral attack on a right that can be vindicated by the Art III court.

                4. Iwasthere, I like your discussion of the facts surrounding the Comstock case where politics was rife. The executive, as the legislative branches, can be pressured politically with money. That is why the judiciary is the only authority that can annul an issued patent.

                5. The executive, as the legislative branches, can be pressured politically with money. That is why the judiciary is the only authority that can annul an issued patent.

                  No doubt true, but why limit that observation to issued patents. If a politically motivated executive wrongfully cancels my issued patent, that is bad. On the other hand, if a politically motivated executive wrongfully refuses to grant my valid application claims, that is equally bad. The effect of both wrongful actions is essentially equal.

                  If we are all agreed, however, that the existence of a patent examination scheme administered by an arm of the Dept. of Commerce does not violate separation of powers or the VII amendment, then why are there constitutional infirmities when exactly the same issues present themselves in post grant proceedings?

                  The concern about bought-and-paid-for political actors is a real one, but these concerns are just as present pre-grant as post-grant.

                6. The point Greg is that after a patent issues people who own the patent invest resources in reliance upon it just as people who own property build buildings in reliance upon the deed. If patents can be swept away after issue using the same level of proof required to prove lack of patentability prior to issuance, or could be annulled at request of the powerful or those who would infringe, patents would be thin reads upon which to build an empire. It is this reliance interest that is important; and it is why, in part, patents are considered to be property.

                7. Greg – you cannot be serious in trying to equate an application with a granted property right.

                  That’s a stretch beyond belief

                8. The point Greg is that after a patent issues people who own the patent invest resources in reliance upon it…

                  Is this intended as a distinction from pending applications? I assure you, Ned, people invest on the strength of filed-but-not-yet-granted applications as well. A non-trivial chunk of my practice is due-diligence for venture capitalists. They want to invest in this-or-that newly organized start-up, and they hire me to take a hard look at the IP (always applications, frequently merely provisionals) to figure out what is the broadest claim that is likely to emerge from those filings.

                  How would it be if I had to tell my clients “this is the broadest claim that to which XYZ Corp is entitled, but who knows if they will get it because a politically motivated PTAB can grant or deny these things at the whim of the president”? That would be every bit as disrupting to investment and innovation as it is if a politically motivated PTAB can invalidate granted claims.

                  Pending applications are property, just like granted patents, and investment decisions are made on the basis of filed apps just as much as on the basis of granted claims. The reason why this is not a problem for pending apps is that the decision to grant or not lies in the first instance with an executive agency, but the executive’s decisions are subject to Art. III review. The same, however, is true of IPRs, so IPRs are constitutionally supportable for exactly the same reason.

                9. Greg – you cannot be serious in trying to equate an application with a granted property right.

                  Depends on what you mean by “equate.” I am under no illusion that patents and pending applications are exactly the same in all respects. However, granted patents and pending apps are equivalent as regards the points relevant to Ned’s pointi.e., the points actually in discussion right now.

                  If you think that they are not materially equivalent in the relevant respects, you would do better to name the material differences. Your argument by assertion of personal incredulity does not actually carry any logical force.

                10. However, granted patents and pending apps are equivalent as regards the points relevant to Ned’s point—i.e., the points actually in discussion right now.

                  Absolutely incorrect.

                  You have this very rel problem with not recognizing the importance of the level of the presumption of validity that inures with the grant of a patent and the property aspect that occurs AT GRANT.

                  This is a mistake you make repeatedly in your legal positions, even after you have been informed.

                  That’s either deliberate obfuscation or exceeding ignorance – neither of which is proper at this level of dialogue.

                11. Greg, what you say may be correct, but the level of reliance can and should change after grant. The fact that it does not in today’s environment is the problem.

            3. Please forgive the (potential) filter doubling:

              And the notion that a patent “is a private law” is one of the very worst “linguistic tools” possible.

              It would be far better to simply not attempt that (extremely) limited analogy.

              1. There is a phrase that I am constantly reading that is leaping to mind right now. Something about feelings being duly noted. 😉

                1. LOL – yes, the “very worst” aspect is indeed my feelings.

                  That being said, I am open to changing my feelings if you an show ANY actual worth in the attempted analogy – anything that does not assume the conclusion to be reached.

                  Would my holding of physical land property then ALSO not reach the same analogy as to being a “personal law” against the world?

                  Come Greg, thrill me with a cogent argument in support of the “patents are like mini-laws.” Yours may well be the very first cogent support ever made.

            4. During its term of enforceability, a patent is like a private law, binding on all people within the U.S. borders. That is the quintessential feature of a public right (i.e., that it affects the public, even if its effects can be crystalized most particularly in a dispute between two individuals).

              I believe the Supreme Court already addressed this argument in B&B hardware where the majority opined that patents are not like statutes that affect the entire public. Rather patents only affect those only those who use the patented invention.

              That is why patents have claims.

              1. I have the vague inkling that you are at least partly correct here, Ned, but whatever case it was you had in mind, it was not B&B Hardware. The only discussion of patents in B&B was by the dissent. I wish I could remember what case you mean (I have the sense that it was a Kagan opinion), because this seems to me like the sort of question where details might matter.

    3. Ned, if you and others continue to make false allegation attacks on PTO Administrate Patent Judges – that their decisions are political and dictated by the PTO Director and/or certain companies – and you plan to continue to practice before the PTO, even if it does not lead to a PTO disciplinary action it is not going to help your credibility with the Board in representing any clients you have there.
      Stick to criticizing the IPR statutory system itself, which IS clearly political, since it was enacted by Congress. [With a big bi-partisan vote.]

      1. Paul, I am criticizing the system, particularly because a political appointee is directly involved.

        Disciplinary action for criticizing a completely unfair system? You have to be kidding.

        As to the vote in Congress, people who were not from the so-called stakeholders were not allowed to testify. That was political. The only thing we can do now is continue to complain, to show where the AIA was wrongheaded or unfair, and try to fix it.

        And certainly, pointing out the opportunity for bias and politics to play a hand in decision making is important.

        1. Re; “..because a political appointee is directly involved.” APJs are not political appointees, but Federal Judges are, so why are you not criticizing that system?

          1. Seriously? APJ’s are NOT federal judges for the obvious fact that they don’t have the protections of the Art III department. I suggest you read Marcus Aurelius to get informed on the nature of life.

      2. Wow, that sounds like a threat Paul! Ned is a great American in my book, and not because I always agree with him – because I don’t – but because he is informed and his voice is a great addition to the debate. I add Anon to that list. You really can’t appreciate the star chamber until you have been on the other side. I would say something about good men doing nothing – but we all know that one well.

        1. Thanks iwt, I will grant you that Ned will join the conversation, but even he only joins so far, and then goes silent when the tide turns against his desired Ends.

          1. I doubt that is the explanation.

            Either the SCOTUS doesn’t care that the CAFC has rewritten its law, or it wanted to avoid a potential 4-4 split.

            1. anony, yeah, you are probably correct.

              My musing also requires the Supreme Court to care about getting things right (as opposed to achieving their own Ends, so that diminishes the likelihood, eh?)

    4. Yes it is encouraging that they have also found the defect in engrafting a trial court onto a policy court (the ex officio status of several political appointees – the unitary Executive – whom are able to seat themselves as the panel – and decide merits cases – aka the star chamber.

  6. For folks trying to keep up with the glibertarian spinning:

    Take health care away from millions of people and increase suffering for the least wealthy: FREEDOM!

    Diminish value of patent rights controlled by a tiny percentage of the wealthiest people in the country: GESTAPO STAR CHAMBER TACTICS

    Twas ever thus. The patent maximalists are arguably some of the worst humans in the country, but the are defninitely among the worst attorneys who ever practiced in any field. Good for chuckles but very, very little otherwise. And yet they continue to behave as if the world revolves around them.

    1. MM, you really gotta love a rigged system. The PTAB is to due process as Stalin’s show trials were to judicial independence.

      link to en.m.wikipedia.org

      1. Ned,

        Let me know when you start enjoying Malcolm’s swagger (when the affliction of “6-is-a-genius-because-he-agrees-with-me” is not in play).

        Or you can just add that to the list of “inconvenient” questions that you deign not to answer.

    2. Glibertarian…?

      How does that compare to your own constant spinning?

      Wait, never mind, I really don’t care for whatever your (non)answer would be.

  7. what is really going on

    LOL

  8. An interesting write-up, but one wrench to throw into the mix is that all of the discussion appears to presume that patents are personal property and that the courts will continue to have their historic place into the future of patent adjudications.

    This may not be a valid assumption, and may be yet another wrinkle that could flow from a reclassification of patents as property to patents as public rights.

    1. Yep, more hand-waving to distract the sheep from what is really going on.

      1. Not sure why Malcolm is chuckling, but I am also not sure how the comment of “hand-waving” fits as a reply to my comment.

        My comment is meant more along the lines that the assumption of “patents are personal property” undergirds an extensive amount of legal doctrine, and the described “power struggle” that is the focus of this article falls to that same assumption.

        If indeed the (separate) legal conclusion comes down that patents are merely public rights, the writings by Prof. Vishnubhakat will be forced – necessarily and radically – to change as the underlying assumed nature and the tie of that nature to ANY judicial branch proceedings will become unmoored.

        As I have noted regarding several adjacent legal topics, there will necessarily be A LOT of unwinding (otherwise known as not-so-unforeseen side effects).

        Patents as property – or not – is an absolute game changer.

        It would be nice for all of these academics (and here, the work is laudable) would take a moment to realize that their work hangs from a very slender thread.

        Perhaps Malcolm is chuckling in that he is supposing the comments are of a “the world is going to end” nature, instead of grasping that no one is saying such – saying that there will be an extremely radical change is just not the same as saying that the world is going to end.

        1. If indeed the (separate) legal conclusion comes down that patents are merely public rights, the writings by Prof. Vishnubhakat will be forced – necessarily and radically – to change

          Oh noes! The “writings”! OMG OMG

          Meanwhile, since most normal people understand that patent rights differ from other kinds of properties in all kinds of ways (and always have), all of “anon”s hyperventilating is best viewed as just that.

          Tell everyone about how the next step is that Obama is going to come to your house and take your guns. That was a funny one!

          The patent maximalists never stop providing the chuckles.

        2. there will be an extremely radical change

          More radical than State Street Bank?

          Nope.

          Odd that you didn’t screech like a little baby when that went down. Gee, I wonder why?

          1. You are (or should be) aware that my positions have never depended on State Street, eh?

            My positions are supported directly by the law as written by Congress.

            You might want to think about aligning your feelings with that law.

        3. there will necessarily be A LOT of unwinding

          Or we could just expunge logic patents from the system and watch everything return to normal quite quickly.

          1. Logic patents…?

            Tell me Malcolm, how is that copyright for logic of yours coming along?

            (It’s not like your vapid, short-script comments are getting any less vapid with continued use, you know)

          2. …and in case you were simply too caught up in your feelings to bother understanding the simple and direct post, my comment deals with ALL patents.

            Maybe try just a little to not be so possessed of your own mantra and recognize the larger legal issues being discussed…

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