by Dennis Crouch
Cascades Projections v. Epson America (Fed. Cir. 2017) (en banc denial)
In a split decision, the Federal Circuit has denied Cascades petition for initial en banc hearing. The petition asked one question: “Whether a patent right is a public right.” Because a Federal Circuit panel already decided this decision in MCM, Cascades asked the court to bypass the initial panel appeal and head straight to the en banc question. See MCM Portfolio LLC v. Hewlett-Packard Co., 812 F.3d 1284 (Fed. Cir. 2015), cert. denied 137 S. Ct. 292 (2016). The issue is important because the answer to the private right question could lead to a judgment that the administrative patent trial system is an unconstitutional violation of due process rights. I previously discussed the case on Patently-O.
For judges wrote separately on the case:
Judge Newman Concurring in Denial: The important question here is “whether the statutory scheme created by the America Invents Act, in which the Office is given an enlarged opportunity to correct its errors in granting a patent, with its decision subject to review by the Federal Circuit, meets the constitutional requirements of due process in disposition of property.” Judge Newman suggests that she would vote for re-hearing after “full opportunity for panel rehearing.”
Judge Dyk (Joined by Judges Prost and Hughes) Concurring in the Denial: “MCM was correctly decided. . . . [T]here is no inconsistency in concluding that patent rights constitute property and that the source of that property right is a public right conferred by federal statute.”
Judge O’Malley, Dissenting from the Denial: Patent rights are likely “core private rights only subject to adjudication in Article III courts.”
Judge Reyna, Dissenting from the Denial: “The state of current law compels en banc review.” According to Judge Reyna, the clear statement from Supreme Court’s 1898 decision in McCormick Harvesting that “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.” McCormick Harvesting Mach. Co. v. C. Aultman & Co., 169 U.S. 606, 609 (1898).
We’ll look for the upcoming panel decision in the case and subsequent en banc hearing.
“The Seventh Amendment right of trial by jury is the right which existed under the English common law when the Amendment was adopted. Baltimore & Carolina Line, Inc. v. Redman, 295 U. S. 654, 657. Thus, the Court asks, first, whether infringement cases either were tried at law at the time of the founding or are at least analogous to a cause of action that was. There is no dispute that infringement cases today must be tried before a jury, as their predecessors were more than two centuries ago.” Markman v. Westview 517 US 370. Isn’t this whole ‘public rights’ issue, really about whether a patent holder has a right to a jury trial? Why isn’t Markman dispositive?
Iwasthere, my argument precisely. The Federal Circuit, in both Patlex and in MCM, is deciding the issue backwards. First one should determine whether there is a Seventh Amendment right in the first place to a trial for invalidity based upon traditional analysis of whether that issue was tried to a jury at common law. (Of course it was.) Once one determines that the issue of validity was tried to a jury at common law, it has a Seventh Amendment right that cannot be taken away by assigning the trial of that issue to either a court of equity or to an administrative agency.
Instead, the Federal Circuit decided first that patents were public rights which, of course, do not have a right to a trial by jury. Thus the historical analysis is obviated.
Thus, the Court asks, first, whether infringement cases either were tried at law at the time of the founding or are at least analogous to a cause of action that was. There is no dispute that infringement cases today must be tried before a jury, as their predecessors were more than two centuries ago.” Markman v. Westview 517 US 370.
The PTAB does not decide infringement.
Invalidity is a compulsory counter claim to a charge of infringement. ‘You can’t infringe an invalid patent,’ we’ve all heard that one before.
Furthermore, reason for the 7th Amendment in the first place – was to protect the people from government. And your argument conjures away a protected right – the right to have property disputes tried to an independent judicial department – plus a right to a jury trial locked in by ratification of the bill of rights.
[Y]our argument conjures away a protected right – the right to… to a jury trial locked in by ratification of the bill of rights.
This argument assumes the conclusion. Did the bill of rights lock in such a right? Was there such a right in the first place for the bill of rights to lock in? One cannot “preserve” that which did not exist in the first place.
It “assumes” only that other Constitutional protections of property apply.
You seem to have a genuine problem with accepting that.
It “assumes” only that other Constitutional protections of property apply.
Jury trials are not a “Constitutional protection[] of property.” They are a constitutional protection of rights which were tried to a jury in England in 1791. Some property rights were entitled to jury trials in England in 1791 (e.g., disputes over who is the rightful owner of a tract of land), while others were not (e.g., disputes over who owned a treasure salvaged from a sinking ship).
In other words, the mere fact that something is property does not mean that a VII amendment right is invoked. It is mere sloppiness to imagine that the VII amendment applies merely because a property right is at stake.
Greg – did I ever specifically say that VII was the other Constitutional protection of property?
You are mixing up protaganists.
Well no, Ned is correct, he has done the research, patents were covered by the 7Th amendment. And now you are questioning the purpose of the 7th Amendment itself? And FYI, Markman, says you do that step “First”.
patents were covered by the 7[t]h amendment
I am not sure what this means. Seventh amendment analyses are to be done issue by issue, not trial by trial. (Markman v. Westview Instr. Inc., 517 U.S. 370, 377 (1996) (The second question to be answered in a VII amendment analysis is “whether a particular issue occurring within a jury trial… is itself necessarily a jury issue”). You cannot just say “patent cases involved juries” and stop there. You have to know whether validity itself was tried to a jury.
Incidentally, there were different varieties of scire facias writs. Mowry v. Whitney, 81 U.S. 434, 439 (1872). One of these scire facias actions involved a trial as between two private parties, and the decisions of these trials had effect only between those parties. Another involved an action brought in the name of the King to cancel the patent as against the whole world.
Obviously, IPRs are more analogous to the second, in that the result of an IPR is to cancel the claims as assertable against anyone, not just the IPR petitioner. So the really relevant question is not merely whether there were jury trials in some scire facias trials, but whether there were jury trials in the particular scire facias trials brought in the name of the King? Then the next question is what those juries were charged to consider (did they adjudicate validity per se, or merely consider whether the patentee’s fraud—where fraud was alleged in the obtaining of the patent—was willful)?
Perhaps Ned would care to comment on what evidence we have for jury trials in that particular class of scire facias actions, and what those juries were there to decide?
Greg, I beg you to review all the posts from Distant Perspective over the last few weeks where he quotes extensively from cases and reporters discussing scire facias actions.
I am literally stunned, though, at your question at this late date. Scire facias actions were filed in either Kings Bench or the Petty Bag, both common law courts. Trial of disputed facts was to a jury, and at Kings bench. The common law judge entered a judgment of invalidity, if that was the verdict, and recorded it with the clerk of the Petty Bag.
The issue of validity is LEGAL. Legal issues were always tried in the common law courts.
There is no equitable remedy involved since the court does not have to order anything. The verdict of invalidity was enough.
Then we have the fact that Story already knew all this in ex parte Wood & Brundage, where he held that scire facias actions at common law to test validity of a patent had a Seventh Amendment right to a jury trial.
I am literally stunned, though, at your question at this late date.
I am flattered that you might be stunned when it becomes clear that I do not know something. I assure you, there is nothing “stunning” here. No one should be surprised to see me say “I do not know…”
Trial of disputed facts was to a jury, and at Kings bench.
Sure, but that is my question: what facts were at stake? What evidence do we have about what the jury was charged to decide in these Rex v. _____ scire facias actions? I do not recall seeing that Distant Perspective reported anything on that point.
[Justice] Story already knew all this in ex parte Wood & Brundage, where he held that scire facias actions at common law to test validity of a patent had a Seventh Amendment right to a jury trial.
Ah, how I wish that he had. It would so simplify things if Justice Story really had ruled that there was a VII amendment right to a jury trial in validity actions. Regrettably, when I read Wood & Brundage, it really was not clear to me to what extent the VII amendment was actually being invoked.
In any event, the procedure at issue in Wood & Brundage was so different than an IPR, that I am not sure how applicable Wood & Brundage may actually be.
Validity was a defense to infringement at common law and tried to a jury.
That should have settled the issue.
Greg,
Maybe yo can “wow” them with a statement like “you still have something with an invalid patent.”
I know that I was wowed with that statement.
Judge Newman, either senile or beaten. Due process? What is she talking about?
Dennis – why are you suggesting the same? Dupe the proles? You aren’t smart enough. Explain.
Nothing convinces like bald assertion seasoned with a medley of my informal fallacies like argumentum ad hominem and poisoning-the-well…
anony, re: Newman, simply read Patlex. She said that all Crowell required was due process.
Patent Chutzpah of the Day: Aylus’ losing argument that statements about its invention made in response to a petition for IPR can not be used to find prosecution disclaimer.
Seems that Oil States petition at the Supreme Court is now ripe.
I’ve got a treat for AAA here today. In a training today a lady from the board was telling examiners literally, in responding to arguments by the applicants that involve them using caselaw, examiners are literally not supposed (or at least are not required) to go to the caselawl itself and make legal arguments etc. etc. against the applicant. Instead the examiners are to look at the MPEP, regurgitate whatever they think best supports their position (or else withdraw the rejection) and “act as a fact finder”. And specifically the examiners are not required to do legal research beyond the MPEP and any guidance memoranda/MPEP.
Though examiners are allowed to read the caselaw and respond however they decide based thereupon.
And that is official training up ins the office. And this is to maintain consistency.
Oh and I forgot to add, the lady had noted that they will deal with the super fancy legal arguments at the board, unless they are entirely persuasive to the examiner and the examiner withdraws the rejection on their own.
6, what about this scenario: Patent owner says they have a markman order, attach the order – making it of record, and then specifically disclaim any claim scope broader than the markman order to PTO in the examination and then assert: This is the BRC for the claims. Is that an argument of fact or law?
law – with a fact of a disclaimer.
[E]xaminers are literally not supposed (or at least are not required) to go to the caselawl itself and make legal arguments etc. etc. against the applicant. Instead the examiners are to look at the MPEP…
This seems a very prudent policy, to my mind. The MPEP is something that we all (applicants and examiners) have in common. If we could all confine ourselves to the MPEP during the stage of prosecution that takes place in front of examiners, it would make the process easier and less frustrating for all parties.
6, while it appears that examiners are entitled research the law and present their own views, the board is essentially telling them that unless those views correspond to the views of the patent office higher-ups, they will be given little or no weight. So why waste everyone’s time.
It would be a rare occasion indeed that an examiner could persuade the board and the patent office to change its views on a point of law because of something the examiner said or argued. But appears to be the examiner’s right to make the attempt so if he so chooses
Maybe 6 should add the part about how the Office itself states that the MPEP does NOT have the force of law and that any question regarding law shall instead refer to the actual case law (and NOT the office higher-up “versions” in the MPEP)…
I’m not sure where you think I should “add that”, or why. This thread is about AAA (and others) having been btching to high heaven about examiners not giving him sophisticated legal analysis in response to the instances where he’s trying to be persuasive by blathering about caselaw, and instead the examiners just regurgitate caselaw from the MPEP’s cited cases. And now it’s official training (new training btw) that examiners are encouraged to do just that, and are not especially required to go digging for whatever case. “Procedurallylol” I guess you could say, they’ll be handling those for realsies at the board apparently. Unless of course the attorney manages to persuade the examiner.
You have the “btch” part wrong, 6.
No one is asking that “examiners not giving him sophisticated legal analysis.”
What is being “btched” about is the Office disregarding the actual law and arguments provided by those who know the law and Examiners doing the opposite of “examiners not giving him sophisticated legal analysis” by mouthing an MPEP writing that (far too often) gets the application of law wrong.
The fact that this is “official training” does not change anything and certainly does not change the duty to properly examine under the law.
“The fact that this is “official training” does not change anything ”
It does make it official that the examiners aren’t obliged by mgmt (or the PAP element talking about legal aspects of examination) to do their own legal analysis of the caselawl outside of that which is in the MPEP. In other words, if the examinator gets ur soooophisticated legal wranglin’ that you’re wanting them to do in a given case at your bidding when you make an argumentation “wrong”, there’s literally nothing holding them accountable, and neither does mgmt want there to be. That is, unless they’re going agin the MPEP (rather than regurgitating the MPEP for you). And that this is for the express purpose of being consistent between examinatin’s that people are btching about to the director(s).
With this new training, that’s now official.
“and certainly does not change the duty to properly examine under the law.”
Arguably, but it does make it so that there are 0 consequences officially to just plain stickin’ to your MPEP guns, and when this is made public (if it isn’t already) applicants will be officially on notice that they need to take their sooooophisticated legal argumentations to the board unless they can convince the examiner.
Also, you’ll be glad to hear that the class is mostly about how to respond to applicant’s arguing some caselaw (regardless of whether the examiner used any caselaw cites in the OA). So hopefully this will make the corps better informed. Oh, and the first part of the course teaches examiners some of the basics about facts/law distinction and the various routes of review up to the supremes, and the various deference granted where.
Frankly I think they may have come up with this thing from us btching online. But truthfully it has been needed for basically forever.
“you’ll be glad to hear that the class is mostly about how to respond to applicant’s arguing some caselaw (regardless of whether the examiner used any caselaw cites in the OA).”
Getting warmer.
“but it does make it so that there are 0 consequences officially to just plain stickin’ to your MPEP guns,”
Nope. Ice cold.
“I’m not sure where you think I should “add that”, or why. ‘
That is an error entirely under your own control, 6.
“the board is essentially telling them that unless those views correspond to the views of the patent office higher-ups, they will be given little or no weight. So why waste everyone’s time.”
No they never said that. Indeed they said the opposite. Each case will be evaluated on its own facts/merits by the board. And of course the board continues to be there to only look for reversible error or whatever it was from Ex Parte Frie.
It is certainly no surprise to long term PTO practitioners that arguing case law itself to PTO examiners [rather than MPEP section citations based on MPEP case law citations] is normally a waste of time [for other than making a record for appeal]. Even if the MPEP provision in question is only citing OLD case law.
And, some PTAB ex parte appeal briefs do not do a good job of presenting more current Fed. Cir. decisions that the PTAB prefers.
A few thoughts about Judge Reyna’s dissent:
(1) I think that Judge Reyna falls victim to a problem of terminology. People hear the words “private property” and “public rights” and they think “public is the opposite of private, so these two things must be mutually exclusive. That is incorrect. It is simply a category error. Patents are both private property and public rights.
If you permit the PTAB to adjudicate validity, you have in no wise impeached the patent owner’s property rights. At the end of an IPR, the owner still owns the patent. The owner’s ownership is unaffected. It would be a real separation-of-powers problem if the PTAB were authorized to decide ownership issues, but it is not.
The one thing that the PTAB is empowered to decide is validity. Validity relates to the ability to use a patent in a public regulation scheme. But, of course, public regulations schemes are precisely the sort of “public rights” matters that may be legitimately entrusted to administrative tribunals in the first instance.
(2) Judge Reyna says (pg. 14 of the slip opinion) that “the MCM panel explicitly found for the first time that ‘patent rights are public rights.'” Judge Reyna is simply wrong in this assertion. Patlex Corp. v. Mossinghoff, 758 F.2d 594, 604 (Fed. Cir. 1985) held that patent validity is a public rights question. The MCM panel was merely following precedent, not breaking any new ground.
(3) Judge Reyna gives (slip op. at 16) as a reason for en banc review that Patlex held that McCormick was decided on constitutional grounds, while MCM contends that McCormick was only decided on statutory grounds—not constitutional grounds. This observation is irrelevant. Patlex also held (758 F.2d at 604) that
In other words, even if Patlex and MCM disagree that McCormick does not implicate the constitution, both panels agree that McCormick is distinguishable on the grounds that it was deciding a case against a very different statutory background than the one at issue post-1981. Even if an en banc panel were to agree with Patlex against MCM that McCormick implicated constitutional issues, such a decision cannot change the outcome of the case. The Constitutional rights at issue derive from the statutory text in place at the time of of the fight. The statute at issue now is so different from the one at issue in McCormick that quoting stray lines in McCormick just cannot get the petitioner here to a different outcome than the one that they encountered in this IPR.
While you say that the statute is different (and in fact a difference does exist that goes against your larger viewpoint), you have a(nother) legal error to contend with in that the statute as regards patents as property was NOT changed.
Once a right has been developed, that right may – and in the case of patents as property, does – inure other Constitutional protections afforded that type of right.
Greg, every time you venture forth your legal views and do not take into consideration this important fact, you merely present the same flaw as has been shown to you.
A few responses:
1) I have no idea whether the statute in force back in 1898 contained explicit mention of patents as property. Care to cite the section asserting as much?
2) It really does not matter whether the statute did or did not say as much, however. The point is that the statute back then made no provisions for reexamination, but the statute today does.
3) That fact in no wise diminishes the status of patents as property, so the specious assertion that the Constitution’s protects property, while true as far as it goes, is simply irrelevant.
1) The bit about patents as property is reflected in the writings of the people who wrote the Constitution.
Even without 35 USC 282, patents were considered property from the onset – this is of course reflected in ALL of the Supreme Court cases touching upon the issue.
As to that section of law, you might enjoy this: link to law.cornell.edu
2) provisions for reexamination DO NOT make your point – as I have previously shared. I am not holding my breath waiting for you to grasp points already given to you.
3) What you feel as irrelevant is not so. Quite in fact, your own choice to feel that way is itself irrelevant. It appears that you too want to view patents as property (if I read the “diminishes” comment correctly), but somehow you think that patents as property somehow does not pull into the dialogue that other protections from other parts of the Constitution are invoked once Congress created a property right.
THAT would be plain legal error.
Once Congress created the patent right as a property right, those other protections inured.
It is a critical point then (the opposite of “irrelevant”), that even Congress no longer had absolute free reign to change patent law – without regard to those other Constitutional protections.
It really just does not matter how you personally feel about that, Greg. That is how the Constitution works. Whether or not this will be applied properly is quite a different matter.
you might enjoy this: link to law.cornell.edu
Yes, yes, fine. Naturally, I am aware of section 282 and am thoroughly on board with the goal that this section aims to advance.
This really does not tell us anything about the statute in force back in 1898, however, which was the point actually in discussion.
I am not holding my breath waiting for you to grasp points already given to you.
Likewise & reciprocated…
“This really does not tell us anything about the statute in force back in 1898, however, which was the point actually in discussion.”
You did not explore the link that I provided.
As to “reciprocated,” you have no points presented which I have not grasped – and shown that I have grasped. Your choice of word is incorrect.
You are getting very sloppy Greg.
You did not explore the link that I provided.
Where was I supposed to explore? When I click on the historical notes section, it only traces things back to the codification of Title 35 in the 1952 act. If it goes back to 1898, you might want to link to that part, because I am not seeing it.
[Y]ou have no points presented which I have not… shown that I have grasped.
We will have to agree to disagree there.
“Derived from Title 35, U.S.C., 1946 ed., § 69 (R.S. 4920, amended (1) Mar. 3, 1897, ch. 391, § 2, 29 Stat. 692, (2) Aug. 5, 1939, ch. 450, § 1, 53 Stat. 1212).”
Sloppy Greg.
Sloppy.
“We will have to agree to disagree there.”
You agreeing or disagreeing does not change the facts.
Sloppy Greg.
Did you check the section you are now citing? Here it is, reproduced in its entirety:
That looks rather strikingly different from modern day §282. In fact, almost completely different (although some of the spirit is the same). In any event, there was no statutory provision in the old RS §4920 (or in RS §4898, the antecedent to modern §261) about patents being property, so I do not know how you figure that this part was not changed.
Nothing here really detracts even an iota from my point above.
You agreeing or disagreeing does not change the facts.
Quite true. Just as your assertion or contradiction cannot change the facts either.
“your assertion or contradiction”
LOL – I have the facts, and that is what I pound. What is this “assertion or contradiction” that you feel that I have instead?
The bit about patents as property is reflected in the writings of the people who wrote the Constitution.
Even without 35 USC 282, patents were considered property from the onset – this is of course reflected in ALL of the Supreme Court cases touching upon the issue.
Yes. I agree with all of this. We are both agreed that patents are property.
Bingo Anon.
This is a distinction without a difference. That is like saying that it is not a taking for a federal agency to hold that your property title for your house is invalid, but it would be a taking if they held that you don’t own the house.
I am sure our Justices might hold something like that as they are little better than common criminals, but that doesn’t mean it is consistent with the Constitution.
OK. Sure. Pretty sure a taking includes any of the bundle of rights.
That is like saying that it is not a taking for a federal agency to hold that your property title for your house is invalid, but it would be a taking if they held that you don’t own the house.
I know that might seem like an apt analogy, but it is not. It is the fallacy of equivocation. The word “valid” means something very different when applied to a title deed than it means when applied to a patent claim.
If my title deed is declared “invalid,” I have nothing left. It is not that I “own” an invalid title. I “own” nothing.
By contrast, if I have an invalid claim in my patent, that most definitely does not mean that I own nothing. As the owner of the patent, I can still seek a reissue, and claim any remaining patentable subject matter that exists within my disclosure.
Do not be confused by the fact that we use the same word—“invalid”—to describe the two very different circumstances of title deeds and patent claims. As Justice Holmes once observed, “[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U.S. 418, 425 (1918).
Pretty sure a taking includes any of the bundle of rights.
Definitely not. Andrus v. Allard, 444 U.S. 51, 66 (1979)
Well, for one thing invalidating the claims may very well be all there is if the claims were granted over 2 years ago.
Plus, there was a quid pro quo. The patentee disclosed their invention and paid money.
Plus your quote on property rights goes to a restriction of disposal and not a revocation of a right granted by the government. Do you think for squatters where they applied for land that the government could invalidate their title to the land without a court? Simply send out a letter and say, well, we’ve decided that our grant of your land 50 years ago was in error so get off it.
[I]nvalidating the claims may very well be all there is if the claims were granted over 2 years ago.
Two years is the limit for broadening reissue. At the point where your claim is held invalid, I do not see why you bother trying to broaden it. What you want is to narrow your claim (to limit it to the genuinely patentable subject matter), and the 2 year limit does not apply to a reissue proceeding where you seek to narrow the originally granted claims.
Plus, there was a quid pro quo. The patentee disclosed their invention and paid money.
What of it? There is no amount that you can pay to be allowed to own an invalid claim.
Do you think for squatters where they applied for land that the government could invalidate their title to the land without a court?
Definitely not. That was my point. Title deed validity and patent claim validity are very different things, and therefore it should not come as a surprise that the law treats them differently. Only a court can invalidate your title deed, and no one here is arguing to the contrary.
You are not being fair Greg. First, a patentee may not want to just narrow. There are other embodiments, plus the rule is that you cannot broaden any claim element. So, after two years the rules on reissue are very restrictive regarding claims.
You keep saying they are different, but you have not identified any differences. The fact is the squatters is a very good analogy as the government agency may have made a mistake, but would have to go to court to correct the mistake.
So, can you try to come up with one difference? Your reissue argument is exceedingly lame in practice as anyone that files reissues know (like me.) The latitude after two years is almost nonexistent.
So, anything else? So far you quote some case about takings that was an edge case. I could cite 100 cases that say the opposite.
First, a patentee may not want to just narrow.
Then that patentee should have kept a continuation pending. Even before the AIA, you could not use a reissue to achieve a broader embodiment after 2 years. Why are you talking about broadening reissues in the context of IPRs? This is all just irrelevant distraction.
[T]he rule is that you cannot broaden any claim element. So, after two years the rules on reissue are very restrictive regarding claims.
True. What of it. My point is that at the end of an IPR, a patentee may find that some of the patent claims are invalid. Given that the PTAB is only empowered to pass on novelty and obviousness, what that means in practice is that the PTAB has found that there exists, within the scope of the granted claims, some subject matter that is old in the art. If the patentee wants valid claims, the patentee needs to narrow the claims so as no longer to read on those old embodiments. Broadening will not help the patentee to recraft patentable claims, so I do not see why you think it germane to observe that the patentee is not allowed to broaden.
You keep saying they are different, but you have not identified any differences.
As Judge Reyna noted (slip op. at 8), the Court held in Murray’s Lessee v. Hoboken Land & Improvement, 59 U.S. 272 (1855), the Congress does not have the power to remove matters that belonged to the courts of common law from the jurisdiction of the Art. III courts. However, where Congress creates a right anew, it is free to leave the administration of that new right to the courts, or to create an administrative agency to administer the statutorily created rights.
Rights in real estate are the quintessential domain of the common law courts, as anyone who has taken property law will remember. By contrast, the Court has held that patents “did not exist at common law, and the rights, therefore, which may be exercised under it cannot be regulated by the rules of the common law.” Gayler v. Wilder, 51 U.S. 477, 494 (1850).
In other words, rights in real estate predate the U.S. Congress (or the United States itself, come to that), and thus it simply is not possible to allocate the power to resolve real estate disputes to any other branch than the courts. The Congress created patents, however, and therefore the Congress is free to assign their administration to the PTAB if Congress so chooses.
In short, the difference between the two examples you give is one well grounded in both law and history. The analogy between land and IP is a good one in most circumstances, but it does not hold here. This analogy will not serve to establish the point you are trying to carry.
So far you quote some case about takings that was an edge case. I could cite 100 cases that say the opposite.
Great. I do not need 100 counterexamples to know when I am wrong. How about you cite your best one? I will be grateful to be shown where I have misunderstood the law.
Greg,
Consider all of my previously supplied and unanswered points presented again here.
Thanks.
There are no “unanswered” points. You have received an answer to all of them. I gather that you consider many of these answers unsatisfactory (as is your right), but that is not the same as to say that the points are “unanswered.”
You confuse replies with answers, and no, even the replies are lacking.
For instance: link to patentlyo.com
Fair enough. Do not hold your breath waiting for a different “reply” (or “answer” or “response” or whatnot).
“Do not hold your breath”
I am not – but likewise, please do not pretend that you have given answers (or replies or responses of whatnot).
Yet again, please pardon any potential duplicates because the filter is asinine
“Do not hold your breath”
I am not – but likewise, please do not pretend that you have given answers (or replies or responses of whatnot).
No one is pretending.
Greg,
it is either Pretending or
L
I
Eing.
I gave you the benefit of the doubt.
(please forgive any potential double post due to narrative shaping)
Now that is just childish…
I am rubber & you are glue, and all that jazz…
Please forgive the potential repeat posting because of the asinine filter…
The childish aspect is from you.
And yes, your child’s quip applies to you here as well.
Here’s a deal for you: do not try to present what is not there, and I will not call you out for trying to present what is not there.
Consider all of my previously supplied and unanswered points presented again here.
Worst. “Argument”. Ever.
Malcolm,
The lowest of my “worst” is miles higher than the highest of your “best.”
Perhaps you should try to focus on improving yourself before engaging in your mindless quips.
Greg, in another note below you said that patents are public rights because they affect the entire public like a statute, and at the same time they can be private property. In some respects, patents like the patent Elizabeth granted East India Company in 1601 is such a patent that affects the entire public but is also the property of its owner. It was intended to invest in the East India Company exclusive property that it might reliably invest the resources to take develop trade in its area of exclusivity which included the United States.
But there is a distinction between patents on trade and patents on invention and this distinction has been made carefully by the courts in England and in the United States since at least the early 1600s as well. Patents on trade were declared illegal in England in the Case of Monopolies, but patents on inventions were not because patents on invention did not affect the entire nation as did patents on trade.
The Supreme Court addresses very same issue in the recent case of B&B Hardware. The dissent argued that patents were like statutes and therefore public rights. But the majority, authored by Justice Breyer if I recall correctly, demurred, observing that patents only cover the claimed invention and therefore only affected those who used the claimed invention. Thus they were in fact very much like patents on property that affected trespassers.