Oil States: Trump Admin Supports AIA Trial Proceedings

Oil States v. Greene’s Energy (Supreme Court 2017).

After receiving party briefs in this case, the Supreme Court requested a responsive brief from the Michelle Lee in her role as PTO Director on the constitutionality of the AIA trial system.  That brief has now been filed by the new acting Solicitor General Jeff Wall who handled a number of patent cases in private practice.  Despite the regime change, the SG’s office continues to strongly support the AIA Trial system and the brief argues strongly that patents are public rights that may be subject to administrativ review:

Patents are quintessential public rights. Pursuant to its constitutional authority to “promote the Progress of Science and useful Arts” by establishing a patent system, U.S. Const. Art. I, § 8, Cl. 8, Congress created the USPTO, an agency with “special expertise in evaluating patent applications.” Kappos v. Hyatt, 566 U.S. 431, 445 (2012). Congress directed that agency to issue a patent if “it appears that the applicant is entitled to a patent” under standards set by federal law, 35 U.S.C. 131. Patents accordingly confer rights that “exist only by virtue of statute.” Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 229 n.5 (1964). . . . Petitioner’s constitutional arguments do not warrant this Court’s review.

[Read the Brief: 16-712_oil_states_energy_servs._llc_opp]  The Supreme Court has already denied certiorari in three prior constitutional challenges to the AIA trial mechanisms. MCM Portfolio v. Hewlett-Packard; Cooper v. Lee; and Cooper v. Square.  If Oil States is denied here, there are also several more cases waiting in the wings to raise the challenge again.

Oil States Energy Services v. Greene’s Energy Group

132 thoughts on “Oil States: Trump Admin Supports AIA Trial Proceedings

  1. Coming to the question of whether patent rights are public rights or private rights.

    Usual disclaimers (IANAL etc.), but my hunch is that, if SCOTUS were to grant certiorari, they might well hold, or at least a plurality of Justices might well find, that patent rights are private rights.

    I have looked over a few apparently relevant SCOTUS cases. I would presume that the public rights exception is a doctrine in US constitutional law intended to provide a framework for constitutional cases involving Article III, and on that basis, its extent would have to be judged by the relevant SCOTUS case law, and one would to find the distinction set out in statutes.

    The following might, I think, provide an example of what would be a public right.

    Let us suppose that Congress has full authority to enact legislation regulating the sale of distilled alcohol. (It might not actually have that right, but for the sake of this example, we suppose, for the sake of argument, that it does.) Congress then enact legislation with the following three provisions:

    (i) the sale of distilled alcohol without a Federal license is unlawful;

    (ii) licenses are administered by a Federal agency;

    (iii) no two licensed premises may be situated less than 10 miles apart.

    We suppose that John Doe has obtained a license to sell distilled alcohol at his premises specified in the license.

    Richard Roe then starts selling distilled alcohol from premises situated five miles from John Doe. This impacts adversely on John Doe’s trade.

    Consider the case where Richard Roe has not obtained a license. I presume that, under those circumstances, John Doe does not have standing to sue Richard Roe directly. At best he can contact Law Enforcement and ask them to look into the matter and encourage them, if necessary, to bring Richard Roe into court for the unlawful sale of distilled alcohol.

    Next suppose that Richard Roe does have a license. I presume that, in those circumstances, John Doe does not have standing to sue Richard Roe directly in an Article III court. Nor can he sue the licensing agency directly for wrongly issuing the license to Richard Roe, because the licensing agency enjoys sovereign immunity.

    In such circumstances, Congress would presumably have the power to establish an Article I court to arbitrate disputes between vendors of distilled alcohol such as John Doe and Richard Roe.

    In those circumstances, I suggest that John Doe’s right to sell distilled alcohol from his premises is a public right.

    ===

    Now vary the law slightly. We suppose that the relevant high ranking officials at the Federal licensing agency are empowered to issue letters patent, signed and countersigned, with the seal of the distilled alcohol licensing agency, granting to John Doe the exclusive right to sell distilled alcohol within a ten mile radius of the premises specified in the letters patent. Once the letters patent are signed and sealed, the right has been vested in John Doe, even before the letters patent have been delivered (see Marbury v. Madison, 1803). The letters patent give John Doe to right to sue trespassers such as Richard Roe in Article III courts. Moreover, if threatened with an infringement suit, Richard Roe could defend himself by proving that the letters patent were invalid, or were not infringed.

    And, although the authority to issue such letters patent would derive from statute, it is surely the case that rights granted by letters patent were familiar to common law courts in medieval England. (And I note that in Murray’s Lessee v. Hoboken Land Improvement Co., 1856, SCOTUS took account of the common law of England from medieval times, and how similar laws were applied in the colonies prior to the Declaration of Independence.)

    I would suggest that, in these circumstances, John Doe’s right to sell distilled alcohol would be a private right. And the fact that Congress chose to use the mechanism of grant of letters patent in this situation would make disputes between John Doe and Richard Roe cases and controversies requiring the exercise of the judicial power of the United States, requiring such cases to be tried at common law in Article III courts.

    ===

    Applying now to patents of invention, I note the following from McCormick Harvesting Machine Co. v. Aultman (1898):

    “The only authority competent to set a patent aside, or to annul it, or to correct it for any reason whatever, is vested in the courts of the United States, and not in the department which issued the patent. Moore v. Robbins, 96 U. S. 530, 96 U. S. 533; United States v. Am. Bell Telephone Co., 128 U. S. 315, 128 U. S. 364; Michigan Land & Lumber Co. v. Rust, 168 U. S. 589, 168 U. S. 593. And in this respect a patent for an invention stands in the same position and is subject to the same limitations as a patent for a grant of lands.”

    I note in particular the last sentence!

    I notice that, in the case of letters patent constituting a commission for a Justice of the Peace, Chief Justice Marshall, in Marbury v. Madison, made the following statements in his opinion:

    “If the act of livery be necessary to give validity to the commission of an officer, it has been delivered when executed, and given to the Secretary of State for the purpose of being sealed, recorded, and transmitted to the party.”

    […]

    “The President of the United States, by signing the commission, appointed Mr. Marbury a justice of the peace for the County of Washington, in the District of Columbia, and the seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and the appointment conferred on him a legal right to the office for the space of five years. Having this legal right to the office, he has a consequent right to the commission, a refusal to deliver which is a plain violation of that right for which the laws of the country afford him a remedy.”

    ===

    And I suggest that a SCOTUS case in real property for comparison purposes is Green v. Liter (1814).

    “No livery of seizin is necessary to perfect a title by letters patent. The grantee in such case takes by matter of record, and the law deems the grant of record of equal notoriety with an actual tradition of the land in the view of the vicinage.”

    (I suppose that one reason for posting in forums like this is that, should SCOTUS decide to take up the case, one can eventually say, either “I told you so!” or “I admit I got it wrong” when the judgment is published.)

    1. Distant, the primary basis for the holding of Federal Circuit in both Patlex and in MCM is that patents are creatures of statute and therefor are public rights. The law reviews I’ve read on the topic suggest that any “new type” of right created by congress is form of public right. However, even here, if Congress gives a new right a legal remedy, then the right is a legal right and it must be litigated in a court of law and with a jury at the option of parties. Curtis v. Loether.
      link to scholar.google.com

      Of course, patents are legal rights, and their validity and infringement must be litigated in a court of law. Parsons v. Bedford, 28 U.S. 433, 446-447 (1830). (legal rights must be adjudicated in a court of law and to a jury).
      link to scholar.google.com

  2. Circling back to my 1312 comment and the responses it provoked, I’m still curious about the interactions of The Office of The President with The Constitution, the separation of powers and The Executive Branch. In particular:

    ..what does the Constitution have to say on conflicts between i) the public interest and ii) the business interests of The President and his immediate family around the world?

    ..thinking of the Comey firing, is The Office of the President inside or outside the Executive Branch “silo”?

    1. You being “still curious” when you have not linked your own rants in any cohesive manner does not help the dialogue.

      “Provoking” responses with such meaninglessness is merely throwing
      C
      R
      P
      against the wall to see what sticks.

      Up your game, MaxDrei.

      Please.

      1. Up my “game”? Today’s news. According to the BBC, Mr Trump just shared with Sergei Lavrov in the WH Oval Office intelligence that is classified “Codeword” ie higher than Top Secret, information so secret that it is not even shared with the 5 Eyes partners.

        1. Maybe you want to tie that news in some relevant way to your off-base rants here.

          You STILL have shown no appreciation for the legal terms that you heft with vigor against the wall.

          1. Ned is that your take on McMaster’s careful double negative? But hey, come on, the fuss is not about revealing “military operations” is it? What McMaster said is a deliberate distraction, isn’t it?

  3. I was intrigued to see the linked brief note the subject of administrative procedures (such as those employed by the Social Security administration) to recover overpaid funds. While I agree that patents are private property, I hope that no one would doubt that cash money is also personal property. And yet administrative agencies are authorized by law to take back cash (without the interposition of an Article III court) when it has been paid by mistake. How is this meaningfully different from the PTO cancelling claims when it finds that they have been granted by mistake?

    1. Different kind of mistake. Overpayment is an objective mistake. Like if the cashier gives you too much change, you are not entitled to the excess cash. These type of errors in patents are covered by 35 USC §254 without controversy.

      1. Good point.

        I suppose too that the level of the presumption of validity that attaches – by law – at the time of grant would also factor into the equation.

  4. Oil States has filed its reply brief and relies heavily on the Cascades dissents to en banc.

    One point I strongly disagree with in the reply brief is the apparent concession that scire facias actions were filed in a court of equity and patents were invalidated as an equitable remedy. As we all know, scire facias actions were filed in the Petty Bag, a Common Law court in Chancery, but where the trial was actually conducted at Kings Bench and to a jury. Even the Supreme Court of the United States recognized this in ex parte Wood & Brundage, a case that held that scire facias actions had a right to a jury trial under the Seventh Amendment.

    I find it inexcusable that counsel representing our side of this argument could so screw up our position by this concession.

    Hopefully, this does not provide permanent damage. But I can tell you one thing, I have no confidence in this law firm representing the position of our side to the Supreme Court.

    1. Now you know how we felt with you as a potential “champion” of patents as property and the fact that you didn’t even know the “sticks in a bundle” of property rights metaphor.

      1. anon, the reason we have trial by jury for patent validity is because the Magna Carta guaranteed a trial by jury in civil cases involving legal rights — property.

      2. “It is well known, that in civil causes, in courts of equity and admiralty, juries do not intervene, and that courts of equity use the trial by jury only in extraordinary cases to inform the conscience of the court. When, therefore, we find that the amendment requires that the right of trial by jury shall be preserved in suits at common law, the natural conclusion is, that this distinction was present to the minds of the framers of the amendment. By common law, they meant what the constitution denominated in the third article ‘law;’ not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered; or where, as in the admiralty, a mixture of public law, and of maritime law and equity was often found in the same suit.”

        Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446-447 (1830).

      1. MORGAN, LEWIS & BOCKIUS LLP. 1717 Main Street, Suite 3200 Dallas, Texas 75201

        Here is the passage that I object to, where the words “before courts of equity” were emphasized by the author:

        Regardless of the label, however, this Court has consistently held that “Congress may not ‘withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity.’ ” Stern v. Marshall, 564 U.S. 462, 484 (2011) (emphasis added) (quoting Murray’s Lessee, 59 U.S. at 284). Patent invalidation is just such a matter— and the government admits as much when, in addressing the Seventh Amendment problems with inter partes review, it states (at 15) that “[c]laims for annulment or cancellation of a patent * * * were traditionally brought before courts of equity.” (emphasis added).2 Under this Court’s cases, such a matter cannot be withdrawn from Article III courts.

        2 As for the Seventh Amendment concerns raised by inter
        partes review (see Pet. at 12-15), the government’s primary argument (at 12-15) begs the question by assuming invalidation actions implicate “public rights” suited for agency adjudication. The government also argues (at 15) that the Seventh Amendment is not implicated because inter partes review provides only for the equitable relief of cancellation, but ignores that the agency’s adjudication
        is most often triggered by a party accused of infringing the patent who is then allowed to participate in the proceedings.
        See 35 U.S.C. § 315(b).

        1. Ned,

          Reading comprehension fail.

          That isn’t a concession. They are using the Government’s position against it.

          Can you cool the faux rage?

  5. (from IPDude)
    “It is a fact that Lee … has invalidated 40% of patents SHE has issued after she supposedly “improved” patent quality. ”

    You mentioned in a follow-on comment that “The stats… was just released”. Where can I find them?

    On a quick check, 1,011,515 utility patents have issued during her tenure.

    I find it astonishing to think that something north of 400,000 of those patents have already been invalidated.

    1. That was exactly my reaction to the 40% figure. I suspect that he means that 40% of PGRs end with canceled claims, or some such.

    2. The data is a little tricky. The latest report is posted here. Slide 8 shows 3,382 of 4,865, or 69% of petitions are instituted. Slide 9 shows 1,270 of 1,539, or 82.5% of final decisions with one or more claims unpatentable. That is 56% of petitions. Given 1.2 petitions per patent, that is 68% of patents are invalid.

      The stats hold for PGR which were filed within the past 4 years with latest and greatest management, quality system, and case law.

      Judge Michel noted recently that patents challenged in the PTAB are the cream of the crop:

      Since 80% of the IPRs are already in district court, these are patents the owners have already assessed, look strong, whether infringement can be proven, whether the defenses against invalidity can be defended. These are presumably the strongest patents… a two-third invalidation rate can’t be right for these pre-vetted patents.

      1. Thanks for trying to answer whatever it was IPDude may have meant, but the data do not appear tricky to me.

        So, something like 0.1% of patents issued were invalidated; fewer, actually, since the PTAB document covers more time that Ms. Lee’s tenure.

      2. Thanks also Invention Rights for providing the link to the PTO’s slide deck.

        Nice resource to have for client education and what not.

        1. Educate your client that if he is fortunate enough to invent something valuable he will have the privilege of paying a half million dollars for a 32% chance of keeping his patent.

      3. Judge Michel noted recently that… [s]ince 80% of the IPRs are already in district court, these are… presumably the strongest patents… a two-third invalidation rate can’t be right for these pre-vetted patents.

        Hm, I am not sure why Judge Michel regards that ⅔ figure as implausibly high. When P.J. Federico studied the rate at which patents were held invalid in litigation in the 1940s and 1950s, he found that courts invalidated claims ~60% of the time (P.J. Federico, Adjudicated Patents, 1948-54, 38 J. PAT. OFF. SOC’Y 233, 244 (1956)), which is fairly close to two-thirds. By the time Allison & Lemley reprised this question in the 1990s, the rate of invalidation had fallen to only ~45% (J. Allison & M. Lemley, Emprical Evidence on the Validity of Litigated Patents, 26 AIPLA Q.J. 185, 205 (1998)), but that mostly reflects the fact (too well know to most of us) that the courts tend to cycle through phases of favoring or disfavoring patent validity. We are palpably in one of the “disfavor” phases right now, so it is not surprising if the invalidity rate has climbed back up to what it was during the last “disfavor” phase.

        I can only imagine that the reason that Judge Michel finds this an implausibly high rate of invalidation is that Judge Michel served during the waning days of the last “favor” phase, and retired just as the current “disfavor” phase was waxing. He retired in 2010 (i.e., pre-Mayo/Alice), so his notion of what constitutes an “ordinary” invalidation rate is going to be lower than the current state of the law allows.

        I am not really happy about the state of the law that makes a ⅔ invalidation rate the new normal, but unlike Judge Michel, I cannot pretend to find that surprising or implausible.

        1. Understand the numbers. It’s not 2/3 of *all* patents. It’s not 2/3 of patents that are petitioned for IPR. It’s 2/3 of patents for which an IPR was instituted – i.e. where the petition presented a reasonable likelihood of success. You WANT that number to be high. If the rate is low, then you’re instituting many IPRs that change nothing and are thus unnecessary, wasting the parties’ time and expensive.

          The number you want to be low is the percent of patents challenged in an IPR. And indeed it is – less than 0.1%. That means over 99.9% of the time, the allowance decision was correct in the first place (regarding the issues that can be challenged in an IPR). Or at least, 99.9% of the time either the decision was correct OR the patent isn’t worth challenging. For purposes of this discussion, that amounts to much the same thing.

          Judge Michel’s view of the numbers is, frankly, wrong. There are several academic studies showing that patents involved in litigation often have lower quality metrics than the general patent population. In most cases, these are not the “cream of the crop” patents we’re talking about.

          1. It’s 2/3 of patents for which an IPR was instituted – i.e. where the petition presented a reasonable likelihood of success. You WANT that number to be high.

            Good point.

            Sort of.

            But not quite accurate. The decision to institute is NOT a reflection on any final merits of why the institution is being granted. That would be an improper extra thumb on the scale, and would more likely than not indicate an improper decision before the matter is fully heard. One must not confuse the Petitioner’s one-sided presentation that meets a “reasonable likelihood of success” with any sense of a full decision on the entire record and all factors brought into the deliberation. You should not expect that correlation.

            Of course, the real critical point is the separate legal point of the institution decision itself.

            For example (and admittedly going in a tangent to your fine point), it is AT that separate legal point that a particular taking occurs; and it is that separate legal point that on its own engages in that taking with ZERO recompense to the property owner; and it is that separate legal point that flatly (per the direction of Congress) dictates no Article III review of that separate legal point.

            1. One must not confuse the Petitioner’s one-sided presentation that meets a “reasonable likelihood of success”….

              Huh? What are you talking about? The patent owner gets to respond before the PTAB institutes. If the institution decision is made based on a one-sided presentation, it is only because the patent owner evidently chose not to respond at the allotted time.

  6. ” Pursuant to its constitutional authority to “promote the Progress of Science and useful Arts” by establishing a patent system, U.S. Const. Art. I, § 8, Cl. 8, Congress created the USPTO, an agency with “special expertise in evaluating patent applications.” Kappos v. Hyatt, 566 U.S. 431, 445 (2012). Congress directed that agency to issue a patent if “it appears that the applicant is entitled to a patent” under standards set by federal law, 35 U.S.C. 131. ”
    This supports that the constitution gives authority to the federal governement to administer the patent system. I don’t see how this supports that patents confer rights that exist only by virtue of (federal) statute. Would it be true also that trade secrets are rights that exist only by virtue of statute just because there is now a federal statute for the protection of trade secrets?

    1. PiKa,

      Your post reminds me that there are indeed TWO sides to the Quid Pro Quo.

      It seems that certain people are in a hurry to forget that.

    2. Pika, inventions are not public rights, but the constitutional grant gives congress the authority to secure THE exclusive rights in inventions at the national level. The alternative was to allow states to secure such rights (and they were so secured prior to 1789, and for 40+ years thereafter). But then we would have to secure patents in 50 states just to get national protection, which would be a simple procedure if one’s state’s recognition of an invention were given full faith and credit in other states, like marriages are so recognized.

      In 1836, Congress delegated to the Executive the power to grant patents on examination, but with the burden of proving unpatentability on the government. This grant of authority to examine is hardly a power to regulate patent rights.

      Once a patent issues, the common law provided all the remedies one need to enforce and defend in court. Damages, injunctions, and invalidity were all known common law defenses from even prior to the State of Monopolies. Congress has not varied these remedies since the founding except to allow trebling for willful infringement, and to require reasonable royalties.

      As well, in the initial patent statutes, Congress authorized scire facias actions to revoke patents for invalidity, and these actions had a right to a trial by jury. Ex parte Wood & Bundage.

      To be sure, in an effort to justify reexaminations and IPRs, the Federal Circuit has done a lot of damage to the patent system and caused revisionist thinking designed to confuse, and confuse it has.

      1. You need a brush up on the concept of federal preemption, Ned.

        State patents for 40 years after 1789? Really?

        1. Well, to be accurate, 35, not 40.

          A New York State patent was at issue in Gibbons v Ogden, 22 U.S. 1 (1824) , the case we all read in law school on the “dormant commerce clause.” (well, one person that goes by “anon” here didn’t attend law school, but anyone who did, read Gibbons). Gibbons ended state patent systems.

          1. Thanks Dave.

            A post for you.

            Yippie!

            As for “attending law school,” that hasn’t done well for you in all of our other “tussles,” now has it?

            The more you brag, the more f001ish you look.

            Too bad really, as I do appreciate your past work championing the patent system and all.

            Not sure why you get all fixated on nodding when it comes to some of my points though. Are you trying to bypass Homer?

        2. Of course, anon. The patents were authorized on the Federal level “as well.”

          When the Supreme Court ruled that Congress had preempted state patents, it was based upon the entire statutory structure plus some made up law, and I do not know where that law really came from, i.e., that Congress had determined that states could not protect inventions that were not to be protected at the federal level.

          Such concepts would be totally alien to our founding fathers who simply assumed that states could grant patents for inventions and that they would continue to do so. Indeed, trade secret protection is very much like patent protection, but relies instead upon breach of trust or confidentiality theories instead of simply innocent infringement by third parties.

          I put down the preemption case the liberals on the court who where intent on preserving federal power versus state rights.

  7. So it is not necessarily a surprise, then, that AG Sessions is on board with the constitutionality of IPRs. Of course, AG Sessions’ views do not make the statute either constitutional or unconstitutional, but it is worthwhile to know his views all the same. Thanks for finding that.

    1. Bother. Once again I failed to click the proper “reply” link. This was intended as a response to 1.3.2 below.

  8. This was driven by the USPTO, it tracks their position since MCM. It is also identical to the position in Security People filed by the USPTO three days prior to the Oil States brief. Make no mistake, the Obama/Lee/Google holdovers kept Trump and AG Sessions on the dark on this. They took a very aggressive line here against the Patent Act, against the Supreme Court, against the status of its only product, and against its customers. Agitating for a novel theory that turns patents into another bargaining chip for crony capitalists. President Trump, please clean this house.

    1. IR – it’s no surprise that Lee took this position. It was expected. It will be interesting to see how SCOTUS responds (now with Gorsuch) to a response by the USPTO that goes against SCOTUS precedent (patents are private property rights). Wilbur Ross needs to appoint a reasonable, non-Google-shill, director to right the ship (currently sinking).

      1. Lol.

        The worlds biggest losers. Never give up! Keep trying to turn back the clock and hope that nobody is paying attention.

        Lololol.

        We’re all watching the maximalists very closely, of course. Children need to be monitored after all.

        1. What’s funny (many, many LOLs) is that you don’t see the irony in calling others, who engage in civilized discourse, children. We get it, you don’t like patents.

          1. IPdude,

            MOST all of Malcolm’s posts are non-substantive ad hominem laden rants steeped in irony.

            That is the “ecosystem” of eleven years of Malcolm.

          2. Because accusing the PTO director of being “a reasonable, non-Google-shill” is the height of civility.

            Try to believe it, folks. Like I said: you guys are so famously st-00 pit that you can’t even control the cr@p that comes out of your own mouths for ten seconds. You’re hypocrites. The worst.

            1. Like I said: you guys are so famously st-00 pit that you can’t even control the cr@p that comes out of your own mouths for ten seconds. You’re hypocrites. The worst.

              There you go again, Accuse Other Of That Which Malcolm Is.

            2. MM, are you serious? It is a fact that Lee was an associate general counsel at Google AND, more importantly, she has invalidated 40% of patents SHE has issued after she supposedly “improved” patent quality. She is anti-software patent because Google is anti-software patent. Google successfully lobbied Obama to appoint her and she now runs a kangaroo court that benefits her former (current) employer. The stats don’t lie…but you do. Engage in all the ad hominems you want, the facts are not on your side.

              1. Again, the fact that you recite this ridiculous stale script and expect people to take you seriously demonstrates just one thing: you’re an ign 0 rant cl 0wn.

                But we knew that already.

                Everbody knows it. The relentlessly whining shills who want to patent everything and want everything to be easier to enforce are some of the very worst attonerneys and definitely among the worst b 0tt0m feeders in the legal profession. And you guys all congregate at the IP Puppyd0g site and cry yourself a new river every other day.

                The rest of us just laugh.

                Please please get a li fe already. You aren’t going to succeed in turning the clock back to pre-KSR State Street. Grow up already. We all know those were your glory days. It’s over. Give it a rest.

                1. MM – Stale script? The stats on Lee invalidating 40% of patents SHE has issued was just released. Didn’t think you’d want to touch that.

        2. Your self appointed role as watchers over the fields of rye is noted.

          Is that “we” you and your army of sockpuppets that were the worst thing ever except when you use them?

        3. “We’re all watching the maximalists very closely, of course. Children need to be monitored after all.”

          You and other globalists? Or you and other nannystatists?

      2. patents are private property rights.

        Very true. Of course, nothing about the IPR schema changes patents into anything less than private property, so I am not sure why we might expect Justice Gorsuch—or any other Justice—to take exception to IPRs.

        1. Greg, consider private property rights in China where land is taken from the local farmer for the benefit of the community (local party bosses). link to articles.latimes.com And who gets to judge whether this is legal or whether any compensation is adequate? Well nobody – that is right, nobody. Why, because in China, farmland is community, read the public, property.

          And even if they had some formal mechanism for awarding compensation, would you trust the local government committee that is in charge of financing the government by selling land farmland to be a judge on how much compensation you should get?

          While the procedures involved might seem fair, the whole system is rigged because there is no clear recognition that the land of the farmers is his property, or that the court hearing the issue of compensation be truly independent.

          There is endless discussion of corruption in China precisely because there is no clear demarcation of property rights, or whether there is truly access to an independent judiciary. There is neither. The system smacks of unfairness because of lack of clear rights, and a lack of an independent judiciary.

          But that is the system you advocate for the United States, Greg, when you declare private property to be public rights that can be revoked by a political organization acting for political purposes. There may seem a veneer of due process, but that is all you get. Show.

            1. It is true. My firm handles many IPRs. Before that, we handed a fair number of inter partes reexams.

              If one is to adopt the maxim on this board that a speaker’s position is to be disregarded irrespective of its merits if the speaker’s self interest aligns with the position adopted, there will be rather little to be said around these parts.

              1. Well for one, Greg, I trust you to speak your mind here not only when it aligns with the interests of “Oblon, Unified,” but when it does not as well.

                That same trust is not something that I would give to Ned Heller (for example), as he has steadfastly refused to carry conversations to their logical ends. He even makes things up like looking at his Outlook log, and not reading posts made by me (and yet, note how often he will initially engage in direct response to me – it does not add up for him).

                Secondly, I do not disregard the content of what anyone has to say here – even that content from known shills.

                To disregard is to miss some very meaningful opportunities to take the shills to the woodshed!

                1. Maybe I “feed the tr011s” because I like to wreck their arguments.

                  Even “Tr011s” shouldbe allowed to state their case, anony.

                  It is behavior post-case that should be the greater concern.

                2. “anon” Maybe I “feed the tr011s” because I like to wreck their arguments.

                  LOLOLOLOLOL

                  Oh, there’s definitely some “wreckage” to be seen around you, “anon.”

                  LOL

          1. Hm, I suppose I find the comparison between Chinese land confiscations and the PTAB to be rather strained. The PTAB, in my experience, functions more or less like one would expect at U.S. court to function. If you really think that the PTAB is acting with the sort of arbitrary disregard of rights that one expect from (e.g.) the Seven Gorges Dam authorities, it seems to me that one should be able to point to a plethora of PTAB decisions where the outcome is absurdly and appallingly wrong. That is to say, if the PTAB is as reckless in its disregard of law as you say, there should be many IPRs (not just one or two, but something in excess of ~2% of the total outcomes) where everyone of us (or nearly all of us) might look at the outcome and say “they thought this claim was made obvious by that art?!?” or “they thought that this reference anticipated that claim?!?”.

            Can you point me to a selection of such outcomes?

            1. The PTAB, in my experience, functions more or less like one would expect at U.S. court to function.

              That is focusing on the wrong question.

              I have shared this with Ned in the past (explicitly) – let’s see if he can learn a lesson yet….

    2. Lee… kept Trump and AG Sessions on the dark on this.

      I doubt that she had to try very hard. I know that this seems deeply counterintuitive to the kind of folks who frequent this forum, but most of the country does not care about patents. I would be shocked to hear Pres. Trump explain the difference between a patent and a trademark in a manner that suggests that he understands the difference, and I would not be surprised if AG Sessions does not understand the difference either. This just is not a big enough deal to the administration to care one way or another.

      In other words, Undersecretary Lee did not have to hide anything. The administration simply did not care to look.

      1. Likely true, Greg. But shouldn’t Wilbur Ross have taken notice? Patents are not a mainstream issue, but they will have a mainstream impact when small business is wiped out in the United States.

      2. Greg, it is a dramatic reversal on every account. The USPTO was handed an illegal weapon by Congress and they set to work modding it for more lethality and are firing recklessly on on what? – Patents!

        You are correct there is a conundrum, but I am not the one bound by §261 that requires that patents have the attributes of personal property, I have not taken an opposite position for 120 years prior to MCM, nor does my website say that patents are property rights. The USPTO thinks up is down and black is white.

        You should not be defending this blatant grab for power that has only served to corrupt the agency and destroy the integrity of its one product. That they are fighting so doggedly for the power to destroy their own work is the paradox.

        1. I am not the one bound by §261 that requires that patents have the attributes of personal property…

          For the record, §261 says that “[s]ubject to the provisions of this title, patents shall have the attributes of personal property.” §314 is a “provision[] of this title,” so there is no contradiction between IPRs and the statutory assertion of patents as personalty.

          1. Greg,

            Please stop pretending that you are unaware of the limitations even on Congress to write laws affecting things such as property that have inured other Constitutional protections.

            Your blanket statement to the contrary paints you as being deceptive, and you should know better.

            1. I cannot imagine what you mean when you speak of “pretending that [I am] not aware” of the constitutional limits” on what Congress can do vis-à-vis patents. How many times on these boards have I cited McClurg v. Kingsland, 42 U.S. 202, 206 (1843) (“[T]he powers of Congress to legislate upon the subject of patents is plenary… [T]here can be no limitation of their right to modify them at their pleasure, so that they do not take away the rights of property in existing patents, emphasis added).

              I am definitely aware that Congress cannot take away the right of property in existing patents. I am not sure what might give you to suppose that I held any opinion to the contrary. On the point we are in emphatic agreement.

        2. You should not be defending this blatant grab for power that has only served to corrupt the agency and destroy the integrity of its one product.

          LOL

          You guys are hilarious.

    3. They took a very aggressive line here against the Patent Act…

      By defending the constitutionality of the patent statutes currently in force, they took an aggressive line against the Patent Act?!?

      Gracious. Black really is white, and night is day now, and we have always been at war with Eastasia…

      1. In response to 6.3 and 6.2.2.1:

        §261 – “Subject to the provisions of this title, patents shall have the attributes of personal property.”

        Supreme Court 1882 to 2015 – “[a patent] confers upon the patentee an exclusive property”

        Security People (USPTO) – “Patents are quintessential public rights.”

        Oil States (DoJ) – “Patent rights are public rights.”

        The Patent Act does not say that patents are public rights. The Patent Act does say that patents are property rights. You and the USPTO management are too smart by half, and the Trump DoJ has been snookered.

        1. I did hear today that Trump is thinking about clearing house because of lack of performance — this soon. Both Ross and Sessions are said to be on the short list.

          Let’s hope.

          1. I think the lack of performance starts at the top. He can replace anyone he wants to replace, the performance won’t change when the reasons for any action change daily. When everyone says “We did this because of A”, then he goes on TV to say “I did this because of B” (where B is completely different from A), it’s not the people at the bottom or in the middle that are to blame

        2. The Patent Act does not say that patents are public rights.

          True, but then no statute designates any right as a “public right,” even rights that everyone acknowledges to be public rights. In fact, the only instances of the words “public rights” in the US Code concern references to public rights-of-way or rights-of-transit.”

          In other words, the mere absence of the words “public rights” in the Patent Act is rather an irrelevant fact. If it were necessary for a statute to designate something as a public right in order for it to be a public right, then there would be no such thing as “public rights” jurisprudence.

          1. C’mon Greg. You (and the USPTO management) want to ignore the explicit words of the statute in order to shoehorn the PTAB into public rights doctrine. If Congress intended to fundamentally change the character of patents, they would have eliminated §261 and ceased calling them patents.

            If the AIA was a Trojan Horse to turn patents into a “public regulatory scheme”, the plot has been discovered. Endlessly chanting “public rights” is yielding diminishing returns.

    1. We don’t come here for politics.

      While that certainly is not in this site’s byline, the apparent reality is quite different.

      (my pointing this out should not be viewed as an endorsement of the muckery, by the by)

      1. Because it’s so uncivil to refer to an authoritarian narcissist’s incompetent administration as a “regime”. Unfair! Unfair!

        Grow up already you silly infant.

        1. You are replying to the wrong person, Malcolm, as I said nothing about the word “regime.”

          Maybe instead of jumping before you look, you open your eyes and understand what my comment means first….

          Just a thought.

    2. ID: Sorry, is there something controversial about calling the change-over from the Obama DOJ to Trump DOJ a “regime change.” My underlying point from that line is that DOJ is going in new directions on many non-patent issues, but appears to be toeing the same line for patents as did Obama’s team.

      1. According to Google, “Regime Change” means “the replacement of one administration or government by another, especially by means of military force.” While I’m certain that the phrase has been used before to mean only the literal changing over of a government, I’ve only ever seen it used in the sense described by Google. And a cursory search of news articles using the phrase indicates that it is used nearly 100% of the time to indicate either literal or metaphorical use of force.

        I rarely read the comments here, because the S/R ratio is too often immeasurably low. I understood the point you were making, but responded, perhaps hastily, to what I perceived as politics boiling over into the content.

      1. Malcolm, the site’s biggest crybaby (which goes along with is self-appointed role as watcher over the fields of rye) is crying about someone else crying, and accuses them of being what Malcolm is.

        The irony is stultifying.

  9. Dennis :

    “That brief has now been by the new acting Solicitor General Jeff Wall who handled a number of patent cases in private practice.”

    I rise to suggest the absence of a verb; “submitted” or “filed” perhaps?

  10. As I have pointed out in dialogue with Ned, asking the right questions is critical.

    These are the questions that the Government is asking:

    1. Whether inter partes review comports with Article III and the Seventh Amendment.

    2. Whether the Patent Trial and Appeal Board properly denied petitioner’s motion to amend its patent during the inter partes review.

    3. Whether the Patent Trial and Appeal Board correctly cancelled the disputed patent claims as anticipated by the prior art.

    These are not the right questions.

    1. Here are two follow-up questions:

      (1) If those questions are not the “right” questions, does that mean that you believe the AIA to be constitutionally supportable along the separation-of-powers and VII-amendment dimensions?

      (2) If not, then in what sense are these the “wrong” questions?

      1. 2) first: asking the wrong questions has to do with avoiding the hard-core underlying questions and issues (for example, our discussions on public right versus private property)

        1) asking the wrong questions is “wrong” precisely because those questions disassociate what one wants from the court in regards to those hard-core questions that are NOT being asked.

        As such, the questions avoid the connection that you seek to imply here. The answers being sought from the court can be supplied without touching on the items you mention.

        And in a direct answer, one cannot ascertain what one believes based on the questions of the government (you just don’t get those answers from those questions).

        1. Lol – not quite.

          Ned, I have answered this many times now – both directly to you, as well as laying out a rather detailed explanation and foundation.

          Your asking here makes me think that you are either a f00l or a scoundrel.

          Which is it?

          1. A third possibility, of course, is that Ned has other things in his life more important that PatentlyO discussions, and he did not remember the great First-You-Arguing-A-Takings-At-Institution & Then-the-Whole-AIA-Titanic-Crashes two-step theory.

            1. Greg, there is a forth possibility that involves anon alone. I generally just scan the list of posts in Outlook, and read the ones not posted by anon.

              1. We both know that that is B$, Ned, given as that you occasionally start dialogues and only disappear when the narrative becomes inconvenient for you.

  11. As a very active President with lots of things happening, it is not possible for my surrogates to stand at podium with perfect accuracy!.

    From the mouth of the diaper-soiling man-child the Republican Party chose as their candidate for President.

  12. I didn’t support HRC or Bernie, and Trump’s election did not cause me to lose sleep, give me PTSD, or contemplate for even one second a move to Canada, as it apparently has done to some people, so I say the following merely as someone who’s observed this administration for a few months: I don’t think the Trump administration knows its right hand from its left in most matters, including patents, so its position in this case isn’t surprising.

    1. To oppose the AIA on the silly and arcane grounds that are being cooked up by the eternal whiners in the patent maximalist crowd you’d have to actually get drunk on the patent kool-aid and care more than quite a bit about the fee-fees of those whiners.

      The Trump Administration has other priorities. The patent system may be the one aspect of the government that they don’t disgrace with their incredible incompetence.

      1. Let’s look at the errant ad hominem flow:

        Against those that are pro-patent:
        silly
        arcane
        cooked up
        eternal whiners
        patent maximalist crowd
        drunk on the patent Kool-Aid
        fee-fees
        whiners

        Against republicans:
        disgrace
        incredible incompetence

        Malcolm truly is the Trump of this site.

          1. You got it, Patent Bob.

            I have long remarked that Malcolm needs to find himself a different profession, one in which he could believe in the work product produced, as the signs of the cognitive dissonance are readily apparent (and pervasive) in the blight that passes as his “contributions.”

        1. Enjoying that swagger, Ned (let’s not forget what Malcolm thinks of your political views before you “somewhat agree”.

    2. Just thinking.

      If the decision were Trump’s, he would probably change directions given that the administration appears to be anti-administrative state.

      But he delegated to Sessions, and Sessions was a Senator when the AIA was passed. It may be Sessions who made the call here, only to defend what he had previously voted for. (I actually do not know if he voted in favor of the AIA.)

      Next, Sessions may be way too busy to oversee all the positions of the SG, leaving everything on autopilot until the chaos of of the new administration subsides.

      The SG, left to his own devices, probably would tend to not change positions on IPRs unless he was convinced by some argument that their position was really wrong.

      This is like trying to get the Titanic to change directions. It will take a sustained effort.

      1. This seems right to me. I do not pretend to any sort of inside knowledge about what the administration thinks on this subject, but my guess just from watching Pres. Trump is that the answer to “what does he think about patents?” is “nothing.” I doubt that he cares one way or the other, so in the absence of an actual preference by the administration higher-ups, the SG’s brief just continues supporting IPRs as it ever has, simply by force of administrative inertia.

        1. the SG’s brief just continues supporting IPRs as it ever has, simply by force of administrative inertia.

          LOL

          Maybe they also took five seconds of looking into the arguments and decided that IPRs were plainly Constitutional and nothing was to be gained by coming up with some silly argument to the contrary.

          That’s not “inertia”. That’s called “doing your job.” Trump didn’t replace the attorneys who are savvy about IP with know-nothings eager to tickle the fat bellies of the patent maximalist crowd. Gene Quinn cries himself to sleep every night about this.

        2. Thinking of the Constitutional “separation of powers” and the three pillars of “Government”, and the blurring that I see since Mr Trump took office, I am curious how the Office of the President is accommodated within that separation.

          In other words, Greg, to quote you here, how much does it matter:

          “what does he think about patents?”

          A lot, or a little, or not at all?

          Personally, I think The Donald is incapable of thinking in any other way than as the head of a corporate body, a body which strives at all times to minimise the constraints the law has on him.

          One of the reasons we need “The Rule of Law” is to restrain powerful corporations, inherently sociopathic, from doing exactly what they please, regardless who they hurt and have zero interest in “the general welfare”. Indeed, as we see in the UK, with BREXIT, money can be made more easily by destroying the general welfare.

          Is Mr Trump now deciding what the law is? Or what?

          1. Max, not just corporations. But anyone with power, but most of all the King or the president, or anyone who wields government power.

            The primary reason for Brexit was the common man’s reaction to the somewhat systematic abuse of power by the EU Kings, aka, bureaucrats.

                1. Yes Ned, immigrants. But if you are a publisher, best perhaps not to go there? Perhaps it is better for business to bash the bureaucrats in Brussels than invite readers to consider something unpleasant. After all, if they don’t like what they read in your organ they will stop buying it won’t they?

                  Every politician throughout every State of the EU finds it useful to tell their voters that everything they are trying to do for them locally is frustrated by the EU “bureaucrats in Brussels”. Many of the voters know no better than to fall for it. Media organs repeat the lie: they do it to gain more readers. Just business.

          2. Thinking of the Constitutional “separation of powers” and the three pillars of “Government”, and the blurring that I see since Mr Trump took office,

            An odd comment, given that no matter how ineffective Trump has been, none of his actions have actually affected any three pillars- separation of powers issues.

            What is it that you think that you have seen that indicates otherwise?

            1. When the FBI is investigating the business associates of The President and the response of the President is to secretly tape the head of the FBI, when asking him to stop those investigations; and when he doesn’t stop, to fire him; that looks to me like the precious separation of powers getting blurred. The man in the White House is utterly incorrigible, utterly shameless.

              But exactly that is what makes him so attractive, I suppose, to his base. Minds are made up on a first impression. In these days of online democracy, voters are taught that there are no objective facts, and in consequence exhibit an ever shorter attention span. Besides, internet manipulation of elections is an ever more serious problem, so the legitimacy of the current holder of the office of President is an issue that is only going to get hotter.

              But now I come to think of it, in these new and “interesting” times in which democracies find themselves, the man is performing a valuable public service, but only to the extent that his actions are vividly revealing serious deficiencies in The Constitution, are everybody needs to be aware of, and urgently discuss.

              Otherwise, the days of democracy and the Rule of Law (and the separation of powers) are numbered.

              1. “When the FBI is investigating the business associates of The President and the response of the President is to secretly tape the head of the FBI, when asking him to stop those investigations; and when he doesn’t stop, to fire him; that looks to me like the precious separation of powers getting blurred.”

                I’m not sure what news you’ve been reading but that is conspiracy theory levels of crazy and didn’t actually happen Max.

                “Besides, internet manipulation of elections is an ever more serious problem,”

                Worried about the dread right wing getting its message out to precious snow flakes?

                “But now I come to think of it, in these new and “interesting” times in which democracies find themselves, the man is performing a valuable public service, but only to the extent that his actions are vividly revealing serious deficiencies in The Constitution, are everybody needs to be aware of, and urgently discuss.”

                If by that you mean that the “hur dur societal suicide pact” that liberals and lefties think the Constitution is, then yes, he’s exposed some of that.

            2. o
              n
              c
              e

              m
              o
              r
              e

              g
              i
              v
              e
              n

              t
              h
              e

              s
              i
              l
              l
              y

              f
              i
              l
              t
              e
              r

              “ that looks to me like the precious separation of powers getting blurred. ”

              You need to open your eyes then and understand what separation of powers means – before you rant on about it.

              Trump firing someone can only happen within the silo of the Executive branch and involves NO crossover to another branch that would invoke a separation of powers issue.

              Your rants may have half truths about Trump, but remain rants all the same.

              As to “his actions are vividly revealing serious deficiencies in The Constitution” once again you sling
              C
              R
              P
              against the wall to see what sticks.

              What explicit deficiency in the Constitution are you referring to?

              Try please to bring some understanding of what you are trying to sling before you merely sling away to see what sticks. The topic of your attempts is fet1d enough, but then you double down with your choice of not caring in the least on the legal aspects makes the stench all the more unbearable.

      2. Regarding AG Jeff Sessions, he seems to have actively involved in the passage of the AIA.

        The USPTO have a page of resources relating to the AIA here:

        link to uspto.gov

        See a opening of a speech, from the Congressional Record – Senate – March 7, 2011 (S1325):

        “Mr. SESSIONS. Mr. President, I rise today to speak in support of S. 23, which largely reflects the agreement on patent-reform legislation that Senator LEAHY and I announced last year.”

        There are other speeches by then Senator Sessions to be found. on the USPTO Resources page.

Comments are closed.