by Dennis Crouch
In an earlier post, I commented on what I suggested was an error by Professor Oren Bracha in his SJD Thesis Owning Ideas: A History of Anglo-American Intellectual Property. On further reflection – Bracha was not wrong, but exactly correct.
Bracha’s work cited a 1904 treatise on English Patent Law as stating that “revocation clauses authorizing the Privy Council to revoke patents were continued to be inserted in the patent grants up to 1902.” Although the 1904 treatise itself is somewhat cryptic, the 1852 patent law sets out a “statutory form” for a patent right that includes the caveat for the privy counsel (or the queen herself) to void the patent if it turns out it was improperly issued or becomes “prejudicial or inconvenient.” The form indicates the following statement should be included with each patent grant:
Provided always, and these Our Letters Patent are and shall be upon this Condition, that if at any Time during the said Term hereby granted it shall be made appear to Us, Our Heirs or Successors, or any Six or more of Our or their Privy Council, that this Our Grant is contrary to Law, or prejudicial or inconvenient to Our subjects in general, or that the said Invention is not a new Invention as to the public Use and Exercise thereof, or that the said is not the true and first Inventor thereof within this Realm as aforesaid, these Our Letters Patent shall forthwith cease, determine, and be utterly void to all Intents and Purposes, anything herein before contained to the contrary thereof in anywise notwithstanding.
Patent Law Amendment Act of 1852 [PL Amendment Act (1852)].
The historic point here – although the it did not actually revoke any patents after 1779 — the privy council seemingly held that power up until at least 1902.
I only had a chance to look through one English patent issued during this time period – the 1896 Marconi patent. The patent does include the caveat that permits the Privy Council to void the patent – following the form language almost identically.
Thank you to Professors John Golden and Oren Bracha for providing copies of these historic references and pointing out my error.
= = =
Applying it to Oil States: When the US was formed, we rejected the notion of royalty and the surrounding apparatus (including a privy council). So, in my view, there is not a direct line of reasoning that somehow transfers the privy council power to the PTO or even to Congress to distribute as it wishes. Rather, the way that I think about the privy council issue in relation to Oil States is to focus on the question of whether administrative revocation somehow offends our American court structure and its place within the federal government. I can imagine the Supreme Court writing something along the lines of: “Even in England, at the heyday of common law courts, patents could be administratively cancelled upon private petition.” Under this interpretation privy council supports the PTO’s power to revoke.
There is a flip-side argument here that might support Oil State’s position. The argument involves the manner in which the Privy Council (and Queen’s) power to cancel was created for each patent by expressly including the power as an express caveat to each patent grant. In the US, these sorts of caveats were never included within the patent grant (as far as I’m aware), and certainly were not included within pre-AIA patents being cancelled via Inter Partes Review.
= = =
One further note for those delving into history: I mentioned Bracha’s Thesis work Owning Ideas: A History of Anglo-American Intellectual Property. Bracha has a much more recent book: Owning Ideas: The Intellectual Origins of American Intellectual Property, 1790–1909 (Cambridge Press 2016) that focuses on development of American law.
Note that Prof. H. Tomás Gómez-Arostegui, on his website here
link to law.lclark.edu
(redirected from http://www.oldcopyrights.org), has made available images of Arkwright’s patent of 1775 (that was the subject of celebrated litigation). The patent document is available as a PDF on that website here:
link to law.lclark.edu
The caveat regarding the Privy Council is to be found on the 3rd page of the PDF, from roughly 1/4 of the way down the page to 1/2 the way down.
Correction: redirected from http://www.oldcopyrightcases.org
Previously, I quoted the text of the Privy Council provision from the boilerplate text in John Davies. Another source is John Dyer Collier “An Essay on the Law of Patents for New Inventions” (1803), available as a free EBook on Google Books here:
link to books.google.co.uk
The standard provision (or caveat) regarding revocability by the Privy Council is to be found in the standard form for patents quoted on page 58 of John Dyer Collier’s treatise.
(This is in fact where I first found it, and subsequently saw it again in John Davies’s treatise.)
===
With regard to possibilities of amendment, the words of the Lord Chancellor in Ex Parte Koops (or Hoops) would seem to imply that (at least in the absence of an explicit provision in the patent grant allowing for revocation), the Lord Chancellor at least, and presumably the King and his other advisors, were powerless themselves to amend the patent grant once the patent has “passed the seal”, and that an Act of Parliament would be needed for such amendments.
In the U.S. context, an Act of Congress amended the terms of the patent grant to Oliver Evans, reviving the patent three years after it had first expired.
===
Also it seems there are Acts of Parliament going back to Edward I which regulate the issuance of letters patent (in general, not merely patents for inventions). Information about some of these is to be found in John Dyer Collier’s treatise.
I am not so sure that the same context is in play with the
“In the U.S. context, an Act of Congress amended the terms of the patent grant to Oliver Evans, reviving the patent three years after it had first expired.”
That context is a bit different – see also Golan v Holder link to supremecourt.gov
Distant, check out the proceedings regarding the Mansell patent. When Coke reported that Mansell had not invented furnaces for making glass, but only the use of sea coal for the purpose, the patent was reissued with a narrowed grant.
Guys I have a question about claim construction in view of linguistics and linguistic analysis methodologies.
I have recently been reading some into the nonsensical tripe dribbled forth by “intellectuals” in the 20th century regarding structuralism, post-structuralism, deconstructionistalism etc. While I have not gotten all that far into the details, I’m concerned today about what effects that people think such isms have had on the interpretation, and the continuing interpretation on a day to day basis, of patent claims in the past or future.
So my question to you guys is, in light of the knowledge that we all know that we’re to be interpretatin’ upon claims from the viewpoint of the person of ordinary skill in the art, are we supposed to be taking any special linguistical analysis methodology/philosophy into special account, and if so to what extent? Also, do you guys think that these different linguistical methodological derived interpretations might have been causing claim construction differences between different parties in specific cases? Finally, should if the field of patents has not yet done so, should we not try to pull the linquistical methodology together for uniformity so as to limit dispute and claim drafting snafus etc.?
It depends.
The part I liked best was “or inconvenient to our subjects”.
How much is a junk claim worth after it’s tanked by the PTO?
How much of that hideous green creature’s brain is junk? My guess is about 98% of MM’s brain is junk. The other 2% keeps him typing like a bab00n. Eventually he will type out an intelligible comment. Meanwhile, his employer continues to pay him to disrupt this blog.
In the US, these sorts of caveats were never included within the patent grant (as far as I’m aware), and certainly were not included within pre-AIA patents being cancelled via Inter Partes Review.
What does “included within the patent grant” mean exactly?
The patent statute — wherein Congress defines the terms by which a “patent right” may be granted and invalidated — has provided for some form of post-grant review between parties and agency cancellation of claims (and more) for a long, long, long time.
Do all the “caveats” and conditions associated with a patent grant need to appear on the face of the patent or else they are void? I’m not sure about the premises of the argument you’re making here in the quote above. I am sure it’s not terribly compelling …
The key issue here is whether pre-AIA patents should be subject to IPR. The best argument is that, yes, of course they should be because IPRs provide just as much (if not more) due process to patentees as the pre-AIA inter parte proceedings did.
“ just as much (if not more)”
Except for the items already shared with you…
Round and round we go….
Pre-AIA patents were subject to revocation following inter partes re-exam.
with other safeguards.
we’ve been over this – please keep up.
with other safeguards.
No idea what you’re referring to.
we’ve been over this >
Calm down, Billy. We’re not all super geniuses with perfect memories like you. Learn how to type out your arguments in English. Keep practicing and someday you’ll figure it out.
LOLOLOL
Anon and Greg could teach PhD level courses on how not to write.
Ouch!
Also unconstitutional.
LOL
No, LOLOL
Pre-AIA patents were subject to revocation following inter partes re-exam.
This is a good argument, but not a dead certain clincher. As Ned points out, the loser in an inter partes reexam had a right of appeal not only to the CAFC, but also to the DDC (later the ED Va). In other words, if you did not like how you were treated by an administrative agency, you could have a do-over of the whole affair in an Art. III court. IPRs, by contrast, only have a right of appeal to the CAFC. This means that you can get review on issues of law, but not on findings of fact. By contrast, the inter partes reexam appellant could relitigate both adverse legal holdings and adverse fact findings in the ED Va.
This is a non-trivial difference between the two processes.
What if Congress had added the possibility for a party dissatisfied with an AIA review decision to file in a District Court, with the cost being paid by the plaintiff (like in 35 U.S.C § 145)? Would this discussion have been avoided? I think so.
Sure, the more one makes the IPR proceeding like a district court proceeding, the less objectionable it becomes to those who dislike IPRs. By making the whole thing appealable to a district court, one makes the IPR (in effect) exactly like a district court proceeding.
To my mind, however, this also largely vitiates the purpose of IPRs. IPRs are supposed to be a (1) faster and (2) less expensive alternative to litigating validity in an infringement trial. If you make it possible to appeal an adverse IPR verdict to a district court, then you (1) make the whole process take longer (likely longer even than it would have taken simply to try the §102/§103 issues in the infringement trial) and (2) add an extra chunk of expense (once again, likely more expensive even it would have been simply to leave the §102/§103 issues to the infringement court). In such a case, why even bother to have IPRs?
If, as in 35 usc 145, you make the plaintiff pay for the district court proceedings, you make the process less expensive for the defendant. I suspect that the patent owner would appeal to the federal circuit instead. But, the patent owner would still have the right to a jury duty, if they pay for it.
That is a fair point. It does not speak to the delay, but you are right that this would at least remedy the cost objection that I was making.
Readers, a propos the Privy Council discretion, if you would enjoy a good example of how a patent can be “inconvenient” to the public and therefore deserve expungement from the Register of issued patents, see this:
link to ipkitten.blogspot.de
from the IPKat blog today. Nice coincidence of blog items, I thought.
Dennis, to be sure, after 1753 the privy Council never again revoked a patent for invalidity.
The 1779 revocation was for national security purposes. The patent owner was playing games with the system – they had obtained an injunction but then refused to follow up with an action at law that the validity of the patent might be tested. After 4 years of waiting, and on the finding that the patent was adversely affecting the supply of cannons in the war against the American colonists, the privy Council had to act.
One also has to consider that if there was fraud, the courts of equity could order the patent revoked. Atty. Gen. v. Vernon, cited by United States v. American Bell (1888) as authority. (I have some issue with this holding by the Supreme Court.)
The reason for revocation is of paramount importance. An IPR revokes for invalidity, not for fraud or for national security.
Also consider that a statute (the Statute of Monopolies) provided that only the common law courts could void monopoly patents. Vernon obviously was an exception. So was the issue of national security.
On the issue of national security – falls squarely within the public rights exception.
Excellent point. The lawyer for Oil States will make that point.
[A]fter 1753 the privy Council never again revoked a patent for invalidity.
Why is the actual practice significant? It seems clear as day that the executive could revoke patents for invalidity. The words are printed right there on each patent in black-&-white. Evidently the executive chose not to do so, but the mere fact that the executive had that power indicates that the location of such a power in the executive branch is not offensive to the common-law tradition.
If the notion of the King or the Privy Counsel still exists in US law – It is found in the Claims Court and the 5th Amendment takings clause. In other words, you can’t enjoin the sovereign – because the sovereign has de facto march in rights to the claims of ANY US patent, but you can seek compensation in the Court of Claims. Indeed, I believe this was the power Congress used in WWII to create the mandatory Radio and RADAR license pools. Anyways, it’s much more in harmony with the property rights model of the Constitution. To have a property subject to ‘by your leave’ to the King is exactly what we have with PTAB and exactly what our framework prohibits.
Helpful.
Interestingly, obviousness is not a particular ground for revocation. That is the bulk of IPR cancellations.
What did “contrary to law” mean at the time? Would that have encompassed our hindsight pieced-together PTO reconsiderations of the same or cumulative prior art? The PTO simply changing it’s mind?
I believe the whole PTAB thing is capricious and distinguishable from this arcane legal history which made a lot more sense.
Your sense of the other side erecting strawman and pursuing red herrings is quite accurate. They been doing that since Patlex.
As to the other grounds, prior to 1791, the most prominent reason for finding a patent invalid was for an insufficient specification. What this meant, normally, was that it was insufficient to and enable a worker of ordinary skill in the art to make and use the invention. They had experts testifying in those days as well about the ability to make and use the invention. But they also had testimony from ordinary workers in the field.
The several reported cases involving Arkwright are worthy of reading.
This is not in response to the basic issue here. Merely in response to the often-repeated statement here: “The PTO simply changing it’s mind?” This implies that the same prior art was before the IPR panel that was before the examiner, which is almost never the case. That is primarily due to the vast differences in the prior art search efforts and expenditures of a company that is being sued for patent infringement, which is more than 80% of IPR petitioners.
Paul, and explain to us why it is so important that the PTO invalidated patents using a reduced standard and BRI? New prior art is not a new phenomena. Not at all. Very common even. Every single case has that issue. Every one. That does not mean that every patent is a bad patent.
[W]hy it is so important that the PTO invalidated patents using a reduced standard and BRI?
Paul can speak for himself, but I would like to chime in on this point, as a defender of IPRs. Neither of these points are important at all, to me. If there were some happy compromise to be obtained by modifying IPRs to use a clear-&-convincing standard and a Philips construction, I would jump with both feet to take that compromise.
To my mind the important aspects of IPRs are: (1) the one year time limit; (2) the limited discovery; (3) the fact that the issues are being decided in front of science-trained judges who think about patentability every day; and (4, this one is much less important than the other 3) the lack of a standing requirement. Every other aspect of IPRs is, to my mind, either dispensible (e.g., BRI) or actively pernicious (e.g., no judicial review of §315 bars).
In other words, just because one thinks that IPRs are a good idea on balance does not mean that one thinks that they are perfect in every way. They could be improved.
Ned, how come when I merely point out IPR practice statistics not being realistically represented, I get falsely accused of supporting positions on various statutory features of IPRs, one way or another? I consider it egotistical and pointless to comment about statutory language over which I [like almost all other commentators here] have no influence to change.
Paul, we both know that when a patent is asserted, tons of new prior art emerges. This is not a new phenomena.
But to argue that just because there is new art found (as it is found in every case), the patent must be haled back into the PTO for a reexamination, and that is what is going on with the lowered standard of proof and BRI, only means that the patent owner can never rely on his patent. So, what can we do to allow patents to be relied on? We need better examination.
May I be so bold as to suggest that one of the problems with current examination system is that patent attorneys always want to claim well beyond the disclosed invention using generic terms and functional claiming, and this has been a problem at least since claims and examinations were first introduced. When they do, they will inevitably increase the risk of reading on unknown art and simply giving their clients false hope.
So, there is a tradeoff between examination and revocation. The better examination, the more difficult the revocation. Actually, Tony Bracha made this argument in his tome – that the reason the English could afford no examination is because privy Council revocation was so easily obtained.
Just arguing that we need better examination though gets us nowhere unless we all can agree on what needs to be fixed in the examination process. But I would suggest perhaps we need a statute that frankly and expressly prohibits functional claiming. Thus, we might want to consider a simple repeal of § 112(f). This would effectively restore Halliburton.
[W]e might want to consider a simple repeal of § 112(f). This would effectively restore Halliburton.
Hm, I do not think that this is the best way forward. Haliburton did not take issue with all functional limitations, but rather with limitations that become functional “at the exact point of novelty.” Under Haliburton, such a claim is simply invalid. Under §112(f), such a claim might still be invalid (as per Haliburton), if the patentee does not disclose any actual structure meant to accomplish this claimed function. If the patentee does disclose such structure, however, then the “functional” term is magically transformed effectively into a structural term.
I think that the best way to solve problems involving functional limitations is to stop limiting §112(f) to claims that use the magic words “means” or “step.” Instead, treat all functional terms as §112(f) limitations, thus transforming the superficially functional effectively into structural terms.
Greg,
At least you seem to recognize that the law “according to Ned” (or, IMHO-Ned law) is NOT the law that we actually have.
You (apparently – and as noted previously) want to make the Jepson claim format mandatory.
Still waiting for you Ned to provide a meaningful reply to my question regarding Prof. Crouch’s coined term of Vast Middle Ground (distinguishing PURE functional claiming from claims that merely include terms sounding in function).
Your view of § 112(f) – and the supposed “answer” of its repeal does NOT reach claims using terms sounding in function.
“This implies that the same prior art was before the IPR panel that was before the examiner, which is almost never the case. That is primarily due to the vast differences in the prior art search efforts and expenditures of a company that is being sued for patent infringement…”
So then, can we assume you’d be OK with restricting IPRs to petitioners who 1) are being sued or at least threatened with suit, *and* 2) are citing art that was not previously considered?
See 3.2.1.2 above – what I might personally “Be OK with” or not is completely irrelevant.
But if Congress wanted to consider restricting IPR standing, there are a number of logical questions that others would ask. E.g., should Congress prevent IPRs to defend against patent suits against one’s customers? Would Congress want to prevent IPR challenges to drug patents that could save taxpayers billions of dollars? Or prevent IPRs by a trade association to defend numerous small members of that association who cannot afford IPRs individually? Etc.
I hope MM is happy, his muh not offending people has now started getting everyday items banned. How long till court room disputes are judged based on who has more victim points?
link to twitter.com
[T]he way that I think about the privy council issue in relation to Oil States is to focus on the question of whether administrative revocation somehow offends our American court structure and its place within the federal government… [T]his interpretation… supports the PTO’s power to revoke.
There is a flip-side argument here… In the US, these sorts of caveats were never included within the patent grant…
It seems to me that this speaks to the Art. III issue, and is all fine as far as it goes. I am not sure that these considerations have much to say on the VII amendment issue. On that point, however, I think that the privy council aspect makes things messy. One simply asks “was a jury necessary to cancel a granted patent?” The answer, is murky. One can say equally well: “yes, actions following a writ scire facias were necessarily tried to a jury unless there were no disputes of material fact”; and “no, the Privy Council could do so without a jury.”
This brings us back to my question on the other thread about what one does with a VII amendment case (in which the test is heavily dependent on historical facts), where the historical evidence is scant or equivocal. Does a tie go to a requirement for jury or a lack of requirement for jury?
Mercifully, in the case of Oil States, one need not decide the VII amendment issue on the basis of the historical test, because the “at least $20” precondition for VII amendment applicability is not met. The Court can decide the issue on that basis, without wading into the messy history.
From the guy that constantly “sees value” in a patent with ALL claims wiped out, and the IPR targets that very patent, somehow, you think that the $20 (de minimus) level is somehow not met?
Greg, when you have something in mind and disregard all sense of sensibility attempting to get there, you should pause and…
…wake the F up.
I agree. …wake the F up. It is tedious to engage with Greg. Obviously, you have an agenda Greg. It is real obvious.
It is tedious to engage with Greg.
My apologies. I confess that I have never found it tedious to engage with you, Mr. Writer. I will endeavor to be more scintillating, although if I have not succeeded at that task to date, it is unlikely that I will have much success in future.
Obviously, you have an agenda Greg. It is real obvious.
So do we all. I will grant, however, that my agendas are, perhaps, more transparent than some. I aim to be clear and transparent, and I gather from your response that I am succeeding in at least that effort.
Greg, we discussed this before. The Supreme Court specifically addressed the $20 issue in ex parte Wood & Brundage. You quoted from the case – but specifically left off the critical part, thus changing the whole meaning of the quote.
It is interesting to see Ned try to straighten people out when ole Ned spews so much smoke out of his arse when it comes to 101.
See Ned what you are feeling now, is what I feel like every time I have to deal with your 101 arguments. Trying to disentangle a disingenuous argument with someone that posts endlessly.
You quoted from the case – but specifically left off the critical part, thus changing the whole meaning of the quote.
I really do not see how the “critical” part changes anything about the meaning of the quoted portion or its relevance to the matter at issue. Justice Story’s opinion simply never engages with the $20 requirement, other than to mention it in offhand.
“Justice Story’s opinion simply never engages with the $20 requirement,”
I chuckle as you as well have not engaged with the $20 requirement (given how much you “value” patents with ALL claims eliminated).
On top of what “the issue” is with an IPR (the patent itself IS the target), you keep on making statements that are NOT providing clarity, because those statements simply do not engage all of the points put on the table (and put to you directly) for discussion.
It is one thing to be “cheeky” with the openness of having an agenda.
It is quite another to engage in that agenda with such selectiveness and a “claim” to be seeking clarity when your own selectiveness is instead (apparently) more of an act of obfuscation.
You may think that you are awake, but you are not.
You know, I went looking for jurisprudence on the $20 clause, and it turns out that there is none. No court has ever decided a case on the basis of the $20 clause. The only scholarship I could find on the subject at all was a note in a 2005 issue of the Harvard Law Review (118:1665). In other words, there is really no authority on point to say which of us is right in this dispute.
I will say, however, that the words “value in controversy” appear not only in the VII amendment, but also in the earliest statutes conferring diversity jurisdiction on federal courts (modern statutes say “amount in controversy,” but the act of 1890 said “value in controversy). I do not pretend to know a lot about this point, but perhaps someone else whose recollection of civ. pro. is a little fresher than my own will know the answer to this question: in assessing “amount in controversy” for diversity jurisdiction purposes, do you only look at the damages alleged, or are you also allowed to consider the expense that a defendant will encounter in complying with an injunction that is being sought?
That is to say, the relief requested in an IPR is that the PTO send a notice of correction listing a given claim as unpatentable. The patent owner is not expected to pay the costs incurred in producing this notice of correction, but I certainly concede that the receipt of that notice of correction can cost the patent owner in terms of lost business or lost value in the resale of the patent.
If the “amount in controversy” for diversity jurisdiction is limited to a summing up of the damages that the plaintiff wants awarded, then it would appear—by analogy between “amount in controversy” of diversity jurisdiction and “value in controversy” in the VII amendment—I am correct that the VII amendment does not apply to IPRs. If, on the other hand, the ascertainment of “amount in controversy” is allowed to take into account the trouble or expense that will result to a defendant from complying with an injunction, then it would appear that anon is correct and I am wrong.
Is anyone able to point to an authority that says whether one is or is not allowed to consider the trouble and expense of complying with an injunction when determining “amount in controversy”?
Wasn’t the underlying cause of action inEx parte Wood and Brundage a patent infringement suit?
NS II,
You are living up to your moniker, as I am not the one that is using that case as any type of example.
The current discussion is about IPRs and whether or not the focus of THAT matter meets the $20 de minimus required amount.
Clearly (I would hope that you see this), Greg views a patent with ALL claims nullified to be still of significant enough “value,” and yet would have it that the $20 de minimus is not met.
These are clearly incompatible views.
Greg views a patent with ALL claims nullified to be still of significant enough “value,” and yet would have it that the $20 de minimus is not met.
Why are these views “incompatible”?
A car with a stolen bag of cocaine in the glove compartment isn’t worth $20 less than the car without the cocaine.
Greg views a patent with ALL claims nullified to be still of significant enough “value,” and yet would have it that the $20 de minimus is not met.
What do you mean by “significant enough”? Whether a patent’s value is “significant enough” is a question that I could not possibly answer (“significant enough” to whom and for what purpose?), and entirely beside the point to any thesis that I am advancing.
A car with a stolen bag of cocaine in the glove compartment isn’t worth $20 less than the car without the cocaine.
At the risk of betraying my contemptible lack of wit, I confess that I do not understand this analogy at all.
“A car with a stolen bag of cocaine in the glove compartment isn’t worth $20 less than the car without the cocaine.”
Your attempted point is exceedingly unclear.
Pay attention – Greg at the same time postulates that a patent with all its claims nullified is worth enough to not raise a takings issue – at the same time that he postulates that an IPR case (focusing on the nullification of a patent) may not be worth more than that same $20.
Your car (with or without cocaine – a meaningless, dust kicking attribute) simply fails to address the incompatibility of worth, but somehow NOT being of the de minimus $20 worth.
That you even question this only shows that you are reacting to the names on the posts and NOT to the contents of the posts.
Wasn’t the underlying cause of action inEx parte Wood and Brundage a patent infringement suit?
I do not think so. Evidently the 1793 patent act included a weird provision (§10) that allowed someone to petition the court to completely repeal a patent on the grounds that it had been procured by fraud. It might be that the petitioner here had earlier been accused of infringement before we swore for the proceeding, but if so that was a wholly separate action. There was no issue of infringement vel non at stake in Wood & Brundage.
The fact that this technical privy council right lingered in England whereas it did not in the USA does nothing to support the Article 3 or Seventh Amendment arguments.
At this stage, either you get it or you don’t.
I agree,
Somehow people want to disregard the fact that we disdained royalty, to which the privy council is part and parcel.
It’s kinda like some people want to fight for separation of powers, except when the Judicial branch is placed above the Constitution.
Can you imagine!, anon, the Supreme Court citing, with favor, the exercise of royal prerogative to support IPR?
Who knows Ned. Could someone argue that royal [sovereign] power to both issue patents and withdraw defective patents is equivalent to a Constitutional Congressional sovereign power to do so?
Bad, as in disrupting the war effort against the colonies? Will the Supremes ever live that one down?
Sadly, I very much can (and with no small irony of you being one to point this out, given that you are one that often kneels to the “crown” of the Supreme Court, as if they were above the Constitution – not unlike Night Writer’s comment above reflecting upon your rather selective 101 positions).