Prof. Christopher Beauchamp has added further to the historical analysis relevant to the question of whether it the AIA-trials – trial-like administrative patent revocations – are Constitutionally proper. That question juxtaposes contemporary expansive administrative law against the Constitutional notion that “judicial power [rather than administrative power] shall extend to all cases” and the requirement that the 1791 right to a Jury Trial be preserved. Although a law professor, Beachamp is also a legal historian (Ph.D. in History from Cambridge University) and his his legal publications center on questions of legal history.
Beauchamp’s newest essay focuses on the first known patent case in U.S. history. Beauchamp writes:
The first known patent case in the United States courts did not enforce a patent. Instead, it sought to repeal one.
After reviewing a set of previously uncited archived decisions, Beauchamp concludes that
These sources suggest that the early statutory provisions for repealing patents were more widely used and more broadly construed than has hitherto been realized. They also show that some U.S. courts in the early Republic repealed patents in a summary process without a jury, until the Supreme Court halted the practice.
One of Beauchamp’s most interesting conclusions here is that the early (i.e., pre-Bill-of-Rights) revocation proceedings should probably be seen as creating a break from prior English tradition. Thus, for patent revocation, the focus should be on the jury right as contemplated by the repeal process found in Section 5 of the 1790 Patent Act, which allowed for any member of the public to seek cancellation. Unfortunately for clear resolution of the Oil States question, the original Patent Act is ambiguous as to whether the repeal should be tied to a jury trial.
There is much more to learn from this short (34 page) paper. [Download Here]
When NAL addressed me, and said XXX. It was not really stare decisis. It was coercion. So Ben the faxed lines on the OATH, were those documents the same you used from my fax to you in November of 2006 when I asked you to help me?
The hope communicates itself with respect to the Oath but your behavior transformed the paper. Having an oceanic view that calibrates the relation did not advance the instrument.
How irrelevant is this history given that at the time of this “first court case” Congress had not yet exercised its power — expressly granted to it by the Constitution — to create a patent “right” that is statutorily defined as a conditional right that is revokable by the granting agency upon a showing (and consistent with due process)?
Is it just a little irrelevant? Or totally irrelevant?
Even the progressive/liberal justices on the Court will find the history relevant. Perhaps not persuasive, but relevant nonetheless.
Your parenthetical of “(and consistent with due process)” is – and has been – a point that you do not carry.
You refuse to consider Takings law and the nature of a granted patent being a property right, which inures other Constitutional protections that not even the correct branch of the government (the legislative branch) is free to disregard.
It is entirely disingenuous to post as you do, given the counter points (repeatedly) presented.
Takings law
Remember, folks: “anon” has never ever been able to find a sufficiently sized n-ts@ck that would allow him to conclude publicly that a patent is invalid. He’s that afraid, and he’s that childish.
As a result, he’s simply incapable of understanding or acknowledging that when the PTO screws up and hands out “patent rights” to an undeserving applicant, everyone else’s “rights” have been “taken.” Where’s the compensation for everyone else? Where’s the “due process” for everyone else who — according to “anon” — is now obligated to live in the shadow of the junk patent? Heck, I can’t even listen to a transcript of an hour long “interview” between the Examiner and the applicant that somehow turns a rejection into an allowance.
But “anon” is really concerned about “due process” and “takings.” Sure he is! He’s not just a self-interested shill playing anti-democratic Constitutional games like his fellow Repu k k kes do every freaking day. Nope. Not him. He’s a very serious person!
Nice dissembling and attempts at goal post moving.
Maybe now you want to return to the point at hand?
How irrelevant is this history given that at the time of this “first court case” Congress had not yet exercised its power — expressly granted to by the Constitution — to create a patent “right” that is statutorily defined as a conditional right that is revokable by the granting agency upon a showing (and consistent with due process)?
Is it just a little irrelevant? Or totally irrelevant?
MM, when the issue was decided by the Supreme Court, they found these revocation statutes were like scire facias actions and that they had a right to a trial by jury.
Had Congress made it abundantly clear that they did not want to accord a trial by jury, the constitutionality of the statute would have had to be decided.
I don’t have time to read the paper but I trust Professor’s Crouch’s conclusion and quote from the paper that SCOTUS early on stopped the summary non-jury revocation proceedings.
Indeed, the leading advocate of summary disposition was Judge William P. Van Ness of New York, who seconded Burr in the duel against Hamilton. He said,
And, of course, he recognized the importance of a patent system to America, just like MM;
Citing: Thompson v. Haight, 23 F. Cas. 1040, 1041 (S.D.N.Y. 1826).
Wow, software patents even back then…
Who knew?
😉
What the article shows is that the Supreme Court decision in ex parte Wood & Brundage may be the most important patent law case prior to Pennock v. Dialogue, and highly relevant to the issues presented in Oil States. Of course, ex parte Wood held that patent revocation proceedings had a right to a trial by jury for disputed facts.
The article notes that the English procedure for revoking patents was by the writ scire facias, and that the proceedings began on the law side of Chancery were tried to a jury (at King’s court.) But even with this background, most of the early U. S. cases based upon section 10 of the patent act of 1793 used a summary procedure where a court would revoke a patent primarily for lack of novelty or for prior inventorship. But the controversy swirled and eventually reached the Supreme Court where Justice Story, on behalf of the Supreme Court, held that the revocation procedures provided by the Patent Act were the nature of a writ scire facias and because of that disputed facts had to be tried to a jury.
patent revocation proceedings had a right to a trial by jury for disputed facts.
And what if there are no disputed facts, or no facts that a reasonable jury could disagree about?
Then, summary judgment would be appropriate. That is what is happening today with patents directed to non statutory subject matter.
Then, summary judgment would be appropriate. That is what is happening today with patents directed to non statutory subject matter.
And it’s just a total coincidence that 99.99% of the same people railing against IPRs 24-7 also go batshirt every time there’s a summary disposition under 101. <—LOL
But you didn't answer the question. Why isn't it "appropriate" for the granting agency to revoke if there's no fact in dispute, or no fact that a reasonable jury could disagree about, just the plain truth that the agency screwed up because it didn't find the art or didn't understand it? Why isn't that "appropriate?"
It seems fair, it seems reasonable, and it seems necessary to keep the system from melting down and to keep the worst people in the world from monetizing the worst patents in the world.
Why is it "inappropriate"? Because of powdery wig dude in England in 1743? The same guy who insisted that only all male juries were appropriate? Really? That sounds like something an in s@ne person would come up with.
That sounds like something an in s@ne person would come up with.
Correct. The VII amendment is crazy. Unfortunately, that does not mean that it is anything other than controlling law.
The VII amendment is crazy.
The VII amendment says nothing about the revocability of the peculiar “right” that Congress has created, using the expansive power granted to it by the Constitution.
The “right” that Congress created simply did not exist in England. It didn’t exist in the US until relatively recently. It’s a conditional right, revocable by the agency, and defined as such.
You don’t like it? Get out of the game and find a different game. That is your Constitutional right.
“You don’t like it? Get out of the game and find a different game. That is your Constitutional right.”
Please follow your own advice.
MM, your remarks assume that Congress as plenary power when it grants a patent. It does not. Congress’s power is both granted by and limited by the constitutional provision. They are permitted to grant an inventor exclusive rights. They are not authorized to grant something else under this power.
They are permitted to grant an inventor exclusive rights. They are not authorized to grant something else under this power.
My gob but you are a special breed of w @ nker, Ned.
MM, that was a well reasoned remark, quite worthy of you.
Are you enjoying that swagger, Ned?
Why is the VII amendment crazy?
We have frozen our law (regarding juries) in amber as of the 1791 status quo. That is nuts. Can you think of any other area of the law where we have put it out of our power to change as circumstances direct? Every other common-law nation in the world has done away with juries in civil trials.
We are the only country in the world that still requires them, although, as can be seen from the fact that other countries have dispensed with them, they evidently add nothing to the quality of justice that is achieved, but add tremendous expense to the process and trouble to the citizenry compelled to serve of these juries. Why do we still persist in requiring juries in circumstances in which no other justice system would require them? Because we foolishly constitutionalized the issue back in 1791.
The constitution should only be for very fundamental aspects of law. Everything else should be left to statute or common law (if law is necessary at all). The VII amendment is an object lesson in what comes from putting minor issues into the constitution.
My apologies; I misunderstood. I agree the SCOTUS interpretation of VII amendment is rather absurd. But I originally took your statement, “The VII amendment is crazy,” to be a criticism of jury rights altogether.
Although perhaps I’m still mistaken. So you don’t believe in a jury right for any civil actions?
I originally took your statement, “The VII amendment is crazy,” to be a criticism of jury rights altogether.
I think that juries for criminal trials (at least regarding serious crimes) are probably a good thing (although, even there, I am not altogether of one mind).
With regard to civil cases, however, I think that juries are a waste of resources and a pointless inconvenience to the citizenry. However, that is not my real beef against the VII amendment. My beef against amendment VII is simply that it is in the constitution.
If we think (in contradiction to the experience and opinion of the entire rest of the world) that it is worth the trouble and expense to have juries in civil trials, that is fine. Our elected representatives could decide as much, and although I would disagree, it is scarcely a new experience for me to find that that the consensus opinion of my fellow citizens (as expressed by their duly elected representatives) runs contrary to my own thoughts and preferences.
Unfortunately, our elected representatives are not even allowed to consider that question. We have put it beyond our powers to debate or reconsider (except by the impossible-in-practice recourse to the mechanisms provided in Art. V for amendment of the constitution).
The Supreme Court (as is their custom) has done this already unpleasant state of affair one better, by setting a test for the application of amendment VII that requires us to ask “what did they do in England in 1791?”, a question that is almost never susceptible of a really reliable answer. But even if we did not have this goofy test, the VII amendment would still have been a mistake.
Out of curiosity, do you also prefer the continental civil law approach over the Anglo-American common law/stare decisis approach?
No. For whatever little my preferences are worth, I have a slight preference for common law (largely on the grounds that it is what I know). Obviously, however, Germany & France & Italy & Sweden (etc) all manage to run plausibly functioning justice systems on a civil law model, so it would be hard to conclude empirically that one or the other of the two systems is appreciably “better.”
Neither the civil law nor the common law (as it is practiced everywhere in the common law world except the U.S.) has juries for private law trials, however. From this I think that we can conclude empirically that juries in private law cases add nothing but bother and expense, with no counterbalancing increase in the quality of justice done.
Greg, you do know that the only reason that we have a Constitution in the first place is that the founders agreed to put the Seventh Amendment into the Constitution? It was that important. The reason it was important was the Crown’s use of the civil courts to enforce its restrictions on trade known as the Navigation Acts. Recall the Boston tea party?
Also, and trials between the mighty and the week, one needs a trial by jury to assure due process. That is why the trial by jury was put into English Constitution in 1215.
And, of course Greg, those courts had no right to a trial by jury and judgments were entered that were, let us say, pro-crown.
The Declaration of Independence cited these restrictions on trade, taxes and the use of courts without a jury as reasons for revolt.
“For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefit of Trial by Jury: “
Elitist.
Ned: Greg, you do know that the only reason that we have a Constitution in the first place is that the founders agreed to put the Seventh Amendment into the Constitution? It was that important.
What else did the super awesome Founders agree to put in the Constitution, Ned? Refresh everyone’s memory.
…and where do you fit in the statutory presumption of validity (and importantly, the level of that statutory presumption)…?
Nothing that Ned said is at odds with the presumption of validity. Even in a summary judgment process, the advocate of ineligibility has the burden of proof (which is all that is meant by “presumption of validity”).
As for the level of presumption, I suppose that I am unaware of evidence that summary judgments on §101 grounds are not requiring clear-&-convincing evidence. Other than Judge Mayer’s (not controlling, and not obviously influential) concurrence to that effect, are you aware of any evidence that courts are making SJs of invalidity on §101 grounds for less than c-&-c evidence?
Justice Story, on behalf of the Supreme Court, held that the revocation procedures provided by the Patent Act were the nature of a writ scire facias and because of that disputed facts had to be tried to a jury.
That’s completely k00k00.
What if the English procedure was to rip open the guts of a frog and “read them” to determine whether a jury was needed? Justice Story would run with that, too?
What happened with using reason, common sense and fairness to solve legal issues? Did our wonderful Founders have a problem with that? I mean, of course they had a HUGE problem with that when women or black people were involved, but other than that?
MM, you have to understand the reason why there was a jury trial in the first place. For that, you have to understand Runnymeade.
you have to understand the reason why there was a jury trial in the first place
Oh, really?
Now suddenly you want to talk about actual policy and consequences?
LOLOLOLOLOOLOLOLOLOLOLOLOLOL
For that, you have to understand Runnymeade.
OMG LOLOLOLOLOLOLOLOL
You are a freaking j0ke.
Do you have anything other than whining and invective on this issue?
I mean your screeds about logic patents are at least well thought out, but on this issue you just complain and insult.
NONE of his screeds are well thought out.
You may be more inclined to share the Ends of certain of his screeds, but please do not mistake that shared feeling with any sense of being “well thought out.”
I’m just saying that I understand his perspective on what he derides as “logic patents,” which I take to mean claims to methods of performing non-technical acts in a computer environment. I recognize the end-means deficiencies in his “logic,” and while I do not share his views on the patent eligibility of software inventions generally, I do recognize the issues with examining software inventions for patentability. I tend to be a statutory textualist and, in that vein, the 101 categories should be indeed nominal in my view and the heavy lifting performed by 102/103/112.
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