STRONGER Patents Act of 2019

by Dennis Crouch

Patent reform legislation continues its slow pathway through Congress.  The leading bill is the STRONGER Patents Act of 2019 (“‘Support Technology and Research for Our Nation’s Growth and Economic Resilience”) with identical bills pending in both the House and Senate. H.R.3666; S. 2082.

Upcoming Hearing: September 11, 2019 held by the Intellectual Property Subcommittee of the Senate Judiciary Committee with testimony from: Bradley Ditty (InterDigital); Prof. Mossoff (Scalia Law); Prof. Cotter (Minnesota); Dan Lang (Cisco); Josh Landau (CCIA); and Eb Bright (ExploaMed). [Written testimony will be available on the Hearing website sometime on the 11th.]

The Bill is designed to strengthen the power of an individual patent — making it harder to invalidate and easier to enforce as follows:

  • AIA Trials: PTAB must require clear and convincing evidence before invalidating an issued patent;
  • AIA Trials: Petitioner must have standing (business or financial reason to challenge a patent’s validity);
  • AIA Trials: Bar multiple trials on the same claims; Bar multiple petitions on the same patent by a single petitioner.
  • AIA Trials: Allowing petitioner to appeal most insitution question; barring appeal of institution denials;
  • AIA Trials: Splitting institution judges from trial judges;
  • Enforcement: Presume that infringement causes irreparable harm and that the remedy at law is inadequate.
  • . . .

[Read the Bill]

A group of law professors have submitted a letter to Congress arguing against the STRONGER Patent Act.  The core argument of the letter is that the inter partes review (IPR) system “has proven to be a robust and efficient check on patent validity, and has had a positive impact across industries, including high-tech, Main Street, and pharmaceuticals, where invalid patents can keep drug prices high.”   [Read it here]  Prof. Cotter signed the letter; Prof. Mossoff did not.

80 thoughts on “STRONGER Patents Act of 2019

  1. 11

    BTW, when I started the thread at 2 below with what “I would think that the most controversial of the above-listed features of this “STRONGER Patents Act of 2019” the “controversial”was not personal and not about this blog [although that has also developed]. It was an honest expectation of responses from some of the various organizations and individuals who actively participate in Congressional lobbying or committee inputs or testimony. [As opposed to comments not directed to Congress to the effect that “it’s not controversial because I would like it.”] We can wait to see, with realistic expectations.

    1. 11.1

      If you are following this legislation, you will have noted that in the committee hearing on it yesterday “Chairman THOM TILLIS (R-N.C.) raised concerns with the potential impact of overturning the Supreme Court’s eBay decision by restoring the presumption of injunctive relief, which he thought could encourage litigation by patent “trolls.” He also expressed concerns that allowing only one bite at the apple at the PTAB could undermine the benefits of inter partes review. ” [The same 2 points I had predicted would be controversial, but specifically using the word “trolls.”]

  2. 10

    This should be called the “Rich Guys Need to Make More Money Off Patents Act” because that is literally all that is happening here. There is no “problem” being addressed except for that: some whining entitled attorneys and grifters want more “action”. Boo hoo hoo! If we don’t help them, then … China! Or something.

    What a j Oke.

    1. 10.1

      I find that Adam Mossoff is Founder, Executive Director and Senior Scholar of CPIP. Running my eye down the List of Supporters of CPIP I found that leading private practice patent litigation law firms dominate. MM, I disagree with you. This is not a “j Oke”. Nor, incidentally, is the Cotter-signed letter linked by Dennis. That struck me as serious, not funny at all.

      Is the so-called STRONGER Patents Act 2019, as such, a j Oke though? One might well think so: I couldn’t possibly comment.

      1. 10.1.1

        link to cpip.gmu.edu

        (fyi)

        And aside from the insinuation from MaxDrei, the website actually says this about its acceptance of monies:

        Only support that serves this mission is accepted by CPIP. Freedom of inquiry, independence, intellectual honesty, and scholarly rigor are essential to accomplishing our mission. One of our core values is that academic scholarship and public policy debates about intellectual property should be based on real-world facts. Economic, historical, and theoretical analyses should conform with well-established research norms.

        Therefore, CPIP does not accept gifts that interfere with its scholars’ ability to conduct intellectually rigorous, methodologically sound, and independent research and analysis. It is essential that we maintain our ability to conduct and support research in accordance with proper academic and scholarly standards, free of inappropriate influence. To that end, all donations are gifts for which there are no promises of empirical or theoretical results.

  3. 9

    Awww, Dennis has to protect the precious fee-fees of his patent huffing friends. Circle the wagons! So cute.

    1. 9.1

      You do realize that your posts being expunged are NOT based on “Dennis ha[ving] to protect the precious fees-fees of his patent huffing friends“, right?

      It’s not as if you have not been informed of limits to your blight, and simply should know better…

      THAT you want to spin this to be Dennis taking an action to protect anything is just so Trump of you.

      It’s actually Hilary-ous that you seem so intent on NOT getting this.

      1. 9.1.1

        “Derpity derp derp!”

        1. 9.1.1.1

          Yay! Malcolm’s Derp Dance

    2. 9.2

      What I like particularly about this comment, “Malcolm”, is the double bluff aspect, the object being to put an end to all the persistent suggestions, over the years, that you are in fact a pseudonym of Dennis himself.

      But you don’t fool me. I see through your double game, “Dennis”.

      1. 9.2.1

        object being to put an end to all the persistent suggestions, over the years, that you are in fact a pseudonym of Dennis himself.

        Does “persistent” count when the only times the reference is made is in the context that YOU yourself is making that reference?

        As I recall, I pretty much decimated that “rumor” several years ago, on the order of 6 years or so.

        (The trouble with that same small block that you go around is that you tend to get stuck with the same view)

  4. 8

    Contrary to common erroneous views, injunctions were NOT fully automatic for every winning patent infringement suit, rather they were discretionary, even before the Sup. Ct. eBay decision reminding Fed. Cir. judges of that. 35 U.S.C. 283 said injunctions MAY be granted, “in accordance with the principles of equity.” What does a NPE PAE need or want other than money damages?

    1. 8.1

      That’s a bit of a strawman there Paul, as I recall no one ever asserting that injunctions WERE “fully automatic.”

      It is also a bit of a misrepresentation to the position that they SHOULD BE nigh-automatic.

      As I have plainly posted, the judicial branch seems strangely afflicted with the notion of “most severe” outside of actually looking at the context of what a patent right actually is.

    2. 8.2

      Alright Paul, I’ll take the bait. So how would you ‘logically’ end a patent case after -> IPR, full trial, valid, infringed, legal damages determined the 7th, JNOV decided, etc., (the ‘whole match’). So in your view the law of equity denies the order to stop infringing (i.e. the injunction), but instead ??? What? Equity will determine a running royalty (i.e., compulsory license?) and a compulsory license to what? An injunction like order saying what to stop doing? and some imputed rate. Do you think “Equity” commands that after the whole match the infringer get to go forward with a royalty?

      1. 8.2.1

        Compulsory licensing is a victory for the Efficient Infringers.

        Make the other guy jump through all the hoops and IF he prevails at the end of the day (and after forcing him to spend money to DEFEND his property right of excluding others — a negative property right by its very nature), THEN obtain what would have been worst case for the Infringer all along, a “reasonable” amount paid to USE that which would have been excluded under that very nature of the property right.

        End result: a severe advantage to the established monied interest and an evisceration of the ACTUAL property right of exclusion.

        What could go wrong with “promoting innovation” in this manner?

        (and do I really need to hold up an “S” sign for that last question?)

      2. 8.2.2

        Like everyone else here, I don’t make any new law, nor do I give any legal advice. But I do try to figure out what it is rather than ranting about it and object to miss-leading lay readers by passing off mere personal opinions as law.
        Since you ask, what might be be available these days after a successful infringement trial and appeal for willful infringement [if you seek it]? Have they sought up to tripled infringement damages for future infringement and attorney fees [which should normally make continued infringement a losing proposition?], and an injunction if they had an actual business hurt by the infringement under eBay?

        1. 8.2.2.1

          So Paul are you saying ‘legal damages’ which these days means apportionment (ironically, the reason the ‘no less than a reasonable royalty’ statute was passed was to avoid the rediculous complexity of apportionment of profits) which again is being gamed just like the old rule – of which GP factors apply but heaven forbid the 25% rule – as determined by a 7th amendment jury – that a court of equity might triple that amount for future infringement and that might make continued infringement a ‘losing proposition.’ IMHO, what you are reaching for is the equitable doctrine called ‘unjust enrichment’ which is 100% disgorgment of profits from the continued infringing activity. So if the court had entered the injunction order the first time and now we are back the second time (sans a specific injunction order which could have been appealed as to scope) and the court holds ‘contempt’ and orders disgorgment of 100% of infringers profits — isn’t that the same place? So how do you get an order for ‘future infringement’ anyways? Isn’t that just an injunction with a pre-determined ‘triple legal damage’ fine? If what? You are held in contempt? The great hubris of the eBay holding is that a serial infringer is going to halt infringing if ordered by a trial court. That’s laughable.

  5. 7

    Patent value is down 80 % since Alice and the AIA. The real problems are being masked by the massive inflow of foreign patent applications that look similar to US applications because they are first filings, but none of the inventors reside in the US and the invention wasn’t made in the US.

    1. 7.1

      These “professors” should have to make full disclosures where they are getting their money. Many of them should be considered in-house attorneys that are being paid to influence public opinion through publications and talks.

    2. 7.2

      Night, do you not think that the most open and competitive jurisdictions exhibit the largest proportion of filings emanating from outside the jurisdiction? I mean, take China or Japan. Far more domestic filings than from aliens. Is this because of skew in favour of domestics?

      Contrast that with EPC-land, where the split has been 50:50, for decades now.

      My gut feeling is that the USA has until recently been boiling down towards a 50:50 split, that is a sign of a strong, open economy which sees the encouragement of reciprocal international trade as one of the strongest levers for incrementing prosperity.

      1. 7.2.1

        MaxDrei,

        You appear to seek to insert some type of “judicial skew” without regard to achem razor proximity effects (nor the underlying — and remaining — aspect that patent law was, is, and ever shall be, a Sovereign-Centric area of law.

      2. 7.2.2

        [A] 50:50 split… is a sign of a strong, open economy which sees the encouragement of reciprocal international trade as one of the strongest levers for incrementing prosperity.

        Exactly right. There is no reason why anyone should care what percentage of U.S. filings reflect inventions made in the U.S., compared to inventions made ex-U.S. Penicillin was no less useful in saving American lives, merely because it was invented by a Scotsman working in London. The Sony Walkman did not delight American ears any less because it was invented by a Japanese team in Tokyo. Come to that, mass production of automobiles was no less delightful to Europeans or Asians, merely because such was invented by an American in Dearborn, MI.

        Innovation makes us all better off, regardless of where the actual inventive work takes place. We should all be glad to see increasing amounts of inventive work coming out of Asia.

        1. 7.2.2.1

          There is no reason why anyone should care what percentage of U.S. filings reflect inventions made in the U.S., compared to inventions made ex-U.S.

          Simply not true, and for reasons long ago provided (and conveniently “not seen” by Greg ‘High Road’ Delassus).

          Patent law was, is, and always shall be a Sovereign-Centric law, and there will always be NON-global filing entities, for whom it matters very much how different Sovereigns choose to structure their innovation protection laws.

          And even beyond that, there is a wealth of documented follow-on effects for innovation efforts and the location of those innovation efforts.

          It is entirely disingenuous to pretend that such items not only do not exist, but that such have not been well placed on the table of discussion.

          So while it is indeed true that “Innovation makes us all better off“, it is also expressly FALSE that “regardless of where the actual inventive work takes place.”

          The two are simply NOT in full alignment, and anyone saying otherwise simply speaks wither from ig nor ance or purposeful deceit.

  6. 6

    Professors live in an estranged world of theory & no doubt personal bias. They are connected to reality only through statistics and charts. They have no idea what the real, impactful harm the anti-patent status quo has wrought on US companies seeking to innovate. Yet, they are thrown under the bus by judges who have no appreciation for the unworkable, non-sensical opinions many write that are irreconcilable with the language and legislative history of Title 35 (particularly 101), irreconcilable with prior case law, and irreconcilable with reality. Congress is needed to overturn this backwards trend.

    1. 6.1

      Because Senators and billionaire corrupt Presidents don’t live in an “estranged world”.

      LOL

  7. 5

    A frequent poster (starts with an M, ends with an M) on this site will need to take a few extra blood pressure pills when he reads this.

    1. 5.1

      There is no point to the “proposal” except to irritate and annoy normal people and throw bones to the worst attorneys who ever lived. That’s all that pr-cks like Mossoff et al have ever cared about.

      1. 5.1.1

        Your one-bucketing is noted.

      2. 5.1.2

        Funny, I’ve followed the legislation and no one anywhere mentions attorneys. They discuss US industry and international competitiveness. You might need to get your realityglasses fixed.

  8. 4

    It seems to me that nearly everyone should be opposing the STRONGER act, because it brings together a welter of separate ideas, and almost no one supports of all of them. For example, when I look at the list that Prof. Crouch offers, I would sort them as follows:

    Great ideas
    * Presume that infringement causes irreparable harm and that the remedy at law is inadequate;
    * PTAB must require clear and convincing evidence before invalidating an issued patent;
    * Bar multiple petitions on the same patent by a single petitioner;
    * Barring appeal of institution denials.

    Terrible ideas
    * Bar multiple trials on the same claims;
    * Allowing petitioner to appeal most institution question.

    So-so ideas
    * Petitioner must have standing (business or financial reason to challenge a patent’s validity);
    * Splitting institution judges from trial judges.

    To my mind, barring multiple trials on a given set of claims is a poison pill that cannot be accepted no matter what else is in that list. I expect, however, that a lot of folks regard the anti-Ebay provision (which I love) as a sort of poison pill belonging in the “terrible ideas” category.

    In other words, I would be surprised if the number of folks who cannot spot some sort of “poison pill” is larger than ~10% of the relevant population, even if few of us can agree on which provision exactly is the poison pill.

    1. 4.1

      “To my mind, barring multiple trials on a given set of claims is a poison pill that cannot be accepted no matter what else is in that list.”

      Yeah at the very least they should allow for the instance where new evidence that is better than that previously brought forth is being put on the record now.

      1. 4.1.1

        My biggest objection is the one that Paul identifies below at #2—viz., as I read the proposed text, there can only be one IPR petition granted on any given patent claim. In the event, then, that a patentee sues two (or more entities), only one of them gets to bring an IPR.

        To my mind, this creates a terrible incentive for a patent owner to bribe a straw party to bring an IPR petition, with the understanding that this (pseudo)petitioner will then totally fail to carry its burden of proof. After that, once the IPR goes to final judgment with a decision of no-unpatentability, the claims are essentially bullet proof against further IPR challenges. This would totally defeat the purpose for which IPRs were created.

        1. 4.1.1.1

          “To my mind, this creates a terrible incentive for a patent owner to bribe a straw party to bring an IPR petition”

          That would obv have to be policed harshly if they implemented such a rule.

        2. 4.1.1.2

          It’s ins @ne is really all that can be said. But it provides a huge clue about the type of people behind the proposal, so we can be glad for that.

    2. 4.2

      I will agree with Greg that trying to stuff ALL of this in one package is a sure fire way of not achieving ANY of it.

      The cynic in me posits that this is not by accident.

      1. 4.2.1

        Not cynic but realist.

    3. 4.3

      Some of those “great ideas” sound more like super sh-tty ideas and gratuitous handouts to @ h Oles.

      What is the “problem” being addressed here? Someone isn’t making enough money?

      1. 4.3.1

        How dare anyone try to be making money with patents…

        That’s SOOO American.

        Hashtag: hashtag: (as proxy for the “S” sign)

        1. 4.3.1.1

          The point is that lots of people *are* already making TONS of money off patents, and a lot of that money is undeserved because the patents are cr @p.

          The idea that “in 2020 we need more patents on abstract nonsense that is easier for the rich to monetize” is literally held by less than 0.01% of the population. It’s disgusting payola and nothing more than that.

          1. 4.3.1.1.1

            Your feelings are noted.

  9. 3

    ” … the inter partes review (IPR) system ‘has proven to be a robust and efficient check on patent validity, and has had a positive impact across industries, including high-tech, Main Street, and pharmaceuticals, where invalid patents can keep drug prices high.’”

    These wrong-headed, non-inventive ivory tower so-called law professors would fit right in as characters in George Orwell’s 1984 as well as members of the Trump administration … where up is down; down is up … good is bad; bad is good … right is wrong; wrong is right … truth is a lie; lie is truth.

    1. 3.1

      Other than asserting that they are wrong, what is your counter argument?

      1. 3.1.1

        The assertion is not “they are wrong” PER SE – the assertion is that they are using words twisted to their opposite effect.

        This is LESS a matter of “counter argument” and more a matter of showing why the words are so twisted.

        For example, below YOU make the assertion that an NPE should (somehow) be treated differently than any other owner and be foreclosed from obtaining an injunction. There is NO logical basis for this (given a fundamental understanding of the ‘negative nature’ of what a patent right is and the bedrock notion that the US Sovereign system is not based on a “must make” paradigm.

        In other words, NSII, it is YOU (yet again) that is simply on the wrong side here.

        1. 3.1.1.1

          In short, you have no substantive response. Instead of presenting a counter argument, you attempted to justify your failure to do so because of twisted words that you have failed to identify.

          What you don’t seem to understand is that patent rights are defined by statute. Thus, your assertion about “what a patent right is” is meaningless in the context of legislation intended to alter patent rights. If your only argument is assertions about what is “fundamental” and/or “bedrock”, you have nothing to add to this discussion.

          1. 3.1.1.1.1

            “In short, you have no substantive response.”

            You have “engaged” the Clown Prince of patent law. There will never be a substantive response because he has none. But he does enjoy being beat down. [perverse; i know]

            1. 3.1.1.1.1.1

              There will never be a substantive response because he has none.

              Correct. Never a substantive response. So why do people bother engaging that particular interlocutor? I can understand that every now and again a newbie arrives who does not know what will be the inevitable result of an attempt to engage that one, but most people here do know. So why do they keep trying, despite the certain knowledge that nothing productive will ever result? No truth will ever be illuminated, no point carried, no insight achieved. The attempt is inevitably even a larger waste of time than the few minutes that I have just spent typing this gripe.

          2. 3.1.1.1.2

            The argument NS II is that it is becoming almost impossible to protect an invention with IPRs.

            You are right I think that at its foundation the argument must what should the patent “right” be to promote innovation and what is best for our economy and innovative engine.

            Based on that framing, what we are seeing now is stagnation in innovation and lessening in innovation spending. We are seeing the centralization of technology companies into near monopolies.

            1. 3.1.1.1.2.1

              Can you please elaborate on what you mean by “stagnation in innovation and lessening in innovation spending”? What do you consider to be “innovation” and “innovation spending”, and what exactly are you measuring to determine variations? I don’t know if this applies to you, but it seems that some people are measuring “innovation” based on the number of patent applications that are filed and/or patent prosecution budgets. While there is a correlation between patent prosecution and “innovation” (however it is defined), it seems like it would be a poor proxy for an “innovation economy” in so far as many patents are not reduced to practice and an unknown number of innovations are not patented.

              1. 3.1.1.1.2.1.1

                NS II: determining the current state of health of the innovation engine is a tough job. My understanding is that innovation has been decreasing in the USA. That is my general sense and from the articles I’ve read there is a decrease in spending on start-ups (outside of the big corporate start-ups).

                The story the big corporations are trying to tell is that they can handle this innovation thing and most of them have become near monopolies with ridiculous amounts of cash. They are spending money. But, you may not know it, but us old people do. That corporate spending on innovation without patents is notoriously bad. The results have typically not been good with some notable exceptions.

                But in any case, that is the story trying to be told by the big corporations.

                1. Thank you for your response.

                  My concern is that the use of loose terminology like “innovation” allows anyone to make arbitrary claims about how patent policy affects “innovation” depending on their agenda. If one defines “innovation” from the perspective of accused infringers, improving innovation means reducing infringement liability by killing “bad” patents so that they are free to operate (i.e., innovate) From the perspective of patent owners, “innovation” means maximizing the value of patents, which generally means less invalidity risk so that people will invest in “innovation.” In other words, “innovation” is defined in terms of personal economic interest (which coincidentally always aligns with the public interest). Therefore, [blank] policy is good/bad for innovation can often be meaningless.

                  It seems that you are using the term “corporate spending on innovation” to mean spending on research and/or development. I think this would be a reasonable metric to understand but it seems like it would be hard to isolate for the effect of patent policy as opposed to other factors and incentives.

                2. My concern is that the use of loose terminology like “innovation” allows anyone to make arbitrary claims about how patent policy affects “innovation” depending on their agenda.

                  Your concern is shown to be false in how YOU consistently “take issue” with only those statements that SUPPORT a strong innovation protection system. You yourself play loose and advocate based on your agenda.

                  To wit:

                  If one defines “innovation” from the perspective of accused infringers

                  One cannot define innovation from the perspective of the accused infringer. This is nothing but Orwellian doublespeak and Efficient Infringer propaganda.

                  You need to acknowledge the foundational aspect that strong patent protection comes from BOTH the carrot and the stick.

  10. 2

    There may be some broadly acceptable IPR changes among these proposals [some of which are already occurring]. But I would think that the most controversial of the above-listed features of this “STRONGER Patents Act of 2019” would be extending “Presume that infringement causes irreparable harm and that the remedy at law is inadequate” to PAEs who have no patented products or services needing any injunction protection from competition and are only seeking financial infringement recoveries.
    Also, would “Bar multiple trials on the same claims” mean that even if the patent owner is suing plural defendants in separate patent suits that only one of them gets an AIA defense? How would that be decided?

    1. 2.1

      … now why would making injunctions as a (fitting) default remedy be “controversial?”

      If one really understands the nature of what a patent is AND understands the number one drive for equitable solutions is to make the aggrieved as whole as possible (as opposed to the attempted mantra of Efficient Infringers), there should be NO controversy at all.

    2. 2.2

      It will really comes down to how one overcomes the presumption of irreparable harm. Even with a presumption, a PAE should have a difficult time obtaining an injunction.

      1. 2.2.1

        Even with a presumption, a PAE should have a difficult time obtaining an injunction.

        Other than “that’s how I feel,” — why?

        1. 2.2.1.1

          Among others reasons, the public interest is not served by enjoining commercial activity without the availability of a substitute. At least in theory, an operating entity could fill the gap if an infringer were enjoined, so the public would continue to obtain the benefits of the invention. In the case of a PAE, granting an injunction would simply remove the benefits of the invention from the public.

          What is the irreparable harm to a PAE in not obtaining an injunction? Why should a PAE be treated the same as an operating entity? If you have a justification other than that is how patents are supposed to work, please articulate it.

          1. 2.2.1.1.1

            the public interest is not served by enjoining commercial activity without the availability of a substitute

            Absolutely wrong.

            The power of the patent is NOT ONLY in the Carrot aspect, but just as well comes from the Stick aspect.

            There is a reason for the adage of “Necessity is the mother of invention.”

            Additionally, YOUR view is pure error as to what the patent right IS (a negative right, and not a positive one). As already noted, there has been ZERO legislative effort in the US to change that.

            In other words, you ask me to articulate something that I have already provided – and that something is a baseline feature of the US patent system, that your NOT understanding that lowers your credibility.

            Again.

            You can whine all you want and throw ad hominem at me all you want — but none of that will correct your baseline errors.

            1. 2.2.1.1.1.1

              I see your argument. Injunctions, however, are an inequitable remedy. As such, they have to be determined with respect to the rules of equity, not law. 35 USC 284 (“courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity”). Remember, courts in the U.S. sit in both equity (what is right and good) and law (what is statute). The statue says the remedy at law is damages as defined in sections 284-287. So, while patents may confer negative rights, the remedy at law for violating those rights is damages.

              As injunctions are equitable remedies, the harm to the public for removing the invention is a necessary consideration. This has been repeated in many of the cases.

              The question really is do we want Congress making blanket statements regarding what is equitable.

              1. 2.2.1.1.1.1.1

                Sorry – Should have been a 35 USC 283 for “courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity”.

                1. As I have noted: the principles of equity have become confused BY the courts with the notion of “oH N0es, injunctions are just TOO severe,” when — in context — injunctions are clearly the best and most complete way of making the aggrieved whole.

              2. 2.2.1.1.1.1.2

                “Equity (what is right and good)” Errrr…. Nope. LOL — Justice Story rolls in his grave.

                link to books.google.com

                “The harm to the public from removing the invention?” You mean like shutting down the city’s sewage treatment plant? or removing the ‘buy it now’ button for used pez dispensers?

            2. 2.2.1.1.1.2

              “ad hominem”? I chose not to utilize any one of the pleothra of ad hominem attacks available to me and appropriate under the circumstances. No apology necessary.

              To be clear, are you admitting that you have no justification other than that is how patents are supposed to work? You used the word “baseline”, but it seems that “because that is the baseline” is your response.

              By the way, do you consider the irreparable harm to be not getting the injunction that patents are entitled to?

          2. 2.2.1.1.2

            Startup develops prototype technology and patents it. Startup is approached by Large Tech Company to potentially invest in technology. Startup doesn’t hear back from Large Tech Company after numerous followups. Large Tech Company then takes startups patented idea and technology and launches infringing product.

            Startup does not have funds to stop Large Tech Company from gaining market share and rendering startup obsolete. Startup also knows if they sue Large Tech Company, they will be countersued via war chest of Large Tech Company, multiple IPR’s or via patent ‘rental’ via RPX.

            Startup needs to enlist PAE to enforce patent rights and stop Large Tech Company from infringement. Startup (via PAE) needs injuctive threat to level playing field and force Large Tech Company to stop infringing or pay license.

            I hope that explains enough how patents are supposed to work (or used to work before ridiculous Ebay decision and AIA provisions).

            Note: I’ve been with a startup for last few years and we have dealt with situation above with Large Tech Company stealing technology. We have also had our clients sued by a PAE with ridiculous patents. However, the former is much more of a consistent problem than the latter.

          3. 2.2.1.1.3

            “In the case of a PAE, granting an injunction would simply remove the benefits of the invention from the public.”

            Does the public own any rights to the benefits of any invention?

            I thought IP rights were a form of property (now a franchise… which arguably is a form of property…) initially owned by the inventor and properly and legally (as with any property) held, alienated, and/or enforced … voluntarily at the full and sole pleasure of any of the initial owner, a successive owner, or part owner/licensee etc. at the relevant times. The nature and identity (and business activity) of the owner is relevant only in that the owner is the OWNER.

            Of course some subscribe to the idea that property rights are not individual Rights but are State Permissions which are held in “trust” by the servants of the State, solely to advance the so called public good…

            I do not subscribe to THAT idea.. not in the least.

            1. 2.2.1.1.3.1

              “Does the public own any rights to the benefits of any invention?” No. However, the public does not have to grant an injunction.

              As for IP rights being a form of property, I think you are slightly mistaken. A patent grant is a public franchise. IP rights more generally are an entirely different matter.

              1. 2.2.1.1.3.1.1

                NSII,

                You are dancing all over the place and not recognizing items that need to be recognized (particularly as to what “foundation” means).

                Here, you seem to want to place an UNDUE reliance on “Public Franchise” as if there were NO Quid Pro Quo patent bargain in place and the entirety of ANY bargain is merely some “public effect.”

                You are being entirely inte11ectually DIShonest.

                As to “the public” not having to “grant” an injunction, you have kicked up so much dust, that one may begin at any number of points to remove your obfuscations, but suffice to say that it is a court, employing principles of equity (of which, first and foremost is to make the aggrieved as whole as possible) that is to do the “granting.”

                Next, it behooves ALL to recognize that it is the negative right aspect of the property (and yes, even Franchise property is still Personal property) of the patent grant that has been violated, and NOT any “positive right” of ANY patent owner that may be making anything.

                These are basic principles that you seem unwilling (or unable) to recognize, and to which, your choice has been to cast shade on the person supplying the principle instead of addressing the principle.

                1. You repeatedly and emphatically declare that, “A patent is [insert your spiel].” Anything that is inconsistent with that you simply declare to be wrong. Have you noticed that your “arguments” consist entirely of declarative statements without any logical progression from a premise or foundation to a conclusion? That is how you “argue” that the Supreme Court is wrong, the Federal Circuit is wrong, the USPTO is wrong, Congress is wrong, and so forth. Does this “address” the principle?

                  I don’t see how my observations cast shade on you. Your “argument” style works for you. Own it and be proud.

                2. You repeatedly and emphatically declare that, “A patent is [insert your spiel].” Anything that is inconsistent with that you simply declare to be wrong.

                  Correct. So ask yourself, why are you bothering to engage with that particular interlocutor? What do you hope to learn or accomplish from such an exchange? Do you ever come away from such exchanges feeling that you have learned or accomplished that desideratum?

                3. Sorry NSII, but your attempt to make the foundations to be “merely my declarations” and me not providing any foundation runs smack into fallacy.

                  What I have “declared” ARE foundations, and they are foundations NOT because I have declared them.

                  Quite the other way around, as I declare them because they are foundations.

                  You (again) appear to ask for something that is already there. That YOU don’t like those foundations (or don’t understand them to BE foundations) is NOT some error in my “argument style.”

                  Your characterization (as is your position) is what is off.

          4. 2.2.1.1.4

            Also, the longstanding legal principle, reiterated by the Sup. Ct., that injunctions are an equitable remedy when money damages are insufficient.

            1. 2.2.1.1.4.1

              But Paul, you only hint at what the problem has been with the judicial branch treatment of a remedy that best makes the aggrieved whole.

              Instead of treating injunctions AS that best form of remedy to the nature of the right transgressed, we have a wooden and unthinking “injunctions are the severest form of equitable treatment” almost-default mindset (a mindset no doubt PUSHED by a nigh relentless Efficient Infringer propaganda machine).

              When properly understood, injunctions as an equitable form of remedy SHOULD BE the uncontroversial nigh-default.

              Make that “negative right” WHOLE and give the power back to the property owner.

              Making the negative right into merely a money thing REWARDS those most in the way of disruptive innovation and those desiring to compete on non-innovation terms. Such IS (and should be) easily seen as NOT the most equitable resolution, especially given the nature of the subject at hand.

              (No matter who that owner happens to be)

          5. 2.2.1.1.5

            In the current environment, NPEs have but one real recourse – sue for damages. Were injustice relief to be strengthened, it stands to reason that the practice of NPEs licensing to operating entities would become common practice, thereby serving the public interest to which you referred.

            1. 2.2.1.1.5.1

              How does increasing the patent licensing revenue from product producers being paid only to patent litigation attorneys and their litigation investors [not to inventors], and raises consumer product costs, “serve the public interest?” We are talking about the modern development of NPEs who buy patents to sue on them for themselves, not traditional patent litigation brought by product producers or sellers against product competitors,

              1. 2.2.1.1.5.1.1

                Paul,

                You are an @$$.

                You purposefully focus on the Who when it has been laid out for you in direct terms that such is nothing more than Efficient Infringer propaganda.

                Wake up son, the patent bargain — ALL that the public gets is satisfied at the time of grant: the grant for publication.

          6. 2.2.1.1.6

            [T]he public interest is not served by enjoining commercial activity without the availability of a substitute… In the case of a PAE, granting an injunction would simply remove the benefits of the invention from the public.

            Maybe, but probably not. After all, if the infringer can make money from selling the patented good, then the infringer has an incentive to come to terms with the PAE. Similarly, the PAE has an incentive to come to terms with the former-infringer (a royalty rate of 10% of revenues totalling $100K is worth a great deal more than a rate pf 50% of revenues totalling $0).

            The public interest is best served by making the patent system function in a manner that is fair to both the patentor (i.e., the public) and the patentee (the inventor or the inventor’s assignees). That is why the damages for an act of infringement are supposed to be no less than could have been achieved by arm’s length negotiation immediately before the start of the infringement. Nine times out of ten, the best way to figure out what that arm’s length negotiated figure would have been is to let an arm’s length negotiation proceed. Perhaps the time necessary for such negotiations is not tolerable when one is adjudicating infringement of a weapon patent during war time, or a drug patent during an epidemic. Absent such exigent circumstances, however, an injunction is a straight-forward mechanism for forcing such negotiations, and a much more accurate means of arriving at the fair outcome than to have an English-major judge and some 10th-grade drop-out jurors guess at the workings of a tech-based industry in which they have neither education nor relevant experience.

            1. 2.2.1.1.6.1

              ..and the funny thing here is that Greg’s view is the necessary outcome of MY statements.

              Even as Greg whines multiple times about dealing with me.

              Also, let’s NOT forget that the ACTUAL Quid Pro Quo bargain — met in full — is the period of exclusive KEEP OUT for the publication. There is NO “the public has earned an actual “USE” right in the Quid Pro Quo deal.

              An inventor (or as Greg puts it: his assigns) has EVERY legal and moral right to not let anyone at all use the invention for the entire period of exclusivity, AND the public has ALL that it is supposed to have from the patent bargain.

              The notion that somehow “the public” is made to suffer from not being able to use is nothing more than a fallacy and is just NOT connected to the fundamentals of what a patent actually is.

    3. 2.3

      So the infringer should saturate the market and convoy sales with infringing product – and be rewarded for chasing the patent owner from the field – to render second class NPE status ergo no complete remedy for you! You sound like you do prosecution work for Samsung. The Samsung motto: “We infringe so fast, we look like innovators!”

      1. 2.3.1

        Efficient Infringement is a reality.

        The better question is whether or not We (the Royal We) want this model to degrade the patent system.

        If you want to place power in the hands of the already established (who would prefer to compete on non-innovation factors), and who are most adversely affected by disruptive, game-changing innovation, then by all means, buy into the “we need to degrade the strength of patents” lineS of propaganda (and there are several lines of such).

  11. 1

    If ever a time to ignore law professors …

    1. 1.1

      I suggest NOT ignoring Mossoff.

Leave a Reply

Your email address will not be published. Required fields are marked *

You can click here to Subscribe without commenting

Add a picture