Cienna Corp. v. Oyster Optics, LLC and Andrei Iancu (Fed. Cir. 2020)

In this case, the Federal Circuit held that an IPR petitioner did not have a right to raise the Arthrex appointments issue on appeal unless the issue was first raised before the PTAB. The court’s basic reasoning is actual and equitable waiver.

The problem with Ciena’s request is that, unlike the patent owner in Arthrex, Ciena requested that the Board adjudicate its petition. It, thus, affirmatively sought a ruling from the Board members, regardless of how they were appointed. Ciena was content to have the assigned Board judges adjudicate its invalidity challenges until the Board ruled against it. Under those circumstances, we find that Ciena has forfeited its Appointments Clause challenge. . . .

In this case, Ciena not only consented to adjudication by the Board, but it affirmatively sought to delay any consideration of its patent challenges by seeking a stay of the district court litigation initiated by Oyster. Any constitutional concern regarding the appointment of the Board judges in this case is negated by Ciena’s forfeiture.

This decision was originally released in January 2020 as a non-precedential opinion. However, on petition from the USPTO, the court has now re-designated the decision as precedential.

In its petition for redesignation, the PTO explained that losing petitioners “continue to raise the same argument [on appeal]. A precedential opinion would reduce that motions practice and save the Court time.”  Examples of pending cases:

• Moderna Therapeutics v. Protiva Biotherapeutics, Nos. 20-1184, -1186, ECF No. 37 (Fed. Cir. motion filed Mar. 6, 2020);
• Valve Corporation v. Ironburg Inventions, Nos. 20-1315, -1379, ECF No. 24 (Fed. Cir. motion filed Feb. 28, 2020);
• Valve Corporation v. Ironburg Inventions, No. 20-1316, ECF No. 22 (Fed. Cir. motion filed Feb. 22, 2020);
• Palo Alto Networks, Inc. v. Finjan, Inc., No. 19-2151, ECF No. 56, at 4, 32, 49 (Fed. Cir. blue brief filed Nov. 27, 2019);
• United Fire Protection Corp. v. Engineered Corrosion Solutions, No. 20-1272, ECF No. 16 (Fed. Cir. motion filed Jan. 9, 2020);
• Comcast Cable Comm. v. Promptu Sys. Corp., No. 19-1947, -1948, ECF No. 26, at 66 (Fed. Cir. blue brief filed Nov. 15, 2019);
• Comcast Cable Comm. v. Promptu Sys. Corp., No. 19-2287, -2288, ECF No. 18, at 66 (Fed. Cir. blue brief filed Nov. 15, 2019);
• Baby Trend, Inc. v. Wonderland Nurserygoods, No. 19-2309, ECF No. 28, at 65-66 (Fed. Cir. corrected blue brief filed Feb. 24, 2020).

Patent Public Advisory Committee (PPAC) quarterly has been available in an online stream for many years.  This week, however, the PPAC will be fully remote and virtual.

Attend via this link: https://bit.ly/3b3K5cI.  May 7, 11:00 am – 2:45 pm EST.

(more…)

• Klemchuk in Dallas
• Eli Lilly in Indianapolis
• McNeill Baur Remotely
• Caldwell in Boston
• Klarquist in Oregon

Don't worry too much if you're upset by yesterday's SCOTUS copyright decision. The judiciary is still charging 10 cents per page for the public to access court filings, so there are still a lot of legal documents that the public never will see.

— Jeff Kosseff (@jkosseff) April 28, 2020

SCt rules, 5-4, that Georgia cannot (c) its annotated statutes. First line of CJ Roberts' opinion: "The Copyright Act grants potent, decades-long monopoly protection for original works of authorship.” The appearance of the word "monopoly" is going to make some heads explode.

— Christopher Sprigman (@CJSprigman) April 27, 2020

I keep a docket of our court cases, press, my speeches, etc if you’re interested in following along. https://t.co/N2BDE2C1Wp I haven’t updated it with the latest news yet.

— Carl Malamud (@carlmalamud) April 27, 2020

Guest Post by Prof. Pamela Samuelson.

Yesterday, Dennis Crouch provided an overview of the Supreme Court’s recent decision in Romag Fasteners, Inc. v. Fossil, Inc. and the various opinions of the Justices.

Today I consider the implications of Romag for whether juries or only judges can decide about disgorgement of a trademark infringer’s profits in trademark cases. None of the Justices addressed that issue directly. Yet, the majority opinion repeatedly characterized disgorgement of profits as an equitable remedy and emphasized transsubstantive principles of equity as lodestones for the exercise of equitable discretion in granting this remedy. Because of this, I believe the Court implicitly decided that disgorgement is a matter for courts, and not for juries, to decide. This has very important implications for disgorgement awards in intellectual property (IP) cases more generally.

This implicit ruling in Romag is consistent with the Court’s ruling in Petrella
v. Metro-Goldwyn-Mayer, Inc., 572 US. 663 (2014). Although holding that laches was not a complete defense to copyright infringement, the Court in Petrella stated that disgorgement was an equitable remedy. Id. at 668 n.1. It opined that “the District Court, in determining appropriate injunctive relief and assessing profits, may take account of [Petrella’s] delay in commencing suit. In doing so, however, that court should closely examine MGM’s alleged reliance on Petrella’s delay.” Id. at 687. The Court was, moreover, receptive to “any other considerations that would justify adjusting injunctive relief or profits.” Id. at 687-88.

Unfortunately, the Court failed to acknowledge disgorgement as an equitable remedy in Samsung Electronics Co. v. Apple, Inc., 137 S.Ct. 429 (2016) or to invoke equitable principles as relevant considerations in awarding disgorgement in design patent cases. The Solicitor General’s brief in Samsung contemplated that juries would make disgorgement awards and offered a complex (and deeply flawed) multi-factor test for deciding whether the relevant article of manufacture whose profits must be disgorged was the end product (e.g., smartphones) or only some part of it (e.g., rounded corners with bezel).

Who knows what Judge Koh would have ordered had she ruled on how much of Samsung’s profits should be disgorged for infringement of three small Apple design patents? It is, however, unlikely that she would have settled on $533 million, the amount that the jury awarded on remand, given that she had previously reduced a $1.05 billion total-profit-on-end-products jury award to $399 million. This is the amount that the Court vacated in Samsung because the lower courts had wrongly held that all profits on end products must be disgorged.

That disgorgement is an equitable remedy that only judges can order in an IP case was further recognized in Texas Optoelectronic Solutions, Inc. v. Renesas Elecs. Am., Inc., 895 F.3d 1304 (Fed. Cir. 2018). In this state law trade secrecy case, the Federal Circuit vacated a jury’s disgorgement award of $48.8 million on the ground that it was improper for juries to award an equitable remedy. The court reviewed at length the historical record of the disgorgement remedy in IP cases. Id. at 1319-25. It cited the Court’s decision in Sheldon v. Metro-Goldwyn-Mayer Pictures Corp., 309 U.S. 390, 399 (1940) for the proposition that “recovery of profits … had been allowed in equity both in copyright and patent cases as appropriate equitable relief incident to a decree for an injunction.” Id. at 1324. Had the Federal Circuit recognized this principle a few years before, it would have been Judge Koh, not a jury, who would have decided how much of Samsung’s profits should be disgorged.

Petrella notwithstanding, only one copyright decision has thus far ruled that the award of infringer profits is a matter for judicial discretion, not for juries. See
Fair Isaac Corp. v. Fed. Ins. Co., 2019 WL 5057865 (D. Minn. 2019) (disgorgement of profits held an equitable remedy for which a jury award was unavailable in a software copyright infringement case).

Romag is not the only trademark decision to have reserved disgorgement awards to the discretion of judges. A number of trademark cases have ruled that only judges, not juries, can render disgorgement awards. See Hard Candy LLC v. Anastasia Beverly Hills, 921 F.3d 1343, 1355-59 (11th Cir. 2019) (denying trademark plaintiff’s demand for a jury trial on its disgorgement claim); Fifty-Six Hope Rd. Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059, 1074–76 (9th Cir. 2015).

In a forthcoming article, colleagues and I point out that traditional principles of restitution and unjust enrichment support awards of disgorgement of profits insofar as they are (1) levied against conscious wrongdoers, (2) attributable to the wrongful conduct, and (3) subject to equitable discretion. Justice Sotomayor’s concurrence in Romag rightly noted that innocent or good faith infringers should not have to disgorge profits because the goal of this remedy is to ensure that conscious wrongdoers do not profit from their misdeeds. Insofar as the majority opinion in Romag contemplated that profits of innocent trademark infringers could be disgorged, it is at odds with traditional equitable principles. In Romag, both laches and inequitable conduct should preclude profits disgorgement upon remand. For a further elaboration on this point and about equitable discretion in IP disgorgement cases more generally, see Pamela Samuelson, John M. Golden, & Mark P. Gergen, Recalibrating Disgorgement Awards in Intellectual Property Cases, B.U. L. Rev. (forthcoming 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3529750.

Profit Disgorgement Allowed in TM Cases Without Showing Willfulness

by Dennis Crouch

Romag Fasteners, Inc. v. Fossil Group, Inc. (Supreme Court 2020)

The Lanham Act provides that a trademark owner can elect disgorgement of the defendant’s profits based upon “a violation under §1125(a) or (d) … or a willful violation under section 1125(c).”

• §1125(a) – TM infringement (likelihood of confusion)
• §1125(c) Dilution
• §1125(d) Cybersquatting

15 U.S.C. §1117(a). The statute appears to require willfulness as a prerequisite to profit disgorgement in the dilution context, but not for typical trademark infringement.  However, the award must also conform “to the principles of equity.”

In this case, Romag proved its §1125(a) TM infringement case against Fossil, but the District Court refused to disgorge profits — holding that willfulness is  a prerequisite to profit disgorgement in TM cases based upon a long line of pre-and-post Lanham Act decisions.  The Federal Circuit then affirmed.

The Supreme Court has now reversed course, holding that a district court may award the plaintiff with “the defendant’s ill-gotten profits” even without a showing of willfulness. However, the court does not go so far as to say plainly that a winning plaintiff “is entitled . . . to recover (1) defendant’s profits.”  Rather, the court takes a somewhat middle-road — holding that the principles of equity indicate that an infringer’s mens rea (mental state) is “a highly important consideration in determining whether an award of profits is appropriate.”  However, the mental state consideration does not require an “inflexible precondition” of willfulness.

The majority opinion is authored by Justice Gorsuch and joined by seven (7) other justices. Justice Alito joined the majority but also wrote a concurring opinion joined by Justices Breyer and Kagan. Justice Sotomayor also concurred.

The two concurring opinions appear written to attempt to clarify some internal inconsistencies within the Gorsuch opinion.  The Alito concurrence is only 1 paragraph and appears written to reemphasize the holding that willfulness is a highly important consideration:

The decision below held that willfulness is such a prerequisite. That is incorrect. The relevant authorities, particularly pre-Lanham Act case law, show that willfulness is a highly important consideration in awarding profits under §1117(a), but not an absolute precondition.

Alito concurring.

Justice Sotomayor further explains that the majority “suggests that courts of equity were just as likely to award profits for such ‘willful’ infringement as they were for ‘innocent’ infringement.”   Justice Sotomayor explains that the majority’s statement “does not reflect the weight of authority, which indicates that profits were hardly, if ever, awarded for innocent infringement.”  The concurring opinion also points to a feature of possible confusion – that the willfulness definition was formerly more broadly defined to include a “range of culpable mental states–including the equivalent of recklessness.”

I will note that IP Remedies Professor Thomas Cotter has posted a short note about the opinion with the following to-the-point statement: “To say I am disgusted would be an understatement.”  Prof. Cotter recalls that the Patent Statute also doesn’t say anything about willfulness, but that the Supreme Court recently reaffirmed that willfulness is a requirement for enhanced damages under Section 284 (“the court may increase the damages up to three times the amount found or assessed.”).

The chart above comes from the USPTO Chief Economist’s office and is explained in the USPTO’s new report on Post-Alice Examination of Eligibility.

Guest Post by Prof. Gregory Dolin (Baltimore). Prof. Dolin recently filed an amicus brief supporting Celgene’s arguments that AIA post-issuance review represents an uncompensated takings of pre-AIA patent rights.

Since its passage in 2011, the America Invents Act has been subject to numerous Supreme Court decisions. But thus far, the major constitutional challenge to the Act in Oil States Energy Servs v. Greene’s Energy Group has failed. But while the Court the, upheld the AIA’s post-issuance review system against an Article III challenge, left a major question open. The Oil States Court stated that it was not resolving whether the application the AIA-created procedures to patents issued prior to the AIA’s effective date violates the Takings Clause of the Fifth Amendment. This question is now squarely presented to the Court in Celgene v. Peter. (There are also pending cases that in addition to the Takings issue raise a Due Process challenge).

Celgene owns two patents “generally directed to methods for safely distributing teratogenic or other potentially hazardous drugs while avoiding exposure to a fetus to avoid adverse side effects of the drug.” These patents were issued in 2000 and 2001, or more than a decade prior to the enactment of the AIA. These patents were challenged before the Patent Trial and Appeal Board (PTAB) in 2015 in an Inter Partes Review (IPR), and the proceeding resulted in cancellation of all but one of the challenged claims in both patents. As with other post-issuance proceedings, but unlike district court litigation, Celgene’s patents enjoyed no presumption of validity, and could be cancelled upon preponderance of evidence. Furthermore, in construing Celgene’s claims, PTAB utilized the “broadest reasonable interpretation” (BRI) approach, as was called for by the then-current rules. The interplay of lower standard of proof for cancellation and the BRI standard, combined with the lack of a meaningful opportunity to amend the claims, left patents challenged in IPR particularly vulnerable. (Since that time, the Patent Office issued new rules to amend its procedures and now measures the claims under the Phillips framework—the same standard in use by Article III tribunals).

Celgene challenged this procedure in the U.S. Court of Appeals for the Federal Circuit, arguing that by applying a different claim construction standard than in district court and denying the patent a previously existent presumption of validity, the America Invents Act retroactively devalued its property rights in their patents and therefore resulted in the constitutionally compensable Taking in violation of the Fifth Amendment. Relying on its two prior decisions, the Federal Circuit rejected the argument, holding that the presumption of validity is not “a property right subject to the protection of the Constitution.” Additionally, the Federal Circuit held that Celgene suffered no diminution in its property rights because its patents were always subject to ex parte and inter partes reexamination proceedings, both of which use (or used) the preponderance of the evidence standard with respect to patent validity. Celgene sought certiorari and I, together with Professors Kristen Jakobsen Osenga and Irina Manta filed a brief in support of the petition.

The argument we made in favor of Celgene is relatively straightforward. As the Supreme Court recognized time and again, a patent is a property right protected by the Takings Clause of the Constitution. In turn, the decision to procure a patent is fundamentally an investment decision which takes into account the likelihood that a patent would be challenged and survive such a challenge. In addition, the decision to disclose the invention and forgo trade secret protection is essentially a tradeoff: the patentee sacrifices the confidentiality of the invention in exchange for the protections of the patent system. (Admittedly, it is not always possible to keep the invention secret, especially if regulatory approval is necessary as in the case of Food and Drug Administration’s approval to market drugs or medical devices. Nonetheless, broadly speaking, an inventor has a choice between patent protection and trade secrecy protection). Depending on the robustness of those protections, the scales of the decision on whether to seek a patent may tip one way or another. Thus, the legal regime existing at the time the applicant filed for the patent constitutes the patentee’s “investment-backed expectation.”

The legal regime matters, and IPRs couldn’t be more different from reexaminations. As my research shows, the economic impact of the AIA on patent holders has been profound. The reason behind this significant drop in value is that although administrative review procedures have existed for nearly 40 years, these procedures have always been coupled with a patentee’s unlimited right to amend the claims in order to preserve their validity. Thus, prior to the AIA the patentee knew that if his patent were challenged one of two things will happen. One option was for the dispute to end up in an Article III court where the claim would rise and fall as written, but where the patent would enjoy a presumption of validity. Alternatively, the dispute would be resolved by the Patent Office where the claims would not be presumed valid, but would be subject to amendments for as long as the patentee was willing to continue prosecuting the patent. The AIA fundamentally altered this balance. Under the AIA, claim patentability can be adjudicated by the PTAB without the presumption of validity and without a robust opportunity to amend the claims. (Although the statute does permit claim amendments, these are not as of right, but must be requested by motion to the PTAB. Since October 2017 when the Federal Circuit held that Motions to Amend must be allowed unless the Patent Office carried its burden to show that claims are unpatentable, the PTAB has granted only 16% of such motions (with an additional 6.5% being granted in part). These already low numbers are a significant improvement from the pre-2017 system where the PTAB granted under 3% of such motions.

It should be acknowledged that Celgene did not seek to amend its claims during the PTAB proceedings, which may make it not an ideal vehicle to resolve the takings claim. On the other hand, given PTAB’s rejectionist approach to motions to amend, it is quite possible that Celgene was among countless patentees who chose not to bother with filing the motions in the first place. (It is worth noting that Celgene’s patents were adjudicated prior to October 2017).

The Supreme Court has previously concluded in Ruckelshaus v. Monsanto Co., that when the government changes the terms of the bargain with an individual, such a change can result in a regulatory taking. In Monsanto, the Court held that the Environmental Protection Agency’s public disclosure of data voluntarily submitted to the Agency may, in some circumstances, constitute a taking. The Court’s analysis was centered on the legal rules governing the use and disclosure of such data and the “nature of the expectations of the submitter at the time the data were submitted.” The Court held that the Government’s guarantee at the time of submission that the submitted data would remain a trade secret and not be disclosed to third parties “formed the basis of a reasonable investment-backed expectation” and played a role in the property holder’s decision whether to submit the data to the EPA in the first place. Celgene’s situation is analogous. When it had to make a decision whether or not to obtain a patent or rely on trade secrecy, it made the decision by reference to the then existing government guarantees of patent protections. Changes to that regime are what constitutes a compensable taking.

Before closing, it should be acknowledged that there is a significant issue that is antecedent to the question presented in Celgene’s petition. That is whether the Federal Circuit has jurisdiction to hear such claims absent filing of a claim for compensation in the Court of Federal Claims (CFC) and if so, how the Claims Court is supposed to evaluate the value of property lost. That question is embedded in a separate petition before the Supreme Court. The Federal Circuit has recently concluded that the CFC does have jurisdiction to hear such claims, even if on the merits it must reject them. The Government has advanced a contrary view (which the CFC endorsed, though this endorsement is at odds with the Federal Circuit’s later opinion). It may be that this issue may need to be resolved before (or concurrently with) the issue presented by Celgene.

In sum, the Supreme Court should answer the question whether retroactive application of the AIA’s post issuance review procedures to patents issued prior to the passage of the AIA, and which results in their invalidation, constitutes a taking within the meaning of the Fifth Amendment—a question the Court explicitly left open in Oil States. And in my view, the answer should be “yes.”

by Dennis Crouch

Thryv, Inc. v. Click-to-Call Tech (Supreme Court 2020)

In this case, the Supreme Court has sided with the PTO and Patent-Challengers — holding that the agency’s decision to hear an IPR challenge is not reviewable on appeal — even if the challenge is based upon the time-bar of §315(b).  According to the court, a ruling otherwise “unwind the agency’s merits decision” and “operate to save bad patent claims.”

Read the Decision Here: https://www.supremecourt.gov/opinions/19pdf/18-916_f2ah.pdf

The statutes authorizing inter partes review proceedings (IPRs) provides the USPTO Director with substantial latitude in determining whether or not to grant initiate an IPR. One limitation is that an IPR petition must be filed within 1-year of the petitioner (or privy) being served with a complaint fo infringing the patent. 35 U.S.C. §315(b).  The PTO cancelled Click-to-Call’s patent claims, but the Federal Circuit vacated that judgment after holding that the PTO should not have initated the IPR.  The issue on appeal was whether a lawsuit that had been dismissed without prejudice still counted under the §315(b) time-bar.  No, according to the PTO; Yes, according to the Federal Circuit.

A key problem with the Federal Circuit’s decision is the no-appeal provision also found in the statute:

The determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.

35 U.S.C. §314(d).  The Federal Circuit held that the time-bar issue should be seen as an exception to the statute, the Supreme Court though has rejected that analysis.

Cuozzo: This is the Supreme Court’s second venture into analysis of the time-bar.  In Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131 (2016), the court held that the no-appeal provision will preclude appellate review in cases “where the grounds for attacking the decision to institute inter partes review consist of questions that are closely tied to the application and interpretation of statutes related to the Patent Office’s decision to initiate inter partes review.”   Cuozzo expressly did not decide when you might find exceptions — “we need not, and do not, decide the precise effect of § 314(d) on appeals that implicate constitutional questions, that depend on other less closely related statutes, or that present other questions of interpretation that reach, in terms of scope and impact, well beyond ‘this section.'”

In Thryv, the Supreme Court found that Cuozzo governs the time-bar question — holding that the statutory time-bar is closely related to the institution decision:

Section 315(b)’s time limitation is integral to, indeed a condition on, institution. After all, §315(b) sets forth a circumstance in which “[a]n inter partes review may not be instituted.” Even Click-to-Call and the Court of Appeals recognize that §315(b) governs institution.

Majority Op.  “The appeal bar, we … reiterate, is not limited to the agency’s application of §314(a).” Id. at n.6.

In its decision, the Supreme Court also puts its thumb on the policy concerns of “overpatenting” and efficiently “weed[ing] out bad patent claims.”

Allowing §315(b) appeals would tug against that objective, wasting the resources spent resolving patentability and leaving bad patents enforceable. A successful §315(b) appeal would terminate in vacatur of the agency’s decision; in lieu of enabling judicial review of patentability, vacatur would unwind the agency’s merits decision. And because a patent owner would need to appeal on §315(b) untimeliness grounds only if she could not prevail on patentability, §315(b) appeals would operate to save bad patent claims. This case illustrates the dynamic. The agency held Click-to-Call’s patent claims invalid, and Click-to-Call does not contest that holding. It resists only the agency’s institution decision, mindful that if the institution decision is reversed, then the agency’s work will be undone and the canceled patent claims resurrected.

Majority Op. Section III.C

Justice Ginsburg delivered the opinion joined in fully by Chief Justice Roberts and Justices Breyer, Kagan, and Kavanaugh.  Justices Thomas and Alito joined with the decision except for the policy statements found in III.C.

Justice Gorsuch wrote in dissent and was substantially joined by Justice Sotomayor.  Justice Gorsuch was not yet on the court when Cuozzo was decided, and Justice Sotomayor joined Justice Alito’s dissent to that decision.  The basics of the dissent is that our Constitution does not permit a “politically guided agency” to revoke property rights without judicial review:

Today the Court takes a flawed premise—that the Constitution permits a politically guided agency to revoke an inventor’s property right in an issued patent—and bends it further, allowing the agency’s decision to stand immune from judicial review. Worse, the Court closes the courthouse not in a case where the patent owner is merely unhappy with the merits of the agency’s decision but where the owner claims the agency’s proceedings were unlawful from the start. Most remarkably, the Court denies judicial review even though the government now concedes that the patent owner is right and this entire exercise in property taking-by-bureaucracy was forbidden by law.

Id.  The majority reject’s the dissent’s call for patents-as-property:

The dissent acknowledges that “Congress authorized inter partes review to encourage further scrutiny of already issued patents.” Yet the dissent, despite the Court’s decision upholding the constitutionality of such review in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 584 U. S. ___ (2018), appears ultimately to urge that Congress lacks authority to permit second looks. Patents are property, the dissent several times repeats, and Congress has no prerogative to allow “property-taking-by-bureaucracy.” But see Oil States, 584 U. S., at ___ (slip op., at 7) (“patents are public franchises”). The second look Congress put in place is assigned to the very same bureaucracy that granted the patent in the first place. Why should that bureaucracy be trusted to give an honest count on first view, but a jaundiced one on second look?

Majority Op. at n.4.

In a portion of the dissent not signed by Justice Sotomayor, Justice Gorsuch laments that the majority decision “takes us further down the road of handing over judicial powers involving the disposition of individual rights to executive agency officials.”

So what if patents were, for centuries, regarded as a form of personal property that, like any other, could be taken only by a judgment of a court of law. So what if our separation of powers and history frown on unfettered executive power over individuals, their liberty, and their property. What the government gives, the government may take away—with or without the involvement of the independent Judiciary. Today, a majority compounds that error by abandoning a good part of what little judicial review even the AIA left behind.

Justice Gorsuch in Dissent – Part V.

Just try to imagine this Court treating other individual liberties or forms of private property this way. Major portions of this country were settled by homesteaders who moved west on the promise of land patents from the federal government. Much like an inventor seeking a patent for his invention, settlers seeking these governmental grants had to satisfy a number of conditions. But once a patent issued, the granted lands became the recipient’s private property, a vested right that could be withdrawn only in a court of law. No one thinks we would allow a bureaucracy in Washington to “cancel” a citizen’s right to his farm, and do so despite the government’s admission that it acted in violation of the very statute that gave it this supposed authority. For most of this Nation’s history it was thought an invention patent holder “holds a property in his invention by as good a title as the farmer holds his farm and flock.” Hovey v. Henry, 12 F. Cas. 603, 604 (No. 6,742) (CC Mass. 1846) (Woodbury, J., for the court). Yet now inventors hold nothing for long without executive grace. An issued patent becomes nothing more than a transfer slip from one agency window to another.

Id.