A patent right is the only property which can be trespassed upon without the owner’s knowledge, in every part of the country, by an innumerable number of trespassers at the same time. The owner can neither watch it, nor protect it by physical force, nor by the aid of the police or of the criminal law. He thus necessarily requires more efficient civil remedies than those do the protection of whose property does not depend upon civil remedies alone.
James Storrow, Money Recoveries in Patent Suits, 13 American Law Review 1 (1879).
It’s interesting there is no mention of James Storrow serving during the Civil War like so many of his generation. Apparently, his brothers Samuel and Charles served with the 44th Massachusetts Infantry Regiment during the Civil War.
He was so focused on patent as a property right, but he did not participate in the “property rights” issue (i.e., slavery) that was such a huge issue of his generation. On the other hand, with two brothers serving the Union, his parents may not have been willing to risk a third.
“but he did not participate”
From what I can tell from where his name pops up on the Internet.
So what? You don’t know what his views were on the Civil War apparently and not fighting in the Civil War as a soldier without more information doesn’t mean much.
What kind of woke nonsense is this post arising from?
Don’t be a sore loser.
How is his rebuttal to you a sign of being a sore loser?
The typical Marxist/far left/hate monger game that if you oppose anything one of them say then you are a bad person and thing that they hat e and are trying to use to gain power. The hate monger is trying to imply that I am a Confederate sympathizer. Just bizarre as the Civil War was 155 years ago and I like most people in the USA just see slavery as wrong and have little to no connection with the Civil War. They are into blaming people based on ancestry and not what that person did. They are into drawing the line between good and evil outside themselves. They are the “good” ones and everyone else is the “bad” ones. (And I grew-up not in the South. And consider myself a person of the Enlightenment where rational discussion and debate are paramount to a functioning country.) These people like “ipguy” are the enemy of our Constitution and our country. They do not believe in the Enlightenment. They do not believe in rational thought or debate. They do not believe that the line between good and evil runs through each of us. They do not believe that a person should be judged based on their choices and not their ancestors choices. (Note too that they conveniently don’t investigate or care about what their ancestors did wrong.)
Etc. Just your garden variety far leftie.
.. and I do not see that in ipguy’s comments here.
Do you think that he is ascribing to you the view that “loser” means Civil War loser?
That would be an odd view indeed from ipguy.
That’s the way I took it.
Maybe ipguy has become one of the “woke.”
That is the way I took his posts.
IPGUY:
Typical bigot/Marxist/hate monger attitude. Sorry but I am not a Southerner. And I like most Americans am a mixture of lots of cultures.
Try to address my point.
Ipguy doesn’t feed trolls, troll.
Stop acting like a rabid animal, booger breath
You do not seem to understand the concept of replying to a counterpoint versus this “feed the tr011s” thing.
Of course, this begs the ‘wisdom’ of such “don’t feed” advice in the first place.
Me? I have found it immensely enjoyable to beat any such “tr011” at their own game, especially as I also move that “tr011” to engage on the merits.
It becomes quite obvious that my adversary is only interested in disruption, and quite often is made to skulk away, with their tail between their legs, and the ‘bridges’ cleared of such rent-seekers.
As an even better bonus, I often can then live rent free in the ‘palatial estates’ of their wounded minds.
I love the logic of the far left. Some tr o ll tries to cancel a guy from the 1800’s because he didn’t fight in the Civil War (apparently) for unknown reasons and calls me (cutely) a Southern sympathizer when I object to his first post.
But I am the t r o l l by the psycho logic of the far left.
Bad enough NW brags about the one way ticket he bought on the train to crazy town , he brags about how it’s a first class ticket to crazy town.
Are you complaining because you could only afford coach on that train?
Says anon, the guy driving the crazy train.
Always jumping in to help your lover NW. So romantic of you.
Lol – I’m protecting nobody. The analogy of me being a driver simply misses the mark (with you as a jealous, sub-tier passenger), but you probably were in too much of a hurry to cogitate much on that, eh?
You’re only driving the crazy train. So try and act butch all you want, when it comes to you and NW, you are the receiver.
By your “logic” then, you are the receiver to ipguy…
This will not end well for you.
anon, these posts have the smell of “The Poopy Diaper.”
I do not agree, Night Writer.
P00py usually has more venom. These seem to be from more of a simpleton.
NW and anon keep dancing like baboons with two club feet.
Well said, Moderate. Forget NitWit and Anobody. They’re co-dependent morons who would get the stuffing kicked out of them if they ever said at an AIPLA meeting any of the meaningless feces they post here and at other blogs.
Ah, my second in-the-mind-rent-free-home chimes in.
But I am curious as to what exactly it is that I have stated that would “get the stuffing kicked out of me” at an AIPLA meeting, as well as why you think that THAT organization is somehow a model one.
Maybe you just don’t like the John Maynard Keynes approach. Maybe you just wear your Liberal Left activist privilege a bit too blindly.
Once again, anon opens his mouth and proves PPO’s point.
And once again, your assertion falls flat as such just did not happen.
He clearly could not provide backing to his initial assertion, so the very opposite of YOUR assertion is the current state of the discussion.
But thanks for playing.
And once again anon doubles down on being this blog’s village idiot, MCI.
Anon lost again, and further humiliated himself in the process, and anon will continue to humiliate himself with his compulsive need to get in the word. His posting in response to this declares to all the world what a pathetic loser he is.
The ‘scent’ is noticeable…
This type of false premise “heads I win, tails you lose” gambit reminds me of my pal Shifty (yet another mind in which I live rent free — and not the only parallel to your own current 0bsess10n with me).
As I mentioned previously, it is NOT only “post last,” but post better AND post last.
In this current exchange, I STILL have the “post better” for the reasons already given and which have not been rebutted.
Thus, this post serves merely as a reminder that my better posts have not yet been answered.
(in other words, I win — which makes your bald assertion of whom is the loser into just that: a bald assertion. You need a better game, my friend!)
Notably on this thread of 80 plus comments, there is an absence of discussion on what this old article (dealing with the then bifurcated “law” and “equity” courts) has to actually say about the NATURE of the patent right being a negative right (and NOT a right due to the actual manufacture of an a actual good).
It is THIS nature of the patent right that directly and immediately impacts and informs ANY “application of the principles of equity” that the Legislative Branch has loaned its Constitutional Authority to the Judicial Branch by way of 35 U.S. Code § 283.
Asa reminder (with my emphasis):
Injunction
The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.
So let’s be clear:
Principles of equity here are directed to PROTECT the patent holder.
Principles of equity here are (as a foundation) meant to make the transgressed as whole as possible.
Principles of equity here are NOT to treat ‘injunction’ as an ‘atom bomb’ of a remedy — as may be viewed towards OTHER and different TYPES of rights.
The nature of the right, and the nature of the direct words of shared authority (which are to be very carefully treated whenever one branch lends its Constitutional authority to another branch) lead in a very different direction than what MANY (and typically, but not exclusively, anti-patent) folk would take for granted.
Was this the real “Anon?”:
“The patent right being a negative right (and NOT a right due to the actual manufacture of an a actual good).”
[Actually, only a government granted right to bring a lawsuit against someone Else sufficiently engaged in actual manufacture of an actual good to be worth suing.]
“Principles of equity here are NOT to treat ‘injunction’ as an ‘atom bomb’ of a remedy.”
[Only, by statute, “on such terms as the court deems reasonable” “in accordance with the principles of equity.”
Your questions are as quizzical as your comments, Paul.
Do you have a point?
The point appears to be that you don’t know what you are talking about. Of course, that is more of an observation than a point.
Yet again, NS II, what “appears to you” is simply wrong.
The fact of the matter is that I know what I am talking about and there is nothing in my comments that would indicate otherwise.
Indeed. This has been a point of debate between myself and prof. Mossoff, i.e., the remedy of the court of equity. A good case in point concerns the patent fight over the oil cooled electric transformer (Westinghouse?) and at least one trip to SCOTUS. Westinghouse enforces the patent in a court of law, wins, obtains legal damages under the 7th (under the old law of apportionment of profits), and obtains a specific injunction formed around the claimed invention (as I recall, it concerns the shape of the magnetic core and the oil cooling, so it’s specifically directed as required even under the modern statute). Appealed, affirmed, it’s final. Case ends.
Claims made as to new non-infringing design? Anyways, according to Westinghouse, the infringement continues. Another suit brought in a court of law, Westinghouse wins again, but this time, Westinghouse enters the already issued injunction (from the first case) and prays to the court of equity for relief. Now here is where Mossoff, but he can speak for himself, and I depart. According to the modern statute, read in light of history, the modern court now sits as a court of equity, and therefore the law of equity is the ONLY law permitted, authorized by statute, at this juncture, see the statute, see also Story – The Law Equity. The Westinghouse court reaches the conclusion that the equitable theory of ‘unjust enrichment’ is the framework which a court of equity must proceed. Paraphrasing, you can’t serially infringe the property right of another and continue to profit from the wrongful conduct. The court of equity orders the disgorgement of the infringers profits from the infringing product (in other words, this time there is no fighting over apportionment to determine damages) the remedy is the entire profits. Appealed to SCOTUS, argued, and affirmed as correct. Of interesting note, recall in those early electricity case devices such as transformers made profits as measured by the Amps in contrast to a one time sale of the device, if that were the case in Westinghouse, disgorgement of the infringers profits would be titanic.
Flash forward to the current situation wherein we have apportionment to determine Georgia Pacific damages at law under the 7th (Ironically, ‘no less than a reasonable’ royalty was put into statute because the serial infringers of the day had so mucked up ‘apportionment’ of profits as the legal remedy as to be unworkable, funny how history repeats ehh? But I digress). And then the eBay scenario for the court of equity to determine whether to grant equitable relief (putting aside IMHO the current misapplication of the 4 part test and ignoring the specific holding in eBay affirming the Continental Paper Bag case, the second question presented under cert.) what CAN a court of equity do at this juncture? 1. Patent holder gets the specific injunction, my contention is that Westinghouse is still good law, and under the same scenario, appeal, affirmed, final, new case, this time entering the injunction into the record, unjust enrichment – without apportionment – (you might call it the remedy for the contempt of the prior order) is what is required under the current statute and Westinghouse. In other words, damages are NOT the sum of the legal damages determined under the 7th, i.e., the current law of ‘apportionment’ to determine GP royalty base and rate because this would approximate a compulsory license, and that is exactly what the law of equity says you cannot do. Some would say, but the court can enhance damages to punish the continued infringement, e.g., determine damages for contempt of the prior injunction order, to be sure, I agree that information would be informative to a court of equity. My point being, is that you are still coming from the wrong place – apportioned royalty rate and base legal damages – even multiplied by some court determined factor, is still not reaching the ‘correct’ result. Under Westinghouse, the correct way to determine the result is from the law of equity, under a theory of unjust enrichment – without apportionment. 2. The injunction is denied under eBay. We can leave that for another day for now.
thank you iwt – that’s some wall of text, but on a first read, you make a tremendous amount of sense.
Yeah, like many topics in patent law, it’s not an easy point to make without some background, context and history.
+1
Having digested that a bit, I would be interested in your views vis a vis:
“Now here is where Mossoff, but he can speak for himself, and I depart.
According to the modern statute, read in light of history, the modern court now sits as a court of equity, and therefore the law of equity is the ONLY law permitted, authorized by statute, at this juncture,…”
I do NOT see this at all for modern courts, as I see the modern court NO LONGER being one or the other, but a necessary amalgam of Law and Equity — and that being non-separable.
The idea that any technologist could- or should-be aware of every potential infringement while developing products just is a s illy form of magical thinking.
No work could proceed if every step had to be fully checked against the patent corpus, and nobody could even perceive the analogous arts and the patent terms and the often ab surd results of continuation practice.
It’s not “efficient infringement” so much as “efficient” to go about the work and let the chips fall when doing new development.
If in the normal course, without apparent influence, you end up ‘inventing” the same thing(s) as someone else did, you should assume the “invention” is not worthy of IP protection to begin with.
If you are intentionally copying another product, you will know it. If you are responding to a competitive innovation with something similar, you will know it.
From that knowledge, the possibility arises of doing a clearance – formal or informal. No reasonable person would ignore patents entirely, just as no reasonable person would think reliable pre-infringement knowledge is a practical possibility in many situations.
In Re: The Kenosha shooter: Both the common law and our statutory innovations regarding self-defense fail in a combat zone.
There should have been no reasonable perception that civil authority was in force at that time and place, and as such, both the shooter and those he shot were all combatants. If you are at a protest, the civil laws should hold. When it becomes a riot, the laws of war should prevail. A key law of war is the distinction between the armed and the unarmed. The world is quite familiar with outsiders seeking excitement or profit bringing their weapons to places of unrest.
Re those cases where: “If you are intentionally copying another product, you will know it. If you are responding to a competitive innovation with something similar, you will know it.” [And thus need to do at least a patent search of that other company’s patents.]
[But this is assuming the knowledge of the engineer or product designer doing that copying gets to the company’s patent department in time for them to request product development changes before launch.]
The very real threat of up to treble damages by statute for willful infringement is a serious deterrent to infringement of patents by copying products of others, as compared to trespass and most other civil tort cases.
“you end up ‘inventing” the same thing(s) as someone else did, you should assume the “invention” is not worthy of IP protection to begin with.”
Not only completely asinine, and not in accord with ANY** notion of innovation protection law, this would be horrible public policy as it would REWARD NOT being informed – the very part of the Quid Pro Quo that established patents in the first place.
This is the epitome of being anti-patent.
** with a slight nod to obviousness, but clearly outside the patent law realm of that notion in a Sun Tzu manner.
Martin —
Aren’t your assumptions internally contradictory? If the infringer was first, the patent is invalid. If the patent is valid, unfortunately, the infringer wasn’t first.
The patent system has to be designed around ex ante incentives, not ex post notions that animate your post.
David
If the infringer was first, the patent is invalid
No, if “infringer” were second, or third, or ninth & they all did it on their own, the patent should be invalid for obviousness. Multiple instances of independent development strongly suggest non-invention.
>>Multiple instances of independent development strongly suggest non-invention.
This is always stated by the anti-patent crowd. But it simply is ridiculous. The fact is that once something is invented it permeates the innovation cloud. The “independent” inventors always certainly saw the invention or read about it or saw another invention that was based on it.
I’ve worked with so many inventors and was an inventor and product designer. I can’t tell you the number of times I’ve read I’ve invented this and then you go through it and what they did was see an invention and forget it and then think they invented it.
This is strongly related to the denial of hindsight reasoning by the Federal Circuit.
NW that’s just a load of cr..ap, especially in the computer “arts”.
Programmers solve myriad problems and move on, with the solutions locked up in the code until years later- when a never should have been issued patent appears- and the whole ab surd counting of angels on pins (sorry, finding of “structure”) unfolds.
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Marty is one who refuses to accept reality that in the computing arts, “soft” is merely a design choice for patent equivalent (and please, let us at least grasp that equivalent does NOT mean “exactly the same as”) innovation.
This very odd notion of “locked up in code” has zero bearing in the legal terrain.
Surely the timing matters here, no? If A, B, C, D, & E—each working independently of the others—each arrive at the same “invention” all within the same month, that is evidence of obviousness. None of them could—under the terms of my hypo—have learned anything from the others, so the fact that they all independently arrived at the same invention at the same time suggests that the state of the art had developed to the point where this “invention” was the obvious thing to do. We should not award the patent to the B team just because they filed on this obvious subject matter on Monday, while A & C filed Wednesday, D on Thursday, & E on Friday.
On the other hand, imagine that A invents an invention, and gets a patent in 1998. A never commercializes, and B never reads A’s patent. In 2005, B re-“invents” the same technology that A patented in 1998. That surely does not prove that A’s invention was obvious in 1998. Rather, it more likely indicates that the knowledge that A’s 1998 disclosure put into the ether diffused over to B by some indirect channel.
It is, in other words, not so simple as “multiple re-inventions betoken obviousness.” Sometimes they do, sometimes not. Depends on the timing.
This is so intuitively accurate that I wonder of those speaking without caveats are doing so deliberately and would disagree.
Is that “intuitively” the same flavor as hindsight reasoning?
Bottom line here is that patent systems exist to create races, and just because races may have many runners, does NOT create the attempted “de facto — that must be obvious” regardless if a particular race ends up ‘close.’
To mindlessly assert, ‘well, they were within ‘X’ amount of time together, so it must be obvious’ is just that: mindless.
+1
What anon says is exactly right.
Plus, you know, the game they are playing is that somehow a patent must be a noble thing that is a badge of greatness.
No. The patent is like winning the Super Bowl. The point is to incentivize innovation–not to recognize genius or to present awards for intellectual achievement.
The goal is to incentivize innovation.
The t r o l l nonsense never ends on this blog.
Greg, absolutely true…but…time is not the only vector.
Like a Wonkavator..cleverness works sideways, upways, any which ways. Someone working on language processing in 1998 in context A (decoding telegrams from foreign installations) may solve a problem that does not diffuse, in any way, to someone working on language processing in context B (coaching service reps live during conversations). They may be coming at it from totally different angles.
In programming, if solutions really are clever, but the utility still represents a fraction of a fraction of a fraction of a salable unit, how should things like injunctions and mandatory licensing work?
Should there be separate kinds of infringement when a feature can reasonably be found as the proximate cause of the sale of a salable unit v. a feature that is additive, but not decisive?
So yes, time is important, but so are the actual, realistic ways that knowledge of the problem and solution would diffuse to later, but distant arts.
In many technologies, we lose information to the ages, not gain it. Nobody ever, ever reads patents.
Because one doesn’t have to reduce an invention to practice in order to obtain a patent, the only public disclosure might be the patent publication itself. Are you claiming that everyone reads published patents? If not, what is the basis for your claim that “The ‘independent’ inventors always certainly saw the invention or read about it or saw another invention that was based on it.”?
NS II: You are such a t r o l l.
We have been through this a million times. “[T]he only public disclosure might be the patent publication” is true but not likely.
The entire point of the patent publication is to make the disclosure public knowledge and allow the inventor to share the knowledge in papers and so forth.
I think that he wants an evidentiary standard (like Greg) that he himself would never meet with his own comments.
NS II has routinely chosen p00rly when he ventures forth with his feelings.
Was this irony intentional?
You see something not there, NS II.
How did you determine that it is not likely that the only disclosure is the patent publication?
Surely, you can tell the difference between accessible and actually being accessed. I assume you are old enough to know that points are not always achieved. The point of patent examination is to ensure that only valid patents are issued, but we know that doesn’t always happen.
Why does your failure to rebut my statements or defend your position make me a troll?
NS II just ridiculous comments.
Here is one example. Often, inventors I work with will write and publish a paper they present at a conference simultaneously with me writing a patent application.
The patent application enables the inventor to share what they’ve done. Your continued assertion that the patent application database is the primary source of information from patent disclosures is nonsense.
And so forth. I’ve argued this with you a 100 times and you bring it back to your t r o l l assertions again and again.
NS II,
The “Tr011” aspect comes from you attempting a point that has been previously rebutted, as if that rebuttal never happened.
It is well known that it is only after a patent filing are the inventors then given reign to publish and discuss, so to attempt to say “no one reads patents” (or the like) is Tr011ing.
Notice too anon the way the t r o l l s go silent once we work through their levels of BS and get to the substance.
Then they fly off to the next post to make the same BS arguments.
Since you have never rebutted my statements yet claim to have done so a million times, it is clear that you are not a critical thinker. Your claim of what is likely based solely on your own observations/feelings is a good example. Seriously, do you honestly think that what you may have personally observed is a rebuttal?
The reason I did not respond to your self-proclaimed victory as the last one “talking” is that the reply limit had been reached. However, I could have also invoked the policy of never arguing with a fool.
NS II: the tro l l nonsense never stops with you.
I conveyed not just my personal experiences but also illustrated other avenues in which the information from patents applications may be disseminated.
So you make a ridiculous statement. I counter it with proof of other avenues with literally 1000’s of personal examples where this has happened and your response is that I must prove it to you.
No thanks. I did prove it to a degree necessary to refute what you said.
Plus, NS II (boy), go read about yourself.
One of the whole reasons to have a patent system is for the dissemination of information. There are articles written on this and all the advantages that inure from making the information public.
What an f’ing joke you and your lot are. Anti-intellectual f i l t h.
Marty,
Your view is the one that is a load of
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You would induce disincentives, and instead “promote” only those things that would be “races of one.”
A critical element of the terrain which you refuse to learn is that the system WANTS multiple racers, as this accelerates innovation.
You clearly show a lack of understanding of both innovation and promotion of innovation.
you have been drinking Lemley’s Koolaid
I think that he may have ‘invented’ that Kool-Aid on his own (stemming from having his own hands ‘patent-slapped’).
Does the multiple source make it obvious that Marty IS drinking some Kool-Aid?
No, if “infringer” were second, or third, or ninth & they all did it on their own, the patent should be invalid for obviousness. Multiple instances of independent development strongly suggest non-invention.
This is not the standard. The standard with regard to obviousness under 35 USC 103 involves what would have been obvious “to a person having ordinary skill in the art to which the invention pertains.” If two or three or nine extraordinarily-skilled inventors came up with the invention within a short period of time, that says nothing about what would have been obvious to one of ordinary skill.
Your analysis also fails to appreciate what the US Patent System is for — it is to promote the progress of science and the useful arts. Imagine if you were to hold a footrace and grant a $10,000 prize to the winner. After months of training, the race was run and the results tabulated. It was then determined that the 2nd through 4th place runners finished close behind the 1st place runner so the organizers determined that the $10,000 prize wasn’t going to be rewarded at all — to any runner.
What do you think is going to happen in the next race? Do you think you’ll get as many entrants? Do you think they’ll train as hard? If they believe that even if they win the race that won’t get the prize, how motivated do you think they’ll be to put forth the effort to race?
There will always be people who will race because they love to race. Similarly, there will always be people who will invent because they love to invent. However, the goal of the patent system is to promote the progress of invention. You do that by making sure that there is a prize at the end of the race. Having that prize helps ensure more competitors. Moreover, all competitors will be incentivized to be better than if they were just running against themselves.
As a practical matter, those that run in the patent race who come in second or third or ninth are still can end up being winners. Inventors invent to solve problems, and many problems have multiple solutions. As such, the 2nd place finisher may have solved the problem, but came up with a slightly different way to solve that problem — and this slightly different way may, in itself, be separately patentable.
As I go through my day, I occasionally encounter some situation in which I say to myself “I could design an app that would make this job so much easier.” However, I know that such an app would likely be deemed “obvious” and if not obvious, it would be deemed “patent ineligible.” As such, why would I want to invest my time and effort to build something that I cannot get patent protection on? If an inventor of such an app came to me and asked me to get a patent on it, I would explain to him the following realities of the current US patent system:
1) the patent office is likely going to find it obvious/patent ineligible.
2) if, by the grace of almighty, you do get a patent and the technology has any value, some large company is going to copy it.
3) if you go to assert that patent against a large company, your patent will die either at the PTAB or at the district court on a 12b6 motion to dismiss.
What sounded-minded individual is going to through with that (and “that” including the development of the product) when the likely end result will be hundreds of thousands of attorney bills they cannot pay and the app being efficiently infringed by some large company? Is the progress of science and useful arts promoted by that result?
If two or three or nine extraordinarily-skilled inventors came up with the invention within a short period of time, that says nothing about what would have been obvious to one of ordinary skill.
I can agree that two parties may still represent two extraordinary thinkers. By the time that you get to nine, however, you have to wonder what it means to characterize these parties as “extraordinary.”
If the USPTO says that all of the examiner corps is above average, you can see through that chicanery quickly enough. How can you—with a straight face—tell the opposite story about patent applicants?