Recoveries in Patent Suits

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).

 

149 thoughts on “Recoveries in Patent Suits

  1. 14

    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.

    1. 14.1

      “but he did not participate”

      From what I can tell from where his name pops up on the Internet.

    2. 14.2

      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?

      1. 14.2.1

        Don’t be a sore loser.

        1. 14.2.1.1

          How is his rebuttal to you a sign of being a sore loser?

          1. 14.2.1.1.1

            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.

            1. 14.2.1.1.1.1

              .. and I do not see that in ipguy’s comments here.

            2. 14.2.1.1.1.2

              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.

              1. 14.2.1.1.1.2.1

                That’s the way I took it.

                Maybe ipguy has become one of the “woke.”

                That is the way I took his posts.

        2. 14.2.1.2

          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.

          1. 14.2.1.2.1

            Ipguy doesn’t feed trolls, troll.
            Stop acting like a rabid animal, booger breath

            1. 14.2.1.2.1.1

              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.

              1. 14.2.1.2.1.1.1

                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.

                1. 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.

                2. Says anon, the guy driving the crazy train.
                  Always jumping in to help your lover NW. So romantic of you.

                3. 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?

                4. 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.

                5. I do not agree, Night Writer.

                  P00py usually has more venom. These seem to be from more of a simpleton.

  2. 13

    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.

    1. 13.1

      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.”

      1. 13.1.1

        Your questions are as quizzical as your comments, Paul.

        Do you have a point?

        1. 13.1.1.1

          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.

          1. 13.1.1.1.1

            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.

    2. 13.2

      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.

      1. 13.2.1

        thank you iwt – that’s some wall of text, but on a first read, you make a tremendous amount of sense.

        1. 13.2.1.1

          Yeah, like many topics in patent law, it’s not an easy point to make without some background, context and history.

          1. 13.2.1.1.1

            +1

          2. 13.2.1.1.2

            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.

  3. 12

    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.

    1. 12.1

      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.

    2. 12.2

      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.

    3. 12.3

      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

      1. 12.3.1

        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.

        1. 12.3.1.1

          >>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.

          1. 12.3.1.1.1

            This is strongly related to the denial of hindsight reasoning by the Federal Circuit.

          2. 12.3.1.1.2

            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.

            1. 12.3.1.1.2.1

              ^^*
              S
              I
              G
              H

              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.

          3. 12.3.1.1.3

            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.

            1. 12.3.1.1.3.1

              This is so intuitively accurate that I wonder of those speaking without caveats are doing so deliberately and would disagree.

              1. 12.3.1.1.3.1.1

                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. 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.

            2. 12.3.1.1.3.2

              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.

          4. 12.3.1.1.4

            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.”?

            1. 12.3.1.1.4.1

              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.

              1. 12.3.1.1.4.1.1

                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.

              2. 12.3.1.1.4.1.2

                How did you determine that it is not likely that the only disclosure is the patent publication?

                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.

                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?

                1. 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.

                2. 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.

                3. 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.

              3. 12.3.1.1.4.1.3

                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.

                1. 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.

                2. 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.

        2. 12.3.1.2

          Marty,

          Your view is the one that is a load of
          C
          R
          A
          P

          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.

          1. 12.3.1.3.1

            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?

        3. 12.3.1.4

          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?

          1. 12.3.1.4.1

            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?

            1. 12.3.1.4.1.1

              By the time that you get to nine, however, you have to wonder what it means to characterize these parties as “extraordinary.”

              Nonsense.

              The legal mechanism is already there. This is NOT a “Greg feels that nine is a nice number” type of thing.

            2. 12.3.1.4.1.2

              … the opposite story about patent applicants?

              Wow

              Is Greg really that full of himself or disconnected (or both)?

              As a general rule** patent applicants as a group are people who are inventive and have innovations over and above “ordinary skill in the art.”

              ** certainly, there may be those rare arts in which under a proper Graham Factors analysis, the ordinary worker is of a high – or higher – skill level than many seeking to protect their innovations, but Greg’s mindless and de facto attempt at treating entire class of innovators as “ordinary” is beyond belief.

          2. 12.3.1.4.2

            What do you think is going to happen in the next race? Do you think you’ll get as many entrants?

            We have run this experiment many times in our national and global history. The rate of tech progress is highly responsive to “patent system exists” vs. “no patent system exists” (or at least I believe as much). It is empirically evident, however, that the rate of tech progress is totally unresponsive to how hard or easy it is to get a U.S. patent. Anyone who thinks that a demanding obviousness standard will slow tech progress is either deluded or selling something.

            1. 12.3.1.4.2.1

              To the extent that “that the rate of tech progress is totally unresponsive to how hard or easy it is to get a U.S. patent” is true, it is only because technical people who do not have recent info about the state of the patent system are still incented to invent.

              1. 12.3.1.4.2.1.1

                Perhaps, but this seems to be a chronic condition. The courts were fairly unrelentingly hard on patents from 1890 through the 1950s, and yet this was an era that saw enormous leaps in industrial and medical tech progress. Evidently, inventors just do not pay attention to hostile trends in patent law.

          3. 12.3.1.4.3

            [T]he 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.

            Sure. I do not mean to put words in Martin’s mouth, but I do not think that situation is what he was discussing. I think that he was talking about the situation where the second team comes up with exactly the same solution as the first team.

            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?

            Right. Do not waste your time trying to patent that app. Just launch into the market. The patent is unlikely ever to matter to business success anyway. How often did Google or Facebook need to assert patents in order to grow their operations? Never, as near as I can tell. Patents seem large irrelevant to business success in the app market.

    4. 12.4

      the often ab surd results of continuation practice.

      As we have a ‘no new matter’ rule, Marty, let’s see your understanding (or perhaps more accurately, the lack thereof) of what you think is “ab surd” in view of continuation practice.

      I tend to think that this fixation and animus of yours as MORE to do with your own past legal tussles (and the ensuing gag order enforced on you in the settlement of your legal woes).

      Your posts come in two flavors: your wayward and fantasy re-writing of 101 and a latent hos tile view of software innovation.

    5. 12.5

      The laws of war? Like having uniforms and distinguishing between lawful and unlawful combatants?

  4. 11

    Last week in In re Langham, the CAFC denied a writ of mandamus to the WD Tex that would have ordered the court to declare (TX death row inmate) Rodney Ridell-Reed “free and clear of any wrong doing.” This morning in In re Smith the CAFC denied a writ of mandamus to the U.S. attorney for D.C. from prosecuting Jan. 6 insurrectionists. In In re Schnatter the CAFC also denied a writ of mandamus to the DNJ that would have ordered the Dept. of H&HS to “cease and desist… their egregious breach into [her] privacy… .”

    Why are all the weirdos coming to the CAFC with their mandamus petitions? Is it just the word “federal” in the court’s name?

    1. 11.1

      Why are all the weirdos coming to the CAFC with their mandamus petitions?
      Maybe because they view the CAFC as the only court that will grant mandamus petitions?

  5. 10

    Interesting. The central focus of the article is the split between law and equity. A court of law could only award damages, the injury to the patentee. A court of equity could treat the infringer’s profits as held in trust for the patentee, and award recovery of that. (“In olden days” a patent owner could recover infringer’s profits — still the rule for copyright and design patents, not for utility patents).

    So Storrow is trying to explain a mechanism for dealing with that split of jurisdiction.

    1. 10.1

      Thanks for the reminder that pre-1937 patent cases and commentaries have to be read in that context of the differences then between courts of law and courts of equity.

      1. 10.1.1

        As noted below (and previously directly reminded to you), understanding the principles of equity carries with it a far different tune than the one that you typically hum there, Paul.

    1. 9.1

      Many thanks Dave.

      Perhaps a better line from the article for this day and age would have been the line right before the one selected by Prof. Crouch:

      This does not exist as a right, nor indeed is the language of the Constitution fulfilled unless they are “secured,” so far as law can secure them, in the undisturbed and exclusive enjoyment of it.

      Given that the current age provides an UNsecured ‘fulfillment’ outside of the notion of exclusive (remembering that this is a NEGATIVE right, not providing for any actual positive ‘in practice’ goods), the PROPER view of the rules of equity (that portion of patent law expressly shared across the branches of government) NEEDS to recognize the very nature of what “infringement” means, and how the negative right is damaged, prior to looking at what a suitable remedy would be (and thus, why the general notion that “injunction is an atom bomb of remedies” does NOT apply.

      1. 9.1.1

        A patent sure is NOT ‘secured’ so long as PTAB star chamber is roaming the land. “Public rights doctrine’, pfft. Oil States was wrongly decided on many levels. This slimy slope of the ‘common good’ and optimal society result – Justice Breyer thinking, is hacking away not just property rights, but the rights of the individual as well.

        1. 9.1.1.1

          I agree with you on many levels here.

          In fact, one push-back to Greg DeLassus who has sought to “simmer down” a view that personal property rights took a hit in the Oil States case because “Public Franchise is a form of personal property” is the necessary consequence of FranchisOR to FranchisEE duties that ensue with any migration of the patent right to be considered a Public Franchise style of personal property.

          Of course, he won’t engage on the merits, but his LACK of engagement is as telling as anything that he would say anyway.

  6. 8

    Speaking of recoveries:

    A federal judge has ordered two Colorado lawyers who filed a lawsuit late last year challenging the 2020 election results to pay nearly $187,000 to defray the legal fees of groups they sued, arguing that the hefty penalty was proper to deter others from using frivolous suits to undermine the democratic system.

    Nice! Reminds me of a certain glibertarian patent huffer attorney from Colorado who used to post here all the time and was disbarred a few years ago (so surprising!). Rhymes with Fail Calling.

    1. 8.1

      Rhymes with Fail Calling.

      It truly is odd the things that stick in your mind.

      I have no idea who you are referencing, but could pretty much note with ease that you would apply your “one-bucketing” thinking (using THAT term very very loosely) to something that you do not like.

  7. 7

    Prof. Crouch is on an old law review article kick, and it is glorious. Good news for those who peddle the narrative that the U.S. patent system made this country great, but now we are in national decline because we are dismantling / have dismantled it: this is how the U.S. patent system has always been. If the nation did fine under a similar regime in 1890, and 1920, and 1945, we will be fine now.

    link to mobile.twitter.com

    1. 7.1

      The logic of that post Greg is abysmal.

      Not worth my time to point out why as it is so obvious.

      1. 7.1.1

        Ditto (my prior posts appear NOT to be escaping from the Count Filter).

  8. 6

    My response to Storrow (I hope it gets to him) is:

    And you only get as much justice as you can afford to pay for.

    1. 6.1

      Another comment here in Count Filter purgatory…

  9. 5

    The obvious contra of this is that the right is such that every single American, entity, government, or other natural person is at constant risk of infringing it without knowing of its existence, and without fully understanding the scope or content of the 400,000+ U.S. patents that issue every year. That is dominant feature of strict liability—it should be a carefully cabined and rarely granted thing. That it is neither of those is apparent.

    1. 5.1

      Do you know what actions you are taking as a business or what components are in your product? Are these not your conscience actions? You can then compare those actions or components to a database cataloging the rights of others, conveniently housed at the US PTO. To rebut one of your assertions: you can know of “its existence” (i.e. the risk of infringement). Whether you choose to know is a different discussion. Ignorance has never been a valid defense in our US jurisprudence.

    2. 5.2

      The obvious contra of this is that the right is such that every single American, entity, government, or other natural person is at constant risk of infringing it without knowing of its existence, and without fully understanding the scope or content of the 400,000+ U.S. patents that issue every year.
      According to the Heritage Foundation, there are about 4,500 federal crimes in the USC and 300,000 federal crimes in the regulations. Obviously, that doesn’t count state criminal law — which can vary from state to state.

      Does everybody know what all of those laws are? Not a single person. However, those laws are still enforced against both the wary and unwary. We live in a complex, modern, post-agrarian society. However, for this society to work, those living in it need to be aware of the laws that regulate that society.

      Fortunately, no individual (real person or not) need be aware of all the laws. For example, those not involved in the buying/selling of securities need not be familiar with the securities laws. However, individuals should be aware of the laws that impact them and/or their business. For example, Unified Patents has on its client list companies like Cisco, Dell, Facebook, Mastercard, MaAfee, Nissan, Philips, Roku, Salesforce, Spotify, Tesla, Toyota, Twitter, Uber to name a few. I suspect most of these companies have dedicated legal teams dedicated to patent issues. Consequently, these companies should be aware of the (patent) laws and patents that impact their business.

      However, not all “400,000+ U.S. patents that issue every year” apply to every company. There was a time, when companies would actually engage in patent clearance studies. In other words, they would take their new products to patent attorneys/searchers and determine if any of their new products infringed existing patents. If they infringed, they could take the opportunity to reach out to obtain a license on a patent. I wonder how many times has Unified Patents’ clients proactively reached out to patent owners and inquired about obtaining a license.

      I highly doubt that this occurs anymore at anywhere near the frequency it used to happen. Companies, like those represented by Unified Patents, have a proclivity to pump out products and ask questions later. Actually, who am I kidding. The “ask questions later” only occurs after they get served with a lawsuit.

      If you are going to walk across a street intentionally with a blindfold, don’t be surprised if you happen to get hit by a vehicle. Ignorance (willful or not) has rarely been a good excuse for failure to follow the law.

      1. 5.2.1

        “According to the Heritage Foundation, there are about 4,500 federal crimes in the USC and 300,000 federal crimes in the regulations.”

        I’m pretty sure it’s possible to defend this feature of the patent system without approvingly relying on the gross proliferation of laws in our society.

        1. 5.2.1.1

          Well Ben, if you taken the misbegotten notion that patents are “just like little laws” (something that Malcolm HAS advocated), then what you MAY mean by “proliferation” very much sounds in simple anti-patentism.

        2. 5.2.1.2

          I’m pretty sure it’s possible to defend this feature of the patent system without approvingly relying on the gross proliferation of laws in our society.
          Who said I was approving? I was just looking for a quote.

          Regardless, we live in a COMPLEX society and the proliferation of rules/regulations are a direct result of this.

      2. 5.2.2

        Wt,

        Shhh – Jonathan is in the business of selling blindfolds, while hawking out insurance claims to those struck by the cars.

        That’s his business model.

      3. 5.2.3

        Wandering Through, how many patents do you think you would need to review to commercialize a router for example? Assuming they are all properly classified in h04q (and my experience is that payent classification is a very weak point of the Office), a quick search indicates about 3,200 patents. That is about 10,000 independent claims.
        I don’t think you are reasonable.

        1. 5.2.3.1

          Wouldn’t you have to also look for all the claims of software related patents and microprocessor patents in general that might be infringed by a router product, not just the 10,000 or so claims in one PTO class ?
          Even back when there were only about a million unexpired patents rather than the several millions nowadays, so-called product right to use or infringement clearance studies were often done more effectively by looking for old prior art like expired patents on the proposed new features of the planned product. But in many electronic/software product areas these days nearly the whole technology may be newer than that.

        2. 5.2.3.2

          how many patents do you think you would need to review to commercialize a router for example?
          It all depends. Few companies design a router from scratch. This means you’ll have years of experience knowing what technologies are open for copying and what technologies are not.

          Also, I doubt you are creating every component from scratch. Rather, you are sourcing those components from other manufacturers — who themselves have experiencing knowing what technologies have been patented or not. If you are smart, you have your suppliers on the hook should you be sued for patent infringement on any of the components that they supply.

          a quick search indicates about 3,200 patents. That is about 10,000 independent claims.
          You think those patents would be hand searched? A good searcher should be able to craft a search that narrows down that list significantly.

          Depending upon the industry, you’ll probably have cross-licensing agreements in place with your fellow competitors to keep from stumbling over one another. For example, Linksys may have cross-licensing agreements with Netgear and Belkin (I’m just guessing), which narrows down the list.

          There are ways to significantly reduce one’s exposure to patent liability aside from relying upon the belief that all asserted patents are invalid — e.g., the approach relied upon by Jonathan Stroud et al.

        3. 5.2.3.3

          Your position can be summarized as: Because there are so many patents, it’s too hard. So I shouldn’t have to look and I shouldn’t be responsible for my actions.

          Interesting.

          1. 5.2.3.3.1

            Depends on what one means by “be responsible.” As Mr. Stroud already noted up thread, one has to be careful how one calibrates a strict liability system with millions of of possible liability points, most of which are difficult to identify ex ante.

            I think that the current system is fairly well calibrated—about as well calibrated as one can achieve in a system run by mere humans. If one unknowingly infringes a valid patent, the law favors enjoining one against further infringement, but it grants no damages or lesser damages. If it can be shown that one knew that one had been infringing, larger damages are awarded. Before damages are awarded, careful scrutiny is given to the patent in question to make sure that there really is a legitimate right to exclude. If no such right is found, then the asserted claims are excised from the rolls to make sure that they do not pose a nuisance to other market actors.

            This system is “taking responsibility” instantiated. Precisely because of the strict liability nature of the offense, however, one really needs to make the patentee prove the claim convincingly before relief might be granted to the patentee.

            1. 5.2.3.3.1.1

              Please pardon potential rePeat…

              make the patentee prove

              Presence AND level of the presumption of validity — by Congress — say otherwise.

              But Greg is just being Greg.

          2. 5.2.3.3.2

            xtian,
            straw man: to falsely attribute an insubstantial argument (a straw man argument) to another through direct declaration or indirect implication; to put words in someone’s mouth.

            1. 5.2.3.3.2.1

              falsely attribute an insubstantial argument

              Meh, I thought his paraphrase of your position was pretty accurate.

              You may have wanted to say something else, but what came across WAS that paraphrase.

        4. 5.2.3.4

          Oh please, just make your router and forget about the patents, even if a patent were eventually asserted, it would just be for apportioned damages concerning the rate and base, and relief in equity is not jumping out of the woodwork. In practice, it would take a full legal case, then a prayer in equity, ( you might win under eBay) then an appeal, affirmation, surviving the collateral political attack of PTAB, and then maybe a remand, or another case as in the Westinghouse scenario above, before you get to disgorgment in equity. If you are still infringing at the point a. the patent is an important and valid patent and b. you haven’t gone on the next big thing and stopped infringing yet. Divorcing theory from reality leads to these chicken little conclusions.

          1. 5.2.3.4.1

            Sadly, the entire thrust from the Efficient Infringer mindset is that infringement of a personal property right should be considered no more egregious than a mere business contract being broken (the Efficient Breach doctrine).

            We reach that point, and — as you indicated above — we have violated the Constitutional mandate of “securing,” while also running roughshod over what a patent actually is (a negative right, and not a right to actually MAKE or DO anything in and of itself).

      4. 5.2.4

        Except, you’re not blindfolded, you are born blind. And by “happen to get hit by a vehicle,” you mean the vehicles are silent and are looking to strike you.

        More Reading

        It’s striking that people rely on a legal fiction and don’t want to engage with the system as it is.

        1. 5.2.4.1

          Timothy Lee…

          Consider the source (and then read your own missive about not engaging the system as it is).

          Stop drinking the Kool-Aid.

          1. 5.2.4.1.1

            You can’t even refute the thesis of the paper.

            Your comment is about as low quantity of a comment that can be left on this blog (except outside of MM and Sarah).

            Stop drinking the Kool-Aid, Anon.

            1. 5.2.4.1.1.1

              I do not even NEED to refute the thesis of the paper.

              Timothy Lee is a known propagandist.

              Put
              the
              Kool-aid
              down.

              1. 5.2.4.1.1.1.1

                I CANNOT refute the thesis of the paper.

                Fixed that for you.

                1. As usual , your “fixes” are n0t.

                  I was quite clear that I simply need not bother with refuting known propaganda.

                  Try to do more than be an Efficient Infringer sycophant, OSitA.

        2. 5.2.4.2

          Except, you’re not blindfolded, you are born blind. And by “happen to get hit by a vehicle,” you mean the vehicles are silent and are looking to strike you.
          As a thought experiment, imagine the world a couple hundred years ago. One could, in the middle of civilization, close their eyes for 60 seconds and have little expectation that something bad would happen. In today’s world, with the millions of death machines (i.e., cars, trucks, etc.) zooming about, if you close your eyes for 60 seconds (particular if you are driving one of those death machines), bad things are going to happen.

          Society has gotten more complex and more dangerous and less dangerous at the same time. However, we’ve managed it. The vast majority of us survive without being killed by these death machines despite spending thousands and thousands of hours being exposed to them. The reason being is that we are cognizant of the risks and take precautions.

          If you happen to be a large shipping company, chances are that some of your vehicles will be involved in accidents from time to time. You can choose the Jonathan Stroud approach (i.e., hire high-priced attorneys that will argue that the other guy was at fault) or you can take an approach that reduces your risk by better training, better drivers, and better vehicles.

          In the end, you can continue to keep your blindfold on and rely upon the Stroud approach (by blaming everybody else) or you can proactively seek to reduce your liability.

          The VALUE of the patent system was deemed important enough that made it into the US Constitution. It isn’t going anywhere. Moreover, ignorance of patent rights (or criminal laws) makes for a poor excuse. If ignorance was a valid defense, then it would be the exception that swallows the rule.

          People who don’t like patents tend to be those who are jealous that they didn’t invent it [whatever “it” happens to be] first but still wants to use it and their hired guns. Who are you?

    3. 5.3

      That is dominant feature of strict liability

      What exactly is your point there, Jonathan?

      it should be a carefully cabined and rarely granted thing.

      You do KNOW that there is a legislatively set TRADE-OFF for that thing, right? Are you really saying that those who meet the trade-off somehow should NOT obtain what has been agreed upon?

      Really?

      Please put away your Efficient Infringer mantra.
      Thank you.

  10. 4

    A patent right is the only property which can be trespassed upon by a citizen in every part of the country, by an innumerable number of trespassers at the same time, none of whom leave their homes, and who do nothing but practice the prior art and think about a “new” fact

    This is the sick reality that the eternally whining patent huffers here have been seeking for decades. Nearly all of them are also glibertarians or worse, which will come as a surprise to nobody.

    1. 4.1

      Malcolm and his old canards…

      none of whom leave their homes, and who do nothing but practice the prior art and think about a “new” fact

      There you go again, parsing claims and moving infringement to be something ONLY and TOTALLY in the mind…

      Like you have been told for over a decade, stop prevaricating, move the goalposts back and try discussing reality.

      1. 4.1.1

        The reality is that I described the infringement theory presented by Prometheus’ expert in Prometheus v Mayo.

        I know it’s embarrassing to a lot of folks out there but you deserve to be shamed forever for cheering on the plaintiffs in the case. Own it and apologize or just accept that you will be mocked deservedly forever.

        1. 4.1.1.1

          The reality is that you are here and now switching the subject from your (goal-post moving and parsing) “TOTALLY in the mind” canard

          Just like I called you out for.

    2. 4.2

      … and by the way, your feelings on politics is again noted.

    3. 4.3

      I would agree that thinking about infringing my patent is not a violation of my rights. It never has be held to be so. However, the minute you take action on those thoughts (e.g., prescribe a medicine) you change the analysis.

      1. 4.3.1

        B-b-but xtian, THAT is not the goal-post moved narrative that Malcolm is trying to spin.

      2. 4.3.2

        Ironically, prescribing a medicine is a poor example for your point here. No one is ever going to be held liable for prescribing a medicine. 35 U.S.C. §287(c).

        1. 4.3.2.1

          Defendants disagree. You cannot claim contributory infringement without a direct infringer. In the pharma space, you need the prescriber to perform a method of treating disease X with compound Y.

          1. 4.3.2.1.1

            Fair enough.

  11. 3

    Patent owners did get two such advantages – the statutory presumption of validity, and, especially, the Sup. Ct. created requirement of “clear and convincing evidence” for invalidity.
    But what is intended by “more efficient civil remedies than those do the protection of whose property does not depend upon civil remedies alone?” Isn’t this confusing two different things – Criminal trespass [difficult to obtain from government prosecutors, and not simple to win] vis a vis other civil suits? r What Federal civil suits are really “efficient” for suits with so many possible factual and legal disputes, including claim scope, infringement, and the many statutory defenses that already existed back in 1879 when this was written?

    1. 3.1

      the statutory presumption of validity
      LOL
      “clear and convincing evidence” for invalidity
      ROFL

      This place can be really funny at times.

      1. 3.1.1

        What is even funnier is those concepts are being provided by the head cheerleader of the IPR system — a system that enacts a legislative taking OF THOSE VERY sticks in the bundle of property rights of a granted patent at the IPR institution point (prior to, and thus separate from, any adjudication on the merits).

        Isn’t it funny how he never has owned up to that little tidbit?

  12. 2

    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 [while being encouraged by the highest courts in the land]
    Fixed it for you.

    1. 2.1

      A patent right is the only property which can be trespassed upon without the trespasser’s knowledge

      Fixed that for you.

      1. 2.1.1

        Not so, as with physical property, such trespass is easily countenanced.

        But why I am I not surprised to see you posting such an Efficient Infringer point of view?

        1. 2.1.1.1

          “such trespass is easily countenanced.”

          LOL Billy is reading those cheap paperbacks again.

          1. 2.1.1.1.1

            If you ever got out of your Mom’s basement, and did some simple hiking, you would understand the point presented, and would not be so quick to lob your mindless ad hominem.

        2. 2.1.1.2

          Such trespass is easily countenanced? That is complete nonsense divorced from reality.

          1. 2.1.1.2.1

            Except for the fact that it is not, you almost had a sliver of a shadow of a point.

            1. 2.1.1.2.1.1

              More nonsense. Anon, the dime-store patent guru with his trite phrases and vapid demeanor.

              1. 2.1.1.2.1.1.1

                Look in the mirror there OSitA – those aspersions fit you rather than me.

      2. 2.1.2

        Fixed that for you.
        Not true, as Anon pointed out.

        Similarly, many criminal laws are unintentionally broken. However, that doesn’t preclude those breaking the law from having to face the consequences of their actions.

        1. 2.1.2.1

          Anon’s claim is divorced from reality. Its like none of you actually work with patents.

          1. 2.1.2.1.1

            And there is OSitA’s Peak of Mount S:

            Its like none of you actually work with patents.

            1. 2.1.2.1.1.1

              If you were an actual man made out of straw, I’d believe it.

              1. 2.1.2.1.1.1.1

                Please Pardon Potential rePeat..

                ?

                There is zero strawman here from me.

          2. 2.1.2.1.2

            Its like none of you actually work with patents.

            Au contraire. This level of willful obtuseness is the mark of a professional. As Upton Sinclair once observed, “[i]t is difficult to get a man to understand something when his salary depends upon his not understanding it.”

            1. 2.1.2.1.2.1

              The irony of Greg’s post is certainly lost on him and his cognitive dissonance between Big Pharma and his Liberal Left tendencies.

              Maybe instead of the ill-aimed “they know that they are wrong” assertion, perhaps it would do Greg well to stop and consider that our adamant pro-patent stance is because we do know that we are correct.

  13. 1

    “property”

    Full stop. You can go ahead and dispose of this article. SCOTUS fixed that one fer ya.

    1. 1.1

      Well, BB, according to Greg “I Use My Real Name” DeLassus, the actual term is “Public Franchise,” and such instruments still very much are a form of personal property.

      Not that he would deign to explain any type of then-inherited AGENCY requirements between the FranchisOR and FranchisEE, mind you.

    2. 1.2

      SCOTUS fixed that one fer ya.

      Actually Congress fixed it for you. The “real” question is WHY DOES CONGRESS UNDERMINE THE INTENT OF THE PATENT LAWS THAT CONGRESS WROTE???

      This was an actual “hot take” by one of your fellow patent huffers in the comments recently. Have fun with it.

      1. 1.2.1

        Nothing like taking things completely out of context for your jollies, is there Malcolm?

        Or like your “one-bucket” approach to any legal issue, eh?

    3. 1.3

      Yes and no. IP is the only form of property that does *not* require government to exist. What SCOTUS did was to make it harder for its creators to sell/monetize that property.

      1. 1.3.1

        another comment snagged in the filters….

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