71 thoughts on “Breaking the Law

  1. 17

    Totally off-topic, but I appear to have run up against the count limit on the next thread, so I will post this here: interesting story in Law360 today about whether denial of an IPR petition can be submitted for reconsideration by the Director. In briefs to the CAFC, the disappointed petitioner argues that “[c]ategorically foreclosing a citizen from petitioning a senior officer to take action within her authority raises independent constitutional concerns under the First Amendment… .”

    Is that right? If I submit a petition to an administrative agency, are they constitutionally obliged to give me a response? And if they do, are they constitutionally obliged to respond every time I ask them to reconsider their earlier answer? Surely the petition clause of the First Amendment does not require that every petition be answered.

    1. 17.1

      No – it is not right.

      While the Law360 article itself is behind a paywall, so I cannot comment directly to it, I can share the general knowledge of:

      The notion of “Constitutionally obligated” would ONLY arise under an Article III standing provision.

      Congress expressly made the front end here to NOT require such standing.

      They also explicitly buffered the Executive Branch administrative agency with the “the institution decision is non-appealable.”

      This is NOT a First Amendment issue.

  2. 16

    Bros, off topic here slightly but it applies to agency law in general. Presidents keep on and on and on “forgetting” to allow for comment periods on their orders. What gives? Why do they keep on doing this and then getting the courts to send it back to them invalidated? Do the president’s people not inform him of it or are they just doing it intentionally?

    link to yahoo.com

      1. 15.1.1

        Bros, super funny story here. I was out walking to my grocery store and I found a pair of these linked on the ground. I picked them up thinking I might take them to lost and found in the morning. Seemed kinda heavy, and though they had some dirt on em I figured maybe salvageable (turns out good as new when cleaned up). I wore them at the grocery store. I’m literally not shting you when I say these things seem to have magic attraction powers. I normally get some attention from girls at the store, but I’m not even kidding when I say no less than 3 girls IN ONE TRIP were super wanting attention and one of them outright wanted me to “get her a drink”. I would literally have never guessed this. I looked them up and they’re like 150$.

        link to ray-ban.com

  3. 14

    I thought the infringement of a patent was analogous to a civil trespass to property where the infringer is at fault for breaking the legal code of how we conduct ourselves with our fellow citizens. “Breaking the law” is breaking the law of the state where the state is the aggrieved party thus analogous to criminal trespass to property. The burden of proof is different in the civil trespass where more probable than not standard of proof is required as apposed to beyond a reasonable doubt in the criminal matter. Been a while since I studied torts, crim law and intro IP law. I am very curious as to Prof. Crouch’s answer as a refresher. I should know this cold since I have an LLM in IP law. Always learning.

  4. 13

    Maybe the way to think of it is that it gives another a cause of action against you that they may assert.

    Because maybe with civil code it is a bit more nuanced. Maybe you know for example that you are knowingly infringing but that the patent owner doesn’t care or that it is simply not worth their effort to collect the damages.

  5. 11

    I had this conversation with Walmart and Wilmer Hale litigators. They don’t believe it is breaking the law. At least one of my own attorneys joined them in correcting my characterization of their actions as “breaking the law”.

    Yes, of course it’s breaking the law in the real world. But the U.S. patent system operates in a fairy tale world.

    Did the Knave of Hearts break the law when he stole the tarts?

  6. 9

    Would one think of breaching a contract as “breaking the law” or general negligence as breaking the law? Just like patent infringement, both can result in legal liability, but most people wouldn’t define either as “breaking the law”. In general usage, when people think of “breaking the law,” they are not thinking about private causes of action.

    1. 9.1

      Well now, that depends on how much Efficient Infringer K00l-aid one has imbibed in, now doesn’t it?

      Straight up, “breaking the law” simply includes both civil and criminal aspects.

      If your personal emotional context leads you to only consider “criminal,” well, that is an opinion (which everyone is free to have).

      But for those that understand the law, it reflects more an uninformed opinion, and is just not the better answer.


          Rather odd of you (as usual) NS II, as I am not the one lacking perspective – my comments to the contrary reflect MORE perspective than that exhibited in your comments.

          But hey – you be you.

    2. 9.2

      Yes, I would classify breaching a contract as “against the law” or as “breaking the law.”



          It is interesting, is it not, to see how others understand the same words that we use. I have no illusions that my understanding of “against the law” is somehow the consensus view. I think, however, that it is useful to have a way of expressing the concept “the law is supposed to result in certain outcomes, and conduct that frustrates those outcomes is ______ the law.” “Against” or “breaking” seem like the best verbs to fit into that blank, in my humble opinion, even though I concede that most people only use “breaking the law” or “against the law” when criminal penalties are at issue.

  7. 8

    If someone is liable for patent infringement, have they “broken the law?”
    Is breaking the law a technical/legal term of art with some other consequences beyond civil liability? If not, then who really cares?

    BTW — as best as I can tell, “breaking the law” is not a technical/legal term of art.

    1. 8.1

      Exactly what I was thinking. There’s no way to know whether the survey responses tell us what the respondents (particularly those who answered “no”) think about patent infringement, or how they interpret the term “breaking the law”. I would assume that most of the people who follow Dennis on Twitter are well aware that patent infringement is not a crime, so those who have answered “yes” are presumably happy for “breaking the law” to encompass civil liability.

      1. 8.1.1

        Mark – ANY item that includes a redress at law necessarily involves a breaking of the law.

        Here in this country, we have this thing called “standing,” and Article III courts that deal with redress at law.

        Now, if you want to be nuanced, non-Article III proceedings MAY involve instances that include “NOT Breaking the Law.”

    2. 8.2

      OTOH, the whole suite of patent-related vocabulary is stronger…more akin to stealing. You “infringe” someones exclusive rights vs. merely “having a duty of care” in a negligence case or merely “in breach of a prior agreement” in a contract case.

      1. 8.2.1

        If it was stealing, you would have criminal prosecutors going after infringers — or at the very least defending the work of the government (in granting the patents).

        The (not) amusing part is that if an infringer (or proxy) pays the government, the government will determine if it erred in granting that property right and will argue to the Federal Circuit (if appealed) that it did, in fact, err by granting the patent and that patent should be invalidated. Certainly not akin to stealing.

        Regardless, my point still stands, which is why does it matter? It is infringement. Whether it is breaking the law is immaterial (as far as I know).


          Apparently, some people think it cute to play word games.

          There is a special ring in H e 11 for attorneys delighting in such obfuscating tomf00lery.


          [W]hy does it matter?

          Of course it does not really matter. Sometimes it is simply interesting to learn how others perceive the meanings of our shared words. If this does not interest you, you are free to ignore the subject.


            Sometimes it is simply interesting to learn how others perceive the meanings of our shared words. If this does not interest you, you are free to ignore the subject.
            I’m an attorney. I’m a patent attorney. My job is to know the meaning of the words I use. However, if a term has no recognized meaning, let’s ditch its usage in any legal context.

            Just to give you an idea of similar kinds of words, consider the following:
            abstract idea
            general purpose computer
            significantly more


              [I]f a term has no recognized meaning, let’s ditch its usage in any legal context.

              Strongly agree. However, this blog is not a legal context, so it can be amusing to discuss such trivialities around these parts, even if they should never come within a country mile of our professional outputs.


            “Sometimes it is simply interesting to learn how …” Ja.

            But for the most part I’d state it more forcefully:

            “It is more than interesting to know how others perceive our words, because having common perceptions of important words is the only way to maintain order” Beware of those trying to re-define terms, all of a sudden after all these years….. the re-definers seek to subvert, confuse. It is nearly almost always the case, that “he who defines, wins”

            When the foreigners’ law becomes the law in your country, then you are a conquered nation.

            Unfortunately, the vote of the uneducated new-immigrant, drug addict, derelict &cet, counts just as much as the MD, PhD, JD scholar, in whatever the H they’re calling this place these days.
            How inequitable is that, to give the ignorant, the same weight of voice, as the learned ? ugh, I digress.

            Thanks for your postings, I don’t comment but remain optimistic of having something to shoe in sometime. later

    1. 7.1

      Good point. A survey run on Prof. C’s Twitter feed is scarcely going to attract a random sampling of the English speaking public. The responses here are grossly enriched for patent attorneys. If even in this audience, the “no” vote wins 2-to-1, you can be sure that the general public would favor the “no” vote even more lopsidedly.

      1. 7.1.1

        …. Which shows a fallacy of “voting on facts.”

        “Facts” here in the sense of legal norms.

        Attorneys in that “no” column need some remedial help (I would posit that Crouch’s Twitter following has a healthy dose of non/attorney types – for example, examiners – that do not appreciate legal norms.

        I would further venture that for attorneys in the “no” column, those that are caught up in the Efficient Infringer brigade will be hard pressed to see that civil violations are still “breaking the law” (those are certainly not “caressing the law”).

    2. 7.2

      Greg and 6 you have it backwards. Ordinary people know that stealing is breaking the law. Only 1/3 of patent attorneys know that.

      That’s why infringers work so hard to avoid having yo defend their actions before a jury.

      1. 7.2.1

        >Ordinary people know that stealing is breaking the law. Only 1/3 of patent attorneys know that.

        LOL. Great line.

      2. 7.2.2

        Yeah. Consider “infringement” as synonymous with “IP Theft”. Then,the answer is easy.

      3. 7.2.3

        For whatever little it is worth, I voted “yes” in that poll. I consider patent infringement to be a species of “breaking” the law, even though there is no criminal penalty attached. If one is being honest, however, one has to acknowledge that this sense of “breaking” the law is philosophical, not colloquial.

    1. 6.1

      Why in the world would “breaking the law” be limited to criminal matters?

      That makes zero sense.

    2. 6.2

      I am part of the 35% that voted yes in this poll. I prefer the sense of the phrases “against the law” and “break the law” that include conduct that is legally proscribed, but not criminally so.

      I concede, however, that this appears to be a minority understanding of what the word “law” means. It does seem that the majority sense of the phrases is exclusively concerned with the criminal law. More’s the pity.

    3. 6.3

      We “break” laws, by challenging their validity. Some laws like 35 USC 101 are more difficult to break than others, but with time, 101 will be broken also.

      When a law is deemed unconstitutional, it’s but one example where that particular law was busted, broken, kaputt. And all involved who helped break such unconstitutional law, collectively, are lawbreakers.

      One of the early rules in frcp says ya can file whatever case ya want, provided there’s a reasonable basis. So, anyone can be a lawbreaker.

      What if a group of clandestines infringe Pharma Co. Z’s patent for fentanyl manufacture, and they do it in Ohio ? Crime ? Yes, a few. Would they be “liable” for the infringement ? Indeed, but not in the usual sense.

      So it is possible to infringe a patent, resulting in breaking the law.

      But not all infringements are equal.

      Maybe we can get Hochul, Newsome, Whitmer and others to coax the legislatures into creating new strict liability laws for patent infringement !!

      Then, those jurisdictions can create new Investigative Divisions, and go out and bust those infringers !! Book ’em Dan-O


          Breaking the law can mean many things Junior, the Professor may have chosen the survey question’s phraseology more carefully than might appear, to be vague. Maybe not, but I’d reckon he did.


              🙂 To the extent that you perceived any delight in my words, it could be the case, b/c I like his articles. But I don’t see any indicia of delight in my words, so the origin of that notion may be all in your head ! Or, you know the real me…. C. Whewell, a.k.a. “Mr. Delight”, but that would be “Sir Delight” to you. haha. Keep smilin, have a good weekend while you’re at it.

  8. 5

    If patent infringement was “breaking” any law [in its normal meaning] it would be actionable by some governmental agency. It is not.

    1. 5.1

      There is redress AT law — this view by Paul (and apparently 128 people taking the poll) is depressing (in its normal meaning — heck, in any meaning).

    2. 5.3

      Exception being the wide range of modern laws with private attorney general provisions??

      For example, if someone helps a TX resident/citizen get a late term abortion in CA, are they breaking a “law.”

  9. 4

    Let me summarize the comments from our two distinguished members:

    The Prophet: Should be awarded Congressional Medal of Honor.

    Anon: Capital punishment.

    Is that about right?

    1. 3.1

      Not really surprising because (1) the standard of review is uber-deferential and (2) the actual challenge on the merits was très weak. Also, the realpolitik seems to be that, while TP initial deployed the tariffs, Biden hasn’t shown any apparent interest in modifying or discontinuing them. So there’s a sort of “bipartisan consensus” that the tariffs are “good” and why do the courts want to meddle with that?

      It is a little interesting to see a 3-judge CAFC panel reviewing a decision that was in turn rendered by a 3-judge Trade Court panel.

      1. 3.1.1

        I agree that the outcome is not surprising in view of the (very deferential) standard of review. I mention it only because it was the most interesting thing to come out of the CAFC today.


          Very true. I guess it’s also potentially interesting because Chen filed some “additional views” although I haven’t perused them yet.

  10. 2

    I’d be curious to see the responses if you put up the statute. E.g. If someone is found to violate 35 U.S. Code § 271 for infringement of a patent, have they “broken the law?”

    1. 2.1

      “Oh, THAT kind of infringement. I thought the question was about decorating shoe leather.”

    2. 2.2

      Probably. It distinguishes mere negligence wrt attorneys. And framing effects wrt non-attorneys.

  11. 1

    No idea what to make of the results of a Twitter poll but it is an interesting question. I’d be curious to see what the same respondents say about “trespass”. I’d also be curious to see what they say about “willful infringement of a patent that the infringer believes is valid.”

    1. 1.1

      I’d be curious to see what the same respondents say about “trespass”

      Hmm, well, since some view trespass to be the same as “INSURRECTION” – Bluto may have his reactions mixed a bit.

    2. 1.2

      There is civil trespass and criminal trespass, so “trespass” may not be a good example to use.

      1. 1.2.1

        Are you saying that civil trespass is not breaking the law while criminal trespass would be?

    3. 1.3

      ” I’d be curious to see what the same respondents say about “trespass”.”

      I got a legal nastygram that my building sent out to all tenants because of some troublemakers out at our community pool. Therein, they stated “you agree that we will trespass you” when they meant they will accuse you of trespassing and have you removed from the pool if you don’t abide their ever stricter rules. Bottom line, people are using fancy legal terms these days in ways that make no sense.

      1. 1.3.1

        [P]eople are using fancy legal terms these days in ways that make no sense.

        Too true.

    4. 1.4

      Twitter poll ? Maybe the 35.7% in the survey results were all bots.

      Perhaps the survey exposes the bots percentage.

      1. 1.4.1

        Or perhaps the bots were on the other side, eh?

        You divulge a bit of your presumptions by choosing the 35.7% (which by the way, IS the correct answer).

        But as always, one may fully embrace their (uninformed) opinions to their heart’s content.

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