I was reading through a recent trial transcript and enjoyed the following historical introduction to the jury system offered by Judge Gilstrap. He was talking to the potential jurors as voir dire was just about to begin. — Dennis
= = =
We are engaged or about to be engaged this morning in the selection of a jury in the civil case involving allegations of patent infringement. If you’d indulge me, though, for just a minute, I’d like to briefly review with you at this juncture how we came to have our American civil jury trial system.
If you go back in ancient history, if you start with the first five books in the Old Testament, the Pentateuch, you will find that the ancient Hebrew nation impaneled juries to decide issues of property ownership and property value.
The Greeks, the ancient Greeks, began using a jury system about 1500 B C. The Romans, as with many other things, copied the jury system from the Greeks and implemented a jury system as a part of ancient Rome. And, in fact, it was the Romans that brought the jury system to Europe across the English Channel into what we now know as Great Britain when they conquered Great Britain in the fourth century A.D.
Now, by the 12th century A.D., the jury system had been in place in England, what we now know as England, for 800 years. But in the 12th century A.D., a rather tyrannical king came to the throne of England and his name was King John. And he became embroiled in various disputes with his nobles that nearly led to the verge of a civil war.
One of those disputes was the king’s efforts to do away with the right to trial by jury. Thankfully, the civil war did not take place at that time, and the king and his nobles resolved their many disputes, including this one, by entering into a written agreement that they signed at a place in England called Runnymede. And this agreement that settled all these disputes and laid out a structure for that country going forward, including guarantees of the right to trial by jury, is a document many of you may have heard of called the Magna Carta.
And so you can see, ladies and gentlemen, that our British forefathers who came to this continent as colonists brought the jury trial system with them. And the jury trial system flourished in colonial America for over a hundred years, until another tyrannical king came to the throne of Great Britain. This time his name was King George III. I’m sure you’ve have studied him in American history that led up to our American revolutionary war. And the king, prior to that, became embroiled in many disputes with his American colonists.
One of those disputes was King George III efforts was to do away with or to substantially curtail the right to trial by jury. In fact, ladies and gentlemen, when Thomas Jefferson sat down to write the Declaration of Independence which spells out — it really was a letter to the king telling the king all of the reasons why his subjects in America felt they had no other option but to revolt, declare their independence, and form their own independent nation, one of those reasons set forth by Thomas Jefferson in the Declaration of Independence for that separation between America and Britain was King George III’s efforts to do away with or curtail substantially the right to trial by jury.
And as you’re all aware, we did revolt against Great Britain, we did form our own independent nation, and shortly thereafter we adopted the governing document for our country, the supreme law of the land, the Constitution of the United States.
And immediately after the Constitution was ratified, there were ten additions or amendments added to the Constitution. Many of the states made it clear they would not vote to ratify the Constitution without a commitment to immediately add these ten amendments. And these ten amendments you’ve all studied about in school. They’re called the Bill of Rights. And in those first ten amendments to the Constitution, you will find the Seventh Amendment to the Constitution, which guarantees, ladies and gentlemen, the right to every American citizen to have their civil disputes resolved through a trial by jury. Those ten amendments, the Bill of Rights, were all ratified in 1791. So since 1791, well over 200 years ago, every American has had a constitutionally guaranteed right to have their civil disputes settled through a trial by jury.
So by being here this morning, with that brief background and overview of how we got to have the jury trial system that we’re implementing today, I want you to realize in the Court’s view every one of you here are doing a very important part to preserve, protect, and defend the right to trial by a jury as part of our constitutionally guaranteed rights. I always tell citizens who appear for jury duty as you have this morning that, in my personal view, the jury duty or jury service rendered by any citizen is the second highest form of public service any American can render for their country. In my personal view, the highest form of public service are those men and women that serve in our armed forces.
Now, later in the process this morning, the lawyers for both sides are going to address you. They’re going to ask you questions. I want you to understand none of them are seeking to inquire unduly into your personal affairs. Said another way, none of them are trying to be nosy and to ask you about things that are not relevant to this case. They will be asking you questions as a part of working with the Court to secure a fair and an impartial jury from among you to hear the evidence in this case. I want you to also understand when the lawyers ask you questions later as a part of this process, there are no wrong answers, as long as the answers you give are full, complete, and truthful. As long as they’re full, complete, and truthful, there are no wrong answers. . .
Finesse Wireless LLC v. AT&T Mobility LLC, Docket No. 2_21-cv-00316 (E.D. Tex. Aug 23, 2021) (trial transcript day 1).
Don’t forget about Fed. R. Civ. P. 56 where the judge can decide the case without needing a jury!
link to virginialawreview.org
LOL
Who opened the basement door and invited the All Roach Comedy Team upstairs?
OT, but a news report of significant commercial and patent litigation jury decision limitations interest, plus strong language about delayed suits on different claims added much later into long-pending applications to cover independently developed products of others:*
So far in the big patent infringement battles between Sonos and Google, the former has had several wins. But in a ruling Friday District Court Judge William Alsup [who has handled many big tech court cases] tossed out a Sonos $32.5 million jury verdict against Google and said two of Sonos’ key patents are unenforceable and invalid. That could make it much harder for Sono’s similar claims of infringement against others [if sustained on appeal*]. Per Alsup “This was not a case of an inventor leading the industry to something new.” “This was a case of the industry leading with something new and, only then, an inventor coming out of the woodwork to say that he had come up with the idea first — wringing fresh claims to read on a competitor’s products from an ancient application.” And other amendments. Sonos is also accused of wrongly linked a pair of patent applications in 2019 to a much earlier provisional application from 2006 in an attempt to claim “a priority date before Google’s disclosures and product releases” that would thus put Google under “a cloud of infringement.” Above all else, Alsup says Sonos simply waited far too long to raise any concerns of patent infringement. That the patents issued after an unreasonable, inexcusable, and prejudicial delay of over thirteen years by the patent holder, Sonos, Inc. The provisional application from which the patents in suit claim priority was in 2006, but Sonos did not file the applications for these patents, with the only asserted claims, until 2019, well after the accused products were being marketed. “Sonos has done exactly what the Supreme Court has long said should not be done. “It will not do for the patentee to wait until other inventors have produced new forms of improvement, and then, with the new light thus acquired, under pretence of inadvertence and mistake, apply for such an enlargement of his claim as to make it embrace these new forms.”Alsup also seems to question the adequacy of the written description support.
*Sonos will have on its side prior CAFC decisions supporting such “late claiming” from the “catbird seat.”
But in a ruling Friday District Court Judge William Alsup [who has handled many big tech court cases] tossed out a Sonos $32.5 million jury verdict against Google
So a Northern District of California judge essentially invalidated a judgement against Google. And one wonders why plaintiffs file in WDTex instead of NDCal.
It is guaranteed that this decision will go to the Federal Circuit. And I suspect Sonos will take it to the Supreme Court if this isn’t reversed at the Federal Circuit.
Sonos will have on its side prior CAFC decisions supporting such “late claiming” from the “catbird seat.”
It is up to Congress to fix that issue — should they so choose. It isn’t up to an anti-patent District Court judge to cover for the efficient infringers of the world.
Wt,
No doubt that you are picking up a bit of conditioning in seeing Paul post and presuming that he is advocating from an Efficient Infringer viewpoint….
But here, Paul IS presenting one of the TEXAS judges.
This likely does not reach Continuation practice as much as it might implicate laches (caveat: I have not read the decision).
Agree. If judge Alsup wants to legislate, he needs to take off his robe and run for office.
Wt,
My bad – I was thinking of Gilstrap.
Carry on.
Separately, I find it interesting that even an otherwise leaning California judge feels compelled to set out clarification to the jury p00l (“I want you to also understand when the lawyers ask you questions later as a part of this process, there are no wrong answers, as long as the answers you give are full, complete, and truthful. As long as they’re full, complete, and truthful, there are no wrong answers. . .“) – because this indicates that NOT being picked in order to reach a desired Ends is being considered to be somehow ‘wr0ng.’
Perhaps some realization of Ends to not justify the Means is starting to take hold….
Or perhaps (more cynically), some of “the jury’s Ends may not match the Judge’s desired Ends, and if you are not chosen, don’t make a st1nk about it” might be in play.
We need more than one data point to see…
“ In my personal view, the highest form of public service are those men and women that serve in our armed forces.”
Rodney didn’t enlist and as far as I can tell neither did either of his adult kids. They went to private schools instead. Probably that’s because they grew up in parts of the country where the military doesn’t have much of a presence.
…and your point is….?
Sadly, our generation has effectively dispensed with the trial by jury system. Occasionally you are tried by an elite judge who has no idea what it’s like to walk in your shoes. More often you are tried by a bureaucrat who has no idea what it is like to walk in your shoes.
But occasionally you are tried by a judge who inhales the same reactionary rightwing dominionist p u k e that you do and who was appointed to the bench for that very reason in spite of a glaring lack of talent or intelligence!
Keep on doing that one-bucketing and confusing/conflating ANYTHING that does not fit into your own Hard Sprint Left mantra as “ultra right wing.”
So by being here this morning, with that brief background and overview of how we got to have the jury trial system that we’re implementing today, I want you to realize in the Court’s view every one of you here are doing a very important part to preserve, protect, and defend the right to trial by a jury as part of our constitutionally guaranteed rights. I always tell citizens who appear for jury duty as you have this morning that, in my personal view, the jury duty or jury service rendered by any citizen is the second highest form of public service any American can render for their country. In my personal view, the highest form of public service are those men and women that serve in our armed forces.
But then came the long march through the institutions and natural law was attacked at it’s foundations. Network effect monopolies arose with vast resources to lobby our congress for special laws such as no sales tax, exceptions from liability and of course to hold in abeyance anti-trust laws that should have been applied to prevent the formation of these monopolies. With extra time on their hands, they – the monopolies – decided that the patent system was ‘bad’ – because at least in theory the limited rights granted by patent could disrupt the monopoly and allow something better, faster and cheaper to emerge. Astroturfing was funded, legal academic and experts opined the patent system stifles innovation, for 200+ years everyone was wrong, patents are bad, monopolies are good. So congress passed 98-2 a law to create a kings court, and the president approved – a special star chamber for patents, run by experts ALJs, but then the ALJs were found to violate the appointments clause, and SCOTUS re-wrote the law to make them mere employees of the President, so now it is the king himself that takes the right to a jury from the citizen and dispense favors to the favored class, the very grievance Jefferson wrote so elegantly about. The issue reached SCOTUS, and the astroturfed experts said aCtuALy – we found one weird ahistorical case and maybe patents were never property rights at – don’t read the statute declaring them property rights! – all. Everyone and mountains of case law – were wrong – patents are mere privileges of the king and can be revoked by said king and his experts at anytime. And so it so held and Justice Breyer did smile.
So lets pretend today that this court has a case or controversy before it that it can adjudicate without fear of the kings collateral attack on the holding of this court, and your verdict but the record shows that the king court revokes 75% of these cases rendering them void ab initio – ‘as if it never happened’ translated for you lay persons. Yes, you were never taught that in school, but you see patents are the red headed step child of the class of so called property rights. Legal experts say so. They are only a right by grace of the king. A doctrine rejected under Magna Carta, Marbury, the 7th Amendment, the ratification debates, the ordered liberty of the separation of powers, natural law and the freedom to contract. Now left me tell you about the questions the lawyers are going to ask you below . . . <– and that is the rest of the story.
^^*
I laughed
I cried
I nominate this as post of the year.
Seconded.
Thanks for taking the time for this should-be-framed masterpiece, iwasthere.
A masterpiece which should be hung on the wall of every patent attorney, patent agent, inventor . . . and SCOTUS judge.
+1
Kudos for moniker choice.
“ don’t read the statute declaring them property rights!”
Is that the statute that says patents should be treated like property except were treated otherwise in the statute? If so, you really do sound like a bitter online crank who’s been inhaling too much patent crack.
But let everyone know if it’s some other statute you’re thinking of. You’re a very serious person, after all, and very sincerely concerned about the Constitution, equal rights, democracy and the granting of mindless pointless patents on abstractions like information and logic. Im sure of it! Very serious.
Malcolm reaching for his “you are so series” SHORT script item – even as he cannot be bothered with understanding the very legal points at foundation here (elsewise, he would have FALSELY whined about — gasp — religion).
You always strike me as one of those – rights come from government – Fabian Society types. Missing out on the entire point of the Enlightenment and the American Experiment, I pity you, because you will never see the Grace. You will never appreciate the Revolution, the liberty protections inherent in the structure of the separate departments, and never understand the Constitution. You are indeed the dangerous type. The necessary dupe required by the long march. Consumed with hate.
[I]n my personal view, the jury duty or jury service rendered by any citizen is the second highest form of public service any American can render for their country. In my personal view, the highest form of public service are those men and women that serve in our armed forces.
Fair enough. I do not disagree with Judge Gilstrap that jury service is an important species of public service. Nor do I disagree that military service is an even more important species of service.
At least in the case of military service, however, it is clear what good is being delivered to the public. Similarly so in the case of jury service in criminal trials.
It is harder, however, to see what meaningful good is delivered to the public by jury trials in civil cases. I agree that the VII amendment requires that jury trials be an option in civil cases, so we must summon citizens to sit on such juries (at least until we get around to amending the VII amendment). One cannot help but notice, however, that none of our peer nations require jury trials in civil cases, and yet their civil justice systems all seem to function as well as ours.
Why drag honest citizens away from their daily work (and in some cases away from their homes and families) just to settle private disputes between private parties? This goes doubly so in patent cases, where the jurors are vanishingly unlikely to have the requisite technological education to understand the points at dispute. We really should amend the VII amendment to eliminate juries in federal civil disputes, so as to relieve the burden of jury service on citizens whose service will achieve no socially useful good.
Well said. I’m in Europe, where trust in the institutions of a representative democracy is dissolving, ever faster. Young people, the pollsters tell us, are exasperated, frustrated, angry, and increasingly inclined to think that what is needed is an authoritarian form of government (rather than a representative democracy).
This is serious! It behoves the three branches of the government of any democracy to do all they can to preserve what trust remains, and then make every effort to nurture and restore former levels of trust.
That means doing everything it can to show citizens that government is fair to all, and intelligent, in that it asks of its citizens only what is reasonable to ask.
Asking ordinary people pulled in off the street to decide on the validity of a patent on cutting edge technology is not a reasonable request (whereas it does in a criminal case). Making such requests is dangerous because it reinforces the prejudice that many have, that government, even if it once was good, has through the complexities of the modern world slowly become unacceptably dysfunctional.
“… is not a reasonable request.”
With all due respect,
F
Off.
You are clueless as to what is a reasonable in our Sovereign.
I think not. Why are the people rising for their fair share. Finally the people you are taking from are fed up
> Asking ordinary people pulled in off the street to decide on the
> validity of a patent on cutting edge technology is not a
> reasonable request (whereas it does in a criminal case).
Fair point. In my experience, most juries work hard, are conscientious, drill down into the facts and details, and try to render what they feel is the fairest verdict based on the facts presented before them. But it is reasonable to be skeptical of the jury system when applied to modern patent cases that involve complex science or technology that goes beyond jurors’ own knowledge and experience. (Which is almost always the case as any prospective juror with relevant technical or scientific experience is likely to get stricken peremptorily by one of the parties.) I’ve been involved in patent jury trials involving highly complex technology where, after the trial, jurors actually came up to me and asked, with all sincerity but with some degree of frustration, why our system would have asked them to decide the case. Their frustration was based on the observation that, when you look out at everyone else in that courtroom including the judge, clerks, witnesses, lawyers, and even observers (who are are often affiliated with one of the parties or at least part of the underlying industry), they could not help but notice that the jurors were the least qualified people in the room to correctly decide a complex patent case. Juries in complex patent cases struggle with the double whammy of having to learn underlying science or technology with which they have no experience, and then having to apply that to arcane patent legal principles (like obviousness) described in dozen of pages of confusing jury instructions. The end result is that, no matter how conscientious the jury tries to be, verdicts in patent jury trials seem far less predictable than verdicts in other areas of law. I’ve seen many cases of serial patent infringement jury trials against different defendants with different juries, but involving the same patent, the same plaintiff, the same expert witnesses, etc., with the trials resulting in wildly different verdicts even though each defendant’s accused products were substantially the same.
This seemed to be less of a factor when you look at much older patent cases that involved products that were more inherently graspable to lay jurors. But today, if you were to redesign the civil patent litigation system anew, I suspect you’d end up with a system that does not submit these cases to juries. And most prospective jurors would probably thank you for it.
Thanks for that answer, LR. It reminded me of the route to qualification to be a UK patent attorney, which involves passing a four hour written examination for which candidates are given a patent, a description of an accused infringement, and two prior art references. The task is to provide reasoning on i) infringement and ii) validity.
The candidates all have science or engineering degrees and at least three years of preparation ina law firm or in-house patent department. Nevertheless, the pass rate is 50% or less.
Marks are awarded not for getting the answer right (for the fact matrix is such that the case could go either way) but for the reasoning presented by the candidate.
Hardly a surprise then, that those who pass the exam are sceptical of the merits of hacving a jury decide on such matters.
Mind you, those same UK attorneys would be fiercely protective of the jury system for criminal cases, to protect the accused against the prejudices of ignorant judges. Remember the Lady Chatterley obscenity trial, for example, where the judge asked the jury members whether they would be happy for their wives or servants to have access to WH Lawrence’s book. Or the case in the 1960’s, also in London, when the judge asked “The Beatles? Who are they then?
Your EPO Uber Alles, here, wear MY spectacles approach is simply not compelling.
We are not you.
hitting George Carlin filter…
Your comment is awaiting moderation.
October 10, 2023 at 4:36 pm
….”t”hat…
More hidden signaling of Yglesias cl@ptr@p….
Stop drinking that Kool-Aid, it’ll r0t your brain.
(00ps — too late)
We should go back to the Old Ways.
When someone stole something of yours, you got some of your friends together, went to the thief’s home, beat the $ht out of him, took your stuff back, and took something of his as compensation for the trouble he had caused you.
But if he had stolen something that you put a high value on, like one of your wives, you killed him.
Problem solved.
Except NOIP, that system never worked.
Only a (non-compromised) following of the Rule of Law has worked.
THAT is what we need to return to.
Good grief. You can’t understand the why of the 7th Amendment? How about this simple formulation: Liberty = property rights. How to best protect that liberty? Step one, an independent judiciary with lifetime appointment. Step 2, protection from the judiciary with a jury. Step 3, an adversarial proceeding before said jury to determine facts on the ‘anvil of cross examination.’ The Johnny Dep case was a good illustration of the why of the jury. The jury disbelieved her and found for Dep. You will never get that protection from an affidavit. And I would forever and a day trust a jury to determine credibility before I would ever trust a judge. If you ever get a change to serve on a jury – do it – it’s’ like being a part of a miracle. Watch 12 angry men for a refresh.
12 Angry Men was about a criminal trial. I agree that the jury serves a useful purpose in criminal trials. The punishment meted out to the guilty is done in the name of the “people” (e.g., “People v. Warren,” and suchlike), so it is only right and fitting that random citizens should be pulled away from their daily life to decide these questions of guilt, innocence, punishment, and (where applicable) death.
You are pulling a sleight of hand, however, when you move that question over to civil trials. You say that “Liberty = property rights.” Good, so far, we agree.
You then argue, however, that jury trials are necessary to protect those property rights. The problem that I find with this conclusion is that—near as I can see—property rights are just as secure in Denmark, and Canada, and Japan (etc.) as they are here, and yet none of those countries use juries to decide civil cases. Evidently, then, juries are not really necessary to protect property rights.
If juries are not necessary for justice in civil trials, however, then on what basis can we compel citizens to abandon their daily lives to serve on juries. You speak of “liberty,” but brush rather blithely past the fact that compelling jury service is a burden on liberty. To my mind, that burden is justifiable where criminal penalties are at stake. I am harder pressed, however, to see the justification for burdening the liberty of citizens to serve as jurors in civil matters.
J MARL BENFIELD… was sent what was needed. Military is the greatest give. Nut, that doesn’t mean the rest are boot lickers
J MARL BENFIELD… was sent what was needed. Military is the greatest givetl. That doesn’t mean the rest are boot lickers
J MARK BENFIELD. THE MAN THAT SAW ALL I HAD.
Evidently that was not the experience of the framers – that a judge was sufficient protection of private property – maybe for the rich, powerful and well connected, hence the 7th Amendment. It’s a feature, not a bug. Serving on a jury is a civic duty, as is conscription (draft) into the military. It’s like the one thing we owe each other as citizens of the Republic, IMHO, it’s a profound part of the social contract. It’s a crying shame the current SCOTUS (does it even have a judicial philosophy?) doesn’t treat it with more respect. If one can detect anything at all with this current SCOTUS was the desire of Breyer to grant judges more ‘discretion’ to fashion what he believe is the judge’s roll in crafting more optimal society outcomes. The Breyer doctrine in practice, however, is an unworkable subjective mess that is dependent on the whims of the judge. Plus the annoying feature of the Robert’s court to keep twisting and re-writing legislative schemes to squeeze them into the Constitution between the two doctrines we get the hash we have today.
… and as I pointed out when he was ‘happy’ when the Royal Nine were ruling against patents — but ‘unhappy’ with the likes of Dobbs, having Ends Justify the Means is especially dangerous in law.
“ How to best protect that liberty? Step one, an independent judiciary with lifetime appointment.”
ROTFLMAO
Hopefully the jury will remember all that when they’re sitting through an agonizingly boring and never ending patent trial with peacocking lawyers.
Speaking of the Constitution … How awesome it must be for the non-religious folks in the room to be served up some prime b.s. about the Books of Moses! Classic stuff but hey it’s just the First Amendment and Rodney probably has the Ten So-Called Commandments nailed up all over the courtroom so whatevs.
link to youtu.be
Interesting comments from someone who calls himself (or herself) a prophet.
PC,
Malcolm; as a member of the Sprint Left hints at the quiet part out loud: the Sprint Left ‘ideology’ IS a religious movement unto itself.
The aim of that religious movement is the deconstruction of the unique United States foundation, a foundation whose laws are grounded in a Judeo-Christian basis (as anyone who has actually studied the history of law would tell you).
This is but yet another source of cognitive dissonance for p00r Malcolm.
Oh lookie an admitted Trumpist and a glibertarian Trump bootlicker are having a special moment here after I pointed out (correctly) that Gilstrap is slinging religious B.S. at his jury pool. How surprising that must be to people with their heads buried up their behinds!
Your “pointing out” your own r0t and lack of understanding of basics of US law is noted, Malcolm.
All that ‘heads buried’ stuff is merely you projecting.
Again.
Is it not so, that IPR and PGR, far from denigrating the jury trial ideal, furthers it?
I mean, every patent (being issued by the executive branch of government) is a restraint of trade between citizens of the USA. So, citizens of the USA ought to have an opportunity to protest against having those restraints imposed on them, unilaterally, by a branch of central government.
A chance for citizens to protest (at the unilateral grant of exclusive rights by a mere administrative body) is afforded by the innovation of IPR and PGR. Is that not something which, in principle, should be welcomed? If, despite that protest, the grant of exclusive rights is upheld, all is not yet lost. The “civil dispute” arising from the attempted enforcement of those exclusive rights remains subject to a jury trial.
What’s not to like? What detail is misconceived? What is the fix?
Here is the text of the 7th Amendment to the US Constitution:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
There is no exception in the 7th Amendment for suits for patent infringement. Therefore, when a patent owner sues in US District Court for patent infringement, and the suit is stayed to allow the USPTO to cancel the asserted patent claims (via IPR or PGR) the 7th Amendment is clearly violated. The US Congress has no power to alter the US Constitution with one exception. If two-thirds of both the House and the Senate vote to amend the same then three-quarters of the state legislatures need to ratify the amendment.
The PTAB is an exception because it’s not a legitimate court—it’s a congressionally authorized legal loophole in the American jury system.
It IS a legitimate Executive Branch administrative tribunal system.
The problem is NOT the PTAB itself — it is the drivers TO the PTAB.
As I noted to the late Ned Heller leading up to the miscarriage of Justice of Oil States, Congress — in the AIA — left intact sticks in the bundle of property rights of a granted patent that include both the presence and degree of the presumption of validity of a granted patent (and ALL that THAT entails).
It is at the institution decision point (well before any actual decision on the merits) that a Takings occurs.
The whole notion of an item — granted and thus released from the ‘control’ of the Executive Branch — loses elements (sticks) in its bundle of property rights that SHOULD be (and should have been) emphasized.
The holding in Markman specifically states that patent disputes are disputes government by the 7th Amendment. This is just one reason why the holding in Oil States is the so tyrannically wrong.
John Doe: when an IPR cancels a patent, the value in dispute is no longer above $20, and there is no Constitutional infirmity.
If the judge is going to go thru with this form of preamble for every jury, perhaps he could improve it by touching on the difference between facts and law in a case. I doubt the typical person off the street has any idea of the distinction.
Looking around the world and across history “Judeo-Christian” looks a lot like everyone else; there are only so many ways to organize a society.
Your ‘logic’ is bass ackwards.
As I noted, the Takings occurs PRIOR to any (re) decision on the merits.
As to your “looks a lot like” – you quite miss that such is a non-sequitor and simply does not accord with the historical facts at hand (and you appear to be rather p00rly informed as to the Politico-religious nature of those who seek to subvert the current political system.
Just how many levels do you lack basic understanding of?
Some people project & some people PROJECT.
Go ahead, detail what’s historically distinctive about the Judeo-Christian experience.
Do that while you move the goalpost- as usual -to “Politico-religious” which is still ahistorical no nsense and no help-as usual.
If you knew anything of history (you don’t) you would recognize that the core of the Enlightenment is secularism, and the roots of the American idea are firmly within the Enlightenment.
Also as usual, mixing apples and watermelons; a civil dispute between two parties is an entirely different proceeding than a proceeding between a litigant and the sovereign. Taking or no taking, no patent means no dispute which means no jury. You must have been a different person when you made it thru law school (big jump, I know to assume that you did).
marty,
You are so deep in the weeds here….
I NEED NOT provide anything ‘distinctive,’ as the plain historical facts of US jurisprudence BEING taken from teh Judeo-Christian experience are just that: facts.
That YOU want to consider facts to be (somehow) “ahistorical no sense” is clearly a YOU problem.
You also miss – and badly – the notion of your PRESUMED “no patent,” as you cannot get there from here WITHOUT the Takings having occurred.
That you want to try to imply that I lack law school — when you OH SO CLEARLY lack any legal appreciation only exhibits your height of Mount
S
T
U
P
I
D.
But please, keep on being you, and posting that proves my points.
The right “shall be preserved.” This means preserved from the traditions in England at the founding. In England they allowed administrative reexamination of patents. Case closed, you lose.
From the 17th through the 20th centuries, English patents had a standard revocation clause that permitted six or more Privy Counsellors to declare a patent void if they determined the invention was contrary to law, “prejudicial” or “inconvenient,” not new, or not invented by the patent owner. See 11 W. Holdsworth, A History of English Law 426-427, and n. 6 (1938); Davies, The Early History of the Patent Specification, 50 L. Q. Rev. 86, 102-106 (1934). Individuals could petition the Council to revoke a patent, and the petition was referred to the Attorney General. The Attorney General examined the petition, considered affidavits from the petitioner and patent owner, and heard from counsel. See, e.g., Bull v. Lydall, PC2/81, pp. 180-181 (1706). Depending on the Attorney General’s conclusion, the Council would either void the patent or dismiss the petition. See, e.g., Darby v. Betton, PC2/99, pp. 358-359 (1745-1746) (voiding the patent); Baker v. James, PC2/103, pp. 320-321, 346-347 (1752) (dismissing the petition).
The Privy Council was a prominent feature of the English system. It had exclusive authority to revoke patents until 1753, and after that, it had concurrent jurisdiction with the courts. See Hulme, 33 L. Q. Rev., at 189-191, 193-194. The Privy Council continued to consider revocation claims and to revoke patents throughout the 18th century. Its last revocation was in 1779. See id., at 192-193. It considered, but did not act on, revocation claims in 1782, 1794, and 1810. See ibid.; Board of Ordinance v. Parr, PC1/3919 (1810).
The Patent Clause in our Constitution “was written against the backdrop” of the English system. Graham, 383 U. S., at 5. Based on the practice of the Privy Council, it was well understood at the founding that a patent system could include a practice of granting patents subject to potential cancellation in the executive proceeding of the Privy Council. The parties have cited nothing in the text or history of the Patent Clause or Article III to suggest that the Framers were not aware of this common practice. Nor is there any reason to think they excluded this practice during their deliberations. And this Court has recognized that, “[w]ithin the scope established by the Constitution, Congress may set out conditions and tests for patentability.” Id., at 6. We conclude that inter partes review is one of those conditions
Can somebody remind me as to the current state of the debate whether the due issue of a patent by the USPTO is an act of creation of “private property”? Meanwhile, I’m wondering what’s wrong with the notion that what authority pleases to bestow on you, that same authority can legitimately take away from you when it realises it has made a mistake.
No one has (meaningfully) challenged the notion that a granted patent IS personal property with a bundle of sticks of legal rights.
The only wrinkle in any discussion on that point was introduced by Greg in that he posited that the Oil States case indicated that the FORM of that personal property was a “Public Franchise.”
Of course, he has chosen to remain silent as to necessary implications that might arise from “FranchisEE to FranchisOR” obligations.
Well, that’s a rather large elephant that you are trying to cram into that mouse hole with, “The Patent Clause in our Constitution “was written against the backdrop” of the English system. Graham, 383 U. S., at 5. Based on the practice of the Privy Council, it was well understood at the founding that a patent system could include…”
First and perhaps foremost, your knowledge of the English system speaks against the assertion that this WAS a part of the US system.
The US system, while built with knowledge of the British (and other world countries) system(s), was indeed crafted to be different — see at least the foundations of Life, Liberty, and Property (as amended to be Pursuit of Happiness).
The question is NOT merely one of revocation, but of the nature and DUE process of an item once let go of by the Administrative Agency of the Executive Branch.
“Oops I made an error” simply does not carry the weight that is tending to be asserted.
And yet the PTAB – remember it was found to violate the appointments clause? – does not even rise to a privy court. It’s the hand of the king himself. Oil States turned the US patent system into a political spoils system, yet another reason to game, lobby and contribute to the political class in order to garner favors. Now we have one commissioner granting a patent, an election, then the new commissioner revoking said patent. The very issue addressed by SCOTUS in the famous land grant patent cases over gold vein rights drawing from patent law holding that this consequence was abolished by the separation of powers.
The holding of Oil States is going to spread like a cancer thru the fourth branch with privy courts of experts popping up everywhere. Very ironic since apparently SCOTUS see need to reverse Chevron.
+1
(and again, the notion — as advanced by Greg DeLassus that ‘personal property rights’ are maintained in that the personal property is in the form of “Public Franchise” does not address any inherent duties of a FranchiOR to the FranchisEE)
It should be pointed out that the SCOTUS summarily rejected the argument that IPR violates the 7th Amendment in the Oil States decision.
MaxDrei
Stop slinging fecal matter against the wall.
“So since 1791, well over 200 years ago, every American has had a constitutionally guaranteed right to have their civil disputes settled through a trial by jury.”
But no more. Not since the AIA and Mayo / Alice.
For when the PTAB wipes out your duly issued claims . . . and denies you replacement claims . . . and/or a judge 101-dismisses your case . . . thereby taking away your invention and giving it to anyone and everyone who wants it . . . a jury trial never takes place.
The constitutionally guaranteed right to a jury trial is as illusory as is the “your invention is yours and yours alone” promise on the face of your duly issued patent.
Shameful.
Yet inventors still unknowingly flock to the patent office with the illusion that they will obtain a valid and enforceable patent after spending their life savings to obtain it.
PC,
There should not be that sense of “unknowing” that you reference, as I for one (and I am certain that many other dutiful practitioners also do) counsel and inform our clients of the current state of patent protection (as well as counsel to NOT simply give up, as that is exactly what the Efficient Infringers WANT to happen).
Except not “duly issued” because that’s the very point of an IPR.
A referee makes a “duly issued” touchdown call, but upon further review, the guy’s knee was down before the ball broke the plane.
If the player gets the score, who was robbed?
Add football to something you do not know as your analogy falls flat.
The instant replay MUST take place before the next snap.
You are applying it several games down the line.
We have a Congressionally set existence and level of presumption of validity for a reason.
You want “bad calls corrected?”
No problem — that MUST happen in line with examination quality.
Or have you forgotten that THAT is one of my pet peeves?
The AIA took away a patent owner’s Constitutional right to a jury trial.
?
Which section of the AIA (as opposed to court-induced patent profanity) did that?