Give Thanks for Oil States

By Randy Landreneau
November 24, 2017

Pictured are Paul Morinville (hat), Josh Malone (glasses) and Randy Landreneau.

US Inventor sponsored a protest at the USPTO where inventors burned patents in August. Pictured are Paul Morinville (hat), Josh Malone (glasses) and Randy Landreneau. Photo by Julie Pixler.

As we spend time with family and friends during this Thanksgiving season, we certainly have a lot to be thankful for. Were it not for a small group of individuals with an unfathomable amount of foresight and courage a few hundred years ago, where would we be? Of course, that foresight included the creation of the American Patent System, itself revolutionary and an inseparable part of the DNA of this great experiment called America.

Just as perfect statues erode from the rain, so can ideals when faced with the constant pressures of an imperfect world. If you are one of the many inventors who have lost their duly issued patents in a Patent Trial and Appeal Board (PTAB) action, you understand. As bad as the situation is, we are lucky to be in America, right now, at a time when the collective voice of the people can be heard and can make a difference.

If you doubt this, consider that a grassroots effort stopped The Innovation Act (H.R.9) from being passed the second time it was brought to the U.S. House. It had previously passed 325-91. I am told by people smarter than me that there is no historical precedent for a bill, having passed this resoundingly, being stopped the second time.

The greatest cause of our time is the correction of the American Patent System – the return to a system that provides an actual intellectual property right, signified by a U.S. Patent, to any inventor regardless of income status. This was the revolutionary aspect of our patent system when it was created. The aristocracy of other countries scoffed at it, until they saw the effect of empowering the common man to innovate. It quickly became obvious that America was right. But changes in recent years have turned intellectual property here into a “game of kings” that is the opposite of what made America the worldwide leader in innovation.

Among the attacks in recent years on the intellectual property rights of inventors was the passage of the America Invents Act (AIA) of 2011, which created the PTAB – the current tool of choice for invalidating patents. If your patent makes it to the PTAB, there is greater than a 90% chance that it will either be invalidated or neutered.

Is a patent a property right? It certainly has been considered so for over 200 years. If it is a property right, to invalidate it should require an Article III (judicial) court with all the normal due process required to invalidate property right. But the PTAB is an administrative court with limited due process protections and results that have caused former Chief Judge Randall Rader to refer it as “death panels for patent rights.”

The US Supreme Court will look at these issues when it deliberates Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, starting Monday morning, November 27th. US Inventor, the premier non-profit fighting for inventors’ rights, will be staging a demonstration to bring attention to the issue. You have the unique opportunity to come and be a part of history as we make our voices heard in the most important cause of our time.

The erosion of patent rights that we have experienced in recent years must be stopped now. Inventors nationwide need your help.  America needs your help. Come and be a part of this historic demonstration – see this link for more information on the US Inventor protest of the PTAB on November 27th..

The Author

Randy Landreneau

Randy Landreneau is an inventor and product developer. He is a former President of the Tampa Bay Inventors Council and is a Managing Board Member of US Inventor. He is also President of Complete Product Development, a company that provides CAD design, prototyping, 3D printing, silicone molding and educational services to inventors and companies.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 15 Comments comments. Join the discussion.

  1. Paul Morinville November 24, 2017 7:14 pm

    Come join us Monday. We need all the help we can get.

  2. Joachim Martillo November 24, 2017 11:32 pm

    While it is great that Supreme Court will hear Oil States vs. Greene’s Energy Group, et al., we don’t know for sure that the Supreme Court will find IPR (Inter Partes Review) unconstitutional, and even if SCOTUS rules for unconstitutionality, such a decision would only address part of the current internal USPTO and the external industrial-academic attack on the US patent system.

    (1) SAWS, which is only one of a number of internal unlawful and probably illegal internal USPTO “quality assurance” programs, goes back to shortly after the decision of In re Alappat, 33 F.3d 1526 (Fed. Cir. 1994) was issued. While the name SAWS seems to have been terminated, the behavior seems to continue and will probably increase if IPR is ruled unconstitutional.

    (2) Programs like SAWS seem to continue as a means to obviate the final decision in Tafas v Dudas/Doll/Kappos. This behavior may constitute repeated and habitual contempt of court.

    (3) “Abstract idea” remains ill-defined and an arbitrary and capricious basis for declaring claims 101-ineligible. We need exemplary rationales for findings of ineligibility.

    (4) The USPTO continues to apply 37 CFR 42.100 – Procedure; pendency — arbitrarily and capriciously.

    (b) A claim in an unexpired patent that will not expire before a final written decision is issued shall be given its broadest reasonable construction in light of the specification of the patent in which it appears. A party may request a district court-type claim construction approach to be applied if a party certifies that the involved patent will expire within 18 months from the entry of the Notice of Filing Date Accorded to Petition. The request, accompanied by a party’s certification, must be made in the form of a motion under § 42.20, within 30 days from the filing of the petition.

    The most notorious recent case pertains to Bunch O’ Balloons.

    (5) PTAB judges lie in official documents at least in appeals from examination. (According to SAWS FOIA documents PTAB judges have been apprised of SAWS status and improperly or unlawfully reached decisions based on this SAWS status.)

    (6) There were apparently justified suspicions of improper or forbidden meetings during Inter Partes Reexamination. Without complete review of internal USPTO records, it is practically impossible to determine validity of such allegations and whether such meetings continue in IPR.

    (7) The history of the Bass and Spangenberg petitions for IPR suggests arbitrariness in IPR.

    (8) FOIA documents obtained by Bass and Spangenberg imply that USPTO decisions for institution are improperly made on the basis of projected economic impact.

    Without full disclosure of USPTO records and without the SEC or the FBI crawling all over the USPTO, we have to suspect corruption and criminality at the USPTO.

    [I have worked in the financial industry. I always suspect the worst. USPTO decisions can represent hundreds of millions of dollars. Such amounts are more than enough reason for illegality at major investment corporations.]

  3. Edward Heller November 25, 2017 8:54 am

    “… property right …. This was the revolutionary aspect of our patent system when it was created. The aristocracy of other countries scoffed at it, until they saw the effect of empowering the common man to innovate. It quickly became obvious that America was right. But changes in recent years have turned intellectual property here into a “game of kings” that is the opposite of what made America the worldwide leader in innovation.”

    Where do you get these ideas? Truly.

    First of all, a patent was the highest former property there was in England, sacrosanct against even the crown. The only way a patent could be revoked was by a judgment of a court of law.

    The United States did not invent a patent system, nor the concept that patents are property. Nor did the United States invent the Magna Carta, which required that a man have a trial by jury in a court of law before he may be deprived of his property.

    And who was scoffing?

    One has to know that by the end of the 1700s, just prior to the founding of the United States, that the English had a well-developed idea of the quid pro quo – a disclosure of the invention in exchange for patent. This wasn’t truly recognized in the United States until a century later in the famous American case of American Bell II (1897) where the Supreme Court formally recognized that the patent was granted in exchange for a disclosure of the invention.

    What is at stake here, of course, as urged by the other side, the big companies, is to turn the United States patent system into something that neither we nor the English had, a totally revocable patent privilege discretionarily granted to an inventor and revocable even without full due process.

  4. Bluejay November 25, 2017 9:16 am

    Good luck to Alyson Ho, the lawyer for Oil States.

  5. Randy Landreneau November 25, 2017 9:34 am

    Edward, you missed the important part of my statement “… to any inventor regardless of income status.” That the common man was given an opportunity and encouraged to participate in invention at that time in history was revolutionary (see the writings of B. Zorina Khan, like “Trolls and Other Patent Inventions: Economic History and the Patent Controversy in the Twenty-First Century”).

  6. Joachim Martillo November 25, 2017 9:57 am

    Randy Landreneau@5 and Edward Heller@3:

    As I point out in a Linkedin article, Why Nations Fail, pp. 26-7 identifies the US patent system as a mechanism of social and class inclusion. Yet I have to suspect that the UK patent system served the same role. The US and UK legal systems were learning from each other as they navigated the common law of intellectual property. We should research whether the UK patent system also served as a mechanism of inclusion. I suspect it did.

    Unlike other pre-modern European elites the British pre-modern elite has survived into the modern period probably because the British elite was more or less willing to co-opt new members.

    [Note that such inclusiveness did not guarantee the survival of a pre-modern elite. The Czarist Empire provided at least one mechanism for incorporating non-Russians non-aristocrats into the aristocracy, but it was not enough to prevent the revolutionary overthrow of the Czarist system, which suffered terminal indigestion resulting from consuming a large part of Commonwealth Poland.]

  7. Paul Morinville November 25, 2017 9:58 am

    Edward, read some B. Zorina Kahn history.

  8. Edward Heller November 25, 2017 10:45 am

    Paul, we all know the English system as a whole was, and still is, class based. But the low cost of a US patent is not an artifact of something special about US patents vs. English patents, but about the US vs England.

  9. Edward Heller November 25, 2017 10:48 am

    Joachim, I think the real turning point for Britain was 1792 when the Jacobins struck the Tricolors, raised the Red Flag of the Jacobins, and declared war on England. Until that point, England too was drifting toward Republicanism. But its war against the French changed everyone’s minds.

  10. Paul Morinville November 25, 2017 11:39 am

    Edward, it was certainly one of the major differences and a major reason why we were so successful. The cost was only a couple of bucks so almost anyone could afford to patent. I dont remember the exact amount In England, but i believe it was at or above six months of income making patent filing too expensive for most. Which is where we are now in the US.

  11. Paul Morinville November 25, 2017 12:01 pm

    Edward, the Patent Act of 1790 granted patents to “he, she or they”. At a time when African Americans and women could scarcely own property, they could own the property they created, and they could afford to patent it. This was not only America’s first affirmative action law, it changed to world from the perspective of who can create new technologies and found new industries. Prior to that it was the domain of nobles and wealthy white men.

  12. David Cohen November 25, 2017 1:34 pm

    The problem with this article is, indeed, that it opens with the notion that the patent system was revolutionary and scoffed at by old Europe, and then tries to parlay that into an attack on the PTAB as being an attack on the patent system as a whole. Since (1) the premise stumbles immediately out of the blocks (Article 9 of the constitution says nothing about the wealth or income of the inventors), and (2) the reasons that patents have difficulty before the PTAB is not analyzed at all, the attack really doesn’t get much traction. The issue of a patent being a right or a property is interesting and surely should be debated in law schools, but seems tertiary, like an afterthought.

  13. Paul Morinville November 25, 2017 2:21 pm

    David, B. Zorina Kahn is the foremost patent system historian. She digs deeply into the aspects of the Patent system that made it significantly different than the rest of the world. Randy is correct in his interpretation of that history. It seems that may upset your platform, but Randy is not wrong.

    As for your belief that lawyers should debate whether or not the plain English of the US Constitution says and means an “exclusive Right” is not necessary. The words are the words and the meaning of those words is clear. 220 years of precedent and black letter law back that up. Most lawyers represent large clients who want those words to mean something they do not mean, and lawyers form arguments on behalf of their clients. Therefore lawyer argument is not credible. The current meaning must be the original meaning, which for 220 years meant a patent is a private property right. Again refer to B. Zorina Kahn’s acedemic work.

    If you would like a patent to be something other than a private propery right, please change the Constitution. That can be done and your problem thus will be solved.

  14. The Time Is Now To Act November 25, 2017 3:10 pm

    Amen, Paul. Truth is spoken, and fallacy debunked, in plain english.

  15. Distant Perspective November 25, 2017 8:37 pm

    Trespassing briefly on this website if I may.

    There are a couple of new posts on a “blog” on which I am accumulating transcripts of and/or links to English cases cited in briefs and authorities in Oil States. The two latest postings contain links to images of Privy Council papers on the Anglo-American Legal Tradition website relating to the dismissal of the petition to vacate Dr. James’ patent in 1753 and the order to vacate Wilkinson’s patent in 1779.

    (A posting on another blog has disappeared into moderation, but it is possible that some here might be interested.)

    https://distantperspective.blogspot.ie/

    Takeaway for me – there were serving or retired senior judges on the committees of the Privy Council considering petitions to revoke Hamblin’s, James’s and Wilkinson’s patents in 1732, 1753 and 1779. Moreover the committee meetings in 1753 and 1779 (I haven’t checked 1732 for this) also considered appeals to the King in Council from orders or decrees of courts in the West Indies, Guernsey and the Court of Common Pleas in West Florida. To me (though others may differ), that signifies that the Orders in Council were exercises of the judicial powers, as opposed to the executive or legislative powers, of the King.

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