The Patent Bargain and the Fiction of Administrative ‘Error Correction’ in Inter Partes Reviews

By Ron Katznelson, Ph.D.
November 30, 2017

Reality CheckThe following is a summary of my paper on Private Patent Rights, the Patent Bargain and the Fiction of Administrative “Error Correction” in Inter Partes Reviews.  As the Supreme Court considers in Oil States v. Greene’s Energy the constitutional limits on adjudicatory authority of the U.S. Patent and Trademark Office (“PTO”), it is important to recognize that the substantive question at hand is no longer whether or not the patent right is a property right.  Contrary to widespread belief, both respondents – Greene’s and the Government – concede that the patent right is a property right.  They contend, however, that adjudication of those rights is subject to the “public rights” exception, permitting Congress to remove patent validity adjudications from Article III courts and relegate them to an administrative tribunal, the PTO’s Patent Trail and Appeal Board (“PTAB”), whose final fact-finding is conclusive and binding on Article III courts.

In justifying the constitutionality of the inter partes review (“IPR”) statute enacted by the America Invents Act (“AIA”), a common refrain persistently asserted is that patent rights emanate solely from federal statute and are therefore public rights, derived from a “federal regulatory scheme.”  Another reprise is the remedial tenor of the IPR statute: Congress merely authorized a “narrow” post-issuance means for the agency to “correct its own errors.”

My paper shows that both contentions above are without merit; that the exclusive patent right emanates from the inventor – not from Congress – and therefore the right adjudicated in IPRs is a “private right”; and that the notion of post-issuance “error correction” is fiction, as it overlooks the irreversible and uncorrectable exchange of rights upon patent issuance.  A summary of the paper follows.

1. Congress does not create the patent right – it only creates the statutory design for securing the inventor-created right

Article I, Section 8, Clause 8 of the U.S. Constitution (the “IP Clause”) empowers Congress “To promote the Progress of … useful Arts, by securing for limited Times to … Inventors the exclusive Right to their … Discoveries.” (Emphasis added).  The Supreme Court has recognized that this language “is both a grant of power and a limitation.” Graham v. John Deere Co., 383 U.S. 1, 5 (1966).  Thus, Congress is not authorized to create a new exclusive property right in a grant – it is only empowered “to secure” the existing rights of the inventors.  Gibbons v. Ogden, 22 U.S. 1, 146–8 (1824).

At the time the Constitution was adopted, the term “to secure” meant what it means today – “[t]o make certain, to put out of hazard, to ascertain, to protect, to make safe, to insure.”  Thomas Sheridan, A complete dictionary of the English language, 2nd ed., London: C. Dilly (1789). The choice of the word “secure” in the IP Clause rather than “grant” appears deliberate; the Framers were well aware of the word “grant,” having used it 8 times elsewhere in the Constitution.  And the term “grant” meant what it means today – “to bestow something that cannot be claimed of right.” Sheridan (1789) (emphasis added).  Thus, Congress is empowered only to secure that which can “be claimed of right” by inventors – “the exclusive Right to their … Discoveries.”

Before the patent issuance, from the moment of first possession and reduction to practice of a patentable invention, the inventor in fact has an exclusive right to the invention.  Indeed, exclusivity nominally begins even before an application for patent is filed.  This is because a patentable invention is novel and non-obvious to the world; it would not have been previously known or available to the public and the inventor could have kept it secret to himself and therefore necessarily would have remained the exclusive user to exploit the invention, at least for a while.  However, although the inventor created the exclusive right, that right would not have remained secure.  Enter Congress.

Congress does not create the exclusive patent right – it only creates the statutory design and the legal formalities needed for securing the inventor-created exclusive right.  This was repeatedly enunciated by the courts over the years, as further detailed in my full paper.  The fact that the inventor’s exclusive right is among rights secured by congressional legislation does not mean that it can be extinguished by legislative courts.  Indeed, were this principle to apply consistently, it would make Article III courts optional for every statutory cause of action, stripping them of their constitutional jurisdiction.  This would exceed separation of powers limits by countenancing a doctrine under which “what Congress giveth, Congress can taketh away” on whatever terms it pleases.

2. The Irreversible Patent Bargain

The notion of the patent bargain – disclosure of an invention in exchange for a secured exclusive right to the invention – was introduced in 1792 by Joseph Barnes, one of the early American patent commentators.  The Supreme Court explained that under the patent quid pro quo, the “immediate disclosure is not the objective of, but is exacted from, the patentee. It is the price paid for the exclusivity secured.” Eldred v. Ashcroft, 537 U.S. 186, 216 (2003) (emphasis added).

The recognition that the public receives valuable consideration from the inventor –the publication of the full enabling detailed disclosure of the invention, which is “the price paid for the exclusivity secured” – further underscores the private right nature of the underlying source of the patent right.

3. The Fiction of “Error Correction” in Post-Issuance Review

The notion that an IPR merely “corrects” an error – that the PTO simply “reconsiders” its prior decision and is given a chance for a “do over” – is fiction. First, the exchange of rights upon patent issuance is irreversible and therefore uncorrectable.  The public disclosure of the invention made under the patent quid pro quo in exchange for secured exclusive right cannot be erased and the status quo ante cannot be restored; one cannot unring the bell.  Moreover, the substantial investments that the patentee may have made in reliance on the exclusive patent right cannot be returned; investment-backed expectations are conclusively gutted without judicial review.  In short, there can be no “do over” of the patent bargain.

Second, there is no assurance that the PTAB will actually correct an error.  In fact, the PTAB record indicates otherwise – that IPR error correction is illusory: if a PTAB final decision “corrects” an issued patent, why are subsequent “corrections” of the same patent again and again in up to a dozen IPRs necessary?  This is definitely not about a “do over” – it is a “do over, and over, and over…” scheme.

Furthermore, rather than striving to “correct errors,” the PTO admitted that in certain cases it expanded PTAB panels with selected judges in repeated adjudications to reach preferred substantive results.  As such, there are no real checks on the PTAB “correction” mechanism – the PTAB decision is conclusive as to fact-finding.

The decision in McCormick Harvesting Machine Co. v. Aultman, 169 U.S. 606 (1898) was directly on point as it pertained to “error correction”.  Here, the Supreme Court held that “[t]he only authority competent to set a patent aside, or to annul it, or to correct it for any reason whatever, is vested in the courts of the United States, and not in the department which issued the patent.” Id., at 609.  The Court reasoned that for the Patent Office “to attempt to cancel a patent … considered invalid by the examiner would be to deprive the applicant of his property without due process of law, and would be in fact an invasion of the judicial branch of the government by the executive. Id., at 612.

The common narrative on this holding asserted by IPR proponents, is that McCormick did not address Article III and was decided according to the then-existing patent statute, which in 1898 gave no unilateral authority to the Patent Office to cancel issued patents.  But this too is fiction, as McCormick’s reasoning is clearly constitutionally-based.  Admittedly, one can reasonably argue that the first part of McCormick’s statement about patent cancellation cited above – that doing so “would be to deprive the applicant of his property without due process of law” – can be interpreted as stating a void in statutory authority, even though it points to a Fifth Amendment infirmity.  This is because Congress ostensibly could have cured this type of infirmity by providing procedural due process through a statutory scheme for canceling claims in existing patents.

However, the second part of McCormick’s holding – that it “would be in fact an invasion of the judicial branch of the government by the executive” – has no possible statutory cure.  Instead, this holding in McCormick is purely constitutional, pointing out the constitutional infirmity of exceeding the separation of powers limits.  Contrary to IPR proponents’ contention, this holding in McCormick has everything to do with Article III.  And curing it requires amending Article III of the Constitution.  While McCormick’s holding may not be a Fifth Amendment holding, it is certainly an Article III holding.

4. The Administrative Mythical Ghost of Reexamination

Proponents of IPRs point to the long existence of post-issuance “error correction” at the PTO in (a) ex parte reexamination, a procedure enacted in 1980 that withstood constitutional challenges at the Federal Circuit, and (b) inter partes reexamination enacted in 1999.  Because such long-established proceedings also allow the PTO to cancel claims in issued patents, proponents contend, Congress is similarly within its power to establish IPRs.  This argument, however, glosses over critical aspects of reexaminations.  As opposed to the reasoning given by Oil States’ counsel in her oral argument, I do not believe that the distinction can be predicated on the degree of “third party participation” but is rather based on Article III fundamentals.

First, PTO’s ex parte reexamination decisions were not conclusive – they were subject to de novo fact-finding judicial review under 35 U.S.C. §145 by a civil action in an Article III court.  Because Article III protections were fully available, ex parte reexaminations were constitutional.  For the same reason, so are interferences.  It was only the AIA in 2011 that eliminated the path to such protective judicial review by amending 35 U.S.C. §§ 306, 141, and 145.  Second, before the AIA’s conversion of inter partes reexamination into IPR, this type of proceeding was never challenged on constitutional grounds in any court.  It was the AIA that stripped patent owners of their long-standing, fundamental, statutory right to challenge adverse decisions of the PTO by civil action in federal district court, not only in IPRs but also in reexaminations.  The notion that a Supreme Court decision finding IPRs unconstitutional would necessarily bring down the 1980 reexamination statute is a myth – it would only mean that Congress must restore the ex parte reexamination statute as it existed in 2011 and that any new inter partes proceeding contain similar Article III protections.

Stay tuned for the Supreme Court’s decision.  Read my full paper on SSRN.

The Author

Ron Katznelson, Ph.D.

Ron Katznelson, Ph.D.  
Dr. Katznelson is the Founder and President of Bi-Level Technologies in Encinitas, CA. From 1990 to 2005, he was Chief Technology Officer, Founder and Chairman of Broadband Innovations, (formerly known as MCSI), where he led the company’s entry into the digital RF CATV industry. From 1983 to 1989, he was with the VideoCipher Division of M/A-COM Linkabit Corp., later acquired by General Instrument Corp. (GIC), where he served as Director, New Technology Development. At GIC, he directed R&D in the areas of Advanced Television Systems that led to GIC's video compression technology, now forming the core of the MPEG-2 standard and a basis for the Grand- Alliance ATSC High Definition Television standard. His responsibilities also included the management and development of the VideoCipher Division's intellectual property portfolio as well as representation in industry groups and standard bodies.

From 1982 to 1985, Dr. Katznelson was a Professor of Electrical Engineering at the University of California, San Diego (UCSD). He taught courses in Linear System Analysis, Probability and Stochastic Processes.

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 23 Comments comments. Join the discussion.

  1. Edward Heller November 30, 2017 7:04 am

    Ron, good job.

    Undoubtedly McCormick Harvesting will be thoroughly discussed in the Supreme Court opinion. It is clear to anybody actually reads the case that is not simply a complaint by the Supreme Court of the executive department acting without legislative authority, as virtually conceded by Oil States counsel, but It echoes a long line of authority going back to Marbury v. Madison that the validity of property rights is a matter for the courts.

    Another thing clearly held in McCormick Harvesting is that invention patents are just as much property as are land patents and should be treated the same way under law and under the Constitution. What I heard out of the oral argument in Oil States was that the liberals on the court refused to accept the very words of this case and seemed to think that an invention patent does not have the full legal protection as do land patents, meaning of course, that they could be revoked by the government – with only cursory review by the courts to determine that minimum due process was followed.

    This case represents a problem for the liberals on the court and for all who want to fundamentally change the patent system into something it never was and should never be. The idea that a patent is a revocable privilege is alien to America, and it fundamentally undermines America’s efforts internationally that the entire world respect and enforce patent rights. It is certainly was going to significantly and negatively impact any R&D effort that can only be justified based upon the reliability of patents. I am thinking here about biological and pharmaceutical patents that are so difficult to develop but so easily copied.

    There is no question that the existence or reexaminations and IPR’s have already damaged independent inventors and startups. While the total number of patents being received by American’s since reexaminations began has tripled, the portion received by independent inventors has actually declined. The existence of IPR does not strengthen the patent system, but essentially revokes it for all who need it.

  2. EG November 30, 2017 9:14 am

    Hey Ron,

    Great article! Your logic, as usual, is impeccable. I just downloaded the full article. If only those 9 characters that inhabit Our Judicial Mount Olympus would read it (Gorsuch would certainly love it), we might restore some sanity to the much maligned U.S. patent system.

  3. Anon November 30, 2017 9:56 am

    Bravo.

    Another way to say the same thing:

    The change in law from the AIA de-secures the exchange or bargain between the inventor and the government offer of a legal title (the turning of the inventor’s inchoate right into a full legal right at the time of grant).

    Instead (and also in contradiction to the ability to choose non-publication), we have a “faux” securing of title at grant, and in reality an “open-season” for ANY deep -pocketed concern to attempt to “cherry pick” and apply third party examination of an application.

    This is nothing more than a concentrated end-run around the basic proposition of the patent bargain.

    As noted, the asymmetry is not something that can be “fixed,” and what this in essence does is remove ALL “quiet title” from the act of the grant itself.

    The pivotal moment at which “securing” – the very design (and source of Constitutional authority) is supposed to happen is at the moment of grant.

    It is at that moment that a true legal property right becomes inured to the innovator. It is at that moment that ALL of the sticks in the bundle of property rights attach.

    If – as is apparent – that moment is a sham, that no actual “securing” occurs, that ALL titles are not “quiet,” what does “grant” even mean?

  4. Ron Katznelson November 30, 2017 10:47 am

    Anon,
    We agree, except for your use of the term “grant.” Given my historical expose on the meaning of “grant,” I would recommend avoiding the use of that term with respect to patent issuance, even though it is ingrained in patent discourse.

  5. Anon November 30, 2017 11:42 am

    I understand Ron – “grant” as a term of art does take a more nuanced meaning within the confines of patent law that may not be appreciated (even within legal circles).

    Be that as it may, “both” sides use that term. If both sides switch to the term “issue,” I would follow along.

  6. Josh Malone November 30, 2017 9:51 pm

    This is good stuff Ron. I think we have convincingly exposed all of the PTAB fallacies except for this idea that the PTAB is correcting errors. Several SCOTUS Justices seem to have fallen for this falsehood.

    I have reviewed most of the 1,343 patents invalidated by the PTAB. The vast majority are valuable inventions merely declared to be obvious. Just a conclusory hindsight declaration that it “would have been obvious” to a hypothetical person of ordinary skill. No mistake. Just a free pass for the infringer.

  7. The Time Is Now To Act November 30, 2017 11:09 pm

    Josh- thanks for doing that review; something I am sure few have done.

    During Mr. Iancu’s hearing yesterday, he and Sen. Coons mentioned parsing the PTAB statistics and doing a deep dive; and, to working together.

    Just brainstorming, but, if Mr. Iancu is confirmed, perhap in your role at U.S. Inventor you and the association could publish your PTAB case review in a findings report w recommendations which could be available to the Director before or soon upon his arrival on the job. A report from the inventor perspective could be important.

    He wants to re-ignite the excitement of invention. Your original research and summary of the PTAB cases could prove vital in report form to the Director and IP community.

  8. Hans December 1, 2017 8:05 am

    “First, PTO’s ex parte reexamination decisions were not conclusive – they were subject to de novo fact-finding judicial review under 35 U.S.C. §145 by a civil action in an Article III court. Because Article III protections were fully available, ex parte reexaminations were constitutional. For the same reason, so are interferences. It was only the AIA in 2011 that eliminated the path to such protective judicial review by amending 35 U.S.C. §§ 306, 141, and 145.”

    What amendments from the AIA in 2011 eliminated the path?

    The following was added to 35 USC 141 in the AIPA of 1999.

    “A patent owner in any reexamination proceeding dissatisfied with the final deci- sion in an appeal to the Board of Patent Appeals and Interferences under section 134 may appeal the decision only to the United States Court of Appeals for the Federal Circuit.”

    https://www.uspto.gov/web/offices/pac/mpep/old/E7R1_L.pdf

  9. JCD December 1, 2017 2:56 pm

    I wanted to briefly follow up on Ned’s point that “Another thing clearly held in McCormick Harvesting is that invention patents are just as much property as are land patents and should be treated the same way under law and under the Constitution”.

    The Court made abundantly clear that, with respect to annulment, “a patent for an invention stands in the same position and is subject to the same limitations as a patent for a grant of lands”, in that “[t]he power to issue either one of these patents comes from Congress, and is vested in the same department”. McCormick Harvesting Machine Co. v. Aultman, 169 U.S. 606, 609 (1898).

    Even without this explicitly clear Court precedent, it’s just plainly evident that a land patent is no different from an invention patent in this regard. In Patlex, the Federal Circuit made much of the fact that “[a]t issue is a right that can only be conferred by the government.” Patlex Corp. v. Mossinghoff, 758 F.2d 594, 604 (Fed. Cir. 1985). However, a right to land is similarly “a right that can only be conferred by the government” (as are a huge number of “private” rights in the US). That a right to land can subsequently be transferred between private parties doesn’t change this fact, and actually reinforces the argument that they are the same, as invention patents too can be transferred between private parties following issuance.

    There may be arguments to distinguish land patents from invention patents, but the argument can’t just be that an invention patent is a public right because it is conferred by the government.

    I would have liked to see more discussion regarding whether a holding in favor of IPRs would expand the public rights doctrine, and what downstream effects that might have. As a patent attorney, those issues stray far from my expertise, but I can’t help but feel that there is a very real concern there.

  10. Edward Heller December 1, 2017 3:04 pm

    Hans, after the AIPA, the statute retained this in 306:

    “35 U.S.C. 306 Appeal.The patent owner involved in a reexamination proceeding under this chapter may appeal under the provisions of section 134 of this title, and may seek court review under the provisions of sections 141 to 145 of this title,…”

    This section was amended in 2011 to remove the right of appeal under 145. The 141 reference to “only” introduces an ambiguity because it is consistent with 315 (right of appeal from an inter partes reexamination), but inconsistent with 306.

    The ambiguity was removed in 2011.

  11. Edward Heller December 1, 2017 3:06 pm

    Also, Hans, there were a number of district court appeals of reexaminations after 2000 that made it all the way to the Federal Circuit.

  12. Edward Heller December 1, 2017 3:27 pm

    JCD, worthy of mention is the 1897 Am. Bell case that decided that the government could not challenge the validity of a patent in court. How is is consistent with the notion that the government can unilaterally revoke a patent for invalidity?

  13. Jeff December 2, 2017 12:42 am

    Justice Breyer in the oral argument said: “… the chief did raise this kind of thing, is there a kind of what Brandeis said in Crowell was a due process problem? Is there a problem of it’s unfair to hold these people to the new statute because they got their patent before the statute was enacted? That’s a practical thing, and much of the questioning has been around that, different variations on that theme, what’s unfair.”

    This to me is of utmost importance. I am a pro se inventor. In 2009, I filed my first patent application, agreeing to make my bargain with society under the current statutory terms in existence in 2009. My application was published to the world in 2010. It wasn’t until AFTER the AIA became law and the PTAB/IPR nightmare began when I received my first issued patent in 2013. I needed to refine my language and obtain better coverage over my invention, so I have been filing continuation applications since, and now I have three issued patents, all dating 2013 and onward. Had I known that the PTAB/IPR was going to be part of the patent bargain, I would have NEVER filed my application in 2009, and I would have kept my invention/discovery to myself, saving both my time and money. Now, it seems, I have three worthless pieces of paper, and infringement is happening.

    Now, say that after Oil States, the Supreme Court orders that all patents issued/granted prior to AIA can not undergo a PTAB/IPR proceeding. This leaves me royally screwed, because I filed my application and began my bargain in 2009 (when filed) and 2010 (when published), but my patent wasn’t granted/issued until 2013. If the Supreme Court tries to do a compromise, ruling that only patents post the AIA can be subject to a PTAB/IRP proceeding, because the AIA law is based on filing/priority date of a patent application, their ruling should follow suit and be based on the priority date of a patent and not the issuance date.

    Inventors begin the patent bargain and disclose their discovery to the world when the patent is filed and/or published, NOT when it is issued.

  14. Marshall December 2, 2017 12:45 am

    If the PTO has the power to issue a patent, and also has the power to revoke it without Article III supervision, this is not a “securing to an inventor the exclusive right of his/her discovery”. Because the inventor submitted his invention as part of the patent bargain, the PTO revoking the patent post-issuance sans Article III would be an unfettered and unjust disclosure of the inventor’s discovery to the public, resulting in legal infringement and the ultimate destruction of the progress of useful arts. The last I checked, the Constitution did NOT grant Congress the power to destroy the progress of useful arts, but rather, it granted Congress the power to promote the same.

    This paragraph above speaks all:
    At the time the Constitution was adopted, the term “to secure” meant what it means today – “[t]o make certain, to put out of hazard, to ascertain, to protect, to make safe, to insure.” Thomas Sheridan, A complete dictionary of the English language, 2nd ed., London: C. Dilly (1789). The choice of the word “secure” in the IP Clause rather than “grant” appears deliberate; the Framers were well aware of the word “grant,” having used it 8 times elsewhere in the Constitution. And the term “grant” meant what it means today – “to bestow something that cannot be claimed of right.” Sheridan (1789) (emphasis added). Thus, Congress is empowered only to secure that which can “be claimed of right” by inventors – “the exclusive Right to their … Discoveries.”

  15. Jeff December 2, 2017 12:47 am

    Justice Breyer in the oral argument said: “… the chief did
    raise this kind of thing, is there a kind of
    what Brandeis said in Crowell was a due process
    problem? Is there a problem of it’s unfair to
    hold these people to the new statute because they got their patent before the statute was
    enacted? That’s a practical
    thing, and much of the questioning has been
    around that, different variations on that
    theme, what’s unfair.”

    This to me is of utmost importance. I am a pro se inventor. In 2009, I filed my first patent application, agreeing to make my bargain with society under the current statutory terms in existence in 2009. My application was published to the world in 2010. It wasn’t until AFTER the AIA became law and the PTAB/IPR nightmare began when I received my first issued patent in 2013. I needed to refine my language and obtain better coverage over my invention, so I have been filing continuation applications since, and now I have three issued patents, all dating 2013 and onward. Had I known that the PTAB/IPR was going to be part of the patent bargain, I would have NEVER filed my application in 2009, and I would have kept it to myself, saving both my time and money. Now, it seems, I have three worthless pieces of paper.

    Now, say that after Oil States, the Supreme Court orders that all patents granted prior to AIA can not undergo a PTAB/IPR proceeding. This leaves me royally screwed, because I filed my application and began my bargain in 2009 (when filed) and 2010 (when published). If the Supreme Court tries to do a compromise, ruling that only patents post the AIA can be subject to a PTAB/IRP proceeding, because the AIA law is based on filing/priority date of a patent application, their ruling should be based on the priority date of a patent and not the issuance date.

    Inventors begin the patent bargain when the patent is filed and/or published, NOT when it is issued.

  16. Joachim Martillo December 2, 2017 10:28 pm

    Excellent points. Maybe because IANAL I suffer from ignorance, but I find some similarities between patented IP claims and patented mining or mineral claims, which are private property.

    In the former case, one has a private right to exploit the vein of knowledge encompassed within the metes and bounds of the claims. In the latter case, one has a private right to exploit the vein of minerals within the metes and bounds of the claim.

  17. Joachim Martillo December 3, 2017 6:54 am

    Here is a simple faq on mining and mineral claims.

  18. Ron Katznelson December 3, 2017 1:03 pm

    JM @13-14.
    Indeed, the analogy of patent rights to mining prospect rights is apt, and has been developed in detail 40 years ago. See Kitch, E W, “The Nature and Function of the Patent System,” 20 Journal of Law and Economics, 265-290 (1977).

  19. JCD December 4, 2017 1:38 am

    Ned – Great question. Obviously, there’s the first order answer involving characterizing the case as based on Congressional authorization and the then-existing statutory framework, but there are still underlying issues (many of which I’m sure I haven’t spent enough time reviewing to fully appreciate and understand).

    The Court in that case does raise the question of whether “removal from the public of the burden of a monopoly charged to have been wrongfully created” “may relieve the government as suitor from all the rules governing the suits of private individuals”, but indicates that the question “need not be specifically determined here”. United States v. American Bell Tel. Co., 167 U.S. 224, 265-66 (1897) (“Am. Bell III”).

    The Court further presents an interesting argument that if “[t]he government, … [in] seeking simply to protect the right of an individual, ought not to be permitted to maintain a suit in equity to cancel that against which the individual has a perfect legal defense available in any action brought by or against him”, then there is a question “whether the same rule would not also apply when the government is only seeking to protect the public at large, for the public is but the aggregation of all the individuals, and, if each of them has a perfect defense to the patent, so all together have”. Am. Bell III, 167 U.S. at 266.

    I suspect your question is one of many you would like to have seen discussed in Oil States, and sadly you may not get any answers.

  20. Anon December 4, 2017 6:21 am

    JCD,

    The “member of the public” view does not suffice for standing. Beyond that, I am not sure what point you are trying to make.

  21. Edward Heller December 4, 2017 8:03 am

    JCD, the government it has to show that it itself is harmed, just like anyone else, or that it has a duty to one who is actually harmed. The 1888 case allowed its suit to go forward based on fraud where the government was harmed.

  22. JCD December 4, 2017 10:17 am

    Anon – I am not trying to make any point really; I just found the argument interesting in view of the current discussion regarding the public/private right dichotomy. That doesn’t necessarily mean it can support a cogent argument, but to me it was interesting.

  23. Joachim Martillo December 4, 2017 10:28 am

    Ron Katznelson@15 I found the Kitch article here.

    I can’t point to any specific statement, but research that I did approximately 55 years ago indicated that Samuel Clemens (Mark Twain) considered patented IP claims and patented mining claims to be similar. In 1872 he published his account (Roughing It) of participating in the 1860s Nevada Silver Rush and almost establishing a valuable blind lead patented mining claim shortly after he was allowed his first patent in 1871.

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