Why is the Trump DOJ arguing patents are a public right?

By Gene Quinn
February 21, 2018

Why is the Trump DOJ arguing patents are a public right?It is no surprise to anyone that patent rights in the United States suffered enormously under the two terms served in the White House by President Barack Obama. That the Obama White House was uncomfortably close with Google is widely known (see here and here), and Google has been the face and driving force of the lobby that supports weakening patent rights in America.

The Executive Branch was also full of former Google executives, including heading the U.S. Patent and Trademark Office during Obama’s second term. With so much lobbying money spent by Google on patent issues, and the Executive Branch looking more like a Google Alumni organization, it is easy to understand why the government established a Patent Trial and Appeal Board (PTAB) that saw as its mission the killing of patents, and why the Department of Justice continually argued in brief after brief, positions that would fundamentally erode the value and integrity of a patent grant.

What is far less clear, and extremely difficult to explain or understand, is why the Department of Justice continues to make arguments against patents. Indeed, in the DOJ brief filed in Oil States v. Greene’s Energy, the Solicitor General argues repeatedly throughout the brief that patents are not private property, but rather are a public right.

The Republican Platform on Patents

The GOP campaign platform unveiled in Cleveland for the convention in July 2016 openly and explicitly said that patents are private property, likening patents to land and homes, protected by the Constitution. Specifically, the platform stated on page 15:

Private property includes not only physical property such as lands and homes, but also intellectual property like books and patents. Article 1, section 8 of the Constitution gives Congress the power to safeguard intellectual property rights for “Authors and Inventors.” By protecting the proprietary rights of creators and innovators, the Constitution promotes the general welfare by providing incentives for investment in all sorts of technology and artistic works. Intellectual property is a driving force in today’s global economy of constant innovation. It is the wellspring of American economic growth and job creation. With the rise of the digital economy, it has become even more critical that we protect intellectual property rights and preserve freedom of contract rather than create regulatory barriers to creativity, growth, and innovation.

The Republican platform adopted by the convention in 2016 was molded to the liking of President Trump. That is how platforms go in Presidential years, with the party nominee being able to stack the Committee that drafts the platform. So what happened? The Republican platform specifically says patents are private property akin to land and protected by the Constitution. Why is the Trump Justice Department now arguing that patents are not property rights at all? Indeed, at the very beginning of the brief filed by the DOJ in Oil States, in the Summary of the Argument, the DOJ stakes its claim and beings by arguing that patents are a public right (not private property) that is akin to a government-conferred franchise.

Do you have a government-conferred franchise in the real property you own? Of course not! You bought your real estate from the previous owner. The government did not confer anything onto you in that transaction. This very point was made by the Supreme Court in Moore v. Robbins, 96 U.S. 530 (1877). The Supreme Court explained that once title to land was granted by the government no further action from the government (or “land-office”) to revoke that right could exist. Explaining this concept the Supreme Court explained:

If this were not so, the titles derived from the United States, instead of being the safe and assured evidence of ownership which they are generally supposed to be, would be always subject to the fluctuating, and in many cases unreliable, action of the land-office. No man could buy of the grantee with safety, because he could only convey subject to the right of the officers of the government to annul his title.

The government annulling title is exactly what is happening at the PTAB, a bureaucratic tribunal made up of Executive Branch employees (as Justice Roberts characterized it during oral arguments in Oil States). But if patents are private property, patent owners have a vested ownership interest that cannot be taken away by the government without just compensation. The Fifth Amendment specifically states that “private property [shall not] be taken for public use, without just compensation.”

So again, why is the Trump DOJ making arguments that directly contradict the Republican platform adopted by President Trump? This argument, no doubt, has to be made in order to allow the government to take patents away without without paying for the taking. If patents were really private property they couldn’t be taken without just compensation. So the argument has to be made that a patent is a public right, and not private property. This is the only way to justify Executive Branch employees of the U.S. Patent and Trademark Office annulling patents away after they have been lawfully granted.

The Trump DOJ Brief in Oil States

In going through the Department of Justice brief in Oil States you will find no fewer than seven different places where the argument is made that patents are a public right, and not private property.

The Federal Government argues patents are a public right throughout its Oil States brief.

DOJ Oil States brief at pg. 13

The justification for patents is not that an inventor has a natural right to preclude others from making or using his invention, but that patent protection will ultimately benefit the public by providing an incentive to innovate. Governmentally-conferred franchises designed to serve such purposes create “public rights,” whose scope and continuing effectiveness may be resolved by non-Article III tribunals.

DOJ Oil States brief at pg. 14

As petitioner emphasizes, questions of patent validity have historically been decided by courts as well. This Court has long recognized, however, that a variety of factual and legal matters are suitable for resolution by either judicial or nonjudicial forums. Such matters are “public rights” for purposes of this Court’s Article III jurisprudence.

DOJ Oil States brief at pg. 17

The public-rights doctrine reflects the principle that, when the very existence of a right “depends upon the will of [C]ongress,” Murray’s Lessee, 59 U.S. (18 How.) at 284, Congress can set conditions on the manner of its adjudication, id. at 283-284; see Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 83 (1982) (plurality).

DOJ Oil States brief at pg. 33

In Thomas v. Union Carbide Agricultural Products Co., supra, this Court upheld a mandatory arbitration system under which private parties can be ordered to make payments to other private parties for using information pertaining to pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq. The Court explained that “Congress, acting for a valid legislative purpose pursuant to its constitutional powers under Article I, may create a seemingly ‘private’ right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary.”

DOJ Oil States brief at pg. 37-38

Patents have always been understood as privileges or franchises. Rather than reflecting any perceived “natural right” of inventors to monopolize discoveries, Graham, 383 U.S. at 9, patents were understood as creations of the sovereign that “intrude” on “the natural right of the public to appropriate all new ideas that may be voluntarily disclosed,” 1 William C. Robinson, The Law of Patents for Useful Inventions §§ 25-26 (1890); see American Bell I, 128 U.S. at 370 (patents “take[] from the people this valuable privilege and confer[] it as an exclusive right upon the patentee”); Teva Pharms., 135 S. Ct. at 848 n.2 (Thomas, J., dissenting) (explaining that the Founders saw no “ ‘core’ property right in inventions”).

DOJ Oil States brief at pg. 45

That argument overlooks that public rights are those matters that can “be granted or withdrawn at the sovereign’s discretion.”

DOJ Oil States brief pg. 46

This Court has explained since Murray’s Lessee that matters that can be resolved in both judicial and nonjudicial forums are public rights.

And these are just the most direct and obvious arguments supporting the notion that patents are not property at all, but rather just a public right — a government franchise that can be taken away without compensation by the federal government.

Conclusion

Save for a minute the fact that the Supreme Court has historically (and repeatedly) equated a patent grant to property rights in real estate (see here and here). Save for a minute that Republican Platform molded by President Trump defines patents as being equivalent to real property. The Patent Act itself actually says that patents are property. The statute succinctly explains: “patents shall have the attributes of personal property.” 35 U.S.C. §261. Yet, to the Trump Justice Department, patents are simply a public right — a government franchise capable of being annulled without Constitutional protections.

To consider patents a public right, or a government franchise as the DOJ does, flies in the face of two centuries of patent law and practice, as well as the 2016 Republican Platform. But for Conservatives and property rights advocates the views of the Trump Department of Justice should be considered a betrayal of the highest magnitude.

It seems as if the Trump DOJ is on the same page as the Obama DOJ, which is hard to fathom given all the promises made by President Trump during his campaign.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

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 110 Comments comments.

  1. Anon February 21, 2018 11:46 am

    A small (albeit important) quibble: the brief that you are discussing cannot correctly be called a “Trump” brief, as it was written (and submitted) prior to Trump actually taking office. See http://www.scotusblog.com/case-files/cases/oil-states-energy-services-llc-v-greenes-energy-group-llc/

    The better question would be “why has the Obama brief be allowed to continue to “have legs.”

  2. Anon February 21, 2018 11:47 am

    Oops:

    why has the Obama brief been allowed to continue to “have legs.”

  3. Paul Morinville February 21, 2018 12:09 pm

    All the Republican platform and Constitutional issues aside, the practical effect of treating a patent as a public right is to severely curtail funding of startups that rely on patent protection. This encourages these startups and their technologies to set up shop in China.

  4. Dennis February 21, 2018 12:27 pm

    So many VRNG investers still feel the pain GOOGL caused

  5. Paul Morinville February 21, 2018 12:40 pm

    Paraphrasing the oral arguments, the Obama holdover, arguing for Trump, argued that because the patent is issued by the administrative branch, the administrative branch can invalidate the patent to correct its errors.

    Gorsuch asked the Obama holdover if that is true, deeds for land are initially granted by the administration, so can these also be taken by the administration.

    The Obama holdover said yes.

    So the Trump administration sent very foundation of American property rights straight to hell all in a couple of questions and answers.

  6. Bemused February 21, 2018 12:47 pm

    I understand that a fair amount of folks on the conservative side of the political spectrum read this blog (e.g. Eagle Forum, Heritage Foundation, ACU, etc). Query to those folks: Has anyone made any outreach to President Trump or Secretary Ross to alert them to the DOJ’s stance in Oil States and to correct same?

  7. Jim Crow February 21, 2018 12:50 pm

    The NEW DOJ new top antitrust enforcer, Assistant Attorney General (AAG) Makan Delrahim is very pro patent, Jeff Sessions has more people against him then for. In Mr. Delrahims speech seems to clarify that SEPs are patents first, and “patents are a form of property, and the right to exclude is one of the most fundamental bargaining rights the patent owner possesses.” If American inventors lose their property rights then the rights of large companies are also worthless. This will help continue the exit from inventors from filling a patent in America because if its a property right its value is considered worthless. Why invent if their is no capital incentive and protection. Whats next women will not be able to vote?

  8. Anon February 21, 2018 1:25 pm

    Paul @ 4,

    Please stop repeating the error that I have noted. That argument – and the timing thereof – precludes your statement of “arguing for Trump.”

    The oral arguments occurred in relation to the pre-Trump item (and were so constrained by the rules of the Court).

    While it may be semantics to some, this error can only obscure the asking of better questions. Note as well, that asking the better questions provides a more amenable solution to the Trump administration for changing those items that you (the Royal you, as I would include myself in that group) would like to see the current administration change. Challenging this (incorrectly) as a Trump-made argument would more likely galvanize resistance to change (as can be seen in other actions in which Trump may feel the call to change is a personal attack).

    Not only is it an error – it is an error that may exacerbate the situation rather than ameliorate the situation.

  9. Anon February 21, 2018 1:27 pm

    Also, as with the brief itself, the oral argument occurred under the watch of Obama. It cannot be said to be “of Trump,” as Trump was not in power and could do nothing to change it.

  10. Joachim Martillo February 21, 2018 1:37 pm

    When I read the US Constitution on patents, I find the following.

    US Constitution. Article I Section 8. Clause 8 – Patent and Copyright Clause of the Constitution. [The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

    I don’t see any following sentence asserting “This exclusive right shall be revocable and defeasible by Executive authority.”

    What would it mean for copyright to be revocable and defeasible by Executive authority? Interpreting the Constitution on this issue does not seem exactly a case of noscitur a sociis, but in this matter of “exclusive right,” the original intent appears to be similar treatment of both copyright and also letters patent.

  11. Valuationguy February 21, 2018 2:01 pm

    Anon – Oral arguments in Oil States occured on Nov 26, 2017…..11 months AFTER Trump took office.

    The actual answer was provided earlier….that the brief itself was written by holdover Obama appointed policy makers at the DoJ (and PTO) before Trump got his people into place. The actual gov’t bried was submitted in late April (i.e. during the Trump admin) but had been substantially created by the end of February….just two weeks after Sessions himself had finally been confirmed. Almost immediately after being confirmed Sessions stuck his foot in his mouth by rescinding without warning the Federal policy regarding leaving legalization of marijuana up to the States…in violation of his words during confirmation. This cause some key Republicans to hold up moving forward with many of Trump’s nominees to key positions in the DoJ…..giving Obama appointees even more say for longer than necessary.

    Trump had already by mid-April retracted a gov’t position taken in one SCOTUS case which raised many eyebrows in the legal community and Sessions publicly commented that it would be rare to ABANDON the previous gov’t argued position mid-case. Thus the Trump admin was caught by its own statements when the DoJ submitted the Oil States brief. There was no PTO Director to champion changing the Obama era policy and the time factors conspired to result in the current brief being submitted….despite what is clearly a more patent friendly Trump admin.

  12. angry dude February 21, 2018 2:09 pm

    Sure they are public right: the right of huge publicly traded corporations like google and apple to steal from pesky little inventors and garage startups

    public rights indeed

    lemmings rejoice – google and amazon stocks are sky high – buy some more

  13. angry dude February 21, 2018 2:22 pm

    you guys are stupid or what ???

    follow the money, always follow the money, its all about money these days

    Trump and his administration may personally hate those punks and lgbts from google amazon and apple but he will never ever allow those “precious” stocks to fall

    and they WILL fall HARD if patents become property rights

    its that simple

  14. Joachim Martillo February 21, 2018 3:02 pm

    Paul@4,

    Gorsuch, who opposes Chevron Deference, seems to have laid a trap for the Solicitor General.

    Gorsuch asked the Obama holdover if that is true, deeds for land are initially granted by the administration, so can these also be taken by the administration.

    The Obama holdover said yes.

    The response of the Solicitor General seems so manifestly wrong that he in effect undermined his argument in the entirety.

    Maybe I misunderstand. IANAL. Feel free to correct the above assertion.

  15. step backs February 21, 2018 3:26 pm

    Why waste time trying to determine which individual actor (Obama holdover, Trump colluder, etc.) is the “one” at fault?

    They “all” want to take down the American patent system.

    (Hint: “all” is Russia, Chi-na, Iran, North Korea, etc.)

    But biggest laugh of “All” is that we are our worst enemy.

    https://patentu.blogspot.com/2018/02/do-russians-use-this-blog-to-take-down.html

  16. Josh Malone February 21, 2018 3:36 pm

    Justice Gorsuch:
    Let’s say we had a land patent. Let’s say the land patent said it becomes invalid if anybody … uses the land in an improper way, in violation of an environmental law, labor law, you choose…couldn’t the Bureau of Land Management, for example, or some other department, Interior, official just pull back the patent?

    Mr. Stewart (DoJ):
    I would not concede the invalidity of that proceeding.

    If Malcolm Stewart remains employed by the Solicitor General after that (not to mention advocating for power to ban books in Citizens United), then mark Oil States as the official end of the American Republic. All three branches of government have been captured. We are now officially a third world oligarchy.

  17. Brian February 21, 2018 4:08 pm

    Guys any idea how Lucia v. SEC will affect PTAB ALJ decisions ?

    https://www.reuters.com/article/legal-us-otc-sec/if-scotus-finds-sec-alj-appointments-unconstitutional-what-happens-to-tainted-cases-idUSKBN1F52M5

    Gene, was wondering if you can do an article regarding this issue.

    regards,
    -Bobby

  18. Joachim Martillo February 21, 2018 4:28 pm

    Isn’t Malcolm Stewart a career employee under 5 CFR § 315.201? I don’t think he can be fired, but he could be moved into a harmless role.

  19. Anon February 21, 2018 4:31 pm

    Valuation Guy,

    Thank you – I stand corrected on the timing aspect of the oral arguments. That correction also applies to my error as to when the Federal brief was filed.

    I retract my comments indicating otherwise.

  20. Curious February 21, 2018 4:37 pm

    The simple explanation is that the administration’s policy on patents (i.e., leaning toward the pro- side) didn’t filter down fast enough to those people in DOJ writing the brief. I’m sure the Trump administration had bigger fish to fry at the time. Had that brief been filed today, I suspect it would have told a very different story.

    Additionally, I have no doubt that the Justices are also cognizant of this delay as well. I doubt the conservative wing of the Court was confused as to what was the “conservative position” on the matter was. Honestly, I think it is going to come down to Kennedy and even possibly Kagan. I think the likelihood, in order, in which a Justice is going to come down on the pro-patent side (anti-IPR side) is: Gorsuch, Alito, Thomas, Roberts, Kennedy, Kagan, Sotomayor, Ginsburg, Breyer.

  21. Gene Quinn February 21, 2018 4:55 pm

    Brian-

    I don’t see Lucia v. SEC affecting any of the PTAB ALJs. The appointment in Lucia will be found to violate the appointments clause because the appointments were made by the Chief ALJ of the SEC, which is not allowed. The President, heads of department or the courts must make an appointment of an inferior office (which the Solicitor agreed SEC ALJs are). With PTAB judges the appointment is made by the Secretary of Commerce, who would definitely qualify as a head of department. See:

    https://www.law.cornell.edu/uscode/text/35/6

  22. Brian February 21, 2018 5:00 pm

    Thank you Gene.

  23. Night Writer February 21, 2018 5:22 pm

    @20 Curious

    I think I agree with that ordering. The best thing for patents right now would be if one of the justices on the right were to leave the SCOTUS.

  24. Paul Morinville February 21, 2018 5:31 pm

    Anon @8, Trump doubled down and filed it again on October 23rd, 2017. I figure that makes it Trump’s brief. He could have corrected it then, but didn’t.

  25. Joachim Martillo February 21, 2018 5:43 pm

    Keep in mind that during the early phase of the Trump administration there was something obscure happening with respect to the USPTO and with respect to the administration position on patent rights. We did not know for sure whether Michelle Lee resigned or whether she continued as director. For the period between Gorsuch’ and Iancu’s nominations, some sort of behind the scenes struggle was taking place. This struggle seems to have occurred in the midst of chaos and may even have contributed to the chaos.

  26. Anon February 21, 2018 5:50 pm

    Paul @ 24, please see my post at 19.

    Joachim @ 25, thanks – that’s an excellent reminder that there was indeed something odd going on behind the scenes.

  27. B February 21, 2018 5:51 pm

    To Paul M,

    “Anon @8, Trump doubled down and filed it again on October 23rd, 2017. I figure that makes it Trump’s brief. He could have corrected it then, but didn’t.”

    Trump doesn’t control the DoJ – I think that should be apparent by now. However, even if he did, the underlying issue in Oil States will remain until addressed by the SCOTUS or the statutory scheme changes.

    Me personally, I think patents are private rights – a right to exclude that I might sell or license, made in exchange for disclosing an invention to the public. That, and the idea of a bunch of drooling, incompetent APJs taking away a patent disgusts me. That said, my total lack of confidence in the PTAB does color my view.

  28. Corey Write February 21, 2018 7:41 pm

    The Silicon Valley Elites like Google that created the AIA Act and PTAB are the modern day “Patent Pirates” they need to be STOPPED!

    Patent Pirates must be stopped from stealing patent holders IPs and then taking them to the PTAB and discrediting them even though they have other companies that have sign a patent licence. I hope the new administration puts a STOP to Patent Pirates like Google Apple and Amazon who have gotten away with theft since the Obama administration changed the rules from patents being a property right to a public right to steal for free.

  29. Paul Morinville February 21, 2018 8:57 pm

    Joachim Martillo @25. Iancu was nominated with a week or so of the patent burning on the steps of the USPTO. I think the struggle ended there.

    Since then several Trump people have contacted me explaining that Trump knows what is going on and is going to fix it. We shall see if that is true or not true.

  30. Jae February 21, 2018 9:59 pm

    May we should all recognize that whether an invention is patentable is an issue that may be validly questioned afterr the patent is issued because there may be errors in determining whether the invention was patentable to begin with.
    Congress created the laws to put in place mechanisms for the USPTO to correct the examination errors through the reexam and the current PTAB IPR and so forth.
    Thus the issue is not whether the government can take way or take possession of unequivocal property right but rather…should the government be allowed to correct its mistake in recognizing a property in which there was none.

  31. The Time Is Now To Act February 21, 2018 10:27 pm

    Gorsuch was a BEAR in Stewart’s face during Oil States oral arguments.

    That, and the fact that early 90 days have elapsed since oral arguments seems to be all we know at this point regarding what is to eventually come down from SCOTUS in this case.

  32. The Time Is Now To Act February 21, 2018 10:39 pm

    Check that – we also know the PTAB appears to have DOUBLED DOWN on hair raising decisions post oral arguments; as if to thumb its nose at all comers.

  33. Edward Heller February 22, 2018 7:47 am

    For my observation, Jeff Sessions has quite an independent streak and may not actually do exactly what President Trump or the White House tells him to do.

    We should also consider that Sessions was a senator at the time of the passage of the AIA and may have believed that the legislation was important for the American patent system as the Senate was then led to believe. Without understanding the problems of IPR, Sessions probably continued to believe that the legislation he helped pass was constitutional.

    Also consider that the architect of the AIA and the most fervent sponsor of IPR’s in that legislation was none other than Matal, who was appointed interim director. Does anybody know whether Matal had buyer’s remorse and might changes views about IPR’s? If I were Jeff Sessions seeking advice, I would ask Matal.

    Beyond that, as soon as the Supreme Court took certiorari an Oil States, and word about the issues involved begin to spread to organizations beyond the patent community, they began to pay attention. What would have helped is if these major conservative organizations had created a public hue and cry before the government filed its brief that might have forced someone in the administration to pay attention.

    But it is fundamentally true that the brief filed by the administration is alien to everything the Republican Party stands for and has always stood for. It is as pro big-government and anti-property as a brief could possibly be. It is hard to believe that any Republic could sign such a brief.

  34. Night Writer February 22, 2018 8:50 am

    With the current line-up at the SCOTUS it is hard to believe they will hold IPRs uncontitutional. One more Gorsuch and minus one of the three idiots, and it would have had a chance.

  35. Anon February 22, 2018 8:57 am

    Does anybody know whether Matal had buyer’s remorse and might changes views about IPR’s?

    He has shown no signs of such. Before you would advise anyone to seek counsel from Matal, I would suggest that more than mere signs be in place.

    As for “high and cry” and Amicus Briefing in the Oil States case, I was reviewing some of the briefs and it is downright alarming what is being said – with zero consequence for what and how the “spin” is being dealt out.

    We have a serious problem when briefing to the Court attempting to influence the law shows such a fundamental lack of appreciation for professional (attorney) ethics. Some briefs – signed by attorneys – baldly misstate the law and do not provide controlling law (as would be required by an advocate advocating a change to the law).

    I have NO problem with anyone taking a position (a new position, a different position) and advocating to change the law for reasons provided, or advocating that the current law is not sufficient for reasons provided.

    That is not what I am reading in the Amicus Briefs.

    I am reading outright distortion and prevarication.

    If I were in power, you would see some serious censures flowing back to the brief writers.

  36. Anon February 22, 2018 9:16 am

    Night Writer @33,

    How do you see the Justices coming down?

    I see the result (admittedly, with my rose colored glasses on) as:

    Majority finding IPRs unconstitutional:
    Roberts, Kennedy, Kagan, Alito, and Gorsuch (I do not think that Gorsuch writes the opinion – perhaps Alito, Roberts or Kennedy in that order – Gorsuch may write a scathing concurrence against the dissent)

    Dissenting:
    Ginsburg, Thomas, Breyer, and Sotomayor

    I think that enough NON-patent issues have been highlighted (the public rights versus personal property angle) that the nature of patents AS property will outweigh the Court’s aversion to patents (generally), and this may be framed as a limit on the “fourth” branch of the government.

    I think that the possibility of catastrophic effects from a decision IN EITHER DIRECTION overcomes the natural reluctance of finding anything “unconstitutional” (and as seen in the last term with Tam, the Court has singled that it WILL find an IP law to be unconstitutional).

    I think that Thomas may write a dissent in part with a sub-opinion repeating his past views that “patents are like little laws.” He may obtain a token “joining” by one or more of the Liberal contingents, most likely Breyer or Sotomayor.

    I think Kagan breaks from the Liberal contingent based on the sweeping harm to property rights that would result from a “IPRs are Constitutional” holding, albeit, I admit that this may be the weakest link.

    IF Kagan does not break, I could see (with my non-rose colored glasses) this switching as follows:

    Majority finding IPRs constitutional:
    Kagan, Ginsburg, Thomas, Breyer, Sotomayor, Roberts and perhaps even Kennedy (but more likely just Roberts),

    Dissenting:
    Kennedy, Alito, and Gorsuch (Gorsuch writes a scathing dissent).

  37. Paul Morinville February 22, 2018 9:44 am

    Anon @35. Roberts will not find IPR’s constitutional. He was in lock step with Gorsuch in the hearing. Also, in a case in 2016, his comments made reference to the PTAB and indicated to me that he did not like the whole idea of a separate way of answering the same legal question. I thought he would take a case. Then Scalia died and he passed on several cases. As soon as Gorsuch is sworn in, he took the first case that came along. Roberts and Gorsuch are both going to find IPR’s unconstitutional.

    You also have Thomas in the wrong column. As much as he dislikes patents, he likes private property more. Finding IPR’s constitutional will open the door to taking other property in administrative tribunals, so he will find them unconstitutional.

    I think Ginsberg is going to find IPR’s unconstitutional for the same reasons.

    No idea on Kennedy, Sotomayer and Alito. I think you are probably right on Kagan but not sure.

    Breyer will find them constitutional as his constitution has already crumbled.

  38. Night Writer February 22, 2018 10:08 am

    Ginsburg, Breyer, and Sotomayor are a lock on IPRs Constutional.

    I think Kagen (90 percent) and Kennedy (75 percent) are IPRs are Constitutional.

    Gorsuch, Roberts, and Alito a lock on unconstitutional.

    Thomas above 50 % unconstitutional.

    So, we lose.

  39. Night Writer February 22, 2018 10:10 am

    Basically, Kagen, Kennedy, and Thomas are going to decide the issue. And we need 2 out of 3, which seems unlikely to me.

  40. Night Writer February 22, 2018 10:13 am

    I also just get the feeling that Kagen, although she seems logical and sensible, is a die heart Democrat who served under Clinton at the White House.

    I just think she is going to go with Constitutional. She knows the history and knows the AIA well and FDR. She knows the whole thing is unconstitutional, but will toe the line.

    So, we probably need both Kennedy and Thomas. Going to be tough to get both.

  41. Night Writer February 22, 2018 10:14 am

    Maybe Thomas will go. So, I guess, that probably the whole thing comes down to Kennedy again.

  42. Night Writer February 22, 2018 10:16 am

    Ginsburg, Breyer, and Sotomayor are a lock on IPRs Constutional.

    Kagen (90 percent), near lock on IPRs Constitutional.

    —Kennedy— fence sitter.

    Thomas probably unconstitutional.

    Gorsuch, Roberts, and Alito a lock on unconstitutional.

    (Sorry for all the posts. That is how I see it.)

  43. ANON February 22, 2018 10:38 am

    The fact that Gene hates the PTAB shows that he is only looking from one perspective. There was a time when the USPTO pushed through applications at a volume unseen due to the backlog and a lot of “patents” were granted with claims that should have never been allowed. Not every patent/application/review that hits PTAB is thrown out, and in fact, due to the fees it’s appalling to think that most companies would just go after every patent. If they believe the patent is illegitimate and should not have been allowed this provides that solution in front of a technical jury in the form of PTAB judges. Instead, let’s get 6-12 jurors and allow it to be put in front of a district court and clog the system with forum shopping.

    Instead of just complaining “THIS IS WHAT’S WRONG,” “THAT’S WHAT’S WRONG,” and “EVERYTHING IS FAILING” maybe, just maybe, you can provide alternative solutions and find some sort of compromise.

  44. ThisSucks February 22, 2018 10:44 am

    Nothing like politics even reaching into ipwatchdog…. lost a reader….

  45. Anon February 22, 2018 10:48 am

    I inadvertently switched Kennedy and Roberts.

    Paul, normally I might agree with you regarding Thomas, but his past dismissal of patents being property makes me think that he does not see the bigger picture and I think he sides with Breyer et al.

    I don’t see Ginsburg at all like you do.

    Both are just not going to see patents as property and thus will not switch to protect other property. Both are too rigid (for different reasons) to make the necessary connection of patents being property.

    Surprisingly, I think that Kagan does have the flexibility and will see the bigger picture. I will admit that she has disappointed in the past, but now with another “junior” member on board, maybe she finds her own legs to stand upon.

    Night Writer, we are pretty darn close (if we switch Kagen and Thomas; and Kennedy is a swing – albeit, one without strong conviction).

    I think (perhaps more hope than I care to admit), that Kennedy follows Kagan to the side finding IPRs unconstitutional. I do see him following Kagan to whichever side Kagan goes to, and as I indicated, I think Thomas is a lost cause, so to me the lynchpin is Kagan.

  46. Anon February 22, 2018 10:51 am

    All caps “ANON,”

    You are woefully mistaken and are ignoring all the points presented as to why the PTAB is harmful.

    You are surely allowed to have your own opinion, but it would be better for all (including you) if that were an informed opinion. Your outright rejection of Gene’s view guarantees that your current opinion is not such an informed opinion.

  47. Gene Quinn February 22, 2018 10:56 am

    ThisSucks-

    I’m sorry you didn’t appreciate the article, and I’m sorry you choose not to return. It is interesting, however, to wonder why this article would cause you to tune out. For many, many years IPWatchdog.com has written about patents, innovation and the politics of patents and innovation. We are extremely neutral in our coverage. We are as critical of Democrats as we are Republicans. We praise both Democrats and Republicans when appropriate based on their patent/innovation policies and positions.

    Obviously, this article does not suck. It asks a very important question that Republicans and Conservatives in DC have been and should continue to ask themselves. It is also factually accurate.

    So if this factually accurate article that raises extremely important issues causes you to stop reading my response is simple: Your loss.

  48. Night Writer February 22, 2018 12:03 pm

    >I think Thomas is a lost cause, so to me the lynchpin is Kagan.

    I think Kagan is a no chance. I think she sees this as New Deal erosion. If patents are public rights, then the whole New Deal is good to go. And Kagan–don’t forget–was right in there tight with Clinton.

  49. Anon February 22, 2018 12:45 pm

    If I take your view to heart, then Oil States will come out as finding IPRs constitutional per my second half of post 36.

    In that case, this will go to the opposite extreme of New Deal “erosion.”

    All “property” will fall to the discretion of the State. Even the balance of the three branches will be set ajar, as the pathway to remove – en mass – any item traditionally within Article III domain could have some new legislated “public right” aspect and place the matter directly (and even solely) in a non-Article III forum. Granted, this is a maximum slippery slope result, but it IS a result that follows from IPRs being held Constitutional.

  50. Joachim Martillo February 22, 2018 12:50 pm

    The unconstitutionality of post-grant review proceedings is not a matter that can be pigeonholed into specifically Democratic or Republican partisanship. I care about neither party, but the US patent system is a major driver of the US economy. If the patent system is destroyed (a process started not under Obama but under Clinton and continued under GW Bus), the power and wealth of the US will vanish as the American system falls apart.

    See The Significance of Patents in US Economic Development.

  51. Joachim Martillo February 22, 2018 1:00 pm

    Edward Heller@33, I have a lot of Matal’s email. I have not analyzed all of it yet, but he seems to have been heavily involved in destroying the patent system by oligarchizing it.

    James Robinson discusses the issue in the following videoclip.

    https://www.youtube.com/watch?v=jsZDlBU36n0

  52. Anon February 22, 2018 1:02 pm

    Excellent Article Gene. It begs a question: Everyone who sees the value of patents is pinning their hopes on a favorable Oil States ruling, but couldn’t a Trump PTO say we simply don’t feel like doing IPRs anymore and won’t hear them? Its temporary, but lobbying pressure on the admin could bring immediate relief.

  53. angry dude February 22, 2018 2:13 pm

    Jae @30

    Dude, you didn’t spell it right

    the correct ways to say it is this:

    should the government be allowed, when asked nicely by google &co, to correct its mistake in recognizing a property in something google & co wants to use for free

  54. Curious February 22, 2018 3:04 pm

    I very well may be wrong, but I find it hard to believe that if Kennedy, Alito, Gorsuch, and Roberts all come down on the side of private property rights (i.e., IPR unconstitutional) that Thomas will align himself with the left side of the court. It just seems very out of character for him.

  55. Gene Quinn February 22, 2018 3:10 pm

    Anon@52-

    First, based on what I see you are not our long time “Anon”. If you could pick a even a slightly different moniker that would be greatly appreciated.

    On the substance, you make a good point. We are in a waiting game to see if Director Iancu will do anything about IPRs, which were really supposed to be an extraordinary remedy. The PTO originally said there would be about 500 +/- in line with inter partes reexamination. Instead we have 3.5 times that number. Those that want relief need to keep up the pressure.

  56. Joachim Martillo February 22, 2018 3:12 pm

    Anon@52, Would the Petitioner have standing to bring a complaint under the APA to force the USPTO reasonably to institute a post grant review proceeding if the Petitioner properly requests institution?

  57. Josh Malone February 22, 2018 3:29 pm

    Joachim@56. There is nothing in the statute that requires the Director to institute a review. It is entirely discretionary. “The Director may not authorize a review to be instituted unless…”

    US Inventor asked Joe Matal to suspend institutions while the universally acknowledged “unintended consequences” are addressed. Instead, he suspended the Post Grant Procedural Reform Initiative, allowing the PTAB to barrel ahead in its destruction of property rights.

    Director Iancu should do just this. Suspend all institutions until the issues are corrected. And stay previously instituted proceedings by 6 months while solutions are developed and dispatched.

  58. Anon February 22, 2018 3:40 pm

    Josh,

    I do not think that your answer suffices.

    While “technically” the review IS discretionary, what suffices for review was required to be stated by the Office in the AIA directive. If two parties satisfy the stated requirements, and only one is chosen, you have created an “arbitrary and capricious” trap (courtesy of the APA – thank you Joachim for the segue) to which, the “discretion” of the director himself cannot override. The Director cannot apply the law – even the law written by Congress – in a manner that violates another law written by Congress and that guides the actions of the Office on a more global basis.

    Curious @ 54, see my comment to Paul @ 45. Thomas strikes me as being sometimes oddly rigid, and his past comments vis a vis “patents are like little laws” just makes me feel that he will not switch to a “patents are property” basis. No matter what odd bedfellows that may create.

  59. Josh Malone February 22, 2018 3:49 pm

    Anon, the Director can get there without violating the APA. Deny ALL petitions. Limit institutions to only 102 grounds. Deny petitions on patents that have been asserted in infringement actions. Deny petitions that assert cumulative prior art considered in examination. The current approach is arbitrary and capricious – the panel simply declares by fiat that there is a “reasonable likelihood” of unpatentability (without weighing the evidence no less).

  60. Josh Malone February 22, 2018 3:55 pm

    As I recall the CFR rules simply copied the statutory language on institution. So there is no threshold – it is left up to the panels to (arbitrarily) decide if they have met their quota, or they like the subject matter, or what they ate for breakfast, or they are in cahoots with the petitioner, etc…

  61. Gene Quinn February 22, 2018 3:58 pm

    Anon, Josh-

    Director Kappos delegated the responsibility to determine whether to institute an IPR. 35 U.S.C. 314(a) says:

    “The Director may not authorize an inter partes review to be instituted unless the Director determines that the information presented in the petition filed under section 311 and any response filed under section 313 shows that there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition.”

    Director Iancu could reclaim that authority from the Board. Now I realize he won’t be the one wading through petitions, but if he reclaimed the authority he could delegate it again… this time with the delegation being to someone who will actually apply a “reasonable likelihood” standard rather than the Board that institutes virtually everything (at least eventually). The AIA gives the Director (or the Director’s delegate) all kinds of discretion since the decision to institute (or not) is not appealable.

    It is my belief that the non-appealable piece was really put in there so those who had their petitions denied couldn’t second guess the Office. Of course, given that there has been an extreme bias toward instituting the reverse problem has occurred (i.e., harassment of patent owners that goes unchallenged).

  62. Josh Malone February 22, 2018 4:09 pm

    Gene, I am actually saying the Director is not required to use his power to institute review – ever. Under the law, he could deny all the petitions. And he should, at least until the rules are fixed…

  63. Anon February 22, 2018 4:15 pm

    Gene and Josh,

    The point I presented was that the APA still controls the application of whatever it is that the Office states in order to meet the AIA directive. (Gene, I was thinking more of:

    35 U.S.C. 326 Conduct of post-grant review.
    (a) REGULATIONS.—The Director shall prescribe regulations—
    (2) setting forth the standards for the showing of sufficient grounds to institute a review under subsections (a) and (b) of section 324;

    The AIA requires the Director to prescribe regulations – and once prescribed, the application of discretion greatly diminishes.

    As I noted: whatever those prescribed regulations are, if two parties meet them, and one party is denied, the Office has tripped into the Arbitrary and capricious trap of the APA (which still governs the conduct of the Office).

    So Josh, your answer merely sidesteps my point as to discretion. Sure, if the Director changes – no matter how changed – the prescribed regulations, then the showing of sufficient grounds will change – for everyone.

    Your reply at 60 is eminently NOT correct (even though I do understand that THAT is how you feel).

  64. Anon February 22, 2018 4:21 pm

    Josh,

    I tend to doubt that the Director has the power to set the level of showing of sufficient grounds to be at a level that would cold stop all actions.

    Flexibility does NOT include not doing the job put forth in the AIA.

    That would be dereliction of duties and does NOT fall within any sense of reasonableness that would apply through the APA.

  65. Josh Malone February 22, 2018 4:27 pm

    I agree with you Anon. The Director should treat every petitioner and patent owner equally. He should deny all the petitions. Then fix the rules. The new rules should result in less than a 5% institution rate or he has failed.

  66. Anon February 22, 2018 4:51 pm

    Maybe my last post and yours crossed in the exchange – you won’t be able to get away with the “deny all” avenue. That fails the APA and frustrates the purpose of the Act.

  67. Peter Kramer February 22, 2018 7:47 pm

    “What is far less clear, and extremely difficult to explain or understand, is why the Department of Justice continues to make arguments against patents.” I’m not surprised, and there is a very simple explanation. Trump said Mexico would pay for the wall too. He said wonderful low cost health insurance would be available to all. He said …, and he said …, and he said …. Whatever sounded good — he said.

  68. Mark Martens (@MarkMartens42) February 22, 2018 9:44 pm

    (Wikipedia) “The rule of four permits four of the nine justices to grant a writ of certiorari.”

    The thought occurs to me that the writ of certiorari would not have been granted in the Oil States case unless ‘more than 4’ felt that some action should be taken. Surely 4 Court Justices would consider it a big waste of time and energy if they felt the final decision was most likely to simply confirm the constitutionality of IPR’s? They would know, and must have felt there was potential for a fifth Justice support.

    The health of the US innovation in the economy is an important player in this matter too, and that has only become more obvious since the writ was granted. If the legal case for overturning IPR’s can be made. I think a fifth Justice will appear.

  69. Edward Heller February 22, 2018 9:54 pm

    Joachim Martillo@52, excellent video and so, so right. Political control over outcomes is exactly the problem with countries like North Korea, or, for that matter, much of the world today and through the course of history. The US was unique in 1790 because it provided equal political access for all to wealth through the patent system.

    The true effort of the efficient infringer lobby is to restrain equal access to the patent system, and to keep “monopoly” profits to themselves. An oligarchy of the rich and powerful. Crony capitalism is what they want.

    Thanks to that individual patent attorney who brought the constitutionality of IPRs to the attention of all. And thanks to Gene for helping so much on showing everyone just how biased and one sided the PTAB can be.

  70. Paul Morinville February 22, 2018 11:05 pm

    I think Kelo v. City of New London might hold the clues we need to figure out the Oil States decision.

    In that decision, Kennedy, Ginsberg and Breyer all said it is OK to transfer the ownership of private property and to another private party through eminent domain. This decision shows how little these justices think of private property.

    Thomas was against it thus displaying his belief in private property. He will vote that IPRs are unconstitutional.

    I have to retract my previous comments on Ginsberg. She will vote IPRs are constitutional, as will Kennedy.

    That leaves Roberts, Gorsuch, Thomas, and probably Alito voting IPRs are unconstitutional.

    So with 4 unconstitutional and 3 constitutional. the swing votes will be Kagan, Sotomayor. Unless Kennedy comes to his senses or one of these two make the right decision, it will not finish well.

  71. bp February 23, 2018 2:14 am

    Great blogging as usual. Would a finding of not “private property” be applied/extended to copyright (which already has compulsory licensing for some types of CR)? I’m sure the end game for the monopolies that feed/corrupt the politicians (and others) is beyond patents.

  72. Night Writer February 23, 2018 6:48 am

    @70 Paul >>So with 4 unconstitutional and 3 constitutional. the swing votes will be Kagan, Sotomayor. Unless Kennedy comes to his senses or one of these two make the right decision, it will not finish well.

    There is no way Sotomayor would find patents private property—not way. I’d bet on that.

    Kagan is highly unlikely. She knows the administrative state, FDR, and the history of this. She is going to go with public.

    Kennedy is the only hope.

  73. Joachim Martillo February 23, 2018 7:50 am

    Preservation of the US patent system is not specifically a conservative cause.

    I probably added too much to the article below. 101-eligibility should be a separate issue, but the crooks and clowns at the USPTO are misusing 101 and 112 issues to steal inventions and to put them in the public domain so that large slothful incumbent corporations may appropriate those inventions.

    Yet I was merciful because I could have added that we seem to be experiencing a farcical rerun of the Hayes-Tilden election, in which Redeemers and Copperheads have crawled out from their rocks to take over the country.

    Redeemers have always clung to a vision of inflexible class and racial divisions

    Before crooks came to dominate the USPTO, the US patent system was a major countervailing force to those like Redeemers, who have worked for class and for racial serrata comparable to the Venetian Serrata del Maggior Consiglio.

    Undermining the patent system and dismantling the healthcare system are two steps in an ongoing effort to harden class and racial divisions

  74. Anon February 23, 2018 8:09 am

    Mr. Heller, your post at 69 (“ The US was unique in 1790 because it provided equal political access for all to wealth through the patent system.” causes me to chuckle when I compare that to your comments on “that other blog” concerning the nature of this country’s political “uniqueness.”

    To say that you are being two-faced on the topic of that “uniqueness” related to the meaning of inalienable rights and the role of the foundational views of the beginning of this country may be too nice.

    And while I commend the sentiment of “Thanks to that individual patent attorney who brought the constitutionality of IPRs to the attention of all.” I would extend that to those who have long championed constitutionality in the face of all encroachers – encroachers especially including the Supreme Court. Awhile back on this blog I elucidated how each of the three branches of the US government could be held to blame for the current dismal state of US patent law. That elucidation still holds.

  75. Anon February 23, 2018 8:30 am

    But turning back to the sub-thread on Oil States predictions…

    Paul, as I stated, you first have to get Thomas to the point that he views patents as actually being personal property.

    I do not think that you can get there.

    I agree with Night Writer that Sotomayor is a lost cause. Having met her personally and talked with her early in her career on the Bench, I had held out for some promise from her to employ some impartiality and suspension of personal political outlook. I have been sorely disappointed.

    As to Kennedy being the linchpin, I cannot agree. I do not see it coming down to him (even as the result may be spun that way, I see him more riding the coattails of Kagan).

    I still have not been convinced that Kagan will turn to the degree of socialism that Night Writer indicates though. It is one thing to advocate for AN administrative state, it is quote another to allow the administrative state to swallow whole the concept of property (especially personal property). I still hold out that she not only can see that difference, but still has the flexibility to not become locked into the political ideology (as for example, Ginsburg and Breyer exhibit). Patents predate FDR.

    However, there is an unfortunate caveat concerning the influence of FDR as reflected in the historical bent of the Supreme Court. Back in the 1930s and 1940s, and perhaps in response to the threat of FDR to pack the bench (remind anyone of the panel stacking in the PTAB?), the Supreme Court of that era turned into one of the most anti-patent courts of all time (rivaled only, perhaps, by the current era), wherein the self-description of the Court reflected by the quote: “The only valid patent is one that has not yet appeared before us.” – brought about the (eventual) awakening of Congress and their actions to rein in the Supreme Court with the Act of 1952.

    The potential negative result in Oil States may well be the slap in the face that Congress needs to awaken from their slumber and (once more – but perhaps with sufficient force this time) take back their Constitutionally delegated power over patent law from the Supreme Court.

    I had postulated prior to the decision in Alice that THAT decision could have been – similar to Diehr and Chakrabarty – a “return to center” to avoid awakening Congress, but that was not to be.

    I predict though that IF the Court abrogates the law as written by Congress (specifically 35 USC 261), that the ensuing continued degradation of US innovation that will follow may force the hand of Congress.

    IF – and sadly, that is a mighty big IF – that same Congress can break free of the shackles of being captured by the well-monied voices of the Efficient Infringers.

  76. Night Writer February 23, 2018 9:27 am

    @75 Anon

    Well, I think if we are relying on Kagan, then we have lost. I understand all your points.

    @73 Joachim

    The only way the patent system will be revived is when we are at the bottom of innovation.

    The experiment we are running now is what happens to innovation without patents.

  77. Anon2 February 23, 2018 9:33 am

    Gene @47

    Indeed his loss.

    I think it is clear that to deny the effects and importance of “politics” in the life of every citizen, as though it were some distasteful triviality annoying us from the sidelines, is a gross evasion. It is an attempt to deny the existence of a deep rift in the American psyche which has been forming for a century. The “tug of war” we see in the political spectrum is nothing less than the battle over who owns you and your life: your property, your freedoms, your rights: you or the State (the so called Public). The issue of patent rights is therefore (unfortunately, in today’s political climate) fundamentally affected by said tug of war in the political realm. Patent rights, property rights, and every other right at its core, is now a political issue. Whether any one party is effective at protecting or properly an advocate of your rights is another matter.. but make no mistake there is a war on for your very life as an American.

    Perhaps, in an America before the importation of the ideas of Marx, (and much before a culture which now partially embraces the likes of Obama, and Bernie Sanders), patents would not have been seen as political because the political spectrum back then, in the heyday of America, was distinctly American and fundamentally and morally based on individual rights… to argue over who’s slightly different view of patents was correct based on party affiliation would have been seen as a lowly contest of personalities and vanity and technocratic irrelevancy.

    But the politics of today would shock, disgust, and devastate the Americans of the past. The political exercise is no longer a custodial pruning and shaping to ensure the health of America, a maintenance program incidental to American life: tweaking of the administration or the machinations to properly govern according to American principles, the political exercise over the past century has transformed into a war of fundamentals, and an exercise in reshaping and attempting to preserve what America is at its very core.

    There is no question whatever about the fact that today, Patent Rights ARE a political issue, and ThisSucks@44 should know that evading the facts of reality do not change them.

  78. Bemused February 23, 2018 11:01 am

    I’ve been reading these ever-expanding comments over the past few days and although I have nothing new or substantive to add, I wanted to express my thanks to the frequent commentators on this blog (Anon, Night Writer, Paul Morinville, Josh Malone, Joachim Martillo, etc) for taking the time to share their thoughts and opinions. Its extremely helpful to read the different, unique or enlightened (and sometimes funny) perspectives on the diverse range of patent-related issues that this blog covers. Its also extremely encouraging to see the level of professionalism displayed by nearly all of the commentators on here even when opinions on issues diverge and things get a bit heated. And of course, kudos to Gene for giving all of us the forum to continue to exchange ideas and to advocate for a return to patent sanity.

  79. Anon February 23, 2018 6:24 pm

    Anon2,

    Bravo – eloquently stated, and sadly, true to a fault.

    What it means – at core – for the grand “American experiment” has become muddled (purposefully) and basic notions critical to the drivers of why this country was formed as it was formed are subject to massive revisionist attempts to “redefine.”

    Case in point (barely leaked over onto this blog, but intensely covered on “that other blog”) is the concept of inalienable rights. Post 74 above hints at it, but when a purported “champion” of patents as property is so mistaken as to the fundamental driver of the American political view of property, well, a few adages come to mind (“with a friend like this, who needs enemies” among them).

    Bemused, you are welcome. kudos indeed to Gene, as well as to those willing to have actual dialogues.

  80. Anon February 23, 2018 6:27 pm

    I chuckle, as I was distracted with the excellent post by Anon2.

    The tidbit I wanted to share (and apologies as the story is behind a paywall) is that Night Writer’s early comment about “waiting for the composition of the Bench to change” in order to correct the impending error rings true:

    https://www.law360.com/ip/articles/1015235/white-house-atty-chevron-deference-a-priority-for-judges?nl_pk=7463a983-2b25-4ded-98a6-b4feb58cfe82&utm_source=newsletter&utm_medium=email&utm_campaign=ip&read_more=1

    Law360, Washington (February 22, 2018, 5:18 PM EST) — President Donald Trump has prioritized rolling back the “administrative state,” White House Counsel Don McGahn said Thursday, and part of that is looking at potential judicial nominees’ experience with government regulation and major guideposts like Chevron deference.

    Speaking at the Conservative Political Action Conference in National Harbor, Maryland, McGahn said that Trump is looking for judges “who stand strong in the face of adversity” for the more than 100 remaining judicial vacancies across the country.

    Sadly, I think that the faults of President Trump will greatly obscure this effort.

  81. Gene Quinn February 23, 2018 6:30 pm

    Thanks everyone. I’m glad this article and thread has struck such a note. It is sad that patents have become so political.

  82. Edward Heller February 23, 2018 7:20 pm

    anon@72, the point I was making was that the preservation or even of creation of rights requires one to take a stand, to fight, one way or the other, in the courts, on the field of battle or by changing peoples minds. Rights do not grow on trees or are handed out like candy. Nor are they benefits created by some higher being. If it were not for our founding fathers taking a stand against a long series of abuses, we would not now be a nation independent of England. If with were not for that patent attorney who in 2014 took a stand in that IPRs were unconstitutional, we would not today being having this discussion about Oil States. Ditto Gene who single-highhandedly, in my view, changed peoples views on IPRs and without whose help we would not have succeeded. We two individuals should be given some credit, if Oil States goes the way we expect, of saving the patent system of the United States.

  83. Anon February 23, 2018 7:43 pm

    Mr. Heller,

    Your views on inalienable rights is completely unconnected with reality.

    This is pointed out – in stunning detail – on that “other blog.”

    You continue to confuse a “protection of” as some type of “source for”.

    You seem so vested in your existing viewpoint that you cannot get out of your own way and see and understand that those that put this country together had a radically different viewpoint than your (attempted revisionist) view.

    You are the last person to thank for Oil States – you were not chosen as a champion of “patents are property” for a reason. While indeed there is some overlap in viewpoints, you are off on critical and fundamental underpinnings.

  84. Anon February 23, 2018 7:59 pm

    For those wanting to visit, but not wanting to get stuck in the usual muck, the inalienable rights conversation can be found at:

    https://patentlyo.com/patent/2018/02/some-regarding-nature.html#comments

  85. Anon February 24, 2018 9:36 am

    I would further posit, Mr. Heller, than an overly statist view such as yours (wherein the confusion between source of a right and subsequent actions towards that right are celebrated as you do – placing the horse of “defend” or fight for” before the cart of “the right exists first, regardless of secondary actions of fight or defend”) leads down a path to inevitable tyranny – tyranny that may manifest in multiple different political/idealogical ends.

    One end of such statism is when the state is “used” as a “vehicle” for the commune.

    One end of such statism is when the state is “used” as a “vehicle” for its own sake (and that is typically identical with those in power of that state for its own sake).

    One end of such statism is when the state is “used” or captured by any number of other powers – be those powers secular (i.e., Corporatism, which includes but is not limited to Crony Capitalism) OR be those powers religious.

    Your anti-deism blinds you to perhaps the single biggest change in view of government since the Magna Carta. In your desire to deny the factual and historical aspects of the founders of this country (because you want to give no credit to their deistic views), you err in a manner most grevious and open the door to those many paths of “Might makes Right.”

    This country was founded on something completely different.

    So while Might might be necessary to secure and protect Right – it is error most severe to ignore the foundation of this country and attempt to return to thinking of prior realms (be those realms England or Rome) and pretend that the concept of inalienable rights is not present in the laws of this country, the foundation of this country, even I dare say, the soul of this country.

  86. Edward Heller February 24, 2018 1:13 pm

    anon, no one chose me for anything. I took a stand. I asserted McCormick Harvesting and ex parte Wood & Brundage, both of which held that patents were property. McCormick held, as a part of statutory construction, that “reexaminations” were unconstitutional because only a court revoke a patent for any reason. Wood held that a patent owner had a right to a trial by jury before his patent could be revoked for invalidity.

    I was dogged all the way to the Supreme Court by those who argued that IPRs were unconstitutional, and that reexaminations were constitutional, because IPRs were like trials and reexaminations were not. It all but abandons McCormick Harvesting; but it was adopted by Oil States at oral argument. Thankfully, Gorsuch understood McCormick Harvesting because he quoted from it.

    And, might I add, anon, you have never understood the property-based case at all. I am willing to bet that even to this day you have read neither McCormick Harvesting nor Wood, nor why McCormick Harvesting was also relying on the Due Process Clause, not the Takings Clause.

  87. Edward Heller February 24, 2018 1:19 pm

    Anon, there is little doubt that when people revolt against tyranny, they are fighting because they believe that their basic rights and liberties are being abused. Thus we have the Magna Carta, the English, French and American revolutions. But it does not follow that people only have these rights because they were created by a Creator. There is the basic idea of a social contract – that government exists to protect its citizens, etc. That idea has been around a lot longer that modern theorists.

  88. Anon February 24, 2018 2:09 pm

    Mr Heller @ 86,

    You confuse and conflate the fact that different arguments can be made in the battle of “patents as property” and display a rather misplaced ego to wrongly presume that only your argument is the only one that exists (let alone, the only one that may be effective).

    You are correct in one manner though: no one chose you for anything. The point there is that the Supreme Court did not choose you. They denied hearing from you.

    I have no problem with some of what you did.
    I have no problem with some of what you argue.

    But you are blind to the things that you did not do – blind to the things that you did not argue.

    One of the items that I have never found fault with is how you are viewing reexaminations. Your reply at length to that effect is then quite besides any point that I have made to you. Why do you bring up something that I have not found fault with, and continue to ignore those things that I have found fault with?

    You want to ignore the Takings Clause, that is your business. You want to say that there are no effects of the Takings Clause pertinent to the issue of patents as property, you could not be more wrong.

    @ 87, your last point vis a vis trying to confuse fighting FOR something as somehow being the source of that something STILL does not accord with reality, with history of how this country was established, and with the facts that the deistic beliefs of the founders were in play. You continue to attempt to insert your own anti-deistic beliefs into the equation – and that is pure error.

    You continue with the cart of “social contract’ and forget the horse of what is involved in that social contract – you cannot have a contract OF something without that something already there – the SOURCE of the something is something that you continue to show a blind, fervent, even zealous disregard for.

    Maybe instead of taking the tact of constantly repeating your PRE-United States founding views, you pay attention and address the items that have been provided in regards to the factual historical nature of the great American advance. Note that this does not require you to change your personal anti-deistic views. It only requires you to understand and acknowledge that others with those views held such views as integral to the founding of this nation – that these views of others are why we have the nation that we have.

  89. Anon February 24, 2018 2:21 pm

    They say that half-truths are the most pernicious of lies.

    You state (as if this settles the matter) that:

    There is the basic idea of a social contract – that government exists to protect its citizens, etc. That idea has been around a lot longer that modern theorists.

    Yet, this statement, true for what it says, says nothing about the difference FOR the United States, and for which OUR contract was drawn up differently.

    You again misplace an action for something (protect) with the notion of what a source of what it is that THAT action is being sought for.

    You do not get to choose the facts here.
    You may not agree with those facts.
    You may wish that those facts were not present.
    You may even postulate that those facts “were not needed.”

    And yet, the facts still remain.

    The source for which protection would be pursued – that source, as viewed by the founders of this nation are – in absolute fact – inalienable rights.

    All of your protests, all of your attempted spin in an effort to place the cart of “protections for” and “fighting for” before the horse of what is the source to which those actions of “protecting” and “fighting” are directed to remain fruitless.

    And a good thing that.

    As I note here, the error of your view is to guarantee tyranny. In fact, tyranny against which this country fought in its founding is but one type of tyranny to which YOUR view necessarily leads to – as I discuss above at post 85.

  90. Anon February 26, 2018 1:26 pm

    As this thread starts to age, the chances are absolutely zero that Mr. Heller will address the substantive items placed in front of him.

    Conversely, the chances are absolutely 100% that Mr. Heller will someday repeat the very same assertions in an erroneous manner in an attempt to advocate for what he views the law is (and not even reach a point of advocating for what he may believe the law should be changed to be).

    Such is the dealings with the likes of Mr. Heller.

  91. Anon2 February 26, 2018 3:00 pm

    Anon@90

    As you might have guessed, I find the article below to be persuasive. Rights are not God given, nor created by Government, nor are they intrinsic imperatives woven in the fabric of the universe, they simply are truths we can recognize (or choose to ignore) about the nature of individuals and what kind of society is required for an individual’s choice to live in that society to make sense, i.e. to be life promoting rather than inimical to the life which is his. These truths, like any truth, being an identification of something in reality is inalienable so to speak from the facts of reality, and although they can be ignored, one does so at his or her peril.

    https://www.theobjectivestandard.com/issues/2011-fall/ayn-rand-theory-rights/

    Enjoy!

  92. Edward Heller February 26, 2018 5:54 pm

    anon2, thanks for the link to the Ayn Rand article. It demonstrates clearly that the Lockean idea of natural rights is really, as Rand points out, an idea of supernatural rights created or granted by God. In other words, the formulation depends upon the existence of God.

    In contrast, I agree, that the idea of fundamental rights flows not from the existence of a supernatural being granting them, but from the idea akin to if not what Immanuel Kant identified to be the categorical imperative. Our understanding of reality can infer fundamental rights from pure reason. Thus we all know that each of us has a right to life, fundamental liberty, and a right to keep what we make from the sweat of our brow.

    Second, to the extent that free actors form Government’s, they do so to protect these fundamental rights. The struggle of those conquered by foreign kings and the like, is to maintain/restore these fundamental rights.

    I think there is little doubt that the fundamental rights Englishmen achieved in their various revolutions against the King including the Magna Carta which gave us due process in the rule of law, and the English Revolution and the glorious Revolution that followed a gave us the Bill of Rights, were being taken away by the British government from the 1770s causing the Revolution. We did not need any idea that these were fundamental rights. There were rights of Englishmen that were being taken away by a despotic King and government.

  93. Anon February 26, 2018 6:00 pm

    Mr. Heller,

    Your reference to Kant and his categorical imperatives is unavailing. If you will not bother with the actual views of the founding fathers, how much less are you going to dig into Kant and his own morality based views?

    Further – and please stop this – your own current views, the views of Ayn Rand and any other views do not – cannot – change the historical facts of the views of those that put this country together.

    You simply cannot change the facts that you must deal with.

  94. Paul Morinville February 26, 2018 6:14 pm

    Anon2 @91. I see no distinction between rights from God or rights from nature. both are intangible. Nature is a belief in the same way as God. Neither can be proven.

    Nature starts with energy and time. From energy comes matter. Everything is a reaction from that point converting energy from one form or another. Your thoughts are completely predictable and are a result of a chemical reaction.

    How can this yield any rights?

  95. Edward Heller February 26, 2018 6:28 pm

    Anon, whether I agree with the views of the founding fathers or not, I concede that they have the views that you argue they had. I also agree that a significant portion if not a majority of conservatives in America believe in what the declaration of independent said and that the fundamental rights we have flow from a Creator. There is also a broad consensus among conservatives that belief in religion is necessary for a functioning society.

    I just do not agree with any of this, I think the reason that Americans revolted from England is the systematic deprivation by the English government a fundamental rights that all Englishmen enjoyed and had won over time through their struggles with the monarchy. The fact that the monarchy was again trying to take these rights-of-way was a cause to again fight.

    I also wish to point out that Roman Republic rejected the idea of kings, provided for election of two Consuls from those recommended by the Senate, and required assent of the people to the laws affecting them. The people also appointed tribunes that exercised a right of veto thus not allowing the government to pursue any course of action against the will of the and interests of the people.

    Whether this form of government was the best or not is beside the point. It worked. Arguably, the Roman Republic was the one of the most successful forms of government ever established on earth. Is certainly was established to protect the lives, liberty and property of its citizens. But it did not do so because those citizens were granted rights by a supernatural being. The Romans did not even believe in a single God.

  96. Anon February 26, 2018 11:04 pm

    Mr. Heller @ 95,

    You have a come this far, perhaps you will come a bit farther.

    Recognize that WHATEVER belief system you have now – whatever belief system that Anon2 may suggest (and even, whatever belief system that I may have) – NONE of that is on point to the (historical) facts of the foundation of this country.

    Attempting to “insert” reasons will fail.
    As it must.

    You can choose your opinions, You cannot choose your facts. Note that these are NOT meant to be any type of “TRUTH” facts. That would be a red herring.

    As to your adoration of the Roman form – I do not begrudge you your opinion there. But make no mistake, the US foundation is different – and it is different expressly as I have put it to you.

  97. Anon February 26, 2018 11:47 pm

    Anon2,

    Rand is merely “Religion-light” – such “religion of the senses” may be more Platonic, but at bottom it is as unsatisfying as she claims inalienable rights by any other mechanism to be.

  98. Anon2 February 27, 2018 9:17 am

    Anon@97

    Sorry, you could not be farther from the truth, a full explanation of which would take years of discussion and reading.

    I understand that “what she thought” is not important to you, and I respect that, after all, your life, your values, are yours alone. So, I understand why you have not and will not take the time to fully understand her position… I trust you will simply put Rand out of your mind and turn to other more important things in your life… and That my friend, is eminently and perfectly OK.

    @anyone and everyone else

    I STRONGLY advise anyone who is interested in knowing what Rand actually thought to just ignore what is said about Rand completely. Mostly because what she said and thought is very divisive and controversial in today’s political climate, but also because it is not easily accurately conveyed in brief synopses, I strongly advise that you ignore what other people (other than Leonard Peikoff) write and say about what Rand purportedly thought and simply read what Rand wrote and said herself.

    Notwithstanding waning above, you should also be warned that Rand rejected all forms of Platonism which after all is supernaturalism which she also rejected in all its forms. She rejected rationalism (ideas over reality) subjectivism (primacy of consciousness) and other subsidiary miscellanies such as mystic revelation, pan-theism, intrinsicism, collective consciousness, collectivism, racism, racial logic, polylogism, socialism, totalitarianism, altruism, God, Gods, ghosts, floating abstractions, determinism, deterministic materialism, mind-body dichotomy, Marxism etc. etc. . She embraces objectivity, free-will, rational egoism, separation between the State and the economy, but to know what she means by these takes years of discussion and reading.

    As a final warming: many have identified what is “wrong with Rand”, the following is an objective and accurate summary of what is really wrong with Rand’s Philosophy:

    https://www.theobjectivestandard.com/2018/02/heres-whats-wrong-ayn-rands-philosophy/

    In any case, with some regret for having started this, I will now completely disengage from this interjected side discussion.

  99. Edward Heller February 27, 2018 9:47 am

    From the linked article:

    A “right” is a moral principle defining and sanctioning a man’s freedom of action in a social context. There is only one fundamental right (all the others are its consequences or corollaries): a man’s right to his own life. Life is a process of self-sustaining and self-generated action; the right to life means the right to engage in self-sustaining and self-generated action—which means: the freedom to take all the actions required by the nature of a rational being for the support, the furtherance, the fulfillment and the enjoyment of his own life. (Such is the meaning of the right to life, liberty and the pursuit of happiness.)15

    According to Rand, the only proper purpose of government is to protect individual rights by banning physical force from social relationships—and by using force only in retaliation and only against those who initiate its use.16

    Clearly, no one who wants government to do more than that will embrace Rand’s philosophy. No one who wants government to forcibly redistribute wealth, or to forbid certain kinds of speech, or to forbid certain kinds of consensual adult sex, or to restrict freedom in any other way will embrace a philosophy that demands principled recognition and absolute protection of individual rights.

  100. Edward Heller February 27, 2018 9:51 am

    Anon, in view of Rand’s discussion of rights, recall my discussion about the so-called “right” to health? There cannot be such a right as its existence imposes on everyone in the whole world an obligation to support everyone else. This makes no sense, and thus fails the categorical imperative. But I do see many operating on that principle, at least in their arguments about government policy.

  101. Anon February 27, 2018 9:57 am

    Anon2,

    You are not correct in your purported understanding of “that “what she thought” is not important to you

    At all.

    I very much appreciate Rand’s modern view.

    You are also very incorrect in the statement of “ So, I understand why you have not and will not take the time to fully understand her position” I very much fully understand what she believes her position to be.

    It is merely that I do not stop there and accept that at face value.

    Instead, I use my own mind, and my own understanding of a vast number of other world views, and employ some critical thinking. At the bottom of her version of “objectivity” – and critical to the notion of “free-will” STILL lies the items that she sought to reject.

    Of course, you are free to disagree and disengage. But you are not free to misrepresent my views. My views are not as you attempt to portray them. My views are not built on “misperceptions” of Rand, nor are they slovenly or dismissive or merely tied to a competing view.

    Lastly – at bottom line for THIS discussion point about the foundation of our country, Rand’s musing simply are not on point. Had she been able to actually establish her own country founded on her views, then a discussion of THAT country’s foundation would be appropriately geared to what she viewed as to the regards of inalienable rights.

    That just not would be the United States of America.

  102. Anon February 27, 2018 10:03 am

    Mr. Heller @ 100,

    Anon, in view of Rand’s discussion of rights, recall my discussion about the so-called “right” to health?

    Respectfully – no. I care not to count the number of angels on the pin head of an item that has no bearing to the reality of that other discussion.

    As I mentioned to Anon2 – HAD Rand actually created her own country and had the foundation of which you would like to discuss, THEN your invitation would have some merit.

    Also please recall (as you seem to not to here), that your imposition of “over others” is NOT what the right to personal health entails. As noted in that other discussion, you made a logical error with your overstatement, Repeating that overstatement here does not correct that logical error.

    Further still, you continue to use the label of Kant’s “categorical imperative,” and I truly doubt that you understand what that label actually involves. You are using that term out of context.

  103. Edward Heller February 27, 2018 10:06 am

    anon, re Kant, hardly. Morality and rights are linked.

  104. Anon2 February 27, 2018 10:31 am

    Anon@102
    EH@103

    Sometimes I wonder if you guys could even mutually agree on what you disagree on. That you each don’t take each others own self-stated positions as representing accurately the actual positions referred to.

    That takes the whole concept of speaking past one another to a whole ‘nother level, to the point where any communication whatever between you two is simply pointless.

    Is it repairable to any degree, if so what is required?… or shall we simply settle for absolute and never-ending pointlessness?

  105. Anon February 27, 2018 2:10 pm

    Mr. Heller @ 103,

    Morality and religion enjoy a closer link – as much as your anti-deistic views may not be able to recognize that.

    Anon2,

    It is not that I disagree with Mr. Heller’s ability to formulate his own word view (I certainly do not), he is simply not at liberty to attempt to change historical facts and attempt to insert his world view in place of those who laid the foundation of this country.

    I am perfectly accurate in ALL of my posts – your intimation otherwise is in error.

    The “reparable” part is solely in the hands of Mr. Heller. All that he has to do is recognize what I am actually stating, and stop trying to do what he is trying to do.

  106. Edward Heller February 27, 2018 3:18 pm

    anon2@104: I somewhat agree with your post. Having a conversation with anon is always difficult at best because he rarely states his position. He just says that you are wrong. So no matter what I say, I turn out to be wrong. Furthermore, anon, by self declaration, is always right.

    Been like this for years.

    And, he does it with everyone all the time.

  107. Anon February 27, 2018 3:31 pm

    Mr. Heller,

    Please do not lie.

    As typical, my position on this matter has been abundantly clear all along.

  108. Edward Heller February 27, 2018 3:34 pm

    anon, speaking of historical facts, have you ever read the Declaration beyond the clause you cite? It provides a long list of abuses that all relate to deprivation of rights that Englishmen had historically enjoyed. It was the violation of these right that impelled the revolution.

    There is little doubt that at the time Locke and others were theorizing on the proper role of government, inferring fundamental rights that anyone with reason could also infer. The appeal to a Creator as the source of these rights is pure Lockean, but anyone who grew up Catholic or Anglican also knew about mortal sins and how they were punished in the afterlife. Religion also dictated that we have free will, which implies liberty. Pursuit of happiness? The way ones leads a good and moral life.

    But these ideas were simply icing on the cake given the long litany of abuses. Unlike the English people who decided after Cromwell to restore the monarchy only to see the restored monarchy resume its quest for absolute power, the English colonists decided to permanently part ways.

  109. Anon February 27, 2018 5:09 pm

    To answer your question, Mr. Heller, Yes I have.

    But let’s return to the sticking point here – YOU are the one trying to ignore something in the foundational documents because it does not fit YOUR modern sensibilities.

    I am the one holding your feet to the fire and (attempting) you from so ignoring the historical fact that you find so disconcerting.

    Your views do not get to set aside facts that you find inconvenient or undesirable.

    You do NOT get to say “not needed, thus dispensible.”
    You do NOT get to say “icing on the cake – the “realst up of our country is this other thing.

    Your alternative and rewritten history is not in accord with reality.

  110. Anon February 27, 2018 9:26 pm

    Mr Heller,

    I suggest that you read this, in its entirety, without parsing out the parts that you do not like – and NOT attempt to put the horse before the cart:

    http://www.ushistory.org/declaration/document/

    After doing so, kindly – and specifically – point out ANY of my comments made during our discussion that are in error concerning the views and beliefs of the Founding Fathers (and expressly, leave you own modern views out of it).

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