SCOTUS says Patents are a Government Franchise, Not a Vested Property Right

By Gene Quinn
April 24, 2018

Supreme Court buildingEarlier today the United States Supreme Court issued its highly anticipated decision in Oil States v. Greene’s Energy, which asked the Court to consider whether post-grant challenges to issued patents at the Patent Trial and Appeal Board (PTAB) of the United States Patent and Trademark Office (USPTO) are constitutional under Article III and the Seventh Amendment of the U.S. Constitution. In a 7-2 decision, the Court found that post-grant challenges, specifically inter partes review (IPR) challenges, are constitutional.

While the Supreme Court attempted to leave open the faint possibility that they were not foreclosing the possibility that patents are no longer property rights, the truth of the matter is the Supreme Court’s decision in Oil States effectively ends the discussion. Patents are not property rights and will not be property rights until Congress overrules Oil States.

Rather inexplicably, the Trump Administration argued that patents are a government franchise, and that is, in fact, what the Supreme Court ruled. Indeed, Justice Thomas, writing for the majority, said that all inter partes review involves is “reconsideration of the Government’s decision to grant a public franchise.” Thus, patents are not property rights despite what the statute says to the contrary, and despite what the Supreme Court themselves have ruled to the contrary previously.



The importance of patents being just a public franchise cannot be overstated. If patents are public rights that can be challenged at any time and revoked that necessarily means they are not property, regardless of how the Supreme Court attempts to limit this ruling.  Property rights vest and title quiets in property. Without vesting and quieted title, fundamental attributes for all property, patents are nothing more than the government franchise the Supreme Court says they are, and the Trump Administration argued they are.

In his dissent, Justice Gorsuch explained that innovators with something new can spend up to $30,000 and two years to obtain a patent. His recognition of the time and investment is honorable, but his estimates are off by orders of magnitude. For some simple inventions $20,000 to $30,000 may suffice, but even for simple inventions, two years is rather quick. For anything of substance, and certainly, anything that qualifies as a breakthrough, or disruptive, or paradigm shifting it will take closer to a decade, usually longer to obtain patent protection. Given that patents are no longer property it is hard to believe innovators will spend many tens of thousands, and frequently hundreds of thousands of dollars and up to a decade fighting the Patent Office to obtain a government franchise that can be stripped at will.

Trade secrets will become far more important until Congress finally comes to its senses. In the meantime, it will be hard for innovators to justify spending billions necessary to achieve disruptive innovation only to be awarded a government franchise that can and will be revoked by the PTAB once proven valuable. At least in America.

While there has been much optimism due to the arrival of USPTO Director Andrei Iancu and his recent speeches signaling he understands the U.S. patent system must move along a different path, it is impossible to think that one man will be able to correct the collective mistakes of 535 elected Members of Congress and 9 ivy league educated jurists who seem convinced that forfeiting America’s patent system is somehow what the Constitution demands. His job just became much more difficult, and all the more important.

Thankfully for innovators China and Europe seem ready, willing and able to pick up the slack. Still, it is sad to see America forfeit our high-tech and innovation advantage. And for what? Because a small handful of technology users didn’t want to pay licensing fees to innovators and instead wanted to use innovations they didn’t create for free? Truly disheartening.

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 59 Comments comments. Join the discussion.

  1. A Rational Person April 24, 2018 3:19 pm

    Gene,

    To be fair, it’s only 8 ivy League educated jurists who seem convinced that forfeiting America’s patent system is somehow what the Constitution demands.

    Justice Gorsuch dissented in Oil States, wrote the majority opinion in SAS and played no role in the atrocious KSR, eBay, Myriad, Alice and Prometheus decisions by the Supreme Court.

  2. JPM April 24, 2018 3:19 pm

    As an inventor, it is very disheartening to see this news.

  3. EG April 24, 2018 3:37 pm

    Hey Gene,

    Calling patent rights equivalent to franchise rights is a terrible wrong analogy and insulting-that effectively overturns over 200 years of case law that says otherwise, including McCormick Harvesting and cases cited therein.

  4. A Rational Person April 24, 2018 3:57 pm

    I wonder how long it will be before China takes advantage for this ruling by either treating patents owned by US companies as “franchise rights” that can be revoked by a “appropriate” Chinese government agency or by responding to the the US criticisms of Chinese IP protection by pointing out that, unlike the rest of the developed world including China, the US doesn’t even consider patents to be property rights.

  5. angry dude April 24, 2018 4:33 pm

    “ivy league educated jurists..”

    idunno

    i wouldn’t hire any of those “ivy league educated jurists” to help with elementary logic homework for my 9 year old daughter

    Justice Clarence Thomas writing majority opinion on foundational patent law issues ???

    You gotta be kidding
    Sigh

  6. Ternary April 24, 2018 4:38 pm

    Intellectual Property as embedded in computer systems will become more important than ever, especially because computer systems control the peripheral systems that control our lives. We are only viewing the start of computer intelligence. The intent is not to destroy the patent system, but make it work (exclusively) for incumbent institutions, so new technology will not be assisted by patents to attack the existence or survival of incumbents. The patent system is being rebuilt into a barrier for independent inventors and other threatening upstarts. The intent is that new technology works in favor of existing institutions and companies and not to undermine them. And that is what we are experiencing.

    The hope/conviction/interest by the establishment is always that existing companies/institutions are better in handling/channeling new technology. The American Experience has refuted that misconception consistently in the past. We may not be that lucky this time with others vying to diminish the vitality of the US economy. Despite not being unexpected I am very disappointed by the Oil States decision.

  7. JRS April 24, 2018 4:54 pm

    Actually, only 7 jurists — Roberts joined Gorsuch in his dissent.

  8. angry dude April 24, 2018 4:59 pm

    Ternary @6

    “Intellectual Property as embedded in computer systems will become more important than ever”

    Trade secrets on methods/processes/machines and copyrights on binaries for sure

    Patents are gone, gone, gone

    No more patent disclosures of anything of importance that can be kept as trade secret for some time (even less than a year)

  9. Pro Se April 24, 2018 5:23 pm

    @7. I invented a new process for my latest product.. no one in the world has never done anything similar.. I explained to my business partner we are now in the trade secret business because to reveal what we’re doing in a patent application today, is just giving it away.

    Medicine and new computer algorithms are best kept as trade secrets, like Cocoa Cola and KFC secret recipes..

    I’ll never give my latest and best work of my life into a government franchise regime.

    As I type this, I can’t think of a ruling the SCOTUS has ever made that didn’t devastate patent rights, starting with eBay.

  10. Jason Crow April 24, 2018 6:04 pm

    Companies like Google, Apple and Amazon are bigger then the United States and have full control of the narrative. SCOTUS are nothing more then puppets for the Silicon Valley Elites. America has proven once again to be a true Banana Republic. American Inventors will now be looking deeper into filing a patent in the EU or even China, as this ruling now proves the court system only works for Big Business. Small inventors do not have a chance to thrive anymore in the New United States of America, thanks to special interests like Google that created the boogieman “patent troll” only to control the narrative to lobby government to pass the AIA Act and introduce the patent killing tribunal PTAB. Small Patent holders lost over $3 Billion in lost royalties, while Google Apple and Amazon enjoyed record profits. The Rockefeller Family are turning in their graves on how the American government was fleeced by Silicon Valley Elites. This is a very dark day for the American Justice System.

  11. Night Writer April 24, 2018 6:33 pm

    @9 I think that is basically right.

  12. Tesia Thomas April 24, 2018 8:00 pm

    WE NEED A REGISTRATION SYSTEM THEN.

    Caps = Anger

    I @%$#ing pay taxes already.
    Why should I slave over concepts and pay my hard earned money just so the government can have another asset?

    Right now, it goes…

    Generate income to pay for inventing and IP, pay taxes on said income.

    Pay the government (USPTO) for IP.

    Pay maintenance fees for IP.

    The government owns/controls the IP and I just pay for it. It’s not even mine, not my private property.

    IP is a tax on innovation at this point.

  13. Sad Observer April 24, 2018 10:25 pm

    US government to inventors: “All your property rights are belong to us.”

    China to US: “All your inventions are belong to us.”

  14. temorit April 25, 2018 12:33 am

    Tesia – Yes, a patent in the hands of a small/independent inventor is a real-life white elephant.

  15. Tesia Thomas April 25, 2018 7:36 am

    @temorit

    …in the USA, yes.
    At least this means attorney costs are going down because the market isn’t going to bear tens of thousands for Office Actions for a patent that is pretty much indefensible.
    So, US IP should get much cheaper.

  16. Tesia Thomas April 25, 2018 8:50 am

    I wonder if, since patents are a government franchise, the US doesn’t just redistribute IP among various companies.
    The government should give IP to whoever it wants regardless of whose name is on the IP.

    I wonder why, since patents are a government franchise, the US will have courts deciding infringement or invalidity at all.
    The government holds the final decision so why not just do a coin toss or pick the entity – plaintiff or defendant – who they like the most.

    Why waste time with judges and court decision? They don’t do this with utilities.

  17. Valuationguy April 25, 2018 9:06 am

    Gene,
    While you indicate that the Trump admin argued that patents are a gov’t franchise…you are perpetuating a false assumption that Trump and HIS admin supported the argument. I contend that because of the delays in getting Trump’s appointments confirmed….THIS particular argument falls SQUARELY on legacy Obama officials. (Trump’s appointment to be Director wasn’t confirmed at the time all the briefs and orals for the case were going on.)

    Instead it was Silicon Valley giant efficient infringers agent Acting Director Joe Matal (who wrote the AIA and its definitive history) who orchestrated the entire case for the gov’t. Backing him up… he had all the prior Google/Apple/Facebook plants that Lee brought into the PTO when Obama was auctioning off favors to the giant techs.

    It will take a year or more for Iancu to make any effective progress getting rid of these roadblocks to improving the patent system for INNOVATORS….rather than INFRINGERS. I’m personally looking forward to how far Iancu moves with his reforms this summer….particularly on the BRI issue.

  18. The Time Is Now To Act April 25, 2018 10:14 am

    Valuationguy – Agree re reforms and BRI in the crosshairs.

  19. Jimmy Niles April 25, 2018 10:17 am

    As an independent inventor of a handful of granted technology patents, exactly what is the benefit for anyone other than a large IT company to actually file for a patent in the U.S.

    Maybe Gene and the folks at IPWatchdog can do an article (or updated article) on which countries are more friendlier to inventors.

  20. Anon April 25, 2018 10:42 am

    I am not toughing these decisions until the weekend.

    I am hoping that such provides some measure of objectivity to what otherwise surely would be a scathing post which may exceed my latitude of irreverence for this forum.

    One item though to which I plan on revisiting – and especially pertinent given the recent passing of an often adversary and erstwhile antagonist on many patent matters of Ned Heller (noted on the other blog at: https://patentlyo.com/patent/2018/04/ned-heller-1947-2018.html .

    I wish to capture (and the discussion spanned several threads here) a distinction of which I believe has come to pass: that is, there is indeed more than one right involved in the patent system, and what Congress did in the AIA (rather unclearly) was to create a new public right that is indeed separate from the traditional property right that most people who understand patent law would identify as the crux of the patent system.

    The discussion between Ned and I was mostly my trying to tease out from Ned how his views would hold up if in fact the Court were to “bifurcate” as it were (or to be more generous and not invoke separation of powers violations) that Congress choose to create a new public right (a right of challenge).

    This ranging discussion may well bridge the unbridgeable, may provide the scissors to the Gordian Knot of Supreme Court scrivening, and may set a baseline for how best to proceed (and proceed both in the immediate aftermath and in any reformulation suggestions to Congress if that body could ever free itself from the voices of the juristic persons that have captured the ears, pockets, and apparently writing abilities of that branch of the government.

  21. Gene Quinn April 25, 2018 11:00 am

    Jimmy-

    You ask: “Maybe Gene and the folks at IPWatchdog can do an article (or updated article) on which countries are more friendlier to inventors.”

    Not a bad idea. In the meantime, take a look at the U.S. Chamber’s 2018 Global Index. The U.S. is 12th for a reason. Unless overruled this decision will push the U.S much further down the list next year.

  22. PreAIA_patents_should_not_be_subject_to_IPRs April 25, 2018 12:32 pm

    I’m a Pro Se inventor and I have 5 patents (1 parent and 4 continuations) having a priority date of 2009. The original parent patent application was filed in 2009, and it was granted in 2013. All continuation patents claiming priority from the parent all have a 2009 priority date, but they were filed (and are being filed) after 2013. All continuation patent applications were (and any will be) examined under the pre-AIA rules; however, the actual patent grants that were (and any that will be) issued actually issue after the AIA went into effect. With these continuations, I am attempting to get the claim wording correct and am also claiming additional inventions from the original disclosure.

    The AIA changed the rules after I started the game. It changed how patents are examined. The PTO even acknowledges this: A continuation patent application that I file today that claims benefit from the parent pre-AIA patent application would be examined using pre-AIA rules.

    For a resulting patent to then be subject to IPRs, a tribunal created by the AIA, *AFTER* I started this process, no matter when the resulting patent issues, would be in injustice from all sides.

    I did not sign up for the AIA rules, including IPRs, and my patents are not examined under the AIA. Had I known that the AIA was going to establish the PTAB and IPRs of which my patents (having a PRIORITY DATE that pre-dates the AIA) would now be subject in order to enforce, I wouldn’t have entered into this agreement with the government in sharing my invention with the world. The PTAB and IPRs introduced additional risks and costs that I must now bear in order to enforce my patents post-issuance, let alone the method of determining validity is inconsistent with what was in effect pre-AIA.

    Indeed, the AIA changed the patent bargain/exchange mid-sentence for inventors.

    I still need to file continuations to protect everything that my original disclosure entails of which is patent eligible. I’ve invested years and sacrificed my time, money, family, numerous business opportunities, etc in pursuit of protecting my invention(s) via patent grant, and I’m right in the middle of this pursuit. And I don’t know what to do. Will my continuation patent applications, once granted, fall under pre-AIA or post-AIA? The law is not clear. But if I fail to file a continuation on time, I lose the benefit of claiming priority.

    No matter how SCOTUS ruled here in Oil States, the patent rules (AIA) changed after I started the game. My patents not being subject to the AIA during examination but also being subject to the AIA post-grant is not consistent/fair.

  23. Silicon Valley Inventor April 25, 2018 1:28 pm

    @PreAIA #22

    I’m in the exact same predicament as you. I never imagined that, as I was seeking to protect my invention as advised by an attorney, tech goliaths and their puppets on K Street were seeking to render the USPTO useless for individual inventors like me.

    I will need to file a continuation to pursue the proper claim protection and to achieve greater valuation for my patent family. Whether patents have any value for those of us who lack the army of attorneys that tech goliaths command is now doubtful. So it’s hard to know what to do.

    I’ve had a very difficult go of it, even by downtrodden founder standards. My marriage fell apart. I had to fight to get custody of my kid and was paying family law attorneys more than my patent attorney. Then my kid got cancer and I had to take a traditional job and abandon most startup ambitions to get the medical coverage we needed.

    I clung to my dreams, hoping that I could one day command licensing revenues or sell the patents for a fair valuation to give my kid the kind of life she deserved. My patents have begun to be infringed as startups and tech goliaths alike are stealing my tech. My area is forecast to be a $35 billion market by 2024. By then, my patents will still have a few years of life to them.

    So I have no choice but to cling to my dreams, file new applications, prosecute the patents and hope the pendulum starts to swing the other way.

    Sorry if all this was TMI. Founders take a lot on their shoulders. And I have taken on more than most, I think.

  24. anony April 25, 2018 4:44 pm

    “His [Iancu’s] job just became much more difficult”

    Perhaps the opposite. By this ruling, the Commissioner can continue to stack the PTAB deck to achieve policy goals without the interference of independent ALJs. All that is needed is the stroke of a pen to change the policy goals (and incentives and panel stackings) to achieve a more inventor friendly result

  25. TDM April 25, 2018 9:31 pm

    Once again our great country is being taken advantage by people who have never busted their butt’s and sacrificed the many hours required to bring a dream to reality. I believe we are closing in on a new civil war. How long will it be before the masses get so pissed off and begin a revolt against the lefty extremist! They are enemies to the state, country and all of what it once stood for, but no longer does. You remove the intellectual property rights from Americans, you kill innovation. So some day in the future and the Earth needs ideas on how to solve a life or death problem, there will not be anyone with the capabilities. Kill creativity, you kill the future of innovations to solve the problem. So, when the day comes that Earth is being inflicted with disasters, I believe it will hit the stooges and selfish POS’s that killed the American and truly the world ability to dream and build a better way of life. I personally will not be using my creativity for solving problems any more by means of innovation. I’m going to use my time for writing on how idiots should never have the helm of our once great country. I have just received notice of alliance on my 14th patent. I have yet to make any money. I have had several opportunities to license, but they wanted to take the projects overseas for manufacturing. I just cannot sell out our country no matter the cost to myself. I hope you idiots responsible for this latest ruling all die of causes that could have been solved by innovators!

  26. PreAIA_patents_should_not_be_subject_to_IPRs April 26, 2018 3:05 am

    Silicon Valley Inventor @23:

    I hear you on that founders take on a lot. My personal situation while I’m trying to survive in the IP world?

    Feb 2016, my wife was recovering from C-section while I was taking care of our two babies. The next month, my father had a lung transplant. The very next month, my mom fell and broke her back and pelvis. So now I’m taking care of 5 people. The next month, my mother-in-law (doesn’t live in US) had a heart attack. She hadn’t yet met her newborn grand-daughter, so we expedited a passport and bought tickets and waited for it to arrive in the mail in 2 days. My wife then asked “I still have this mammogram appointment tomorrow. Do you want me to go?” I said, “I suppose. We can’t leave until we get the passport.” And it came back positive for breast cancer. My world was stopped, I had to shift my focus to keeping doctors in line and advocate for my loved ones (we have experienced malpractice) while trying to keep everyone alive. I’ve been drowning in medical bills since, and then, Hurricane Harvey hit while my wife was in surgery. Trapped in hospital for 10 days surrounded by water. She had 3 surgeries in fact in 3 consecutive days because the first surgery failed. Each one running up the well over 100k each, not to mention the 4 chemo drugs, each one no less than 45K per infusion (17 total infusions), comprehensive radiation (another 100k), and a monthly shot and daily prescription meds for 5 more years, just one of them running $13k/mo.

    And THIS is why I’m now a Pro Se inventor. I had to assign power of attorney to myself because for obvious reasons I can no longer afford to pay a patent attorney or agent to prosecute my inventions.

    Now consider those facts (you can’t make this stuff up), and then read my comment above again in that light.

    I’m not emotional about the Oil States ruling. I can see how many inventors would not particularly be happy about it, but I have a different issue altogether. My concern is the applicability of AIA IPRs to patents having priority dates that pre-date the AIA rules, especially considering that they are examined using pre-AIA rules, yet re-examined via IPR using AIA.

    I have 5 patents, all examined under pre-AIA rules. I’m still filing continuations to strengthen language and claim all inventions originally disclosed. Will these patents be subject to AIA IPRs? I seriously would not have entered into a bargain to share my IP with the world and spend enormous costs and sacrificing my time and family had I been presented with the “value proposition” of a patent grant that would be subject to AIA rules after the fact.

    It’s an injustice:

    The precedent of my patent applications having a priority date that predate AIA, and therefore are examined using pre-AIA rules, is known and is the law.

    So why should these patents be subject to AIA IPRs post-issuance?

    It is not consistent nor fair.

    A judge is suppose to provide fairness in his/her ruling.

    Can I get some help?

  27. angry dude April 26, 2018 9:38 am

    PreAIA_patents_should_not_be_subject_to_IPRs@26

    Dude,

    Did you make a dime on any of your patents ?

    If you haven’t already chances are that you never will

    Cut your losses and get 9-to-5 job with good family health benefits – you can still invent as a hobby at your spare time

    Those bastards always apply all sh1tty laws they concoct retroactively

    AIA is just one

    Alice is another one

    Ebay was the first in a raw

    My patent is on signal processing algo which can run a any processor or can be made a part of a silicon chip

    My patent attorney wrote all claims (long before Alice) to capture the essence of my invention and all possible ramifications in main independent claims, in accordance with best practices at the tome

    Now after Alice I’m sure they would say my main independent claims are abstract and although dependent claims are very detailed killing some independent claims would kill the patent

    I filed my patent in 2002, long before all this sh1t started
    and it was issued in 2006 after Ebay

    To this day I curse myself for trusting US patent system

    Cut your losses, dude, and try to get a life you deserve
    You are not getting it via patent route

  28. Sloan April 26, 2018 1:32 pm

    I guess I am now an intellectual franchise attorney. Darn, I need to get new business cards now.

  29. Stephen Tytran April 26, 2018 6:37 pm

    Gene,

    While I agree that this ruling will not stem the continued decline in the value of U.S. patent rights, I disagree that further decline will result merely from SCOTUS’ characterization of patent rights in Oil States as a “public franchise.”

    This characterization of U.S. patent rights is not new. As far back as 1870 (I’m not convinced Justice Thomas looks to cases beyond the 19th Century for guidance), the Court held in Seymour v. Osborne that:

    “Letters patent are not to be regarded as monopolies, created by the executive authority at the expense and to the prejudice of all the community except the persons therein named as patentees, but as public franchises granted to the inventors of new and useful improvements for the purpose of securing to them, as such inventors, for the limited term therein mentioned, the exclusive right and liberty to make and use and vend to others to be used their own inventions, as tending to promote the progress of science and the useful arts, and as matter of compensation to the inventors for their labor, toil, and expense in making the inventions and reducing the same to practice for the public benefit, as contemplated by the Constitution and sanctioned by the laws of Congress.” Seymour v. Osborne, 78 U.S. 516, 534-35 (1870).

    Rather than the mere designation of patent rights as a “public franchise,” the derogation in value of that franchise results from myriad harmful court rulings, legislation, and rulemaking (USPTO, FTC, DOJ, …). Reverse some of those harmful actions, and the value of U.S. patent rights (and innovation) will rise. My top 3 (not particularly in any order) changes would be:

    1) Courts reverse the jurisprudence of eBay and its progeny. A true “public franchise” is a franchise granted an EXCLUSIVE privilege or license to act in a certain manner prohibited to the general community. As a result of eBay and its progeny, a U.S. patent today, at most, provides its owner with the opportunity to collect a compulsory license fee. In all but a few instances, the cost of securing such a license fee through the courts (and the PTAB) far exceeds the risk-adjusted fee itself. The courts should embrace SCOTUS’ characterization of patent rights in Oil States as a “public franchise” and grant, as a matter of right, the relief of injunction to ALL patent owners that carry the burden of proving infringement–subject only to the strictest of public-policy exceptions.

    2) Congress eradicate the “abstract idea” exception to patentable subject matter from Section 101 jurisprudence. The concept is unnecessary and vague and resultantly is improperly used by the Patent Office and courts to reject and invalidate patent rights, undermining the value of countless patents. If an invention is truly abstract, it can and should be rejected under Section 112. If an invention is deemed “judicially abstract”–i.e., it is believed to be well-understood, routine, or conventional under Alice–it can and should be rejected under Sections 102/103.

    3) USPTO address the inherent unfairness and insufficient due process protections in current IPR proceedings. Due process protections in IPR proceedings should be established at a level to protect private property rights, as this is what innovators are bargaining away in exchange for the public franchise of a patent. These changes should include (i) increasing the standard of proof needed to institute IPRs; (ii) changing from BRI to the Phillips’ standard for claim construction; (iii) requiring the PTAB to adopt res judicata claims constructions from the federal courts; (iv) allowing for amendment of the claims as a matter of right; (v) limit petitioners to noticed putative infringers to give full force and effect to AIA estoppel provisions; and (vi) increasing the times to respond, page counts of briefs, and other procedural changes to allow for a full and meaningful defense of one’s patent rights.

    Until these changes occur in the courts, Congress, and Patent Office, as you conclude above, innovators should carefully consider whether to bargain away their private property trade secret rights in exchange for public franchise patent rights.

    The comments above are my own and not necessarily those of my employer.

  30. Tesia Thomas April 26, 2018 8:19 pm

    @Stephen Tytran

    What public franchise doesn’t have a ‘quiet title’?
    Even utilities companies don’t get reviewed.

    This likens companies that depend on patents to public utilities – the government owns them.
    Why isn’t the USPTO called the IP Commission?
    Do innovators with student loans get their loans paid off since they’re technically performing a public service…like working for NASA or DOD?
    Shouldn’t inventors be public servants then?

  31. Tesia Thomas April 26, 2018 8:24 pm

    My patent is owned by the government.
    My labor made the patent.

    Ergo, I’m a government employee. Am I not?
    There’s no middleman in this. My company is arbitrary – it doesn’t own the patent.

    Plus, why am I paying patent fees? That’s like an employee paying the company it works for in order to work for it!

  32. Tesia Thomas April 26, 2018 8:31 pm

    Inventors labor for the public good and if we don’t own what we make, and especially if the government does, then we’re entitled to a paycheck.

    So I expect every inventor to get a salary from Uncle Sam.

    Thanks!

    This $#%& works both ways. It is corrupt to expect someone to pay for what they do not own! Especially a citizen from its government.
    And we pay taxes. This is robbery.
    The attorneys argued this so wrong.

    Public franchise = public servant
    …and it’s d&%n near Communism.

  33. Tesia Thomas April 26, 2018 8:58 pm

    Just searched and confirmed that public utilities workers are indeed public servants.

    Ok.

    What attorney is going to form a class action lawsuit against USPTO for inventor (private – Indie, corporate, university, etc) back pay?

    And for those who have hefty student loans (which wouldn’t include me but includes much of my generation), USPTO needs to please incentivize IP creation with student loan forgiveness. I bet every 20-something will invent for the USA.

    We’ll beat China this way.

  34. angry dude April 26, 2018 9:23 pm

    Stephen Tytran@29

    “Courts reverse the jurisprudence of eBay”

    Dude, do you have any clue at all ???

    Do you realize it’s waaaaaaaaaay too late for that ???

    Efficient infringement going unchecked and unpunished for well over decade led to some very fundamental patents to be (illegally) built into hardware inside of many devices you use every day, like your cell phone…

    Reversing Ebay will cause a bunch of folks like myself coming out of woods with very valid and willfully infringed US patents which are essential to the core business of the most powerful tech corporations on the face of the Earth

    Do you really think US courts will impose injunction on IPhone sales ???

    But that’s exactly what they’ll have to do if Ebay is reversed, no less

    I will personally see it through…

    Not even for money – just for fun

  35. Tesia Thomas April 26, 2018 9:56 pm

    Also, @Stephen Tytran, the first US public utility was formed in 1922 (source: Wikipedia, Mother Brook Grist Mill)

    So the Patent Act of 1870 precedes the arguably greatest public franchise – public utilities – by over 50 years.

    For SCOTUS of the 21st century to regress the US back to 19th century law is more conservative than anything.

    It’s terrible that the 1870 Patent Act does in fact refer to the issuer of patent as the commissioner. (just read that)

    These progressive, Google-Obama placed judges are worse than Trump’s conservative appointees. They just took our country back to almost (~7 years past) before slaves were emancipated.
    Thanks.

    It’s fitting. We inventors are obviously slaves to the government.
    Even public utilities get to use roads and stuff for free, monopoly for way longer than 20 years (forever basically), and their employees are public servants with all the benefits of that.

    We just get some exclusivity for a time…and with IPR that can be as short as 9 months for tens of thousands of dollars fees.

    We save lives just like the doctors and educate the public just like the teachers.
    But, we always have more than one job (inventor + what pays to support being an inventor) and hardly any benefits for our public good.

  36. Tesia Thomas April 26, 2018 9:58 pm

    …and the current patent act refers to the issuer as commissioner.

    Wow. Inventors have been mis-classified as non government employees this whole time.
    That’s what I think SCOTUS just said.

  37. Tesia Thomas April 27, 2018 2:06 am

    Can you IPR a NASA patent?
    DOD?

    Those are public franchises where the patents are automatically owned by the govt.

    How does that not matter here???

    Why don’t current/what-was-believed-to-be-private-property patents now have federal sovereign immunity from PTAB since they’re not privately owned yet are (thanks SCOTUS) government owned.

    How are you allowed to get rid of Indie inventors government owned IP and not NASA/DoD IP?

    If the government owns the patent work product then it employs all of us…and just wasn’t paying some of us.

    Just how the he%% can a sovereign own what a citizen does and force them to pay for it at the same time and call itself a democracy?

    (I’m actually asking this seriously. Just going through all of these crap decisions and trying to find holes. Feel free to say, “You dumbie, Tes. That doesnt make sense!”)

  38. Tesia Thomas April 27, 2018 2:20 am

    Why is Bayh-Dole even around at this point?

    Who owns the IP – govt or uni/researcher?

    Answer: The IP was and is always govt owned.

    Obviously the government has loved to give us the illusion of privately owned IP even going so far as to make convoluted laws to trick us.

  39. Tesia Thomas April 27, 2018 2:34 am

    IP is govt franchise = govt owns IP

    Govt owns IP = IP has sovereign immunity because it’s govt owned

    Sovereign immunity = cannot be IPR’d

    No IPR = No reason for PTAB to exist because all IP is govt owned, none of IP is privately owned

    Unless there are levels/hierarchy of govt IP ownership…where public entity govt owned IP is above private entity govt owned IP.

    ‘Own’ means own, right?

    This whole situation is giving me a headache.
    Someone claim sovereign immunity for their IP in the next IPR. And when everyone looks at you weird then say, “But I don’t own it. The govt does…and you just can’t efficiently infringe/steal from the govt( , Google)”

  40. Anon April 27, 2018 7:51 am

    Sovereign immunity = cannot be IPR’d

    ONLY if the Sovereign exercises its choice of sovereign immunity and does not wave it.

    The branch of the government making THAT choice? – the Executive branch.

    The owner of the “franchise right” is NOT the entity that can make that choice.

    One now only owns the franchise – the underlying item is NOT the franchise, and it is the underlying item that holds the power of sovereign immunity.

    Further, there is NO set-up controlling, directing, or heck, even suggesting when and how the Executive branch chooses to exercise that sovereign immunity.

    The executive branch literally has the power to choose winners and losers from what ANY inventor invents (if that inventor elects to attempt to protect their invention along the patent path.

    In a deeper thought, one has to start wondering how decisions like Stanford v. Roche*** fits into the new regime of Intellectual Franchise….

    Once the Thomas dicta of “patents are still kind of like property in ways we may feel” starts to unravel, any notion of property will (and must) be swallowed by the “Public Rights” franchise view.

    As I have noted elsewhere, there is NO such thing as a middle ground (or hybrid) between “Public Right” and personal property.

    ***Stanford v. Roche as you may recall established that the personal property that starts with an inchoate right and becomes the full legal property right of a patent BELONGS first to the individual that is an inventor – juristic persons (such as a corporation, or a university) CANNOT be that first individual inventor.

  41. angry dude April 27, 2018 9:21 am

    Anon @40

    Thomas has long forgotten about Stanford v. Roche or whatever else Scotus decided before – reconciling or even remembering their own decisions apparently is not their job

    All he can cite now is some falsified drivel from Lemley

    “Joe: “What?” Frito: “And you know what else? I object that he’s not gonna have any money to pay me after he pays back all the money he stole from the hospital!” Joe: “Don’t say I stole. You’re my lawyer.” Frito: “And I object! I object that he interrupted me while I was watching Ow! My Balls! That is not okay! And I rest my case!” (“Idiocracy” – getting there a little by little)

  42. Anon April 27, 2018 11:07 am

    angry dude,

    reconciling or even remembering their own decisions apparently is not their job

    All he can cite now is some falsified drivel from Lemley

    This line of reasoning may surely convert ME to abandon reasoning and adopt a purely “angry dude” mindset.

    I am deeply saddened that you are so correct on this point.

  43. Stephen Tytran April 27, 2018 6:00 pm

    angry dude@34:

    “Reversing Ebay will cause a bunch of folks like myself coming out of woods with very valid and willfully infringed US patents which are essential to the core business of the most powerful tech corporations on the face of the Earth”

    So, it seems you agree with me that eBay and its progeny have had a pronounced negative effect on the value of U.S. patent rights. Not surprising. My observation was hardly earth shattering.

    “Dude, do you have any clue at all ???”

    If, by this statement, you are implying that I believe it highly likely the jurisprudence of eBay will be reversed anytime soon, you have misunderstood me. I was simply expressing my view of what single change in each of the courts, legislature, and Patent Office would, if such change occurred, currently have the most impact on reversing the decline in value of U.S. patent rights.

    Could valuations increase without a reversal of eBay? Certainly. Implementing the changes in post-grant review and 101 practice outlined in my earlier comment could restore valuations to levels near those that existed post-eBay–a time of ex parte and inter partes reexamination and when Alice was a work of fiction from Lewis Carroll.

    The reason I included the eBay decision in my earlier comment was to emphasize an aspect of SCOTUS’ reference in Oil States to patent rights as a public franchise. Namely, while SCOTUS’ characterization of patent rights as a public franchise in Oil States is not new, the characterization makes little sense post-eBay. The hallmark of a public franchise is the right to exclude. Post-eBay, that right for patent owners is all but nonexistent. Perhaps that rationale would have worked better to counter SCOTUS’ reliance on the public franchise argument in Oil States? Doubtful though.

  44. angry dude April 27, 2018 10:05 pm

    Stephen Tytran @43

    Sorry, dude

    Didn’t mean to offend you

    Its just I get very angry each and every time I read about patents

    Government franchise btw is completely inapplicable to utility patents – tech patents specifically
    Pharma patents – maybe, but not hi-tech patents

    Tech patents are very different from pharma patents – each and every hi-tech product uses hundreds if not thousands of patents and each important tech patent can be used in thousands of hi-tech products

    The scotus critters have no clue of course so don’t pay much attention to what they write – it’s all garbage irreconcilable with their own previous decisions

    To the morgue !

  45. Tesia Thomas April 29, 2018 7:25 pm

    @Anon,

    “…there is NO such thing as a middle ground (or hybrid) between “Public Right” and personal property.”
    I agree.

  46. Tesia Thomas April 29, 2018 7:39 pm

    @Anon,

    Why doesn’t the Executive branch just reassign the IP how they want?
    Why go through all of this ceremonious hand-waving called PTAB?

    I think they’re just creating an illusion that they aren’t stealing private citizen’s money.
    Or, why do inventors/private citizens pay the government for what the government owns?

    If private money buys property then it should be private property, should it not?
    Also, why are we compelled to defend that which we don’t own?

    inventor + money + work = patent + more money + more work

    Inventors don’t benefit from this transaction so where’s the incentive as the statute still claims it has?

  47. Anon April 29, 2018 9:44 pm

    Also, why are we compelled to defend that which we don’t own?

    There are MANY ramifications if one truly considers what it means that the government owns the “property” and all that is leased back is a “franchise right.”

    Your comment here is one of them: IF the government deigns to take away a granted (formerly) property right with no accounting, then their granting of that franchise should carry the enforcement costs.

    That sounds entirely reasonable to me.

  48. Tesia Thomas April 29, 2018 11:09 pm

    @Anon,

    Paying to obtain it, maintain it, and paying to defend it.
    The government is making money on both ends.

  49. Anon April 30, 2018 12:17 pm

    Tesia,

    That is a symptom (rather than a cause) of the problem.

    (leastwise, one way to look at “the problem” from a non-government entity viewpoint)

    Prior to my career in law, I had careers in engineering and management. In both of those careers, no one would dream of putting together a “quality program” for an after-market action (analogous to post-grant reviews) that did not directly and meaningfully tie into the production process itself.

    It would be tantamount to admitting that the front end was a “loser” and that the company would “recoup” those losses with more losses on the hind end.

    Such simply would not last long (and rightfully so).

    Perhaps more than ever now (hearkening to your post at 46), were we to switch the money flow – and have the government pay on both ends for development and enforcement (as does private industry), THEN we would be inclined to actually develop the government examination system into an effective process.

    As is, with (as you note), the government being paid on both ends, the examination process has been given the perverse incentive to BOTH do as poorly on the front end as possible and to revoke as much on the back-end as possible.

    Throughout my (third) career in law – and specifically in patent law – I have always pushed for improvements in the patent examination process as THE spot to focus on.

    I remember that during the run-up with the AIA, I was active in talking to all of my government representatives and expressing myself, making clear that I knew each of the various angles, and stressing that the efforts to create a post-grant mechanism were ultimately f001ish and misguided.

    In another manner, the notion of symptom rather than cause is a bit strengthened is that the USPTO is not a profit-center, and works to an allotted budget.

    Of course, this notion is admittedly weakened along a number of factors. First and foremost, the ability of the “general Congress” to siphon innovator funds away from the patent office instills an “unchecked” innovator tax (with NO benefit directed to those whom are paying that tax). In the sense that if the fees charges are more than the budgeted (and actual) outflow creates MORE to take, then those doing the taking will be less inclined to “right the ship.”

    Another factor is that actual examination is hard work, and (for the most part), those who cannot, or who can but do not, choose the non-publication route, the traditional standard Quid Pro Quo has already been obtained from the government’s side WITHOUT ANY WORK. As it is always “easier” to reject (from a number of standpoints), the end result is a lazy office with no real motivation to do the hard work. This means that even the eventual grants may be suspect from a quality standpoint. And of course, this hampers any impetus to focus on that tough job of examination (to make it more effective).

    Lastly, since as long as can be remembered, the Patent Office does not run “in the red,” there is no impetus to make anything in the Patent Office more cost effective to either users of the system, or the system components themselves.

    On that last note, we are even fortunate to have had in place the Office of Management and Budget (separate from the Patent Office) and to which, and with their help, Patent Office suggested rule changes have been shot down. Mind you, these were largely rule changes to make things easier for the sake of the Patent Office (regardless of the mission of promoting innovation). Several others deserve credit by name for efforts aligned with the defeat of these rules packages, chief among them (coming to my mind, and meaning no slight for any of my omissions): David Boundy, Dr. Tafas, and Ron Katznelson (among others).

    One of my pet peeves is a Congress blind to the problems, blind to its own powers being siphoned off by the Judicial Branch, and blind to the mission of advancing innovation (even though we may give “pretty speeches”).

    To me, a singular cause of this malaise (if not deliberate “sabotage”), is the perverse outcome of allowing juristic persons to be treated as equals to real persons when it comes to “voice” in the political system (e.g., Citizens United). Real persons have real limits of voice, time, money and other capabilities that cannot – and never will – match the capabilities of juristic persons. We have become (and allowed ourselves to become) a “Corporatocracy” – which more than anything else DEmotes innovation backwards in time to the time of guilds. It is less an “EVIL” thing and more a pragmatic and rational thing, but we as citizens have permitted our Congress to be captured by these corporate forces. The Judicial Branch has their own agenda and just does not care (as witness the Ends by any Means decisions), and the Executive Branch is “built” to pretty much care only for itself. The Branch built to be MOST responsive on a policy creation viewpoint (to which I put the placement of what emphasis was made for patent reform) is Congress.

    Awhile back I posted a comment on whom to blame: the top three on that list were each of the branches of the government. I do not recall, but should include, ourselves on that list for we receive that which we vote into Office (regardless, despite or in spite of our other actions enabling the Corporatocracy.

    We have met the enemy, and in large part, he is us.

    One critical step in taking this back and being able to take this back is to reign in that outsized Corporate voice.

    Until that happens, our “public servants” will most naturally gravitate to the “loudest” voices: the ka-ching that Corporations will always be able to outspend the individual.

  50. Tesia Thomas April 30, 2018 12:30 pm

    Right.
    And the loudest voices will only continue to grow and move into other areas of the law because what wouldn’t a corporation want to control?

  51. Rao April 30, 2018 9:13 pm

    The argument that patent right is a private property right is flawed and misses the fundamental nature of the patent right –an exclusionary monopoly right limited to a short-term, “the right to exclude others from making, using, offering for sale, selling or importing the invention,” which does not include the right to use, make, sell, or offer to sell. (see INTER PARTES REVIEW (IPR) CONSTITUTIONAL and PATENT IS A PUBLIC FRANCHISE at https://www.linkedin.com/in/vepachedu/)

  52. Gene Quinn May 1, 2018 1:27 pm

    Rao-

    You are incorrect. A patent is NOT a monopoly. See: http://www.ipwatchdog.com/2017/02/25/debunking-myth-patents-create-monopoly/id=78756/

    A patent is a private property right. The statute says so, and the Constitution says so. Nothing you or the Supreme Court says changes that reality. Oil States will be legislatively overruled sooner or later. Only a matter of time.

  53. Rao Vepachedu May 1, 2018 11:25 pm

    Gene-
    Apparently, you have not reviewed or missed the detailed analysis presented at PATENT IS A PUBLIC FRANCHISE (https://www.linkedin.com/pulse/patent-public-franchise-rao-vepachedu-jd-phd-llm/).
    A private property right is a right to sell…, a private property does not depend on prior art, a private property need not be novel and non-obvious in view of prior art, a private property need not be useful, a private property can be hidden in your attic for generations and still be your family property like an heirloom, a private property need not be granted by a government, private property does not need a regulatory approval, a private property is perpetual like a diamond in a ring or a Rembrandt in an attic, a private property need not be invented or dicovered, my blood and body parts are my private property and can be sold or donated, there is government agency to determine if I can sell my private property such as painting that I painted on a canvas, nobody needs a grant from federal agency to sell personal property like necklace or a coffee mug that I own on ebay, such are examples of private property; and the Consitution does not discuss such personal and private property.
    but The Constitution of the United States provides:
    “Art. 1, Sec. 8. 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”; a patent cannot be obtained for my ring, coffee mug, blood or body parts to sell, a patent is an exclusionary right for limited time for a novel, non-obvious, and useful invention granted by a government, and does not give you the right to sell, but only right to exclude others from selling the claimed invention. Congress established the United States Patent and Trademark Office to issue patents on behalf of the government. Applications for patents are examined to determine if the applicants are entitled to patents under the law and patents are granted when applicants are so entitled.
    In the language of the statute, any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,” subject to the conditions and requirements of the law. In order for an invention to be patentable it must be new as defined in the patent law, which provides that an invention cannot be patented if:

    “(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention” or

    “(2) the claimed invention was described in a patent issued [by the US] or in an application for patent published or deemed published [by the US], in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.”

    The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. https://www.uspto.gov/patents-getting-started/general-information-concerning-patents#heading-4
    Although a patent allows an inventor to exclude others from using or selling the invention without permission, it is not a monopoly in the antitrust sense. Patent law limits the advantage that a patent confers, and an inventor does not have exclusive rights to his invention forever. Once the term of the patent expires, the invention is in the public domain and may be used or manufactured by anyone. When the governing authority grants a patent, it trades off short-term
    exclusive (monopoly) rights to the use of an invention in return for two things: 1) an incentive to create the invention and 2) early publication of a description of the
    invention rather than the use of secrecy to protect its misappropriation. Patent is Quid Pro Quo and Time-Limited Monopoly: https://www.uspto.gov/sites/default/files/about/offices/ous/Cooper_Union_20130604.pdf; The Use and Value of Patent Rights: https://www.uspto.gov/sites/default/files/aia_implementation/ipp-2011nov08-ukipo-2.pdf
    https://www.uspto.gov/about-us/news-updates/acquisition-management-and-enforcement-intellectual-property-global-antitrust

    Now, critics of our patent system point to the patent’s grant of exclusivity as a monopoly. And they are right to a point. That grant of exclusivity inhibits competitors and allows the patent owner to charge supra-competitive prices, but only for a limited time. But we accept the monopoly because of our strong conviction that the long-term benefits to society outweigh the costs. Innovation today means that we will have even more innovation tomorrow. And the higher prices we pay for patented goods and services today are an investment for the future. https://www.uspto.gov/about-us/news-updates/speaking-truth-patents-case-better-patent-system

  54. Gene Quinn May 2, 2018 12:09 pm

    Rao-

    I didn’t miss anything, and you are still wrong. And frankly I don’t even know how to respond to your rant.

    First, A patent is NOT a monopoly. No matter what you say or how many times you say it, a patent will never be a monopoly. If you don’t understand that it is your issue. Your lack of understanding doesn’t make me wrong, it merely means you don’t understand the nature of a patent, the nature of a patent, and the business realities of innovation.

    Second, the statute – 35 U.S.C. 261 – is extremely clear. A patent is property. The Constitution is extremely clear. The only place the word “right” appears in the Constitution itself is with reference to protecting patents and copyrights.

    Fool yourself if you wish, but you are wrong.

  55. Anon May 3, 2018 6:41 am

    Rao’s views require us to take a gander at his background for the source of his confusion.

    His view of patents is not based on the patents as advanced by the U.S. Sovereign. Sure, he “reaches over” and pulls some quotes from the USPTO, but this only confirms that the basis and foundation of his views are NOT in alignment with the US Sovereign foundation view of patents. He also appears to be engaged in logical fallacies of what a private property must be, casting the attributes of patents as items fall outside of this (self-declared) “must-be” zone.

    His paper, if redrafted appropriately, may merit some consideration if one to engage in some comparative analysis, but as is, is simply in error.

  56. Alan Minsk May 3, 2018 1:42 pm

    This decision has implications for both IP law and others areas. If a patent is a government granted franchise and not, as had been assumed, a form of personal property, then can its use or disposition after grant be regulated further by the government? Can any attempt at use or disposition be subjected to evaluation based on whether that use or disposition conforms with the purposes behind the creation of the franchise? Would this provide a basis for the regulation of NPEs, particularly those that do not fully disclose information about their operations?

    This decision may imply that the “takings” jurisprudence either does not apply to patents or might have to be adjusted to redefine a taking in the context of a government granted or created right or benefit.

  57. Rao Vepachedu May 4, 2018 4:12 pm

    Gene:
    “Fool yourself if you wish” and according to US Sovereigns like Anon, I may be of an American with Alien Pedigree – with worthless and criminal degrees from Howard or Osama – but the Constitution of US and USC says different from what you say.
    35 US Code § 261 – Ownership; assignment
    Subject to the provisions of this title, patents shall have “the attributes of personal property.” The Patent and Trademark Office shall maintain a register of interests in patents and applications for patents and shall record any document related thereto upon request, and may require a fee therefor.
    Applications for patent, patents, or any interest therein, shall be assignable in law by an instrument in writing. The applicant, patentee, or his assigns or legal representatives may in like manner grant and convey an exclusive right under his application for patent, or patents, to the whole or any specified part of the United States.
    A certificate of acknowledgment under the hand and official seal of a person authorized to administer oaths within the United States, or, in a foreign country, of a diplomatic or consular officer of the United States or an officer authorized to administer oaths whose authority is proved by a certificate of a diplomatic or consular officer of the United States, or apostille of an official designated by a foreign country which, by treaty or convention, accords like effect to apostilles of designated officials in the United States, shall be prima facie evidence of the execution of an assignment, grant or conveyance of a patent or application for patent.
    An interest that constitutes an assignment, grant or conveyance shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice, unless it is recorded in the Patent and Trademark Office within three months from its date or prior to the date of such subsequent purchase or mortgage.

  58. Rao Vepachedu May 4, 2018 4:14 pm

    Gene:
    “Fool yourself if you wish” and according to US Sovereigns like Anon, I may be an American with Alien Pedigree – with worthless and criminal degrees from Howard or Osama – but the Constitution of US and USC says different from what you say.
    35 US Code § 261 – Ownership; assignment
    Subject to the provisions of this title, patents shall have “the attributes of personal property.” The Patent and Trademark Office shall maintain a register of interests in patents and applications for patents and shall record any document related thereto upon request, and may require a fee therefor.
    Applications for patent, patents, or any interest therein, shall be assignable in law by an instrument in writing. The applicant, patentee, or his assigns or legal representatives may in like manner grant and convey an exclusive right under his application for patent, or patents, to the whole or any specified part of the United States.
    A certificate of acknowledgment under the hand and official seal of a person authorized to administer oaths within the United States, or, in a foreign country, of a diplomatic or consular officer of the United States or an officer authorized to administer oaths whose authority is proved by a certificate of a diplomatic or consular officer of the United States, or apostille of an official designated by a foreign country which, by treaty or convention, accords like effect to apostilles of designated officials in the United States, shall be prima facie evidence of the execution of an assignment, grant or conveyance of a patent or application for patent.
    An interest that constitutes an assignment, grant or conveyance shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice, unless it is recorded in the Patent and Trademark Office within three months from its date or prior to the date of such subsequent purchase or mortgage.

  59. Rao Vepachedu May 4, 2018 9:14 pm

    EDITORIAL NOTE: Comment deleted. Unacceptable rant that interjected “birther” issue into this patent matter.

    -Gene

Post a Comment

Respectfully add to the discussion.

Name *
Email *
Website