Class Action Lawsuit Filed Against U.S. Government Alleging PTAB Violates Takings Clause and Due Process

By Steve Brachmann
May 11, 2018

On Wednesday, May 9th, Oklahoma-based patent owner Christy Inc. filed a class action complaint in the U.S. Court of Federal Claims against the United States seeking just compensation for the taking of the rights of inventors’ and patent owners’ patent property rights effectuated by the Patent Trial and Appeal Board (PTAB). Members of the proposed class would include all owners of patents which were deemed by the U.S. Patent and Trademark Office to include patentable subject matter which were later invalidated by the PTAB.

In the class action suit, Christy is asserting claims against the U.S. government founded upon the breach of express or implied contract claims to which the U.S. is a party, the Takings Clause of the Fifth Amendment as well as violation of due process. The contract claims at issue include the agreement by the government to issue patents with specific claims which are covered for a specific period of time in exchange for the patent owner’s payment of issuance and maintenance fees; Notice of Allowance and Fee Transmittal forms represent the express or implied contract made by the patent applicant or owner with the U.S. government.

The basis of this legal action on due process and Fifth Amendment grounds was recently presaged by the U.S. Supreme Court’s holding in Oil States v. Greene’s Energy Group, where the majority opinion held that patents are not precluded as property under either of those legal concepts. Christy’s class action suit claims that the amount owed by the U.S. government to class members is greater than $100 million.

The particular case involving Christy leading up to the class action suit is one that should reverberate with many patent owners who have seen the U.S. government strip their patent rights after they paid a great deal of money to obtain that patent, assert that patent in district court and then defend the validity of that patent at the PTAB. In August 2006, Christy was assigned U.S. Patent No. 7082640, titled Ambient Air Backflushed Filter Vacuum. It covered a vacuum cleaning machine with a canister, an inlet port and at least two outlet ports configured to backflush a vacuum filter with ambient air, clearing dust or other particles which have formed on the filter without creating turbulence in the vacuum’s collecting canister. Christy’s class action suit notes that it had entered into at least one licensing agreement granting a party the right to practice the technology covered by the ‘640 patent in exchange for royalty payments.

In September 2014, Christy and patent licensee CDC Larue Industries asserted the ‘640 patent against Black & Decker in the District of Oklahoma. CDC and Black & Decker entered into a business agreement in December 2008 which enabled Black & Decker to gain access to information regarding CDC’s Pulse-Bac vacuum filter cleaning technology covered by the ‘640 patent. Black & Decker entered into that agreement ostensibly to explore a possible business venture with CDC but the company instead decided to infringe the ‘640 patent by designing a dust extractor which it released in 2012 under the DeWalt 10-Gal Dust Extractor with Automatic Filter Clean trade name.

On December 19th, 2014, Black & Decker filed two petitions for inter partes review (IPR) proceedings at the PTAB to challenge the validity of the ‘640 patent; the petition was filed prior to discovery in the district court case. On June 24th, 2015, the PTAB instituted IPRs on all claims challenged by Black & Decker’s petitions. In final written decisions issued by the PTAB on June 17th, 2016, the PTAB invalidated all challenged claims of the ‘640 patent as either anticipated by prior art under 35 U.S.C. § 102(b) or obvious under 35 U.S.C. § 103.

As a result of the IPR proceedings conducted by the PTAB, Christy no longer has any recognized property rights to the invention claimed by the ‘640 patent. The USPTO has not provided “any compensation, never mind just compensation,” to Christy or any other patent owner who has lost their property rights as a result of the PTAB, nor has the agency compensated patent owners for fees spent defending the PTAB trial, monies invested in developing the underlying technology, or any refund of issuance and maintenance fees paid to the USPTO. As an example of those costs, Christy notes that it had paid maintenance fees on three different occasions in the total amount of $5,990 to maintain the ‘640 patent.

“Undeniably, the PTAB is a money printing machine for the USPTO,” Christy’s class action complaint reads. Christy notes the filing fees paid by petitioners to the PTAB; parties seeking IPR proceedings like the one pursued by Black & Decker pay $9,000 to request the IPR (plus $200 for each claim challenged in excess of 20 claims) and a $14,000 fee post-institution (plus $400 for each claim challenged in excess of 15 claims). Fees for post-grant review (PGR) and covered business method (CBM) reviews are higher. Given the 8,210 PTAB petitions filed through April 12th of this year, 4,256 of which have been instituted, “the PTAB appears to have been paid almost $140 million dollars associated with PGPs” to fix supposed errors in patent grants issued by the USPTO. “To make matters worse, while PGP petitioners can be reimbursed for certain fees paid by a petitioner if institution is denied or partially denied on their petition, a patent owner is not reimbursed for any of the issuance or maintenance fees if a patent and/or claim of theirs is invalidated,” Christy’s class action suit reads.

“Having a patent issued in your favor in the United States is a birthright for many inventors and business owners in the United States,” Christy notes. The process of getting and maintaining a patent had been substantially similar since the founding of the United States up to 2011, when the Leahy-Smith America Invents Act (AIA) created the PTAB and the IPR, PGR and CBM trials it conducts. These PTAB proceedings have “completely decimated the value of issued patents” by becoming a patent death squad which has invalidated 77 percent of all claims it has been petitioned to review; further, only 4 percent of PTAB petitions result in all claims being upheld. “Indeed, it has been estimated that the damage to the economy resulting from the creation of the IPR process alone is equal to around $1 trillion dollars,” Christy’s suit reads.

Christy argues that the most disturbing aspect of the entire PTAB regime under the AIA is that property rights were granted and then taken away by the government without just compensation as required under law. This has happened despite long-standing policy of encouraging investment in patented technologies through the patent grant and the presumption of validity which patents had enjoyed prior to passage of the AIA. “Also at the center of this lawsuit is the public (and shocking) admission by the USPTO that [post-grant proceedings] are designed to invalidate patents that were erroneously granted in the first instance,” Christy alleges, noting that such an admission was acknowledged by multiple Supreme Court justices during oral arguments in Oil States.

“Naturally, if this is the case, then the USPTO should never have collected (or be allowed to keep) any issuance fees or maintenance fees for any of the patents and claims that have been invalidated in any PGP process, and the patent owners of these patents should never have had to defend these patents (which were rightfully and reasonably defended because each of them was presumed valid by statute) in the PGP proceeding, which often costs hundreds of thousands of dollars in attorney fees and expenses to defend. But for the fact that the patents were issued (and a property right granted in the first place), the patent owners would not have invested the time, resources, and money into the subject inventions and the monetization of those inventions, whether through product development or otherwise.”

Randy Landreneau, President of inventor advocacy group US Inventor, issued the following statement on the news of Christy’s class action lawsuit against the U.S. government:

“After putting what it takes into inventing, getting a patent, and starting an enterprise, to then have it all taken back by the same agency that granted it is breathtaking. These plaintiffs understandably feel betrayed. The USPTO should not be in in the business of invalidating issued patents.”

The Author

Steve Brachmann

Steve Brachmann is a writer located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He has become a regular contributor to IPWatchdog.com, writing about technology, innovation and is the primary author of the Companies We Follow series. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients.

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 44 Comments comments. Join the discussion.

  1. Brian Keith Buchheit May 11, 2018 9:29 am

    Question for discussion,

    I noticed on another Patent blog site, there appeared to be skepticism on the merits of this case. I did not see any discussion (or read in the referenced class action complaint) a distinction in the burden of proofs (preponderance of evidence verses clear and convincing), claim interpretation (BRI at PTAB) and the lack of presumption of validity. My thoughts (which I wanted to hear commentary on) is by definition some patents deemed allowed in Court are not allowed by PTAB on the exact same facts, given the above. My understanding of Oil States is that Congress has allowed this delta per the patent “franchise”, which is fine. However, for granted patents that would have been valid in court by the Court standards but found invalid by PTAB under lessor standards – there is a taking. But for congresses action (and PTAB decision authorized by law), the full value of the patent in question would be available to the owner, which has been taken by the Government nonetheless. I understand that an individual determination (not a class action) would be likely required as each individual patent invalidated by the IPRs will be positioned differently. The “best” case for the above noted legal takings theory would be a court determined valid patent (that was valid on appeal) that was revoked under the PTAB (and affirmed on appeal – on the same basis previously affirmed), which exists for a few noted cases.

    Thoughts ?

  2. Anon May 11, 2018 9:57 am

    A question to consider:

    What is taken when?

    (there IS more than one act of “taking” going on)

  3. JimmyN May 11, 2018 10:25 am

    I made a similar comment the other night (May 9) on one of Gene’s article that falls in line with looking at other avenues such as a breach of contract

    ********
    If the SCOTUS is calling patents a franchise right, does that mean that it is a contract between the government and the patent owner? If so, does that mean patent owners can sue the federal government for a breach of contract if they invalidate a claim?

    I went back through and look at my notices of allowance document and my actual granted patent and nowhere in the documents/contracts does it state that the government has a right to change the contract after granted/issued. Yes the government can change it mind during a 3 month period between notice of allowance and actual issue, but beyond that, nothing else. First part of the contract was the notice of allowance, I paid the fee for the patent/contract to be issued. Second part of the contract is I received the issued patent.

    Additionally, the cover of the patent/contract states:

    The Director of the United States Patent and Trademark Office has received an application for a patent for a new and useful invention. The title and description of the invention are enclosed. The requirement of law have been complied with, and it has been determined that a patent on the invention shall be granted under the law.

    Therefore, this United State Patent Grants to the person(s) having title to this patent the right to exclude others from making, using, offering for sale, or selling the invention throughout the USA or importing the invention into the USA, and if the invention is a process, the right to exclude others from using, offering for sale or selling throughout the USA or importing into the USA, products made by that process, for the term set forth in 35 USC 154(a)(2) or (c)(1), subject to the payment of maintenance fees as provided by 35 USC 41(b). See the Maintenance Fee notice on the inside of the cover.

    As a contract, it’s pretty straight forward. I applied with ALL laws and I am granted the right to exclude others for a set term of time as long as I pay the maintenance fees. A valid contract contains an intention to create a legal relations, an offer, an acceptance, and consideration…. All four elements are covered from the notice of allowance and the issue.

    So if it is considered as a contract, does that also mean that I can take legal action against anyone filing an IPR for interfering with an existing contract (between myself and the patent office)? Maybe the decision by the SCOTUS means we need to think outside the box…

  4. Anon May 11, 2018 10:44 am

    Tortious interference with the contract likely will NOT reach – based on the “public policy” directives of the judicial branch.

    Like it or not, the judicial branch does NOT respect this type** of property.

    (**note that by type I include both of the different types of property of Franchise and Personal, even as I reserve the distinctions between these two very different types. I do this so that the argument of Greg DeLassus is made moot for the immediate point while preserving the point that he as of yet has not deigned to answer)

  5. Chris May 11, 2018 10:57 am

    What they did not tell you is that the PTAB judges are mostly ex google employees, and are, what can we say, less than knowledgeable of what they are judging over, as for us, the two ladies that Skyped in and you could hear kids in the back ground, they didn’t even understand Fluid dynamics, which our patent depends on. We had one judge in the courtroom and 15 minutes to explain and defend a patent that took three years for the Patent Office to review, understadn and grant. No reason for why they did what they did, same with the appeals court that was involved. IT IS ROBBERY! Plain and Simple!

    Chris
    Owner
    Christy Inc.

  6. EG May 11, 2018 11:30 am

    Hey Steve,

    Like others, I’m dubious whether this class action filed in the Court of Claims is the best way to test the majority statement in Oil States that the question of IPRs as impacting Due Process and the Takings Clause in the 5th Amendment is still fair game. But I’ll at least give them credit for testing whether this statement is for real, or is just so much malarkey from the Imperious Seven.

  7. Curious May 11, 2018 11:33 am

    All I have to say is good luck with this, I think you’ll need it. This isn’t to say anything about the merits of the case — just the direction of the prevailing winds from SCOTUS (and the other Courts) that are not in favor of this suit prevailing.

  8. Greg DeLassus May 11, 2018 11:40 am

    @3 “If the SCOTUS is calling patents a franchise right, does that mean that it is a contract between the government and the patent owner?”

    Huh? This is a complete non sequitur. Franchise rights are not contracts. You might want to read Blackstone (III:16) “disturbance of franchises happens, when a man has the franchise of holding a court-leet, of keeping a fair or market, of free-warren, of taking toll, seizing waifs or estrays, or (in short) any other species of franchise whatsoever; and he is disturbed or incommoded in the lawful excercise thereof.”

    Note the specific examples that Blackstone gives of a “franchise” right: the right to hold court, to hunt in a free warren, to collect bridge tolls, etc. These are not rights for which one contracts. These are rights that the government assigns to particular individuals or companies. When the SCotUS styles patents as “franchises,” this does not imply that anyone has contracted for them. Rather, the word “franchise” conveys that the government has allotted each patent right to a specific set of individuals or companies. Moreover, a franchise is assignable and transferable, like any other species of intangible property (but unlike a contract, unless the contract makes provision for its assignability).

  9. Invention Rights May 11, 2018 12:15 pm

    First commenter Brian hit the nail on the head. There is no doubt that many many of the patents killed by the PTAB are in fact valid. A so called expert declaring something obvious does not make it so. Giving the PTAB the power to cancel a franchise is one thing. Assuming their speculation on what might have been obvious 10 or 20 years ago to be the law is a different thing entirely. Especially considering they rendered that subjective opinion without all the evidence, without live testimony, without judicial independence, without following the law on presumption, and without a jury.

    It is probably a taking. But how will the plaintiffs prove it? Virnetx, WesternGeco, Smartflash, maybe a few others have actual proof that takings occurred. Pehaps the other plaintiffs could file Declaratory Judgments to have their cancelled claims independently evaluated?

  10. Bemused May 11, 2018 12:24 pm

    Chris@5: Best of luck with this lawsuit and thank you for taking the time and effort to bring it (regardless of what other folks – with little or no time spent reading or understanding the underlying merits of the complaint – think about the odds for success).

    At a minimum, suits like these allow inventors to keep getting the story out there about the egregious conduct of the USPTO/PTAB.

  11. angry dude May 11, 2018 2:16 pm

    “Claim 1: A vacuum cleaning machine comprising a cannister having an inlet port and at least two outlet ports, at least two filters disposed inside of said cannister, one in pneumatic communication through a corresponding one of each of said outlet ports, a vacuum source, at least two valves disposed outside of said cannister, each said valve being in pneumatic communication between said vacuum source and a corresponding one of each of said outlet ports and permitting air to be drawn by said vacuum source from said inlet port simultaneously through corresponding ones of said filters and means for sequentially operating said valves to switch said filters from connection to said vacuum source to connection to ambient air and permitting ambient air to be drawn through corresponding ones of said valves and said filters which are connected to ambient air by said vacuum via corresponding ones of said valves and filters which are connected to said vacuum.”

    I see no reason at all to revoke this claim for any kind of novelty or obviousness consideration unless they can find almost “identical” machine in the prior art of VERY crowded field of vacuum cleaners

    *identical* I mean

    Sorry Chris,

    you are just a collateral damage in this (lost by us) war of google, amazon and other SV tech giants against guys like me with patents not on vacuum cleaners but on foundational technologies inside smartphones etc.

    those PTAB retards know sh1t about fluid dynamics for sure

    They should be able to explain the difference between “laminar” and “turbulent” flow before they re even allowed to read any mechanical engineering patents

    YEAS, IT IS ROBBERY !

    To the morgue !

  12. Anon May 11, 2018 6:58 pm

    Mr. DeLassus,

    You may want to realize that your admonition of reading Blackstone may be wanting a reading that is out of context. As has been pointed out, you wish to hang on a term that served a particular contest some 140 years ago or so, and not pay attention to the intervening time frame as to how the term has changed meaning – and that IN CONTEXT, that term is simply no longer appropriate.

    As has also been pointed out, intervening Court use has also been to use the term “patent monopoly.”

    In 1952, Congress acted to set the record straight.

    It is rather incongruent to pretend that such did not happen, and to further pretend that the Oil States case changes nothing in direct light of BOTH words of Congress and words of the Court AFTER the time that you continue to quote from.

    Those that know or understand law can easily see that all you are doing is blowing smoke with your attempted reference to such old cases or to “Blackstone” while NOT paying heed to more recent items that are more on point.

    This type of pretending does only one thing: hurt your own credibility.

  13. JX May 11, 2018 10:12 pm

    Patents are just one bit of a much larger trend, as this seasoned Constitutional Lawyer illustrates, its not only IP that’s being taken: https://rutherford.org/publications_resources/john_whiteheads_commentary/were_all_trespassers_now_in_the_face_of_the_governments_land_grabs_short

  14. Tim May 12, 2018 7:28 am

    Chris, ask any of us that owned stock in Vringo and won the huge “Vringo vs IP Internet”. Many shareholders had over 6-digit figures $$ in the company stock. And we beat Google, AOL, Gannett and Target with a 12-man jury in Judge Jackson’s Norfolk, VA Ct.. Google’s lawyers had the patent pulled at least 5 times from the USPTO. This was over the add-words program, which Andrew Lang invented, and he “as far as I know”, still work’s for Vringo, now XSPA (symbol). We won on every single count. Only to have Google take the case to the corrupt judges, “Mayer & Wallach” at the Appeals Court, and toss the case out the window. The only judge qualified to be in the room, was Judge Chen, who had a background in computer engineering, and he highly dissented against the other 2 thieves. Unfortunately, Atty David Buies took the case to the US Supreme Ct, and it wouldn’t be seen. Google is part of the swamp. This entire link should be sent to the WH Chief of Staff and put on President Trump’s desk. I’d just like to see this corrupt bunch in Leavenworth and get my cash back!

  15. Anon May 12, 2018 10:07 am

    Thanks for the link, JX.

    I would recommend the following pages related to the Rutherford Institute efforts:

    https://www.rutherford.org/constitutional_corner/amendment_ix_rights_retained_by_the_people

    Emphasizing the “personal” nature that formed the basis of the inchoate right (of real person inventors) and rejects a modern Statist view that permeates a Public Rights view that so infected the Oil States decision; and

    https://www.rutherford.org/constitutional_corner/citizens_toolbox_what_you_can_do_to_save_america

    Especially points 8-11 (to answer angry dude in particular, and the natural reaction in the face of repeated horrible Supreme Court nose-of-wax mashings).

  16. Mark S. Graham May 12, 2018 2:12 pm

    It should have been apparent from the beginning that the BTAB has no constitutional grounding to be doing what it is and has been doing is-a-vis issued US patents in an inter partes setting, period! The whole thing is and has been a farce.

    Attacking this problem on contractual basis makes sense, and just adds to the unfortunate confusion that seems to pervade this matter. Patents are property rights (“exclusive use”) issued by a Government agency pursuant to Congressional enactment of laws fulfilling a Constitutional mandate. It is that simple. Those who suggest patents “franchises” or “monopolies” lack understanding.

    The patent property right cannot lawfully be abridged, negated, or “taken” away except by unilateral action of the property owner and/or by an Article III Court.

    I fear we will not be able to rectify this entire PTAB misadventure until the people with voice and power gain understanding and begin to steer this debate above and away from the current near deafening noise level of misinformation and ignorance that is driving this discussion into many unproductive areas.

  17. Anon May 12, 2018 2:39 pm

    Mr. Graham,

    You misspeak. The government may engage in takings outside of the judicial branch.

    That being said, there are clear requirements to be met for any such takings.

    The questions to the judicial branch still have not been asked correctly.

  18. Greg DeLassus May 12, 2018 3:05 pm

    @16 “Patents are property rights (‘exclusive use’) issued by a Government agency pursuant to Congressional enactment… Those who suggest patents ‘franchises’… lack understanding.”

    This is rather like saying “beef is a nutritious food that come from an animal source. Those who suggest that beef is a ‘meat’ lack understanding.”

    Just as the definition of meat is “food from an animal source,” so too the definition of franchise is “property rights (‘exclusive use’) issued by a Government agency.” See, Bloomer v. McQuewan, 55 U.S. 539, 549 (1852) (“The franchise which the patent grants, consists altogether in the right to exclude…”).

  19. Mark Graham May 12, 2018 3:13 pm

    Apologies for my typos. Should have been: “Attacking this on a contractual basis make[“NO] sense.” And, “patents [are] a ‘franchise’….”

    To this commenter who said I misspoke, and that “The government may engage in takings outside of the judicial branch,” kindly explain how the “Government” can lawfully “take” an issued patent except via action of an Article III court with the associated assurances of due process, etc.

  20. JX May 12, 2018 3:53 pm

    Is 42 USC 1983 applicable ?

  21. JX May 12, 2018 4:06 pm

    I ask, in #20 above, because patents are not inalienable rights bestowed upon Many by his Creator, but are instead granted by government, which makes them civil rights.

  22. Mark Graham May 12, 2018 4:09 pm

    With respect, the label “franchise” is inappropriate as applied to an issued US patent, and labeling it as such really does cloud the issue. See Gene Quinn’s article on this Blog dated May 1, 2018.

    Anyone who practices patent law knows (or should know) that a patent is not an affirmative right to engage in any activity, other than to enforce its exclusionary scope against others who invade it without authorization. Hence, all the nonsensical hysteria about so-called “patent trolls,” which, if the truth be known, is a label that could be applied to DuPont and hundreds of other fine US companies who have legitimately enforced exclusive rights in patents without themselves actually practicing the subject matter claimed, and have advanced the science of useful arts by making disclosures of new, nonobvious, and useful technologies to “feed the engines of commerce.”

    Again, calling an issued US patent a “Government franchise” is just plain wrong and indefensible. And for SCOTUS to say a patent is not “property” is, well, it is also plain wrong, and is very distressing.

    When will all the spreading of this “patent misinformation” STOP! The nonsense filling the airways about patent law is like crabgrass. It is choking out the good grass.

  23. Anon May 12, 2018 4:31 pm

    Mr. DeLassus @ 18,

    Your analog has already been debunked – you attempt the one-way analogy in the wrong direction, presupposing that one form of property (franchise – which must be taken in the modern context, as that is the context used by the Supreme Court) is every bit as equal as another form of property (personal property – which of course, is ludicrous).

    Mr, Graham @ 19, I will simply refer you to Takings Law – there are plenty of examples of the government engaged in a takings, Some are shown to be proper while others are not. This is NOT an area of law that “patents” have exception to, and verily – as property – fully fall within the overall coverage of Takings Law. (beyond the small point, I think we are fairly aligned – Mr. DeLassus has been a rather vocal misinformation source, and would love to see him actually start engaging on the counter points presented to him, instead of seeing him jam his fingers in his ears and bray his one-point view over and over and over)

    JX @ 20/21, Let me see if you can flesh out your angle a bit more after reading: http://www.constitution.org/brief/forsythe_42-1983.htm

    What is the importance of your emphasis on the (changed?) nature of a patent right from a personal property right to a (public?) franchise right (thereby, being as you put it, a civil right)?

  24. JX May 12, 2018 4:47 pm

    Thanks Anon @23. Its no simple matter, the gentlemen in the attached link appears to have analyzed it well. Something tells me there’s a legal remedy hidden in all of this, and that stating the claim correctly will be the trickiest part, if a 12 b 6 failure is to be avoided. https://takecareblog.com/blog/scotus-severely-narrows-civil-rights-suits-against-federal-officers

  25. Greg DeLassus May 12, 2018 4:50 pm

    @22 “[F]or SCOTUS to say a patent is not ‘property’ is, well, it is also plain wrong, and is very distressing.”

    Well, yes, if the Court had said as much, it would be distressing and wrong. As it happens, however, the Court said just the opposite. “[O]ur decision should not be misconstrued as suggesting that patents are not property for purposes of the Due Process Clause or the Takings Clause.”

  26. Anon May 12, 2018 6:39 pm

    Mr. DeLassus @ 25,

    You seem to want to elevate the Thomas dicta to be something beyond mere (and quite ineffectual) dicta.

    While not directly countering your “franchise is ok, because franchise is still a type of property” ( which does not</b. faithfully address the change from personal property to franchise property), the attempted thrust of the post indicating that SCOTUS is saying "patents are not property" should be understood to be saying "patents are not personal property.”

    Your penchant for pretending is nothing more than subterfuge at this point.

  27. JX May 12, 2018 7:51 pm

    @ De Lassus,25. above, re

    “[O]ur decision should not be misconstrued as suggesting that patents are not property for purposes of the Due Process Clause or the Takings Clause.”

    Indeed. I view that as an invitation for review of a proper case to be brought before the high court, how long that may take is anybody’s guess. Nevertheless, its an opportunity and hopefully the right people will pursue it for the right reasons. The cynic in me suggests that if the Public had properly expressed its interest, AIA would have never passed Congress. I see where groups of Bikers have trekked into the District for various protests, can you imagine “Bikers for Patents” and 100,000 Harleys show up at the PTO ? I think not, but was worth the chuckle… but they maybe should consider it. Maybe every patent lawyer should buy a Harley, and let’s ride. Or at least, hire a second.
    The patent rights of individuals should be preserved and protected, our system has been the light of the intellectual world for a long time, let’s do all in our power to keep it burning. There is a great deal at stake here for all our children, we are all stakeholders in this, and few things are more important than their future.

  28. JX May 12, 2018 9:30 pm

    No reasonable person from my day would ever imagine a law such as this would be conceivable, let alone necessary https://www.zerohedge.com/news/2018-05-12/kansas-police-no-longer-allowed-have-sex-people-they-pull-over

    Preposterous. How few today amongst the learned class know the connection between Lord Shelburne, Adam Smith, Jeremy Bentham and Karl Marx. Most interested mostly in their own vineyard, as am I. But to isolate a single controversy and microscopically examine it , is as irrelevant as the stock price or income statement of any Company X you may choose to look at – the trend is what matters. Fortunately, the Benthamites latest ploy has by now brought the patent lawyers to take some notice, argue amongst themselves as they may over piddances, at least they’re on notice, the cheese of their bailiwick is being relocated. Reminds me of an old Harvard Law Review from 1910 that said “Jurisdiction in Rem depends solely upon the physical control of the Res by the Sovereign exercising jurisdiction” That was before the Aldrich act, the 16 & 17th amendment, etc. Think about that, and ask, where your own personal Res may be. I guarantee you, its not where I want mine. My res belongs at home, or where I personally choose. Sadly, Am. Jur. is never cited in any case, there is no longer any American Jurisprudence, but those interested might look back at what Am. Jur. was. Realize, fighting the Commerical Law Merchant can be done, but it takes amazing balls in this day, which most lawyers don’t have just because of their upbringing and don’t shodder me on that, just how the system coddles the next gen. @ Graham above, Graham’s and Elliott’s are border reivers, look it up, you are my cousin, we probably look like cousins. I’m pleased that finally some patent lawyers are growing some thrust, you’re smarter than you think, and more powerful than you know. Thanks much to Gene Quinn, he’s been spot-on in everything he ever wrote that I saw, otherwise I would have challenged him. Still waiting for him to f=up so I can come in…… Meantime, celebrate the fact you can’t pay your debts at law any longer since Roosevelt, you can only discharge your obligations in Equity. sucks in my opinion. Land is land, sea is sea.

  29. Anon May 13, 2018 1:06 pm

    Gene,

    A post of mine has run into the “Page has Moved” problem again.

    Please check your web site’s “contact us” in-box for that post in a form that may allow you to “cut and paste” the post here.

    Thanks

  30. angry dude May 13, 2018 4:19 pm

    JX @27

    “Maybe every patent lawyer should buy a Harley, and let’s ride”

    I hear you, dude 🙂

    But not just patent lawyers – inventors too…

    Buying used Harley is a LOT better investment than obtaining US patent

    Heck, for the price of just one patent you can organize your own small MC gang
    and ride around with some blonde p***** instead of being a cynical nerd with drained bank account and “loser” written all over you

    Young blonde p***** don’t date losers

    Perhaps you should start giving this advice to your prospective patent-seeking clients 🙂

  31. Anon May 15, 2018 8:06 am

    JX,

    While I find your views compelling, I am “troubled” (just a tiny bit) by the notion of “No reasonable person from my day…”

    Which day is that?

    Each “day” has its own “villains,” its own oversights, and I think it to be a bit of a fallacy to presuppose that one “day” was any more “golden” than this “day” (especially seeing as you belong to BOTH days equally).

    Apologies for the brief interlude, now back to battle.

  32. Anon May 15, 2018 8:07 am

    Mr. DeLassus,

    When will you engage? Or is your version of “Franchise” and the selective context that you wish to pigeonhole simply going to ignore all of the problems with your “answer?”

    Let’s take for a quick example, your wish to provide examples of a proper “Franchise.” EACH and every example you provide has ZERO origination of the item being franchised to the franchisee.

    Zero.

    EACH and every example may be “deigned” to whomever the State wishes to deign the item to.

  33. Anon May 15, 2018 8:08 am

    Your view runs parallel then to the absolute de-personalizing of, the removal of, the very essence of patents as necessarily having a genesis in a real person: the Lockean nature of inchoate rights that inures to innovation to which the real person who innovates has his claim.

    As has been pointed out, this “de-personalizing” can be thought of as a change (and make no mistake, Oil States IS a change in patent law, a change at the very core of patent law).

    In order then to come back to the context of what a patent is and what a patent MUST involve (a real person innovator), and in order to step away from the “pure” context of Blackstone “franchises,” one must provide for the limitation of just who may receive any such “franchise,” one must step away from the “franchise” as Mr. DeLassus wants to use the term, and step towards a contract.

  34. Anon May 15, 2018 8:09 am

    The contract nature is BECAUSE a real person (the innovator) MUST be involved.

    The State does NOT sui generis and of its own accord create anything resembling the basis of the patent right. That basis is Lockean in nature, and that is why the aspects of personal property are key – and are directly NOT supported by the attempts to “rebirth” a term that does not – and cannot – be taken in the context to which Mr. DeLassus wishes to spin.

    Mr. DeLassus has recently attempted to dissuade people from being upset about the Oil States decision by attempting to equate one form of property (franchise) as being the same as another (personal). Oddly here, he also wants to differentiate one form of property (contract) from his choice (franchise). I noted his attempt at this (disingenuous) logic of improper one-way analogy being applies without critical thought along a two way vector previously. But that SAME logic that he would embrace would work against how he wants “contract” to be not applicable. Where is his “logic” now?

  35. Anon May 15, 2018 8:10 am

    That contract nature has been recognized from Day One of the US Sovereign system in the terms of “Quid Pro Quo.”

    That contract nature has been recognized from Day One of the genesis of the US Sovereign authority to NOT create the right that which is being protected with patent laws, but instead to preserve (by transforming the inchoate into a full legal personal property right) that which IS the individual’s as opposed to that which is the State’s.

  36. Anon May 15, 2018 8:10 am

    Mr. DeLassus, your penchant for quotes of “Franchise” themselves do not take into context the longer running, and the deeper, FAR more bedrock nature of patents being concerned with Lockean concepts.

  37. Anon May 15, 2018 8:13 am

    Apologies for the string posts – as it turns out, a phrase in my last paragraph was tripping the “Page Moved” response.

    In that paragraph I exhorted Mr. DeLassus to embrace the full picture and put aside his attempts to portray a patent as some State “privilege,” to rejoin a respect that has been (purposefully, ideologically) lost.

  38. JX May 15, 2018 9:39 pm

    back in “the” day, automakers and other businesses had to turn a profit…. apparently all bets are off. The new model appears to be a pathological habitual addiction to bills of credit. One recent president commented that the constitution is just a (religious explicative) piece of paper, he was right, without men of fortitude, high moral character, and learned in the law, the system rots from within. History shows where all of this leads, fairly quickly at this stage https://www.zerohedge.com/news/2018-05-15/it-gets-worse-tesla-now-has-compete-50000-electric-bmws-going-54month

  39. angry dude May 16, 2018 10:11 am

    JX @38

    And what about fake valuations of enormous junk patent assets held by big tech corps like Apple, Google, Amazon etc.?

    If my (very valid and willfully infringed by them) tech patent is worth exactly zero today then their patent portfolios (made up of 90% of junk patents) are ultimately worth zero too – minus outsized lawyer’s paychecks

    Is it time yet to file a (class-action?) lawsuit to strip those patent asset valuations off ?

    The stock valuation bubble will explode anyway and pretty soon

  40. Anon May 16, 2018 11:00 am

    angry dude,

    minus outsized lawyer’s paychecks

    Why cloud the issue with an unnecessary slam towards attorneys?

    The point you indicate is substantive enough all on its own. And one that you and I may even find common ground (as I have several times in the past sought answers from guest writers as to how the whole “intangible assets” bubble MUST burst based on the changing law surrounding 101 jurisprudence).

  41. angry dude May 16, 2018 11:36 am

    Anon @40

    Sorry, dude

    Nothing personal, not even disrespect for (most people in) your profession

    But… I personally was in a situation when a large and very “respectable” outside lawfirm gave extremely bad advice to some SV company I sued back in the (good old) days to not settle for any amount by any means possible
    The intent was clear – to drag me through district court and appeal for 5 years (and line their pockets with corporate client’s money along the way)

    Long story short – I got zero return (minus few thousand in expenses), lawfirm got some billable hours (probably in six figures), SV corp lost over 200 mil in stock value overnight (and got a class action lawsuit from irate shareholders)
    If that SV corp had not hired that lawfirm to represent them and just settled for very low six figures they would still be in business today…

    Like I said before: lawyers always win at the end regardless…

  42. Mark S Graham, Esq. May 16, 2018 12:56 pm

    Angr dude,

    I am distressed to hear about your experience. But perhaps others can benefit.

    In matters of patent/trademark infringement litigation, one’s choice of litigation counsel is often infected with the unfortunate perception that “bigger firms that are more expensive and are based in big metropolitan cities” are, by default, better-suited for this kind of work.

    Although you did not give details on the position from which you decided to choose this firm, I do know that many, if not most, in-house counsel in corporate America opt for this seemingly risk averse “perception” route in retaining patent litigators as a means of job security. However, retaining competent patent litigation counsel should no longer follow the “it is safe to buy IBM” logic, if it ever did.

    In the world of patent litigation, all that glitters is definitely not gold. It is not “risk-averse” to trust a company’s patent-related fortunes to smooth-talking, over-valued partners of well-marketed mega-firms with bloated overheads, who will quickly assemble a team of diaper-bearing associates, junior partners, and paralegals to customize form pleadings and do everything by rote (and to excess) the minute the poor in-house counsel steps out of the luxurious office of the mega-firm with that warm and fuzzy, but utterly false, feeling about how things will turn out.

    I would not like to be in-house counsel in this day and age of patent litigation, when every big firm in the country says, via slick marketing ads, etc., that they are the best choice for handling a company’s patent disputes. Patent lawyer-litigators who consistently exercise good judgement in these matters are much harder to find than the marketing that says they can do so. In fact, most of the best patent lawyer-litigators in America do very little, if any, “marketing.” They don’t have to.

  43. JX May 16, 2018 10:35 pm

    At this stage, everything is a franchise, nothing is too small a matter, as the Supreme Court has seen fit to decide on a matter of hair braiding in the case of Niang v. Tomblinson. Important, very very important. https://reason.com/blog/2018/01/12/how-the-supreme-court-is-aiding-and-abet

  44. Anon May 17, 2018 7:14 am

    JX,

    On another thread, the analogy of the Supreme Court to children was made.

    One aspect that I do see in that analogy is the childISH (not child-like) aspect of a lack of critical thinking.

    Law – and especially law at our highest levels is simply NOT the place for that lack of critical thinking, and (much like you, I suppose), I think that ANY “acceptance of such is itself repulsive.

    We ALL should be upset that such happens – that we (the Royal “We”) allow such to happen.

    As Anon2 recently remarked (I believe on that other blog), these are signs of a Statism mode of thinking – a mode in direct opposition to the foundation of the great American political experiment that the United States Sovereign was meant to be.

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