The Collapse of U.S. Patent Policy by a Supreme Court preoccupied with Patent Trolls

By Gene Quinn
June 4, 2018

 

The Supreme Court has been so concerned about patent trolls that in decision after decision concern over the chaos wrought by patent trolls has been explicitly discussed by the Court and explicitly lamented. As if to say “not on our watch” the Supreme Court has made bad policy decision after bad policy decision, which has driven the American patent system to the brink. All the while the Court never once had the opportunity to decide a case involving a patent troll, whoever a patent troll is and whatever the term means.

While pontificating from on high, this Supreme Court has consistently violated the most fundamental rule of American appellate jurisprudence— decide the case in front of you on the record alone. Indeed, this Supreme Court, which is allegedly conservative by ideological affiliation, has been aggressively activist. Making policy decisions is not what a court on any level is supposed to do, particularly so when there is no effective review and the decisions effectively eviscerate what is constitutionally supposed to be a co-equal branch of government actually tasked with making laws and setting policy.

Appeals courts are not supposed to go outside the record, they are supposed to decide the issues presented on the facts presented. Yet this Supreme Court has consistently looked outside the record, accept facts presented for the first time in amicus briefs as true despite never being subject to scrutiny. Indeed, the New York Times has explained that Supreme Court “opinions are increasingly studded with citations of facts they learned from amicus briefs.” Moreover, the Supreme Court has over and over concerned themselves with patent trolls (see eBay v. MercExchange, Halo Electronics and Commil USA, LLC v. Cisco Systems, Inc.) despite no patent owner ever even being alleged to be a patent troll in a single case before the Court. And let’s be honest, TC Heartland was all about patent trolls and attempting to make it more difficult for patent owners to sue in the Eastern District of Texas, but the patent owner in that case was Kraft Foods, hardly a patent troll.


This means U.S. patent policy has been corrupted by a Supreme Court preoccupied with a boogeyman not present in a single dispute they were asked to adjudicate. This means this Supreme Court has allowed a carefully crafted PR narrative to influence virtually every patent decision over the last 12 years when many in the industry believe the patent troll nothing to be nothing more than an opportunistic phantom created by a relatively small number of companies hell-bent on weakening patents to the point where they are simply not enforceable.

This is humorous — in a tragic comedy sort of way — given how the Roberts Court has repeatedly pontificated about how appeals courts should defer to district courts judges who are on the front lines. Apparently, that doesn’t hold true with respect to the concern over patent trolls. Apparently, the Roberts Court thinks they know better about what constitutes the type of abusive behavior and bad actor than does the district court judges who actually have a front row seat for the action. If there is abusive behavior the Supreme Court should encouraging district court judges to use their powers under 35 USC 285, 28 USC 1927, and Rules 11, 26, 30 and 37 of the Federal Rules of Civil Procedure, as well as any number of precedential cases that authorize the awarding of attorneys fees to address litigation abuses, such as but not limited to discovery abuses and knowingly engaging in misrepresentations. Encouraging district court judges to use more of the tools at their disposal is the proper approach, not deciding cases based on information outside the record and based on concerns about hypothetical bad actors not involved in the case.

The Supreme Court has been duped by propaganda that even the Obama FTC did not buy. Indeed, the Obama FTC set out to issue a report finding patent trolls to be villainous, to support President Obama’s speeches and policies, but instead wound up concluding the use of the term patent troll is unhelpful and misleading because it mischaracterizes patent owners from the outset in a way that trivializes a complex issue and winds up being routinely incorrect. So, the American patent system and innovation advantage has been forfeited to Europe and China because of a narrative and characterization that is misleading to say the least.

The net result of the past 12 years is a patent system and set of laws where the Federal Circuit is perfectly correct, based on the law, to observe that no matter how significant an innovation is there are simply some innovative advances that are not patentable in America. That is as disturbing as it is correct, and we have only the Supreme Court to thank for this utterly remarkable turn of events.

Between 1952 and 2011 everything made by man under the sun was considered patent eligible. America had an expansive view of what was patent eligible while other less enlightened nations placed restrictions on the types of innovations that could be patented. But today we have come full circle. The United States increasingly forbids patents on cutting edge biotechnology, medical, software, analytics, big data mining, artificial intelligence and other innovations. For this we have only the Supreme Court to thank.

Of course, as the American patent system burns Congress watches. While the Supreme Court is directly responsible for a series of decisions that have fundamentally changed the face of America’s innovation policy and future, Congress is complicit through inaction.

It is time for Congress to stand up to the Supreme Court and reclaim dominion over America’s innovation policy and future. We can’t rectify the egregious errors of the past, but we must learn from them and change our future.

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.

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There are currently 28 Comments comments. Join the discussion.

  1. EG June 4, 2018 1:04 pm

    “While pontificating from on high, this Supreme Court has consistently violated the most fundamental rule of American appellate jurisprudence— decide the case in front of you on the record alone.”

    Hey Gene,

    Never were truer words said. Not only has SCOTUS pointed to no evidence in the record or even credible evidence outside the record for this alleged “patent troll” problem, but recall that the Royal Nine has also opined (also pointing to no credible evidence inside or outside the record) that patents may inhibit research/innovation.

  2. Anon June 4, 2018 2:49 pm

    that patents may inhibit research/innovation.

    Exactly – as has been pointed out, even their attempted tie to some authority based on the Constitution suffers from inability to tie into a present case or controversy (a necessary item for their authority to kick in – remember, no advisory opinions allowed), as they make that tie based merely on a subjective, prospective and futuristic “mere possibility” of innovation M A Y be blocked.

    Sadly, this is not the only Constitutional infirmity with their addiction of sticking their fingers into the 101 nose of wax.

  3. angry dude June 4, 2018 8:15 pm

    “ that patents may inhibit research/innovation”

    I guess scotus critters are smarter than the Founders in figuring out how “To promote the progress of science and useful arts…”

    All the power to scotus

    Small patent holders of US patents issued 10-15 years ago are already damaged beyond relief

    So burn it to the ground – there is absolutely nothing to save about US Patent system at this point

    Think about the future

  4. Benny June 5, 2018 6:54 am

    “that patents may inhibit research/innovation”

    Since as a patent owner I have the right to exclude, then I have the right to exclude my competitor from improving on my innovation. Of course, that doesn’t inhibit my competitor from innovating an improvement to my invention does it? Nor is it likely to discourage research in improving a patented invention which the competitor is excluded from practicing, right?

  5. Anon June 5, 2018 9:43 am

    then I have the right to exclude my competitor from improving on my innovation.

    No.

    Benny, you tread on basics being misunderstood. Your post makes a statement that is plainly incorrect, then you ask questions, which only projects a position that you do not understand what is easily understood.

    The improving may well be a separable event.
    The improving may well also be still dependent on the parent material (that which is being improved upon). But just because the parent material may remain protected, does not mean that one can block the improving.

  6. angry dude June 5, 2018 10:17 am

    Benny @4

    Dude,

    Don’t play an idiot

    If I am supposed to publish my self-funded R&D for someone else like you to improve upon and use freely in their products then how do I get paid for my R&D without patents ?
    I do not run a manufacturing plant and my R&D does not even cover a single product – but rather a very small yet essential part of great many products
    Me thinks I would be your classical “patent troll” if I come after you
    And if R&D is not published but kept a trade secret instead then there is nothing for other folks to improve upon

    So which one works better for you ?

    Open publication of R&D allowing your field to immediately move forward with some patent damage collection on the backend many years later (“patent trolling” if you want)

    OR

    Trade secrets so you don’t have an idea how competitor’s stuff works, not even after spending 7 figures on expensive reverse-engineering (much more than you could possibly spend on patent licences plus unjustified waste of time and effort just to reproduce what other folks already did)

  7. PTO-Indentured June 5, 2018 2:16 pm

    SCOTUS – Fooled by intentional fiction for over twelve years, never substantiating any of ‘such alleged’ once — and quite unlike our ‘Founders’ whose wisdom paved the way to the world’s #1 ranked patent system — instead, so crushed the system that it’s plummet takes it at minimum to 12th ranked in the world, snuffing out along the way nearly an entire profession, so thoroughly, that where this ‘population’ had been contributing nearly one of three filed U.S. patent applications, its numbers are so reduced (figuratively genocidal-like in proportion) that only about one out of twenty-five are now filed. And, the latter word bears emphasis, because of how much more the one out of twenty-five ‘filers’ ratio will continue to plummet, when highest of ‘contributions’ paid to politicians produce ‘read-from-the-script’ propaganda proven to kill 90% of so-called ‘challenged’ patents.

    So not only has SCOTUS not looked before them to proactively rely on substantiated fact, they appear to have been, and remain, completely oblivious to an unprecedented ‘damage done’ to the PTO and U.S. patents, under their watch.

    Will they, or any other court, ever hold accountable the elite-tech companies responsible for planning and for continually swooning SCOTUS and congress with a Fairy Tale? You know, where they’re asked to Tell the Truth, the Whole Truth and Nothing But the Truth. And if they lie, to SCOTUS and/or to Congress the consequence for such perjury is proportional to the stature of those highest of bodies.

  8. Benny June 5, 2018 2:48 pm

    Anon,
    What on earth are you talking about ? If your improvement is built on my base patent, then the implementation will infringe and I’m chasing you from state to state with an injunction. So your improvement won’t leave the lab.
    Angry – our inventions reflect light, so trade secrets can’t help us. You are not going to improve on our protected inventions and sell them, because that is infringement and can get you in trouble with a bunch of mean spirited attorneys. So your best bet is not to waste your time and money trying to innovate an improvement to my patented knurled flange bracket.

  9. PTO-Indentured June 5, 2018 3:33 pm

    HTML-challenged @7 Re-Do:

    SCOTUS – Fooled by intentional fiction for over twelve years, never substantiating any of ‘such alleged’ once — and quite unlike our ‘Founders’ whose wisdom paved the way to the world’s #1 ranked patent system — instead, so crushed the system that it’s plummet takes it at minimum to 12th ranked in the world, snuffing out along the way nearly an entire profession, so thoroughly, that where this ‘population’ had been contributing nearly one of three filed U.S. patent applications, its numbers are so reduced (figuratively genocidal-like in proportion) that only about one out of twenty-five are now filed. And, the latter word bears emphasis, because of how much more the one out of twenty-five ‘filers’ ratio will continue to plummet, when highest of ‘contributions’ paid to politicians produce ‘read-from-the-script’ propaganda proven to kill 90% of so-called ‘challenged’ patents.

    So not only has SCOTUS not looked before them to proactively rely on substantiated fact, they appear to have been, and remain, completely oblivious to an unprecedented ‘damage done’ to the PTO and U.S. patents, under their watch.

    Will they, or any other court, ever hold accountable the elite-tech companies responsible for planning and for continually swooning SCOTUS and congress with a Fairy Tale? You know, where they’re asked to Tell the Truth, the Whole Truth and Nothing But the Truth. And if they lie, to SCOTUS and/or to Congress the consequence for such perjury is proportional to the stature of those highest of bodies.

  10. staff June 5, 2018 4:07 pm

    ‘Collapse of U.S. Patent Policy’

    It is not just the policy that has collapsed, but the system itself. It is far too slow, expensive and hard for inventors to get, keep and enforce our patents. That is why small entity issued patents and filed applications have collapsed to about only 10% of their historical shares. For us the patent system is all but dead. We have no fair chance of ever commercializing our inventions, or even benefiting from them in any material way. When thieves control the White House, Congress and the courts by way of campaign contributions, blackmail, big business propaganda, or other means, America loses.

    For our position and the changes we advocate (the rest of the truth) to restore the patent system, or to join our effort, please visit us at https://aminventorsforjustice.wordpress.com/category/our-position/
    or, contact us at aifj@mail.com

  11. Anon June 5, 2018 6:24 pm

    Benny,

    So your improvement won’t leave the lab.

    That’s not what I stated.

    It does not matter if the item “does not leave the lab” as the improvement itself can still be pursued and patented separately (regardless of any dependency or lack thereof on the other person’s patent-protected items).

    Your initial post indicated NO advance or even to bother trying. My reply debunks that.

    Sure, you could end up in a position wherein you cannot have some “positive” action – but that is NOT what patents are about: patents are strictly a negative right.

    This happens ALL THE TIME – Quite in fact, your competitors may well “box you in” by patenting the improvement space all about your initial space.

  12. Benny June 6, 2018 2:12 am

    ” your competitors may well “box you in” by patenting the improvement space all about your initial space”

    That is exactly what they (and we) do, at every given opportunity. This is a prime example of using the patent system not to benefit society, or promote the useful arts, but solely to stifle competition. That benefits virtually no-one (other than the employees of the company whose contracts include end of year bonuses).
    It isn’t even abuse, since that is what the system is set up for.

  13. Anon June 6, 2018 5:55 am

    @12. Benny

    ” your competitors may well “box you in” by patenting the improvement space all about your initial space”

    “That is exactly what they (and we) do, at every given opportunity. This is a prime example of using the patent system not to benefit society, or promote the useful arts, but solely to stifle competition. That benefits virtually no-one ”

    Those situations can (and regularly do) give rise to cross-licensing. Cross-licensing usually leads to collaboration and ultimately a far superior outcome for everyone involved (cross-licensing parties end up with a better revenue stream for further R&D, and the public at large obtain a far superior product).

    Even if the competitor produces an improvement over the original patent, that improvement patent cannot stop the original proprietor from doing what he was already doing (it can only stop him from using the competitor’s improvement on his invention). If it is a substantial improvement over the original product then see above re cross-licensing.

    Alternatively, as is quite commonly the case, the competitor’s improvement may be in an area of the patent scope that the original proprietor is not commercially active. In those situations the original proprietor may gain an additional revenue stream by providing the competitor with a use-limited license, and the competitor also gains the advantage of having stronger legal protection for his product.

    The system is designed to improve disclosure in order to generate more efficient innovation. Incremental improvements can easily cost $m+ in R&D costs and so deserve some form of legal protection, otherwise (as @6 notes) the system reverts to a trade-secret society where nobody shares info and everyone wastes time and money with unnecessary duplication of R&D.

    Disclosure benefits everyone, and patents particularly benefit the “little guy”. You talk of “stifling competition”, but are silent on the so-called “efficient infringers”. Without the patent system there would be the big players (Apple, Google, etc.) and nobody else.

    So, contrary to your view, I would say that patents in fact drive competition by forcing all competitors, from small startups to multi-nationals, to produce better products, particularly those that go so far beyond the patent that they no longer fall within the scope of it. What you are essentially advocating is parasitic innovation, whereby the original innovative party who takes the initial risk of investment is drained and eventually killed off by the parasitic copyists who reap the rewards whilst risking nothing.

  14. Night Writer June 6, 2018 4:55 pm

    @12 Benny

    As if a competitor trying to do what wouldn’t generate competition to find different solutions and get some of those “boxed in” solutions first.

    Can we try to have an adult conversation?

  15. Anon June 6, 2018 5:50 pm

    Interesting sister Anon @ 13 – but please do not intrude on a conversation and pass yourself off as the person holding the conversation.

    (interesting, as I had earmarked the same exact quote to reply to: “ This is a prime example of using the patent system not to benefit society, or promote the useful arts, but solely to stifle competition“, and would have answered similarly to your answer!

    I would have been a bit LESS friendly to Benny though, as his answer is CLEARLY wrong, and all that he is doing (yet again) is showcasing the Efficient Infringer’s mindset (and dissemblings).

    Feel free to choose a moniker like “Like-Anon” or “Same-Views-Anon”…

    It’s almost as if Benny is trying to be a parody…

  16. More anonymous than the other guy June 7, 2018 5:12 am

    @15 Apologies, that wasn’t my intention! Will be more diligent with moniker use in future discussions.

    You are quite correct, I was just trying to be diplomatic. The “patents kill competition” argument is one I have seen bandied around the IP world in more recent times, and every time it would appear to be the result of a misunderstanding of how it all works. The courts have not assisted with this attitude, and I suspect that there may be more than just a hint of a conflict of interest within the “impartial” ranks of SCOTUS…

  17. Benny June 7, 2018 10:51 am

    Anons (both),
    “Patents kill competition” is part of our IP strategy. We don’t sell patents or patent licences, we sell products, and the less our competitors sell, the more we sell. In fact, we are more interested in obtaining patents for improvements that our competitors could sell (which we have no interest in developing), than obtaining patents for improvements that we sell. Patents CAN be used to hold back competition, or they can be used for more benign purpose. Some patents push innovation forward, some hold competition in check. We take the latter route and so do a lot of other manufacturing companies.
    You ought to get out and about more and see how patents behave in the real world, outside of attorneys offices.
    As for efficient infringement, I’ll clue you in to what goes on in project meetings – engineers come up with an idea, R&D ask for an FTO, FTO is negative, project doesn’t proceed beyond that stage. Infringement isn’t part of design strategy.

  18. Anon June 7, 2018 11:20 am

    Benny,

    You still do not “get” it (and it being the entire spectrum of why patents are a benefit).

    Your mindset of “what you sell” provides a level of understanding of business of that of a child. Your entire view of “hold back competition” misses the point of what a patent IS and what a patent can ONLY be (a negative right).

    This is not the first go-around on this very same Merry-Go-Round concept and discussion. You seem to grasp piece-parts, and think that you know the whole picture, but your picture simply is a myopic rendition from those piece parts without the understanding – in context – of each of those piece parts.

    (That, and you are attempting to lecture someone who actually lived what you only aspire to – I laugh at your implication that I am somehow “only an attorney” as law is my third career – as I have informed you some of our past discussions)

    More anonymous – no harm, no foul, and I like your sense of humor. That being said, politeness is lost on Benny, as he has made it his mission to continue to miss the boat on important aspects of patents, while pretending to have some sort of “real-world” knowledge advantage. All he has is the myopia of his own “feelings” and how HIS company operates. Many companies simply do not take his company’s view and do so for many different reasons. He spouts the “Efficient Infringer’s mantra” and seems unwilling to recognize the limitations of that mantra. It actually is not so much a matter of being impolite, as it is a matter of cutting through his crap (as it were). With some – such as Benny – being direct and blunt is simply the better path. With others (who may be more open to actually understanding things), your deft touch and politeness would probably be more beneficial.

  19. More anonymous than the other guy June 8, 2018 3:58 am

    @18 Anon. Perhaps you are correct, based on that last ranty nonsense from Benny.

    @17. Benny

    “we are more interested in obtaining patents for improvements that our competitors could sell (which we have no interest in developing), than obtaining patents for improvements that we sell. ”

    Er… what? Sinking large amounts of money into something that your company has no intention of using to generate revenue and which might stifle competition (not necessarily will – your “improvements” are unlikely to be the only possible improvements) is an utterly bonkers business strategy. Who signs off on that?! And how are you still in business?! Or are you speculating that that is how the business is run, and you are in fact a bit too low in the food chain to fully understand what is going on?

    Even if that is your company’s strategy (bonkers) it is certainly not the norm, in fact it would be a very distinct exception to the norm.

    Companies can use blocking patents, but that is usually to create a thicket around its own proprietary innovation. Deliberately sinking money (R&D costs) into products that would be known to infringe a competitor’s patent would likely not get corporate approval (for obvious reasons). Rather, corporate approval would be given to workarounds for which they could potentially obtain their own patents (thus driving competition and innovation, as explained in previous post…)

    In fact, you say this in your own contradictory rant:

    “As for efficient infringement, I’ll clue you in to what goes on in project meetings – engineers come up with an idea, R&D ask for an FTO, FTO is negative, project doesn’t proceed beyond that stage. Infringement isn’t part of design strategy.”

    So it would seem to me that:

    a) you are lying about your company sinking money into “patents for improvements that our competitors could sell (which we have no interest in developing)” because by your own logic such R&D asking to develop such improvements wouldn’t get beyond the FTO stage in your project meetings, and

    b) you have no idea how the system actually works and, as the original Anon notes, “you grasp piece-parts, and think that you know the whole picture, but your picture simply is a myopic rendition from those piece parts without the understanding – in context – of each of those piece parts.”

    As a concluding remark re “Infringement isn’t part of design strategy” tell that to corephotonics

    http://www.ipwatchdog.com/2018/05/22/israeli-camera-developer-patent-suit-apple/id=97321/

  20. Benny June 8, 2018 11:17 am

    The other anon,
    Its as though you don’t bother to actually read patents. The USPTO routinely grants claims based on specs which are not enabling, and are nothing more than water-cooler chitchat. All it takes is a couple of CAD drawings, 4-6 page application and a filing fee and you are on your way. The value of not letting the other guy put a new feature on the market? Could be 50-100K a year.
    Do you actually believe that manufacturing companies only file patents for features which have already been developed into working prototypes ? Get real. We patent speculation.
    No R&D manager is going to risk losing a product to patent litigation or writing off the entire ROI in an IPR. There is no profit in it. This isn’t Google vs. the engineer in the garage I’m talking about, it’s small entities competing for the same shelf space at Home Depot.

  21. Anon June 8, 2018 6:58 pm

    We patent speculation

    Do you realize what the oath is that you swear to when you are filing these speculations?

  22. Benny June 9, 2018 4:38 am

    Anon,
    Think USPTO examiners know fact from fiction ? Think any actual R&D went into US9447775, for example ? ?I picked one at random, there are many similar examples?

  23. Anon June 9, 2018 10:33 am

    Benny,

    Your reply questions do not answer my direct question to you.

    Is there a reason you want to deflect from my direct question to you?

  24. Thomas June 10, 2018 1:28 pm

    AnonTroll1 and AnonTroll2,

    I gather that you are the patent trolls that SCOTUS warns about. Benny is tearing you a new one, and rather than explain yourselves more clearly, you embark on character assassination. I am just a guy off the street who saw this blog post and thought I’d check it out. What I discovered, in short, is that the patent system is full of jerks. Wow, what a miserable existence. You have convinced me that the patent system is done all wrong from day one. Edison’s life story should be a good example. We need a better way, one that keeps all of you jerks at bay (not including Benny in that list, but including the original poster).

  25. Alleged AnonTroll2 June 11, 2018 3:19 am

    @24 Nice try Benny.

  26. Benny June 12, 2018 1:52 am

    @25
    ?
    Please explain your asinine comment.

  27. John Fetter June 12, 2018 8:37 am

    If, as the Stupid Seven have ruled, a US patent is not a private property right, but is instead a government franchise, the following very likely holds true: (1) There can be no such thing as a franchise without a franchisee. (2) The franchisor (patent applicant) is contractually obliged and pays the franchisee (US Government) in advance and in full for the franchise (patent). (3) The franchisee owns the franchise and therefore the US Government owns all US patents.

    The Stupid Seven did not rule a patent to be a hybrid, part property right, part franchise. They insisted it is a government franchise. They could not have taken away a private property right without simultaneously also taking away the applicant’s/ assignee’s obligation to defend the property right. The franchisee (US government) is obliged, by virtue of ownership, to uphold the franchise rights (patent) granted to the franchisor (party named as the assignee, formerly the applicant).

    If an infringer infringes the patent, the US Government, as the franchisee, must take action against the infringer to protect the rights of the franchisor, in the absence thereof will be committing a material breach of contract because the franchisor will suffer irrepairable material damages. The Stupid Seven assigned to the US Government full responsibility for defending US patents against infringement. Food for thought.

  28. Anon June 15, 2018 3:01 pm

    Thomas @ 24,

    Your lack of any sense of touch with reality is noted.

    Benny is on the losing end here. Hence his diversion from a direct question from me.

    Benny @ 26,

    The comment is not asinine – I believe that “Alleged” is just voicing a few that he believers that Thomas is merely you trying to bolster your position. Personally, I think Thomas is someone who merely thinks like you, as you have never been shy about putting your “name” to your posts, and I doubt that you would engage a different moniker just to pat yourself on the back.

    John @ 27,

    An interesting concept, worth exploring. However, on the other blog, Greg has now provided a number of court cases that list – as personal property – franchises.

    The difference in your post (and in some of my own previous ones as well) is that if “franchise” is held to its modern day current legal understanding (as opposed to what that term MAY have meant in the 1800’s), then whether or not a “franchise” is also a personal property is a bit of asking the wrong question.

    As you allude to, the “franchise” – even being “personal property” REMAINS the personal property of the US Government, and what patent holders NOW have is NOT personal property at all – and not even franchise property, but even LESS than that: a mere franchise in the sense of being a franchisee (and the franchisor remaining owner of the personal property of which the patent is).

    Of course, the ramifications and necessary wrinkles of the CHANGE in status of a patent, re-written by the Supreme Court, has NOT been thought through. As you indicate in your musings, franchises are things of contract, and contracts may have vast and varied terms – one contract to another. Contracts are ALSO held against the party writing the contract whenever some ambiguous item comes up. Given (as you point out) that the “writer” of the contract IS the US Government (who now is ALSO the actual property holder), ANY ambiguity MUST work against the government. This “wrinkle” may well impact a LOT MORE than merely enforcement (in no small example, even the action itself that generated Oil States may well be something that need be held against the government, for if the government itself now “formed its contract” with terms that are ambiguous, then that ambiguity cannot be construed against the franchisee.

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