Just Common Sense: U.S. Supreme Court is Anti-Innovation

By Gene Quinn
January 31, 2011

U.S. Supreme Court Building, 11-9-2009.

The January 17, 2011, edition of Fortune magazine has Chief Justice John Roberts on the cover.  Roberts is the Chief Justice of the United States Supreme Court, a Court now made up predominantly of conservatives by a 5 to 4 majority.  It is the contention of the author of the article on Roberts that the Roberts Court is the most pro-business Court the United States has ever seen.  If that is the case, which I am not at all sure is the case, it would have to mean that one can be “pro-business” while being “anti-patent,” which given the state of American manufacturing and the future of the U.S. economy seems questionable.

Of course, if you are anti-patent then you are anti-innovation because those who innovate are not the behemoths of industry, but rather start-up companies that absolutely require patents in order to attract funding, expand and create jobs.  Thus, given the hostility toward patents it is entirely accurate to characterize the Roberts Court as anti-innovation.  The Roberts Court increasingly puts hurdles in the way of high-tech job growth.  You see, it is easy for anyone to characterize the Supreme Court as “pro-business” because selecting a victor in a “business case” almost necessarily means that a business has been victorious.  But what business?  One that is likely to innovate, expand, create jobs and form new industry?  Or one that once innovated and expanded, but now finds themselves stagnant and laying off employees?

In part 1 of what will be a 3-part series I addressed the anti-innovator Supreme Court ruling in eBay v. MercExchange.  See The Roberts Supreme Court: Pro-Business and Anti-Patent? Obviously, the 9 who wear black and go to work on the corner of First Street NE and Maryland Avenue know very little about patents, and they know less about property rights. The fact that they know little about property rights is hardly shocking to anyone who has followed the Court’s eminent domain rulings. I have to think that the Framers are rolling over in their graves, but I digress. In eBay v. MercExchange they actually ruled that the owner of a government granted right to exclude others is not entitled to a ruling at the end of a victorious litigation that would prohibit the losing defendant from engaging in activities that infringe a valid and enforceable patent. Thanks to eBay v. MercExchange it is now much more difficult to get a permanent injunction even when the patent is valid, enforceable and infringed, meaning that large companies can simply trample on patent rights if they want and smaller companies will be unable to meaningfully exclude them, thus compromising the entire reason for having a patent in the first place. Obviously the Roberts Court never took patent law while they were in their ivy league law schools.

As ridiculous as eBay v. MercExchange is, there is a case even more ridiculous and which more clearly demonstrates that the Roberts Court is not at all pro-business. In the matter of KSR v. Teleflex the United States Supreme Court re-wrote decades of law relating to obviousness and turned it into a question of “common sense.” The Federal Circuit had developed the law of obviousness to the point where we all knew what it meant and it was as objective a test as a subjective inquiry will allow, which means it was certain, defined and stable. The terms “certainty”, “well-defined” and “stable” are what businesses like. Businesses do not like moving targets, the rug being pulled out from under them and nebulous standards that could mean whatever a government bureaucrat says they mean on that given day. In short, businesses do not like being dictated to based on the side of the bed that a government bureaucrat wakes up on.

In KSR the Supreme Court explained: “We begin by rejecting the rigid approach of the Court of Appeals.  Throughout this Court’s engagement with the question  of obviousness, our cases have set  forth an expansive and flexible approach…” Thus, the Supreme Court favors a case-by-case approach to determining obviousness. Apparently they think a case-by-case approach as applied by 6,300 patent examiners, most of whom are not lawyers, will lead to predictable and uniform results. No, they just never appreciated the problem or dismissed it as being too difficult for them to figure out. Clearly, businesses do not appreciate expansive, flexible approaches that lead to decision making that is not uniform and is unpredictable. So saying that a case-by-case approach to obviousness is pro-business is absurd on its face.

The Supreme Court also went on to say: “One of the ways in which a patent’s subject matter can be proved obvious is by noting that there existed at the time of invention a known problem for which there was an obvious solution encompassed by the patent’s claims.” Yes ladies and gentlemen, Justice Kennedy did just attempt to define “obviousness” using the term “obvious” in the definition. So according to Justice Kennedy and the rest of the Supreme Court one can determine if the obviousness requirement of 103 is satisfied by proving there was an obvious solution encompassed within the patent claims. Now if you were trying to write a computer program or figure out some kind of artificial intelligence means to determine if an invention is obvious what would happen is an endless loop would occur. Is the state of education so poor in America that even Supreme Court Justices don’t realize you cannot define a term using the term itself?

The Supreme Court in KSR went on to say: “Rigid preventative rules that deny factfinders recourse to common sense, however, are neither necessary under our case law nor consistent with it.” Thus, in the collective wisdom of the Supreme Court they have determined that even if there is really no legitimate way to demonstrate that various pieces of prior art would have been weaved together to those of skill in the art the factfinder (who may be a patent examiner, who may be a district court judge or who may even be a jury) should be allowed to use their “common sense” to fill in gaps in logic and reasoning that are otherwise not found in the literature. Isn’t that the type of whimsical bureaucratic arbitrary activity that you see in kangaroo courts? Isn’t this how governments in oppressive regimes interact with their citizens, simply doing whatever strikes them as appropriate?

All of this is particularly disturbing since the necessary consequence of the Supreme Court ruling in KSR returns the law of obviousness to its pre- 1952 state. 1952 was a big year for patent law. In 1952 the United States Congress engaged in a massive re-codification of the patent laws, the last such stern to stem overhaul of U.S. patent laws. The resulting 1952 Patent Act reviewed the statute and Supreme Court cases, keeping what was liked and specifically writing it into the new law and in some cases jettisoning that which was specifically disliked. No place was the jettison more pronounced than with respect to obviousness.

The law of obviousness had morphed over many years to the point where it was virtually impossible to obtain a patent.  In fact, in order to obtain a patent one had to demonstrate a “flash of creative genius.”  To satisfy the flash of creative genius test it was necessary to come up with a pioneering innovation or some kind of disruptive technology.  Incremental advances were discouraged under the test, thereby thwarting the entire reason for a patent system.  You see, the United States Constitution authorizes Congress to grant patents to foster innovation.  When a patent is given to one true innovators do not stop, but rather they re-tool and work to engineer around.  They also seek to improve and engage in ways that are not infringing.  Thus, the patent system fosters the march forward of innovation.  Yes, we would prefer leaps, but leaps are few and far between.  A patent system that does not foster incremental advance is one that does not foster innovation, period.

A patent system that requires a flash of creative genius is a system that ignores the human condition, ignores history and pretends that game-changing innovation is the only type of worthwhile innovation.  The “common sense” test for obviousness announced by the Supreme Court in KSR v. Teleflex takes backward toward the “flash of creative genius” standard.  Unfortunately, if what the Supreme Court held in KSR is applied literally it is far worse than the flash of creative genius standard.  Under KSR if an inventor set out to accomplish a task then that which results is obvious.  Therefore, under a literal reading of KSR in order to obtain a patent one must be an accidental inventor.  Simply put, rewarding those who accidentally stumble upon something and not rewarding those who set out to innovate is absurd.  Only a group of individuals erroneously secure in their ability to know everything about everything would come up with such an asinine ruling.

Moreover, in order to reach its anti-innovation decision in KSR the Supreme Court had so specifically and intentionally ignore the language of 35 U.S.C. 103.  One sentence in particular was added by Congress for the specific purpose of overruling previous Supreme Court cases that set forth the flash of creative genius standard.  This one, very simple sentence, reads:

Patentability shall not be negatived by the manner in which the invention was made.

I say that the Supreme Court must have intentionally ignored this sentence, which seems like the only logical conclusion given that the legislative history makes clear that the manner in which one arrives at an invention is of no consequence.  A more scary thought would be that the Supreme Court, who in a world of increased specialization still believes they have the mental acuity to pontificate correctly on every area of law, didn’t realize what they were doing.  Truthfully, the Supreme Court likely didn’t know what they were doing and couldn’t have possibly formed the requisite intent to do anything within the realm of patents “intentionally.”

We all know that gone are the days that a lawyer hangs a shingle and takes whatever work wonders in the front door, whether it be writing a will, helping someone get a divorce, starting up a business, counseling on tax matters, representing you when you are injured, filing a trademark application, etc. etc.  The law is too complicated, we all focus on no more than several areas and we do that because it would be malpractice otherwise.  Ethical rules require that in order for lawyers to take a case we must be competent to handle the issues.  There are no such competence requirements, apparently, for Judges.  The Supreme Court pretends they can address every issue of law with equal superior knowledge, which is nearly comical and would be extremely funny if it didn’t come with such horribly negative consequences for the rest of us.

It is indeed shocking that at a time when the public is focused on job creation as the number one issue facing the country there are anti-patent and anti-innovation forces working to water down the value of a patent.  It is even more shocking that those forces are sitting on the United States Supreme Court and so full of hubris that they don’t recognize the ridiculousness of their own rulings.  In the patent realm the Supreme Court is collectively acting like the Emperor who isn’t wearing any clothes, and an arbitrary and capricious confidence without reason and desire to tinker in areas where they have little substantive knowledge does not a friendly, pro-business Court make.

The Supreme Court decision in eBay v. MercExchange doesn’t make it impossible to obtain damages for patent infringement, it just makes it much more difficult to exercise the exclusivity that is supposedly guaranteed by the patent granted by the United States federal government.

The Supreme Court decision in KSR v. Teleflex does not make it impossible to obtain a patent.  Thankfully the Patent Office, the United States Court of Appeals for the Federal Circuit and the district courts have largely ignored much of the ruling and are increasingly moderating the decision to mean things that it clearly does not say.

The Supreme Court decision to come in the matter of Microsoft v. i4i, however, is another matter.  The Supreme Court seems poised to gut the presumption of validity that has underwritten the value of a patent for a generation.  If the presumption of validity is altered it will shift the patent landscape instantaneously.  Rights already obtained will weaken immediately.  It won’t be an eminent domain taking, but by any fair definition it should be.  The Supreme Court is poised to unilaterally gut issued patents and turn them into nothing more than a registration, akin to a copyright.  A pro-business Court would NEVER change settled expectations of property rights retroactively, halving (or worse) the value of the investment.  No, such a ruling would be what one would expect in a dictatorship, where property rights exist at the whim of the dictator and/or his puppet bureaucrats.

Part 3 of this series will look at the anti-innovation and anti-business implications of what we all fear (and suspect) the Supreme Court will likely rule in Microsoft v. i4i, a case that will be heard this term.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. 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 127 Comments comments.

  1. IANAE January 31, 2011 2:12 pm

    Obviously, the 9 who wear black and go to work on the corner of First Street NE and Maryland Avenue know very little about patents, and they know less about property rights.

    I would say eBay is the first time in a very long time that a court has properly applied the principles of property rights to patent remedies. The rule in eBay is the same as in every other area of property law – you get an injunction if you would objectively benefit from having an injunction.

    This whole business that “large companies can simply trample on patent rights if they want and smaller companies will be unable to meaningfully exclude them” is simply misleading. What small companies have lost is the ability to meaninglessly exclude large companies. They can no longer exclude for the sake of excluding, or for the sake of extorting more than a reasonable royalty. They can still exclude when they need that exclusion to compete with the large companies, because in those cases they will easily meet the test for an injunction. And really, what good does it do the economy in these difficult times to grant an injunction in favor of a non-practicing patentee?

    What really hurts patentees is not the lack of an injunction in cases where they have no use for an injunction, but the unwillingness of courts to grant substantial compensation in the way of a reasonable royalty.

    I don’t think it’s fair to paint the Supremes as anti-patent or anti-innovation, when all they’re trying to do is strike the appropriate balance between the patentee and the public. Undermining the public confidence in the patent system isn’t going to do the system any good, and it will certainly be impossible for small businesses to profit from their patents if they stop applying for them.

    Apparently they think [in KSR] a case-by-case approach as applied by 6,300 patent examiners, most of whom are not lawyers, will lead to predictable and uniform results.

    I don’t think they expect 6300 examiners to unfailingly conduct the obviousness analysis in the exact same way every time. That’s why there are several levels of appeal from examiners’ decisions, in much the same way that there is an appeal from District Court decisions because we can’t count on the hundreds of judges (who do have law degrees) to correctly and consistently apply the law every time. Even one of the generally persuasive reasons for appealing to the Supreme Court is that Circuit-level judges can’t seem to agree on how the law should be applied. Even bright-line rules would inevitably suffer some non-uniformity in their application.

    The purpose of KSR was to make sure the rule itself was correct, and it’s difficult to argue that the rule was unreasonable on the facts of KSR. What’s the point of having 6300 examiners consistently applying the wrong rule?

    The Supreme Court seems poised to gut the presumption of validity that has underwritten the value of a patent for a generation. If the presumption of validity is altered it will shift the patent landscape instantaneously. Rights already obtained will weaken immediately.

    Sure, it will affect the value of patents generally, but it won’t ultimately weaken every single patent out there. It will mean that the patents already on a weaker legal footing will have less value, but the ones that are clearly novel and non-obvious will be worth as much as ever. Imagine if euthanasia were legalized. Sure, it would immediately reduce the life expectancy statistics, and you could make a very loud case about how that’s abstractly a bad thing, but if you took a closer look it would only reduce the life expectancy of the terminally ill. The healthy would be completely unaffected, even though they’d now be part of a worse-looking statistic. That’s what i4i would do – it would cull the weak and the sick (who, unlike their human counterparts, very much deserve such a fate), leaving the healthy patents to thrive.

    On the other side of the equation, the patents that impermissibly claim the prior art will be more likely invalidated, which is good for business. And what of the settled expectation that one is free to practice the prior art, which is upset every time someone sneaks a bad patent past an examiner and enforces it against an existing business?

    I grow weary of reading that the exploration and definition of the boundaries of the patent right is somehow inherently anti-patent or anti-business, without even considering how anti-business it might be to grant and enforce obvious patents, or how anti-business it might be to enforce an injunction by a non-business against a business. There are two sides to every balance, and the real mark of tyranny is to ignore that balance where it conflicts with one’s personal interests.

  2. Gene Quinn January 31, 2011 3:01 pm

    IANAE-

    We are going to have to agree to disagree. The Supreme Court quite clearly ignored the patent grant, which provides exclusive rights. Granting a permanent injunction after a patent owner is victorious in litigation is nothing more than saying “see the patent grant that you just ignored.” It just carries with it the weight of the federal district court to retain jurisdiction for continued flagrant violation of the patent grant.

    You say: “Even bright-line rules would inevitably suffer some non-uniformity in their application.”

    Perhaps, but it is nonsense to pretend that a case-by-case approach employing an undefined standard is not going to and does in fact lead to far less uniformity than a bright line approach. Vindicating rights is also more challenging on appeal.

    You say: “The rule in eBay is the same as in every other area of property law – you get an injunction if you would objectively benefit from having an injunction.”

    That is utter nonsense and you should know better. It is not up to the Supreme Court to determine if a patent owner would “objectively benefit from having an injunction.” That determination was made when the patent was granted, when Congress enacted the Patent laws and the Framers wrote the Constitution. Patent give exclusive rights. An mandatory injunction prohibits. There is no difference other than the retention of jurisdiction.

    You say: “I grow weary of reading that the exploration and definition of the boundaries of the patent right is somehow inherently anti-patent or anti-business, without even considering how anti-business it might be to grant and enforce obvious patents, or how anti-business it might be to enforce an injunction by a non-business against a business. There are two sides to every balance, and the real mark of tyranny is to ignore that balance where it conflicts with one’s personal interests.”

    So I am tyrannical for noticing that the Supreme Court is anti-innovation? Quite interesting. You bring up the patent troll issue by stealth and pretend that is justification for the nonsense spewed from the Supreme Court. I have demonstrated quite clearly in this article and the last article that the Supreme Court changes the rules associated with property rights, which is anti-business and anti-property rights. I show that the way they approach issues does not lead to certainty and promotes nebulous tests that cannot be uniformly applied, which is clearly anti-business. Yet you want to pretend that justification for a nebulous obviousness test that makes it extremely difficult for true innovators to get patents is justified because of some bad actors. And you have the audacity to suggest I am tyrannical? Wow! Take a look in the mirror my friend.

  3. IANAE January 31, 2011 3:21 pm

    It is not up to the Supreme Court to determine if a patent owner would “objectively benefit from having an injunction.” That determination was made when the patent was granted, when Congress enacted the Patent laws and the Framers wrote the Constitution.

    You know that’s not true. The difference between a right and a remedy is first-year law school stuff, and 35 USC only provides for an injunction according to the principles of equity. That means it’s very much up to the court to determine whether an injunction is appropriate under the circumstances, even after the patentee has established both his right and the infringement. For some reason, nobody seems to have argued in court that granting an injunction in accordance with the principles of equity is in any way unconstitutional.

    If the patentee can’t show irreparable harm, he should not get an injunction. Quite often, a patentee can’t show any harm at all, especially if he’s not practicing or licensing his invention. In those cases, even a reasonable royalty makes him more than whole, and he should be quite happy to get it.

    So I am tyrannical for noticing that the Supreme Court is anti-innovation?

    No, “noticing” would be fine, but I’m not convinced there’s anything there to notice. What you’re doing is creating (or rather, perpetuating) the impression that the Supreme Court is anti-innovation when all they’ve really done is apply some perfectly reasonable principles that don’t actually affect the mythical ideal patentee with the fledgling business and the game-changing completely revolutionary patented technology. You know, the one who creates all the jobs and is the most sympathetic to all pro-patent advocates. That guy will not have his patent invalidated under KSR or i4i, and he will get his injunction under eBay.

    Also, I didn’t say you were being tyrannical. I was saying that the Supremes were being the opposite of tyrannical, by making sure the laws are correct and fair, even if that comes at the expense of perfect uniformity at the examiner level. Patent laws are for everybody, not just for patentees.

    Yet you want to pretend that justification for a nebulous obviousness test that makes it extremely difficult for true innovators to get patents is justified because of some bad actors.

    I really don’t want to pretend anything of the kind. KSR has not made it “extremely difficult” to get patents, and “true innovators” will be so far from the prior art that KSR won’t even make a difference. All KSR does is weed out the obvious combinations of two known features, each for its own known purpose. That’s not nebulous at all. The bloggers and academics and article-writers have blown KSR way out of proportion, but fortunately that hasn’t (yet) led to the draconian application of KSR to make all patents extremely difficult to get.

    Also, KSR has nothing to do with “bad actors”. The claims in KSR were plainly obvious on their own merits, and in the end, isn’t that what should really matter to us as a profession?

  4. Gene Quinn January 31, 2011 3:27 pm

    IANAE-

    Like I said, we are going to have to agree to disagree. I have a very different view of what the patent grants, and I am certain I am correct. I suspect you feel the same way.

    In my opinion there is just no intellectually honest way not to recognize that a permanent injunction merely retains jurisdiction for the district court. The permanent injunction would only say “don’t infringe this valid patent” and that is what the patent right itself says. So the only thing an injunction does is allow the district court to retain jurisdiction. How you can see it any other way is beyond me.

    You say: “You know, the one who creates all the jobs and is the most sympathetic to all pro-patent advocates. That guy will not have his patent invalidated under KSR or i4i, and he will get his injunction under eBay.”

    You ignore the fact that this person might not get the patent thanks to KSR. You also completely ignore the influence devaluing patents will have on investors.

    -Gene

  5. IANAE January 31, 2011 4:00 pm

    The permanent injunction would only say “don’t infringe this valid patent” and that is what the patent right itself says.

    Yes, but we all know that courts don’t routinely give you a remedy of “what the right says”. If they did, you could get specific performance of any contractual obligation, which we all know is not a generally available remedy. You get the remedy that compensates you for the loss you’ve suffered. Injunctions are for (and were invented for) those cases where money isn’t enough to do that.

    Of course, when your client is a patentee you want an injunction. But if that were the test for obtaining a remedy you could get untold sums of cash simply by preferring to have them.

    So the only thing an injunction does is allow the district court to retain jurisdiction.

    Jurisdiction to do what? If the patentee doesn’t merit an injunction under the law, why does the court need to retain jurisdiction?

    The injunction means the infringer is potentially liable for contempt of court if he continues to infringe, where under the terms of the judgment itself he would only be liable to pay money, even if he continued to pay that money as it came due. That’s not something you can fairly dismiss as “merely retain[ing] jurisdiction”. It completely changes the nature of the remedy.

    You ignore the fact that this person might not get the patent thanks to KSR.

    I don’t ignore that, and furthermore I don’t think it’s a “fact”. Anybody who doesn’t get his patent thanks to KSR doesn’t deserve his patent because his claims are an obvious combination of two things that are known in the art. KSR is completely powerless against a really good invention, it only stops you taking something that already exists and putting a clock in it.

    You also completely ignore the influence devaluing patents will have on investors.

    Investors aren’t going to shy away from all patents forever just because some patents are weak. They’ll determine which ones are weak and avoid those. Most businesses are weak and doomed to failure, and yet people still invest in businesses. They simply try to filter out the good risks. It certainly doesn’t help from an investment standpoint that self-styled patent experts carry on about how patents are no longer worth investing in.

  6. blue February 1, 2011 1:41 am

    IANAE,

    “The bloggers and academics and article-writers have blown KSR way out of proportion, but fortunately that hasn’t (yet) led to the draconian application of KSR to make all patents extremely difficult to get.”

    perhaps the amount of patents been issued after KSR is a result of KSR NOT been correctly and aggressively applied during examination??

  7. step back February 1, 2011 4:24 am

    Gene,

    Speaking of anti-patent, have you read Newman’s dissent in TOKAI V. EASTON ENTERPRISES (CAFC 1/31/2011) ?

    Link is this http://www.cafc.uscourts.gov/images/stories/opinions-orders/10-1057.pdf

    (Subtitle: What the PTO giveth, let no man tear apart –unless he is a district court judge with summary judgment power and a lower skilled sense of what obviousness is all about)

    This ain’t your father’s CAFC anymore.

  8. blue February 1, 2011 4:48 am

    IANAE

    “KSR is completely powerless against a really good invention, it only stops you taking something that already exists and putting a clock in it.”

    the problem is what constitutes ‘a really good invention’?

    Since KSR has no respect for the priority date of an invention, it would be extremely difficult to determine whether an infringed product was created because the accused infringer was practicing something obvious or because the accused infringer had copied the invention from reading the patent.

    Another problem with the KSR rationale is that an invention can be considered obvious NOT because the obviousness can be proven (without the use of hindsight), but because the elements for creating the invention are KNOWN, which sets off a chain of inferences to allow the court to conclude that the invention in question must be obvious.

    Why does the court suppose that an invention which combines a small collection of known elements must be considered obvious? Is it because the elements are known? Is it because the method for which to combine the elements is obvious? KSR is anti-patent.

  9. Michael February 1, 2011 8:56 am

    “Quite often, a patentee can’t show any harm at all, especially if he’s not practicing or licensing his invention.”

    As has been so often quoted here and everywhere else, a patent does not give you the right to practice an invention. The only thing it gives you is the right to exclude others from practicing an invention. If somebody is practicing your invention and you prove it in court, how is that not showing harm? The ONLY right the patent grants you has been violated! So you get some money for damages to the past injury and the entity which has to pay up then gets to decide if it was worth it, they can just continue to practice the invention and every time they get sued again, just pay more damages?!?

  10. IANAE February 1, 2011 10:10 am

    blue: perhaps the amount of patents been issued after KSR is a result of KSR NOT been correctly and aggressively applied during examination??

    You’re saying that the number of patents increased post-KSR because of things staying the same? That’s still not a terribly scathing indictment of KSR, and it also doesn’t do much for the party line that the PTO will reject anything on any pretext.

    blue: Since KSR has no respect for the priority date of an invention,

    What does that even mean? Does KSR admit prior that doesn’t predate the priority date of the invention? If so, it’s news to me.

    blue: Another problem with the KSR rationale is that an invention can be considered obvious NOT because the obviousness can be proven (without the use of hindsight), but because the elements for creating the invention are KNOWN, which sets off a chain of inferences to allow the court to conclude that the invention in question must be obvious.

    Because the elements are known, and you’re using them for the purpose they’re known for. If an element is known in the prior art to have a particular function, and you use it for that function in a (not too) different device, how can that not be obvious? Why should one have to find prior art that specifically instructs you to combine the two references for the exact reason the invention was originally made? It’s not hindsight to combine Element A (for known advantage A) and Element B (for known advantage B) into a novel device that does A and B. It’s the very definition of obviousness, even without another prior art reference that says “gosh, I wish I had a single device that did both A and B”.

    I hasten to add that even under KSR, a whole lot of patent claims are routinely examined by the PTO and the courts, and found non-obvious. Even under KSR, you still need a reason to combine or modify references.

    Michael: If somebody is practicing your invention and you prove it in court, how is that not showing harm?

    Because “somebody else is doing something I don’t like” isn’t harm unless you’re three years old and crying. Violating your right isn’t inherently harm. Harm means you’ve been left poorer in some way. Somebody operating a widget factory does no more harm to person A (the patentee) than to person B (a member of the public), unless it turns out that person A is also trying to sell the same patented widgets to the same customers. If one factory is in California and the other is in New York, the patentee might go the life of the patent without even knowing of the infringement, let alone being harmed by it. It’s particularly difficult to show that you’ve been harmed if you don’t have the right to practice the invention yourself, because he’s doing something you weren’t allowed to do anyway. You might as well say he’s harming you by living in his own house, even though you’re not entitled to, because you’d rather he didn’t.

    That’s why you get a “reasonable royalty” as the bare minimum compensation, even if you can’t prove any harm at all. Because we know the patentee can almost never show any harm, but we think the infringer should compensate the patentee for the privilege anyway.

    The important thing to remember here is that if the patentee actually is making money from his patent, for example by practicing the invention, and he really needs the injunction to save his business, he will easily qualify for an injunction. Let’s keep some perspective here. eBay has not forsaken the people who actually need injunctions.

  11. American Cowboy February 1, 2011 10:34 am

    The whole point of establishing the CAFC was to reduce uncertainty in the patent world. Everytime the CAFC
    establishes a clear, reliable rule (TSM for obviousness, patentee gets an injunction if he wins, patents are presumed valid and can’t be killed without C&C) the Supremes say, no, you can’t make the law clear, it has to be fuzzy. How about an argument that the enabling statute of the FedCir created a doctrine that Congress wants them to make clear rules and the Supremes need to follow that statute.

    t even happened to the doctrine of equivalents where the FedCir said virtually any amended claim has no equivalents and the SCt said, well maybe it does.

  12. Blind Dogma February 1, 2011 10:41 am

    Violating your right isn’t inherently harm

    That about says it all.

  13. IANAE February 1, 2011 10:45 am

    How about an argument that the enabling statute of the FedCir created a doctrine that Congress wants them to make clear rules and the Supremes need to follow that statute.

    It’d be a weaker argument than the one about the enabling statute of patents requiring injunctions “in accordance with the principles of equity”, and a much weaker argument than the one about how the Supreme Court still outranks the CAFC in terms of deciding what the legal rules are.

    Besides, you can’t really argue with KSR. People only ever complain about the overblown media fiction that KSR makes everything obvious in hindsight, but the decision itself is well-reasoned and limited in scope, and on its facts there was really no other way to decide the case. KSR is the poster child for TSM being a defective test.

    We can’t go inferring that a change in court procedure somehow implies an intent to change the substantive law. That way, madness lies.

  14. IANAE February 1, 2011 10:51 am

    “That about says it all.”

    It does, actually, but it appears you need more convincing.

    Suppose I lightly tap you on the shoulder without asking your permission first. I’ve violated your exclusive right, and I’ve committed both an actionable tort against you and a crime. Unquestionably an unlawful act.

    Suppose you sue me for battery. I admit that I violated your exclusive right. Now, prove your damages.

  15. Gene Quinn February 1, 2011 11:09 am

    Step-

    To quote the new generation — OMG! KSR worst fears realized. Will try and have something on the case published later this afternoon. I need to calm down for the moment though.

    -Gene

  16. Blind Dogma February 1, 2011 1:51 pm

    IANAE,

    Examples in tort are no examples at all. Patent rights are a property right – choose an example in the right category.

    And leave the straw behind – it impresses no one.

  17. Blind Dogma February 1, 2011 2:08 pm

    Michael,

    Compulsory licensing is perfectly fine with IANAE. He is perfectly alright in making judgments of what is best for the patentee (as long as he can continue to ignore the very basics of equity – that is, making the transgressed whole). The concept of restraining orders is anathema to him.

    IANAE,

    Is the loss of your right to exclude, the loss of control, a harm? Focus on the right transgressed – You do, of course, realize what the patent right is, do you not?

    And please, stay away from conflating a practicing entity and a non-practicing entity as the patent right is silent in this respect (and as the patent right is explicitly a property right, the policies of alienability of property need to be kept in mind).

  18. IANAE February 1, 2011 2:19 pm

    Patent rights are a property right

    You might care to re-read 35 USC 261. The exclusive right defined by the claims is not a property right, it’s a statutory right to exclude. Ownership of the patent is a property right (that’s the thing you can buy and sell, because it has the “attributes of personal property”), and pretty much nobody ever sues on that property right. Patent infringement is a sui generis statutory cause of action (essentially a tort) that has nothing to do with anybody depriving you of ownership of the claimed subject matter (which you don’t own) or the enjoyment/use of the claimed subject matter (which you might not have).

    It’s funny, because so many people blindly accept the dogma that patent claims somehow define a property right, and nobody ever bothers to check.

    Anyway, it doesn’t matter what kind of right it is. If you want a remedy you need to show damages. That’s not specific to tort law, and the cause of action for damage/trespass to property tends to be in tort anyway. If someone throws a rock through your window (that you own), you won’t get damages unless you can show the repair cost of the window or similar.

    So let’s try again. You have a patent you’re keeping in a drawer. I open a factory halfway across the country, manufacturing and selling a product that infringes your patent. How much poorer are you than if I hadn’t opened that factory?

  19. IANAE February 1, 2011 2:33 pm

    Compulsory licensing is perfectly fine with IANAE.

    Compulsory licensing is perfectly fine with IANAE, if the patentee isn’t practicing his patent. If he invented something just to prevent everybody (including himself) from using it, I don’t have a whole lot of sympathy for him, and anyway that’s not the sort of conduct the patent system is supposed to encourage. It doesn’t benefit the inventor, it doesn’t benefit society, and it doesn’t benefit the economy.

    If the patentee is doing something with his patent, by all means give him the injunction he needs to remain profitable. He’d get it under eBay in any event.

    He is perfectly alright in making judgments of what is best for the patentee (as long as he can continue to ignore the very basics of equity – that is, making the transgressed whole).

    It turns out, it’s actually the courts’ job to decide what is best for the patentee and what will make him whole. The patentee doesn’t get to pick whatever remedy he wants, any more than any other plaintiff can select an arbitrary remedy. Would the patentee rather have a billion dollars and five injunctions? Would a billion dollars be best for the patentee? Of course, but that alone doesn’t entitle him to it. A judge (i.e., someone other than the patentee) gets to decide what makes the patentee whole.

    The question of making a person “whole” necessarily depends on why/how he’s not “whole” at the moment. The infringement doesn’t actually cost him anything measurable if he’s not making or licensing a competing product, so it’s pretty clear in that case that he is already whole. The law even makes him more than whole by giving him a reasonable royalty on that infringement. Sure, he’d feel better with an injunction, but how is that relevant?

    Is the loss of your right to exclude, the loss of control, a harm?

    Not necessarily. It might hurt your feelings, but it doesn’t necessarily actually harm you. The tap on your shoulder represents a loss of your right to exclude, and a certain loss of control. What monetary damages would you get for it? Do you think you’d get a restraining order?

    And please, stay away from conflating a practicing entity and a non-practicing entity as the patent right is silent in this respect

    The patent right is silent in this respect, but so is every other property right and every other cause of action. The remedy depends not only on the right, but on how much damage you’ve actually suffered from the violation of that right. That makes the remedy necessarily fact-specific. It’s also the reason you get more damages if someone shoots you in the leg than if someone taps you on the shoulder, even though both are violations of the exact same right. And you’ll get more damages still if you’re a professional athlete and being shot in the leg winds up costing you more than it would a regular person. Even though it’s the exact same right.

    (and as the patent right is explicitly a property right, the policies of alienability of property need to be kept in mind)

    Yes, patents can be bought and sold. So what? A person who infringes your patent isn’t interfering with your ownership of the patent in any way. The only thing he’s doing wrong is something the patent owner doesn’t even have the right to do, which isn’t exactly characteristic of a property dispute. Infringement is not a property issue.

  20. Blind Dogma February 1, 2011 3:35 pm

    A person who infringes your patent isn’t interfering with your ownership of the patent in any way.

    Try again.

  21. Blind Dogma February 1, 2011 3:36 pm

    The only thing he’s doing wrong is something the patent owner doesn’t even have the right to do

    Try harder (and you might try with your eyes open).

  22. Gene Quinn February 1, 2011 3:42 pm

    IANAE-

    You say: “The exclusive right defined by the claims is not a property right, it’s a statutory right to exclude. Ownership of the patent is a property right (that’s the thing you can buy and sell, because it has the “attributes of personal property”), and pretty much nobody ever sues on that property right.”

    Then you say: “It’s funny, because so many people blindly accept the dogma that patent claims somehow define a property right, and nobody ever bothers to check.”

    Ridiculous and you either do know it or you should know it. The exclusive rights granted to the patent owner are defined by the claims. You do NOT sue on a patent in a nebulous manner. Regardless of what the form complaint in the FRCP says, you cannot infringe a patent. You can only infringe claims. So why you seem confused about no one ever suing on the patent makes absolutely no sense and demonstrates a lack of understanding of the core issues.

    The patent owner has a right to bring an action against those who infringe one or more patent claims in the patent they own. Yes, you could own a patent that has no claims, perhaps having all claims excised through reexamination, but in that context your ownership of the patent provides no rights. You have no right to exclude because you don’t own anything.

    You then ask as if it is a good question: “So let’s try again. You have a patent you’re keeping in a drawer. I open a factory halfway across the country, manufacturing and selling a product that infringes your patent. How much poorer are you than if I hadn’t opened that factory?”

    Answer: It depends. If you are stealing customers from me then I am definitely poorer. If I am seeking investors to build a business then I am definitely poorer because ongoing infringement that is unaddressed is a buzz kill for investors, as I’m sure you know. If you are not stealing customers and I am not harmed as a result of moving forward with business plans then perhaps I might not poorer, but I have still had a right I possess infringed and I am capable of seeking redress. I should also be able to obtain a permanent injunction that has the district court recognize my right, retain jurisdiction over the matter and order the losing defendant to OBEY my exclusive rights. That is all a permanent injunction does in the patent context and why this is confusing to you is a mystery.

    What is funny is that you don’t seem to understand that patent grant, the exclusive rights of the claims and the reality of litigating patents in federal court. Yet, that doesn’t stop you from making crazy statements as if they are true.

    -Gene

  23. Blind Dogma February 1, 2011 3:42 pm

    that’s not the sort of conduct the patent system is supposed to encourage. It doesn’t benefit the inventor, it doesn’t benefit society, and it doesn’t benefit the economy.

    Quid Pro Quo – try that. Try to understand exactly when that phrase is met and the items actually exchanged. Try to understand (yet again) what the patent right is and how your very statements here show you are conflating the concepts in pursuit of your Dogma. Try to understand just why your statement of “benefits” is simply not true or simply not on point or simply both. And try to be a bit less patriarchal about it.

  24. Bobby February 1, 2011 4:08 pm

    BD,
    Someone sitting on a patent and only using it to keep it from the market for 20 years is generally going to be bad for society. The ability of a patent holder to keep a patent from the market generally isn’t particularly valuable incentive in either disclosure or research, at least outside of entities that would almost certainly be breaking competition laws. If the public has a great loss and little to no gains when allowing this behavior, why would a sane, informed public consent to such a law?

  25. American Cowboy February 1, 2011 4:49 pm

    ianae sez: “The exclusive right defined by the claims is not a property right, it’s a statutory right to exclude. Ownership of the patent is a property right (that’s the thing you can buy and sell, because it has the “attributes of personal property.”

    So, are all of those folks using the phrase “intellectual property” deluding themselves and their listeners?

  26. IANAE February 1, 2011 4:55 pm

    The exclusive rights granted to the patent owner are defined by the claims. You do NOT sue on a patent in a nebulous manner. Regardless of what the form complaint in the FRCP says, you cannot infringe a patent. You can only infringe claims. So why you seem confused about no one ever suing on the patent makes absolutely no sense and demonstrates a lack of understanding of the core issues.

    I think you’re the one who’s confused. I never said you don’t sue on the patent. I said you don’t sue on your title to the patent. It’s not a dispute over ownership of the patent, which would invoke the property aspects of the patent. It’s a cause of action based on somebody else doing what you had the right to exclude them from doing.

    The fact that patents have the attributes of property is completely irrelevant, just as it would be irrelevant that your back yard has the attributes of property when you sue in trespass to land, or that your car has the attributes of property when you sue someone for keying it. The cause of action is simply that the other person did what you had a right to exclude them from doing, and there is no dispute over the ownership of the underlying article of property.

    Answer: It depends.

    Yes, exactly. That’s precisely why you get a different remedy for the same infringement of the same right, depending on your particular circumstances.

    The court has no need to “retain jurisdiction” when all you’re entitled to is money damages for past and future infringement. It doesn’t grant an injunction for the sake of granting an injunction. You need to demonstrate a reason for the injunction, according to the principles of equity. Just about every right is an exclusive right, but that’s not the test for injunctions. There must be a prospect of irreparable harm, which there really, really isn’t in cases where the infringement causes you no harm at all. If money makes you whole (or better), you’ve had all the remedy you need. Even if you’d prefer to have more.

    Will the defendant “obey” your exclusive right in the future? Probably not. But if it’s not costing you anything, and he’s still paying you money for the pleasure, what exactly are you complaining about? It all comes down to hurt feelings, which don’t (and shouldn’t) increase your remedy.

    If you’re really attached to the whole property thing, think of it as analogous to a tort of conversion. The infringer acts like he “owns” a license to your patent. You sue in “conversion”. The remedy? Defendant pays you the value of the license, and keeps the license. We accept that as a remedy in property law without any fuss, so it shouldn’t trouble you to accept it in patent law as well.

  27. IANAE February 1, 2011 4:57 pm

    So, are all of those folks using the phrase “intellectual property” deluding themselves and their listeners?

    No. The patent is property, but the action for infringement has nothing to do with property law.

    Just like a car is property, but if someone damages it you sue in tort. Even if someone steals it, you probably sue in tort, rather than in property.

    The fact that a patent can be bought and sold is completely irrelevant to the remedy for infringement. The remedy depends only on your damages, or failing that a reasonable royalty.

  28. Blind Dogma February 1, 2011 5:16 pm

    Bobby,

    Someone sitting on a patent and only using it to keep it from the market for 20 years is generally going to be bad for society. The ability of a patent holder to keep a patent from the market generally isn’t particularly valuable incentive in either disclosure or research, at least outside of entities that would almost certainly be breaking competition laws. If the public has a great loss and little to no gains when allowing this behavior, why would a sane, informed public consent to such a law?

    Sanity sometimes has little to do with the law, but nonetheless the law it is. Notwithstanding the sanity angle, the on eitem you glibly ignore time and again (the value of working around a known obstacle) is itself a form of innovation that the patent law serves to promote. Actually being forced to use your noggan to coem up with a different way, a different device, is an intregal part of the patent system. Your repeated failure to see and appreciate this does not in any way diminish the truth of the matter.

    In fact, for some – it is a critical incentive.

    Open your eyes. Accept the truth.

    IANAE, “Even if someone steals it, you probably sue in tort, rather than in property.” Now you are just being plain silly.

    Let’s take a break for a moment from your ludicrous “remedy” stances (and ignoring the fact that you keep on ignoring the basis of equity, that of making someone whole) and see how you feel about the courts enforcing one’s rights? Or do you feel that – going forward – “remedies of money” are the only tools in equity that a court has?

  29. blue February 1, 2011 6:12 pm

    “A person who infringes your patent isn’t interfering with your ownership of the patent in any way. ”

    r u sure?

  30. Gene Quinn February 1, 2011 6:25 pm

    IANAE-

    I am not at all confused. You are trying to re-write history as if we cannot go back in the comment chain to see what you actually wrote. You said:

    “Ownership of the patent is a property right… and pretty much nobody ever sues on that property right.”

    You clearly suggest that the patent is that which is owned and that nobody ever sues on that property right which is owned. I merely pointed out that you cannot sue on a patent in the abstract, but rather you have to particularly identify which claims are infringed and why. Perhaps you did mean “you don’t sue on your title to the patent,” but that wasn’t what you said.

    You also continue to dig a deeper hole for yourself in order to justify your erroneous view that patents ownership can be severed from ownership of claims and that a patent claim is not a property right. You say: “there is no dispute over the ownership of the underlying article of property.” Are you really serious? Are you going to pretend that ownership of the underlying property isn’t in dispute in a patent infringement litigation? You do realize defendants argue that claims are invalid and should never have been issued, correct? You do realize the district court decides whether the claims should have issued and are rightly the PROPERTY of the patent owner, correct?

    You say: “The court has no need to “retain jurisdiction” when all you’re entitled to is money damages for past and future infringement.”

    That is not true. District Courts retain jurisdiction all the time, see the TiVo v. Echostar at the Federal Circuit presently. No one is arguing that the district court didn’t have the right to retain jurisdiction. You are also 100% incorrect to say, suggest or imply that patent owners are only entitled to monetary damages. Even under the restrictive eBay ruling of the Supreme Court that is untrue.

    We disagree a lot, and agree some. But when you find yourself in a hole you really need to know when to put the shovel down. You are in that hole and have gone down a wholly indefensible logical path. I don’t mind, I’ve gone on fools errands myself many times. Nevertheless, you are dead wrong on virtually everything you are saying here and I see no shred of truth in fact or law to support you this time.

    -Gene

  31. Bobby February 1, 2011 6:42 pm

    BD,
    “Sanity sometimes has little to do with the law, but nonetheless the law it is.”
    True, but that doesn’t make enforcing an insane law worthwhile.

    “Notwithstanding the sanity angle, the on eitem you glibly ignore time and again (the value of working around a known obstacle) is itself a form of innovation that the patent law serves to promote. Actually being forced to use your noggan to coem up with a different way, a different device, is an intregal part of the patent system. Your repeated failure to see and appreciate this does not in any way diminish the truth of the matter.”
    I’ve already stated that angle has some benefits, but it also has a lot of costs. If the new device has no significant benefit (as in one that justifies the cost of discovering), which may include being cheaper, more durable, easier to use, then it is not a very productive effort, and could called reinventing the wheel, except that in many cases, we’ve invented a square wheel instead. In the cases where you have something that is much better, at least in some regards, then the research would likely be justified on it’s own.

    Having to workaround a patent is adversity. The fact that some parties manage to get a benefit from adversity doesn’t make it a good idea and justified in and of itself. Some students excel because a teacher says that they will never accomplish anything, but that doesn’t mean that insulting students should be part of the curriculum.

    Again, I ask you, why should society permit patent-holders to sit on an idea and still exclude all others?

  32. blue February 1, 2011 7:32 pm

    “Again, I ask you, why should society permit patent-holders to sit on an idea and still exclude all others?”

    The question makes absolutely no sense. The law only requires the inventor to file a patent for his ideas. The law does NOT require the inventor to practice his own inventions in order to prove the validity/legitimacy of the inventions.

    The USPTO and the patent system would have no reason to exist based on your reasoning.

  33. Bobby February 1, 2011 8:57 pm

    blue,
    It gives the inventor two options, although they can combine them if they so choose:
    1.They can either practice the invention
    2. license the patent to others at a reasonable rate.
    Both of these situations are generally better for society and better for the inventor. Keeping the invention off the market for 20 years is bad for everyone.

  34. blue February 1, 2011 9:27 pm

    “Both of these situations are generally better for society and better for the inventor. Keeping the invention off the market for 20 years is bad for everyone”

    for everyone or for potential infringers only? I see that even the supreme court has little interest in the law these days….

  35. Stan E. Delo February 1, 2011 9:33 pm

    Blind Dogma writes in toto;

    “Violating your right isn’t inherently harm”
    That about says it all.

    Looks as if sales might be looking up these days! Especially lucrative if sales go international as seems to be the trend lately. My latest is Boisterous Boysenberry, with a subtle hint of bitter almond just for a bit of panache` that offsets the sweetness of the berries very nicely. Tricky market though, as it seems to be a bit mercurial lately. I tend to like the citrus approach myself, as in perhaps say a Pineapple? Interesting that some here have written probably half of a book’s worth of obfuscation here to try to prove their somewhat elusive points. Why do you have to write 10 times as much as most of the rest of us? Riddle me that, and I will abandon my Pesky Pinapple product line, and let BD perhaps perhaps rename it and make it his own. Sleep, that knits the raveled sleeve of concern.

    Dhing Hou! (Good Luck in Chinese during the Burma air lift)

    Stan~

  36. Bobby February 1, 2011 9:58 pm

    blue,
    What other revenue streams can be made from a patent? The patent holder makes money by producing what is patented or collecting royalties from those who are producing what is patented.

  37. Blind Dogma February 1, 2011 10:45 pm

    Again, I ask you, why should society permit patent-holders to sit on an idea and still exclude all others?

    And again, Bobby, I tell you – your problem is how you are framing the problem.

    Take a deep breadth and actually look at the question you asked. Then look at what the patent right actually is (by law). Then ask yourself, “self, why do I keep asking questions that display my ignorance?” When you are ready to learn, then throw away your mindset, go back and read everyone of my posts. Look at them anew and dig in to finding answers in the law that, while conflicting with your cherished beliefs, are simply true. Can you handle the truth, without getting thirsty for my tempting beverages? Can you put down the glass?

    Society – read that the people who wrote the Constitution and the Patent Law – decided what the Quid Pro Quo was to be, decided the terms of that Quid Pro Quo. You continue to ignore the facts and ignore the law in your blind quest of your dogma. You really need to open your eyes, instead of proclaiiming soo loudly that you cannot see.

    Stan,

    You are getting high marks from the development people. Leave the marketing to me (and reread my comment – you will see that I was replying to the person that actually said that phrase with a straight face, albeit with a huge Kool-Aid moustache).

  38. Bobby February 1, 2011 11:27 pm

    BD,
    I think you might have imbibed a bit too much of your own product. I’m asking why society should choose a policy that has high costs and low returns? It’s perfectly reasonable to attach the conditions of being a manufacturer, licensor, or combination thereof to a patent holder because that’s how money is made from patents, and the general assumption is that patents are sought because the patent holder wants to make money from the patent. Perhaps doing exactly that requires changing the law, at least by your interpretation, but it’s a change that could be made, and if it could be, why shouldn’t it be?

  39. blue February 1, 2011 11:47 pm

    “What other revenue streams can be made from a patent? The patent holder makes money by producing what is patented or collecting royalties from those who are producing what is patented”

    How patent holders intend to or not to make money is none of anyone’s concern. The patent law has no role to play in telling patent holders how they should make money with their inventions. That being said, i would like to see ‘business/economic success’ becoming a primary indicator of non-obviouness because after all, the chief function of ur patent is to protect your ‘business/economic interests’.

  40. Blind Dogma February 2, 2011 8:55 am

    Bobby,

    Clearly, by your own examples, what is “perfectly reasonable is not so, umm, obvious.

    That is one reason why we actually have laws – and we have the need to enforce those laws. Certain people, being who they are, will not be perfectly reasonable.

    Take for example, those who refuse to learn about the Quid Pro Quo and the basics of patent law, yet relentlessly proselytize their ideology – yes, it would be “perfectly reasonable” for such people to learn about that which they preach, but we can see (those who dare open their eyes), that this is simply not so. “Liberal Encouragement” – have you learned this phrase yet?

    Much to your chagrin, this country is not about forcing people to do something. It is about allowing them to do as they choose (within very wide limits). This is a basic philosophy that runs counter to yours – you will need to actually follow my previous suggestions if you really want answers to your questions (real answers – not the proscribed answers that you want).

  41. Bobby February 2, 2011 11:15 am

    BD,
    Quid pro quo is something for something, with a common interpretation being that the two things being exchanged are of roughly equal value. It need not mean that there aren’t any conditions that apply after the issuance of a patent. For example, if evidence comes to light that the claimed inventor didn’t actually invent the invention covered by the patent, then the patent is invalidated.

    “Much to your chagrin, this country is not about forcing people to do something. It is about allowing them to do as they choose (within very wide limits)”
    While I agree that liberty is very important to America, what patents actually do is restrict the liberty of others, hopefully in a manner that results in more technological progress. Liberty is perhaps the public’s most precious resource, so we must be careful of every inch that we sacrifice to make sure that we get a good return on investment for the public. Letting a patent holder force the patent out of public use altogether is quite clearly a bad return on investment.

  42. Blind Dogma February 2, 2011 1:27 pm

    It need not mean that there aren’t any conditions that apply after the issuance of a patent.

    Actually, Bobby, it is the law that sets the “conditions that apply after the issuance of a patent”, and if you understood the basics, you would realize that there are NO substantive conditions after issuance of a patent and especially NO substantive conditions based on who the holder of the property is. ALL the return on investment that is legally required is complete at the point of patent grant (notwithstanding the maintenance fee structure) – That is the Quid Pro Quo. Your legally baseless wanting of more Quo simply has no place in the actual law.

    When are you going to acknowledge this plain truth?

    restrict the liberty of others” – only in regard to an earned right that belongs to someone else Bobby – you keep forgetting that part. And it is no small part. Further, you keep on forgetting that without the inventor, there would not be that item to be so-called restricting the liberty of others – yet another example of your Dogma blinding you.

    Do you enjoy tripping over things? Do you hate your shins that much that you refuse to open your eyes even after falling down repeatedly over the same points?

    Letting a patent holder force the patent out of public use altogether is quite clearly a bad return on investment.” – Clearly, your value judgment simply does not square with the law. Clearly, the ability to “force the patent out of public use altogether” IS the very right given (freely in an abstract sense) for an earned patent.

    As for your example of invalidation, you are once again incorrect in your logic of “conditions that apply after the issuance of a patent“. Invalidation is a concept that the patent should not have been issued in the first place. You are confused by the temporal order – granted, this is an easy mistake to make. Invalidation by court finding and rescinding of patent rights through reexam are not to be confused with any type of post grant requirement (to help you understand this, it might be helpful to remember the one key is that the invalidating items must be prior art or in the case of inequitable conduct, actions during the prosecution.

    I do grant that there are post grant actions that can “invalidate” the rights to a patent, but that too is a different animal and is, as well, divorced from who actually owns the property rights of the patent or the nature of the patent itself (bad return on investment or not).

  43. Bobby February 2, 2011 2:26 pm

    “ALL the return on investment that is legally required is complete at the point of patent grant (notwithstanding the maintenance fee structure) – That is the Quid Pro Quo. Your legally baseless wanting of more Quo simply has no place in the actual law.”
    Forget the exact statutes in place for a moment, and picture in your mind a law that clearly states that a patent holder has the options of excluding only if they are producing a good or service, and that otherwise they are only subject to a reasonable royalty. If such a law would not be unconstitutional, why would it not be preferable? Practically everyone who wants a patent wants one of those options, and really the only the reason they would claim to want nobody to use something would be as leverage in extracting an unreasonable royalty.

    ““restrict the liberty of others” – only in regard to an earned right that belongs to someone else Bobby – you keep forgetting that part. And it is no small part. Further, you keep on forgetting that without the inventor, there would not be that item to be so-called restricting the liberty of others – yet another example of your Dogma blinding you. ”
    That’s only a reasonable argument for inventions that would not be invented by a free market within at least 20 years. While such an estimate can be hard to come to, not being able to use knowledge that you have is clearly a restriction of liberty. That restriction of liberty may be justified, and I am not saying in this argument that it isn’t, but it is a restriction of liberty and any claims otherwise are ridiculous.

    “Clearly, the ability to “force the patent out of public use altogether” IS the very right given (freely in an abstract sense) for an earned patent.”
    Again, that’s not a very useful right, so even if current statues give it, excluding it would do very little in eliminating the incentives of patent seekers. To force the patent out of public use except for yourself so you can do so yourself without direct competition is a useful right. To collect reasonable royalties from other parties that produce a good is a useful right. To harm the market without any gain for yourself is not a useful right.

  44. Jon Shields February 2, 2011 10:40 pm

    Blind Dogma, do you realize that you aren’t answering Bobby’s question? Bobby’s question is clearly about whether one statute would be preferable to another. You keep answering by talking about the rights granted under the current statute, as if that were somehow relevant to the question.

    ““force the patent out of public use altogether” IS the very right given (freely in an abstract sense) for an earned patent.”

    So what? Isn’t Bobby’s point that this should not be the right given, this should never have been the right given, and this should be changed tomorrow if not today? Your constant repetition of the state of affairs today is not an argument about why they should be that way.

  45. Jon Shields February 2, 2011 10:45 pm

    “A pro-business Court would NEVER change settled expectations of property rights retroactively, halving (or worse) the value of the investment.”

    If the “settled expectations” were bad law, they should not be changed? Mistakes can be made to increase property rights, but they can never be corrected? Property rights must be a one-way ratchet under all circumstances, regardless of the circumstances surrounding the ratchet? And if the court does correct bad expectations arising from bad law, that would be “what one would expect in a dictatorship?”

    I’m not saying the question in i4i is clear cut. But if we assume for the sake of argument that the C&C standard was and is bad law in certain circumstances, I hardly see how correcting such law would be “what one would expect in a dictatorship” just because it reverses the ratchet a bit.

  46. Blind Dogma February 2, 2011 11:33 pm

    Jon,

    Thanks for jumping in late and missing all the key points as to why “answering Bobby’s question” would be the wrong thing to do.

    Rewarding the simpleton with an answer when the question is based in ignorance – or worse yet – purposeful ignorance of what law is, what the Quid Pro Quo is, will do what exactly? As for your thought that this is merely a repetition of the state of affairs today – you also need to understand that it is more an understanding of the foundational aspects of understanding, and much less a “maintain the state today”.

    But then again, you suffer from the same dogmatic afflictions, the same misperceptions, the same ignorance and the same drunkenness. As if one drunk’s view of another, that the first drunk appears sober to the second drunk, has any consolation in reality. It does not.

    When Bobby comes to grip with what is – and why – perhaps we can move on to alternative universes.

  47. Bobby February 3, 2011 12:25 am

    BD,
    In both cases, the patentee gets something in return for disclosure, so I think quid pro quo would still apply, and if it doesn’t, I ask you to explicitly clarify why it wouldn’t be. There is an exchange of something for something else between two parties, even if the something received by the patent holder is slightly less, (but my most accounts not nearly as much less as the 14 year terms US patents originally bore, so if the proposal I speak of is not quid pro quo, you’re going to have a hard time arguing that early patents laws we had were quid pro quo). Maybe you find that no longer giving the right to do something that is economically useless sours the deal, but the inventor has the option of not applying for a patent if they find that to be the case.

  48. Jon Shields February 3, 2011 12:39 am

    BD, the question is about a hypothetical alternative law. Not “what the law is.” If the question is really based on ignorance, it should be all the more easy for you to answer. Your refusal to answer the simple question (regardless of how much you hate the question) might indicate that rather than everyone else being wrong/drunk/etc, perhaps you are incorrect, and perhaps you should revisit your own assumptions.

  49. Blind Dogma February 3, 2011 8:20 am

    the question is about a hypothetical alternative law

    – wherein the actual reasons, history and meaning of the law are subjectively chosen and key principles are simply disregarded. Your attempt at questioning my assumptions is meaningless when you (and Bobby) refuse to acknowledge the basics at play and insist on a world where your dogma is the foundation. So, simply, “might” is just not correct, no matter how much spin you try to apply.

    And no thank you – I do not care how many angels dance on the head of that pin.

  50. Blind Dogma February 3, 2011 8:24 am

    Bobby,

    Your basic assumptions are false. Yet you strive to build your castle on shifting sands.

    Only a fool ventures into such a building.

  51. Bobby February 3, 2011 10:35 am

    BD,
    What, the assumption that something is assumption, even if it doesn’t fit your ideal version of something? Or perhaps the assumption that society has an interest in curbing unfavorable behavior.

  52. Blind Dogma February 3, 2011 10:55 am

    “unfavorable” in whose eyes? I love how you assume the authority to make such value judgments in light of your refusal to actually understand the law and the concepts that make up the foundation of that law.

    Yet once again Bobby, your problem is how you frame the problem. Holding onto your dogma, clenching your eyes tight will not stop you from dripping over things that you should see if you were to open your eyes.

  53. Bobby February 3, 2011 11:32 am

    BD,
    The eyes of society. Like I said, very few patents if any are motivated by the ability for a patent holder to not make money off the invention. However, complete exclusion of usage of a useful idea, the purpose of which is to be used, has a high cost to society. Therefore, society is getting very little in return for a lot. If you think society is somehow getting a good return on investment from the allowing complete exclusion, please elaborate on how.

    Now, as for the concepts, US patent law is based around giving economics incentives to inventors in a system that is for the benefit of society. By offering short term monopolies, we can theoretically increase the ability for an inventor to get a return on their investment through producing without competition or licensing to others (who would otherwise not give royalties to this party). Hopefully, the benefit of the incentives are larger than the social costs of monopolies.

  54. Blind Dogma February 3, 2011 12:15 pm

    The eyes of society” – as I said – I love how you assume the authority to make such value judgments. As it is, the eyes of society are open – and are looking at the law that we have in real life, not closed and dreaming of alternative universe law. Bobby, join the real society and open your eyes.

    the purpose of which is to be used” – and it is (in the manner of serving as a roadblock to promote others to invent around) and it will be (in the manner that after the limited time, the invention belongs to all of society). Your so-called “high cost to society” is merely your value judgment that the deal made is not to your liking. The “return” is the actual invention – after the limited time, it will be owned by all of society. You really need to check out of the Flash-of-Genius-inventions-only-for-Nobel-prize-advancements mentality.

    Once again Bobby, your basic assumptions are false. Why is it that you refuse to acknowledge what the patent right actually is? Bobby, you cannot ignore the reality of what is and just dream of something different that fits your ideology. Life does not work that way.

  55. Bobby February 3, 2011 12:39 pm

    “I love how you assume the authority to make such value judgments. ”
    The assumptions are that most if not all patents are granted to those who wish to make money from patents, and that having at least one vendor of a useful product is preferable to having no vendors. Do you object to either premise?

    “The “return” is the actual invention – after the limited time, it will be owned by all of society”
    Return on investment consists on the difference between two things, return and investment. The return for an individual patent that has the same claims under all given circumstances remains the same regardless of the terms of patent law, whether it’s statutory royalties for 1 year or absolute control for 100. However, having at least one vendor of a useful product has less social cost than having no vendors, thus it’s a greater investment, just as a longer patent period would be a greater investment.

    “You really need to check out of the Flash-of-Genius-inventions-only-for-Nobel-prize-advancements mentality.”
    I made no claims at all related to that. Seeing things that aren’t there is not a good sign.

  56. Blind Dogma February 3, 2011 1:06 pm

    that most if not all patents are granted to those who wish to make money from patents

    This is a clear legal (and logical) error. Show me the legal basis for such a conclusionary statement. – You cannot because no such statement exists in the law. Once again, you are ascribing to the law your value-laden ideology that simply is not there. There is nothing in patent law that provides for the right to make money. It is not that I object to the premise per se, it is that I object to your treatment of the premise as a matter of law. You spout your ideology as if it has the backing of law and it clearly does not. The logical error is that you ascribe an end choice as a basis for removing that choice. Something about “cause and correlation” echoes in the back of my mind.

    Return on investment consists on…” – I need no lessons in business from you, from one who persistently ignores reality. Thank you no. Besides which, your ramblings fail to actually address the fact that society benefits and your so-called “high-cost to society” is a farce.

    Be wary of any argument that depends on “less social cost” of a property. The real society we live in is not a state-run socialistic society where someone other than the property owner can decide whether the property is being used in a comparatively “more beneficial to society” pronouncement. This society still values individual choice to do with one’s own property as one sees fit. Eminent Domain does exist – but that is a far cry different than the incorporation that you wish to engage in.

  57. Blind Dogma February 3, 2011 1:10 pm

    Gene,

    Can you check the filter – my reply has been caught up in it.

    Thanks

  58. Bobby February 3, 2011 2:51 pm

    “It is not that I object to the premise per se, it is that I object to your treatment of the premise as a matter of law”
    I’m speaking from a practical standpoint, not claiming that it has the weight of law. Realistically, we all know that people get patents to get a better chance at making money compared to not having patents, and no money is to made from not making a good, at least outside of cases that likely break competition law. The US rejected the notion of inventors having natural rights to their inventions, so we must speak in a practical manner, and I don’t think there’s a good practical argument that significant amounts of patents are sought for the right to shut the public out completely.

    “Be wary of any argument that depends on “less social cost” of a property. The real society we live in is not a state-run socialistic society where someone other than the property owner can decide whether the property is being used in a comparatively “more beneficial to society” pronouncement.”
    Again, with the socialism/communism argument. I’m actually proposing less interference with commerce, less of a big government, less taking rights from the public than you are, and you have the nerve to call that socialism. Anarchy or Laissez Faire are at reasonably fitting adjectives, but I suppose they aren’t as biting and are harder to shoehorn being oppressive into.

  59. Blind Dogma February 4, 2011 7:04 am

    I’m speaking from a practical standpoint

    No, you are speaking from a demagogue standpoint. You wouldn’t know “realistically” because you refuse to understand what you are talking about. That understanding only gets in the way of your dogma. Stop hiding behind the “we all know” as you continually show that you do not know.

    I’m actually proposing less interference

    No, you are dressing up what you are preaching in that skin. Your “less taking rights form the public” line is a giveaway – you consistently dismiss the inventor (the person whose rights you are taking) – who creates that property in the first place, and your entire premise is bound up in “the people” – just as the socialism/communism argument would have it. Quack Quack.

    The “oppressive” adjective fits no matter what skin you want to pull over your ideology. Now if you were to actually address the points I made instead of regurgitating your usual closed eyed mantra…(hint: include “inventor” in a meaningful way, understand what is actually present in the Quid Pro Quo, and understand exactly what a patent right is and properly place these items in your philosophy, and then maybe you can start talking intelligibly about the patent system. In other words – open your eyes.

  60. A Consitutional Question February 4, 2011 8:12 am

    Bobby,

    In Article One Section Eight, does “securing” mean “creating” to you? What do you make of the word “their”?

  61. Bobby February 4, 2011 12:50 pm

    “Your “less taking rights form the public” line is a giveaway – you consistently dismiss the inventor (the person whose rights you are taking)”
    Before patent statutes are taken into consideration, the inventor has no legal rights to exclude others. They can try to keep their knowledge a secret and use technical capabilities to do so, but have no legal ability to limit others outside of perhaps NDAs and the like, but both parties must voluntarily consent to that. Therefore, all the rights an inventor have that control others outside of personal contracts are given to them by patent statutes. What I am talking about is not to take certain rights, but rather to stop giving them.

    “The “oppressive” adjective fits no matter what skin you want to pull over your ideology.”
    Only if you misinterpret how the system is working. Oppression of inventors would involve taking the rights they already had away. For example, if you were to raid the lab of an inventor and copy all of their personal notes, that would be oppression.

    ACQ,
    In this context, it would include creating the right and a system to enforce that right, but it’s worth noting that this power is completely optional. Inventors do not have any such rights outside of patent laws, so we have to create the right in the first place if we are going to have a patent system. “Their” is a way of identifying what the scope of the patent monopoly is, to make it clear that John has no exclusive rights to what Jane invents and Jane has no exclusive right to what John invents, assuming that no transfer of a patent has occurred. For an example of a possessive noun that isn’t possessive, I might talk about “my” nephew, but that in know way suggests that I own him (the Constitution as it is today makes it quite clear that I don’t).

  62. A Constitutional Question, February 4, 2011 10:32 pm

    Bobby,

    In Article One Section Eighteen, what do you think “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” means?

  63. A Constitutional Question, February 5, 2011 11:35 am

    Bobby,

    In Article One Sections One through Seven and Sections Nine and Ten, what do you think the word “Shall” indicates?

    And my previous question should read Article One Section Eight Clause Eighteen.

  64. A Constitutional Question, February 5, 2011 5:44 pm

    Bobby,

    Where else do the words “promote” and “secure” appear in the same sentence in the Constitution? How does this inform the “optional” debate?

  65. Bobby February 5, 2011 5:53 pm

    ACQ,
    “In Article One, Section Eight, Clause Eighteen, what do you think “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” means?
    It means that Congress has the power to pass the laws necessary for Congressional powers to be utilized.

    “In Article One Sections One through Seven and Sections Nine and Ten, what do you think the word “Shall” indicates?”
    Shall and will are pretty much interchangeable, but it’s worth noting that it doesn’t say that Congress “shall … 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” but that “Congress shall have the 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.”
    Article I, Section 8 is Congressional powers, not Congressional duties.

  66. A Constitutional Question, February 5, 2011 6:19 pm

    Bobby,

    By your own words, isn’t it then redundant that “In this context, it would include creating the right and a system to enforce that right“, since the system to enforce is covered below?

    Have you found the other location where “promote” and “secure” are located?

  67. Stan E. Delo February 5, 2011 6:40 pm

    “Article I, Section 8 is Congressional powers, not Congressional duties.”

    Jeez Bobby, you have a real knack for totally confusing the legal issues involved, or otherwise, including ethical issues as well. Legislators (lawmakers) are responsible for deciding what the law should be, and nothing else. How they are interpreted and implemented by various court venues is an entirely different kettle of fish, which you seem to be unable to grasp for some reason. Unfortunelately nobody seems to be home in Congress to reign in the over-the-line recent decisions by the court, that seem to be just ignoring portions of the enacted law at their convenience, and perhaps causing the loss of millions or billions of dollars of the value of US patents, apparently on a whim and a totally clueless Sum-J. The only way out of this huge mess would seem to be Congress stepping up and overuling them by Congressional fiat, but I happen to see a very slim chance of that occurring probably until it is too late, after the Bobbies of the world have already stolen the handle off of the pump of innovation. I suppose you think you are very clever and all like that, but I really think you know not how much damage you and others of your ilk are doing. Maybe in an alternate Universe you might be “right” but even there I would very seriously doubt it. In whatever Universe you would need consistent logic, instead of the Bizzarro Superman world where everything that is logical is wrong, and common logic is inverted, so to speak. For instance, Red Kryptonite makes him Stronger, as opposed to RK crippling Superman. I recommend a few quick glasses of Kwirky Kiwi Kool-Aide.

    Stan~

  68. Bobby February 5, 2011 7:49 pm

    ACQ,
    Not really, For example, while Congress has the power to promote progress, they aren’t explicitly given the power to create the USPTO, which is effectively necessary and proper for having a patent system, except for that T-part.

    As for secure and promote, they are found in the preamble. I don’t see a real effect on the optional part, because the optional part comes from “shall have the power to.”

    Stan,
    “Legislators (lawmakers) are responsible for deciding what the law should be, and nothing else.”
    There are a few other things Congress does, such as approving Presidential appointments, but the primary role they play is in making laws. However, just because Congress can do something doesn’t mean they must. A good example is declaration of war. Congress has the POWER to declare war and is the only party that can, but Congress doesn’t have to declare war.

  69. Stan E. Delo February 5, 2011 8:32 pm

    Bobby,

    You seem to be confused a bit. The President can declare war, but it will never happen unless Congress concurs in the majority of cases. George W. Bush is an exception it seems to me, when he signed us up to go after Weapons of Mass Destruction in Iraq in an an *emergency* which turned out to be merely an illusion fostered by Rumsfeld and Cheney, and here we are 10 years later trying to get out of the mess they created to the tune of Trillions of dollars after they left their *legacy* for us all to try to solve. At the beginning of WWII it was imperative to act and not delay, because the survival of the US was in jeopardy, but that was an extreme case to be sure.

    ” A good example is declaration of war. Congress has the POWER to declare war and is the only party that can, but Congress doesn’t have to declare war.”

    So what’s up with your *enforced* numbering order for replies? They all disappear when I post anyways so what’s the point? Maybe a hacker trick to try keep your own thoughts organized? Maybe try some of my new Soporific Strawberry concoction? It’s really yummy, with just a slight hint of Alum to give it a bit of tang and a few other things. In my prescription for you though, I would use a Lot of alum, for reasons that are probably obvious to nearly everyone else here besides yourself.

    Stan~

  70. Bobby February 5, 2011 9:20 pm

    Stan,
    I’m speaking of formal declaration of war. The President is the commander-in-chief and can engage in ‘military conflict’ under limited conditions without congressional authorization, but that is generally not considered ‘war’ in the strictest sense. I will admit the reality of the situation is sometimes a bit convoluted, though. The central point I was making is that it’s quite clear that Congress does not have to create patents, which means that all the legal rights of exclusion inventors have come from statutes.

    As I’ve said over and over again, this is not itself an anti-patent statement. If you honestly believe that patents do advance scientific progress, create jobs, make it rain gumdrops, etc., than it makes sense for the public to temporarily waive rights to inventors, possibly to a greater extent than what we have now., even though we don’t have to have patents.

    “So what’s up with your *enforced* numbering order for replies?”
    I’m not quite sure what you’re specifically talking about.

  71. Stan E. Delo February 5, 2011 10:02 pm

    Bobby writes in small part;

    The central point I was making is that it’s quite clear that Congress does not have to create patents, which means that all the legal rights of exclusion inventors have come from statutes.

    Bobby-

    Congress does Not create inventions, inventors do so at very great expense of time and money and effort. About 230 years ago the Congress of the then new US decided that it was a good idea to grant exclusionary rights for a limited time, and I believe they got it right the first time. American inventors have typically out-innovated the rest of the world per capita by about 6 or 8 to one, and there must be a reason for it. Do you think it is because Americans are so much smarter than everyone else? In some senses perhaps, because the US is a melting pot where literally millions have come here to succeed, and there is perhaps a unique synergy of ideas and intelligence that may have caused a big bang of invention here in the past. Only the Shadow really knows for sure.

    I would suggest instead that it is because of our unique patent system, which gives real teeth to patents, at least here in the US until fairly recently. What would you think if “your” patent or application suddenly got de-valued by about 40% because the Supreme Court got things seriously wrong? Point of order, and I object to that. I don’t suppose you will ever file an application, but that is beside the point I trying to make.

    Ciao,
    Stan~

  72. Bobby February 5, 2011 10:30 pm

    Stan,

    “Congress does Not create inventions, inventors do so at very great expense of time and money and effort”
    I didn’t say they did. However, the right to exclude others that a patent holds comes from Congress. Absent that, the only protection that inventors have is trade secrets, for better or worse.

    “American inventors have typically out-innovated the rest of the world per capita by about 6 or 8 to one, and there must be a reason for it.”
    That number has no basis, and I don’t think you’ve ever claimed to have a source for that number. It’s a completely unrealistic number if you are comparing the US against specific nations, and is a useless number if compared against the whole world as a whole, because developing nations are generally at a big disadvantage, so most other Western nations are going to have similar ratios.
    As to things I would personally attribute to the success of America, I would say that one of the biggest factors would be largely due to individual freedoms. The melting pot aspect probably played a large role as well, as we know that civilizations that traded with other civilizations tended to have big advantages over isolated civilizations in regards to technology since ideas and knowledge crossbred, and this would likely apply more to exchange of people than exchange of goods.

    “What would you think if “your” patent or application suddenly got de-valued by about 40% because the Supreme Court got things seriously wrong?”
    It would depend on the situation. That would be a competitive disadvantage if I were the only party whose patent was devalued, but in most Supreme Court cases, it would play across competitors fairly evenly, although the distribution amongst small and large entities might not be the same. Of course, personally disliking something has nothing to do with whether or not something is a good policy, so trying to throw in an emotional ‘think of the patent holders’ is not relevant.

  73. A Constitutional Question, February 5, 2011 10:55 pm

    Bobby,

    the right to exclude others that a patent holds comes from Congress

    Did Congress right the Constitution now?

  74. A Constitutional Question, February 5, 2011 10:56 pm

    Right = write, of course.

  75. Stan E. Delo February 5, 2011 11:18 pm

    ACQ writes in response to quote from Bobby,

    “the right to exclude others that a patent holds comes from Congress”

    Did Congress write the Constitution now?

    Good point ACQ,

    The Congress of the US is only able to *amend* the Constitution very slightly with a huge amount of effort and consensus, which Bobby doesn’t seem to comprehend in his particular La La land. Sorry for being a bit snippy Bobbie, but I and about 90% of other Americans happen to Like it that way! If you don’t mind me asking Bobbie, what general area do you happen to live in? Just curious as always. The question goes to motive, and please contact me personally with your reply.
    Stan E. Delo
    stand@olypen.com

  76. Bobby February 5, 2011 11:41 pm

    ACQ,
    No, the Constitution authorizes Congress to pass or not pass patent laws. The Constitution itself gives nothing to inventors. The rights are entirely statutory, and we could end our patent system without a constitutional amendment. I think that’s generally recognized with trademarks, which by falls under the commerce clause, but the mistake is often made that because patents and copyright are mentioned specifically in the Constitution, they are constitutional rights like for example free speech or the right to bear arms. It’s arguably quite the opposite, with the duration being inherently limited, and the stated purpose of the patent and copyright systems (to promote the progress) being what Congress being what Congress has the power to do, and the respective systems being the means.

  77. A Constitutional Question, February 6, 2011 9:47 am

    Bobby,

    I am not sure if you actually answered my question, as your answer of a “Congress can change” appears to be an oblique diversion. So I will ask again, did Congress write the Constitution?

    What is your understanding of “enumerated powers”? Can Congress change their enumerated powers? If so, how?

  78. A Constitutional Question, February 6, 2011 9:49 am

    Bobby,

    You also have not answered my earlier question, which I repeat here:

    By your own words, isn’t it then redundant that “In this context, it would include creating the right and a system to enforce that right“, since the system to enforce is covered below?

  79. Bobby February 6, 2011 2:10 pm

    ACQ,
    “So I will ask again, did Congress write the Constitution?”
    No. The Constitution already considers the powers in Article 1, Section 8 to be optional.

    “What is your understanding of “enumerated powers”? Can Congress change their enumerated powers? If so, how?”
    The enumerated powers of Congress are the powers given to Congress. While not alone, Congress’s powers can be altered through a constitutional amendment. Just because Congress has a power doesn’t mean they have to use it.

    “By your own words, isn’t it then redundant that “In this context, it would include creating the right and a system to enforce that right“, since the system to enforce is covered below?”
    I will admit that I didn’t completely take the Copyright and Patent into full isolation from the necessary and proper clause, so my wording was not as precise as it should be. Excluding the N&P clause, I suppose the line would be that Congress could create patent laws, but not the USPTO, without which, effective patent laws would be difficult if not impossible.

  80. A Constitutional Question, February 6, 2011 11:35 pm

    Bobby,

    Do you recognize the parallel of particular sections that use the dual words of “secure” and “promote”? Would you consider the first use indicative of “optional”?

    I am not sure I understand your answer of “while not alone” in view of the enumerated powers question. Were you saying that amendments to the Constitution cannot be undertaken by Congress alone?

    I also am not certain just how you mean “doesn’t mean that they have to use it.” Are you saying that if a situation arose where a duty to use a power was called for and Congress decided not to use that power, that there would be no Constitutional crises? Do you think that your use of the word “optional” is too cavalier?

  81. Bobby February 7, 2011 6:09 am

    ACQ,
    “Do you recognize the parallel of particular sections that use the dual words of “secure” and “promote”?
    I see both words are used in the preamble, but I wouldn’t necessarily consider that a parallel. In the preamble, the ‘secure’ and ‘promote’ are for different stated purposes for the Constitution, while in the C&P clause, ‘promote’ is the power given and the explicit purpose of any copyright and patent system we may have, and ‘secure’ is the means to do so.

    “Were you saying that amendments to the Constitution cannot be undertaken by Congress alone?”
    Yes, I was saying that Congress can’t amend the Constitution by itself.

    “Are you saying that if a situation arose where a duty to use a power was called for and Congress decided not to use that power, that there would be no Constitutional crises?”
    I would think so, but as I said before, Article 1, Section 8 consists of optional powers, not required duties.

    “Do you think that your use of the word “optional” is too cavalier?”
    No, because it is by no means required of Congress, so it is optional for Congress. That’s what ‘optional’ means. A simple litmus test for this would be the constitutionality of a law that ended all patents. So, I’ll turn things around and ask you a question. Would a law that ended the grant of new patents for which there was no existing application (I’m phrasing it in this manner just to get rid of any ex post facto concerns) be considered unconstitutional?

  82. A Constitutional Question, February 7, 2011 7:49 am

    Bobby,

    I thought that you had recognized the necessary and proper clause as providing the means. Are you saying the Constitution is redundant in this particular situation with “and ’secure’ is the means to do so”? Isn’t a simpler answer that you are reading “secure” incorrectly?

    I ask these questions as a driver for you to realize how you are using the “optional” term in an area that is concerned with Who has the powers, and less with who may choose to exercise the powers (I am not sure you fully understand the enumerated powers and the separation of powers aspects). One would only need to look at the other section 8 powers (most notably the military aspects) to gauge just how “optional” the enumerated powers are. If Congress choose not to execute these powers (notwithstanding Clause 18), would we even have a country in which to be discussing this?

    There is more to the necessary and proper clause than merely providing means. What do the words “into execution” mean to you (and remember that Congress did not write this part either)?

    Regarding your question of “Would a law that ended the grant of new patents for which there was no existing application be considered unconstitutional?” I find this to be difficult to answer because your phrasing is unclear due to your ex post facto concerns, How is one to obtain a grant without an application? Are you saying that the patent laws (which direct the examination of the applicaiton and the ensuing grant) do not exist? I don’t understand the premise of your hypothetical, so I am uncertain as to what you are actually asking. Can you clarify?

  83. Bobby February 7, 2011 12:53 pm

    ACQ,
    “I thought that you had recognized the necessary and proper clause as providing the means. Are you saying the Constitution is redundant in this particular situation with “and ’secure’ is the means to do so”? ”
    With a very strict interpretation in the C&P clause, what is given to Congress is the power to establish the rules that judges will use, such as issuing injunctions. The C&P clause doesn’t explicitly allow for the USPTO or a similar institution, so without it, we probably could not have the patent system as is, and it would likely be a rather ineffective system.. It’s more an issue of the elasticity to do what is needed but not named than redundancy.

    “One would only need to look at the other section 8 powers (most notably the military aspects) to gauge just how “optional” the enumerated powers are. If Congress choose not to execute these powers (notwithstanding Clause 18), would we even have a country in which to be discussing this?”
    I say it as plausible that we could. There is a decent likelihood that we wouldn’t exist, but it wouldn’t be inherently necessary. If the political climate was one where a military attack by a foreign country on the US would be political suicide for all of the countries technically capable of executing such an attack, perhaps because our allies would act swiftly enough in retribution, then the US could continue to exist without a military. It may in many cases be practically necessary for continued existence of the US to an extent that politicians that oppose such measures are very quickly replaced in our current environment, but it isn’t constitutionally necessary. Don’t confuse the two.

    “How is one to obtain a grant without an application? Are you saying that the patent laws (which direct the examination of the application and the ensuing grant) do not exist? I don’t understand the premise of your hypothetical, so I am uncertain as to what you are actually asking. Can you clarify?”
    Basically, we have a cutoff date. If you have applied for a patent before that cutoff date, you can get a patent, and use it for it’s full duration since the inventor has already engaged in disclosure. If it’s past the cutoff date, you can’t get a patent no matter how groundbreaking your invention is. We are killing the possibility for all future patents until new legislation is passed, but letting all existing or pending patents remain so the question doesn’t have an ex post facto concern. If you want a simpler version, try this one, and assume the retroactive reduction of patent terms is treated in the same manner that retroactive extension of copyright was:
    No further patents shall be granted under any circumstances, and all existing patents shall expire upon the passage of this act. Would such an act be unconstitutional (excluding the possibility of invalidation of the latter part by ex post facto)?

  84. patent litigation February 7, 2011 5:57 pm

    I, too, am disappointed that the Supreme Court granted cert in Microsoft v. i4i. Unfortunately, I wonder whether the decision to do so derives at all from the fact that Chief Justice Roberts happens to be a Microsoft shareholder. One wonders whether recusal will be forthcoming, but either way the damage is probably done.
    http://www.youtube.com/watch?v=2OfoURsNBl8

  85. A Constitutional Question, February 7, 2011 10:36 pm

    Bobby,

    I see where I misunderstood you concerning “the grant without applications” – it is actually your position that no additional applications be taken for which a grant may occur, is that correct?

    How do you avoid such issues as Due Process (given the current right to have continuations and divisionals)? Short of a Constiutional Amendment, how would you handle the critical legal problem in that some would have the protection provided by the Constitution, while others would not. Congress cannot pick and choose that way – they either have a law, or they do not. Even if I jump to what you seem to be saying and now look at your alternative of proposing a retroactive reduction in patent term (for all patents), how do you avoid the issue of the takings clause? Since patents are property, such a wide scale taking would very likely be deemed unconstitutional (you may want to review the history of eminent domain to see how the Supreme Court has recoiled since the Kelo decision). History itself would speak against any type of universal statement that patents fail to serve the Constitutional directive, and simply abolishing that directive – with nothing in its place would fail, wouldn’t it? Or are you thinking of something else that can take the place of the directive? To say the clause is “optional’ is one thing. To simply stop without more doesn’t seem very rational, does it?

    Even if I waive any type of legal concern, I just do not see this as a feasible undertaking.

    Are any of these concepts even contemplatable, given the obvious difficulties Congress has with making even far less drastic legislative changes in patent law? While I recognize that you are floating hypotheticals, don’t the hypotheticals have to have some grounding in reality to be worth discussing?

  86. Stan E. Delo February 7, 2011 11:28 pm

    ACQ,
    NO, the concepts do NOT. Bobby is just a mindless berserker, and it is probably not possible or wise to try to debate anything with him or her. To refresh some memories, berserkers were traditionally Norwegian or Swedish Vikings that set out in their ships from their poverty stricken shores to kill, steal, rape and who knows what else, just because they were very angry and stoned out of their minds on psychedelic mushrooms for instance, and were starving. The berserker idea evolved in some later Science Fiction stories into automatons that were programmed to seek out organic life of whatever type and destroy it, for reasons that only their creators could have possibly known. Can you say Terminator? No worries though, because he will be back, as the Governator of California might be wont to say. It takes two to argue, so please don’t give him another excuse to send his insane thoughts out into the bloggosphere. There might be hundreds of inventors reading his stupid garbage, which I strenuously object to, as some of them might get sucked into his vapid vortex of ignorance. Kudos to Gene for keeping such an open mind, but at some point Bobby will have to go get a job or something, and give us all a break from his posting 20 or more pages of “stuff” every day. Stick an Alum soaked sock in it Bobby!!

    Stan~

  87. Bobby February 8, 2011 12:51 am

    “I see where I misunderstood you concerning “the grant without applications” – it is actually your position that no additional applications be taken for which a grant may occur, is that correct?”
    Yes, that’s the proposal.

    “How do you avoid such issues as Due Process (given the current right to have continuations and divisionals)? Short of a Constiutional Amendment, how would you handle the critical legal problem in that some would have the protection provided by the Constitution, while others would not. Congress cannot pick and choose that way – they either have a law, or they do not.”
    I’m not entirely sure what the conflict you are speaking of is. We have had changes to the terms of patents on multiple occasions, and dates and conditions for when we shift from one set of rules to another. Parties who filed at one point are subject to different rules than parties that filed at another point.

    “Even if I jump to what you seem to be saying and now look at your alternative of proposing a retroactive reduction in patent term (for all patents), how do you avoid the issue of the takings clause? Since patents are property, such a wide scale taking would very likely be deemed unconstitutional (you may want to review the history of eminent domain to see how the Supreme Court has recoiled since the Kelo decision).”
    It would be sort of like Eldred v. Ashcroft, but instead of retroactively extending the terms of copyright, it is retroactively reducing the terms of patents. I don’t see a good reason that we could do one and not the other, and if anything, I’d see reducing having a slightly stronger position. What we do with existing patents isn’t particularly important either way for this hypothetical, so if you want an even simpler version, let’s ignore the complications that existing and pending patents bring, and focus on the constitutionality of not having any more patents in the future. Ignoring what we do about existing and pending patents, ponder the constitutionality, not the practicality, of the following act:
    No further patents shall be granted under any circumstances.

    “History itself would speak against any type of universal statement that patents fail to serve the Constitutional directive, and simply abolishing that directive – with nothing in its place would fail, wouldn’t it”
    It depends on your source and your methods. The data and arguments I’ve seen suggest that patents have never been a net benefit, which would mean that ‘doing nothing’ is preferable.

    “While I recognize that you are floating hypotheticals, don’t the hypotheticals have to have some grounding in reality to be worth discussing?”
    The primary reason I state that patents are optional is because the debate establishes the relevant interests for responsible patent policy. If inventors have a constitutional right to patents, not just a statutory right, then it should be a BALANCE between the public and the inventors’ conflicting rights. If inventors do not have a constitutional right and thus only have the statutory rights that Congress may or may not assign them, then there is nothing that will be involuntarily taken from them and thus no need for direct consideration, and we have to look into a TRADE-OFF between the public interest of having useful inventions and being able to use useful inventions, ideally giving us the mix that is best for the public. I posit that inventors only have statutory rights, and thus policy should be driven by the trade-off mindset.

  88. Blind Dogma February 8, 2011 7:48 am

    Not seeing the issues when they affect your precious Dogma.

    Nothing new here.

    You really should do more than sleep at a Holiday Inn if you want to apply the law.

    nothing that will be involuntarily taken from them” – except what they create. Oops, forgot about that small detail.

  89. Blind Dogma February 8, 2011 12:15 pm

    ACQ,

    You should be seeing in Bobby’s answers a total lack of understanding of how law actually works, only a surface knowledge of the Constitution (no doubt gleaned from the software anti-patent propaganda that he has vociferously consumed) and a desire to simply dispense with any legal ramifications in jumping to his ideal state of “no patents“.

    Given his lack of understanding of the concepts behind patent law, you are wasting yor time with other legal concepts such as Due Process (Bobby wouldn’t know the difference between Substantive and Procedural), and the brush off – hand waiving you see when you ask for some practical transitions shines through the threadbare cloth he wants to pull over your eyes.

    Clearly, there is a purposeful ignorance at work, an over abundance of a socialist-tinted “the people” and a mirrored lack of respect for the actual people that perform the actual creations that result in patents and copyrights. Such a guise of socialism pulled over a document that glories in the individual and explicitly enumerates a power to reflect on, and to promote the fruits of the particular indivdiuals, to liberally encourage their efforts – is something so important that the founding fathers listed this on par with the military and taxes. Try running a government with out either in this real world and see how far that would take you,

    Bobby,

    While we are at it, let’s take your fantasy world of no patents, no military and no taxes, and also dispense with all courts except the Supreme Court. Sound outlandish? Sure – but your ideology fully supports such outlandish notions (and worse).

    The real world needs real law, not your ivory tower wishful thinking. Grow up. Wake up.

  90. Bobby February 8, 2011 12:30 pm

    Blind Dogma,
    What the inventor has naturally is the right to keep their knowledge a secret to the best extent that is technically possible for them. Patent laws don’t change that at all. The way the patent changes things is if the inventor VOLUNTARILY chooses to reveal that secret in exchange for a legal monopoly.

  91. Blind Dogma February 8, 2011 2:15 pm

    Bobby,

    Your message is so replete with errors, you are having a difficult time maintaining your philospohy.

    Patent laws don’t change that at all.. The way the patent changes things is if the inventor VOLUNTARILY chooses to reveal that secret in exchange for a legal monopoly.

    The patent system is geared to encourage away from secrets. Don’t change that at all? – It changes it competely. You seem to have a hard time embracing that.

    Your previous comment on “nothing that will be involuntarily taken from them” proves a lie as you will be involuntarily takiing away from the inventors their patent rights. Oops – you forgot about that little wrinkle.

    In exchange for a legal monopoly” – you continue to butcher the meaning of monopoly in the legal sense. Perhaps you should stick to board games.

    You may also want to check out this link for a low level review:
    http://www.patentlyo.com/patent/2006/03/supreme_court_e.html

  92. Blind Dogma February 8, 2011 2:18 pm

    Gene – two messages caught in the filter (they are duplicates, so please post one of the two)

    Thanks,

  93. Bobby February 8, 2011 3:25 pm

    “The patent system is geared to encourage away from secrets. Don’t change that at all? – It changes it competely. You seem to have a hard time embracing that.”
    It’s hard to have an argument when you aren’t capable of reading comprehension. The ‘that’ in question was ‘the right to keep their knowledge a secret to the best extent that is technically possible for them,’ which the patent system doesn’t change. The inventor can still use secrecy if they so choose to, and that is all an inventor has absent a patent statute. Thus, in the patent system, an inventor can still do all the things they could have done with their invention absent the patent system IN ADDITION TO the option of disclosure under the conditions necessary to a patent. Ignoring the complexities of one inventor building on work done by another inventor who did get a patent, even the most measly of patent systems provides MORE options for an inventor than no patent system at all.

    “Your previous comment on “nothing that will be involuntarily taken from them” proves a lie as you will be involuntarily taking away from the inventors their patent rights. Oops – you forgot about that little wrinkle.”
    I’m talking about the effect of the patent system itself. The starting point of an inventor is their right to secrecy, and no patent law that I’m aware of has ever taken what the inventor starts with away from them without their voluntary choice.

    Now, ending the patent system, which is probably what you were thinking I was talking about there, would change the rights that a patent holder has, but those rights exist only because they are given by statute, and I think American science fiction author Robert Heinlein’s words fit well.
    “There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute or common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back.”

    Changing the terms of existing patents can be a tricky issue and I left a few proposed options open in the hypothetical because of that. However, the Uruguay Rounds Agreement Act retroactively granted small extensions to some existing patents (existing ones where 20 years after application was greater than 17 years after grant), and the terms of copyright have been retroactively extended several times. At the very least, changing the terms midstream is rather rude, but Congress and the Supreme Court don’t seem to have a problem with such behavior in favor of rightsholders, so I don’t see a reason why they’d have a problem with it in favor of the public other than perhaps slightly less full coffers.

    “you continue to butcher the meaning of monopoly in the legal sense. Perhaps you should stick to board games.”
    It is an accurate term. As I’ve said before, many others have used the term over a large period of time, including Giles Rich in a paper YOU recommended that I read. He was capable of differentiating between the sense of the word he and I were using and the sense you are interpreting. I see no need to change my vocabulary because you can’t understand the sense in which I and others are using the word.

  94. Blind Dogma February 8, 2011 10:43 pm

    Is it ironic (and deliciously so) that that the very quote you use from Robert Heinlein , rather than fit well as you say, or rather, as you intend, shows that your view is completely wrong.

    There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public…

    It is not a profit out of the public – the reason why it is called a Quid Pro Quo is because it is an exchange (as long as you keep your eyes closed to this, you will continue tripping). But let’s continue…

    for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future…

    You should by now realize that the patent right is not a guarentee of profit – not at all (another area that you refuse to open your eyes), but again, let’s continue,

    even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute or common law.

    Well there you go – your quote, or rather, your position is completely toast, as the doctrine – hardly strange (as it is explicitly referenced in the Constitution), and even under your dogmatic view, is fully supported by statute. It is merely (and only) your self(absorbed) and fully subjective view that the patent system is contrary to public interest (see my multitude of prior postings). But let’s get to the punch line…

    Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back

    This last portion is most poignant, as this captures exactly what you are attempting to do. It is you that constantly wants to ignore law, it is you that wants to ignore history and it is you that wants to ignore what the courts have said. It is you that wasnt to ask that the clock of history be stopped, or turned back – It is you that simply cannot handle the truth of the patent world. It is you that continues to run blindly and it is you, yourself, that is violating the core of the quote you wish to share with us all.

    As I have said in the past, Bobby, you keep on making my points for me.

    I suppose I should say thank you. I know your anti-software patent buddies are saying something a little less friendly.

    And for all you youngsters out there – let this be a lesson in overimbibing in anything – even my delicious Kool-Aid.

    Once you have sobered up, if you ever sober up, we can discuss your woeful understanding of other Constitutional concepts (like why there is no such thing as a reverse takings clause).

  95. Bobby February 9, 2011 1:15 pm

    BD,
    “It is not a profit out of the public – the reason why it is called a Quid Pro Quo is because it is an exchange (as long as you keep your eyes closed to this, you will continue tripping). But let’s continue…”
    Even an exchange with mutual benefit, which practical proponents of the patent system claim that patents give, is still ‘profiting off of the public.’ The companies directly in question in the short story the quote originates from were life insurance companies, whose provided service was an exchange that was voluntary for both parties involved and was much more direct than that of a patent holder.

    “You should by now realize that the patent right is not a guarantee of profit – not at all (another area that you refuse to open your eyes), but again, let’s continue,”
    It need not be an explicit guarantee for the point to apply. The life insurance companies had no explicit guarantee of profit, but sought an injunction against a man whose practice threatened the profitability of their business model.

    “Well there you go – your quote, or rather, your position is completely toast, as the doctrine – hardly strange (as it is explicitly referenced in the Constitution), and even under your dogmatic view, is fully supported by statute. It is merely (and only) your self(absorbed) and fully subjective view that the patent system is contrary to public interest (see my multitude of prior postings). But let’s get to the punch line…”
    You at least have a decent point this time, since current patent statutes are supported by current statues, However, our current statutes are by no means a reason why relevant future statutes need to support patents to the same extent or at all. If we were to come to the conclusion that patents are bad for society, then we should get rid off them, although I see a reasonable argument for a gradual transition instead of an abrupt transition.

    Also you seem to be again confusing the fact that patents are mentioned specifically in the Constitution as favoring the system without considering that they instead may have been singled out to keep them in check, which goes well with explicit mentions of a limited time for the patent.

    “This last portion is most poignant, as this captures exactly what you are attempting to do. It is you that constantly wants to ignore law, it is you that wants to ignore history and it is you that wants to ignore what the courts have said. It is you that wasnt to ask that the clock of history be stopped, or turned back – It is you that simply cannot handle the truth of the patent world. It is you that continues to run blindly and it is you, yourself, that is violating the core of the quote you wish to share with us all.”
    I’ve seen quite a bit of historical evidence that the patent system has not actually succeeded,. While there is still a fair amount of further evidence I’ve seen that they didn’t include, I recommend picking up Against Intellectual Monopoly, written by two economists and chock full of examples and theory on how patents and copyright have virtually always had a neutral or negative effect on the public. Legal, gratis, digital copies are even available with a quick search of the title through your search engine of choice. In regards to ‘the clock,’ they refer to patents and copyright as ‘one of the few remaining anachronisms from the pre-history of modern tax collection.’ They get a bit more aggressive as they finish that particular thought, but I’ll leave you with a teaser, as it might let you gain a new perspective on such manners.

    It’s also rather nice how you deflected the rest of my post by trying to twist the quote, although most of the points I made were in response to your poor reading comprehension.

  96. Blind Dogma February 9, 2011 2:03 pm

    Bobby,

    You are being quite ridiculous: It’s also rather nice how you deflected the rest of my post by trying to twist the quote, although most of the points I made were in response to your poor reading comprehension.

    Sure Bobby, blame your lack of legal knowledge on my “poor reading comprehension” and somehow come up with a way that I twisted the quote you provided.

    You were the one who tried to use the quote in the patent world (and away from the insurance world). You were the one who stepped in the bright spotlight that illuminates your rather pathetic and limited understanding of the patent law.

    The quote is a testament – just not the one you thought it was. It is a testament against your agenda. I noticed that you actually declined to discuss the most poignant part of the quote, instead retreating into more of your subjective “patents are bad” diatribe. You do ealize of course that your calls for abolishing patents is exactly what Heinlein warns against “Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back“.

    It is humorous that you retreat from the very quote you presented, right at its highest point (and not surprising the very point that places you in the spotlight). My Kool Aid delicacies need no further spin, so you can stop turning in circles.

    We will leave the inane comment concerning the Constitution’s specifically providing a power to reward and promote as somehow “to keep them in check” – now that is some serious logical twisting.

  97. Bobby February 9, 2011 2:56 pm

    What retreat? I completely debunked every element of your reply except for the statute part, and I addressed that.

    “You do ealize of course that your calls for abolishing patents is exactly what Heinlein warns against “Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back“. ”
    Only if one works under the assumption that patents are actually beneficial. Whether or not patents are beneficial or harmful to society is essential to whether or not history is moving forward or backwards in regards to patents. The rest of what was once called ‘letters patent’ in England is certainly considered part of the past, and the economic incentives we tend to use for most everything other than utilities are generally more direct.

    “We will leave the inane comment concerning the Constitution’s specifically providing a power to reward and promote as somehow “to keep them in check” – now that is some serious logical twisting.”
    The limited times and the stated purpose of the system explicitly being promotion of progress is the check. As the Jefferson letter to Isaac McPherson I’ve often quoted talked about, there was a somewhat popular notion of inventors having a natural right to exclude others not bounded any more than that of physical property. It seems quite likely, that all other things remaining the same, Sonny Bono’s CTEA would have opted to make the duration of copyright unlimited had the limiting provisions not existed instead of using the best loophole he could find to approximate it.

  98. Blind Dogma February 9, 2011 3:50 pm

    As the Jefferson letter to Isaac McPherson I’ve often quoted talked about

    And as equally often that you have talked about that letter, it has been pointed out that that letter has ZERO legal effect.

    Yet on you talk…

    completely debunked every element of your reply

    You debunked nothing. You state the original quote had to do with insurance, but you are the one who tried to apply it to the patent world. In the patent world, the quote destroys your position. The only one debunked is you.

    It would be a wonder if you ever tried to actually ground your positions in true legal theory. There is a good reason why you do not. Take a guess, my friend ( and a nice big gulp from that pitcher).

  99. Bobby February 9, 2011 4:50 pm

    “And as equally often that you have talked about that letter, it has been pointed out that that letter has ZERO legal effect.”
    My understanding is that judges often do try to get inside the heads of the founding fathers to get a better interpretation of the law. However, my purpose in referencing the letter here is primarily to establish that without specifying the limits and singling patents and copyright out, a threat of unchecked patent and copyright terms could have been quite real for the US. There is thus a good motivation for singling out patents and copyright without actually thinking they are inherently a great idea. I’m not asking you to admit that this is the undeniable truth and did not even phrase it as such, but rather to consider the possibility that patents and copyright were singled out and given specific rules because of a lack of trust instead of a feeling that such a system was essential. Open your eyes to possibilities outside of your own viewpoint.

    “You debunked nothing.”
    The specific points about the profit from the public and the guarantee were not different from the context of the story. Those arguments have zero validity given proper context. Context is an important thing, otherwise I would think that you happen to be a representative of Kraft foods with your constant references to Kool-Aid.

    “You state the original quote had to do with insurance, but you are the one who tried to apply it to the patent world. In the patent world, the quote destroys your position. The only one debunked is you.”
    The original story involved an insurance company, but that does not specifically mean it was about insurance. A common practice in literature and other artistic mediums is to convey a meaning outside of the literal situation. It would be more broadly about government protecting established interests whose time has passed regardless of the specific means, but even the specific situation is still largely parallel to patents, as what was sought from the established interests here was an injunction against a party that could undermine their business model.

  100. Blind Dogma February 9, 2011 10:51 pm

    Why is that you keep on neglecting the other phrase from that founding father – the one about liberal encouragement? Oops – that tends to dismiss your “it’s not a great idea” idea. Booby, a bit of advise – Instead of trying so hard to get different interpretations of the law, try actually learning the law.

    a threat of unchecked patent and copyright terms could have been quite real for the US.” Do you have any basis in reality for such a statement?

    As it is, Bobby, your ignorance of patent law not surprisingly prevents you from seeing the irony of the very quote you provided. As such, your attempt at pointing out literay techniques falls to the sublime (and I mean that in a well-meaning ineptitude that rises to empyreal absurdity sense – less the well-meaning, of course).

    And while you mention that context is an important thing, it is you that persistently ignores the very context of law while engaging in your delusions of blind dogma. You insist that “The specific points about the profit from the public and the guarantee were not different from the context of the story. Those arguments have zero validity given proper context” yet, it is your position that has zero validity precisely because you do not understand the context of patent law. You still have debunked nothing.

    but even the specific situation is still largely parallel to patents” except for the facts I pointed out that there are statutes that govern and that there is no strangeness given the explicit mention in the Constitution? Except for those slight issues, you mean?

    Do you have any clue as to how utterly foolish you appear in trying to make this argument?

    Or is this buffoonery of yours a part of some elaborate plan to make me feel guilty, like kicking a puppy? Let me give you another hint – you are no puppy, and I do not tire of kicking you.

  101. Stan E. Delo February 9, 2011 11:07 pm

    I think he is just trying to dazzle himself with his own brillance. Kinda sad that nobody besides Wayne seems to be listening. It’s not your fault BD!

    Cheers,
    Stan~

  102. Bobby February 9, 2011 11:26 pm

    “Why is that you keep on neglecting the other phrase from that founding father – the one about liberal encouragement? Oops – that tends to dismiss your “it’s not a great idea” idea. Booby, a bit of advise – Instead of trying so hard to get different interpretations of the law, try actually learning the law. ”
    The thing is, liberal encouragement need not be through patents. Federal funding can more directly encourage ingenuity, and it very well may be that in virtually all cases, it works better than patents.

    “Do you have any basis in reality for such a statement?”
    The last few changes to copyright terms are a good indicator. Sonny Bono’s widow said that the late Mr. Bono wanted copyright to last forever, but that such a change wasn’t constitutional. It’s rather straightforward. If someone with powerful IP has the ability to influence IP law, it is in their interest to extend the terms as long as they can, because it will result in them having a continual stream of income with minimal investment. Ask yourself and tell me the answer you come up with, at what point would Disney like to stop having a copyright on Steamboat Willie?

    “except for the facts I pointed out that there are statutes that govern and that there is no strangeness given the explicit mention in the Constitution? Except for those slight issues, you mean?”
    I said largely, not exactly. In the big picture, the situation is established interests attempting to use the government to protect them from obsolescence. One can argue that patent holders do this. When, you address that point, I’ll continue, since giving you more than bite size nibbles makes you unable to focus.

  103. Blind Dogma February 10, 2011 11:28 am

    When, you address that point, I’ll continue, since giving you more than bite size nibbles makes you unable to focus.

    Oh Bobby, I have no trouble focusing. In fact, it is you that cannot seem to see the picture. “Focusing” doesn’t count when what you want to visualize requries you to close your eyes to reality. That’s not “focusing” – that is “dreaming”.

    WAKE UP.

    As far as “established interests attempting to use the government to protect them from obsolescence” – you are now sounding in conspiracy theory land. Perhaps you can draw this wild imagination back to earth and somehow tie it into the very real rights provided by patent law. I am not sure if you are still railing against the notions of patents in the first place, or if you are now railing against any type of “property”. As your large scale dogmatic views are routinely routed, do you think that little nibbles of poison will achieve what you have otherwise failed so utterly to do?

  104. Bobby February 10, 2011 11:34 am

    See, you didn’t even answer anything, and you left out my most important question, although to be fair, I didn’t specify it’s importance: at what point would Disney like to stop having a copyright on Steamboat Willie?

  105. Blind Dogma February 10, 2011 12:27 pm

    and you left out my most important question

    Your most important question in a discussion of patent law is a copyright ownership question?

    Bobby – you applied a quote from Heinlein in the context of patent law. Are you that daft that you cannot even follow your own focus? I know that in your retreat you are kickiing up a lot of dust, but really, you have so blatently realigned “your most important question” to not even be about patents now?

    You have not only moved the goal posts, you have dismantled them and stored them away. How are you going to kick a field goal when you have nothing to aim at?

  106. Bobby February 10, 2011 12:37 pm

    “Your most important question in a discussion of patent law is a copyright ownership question?”
    It’s the most important one for proceeding further, which I suspect you may know, but are attempting to feign ignorance. Now quit dodging the question and answer it. at what point would Disney like to stop having a copyright on Steamboat Willie?

  107. Blind Dogma February 10, 2011 1:50 pm

    Bobby,

    I refuse to encourage your smokescreen tactics and veer off on tangential topics. Let’s stick to the point – your Heinlein quote refutes your views.

    You are mistaking “feigned ignorance” with “disgust at your avoidance of the actual issues at hand”.

  108. Bobby February 10, 2011 2:23 pm

    I’m not sure if agree that the Heinlein quote is the point, but you’ve not gone past my nibble In the big picture, the situation is established interests attempting to use the government to protect them from obsolescence. One can argue that patent holders do this. To specify, not all patent holders do do this, since the general consensus seems to be that most patents are effectively useless. The most blatant offenders would tend to be the largest corporations in a particular field, who almost always have extensive patent portfolios.

    Since you won’t play the game of guided questioning, I suppose I’ll have to play for you.

    The answer is never. Disney never wants the copyright for Steamboat Willie to expire. Edison probably didn’t want any of his patents to expire either. If an established IP interest has the capability of making their IP perpetual, they will do their best to do so. This provides a decent reason for explicitly mentioning that patents exist for a specific public benefit (to promote progress, so as to not be confused with an author/inventor’s natural right), and that their duration must be limited. Perhaps that is not the reason or even one of the reasons patents and copyrights were explicitly mentioned, but it is certainly a reasonable theory. Much more reasonable than your apparent theory that making such laws our mandatory, when options are clearly given.

  109. Blind Dogma February 10, 2011 3:01 pm

    Do you like your straw Bobby?

    Much more reasonable than your apparent theory that making such laws our mandatory

    If you remember correctly, we did not approach this aspect since I called it out for what you are now using it for – a smokescreen.

    If you also remember correctly, it was your supposition to completely remove patents. Further, it was your suppostion that the inventor had no place in the balance, since it was only society’s rights that were at issue.

    It is funny how when you decide what is “reasonable” and “apparent”, how the actual issues and problems with your philosophies slink under the rocks. Do you further notice, that you have completely disengaged from the very quote that you thought was so clever, but only after I showed you how clever the quote truely was, as it put your efforts in the spotlight of those things that we should not do?

    This is all very reminscent of your past attempts at farm policy and other vehicles that you have brought forth (but had not quite critically thought through) that end up showing your views as aberrant.

    It would really be easier for you Bobby if you simply put down your dogma and studied law in an objective manner. It would be less painful, you would be kicked about less and run over less. Do you really enjoy the pain that much?

  110. Bobby February 10, 2011 3:20 pm

    I did not disengage the Heinlein quote. I gave you a little nibble to consider, and you’ve left it on your plate, demanding desert, but you can’t have your pudding without any meat. You’ve not said anything of substance in your last post, As for the supposed pain, I feel none, but your methods do amuse me. You truly are a master of derailing a conversation, though.

    For example, you have still not properly addressed the notion that without the patent system, the inventor naturally has nothing but the technical capacity for secrecy, which the patent system does not take from them.

  111. Blind Dogma February 10, 2011 3:55 pm

    and you’ve left it on your plate, demanding desert, but you can’t have your pudding without any meat. You’ve not said anything of substance in your last post” Yes – calling your attmepts at straw and smokescreens doesn’t make much of substance – but you must consider that I am talking of your rather insubstantial efforts – can you blame me if your efforts lack substance?

    If you are hungry, then deal with my post at 94 – a full course meal (for you – mostly shoe). Oh wait – you changed the subject then. Funny, how you are now getting in the fine habit of accusing others that which you do when you have no answers to the actual points of law. Damm, how law just gets in the way of everything, doesn’t it?

    I did not disengage the Heinlein quote.” Actually – you did – and at the critical point, as I pointed out. Trying to change the story doesn’t work so well when anyone can simply scroll up and see the story unfold.

    Seriously, your claims of my posts not having substance are getting old, when you constantly refuse to treat law as the substance it deserves and go off on your (eyes-closed) larks. You constantly want to delve into mythical alternative universes where patent law magically disappears so that your ideology has a snowball’s chance of beign viewed as having merit.

    WAKE UP.

  112. Bobby February 10, 2011 4:16 pm

    Actually, you were the one the one that changed the subject to the Heinlein quote by interpreting the words too literally. I addressed the points you made, and you called it a retreat.

    “You constantly want to delve into mythical alternative universes where patent law magically disappears so that your ideology has a snowball’s chance of beign viewed as having merit.”
    It need not be magical. A Congress that saw patents in a negative light could make such a change as well.
    I propose hypothetical mainly to get a point across to you that the patent system was intended by the Constitution to be public-centric, not inventor-centric. You appear unable to get that thought into your noggin, pretending the same inventor-centric fiction that concerned Jefferson is truth.

  113. Blind Dogma February 10, 2011 5:05 pm

    the patent system was intended by the Constitution to be public-centric, not inventor-centric

    There is no polite way of saying this – but you are seriously wrong in your beliefs.

    Your eyes are still clenched tightly closed – the patent system was an exchange – neither public-centric, nor inventor-centric. My repeated calls to you (which you never answer) – what is the Quid Pro Quo – what is patent law about – your refusal to understand these concepts traps you in your dogmatic world of public-centric falsehoods. You are incapable of recognizing reality.

    Your insistence on it being public-centric – to the exclusion of the inventor – is the genesis of our discussion. It is the critical point that you must accept – that acceptance will radically change your dogma. You further delude yourself that since I do not agree with you I must be advocating an inventor-centric system. You are wrong and you are wrong yet again.

    Open your eyes to a brave new world – one where your dogma has no place.

  114. Bobby February 10, 2011 5:44 pm

    BD,
    “Your eyes are still clenched tightly closed – the patent system was an exchange – neither public-centric, nor inventor-centric. ”
    I make plenty of exchanges, and I’m sure you do as well, and virtually all of the decisions I make are centered around what I perceive as best for me. I analyze the tradeoff of the cost of a good or service with the benefit I will receive from it. If I entrust someone with my money to make an exchange for them, I expect them to make the same kind of judgment. The public has entrusted certain rights to the government in a similar manner, so we should expect them to make good use of our rights.

    I do not say that the inventor should be excluded, but rather that their interests should not be directly considered. Public policy should be guided by the tradeoff between costs and benefits of a particular policy. The best policy is the one that nets the public the greatest value.

  115. Blind Dogma February 10, 2011 8:13 pm

    I do not say that the inventor should be excluded, but rather that their interests should not be directly considered

    A difference without a distinction.

  116. Blind Dogma February 10, 2011 8:49 pm

    basics Bobby – who is the Quid Pro Quo between?

  117. Bobby February 10, 2011 9:12 pm

    I believe you might mean ‘a distinction without a difference.’ Obviously, inventors are a technical requirement for inventions. If we at some point, are able to build non-human machines that can invent on parity with inventors, then substitution of the machines for inventors might be appropriate. However, just being required doesn’t mean they deserve direct consideration. Like I’ve said before, the patent system doesn’t force inventors to give up anything, so they can fully decide for themselves whether or not to use patents, or to try to keep their invention a secret, or whatever. The consideration to be given to inventors is what benefits we can get out of them for what cost.

  118. Blind Dogma February 11, 2011 11:34 am

    Like I’ve said before, the patent system doesn’t force inventors to give up anything

    If by “doesn’t force”, you mean that an inventor doesn’t have to use the system, that’s a useless tautology.

    The fact is that we do have a patent system. The plain truth is that we want inventors to use the system (another tidbit you refuse to acknwoledge is the “liberal encouragement”) The fact is that in order to have and use that (any) patent system, the inventor is a critical and primary component – not some one that merely deserves some “indirect consideration”. Your philophy is simply incongruent with the Constitution and with the law, That is why your chosen quote was so deliciously ironic – it lambasted your attempts – “Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back. ‘ That is why you must call for a suspension of reality in order to have anyone consider your propositions. You need to leave behind your dream world and rejoin reality. You need to realize that Heinlein was talking to you, telliing you to stop,, telling you that you have no right to take what is not strange (as fundementally understood and placed in our Consitution) and what is fully governed by Statute, and try to stop history, to turn back history such that no consideration for inventors be considered.

    Seriously Bobby, when your starting position is filled with such ignorance, it holds little hope that you will actually understand anything about patent law.

  119. Bobby February 11, 2011 1:27 pm

    You have said nothing that explains why the public shouldn’t try to get the best value we can from inventors, and why we should focus on anything other than that. A for-profit business does the same thing with customers, which are a ‘critical and primary component’ to making a profit. Businesses of course want customers, but only because they generate value for investors.

    “Your philophy is simply incongruent with the Constitution and with the law”
    The Constitution quite clearly says that any patent system we have should be for the public good, the benefit of society.

    “You need to realize that Heinlein was talking to you, telliing you to stop,, telling you that you have no right to take what is not strange”
    He’s talking about parties that are established entities using the government to protect them from obsolescence. It’s fairly difficult, although perhaps not impossible, to pin that label on deregulation. You just got far too excited about the mention of statute, and missed the big picture. You’ve been quite silent about the ‘profit from the public’ and ‘guarantee’ parts since I’ve shown in context that your complaints were not valid, and the turn history back part is dependent upon whether patents are a step forward or a step back.

    “and try to stop history, to turn back history such that no consideration for inventors be considered.”
    If the patent system doesn’t work in actually promoting progress, which the evidence I’ve seen suggests, than we should leave it behind, and doing so would be letting history advance, just as leaving behind various pseudosciences and crown granted monopolies was. If there is better evidence that at least under certain circumstances, patents give society the best value of any tool legally available to us, then we should have patents under those circumstances.

  120. Blind Dogma February 11, 2011 4:49 pm

    You have said nothing that explains why…we should focus on anything other than that.

    WRONG – I have said plenty. You on the other hand have refused to listen. I have mentioned things like Constitution and Statute, and even made reference as to how these things properly analagize to your pretty quote.

    You continue on with your eyes closed, your hands to your ears, chanting “nah nah nah nah.”

    Why again are you posting on a legal blog, when you refuse to acknowledge the legal principles key to the discussion?

  121. Bobby February 11, 2011 5:34 pm

    I’ve listened quite well, although you have only seen what you wish to read in my words. You accuse others of being blinded by dogma, but I think it may be you that is blinded, which is why you feel the need to accuse others of blindness so often. If you can’t actually respond to the points I make, then it’s impossible to have an adult argument with you.

  122. Blind Dogma February 11, 2011 6:29 pm

    If you can’t actually respond to the points I make

    Translation: if you cannot suspend all that you know about how true law works, how and what Quid Pro Quo really means, and purely accept the crap that I deal out as “points”, then it is impossible to have an adult argument with me.

    Bobby, I hate to burst your bubble, but I am not looking to have an “adult” argument with someone who refuses to understand the basics of the points to be discussed and insists on “seeing” things only through the filter of a dogma so blinding, that the person cannot see how the quote he even produced shows him to be utterly wrong.

    There is nothing ‘adult” about you wanting to stay in your make-believe world and wish that the Constitution and Patent Law said things they do not say. I have already turned down your invitation to this phantasy world, and have often extended an invitation to you to join the real world where real law exists. Unfortunately for you, that would mean that you would have to surrender your Dogma, and open your eyes.

  123. Stan E. Delo February 11, 2011 7:15 pm

    BD-

    Since Bobby is unable to respond in any meaningful legal sense that even I can comprehend as an untrained independent inventor, I think he is doomed to continue to trip over his blind guide dog over and over again. Sorta sad that he hasn’t a clue about how much damage abolishing patents would do, just for his *greater public good* or whatever. He completely avoids being responsible for stealing or *borrowing* the inventions of others that way I suppose, which is perhaps a very sad commentary about his lack of creativity perhaps. As you have mentioned several times, he seems to be incapable of understanding the concept of the Quid pro Quo concept that US patent law represents and who the parties involved actually are, and instead wants to veer others away from the true meaning with strange smoke screens that truly warp his alternative universes. I say universes because the universe according to Bobby seems to be morphing into other things at his convenience, and logic of any sort be damned or altered to suit the universe according to Bobby. Nobody died and appointed you Emperor of the Universe Bobby, so all this sturm and drang is all for naught, and I applaud BD for standing up and saying so. Why are you so interested in giving MY patent rights and property away for free Bobby? What if I came by your house and told you that I really liked your house, and that the Public had decided that you should move out for the greater good of *society* within a week and give it to them or me for free? What would you do in that case? Would you pull out a weapon and send them packing, or would you call the *Police* to avoid an ugly incident? An inquiring mind would really like to know.

    Stan~

  124. Stan E. Delo February 11, 2011 9:16 pm

    BD-

    It seems as if B has apparently blinked somewhat, when facing irrefutable *arguments*. Well boo hoo for the creation of his alternate Universe. You have to do much better B, or you will become just road kill on the Highway of patent rights. I don’t suppose you will even agree that I am entitled to ANY patent rights, but that seems to be a personal preference of yours that I cannot agree with. No way, and you are making arguements that have no basis in an actual legal sense. Have you ever considered hacking code in Israel or maybe Egypt for instance? Your choce of course, but you might want to be careful about what you are asking for.

    Stan~

  125. Stan E. Delo February 12, 2011 6:37 pm

    BD- It seems as if B has had his switch turned off by Gene? I sent Gene a copy of one of my latter posts as in #123, and Bobby seems to be eerily silent after that. Thank God or whomever for that, as it would really raise my hackles rather a lot if Bobby was foolish enough to try to argue with Cheif Judge Michel. He is just adrift, and has no idea about what is really of value. More’s the pity. as I have been working on two new flavors, as in Zany Zinfandel and Gratuitous Grenache. Looks like you will have to find someone else to debate with. It seemed like you were not able to get any traction with Bobby anyways, so where is the loss in any substantive manner? Fluff and pomposity is not a very good recipe for success in my opinion.

    Stan~

  126. Blind Dogma February 12, 2011 8:29 pm

    Fatal Fluff and Pompous Pomegranate….

    Although selling the Fatal Fluff may need a prescription.

  127. Stan E. Delo February 12, 2011 10:34 pm

    To badly paraphrase a quote from the late and great Senator Anne Richards from the great state of Texas, “He just can’t help it if he was born with a *mercurial*(silver) spoon in his mouth.” I really miss Anne a lot, but I will Not miss Bobby very much at all.

    Stan~