“It seems to me that there can be no question that unconstitutionally appointed so-called judges can only make unconstitutional decisions. Since these decisions were not made within the confines of the Constitution, they can have no effect on the patent rights they destroyed.”
Section 8, Clause 8 of the U.S. Constitution established a right. This right protects the fruits of intellectual labor in a similar way that property rights protect the fruits of physical labor. This is the only place in the Constitution where the word “right” is even used, and it is used to secure an “exclusive right” to an invention for the inventor. We call that a patent.
An exclusive right is the very essence of a personal property right and, for the first 220 or so years of U.S. history, patents were considered personal property rights.
In Section 8, Clause 8, we granted Congress the sole and exclusive power to create laws that protect that exclusive right. This means that only Congress can pass legislation protecting a patent right.
The Beginning of the End
But the Supreme Court in recent years has seen that differently. In a lofty chain of decisions that subverted the power of Congress and the very Constitution it is sworn by duty and honor to protect, the Supreme Court fully abandoned its role of protecting our rights.
The first was a case called eBay v. MercExchange in 2006, where the Supreme Court changed the very nature of the “exclusive right” by defining a public interest test for injunctive relief, which had the effect of turning patents into public property.
In 2011, Congress passed the America Invents Act, which birthed the Patent Trial and Appeal Board (PTAB). While Congress operated within its Constitutional bounds to write patent law, it did not write the law within the Constitution’s bounds. The most obvious failure is that Congress granted power to the PTAB to take personal property rights without due process, without an Article III judge, and without a jury.
Then, in 2018, in a case called Oil States, the Supreme Court came clean so they could rescue Congress for taking our rights by declaring that patent rights are not really rights after all. They are just government franchises like a toll bridge, of all things. The government giveth us our rights, the government taketh our rights away.
Fairy Tales and Failure
This was a failure, first by Congress, and then by the Supreme Court, to perform their Constitutional mandate of protecting our rights. The balancing act of three coequal branches failed because both believed in fairy tales called patent trolls (thus the toll bridge example in Oil States).
But we now have a Federal Circuit decision called Arthrex. Since the creation of the PTAB eight years ago, so-called “judges” have been operating unconstitutionally and taking patent rights from their rightful owners and effectively giving them to huge multinational corporations.
These so-called “judges” are now found by the Federal Circuit to have been unconstitutionally appointed. They are, in fact, so-called judges. So-called judges who for eight years have been invalidating over 80% of the patents that come before them.
It seems to me that there can be no question that unconstitutionally appointed so-called judges can only make unconstitutional decisions. Since these decisions were not made within the confines of the Constitution, they can have no effect on the patent rights they destroyed. The right exists now as it did on the day it was issued and all days in between because it could not be affected by an unconstitutional decision.
Our rights are greater than the government. Even the exclusive right is greater because it was already written into the Constitution on the day it was signed, thus creating the government. That same Constitution tasked the government with the duty, privilege and honor to defend our rights.
But the Federal Circuit saw that differently. The Federal Circuit decided that just because the fake so-called judges were appointed unconstitutionally and for that reason their decisions are not constitutional, those unconstitutional decisions already invalidating patents on the request of huge multinational corporations stand unless the patent holder complained to the so-called judges that the so-called judges were unconstitutionally appointed.
In Arthrex, the Federal Circuit in effect decided that our rights are subordinate to the government, so the government has the authority to giveth them to us or taketh them away.
I would like to remind the Federal Circuit, the Supreme Court, and Congress that you are tasked with the honor, privilege and duty to defend our rights. That is the very basis on which you are employed, and you have no function other than that. Our rights preexist you, supersede you, and come from sources that are above your pay grade. They exist as a matter of our birth.
You have no legitimate authority to take those rights just because it is inconvenient for the huge multinational corporations that have to now deal with the illegitimate position of owning our rights because so-called judges unconstitutionally took them from us and gave them to those huge corporations.
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