One Inventor’s Unsolicited Congressional Testimony Following Arthrex

By Paul Morinville
December 2, 2019

“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.”

Paul Morinville Inventor https://depositphotos.com/68812441/stock-photo-old-style-hoto-retro-microphone.htmlSince inventors are rarely allowed to participate in patent discussions in Congress, I would like to submit my testimony here.

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.

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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.

A Reminder

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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The Author

Paul Morinville

Paul Morinville is Founder and former President of US Inventor, Inc., which is an inventor organization working in Washington DC and around the US to advocate for strong patent protection for inventors and startups. US Inventor has been walking the halls of Congress knocking on doors and sitting down with hundreds of offices to explain the damage suffered by inventors due to patent reforms. Paul is President of SemiComm HK, a Hong Kong company licensing patents in China, and an independent inventor with dozens of U.S. patents and pending patents in enterprise middleware.

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 38 Comments comments. Join the discussion.

  1. Anon December 2, 2019 9:07 am

    Paul,

    I was following along eagerly until: “ Our rights preexist you, supersede you, and come from sources that are above your pay grade. They exist as a matter of our birth..

    Here, your narrative suffers from an easily correctable overstatement.

    Certainly, there is a Lockean nature to patent rights.

    And just as certainly, the nature of “inchoate” versus “fully vested” is a critical consideration.

    In a manner reflecting a mirror version of TFCFM (who would disdain the act of “grant”), one should be more precise as to the nature of a patent right prior to grant.

    It is in the turning of the inchoate into the full property right (and not before) that ALL of the Constitutional protections of property become invoked.

    And it is worth remembering that the triumvirate of “sanctified” items — the very reason why we allow ourselves to be ruled by government — includes the protection of Life, Liberty, and Property.

  2. Bernard Nagelvoort December 2, 2019 9:52 am

    Right on!

  3. Model 101 December 2, 2019 11:45 am

    “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.”

    You forgot to mention Alice, Mayo.

    400 cases were decided with NO EVIDENCE or FACT FINDER.

    If Congress doesn’t fix 101 and the Arthrex PTAB judge problem retroactively, a generation of technology was basically handed to the Silicon 6 for free. The Silicon 6 were told “how to do it” and they did it and profited.

    Congress should do the right thing. There is NO WAY any inventor would even think about filing a new patent application in the US based on the past absurdity and lack of judicial integrity.

  4. step back December 2, 2019 12:10 pm

    Paul,
    Good insights.
    The first among frauds is that they use the word “patent”.
    These are not patents and it is not a patent office.
    It is a “takings” office. Fool and take from inventors that which they thought they were protecting (aka fraud)
    United States Office of Defrauding American Inventors. USODAI

  5. angry dude December 2, 2019 1:11 pm

    Paul,

    I understand that you want to be polite and politically correct, but let me call the things they truly are…

    HIGH CORRUPTION and TREASON withing the upper echelons of US Government

    Where is Special Prosecutor ???

    SCOTUS “justices” will (hopefully) have to face some consequences too…

    https://en.wikipedia.org/wiki/The_Judgement_of_Cambyses

  6. Ben December 2, 2019 4:45 pm

    America has killed the life blood that made it the greats nation in the world and that was its strong patent system that protected all inventors regardless how small they were. The Government have sold out the nation to corporate elites like FAANG. Inventors have already started to set up roots over seas where patents are protected. They are now moving into a point of no return, it’s just a mater of time that the next great ideas come from Germany or China that will exceed FAANG. America can not have it both ways, and by the looks of things it will not end well for the U.S. in the coming years, if they do not fix their patent system very soon.

  7. Pro Say December 2, 2019 4:54 pm

    Thanks Paul.

    Yet another powerful entreaty among many.

    Congress: Where? Are? You?

    It’s now December.

    December.

    Months since the eligibility hearings.

    Are you going to introduce the eligibility-restoration bill that our Country so desperately needs . . . before the year end recess . . . before the dawn of another decade . . . before any further American innovations are wiped out?

    Are you?

  8. angry dude December 2, 2019 9:24 pm

    Pro Say@7

    “anything under the sun that is made by man”

    No need for further legal mumbo-jumbo

    The “Gordian knot” can’t be untied – it must be cut with the sword

  9. Jeff Lindsay December 3, 2019 7:49 am

    Thank you, Paul! I just had dinner with a great inventor anxious to file a patent and had to alert him to the shameful situation in the United States to help temper his expectations. I hope he will find success, but it is so very difficult now.

  10. Lady Tiger December 3, 2019 9:38 am

    Shared!

  11. TFCFM December 3, 2019 10:05 am

    PM: “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.

    Such nonsensical statements might make their author and other non-critical thinkers feel better, but they really have no place in intelligent conversation.

    The patent clause of the Constitution creates no individual property “right.” The patents clause, at best, empowers the Congress to create whatever statutory scheme it might deem expedient to grant exclusive rights in inventions, employing whatever restrictions, requirements, and procedures it deems proper.

    Such restrictions and requirements include the conditions for patentability, which double as the conditions for validity of a patent. Such procedures include the application examination procedures, procedures for reexamining and reissuing patents (even ones that fantasy authors dislike), and procedures for judicial findings of invalidity and/or unenforceability.

    To the extent that patent rights are granted, a “taking” which requires compensation is, at least, contingent upon the rights being valid ones — i.e., a finding that a patent claim is invalid is not a “taking.” By contrast, a government seizure of a valid, enforceable patent claim might be a “taking” (assuming all other requirements are satisfied). AIA invalidations of patent claims are not “takings.”

    “Gimme!!!” is a common refrain these days, but hardly one likely (or effective) to fool folks capable of critical thought. The current Congress might not be composed exclusively of such folks, but it seems a poor bet to offer fantasy in the hopes of fooling an entire Congress. (Perhaps why these baseless comments are offered here, instead of actually to the Congress.)

  12. Anon December 3, 2019 12:05 pm

    TFCFM,

    Please see comment one.

    (and then weigh that bundle of sticks both before and after an institution decision — which comes prior to any validity determination)

  13. concerned December 3, 2019 12:54 pm

    TFCFM:

    It does not take much critical thinking to realize the means used to justify the end. And if the means is highly questionable, then applying such critical thinking has to ask “why such suspect handling of the matter if the law is so clearly on their side?”

    Insubordination, amplification of the law’s text, and then a re-amplification of the court’s decision that expanded the law’s text, tossed or non-addressed evidence, complete mis-representation of the claims wording to include dropping the meaningful limitation, using court cases admittedly outside the field of technology, admitting the solution of a problem yet no practical application, etc.

    If I had the law on my side, why resort to the above named activity?

  14. Paul Morinville December 3, 2019 3:58 pm

    TFCFM, What part is for fools who lack critical thinking skills? Is it that our rights existed prior to government? Is it that we granted only some rights to the government and then enumerated them in the Constitution to make sure that the government does not take more than those enumerated? Is it that the government’s sole purpose is to protect our rights? Is it that it is above the governments pay grade to take our rights?

    An invention not patent pending is not a right. We could argue if an invention is a right if a patent is applied for but not issued. Perhaps we could both be reasonable and still disagree. But once a patent is allowed, it is a right – an exclusive right. That fact cannot be more clear in the plain wording of the Constitution. Or do you disagree with that?

    Please be specific.

  15. Jacek the "troll" December 3, 2019 5:19 pm

    What we have here is a parody of law. What always surprised me is the arrogance of US courts accepting cases clearly outside of the scope of their jurisdictions and creating new laws on the fly. Part of the material you must study preparing yourself for the USPTO examiner exam is clearly marked as not a law but you must know it by heart. Illegal law?

  16. Disenfranchised Patent Owner December 3, 2019 7:21 pm

    “AIA invalidations of patent claims are not ‘takings.'”

    TFCFM = The Fool Can’t Fool Me

    Paul, this is another excellent piece of work that accurately describes why no inventor in his/her right mind should consider applying for US patent “protection.”

    Our government is doing its best to kill the geese that lay golden eggs of innovation.

  17. angry dude December 3, 2019 11:16 pm

    Aleksandr Blok
    (1880-1921)

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    ? ???? ??????? ? ????? ????,
    ? ???? ????????, ??????? ? ????,
    ? ????, ???????? ??????? ????.

    ??? ??? ?? ?????, ??????? ? ?????,
    ? ??? ???? ?? ????? ?????,
    ? ?????? ?? ????? ??????? ? ??????,
    ??? ????? ?????? ???? ? ????.

    ? ???? ????????, ??? ??????? ?????,
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    ??????? ????? ???? ??????.

    ? ????? ??? ??????, ? ??? ??? ?????,
    ? ?????? ??????, ? ??????? ????,
    ?????????? ??????,- ?????? ???????
    ? ???, ??? ????? ?? ?????? ?????.
    August, 1905

    Literal Translation

    A girl in a church choir sang
    About all those who were weary in a foreign land,
    About all the ships that had gone to sea,
    About all those who had forgotten their joy.

    So sang out her voice, flying up to the cupola,
    And a ray of light shone on her white shoulder,
    And all those in darkness watched and listened,
    As the white dress sang in the ray.

    And it seemed to them all that joy would come,
    That all the ships were in a quiet backwater,
    That weary people in a foreign land
    Had found a bright life for themselves.

    And the voice was sweet, and the ray was thin,
    And only up high, by the Royal Gates,
    Privy to the Secrets, a child was crying
    Over the fact that no one would ever come back.”

    I was crying out loud here 13 years ago after EBay was decided predicting almost exactly what would happen to US Patent system (I just had no way to know precisely which legal tricks efficient infringers would “invent” like IPRs or PTAB)

    No one was paying any attention…
    And I still have my patent intact simply because I knew what was coming…

  18. TFCFM December 4, 2019 10:03 am

    PM@#14: “ What part is for fools who lack critical thinking skills? Is it that our rights existed prior to government?

    It is for fools to believe that patent rights existed prior to government. Patents are a creation of government and did not pre-exist them.

    PM: “But once a patent is allowed, it is a right – an exclusive right. That fact cannot be more clear in the plain wording of the Constitution. Or do you disagree with that?

    Rights arising from a granted patent are plainly rights, BUT they are rights which exist with the proviso that their existence depends upon satisfaction of the statutory requirements for patentability. The mere fact that a patent examiner may have been fooled or misapplied those statutory requirements does not transform a patent claim that fails to satisfy the requirements into one that does.

    Invalidity findings made in AIA proceedings, traditional reexam and reissue proceedings, and traditional judicial findings of invalidity are each nothing more than that — recognition that a patent right was mistakenly granted and is thus null and void ab initio.

    Fairy tales about “takings” don’t change that reality.

  19. TFCFM December 4, 2019 10:07 am

    Anon@#12: “Please see comment one.

    In comment 1, I note an inaccurate ‘paraphrase’ of what you misunderstand from our previous communications.

    Apart from that, I see nothing not fully addressed by my reply to PM immediately preceding this one. If you think there is a substantive issue to address, please identify the substantive issue rather than proposing that I read your mind to divine what it might be.

  20. Paul Morinville December 4, 2019 10:43 am

    TFCFM, You say that an issued patent is a right. But then you say that it may have been mistakenly granted. If it is found to be mistakenly granted, it was never a right to begin with and therefore there is no taking of that right.

    But under your circular fallacy, the effect of that right is unknown for the entire life of the right, and therefore the right is not a right. You cannot claim that a patent is a right, but make it something other than right by the circular fallacy of fools who lack critical thinking skills.

  21. Anon December 4, 2019 11:16 am

    TFCFM,

    Would that be like you wanting me to read your mind about this (supposed) mis-paraphrase?

    As you ponder that, also ponder the substantive difference already present. Note the Lockean nature. Note the effective obtainment of ALL of the protections of property at the time of grant. Note the non-trivial presence and level of the presumption of validity (one of the sticks obtained AT the time of grant).

  22. Paul Morinville December 4, 2019 11:35 am

    TCFCM, You are not a very smart person. Please think deeper if for no other reason to give me a challenge. You say: “It is for fools to believe that patent rights existed prior to government. Patents are a creation of government and did not pre-exist them.”

    I think you need to read the patent clause: Article I Section 8 | Clause 8 – Patent and Copyright Clause of the Constitution. [The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive Right to their respective writings and discoveries.”

    Article I Section 8 | Clause 8 was in the Constitution on the day that the Constitution was signed, thus forming the government. This, son, means that patents exist prior to government. The “exclusive Right” is the complete definition of a patent in the Constitution. Since this clause was in the Constitution on the day it was signed, patents existed prior to the government.
    Physical property rights did too. Your fallacy is that since the invention was not invented at the time the Constitution was signed, the patent right to it could never preexist the Constitution. But that is like arguing that since the land in Hawaii was not part of the US at the time the Constitution was signed, property rights in Hawaii could never exist.

    Another fallacy spewed from the thoughtless keyboard of TCFCM

  23. Ternary December 4, 2019 12:52 pm

    There is an inalienable right to IP. It is an inherent right or rather a property of IP. That is that, under normal circumstances, nobody can force you to disclose an invention. If an inventor so desires, the invention can be taken to the grave, not having been disclosed to anyone. It is the ultimate right to personal property.

    It was deemed advantageous by the establishment to have inventors disclose and/or practice an invention without being sabotaged by me-too-ers and copiers. The alternative was considered to be stagnation. Hence patents. A reasonable quid-pro-quo.

    There have been waves of anti-patent sentiments. Usually from incumbents, who felt that they rightfully dominated markets and that (given the opportunity) would be able to do the same or similar inventions done by others. For that reason, incumbents try to change the ‘quid-pro-quo’ into ‘bait-and-switch.’ That is: inventors are led to believe they may have a right and are enticed to disclose their invention, but are ultimately denied their patent. Sorry folks, the establishment says: we just apply the rules and the rules are against you. This now pertains especially to rules of patent eligibility.

    Ultimately, the establishment will rely on institutions to do breakthrough inventions. It is somewhat like energy from nuclear fusion: great science, always promising, but no practical results (yet?). So far, the history of science and technology demonstrates that independent thinkers outside institutional settings are essential for breakthrough developments.

    Inventors are always hopeful (see co-pending article on Cognitive Bias). However, ultimately the majority of independent inventors will get the message, which is “don’t bother!”

    Efforts to restart our culture of independent inventors will be much more costly than a reasonable system to protect inventions by independent inventors. And such a restart may ultimately fail due to competition by others. We should know, because we took over the lead from Great Britain. It seems our number is up.

  24. Anon December 4, 2019 5:00 pm

    Paul,

    As much as I disagree with TFCFM (and there is much to disagree with), I do agree that your position is not optimal — as I provided in post 1.

    I will also note that TFCFM will not actually engage on any merits (and would rather post to the effect of being ‘willing to engage’ while not doing so).

    I would be interested in your reply to my post at 1. I will not pull a “TFCFM” on you.

  25. Paul Morinville December 4, 2019 6:05 pm

    Anon, Patent applications are interesting.

    An invention is fruit from the intellectual labor of an inventor. The inventor has choices of how to protect it: disclose it to the public thus giving away their intellectual labor voluntarily to the public; hide it and bring it to the grave; protect it as a trade secret; or disclose to the public as a patent application in trade for protection as an exclusive Right.

    I understand inchoate rights to be incomplete rights in process of becoming rights. (Correct me with the right definition.) The exclusive Right may be incomplete while the patent is pending. But the government has the duty to protect it as if the exclusive right is fully vested during that pendency. It may well become an exclusive right. If protection is denied during pendency, it has the effect of denying the exclusive Right after it is granted. If the invention has any swag, big corps steal right off the USPTO website and massively commercialize it. Due to infringement in today’s legal environment post eBay, there is no way to recover the exclusive Right and therefore it is destroyed.

    The government also has a duty to protect a pending patent as an exclusive right during pendency because when an invention is disclosed as patent applications, it is necessarily denied protection as a trade secret. The patent bargain is broken if the government unjustly denies patent protection, which is a breach of the public trust and a taking from the inventor.

    The government’s failure to protect the patent pending invention as a right denies the protection of a future exclusive Right, is a taking, and violates the public trust.

    On the other hand, if an invention fails to meet the statutory requirements and is therefore not granted an exclusive Right, it was never a right to begin with so the inventor and the public lost nothing.

    However, once the patent is granted, it absolutely must be treated as a right or the system collapses, as it has for all to see.

  26. Paul Morinville December 5, 2019 9:17 am

    Anon, I posted a response yesterday. It has not yet shown up. Paul

  27. TFCFM December 5, 2019 10:17 am

    PM: “But under your circular fallacy, the effect of that [patent] right is unknown for the entire life of the right, and therefore the right is not a right.

    You’re tripping over your own words. The patent statute (the one the Constitution empowered our government to create as it saw fit) is very clear on each of these points:

    1. Once granted, a patent gives its owner the right to exclude others from certain practices.

    2. That Patent Office is given the power to assess conformity of patent claims with the requirements for patentability in a variety of procedures — both before and after grant.

    3. Invalidation of a granted patent claim precludes its enforcement and is not in any way, shape, or form, a “taking” of property.

    It’s not nearly so complicated as you appear to believe when you say things like:

    PM@#25: “once the patent is granted, it absolutely must be treated as a right or the system collapses

    Patents have been granted and subsequently been held invalid for the entire lifespan of our patent system (the AIA did not begin or change that), and the system has yet to “collapse.”

  28. TFCFM December 5, 2019 10:22 am

    PM@#22: “I think you need to read the patent clause: Article I Section 8 | Clause 8 – Patent and Copyright Clause of the Constitution. [The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive Right to their respective writings and discoveries.”
    Article I Section 8 | Clause 8 was in the Constitution on the day that the Constitution was signed, thus forming the government. This, son, means that patents exist prior to government.

    That is not remotely what the patents clause means. That patents clause did not create any patent, any patent system, or any “right” to a patent. The clause merely specified that the government created by the Constitution (more specifically, the “Congress-part” of that government) had the POWER (but not the obligation) to create a patent system having whatever provisions and characteristics it saw fit.

    Congress could have chosen, perfectly in accord with the Constitution, to decline to create a patent system.

    Congress could have created a patent term of 5 minutes or 5000 years.

    Congress could have created a patent system requiring payment of a bazillion dollars (and/or performance of an amusing dance) in order to obtain a patent.

    Congress also, most certainly, could have created a system of examining applications, granting patents, and correcting mistaken grants of patents. This it did.

  29. Paul Morinville December 5, 2019 12:57 pm

    TFCFM, “Patents have been granted and subsequently been held invalid for the entire lifespan of our patent system (the AIA did not begin or change that), and the system has yet to “collapse.””

    Yes. They have. But they were invalidated by an Article III court with due process and juries. Which by the way is the only constitutional way to take a right. The AIA changed that, but that is an inconvenient fact for those like you who suffer from a lack of thinking, or intellectual honesty. I cant tell which.

  30. Disenfranchised Patent Owner December 5, 2019 2:26 pm

    @27 TCFCM wrote:

    “Patents have been granted and subsequently been held invalid for the entire lifespan of our patent system (the AIA did not begin or change that), and the system has yet to ‘collapse.'”

    However, before the AIA, there was an omnipresent, historical element of fairness and due process when such matters were decided by the courts.

    Something caused two former chief judges of the CAFC to refer to the PTAB as a “death squad.”

    The US patent system is suffering and teetering on the brink of collapse, IMHO. American innovation and entrepreneurship are suffering as a direct result.

  31. Ternary December 5, 2019 4:26 pm

    TF… “and the system has yet to “collapse.”” But the system is collapsing for independent inventors. That is what a big part of this discussion is all about. Independent inventors are being shut out from benefiting from the fruits of their work. By the system, created by Congress and by the Courts, tolerated by Congress.

    Today’s NYT has an article about the increasing number of SV lobbyists. Trying to work outside the lime lights. We have felt that influence already for years.

  32. anonymous December 5, 2019 4:38 pm

    @28 TCFCM

    Do you believe the Patent Clause provides Congress the power to issue patents on the condition that the patentee waive other constitutional rights, namely the right to trial by jury?

    Can you think of any other constitutional right which when exercised extinguishes or requires waiver of another constitutional right?

  33. TFCFM December 6, 2019 9:54 am

    TFCFM@#27: “TFCFM, “Patents have been granted and subsequently been held invalid for the entire lifespan of our patent system (the AIA did not begin or change that), and the system has yet to “collapse.””

    PM@#29: “Yes. They have. But they were invalidated by an Article III court with due process and juries. Which by the way is the only constitutional way to take a right.

    You’re over looking ex parte and (prior to IPRs) inter partes reexamination proceedings, as well as reissue proceedings — all of which invalidated patents by a PTO Board of APJs. (Furthermore, at least for ex parte reexams, there is case law — by an Article III court, if you believe that’s particularly relevant — expressly upholding the constitutionality of EPR proceedings).

    You also ignore that, just last year, the US Supreme Court (an Article III court if ever there was one) expressly upheld the constitutionality of IPRs (at least for post-AIA patents) and expressly rejected your assertion that the PTAB cannot invalidate a patent on account of the PTAB not being an Article III court.

  34. TFCFM December 6, 2019 10:02 am

    Anon@#32: “Do you believe the Patent Clause provides Congress the power to issue patents on the condition that the patentee waive other constitutional rights, namely the right to trial by jury?

    No, I do not, but your questions is beside the point. No provision of the Constitution provides a patentee the right to have mistaken patent grants corrected only by a jury trial. As the Supreme Court held in last year’s Oil States decision, the Congress has possesses the power to enact a patent system that provides the Patent Office a post-grant means to correct Patent Office mistakes (such as grant of patent claims which fail to satisfy the requirements for patentability).

    A patentee which has been awarded a patent claim that fails to satisfy those requirements has no valid “right” to retain its invalid claims, jury or no jury.

    (Other commenters: I don’t mean to ignore you. You are simply expressing opinions to which you are surely entitled. My discussions with PM and Anon relate to what the law is (a fact), rather than what you, I, or that fellow behind the tree over there would have it be (an opinion)).

  35. BrianSmith December 6, 2019 11:58 am

    For those who don’t know or remember. “TFCFM” is a APJ, who is either Mr Clements, or a friend of Clements.

    https://www.ipwatchdog.com/2019/04/17/story-ethics-optics-former-ptab-judge-matt-clements-now-works-apple/id=108354/

  36. Paul Morinville December 6, 2019 1:54 pm

    BrianSmith, It’s good to know that TFCFM is a fake so-called judge who has been unconstitutionally invalidating the property of inventors for the benefit of large corporations.

    It’s a new form of job interview.

    The good news is he can now be fired and should be fired along with the rest of the fake so-called judges.

  37. TFCFM December 9, 2019 9:50 am

    BS(how fitting)@#35: “For those who don’t know or remember. “TFCFM” is a APJ, who is either Mr Clements, or a friend of Clements.

    Incorrect guess and incorrect guess.

    Care to address the merits of my comments?

  38. Anon December 9, 2019 2:42 pm

    TFCFM @34,

    I believe that you have confused my moniker and discussions with me with the comments of others.

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