Why eBay v. MercExchange Should, But Won’t, Be Overruled

By Gene Quinn
February 16, 2020

“In an effort to make it harder for patent trolls to obtain injunctions, a bad decision from the Supreme Court weakened the patent system for everyone. Overruling eBay would instantly shift the balance of negotiating power back to even. Unfortunately, that is not going to happen anytime soon.”

https://depositphotos.com/216836112/stock-photo-fake-dictionary-dictionary-definition-word.htmlAs anyone who follows the United States Supreme Court knows, the Court has historically been extremely fond of taking important cases with cutting edge issues, only to dodge the real issues and address some insignificant procedural or hyper-technical issue. Such disappointment is all too frequent, so Supreme Court watchers are seldom surprised when the Court passes on an opportunity to breathe clarity into otherwise unsettled waters. But what the Supreme Court did in eBay Inc. v. MercExchange LLC, 547 U.S. 388 (2006) was far more disappointing. In eBay, the Supreme Court decided to throw out longstanding and well-established Federal Circuit jurisprudence and offered little or nothing in its place. The result has been an extraordinary shift in the balance of power between patent owners and infringers.

A New Landscape

Although there never was a mechanical rule from the Federal Circuit that mandated an injunction in all cases, permanent injunctions for victorious patent owners could be routinely expected. So, the Supreme Court’s decision in eBay v. MercExchange has been one that significantly altered the patent litigation landscape and, therefore, is easily one of the most important Supreme Court patent cases in recent memory.

In order to understand the decision, we must rewind the clock, beginning with the well-established law that was in place up until the early morning hours of May 15, 2006—the day the Supreme Court issued the decision in question.

Prior to May 15, 2006, when a patent owner prevailed on the merits in a patent infringement lawsuit, there was a well-established general rule that an injunction should ordinarily issue absent the presence of a sound reason for denying it. In reality, what this general rule meant was that permanent injunction should issue, and if an injunction did not issue the district court was required to explain the rationale for denying the injunction. While the routine issuance of a permanent injunction to the victorious patent owner may seem reasonable given the exclusive nature of the patent grant itself, such a bright-line rule was believed by some to be inconsistent with well-established equitable principles that apply to all areas of law. This view, however, ignores the essence of the patent grant, which by its very nature and verbiage grants to the patent owner the right to exclude others. In other words, the patent is a de facto injunctive right earned by the patent owner against the world and granted by the U.S. federal government.

In addressing the issues in eBay, the Supreme Court determined that the familiar principles of equity as applied to permanent injunctions should apply to disputes arising under the Patent Act. Translation: What the Supreme Court incorrectly viewed as a bright-line rule was erased in favor of the traditional four-factor test for granting injunctions.

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Four Fateful Factors

Starting late in the morning on May 15, 2006, in order to receive a permanent injunction in a patent litigation the victorious plaintiff needs to demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

This would not be so bad if irreparable harm would be presumed, which it should be because a patent is a time limited – or wasting asset – that will become a nullity after a prescribed period of time has passed. Once the patent falls into the public domain it is free to be used by anyone and everyone, as are all obvious variations of the invention described. Therefore, the patent owner must derive all economic benefit from the patented invention during the finite period of time the patent is in force. This means the finite period of exclusivity must really be exclusive. No amount of monetary damages can pay the patent owner for the loss of the right to the exclusive marketplace for the proscribed period of time. In fact, the law does not even recognize the loss of the exclusive right to the market as a recognizable or quantifiable monetary damage, although it most certainly does cause harm when the true innovator is forced to share the market they created with a callous, calculating, free-riding infringer. That exclusive marketplace for a period of time not only allows the patent owner to reap the rewards of invention alone, but to establish themselves alone as the source. Thus, free-riding patent infringers cause an identifiable yet uncompensated trademark and unfair competition damage upon patent owners. That is why, with a wasting asset like a patent, irreparable harm must be presumed.

Sadly, since the Supreme Court decided eBay, irreparable harm is not presumed in patent infringement litigation.

Little Solace in the ITC

So, what does this all mean? As a consequence of the Supreme Court’s decision, the United States International Trade Commission (ITC) has also become a far more desirable forum for patent owners, both non-practicing entities and practicing entities alike. The ability to obtain an exclusion order from the ITC provides great leverage to those who can use the ITC, which has jurisdiction under Section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337, to determine whether there is an unfair act in the importation of products into the United States, and/or subsequent sale of products in the United States. Section 337 defines the infringement of a patent, copyright, registered trademark or mask work to be such an unlawful act.

The ITC is more attractive today post eBay v. MercExchange because a different standard is applicable to exclusion orders and cease and desist orders issued by the ITC than to injunctions issued in federal courts. So, while the ITC cannot award damages, the ITC proceeding is far quicker than a proceeding in federal district court and can result in blocking of infringing products coming into the United States, thereby taking away competition and turning up the heat for a settlement. But the ITC is not an available jurisdiction for everyone. For example, the ITC cannot get involved in purely domestic matters, and certain patent owners, such as non-practicing entities, find it difficult to resort to the ITC due to domestic activity requirements.

What is most alarming about the Supreme Court’s decision isn’t the increase in ITC filings, or even that there now exists a two-tiered patent system where some patent owners can get some injunctive relief by turning to the ITC while others are shut out. Most alarming is the number of cases in federal district court in which the patent owner prevails and there is no permanent injunction issued. This is difficult to swallow when you factor into the equation that the patent grant itself is supposed to guarantee to the patent owner the right to prevent others from making, using, selling, offering for sale or importing into the United States infringing devices. The patent by its very nature provides the owner an exclusionary right. A permanent injunction in a patent infringement case does nothing other than conclusively tell the losing party (i.e., an adjudicated infringer who lost on all defenses to valid patent claims) that they cannot make, use, sell, offer for sale or import infringing devices. So, a permanent injunction issued to a victorious patent owner plaintiff does little more on a substantive level than reiterate the patent rights provided the patent owner as a part of the patent issued.

Infringement Now Pays

Of course, a permanent injunction does one more very important procedural thing for the patent owner. A permanent injunction allows the district court judge to retain jurisdiction of the patent infringement case and gives the patent owner the ability to return to the district court to seek redress from a recalcitrant infringer without needing to file a new patent infringement lawsuit should the infringer keep up with the old infringing ways. That is what the Federal Circuit authorized in TiVo v. Echostar, 646 F.3d 869 (2011), for example. Without a permanent injunction in place, a recalcitrant infringer could simply start to infringe immediately, and the patent owner would be forced to again file a new patent infringement lawsuit and wait the five or more years it typically takes to get to resolution. With a wasting asset, time is of the essence, and infringers do play a war of attrition seeking to outlast patent owners because they often can. With a permanent injunction such gaming of the system becomes more difficult.

In essence, without a permanent injunction, infringement pays, which is a terribly unfortunate reality of the Supreme Court’s decision in eBay.

Still further, because injunctions are about equity, the district court judges have broad discretion and their decisions will be reviewable only for abuse of discretion, which in lay terms means they won’t be disturbed or overruled in virtually any situation. This is particularly problematic due to the fourth traditional injunction factor, which asks whether the public interest would be disserved by the issuance of a permanent injunction. If the public is deriving benefit from the infringement, then infringement logically should not be stopped under the traditional injunction test. This flies in the face of the premise of the patent grant and smacks of a compulsory licensing scheme, which never existed in U.S. patent law, at least not until eBay.

Logically, it would seem that based on the fourth factor those patent owners who own the rights to the most important technologies may be those most at risk of not obtaining a permanent injunction, which is absurd. The entire point of a patent system is to encourage innovation, particularly groundbreaking and paradigm shifting innovation. Indeed, the Supreme Court has told us in KSR v. Teleflex that they want inventions to be based on more than merely “common sense” in order to be considered non-obvious and patentable, yet the more important and the more non-obvious and the more ubiquitous and fundamentally important an invention, the less likely a permanent injunction will be obtained? Obviously, the Supreme Court did not think through the logical ramifications, and has been unwilling to reconsider the real world consequences based on actual evidence.

Yes, I Mean “Overruled”

The entire patent system is based on dangling a capitalistic carrot. Innovators are given the right to extract monopoly profits for a limited time in exchange for knowledge and advancement. How, then, does it make any sense to say that those really great, universally important, paradigm shifting inventions are entitled to fewer rights?  How can it make any sense to anyone that a patent owner possesses a right to exclude everyone from making, using, selling or importing, but then once they become a victorious plaintiff having proved actual infringement and survived all invalidity challenges they lose the right to exclude the defendant who was just adjudicated to be an infringer (i.e., wrongdoer)?

In an effort to make it harder for patent trolls to obtain injunctions, a bad decision from the Supreme Court weakened the patent system for everyone. That is why Congress should explicitly overrule eBay. Unfortunately, that is not going to happen anytime soon. Although the STRONGER Act includes such a provision, as long as that provision remains, the bill will not make it out of Committee because Republicans on the Senate Judiciary Committee believe eBay was rightly decided and that the status quo on injunctions is not only appropriate, but good for the system. The hope inside the beltway among advocates for a return to a patent with true exclusivity is that over time positions will change, but there is no evidence of that presently.

Overruling eBay and restoring the previous system for issuing injunctions in patent cases would instantly shift the balance of negotiating power back to even, which would give infringers incentive to take licenses and use means other than the court and the Patent Trial and Appeal Board processes to settle their disagreements with patent owners. For those interested in pro-patent reform, overruling eBay  should be a top Congressional priority.

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Copyright: Devon 

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 51 Comments comments. Join the discussion.

  1. Jimmy February 16, 2020 1:33 pm

    A lot should be over turned…

    I find it very strange that the federal government goes to tremendous effort to sue huawei because they so-call steal IP from US inventors but don’t do anything when a small inventor IP is infringed by Amazon, Google, Apple, Facebook, Microsoft or any other major technology company.

    Almost like the government doesn’t care for the small inventor….

  2. Josh Malone February 16, 2020 3:14 pm

    wait the five or more years it typically takes to get to resolution…
    This is a good point that needs to be addressed as well. And with a PTAB detour it can be closer to 7 years.
    How can we save the businesses that are being decimated by first several years, and cannot hang on long enough to obtain an injunction?
    Even if eBay were overturned, small businesss need a quick and reliable path to effective enforcement.

  3. Jeff Hardin February 16, 2020 5:26 pm

    “Overruling eBay and restoring the previous system for issuing injunctions patent cases would … give infringers incentive to take licenses and USE MEANS OTHER THAN the court and the Patent Trial and Appeal Board processes to settle their disagreements with patent owners.”

    These other means also include creating innovative workarounds, encouraging ingenuity, and finding other, better solutions to solve a problem.

    Injunctions encourage infringers to stop stealing and to become innovators themselves.

  4. Anon February 16, 2020 6:14 pm

    My writings somewhat parallel the thrust of the article here in drawing TO just what the patent right IS — but differ somewhat in two major points, both dealing with the actual words of Congress that set forth the sharing of Power from one branch of the government to a separate branch of the government.

    As Constitutional Law experts may confirm, any sharing of power across branches is strictly evaluated.

    The very first part of the sharing is to the effect of the shared power.

    This is critical.

    The directed effect of the shared power is — and solely is — to the protection of those who have been granted the full legal property right of a patent per the Quid Pro Quo.

    Notably here, there is ZERO authority to protect Efficient Infringers.

    The second part, while more nuanced, is no less important. The principles of equity that apply (colored by the first part) are NOT applied in a vacuum. This itself invokes two key drivers: the first driver is that equity calls out for the aggrieved to be made as whole as possible. This making whole is NOT the typical “money” aspect that may be directly associated with those aggrieved in which the nature of aggrievment is tied solely — or even mainly — to a ‘positive rights’ action or consequence. The context that the property right of a patent is a negative right is paramount. In parallel, the ‘normal’ positive right equitable notion that “injunction” is the most harsh form of equity must be realized as NOT being the appropriate ‘yardstick’ in applying the principles of equity in the context here of THIS sharing of power from the Legislative Branch to the Judicial Branch.

    When these aspects are recognized and given their full Constitutional import, the decision by the Supreme Court in eBay must be suitably constrained, as even the Supreme Court may not wield more authority than what was shared with that branch of the government (anything more than that — attempted or otherwise — is ultra vires and has no authority of law).

    The Supreme Court may well choose to write whatever they want to write. They may declare their raiments to be bedazzled with the most specular of gems, and woven in threads of pure gold, but their mere say-so DOES NOT make it so.

    We are a Sovereign of Limited Powers, and that includes — especially — a system of checks and balances AND the notion that EVERY branch operates under the Constitution and NOT (as some would have it): only the Executive and Legislative Branches operating under the Constitution and the Judicial Branch by some inherent fiat not limited to Constitutional limits.

  5. Anon February 16, 2020 6:39 pm

    Judge Michel and Matthew Dowd haver written on this. https://www.criterioninnovation.com/articles/michel-dowd-understanding-the-errors-of-ebay.pdf

  6. Pro Say February 16, 2020 7:16 pm

    eBay = the eVisceration of the Constitutional patent bargain:

    I will publicly reveal what I’ve invented (for others to build on) . . . in exchange for the time-limited right to prevent others from using my invention.

    Sadly for America:

    “When it comes to patents, we don’t need no stinkin’ Constitution.”

    — SCOTUS

    Plain and simple.

  7. Bemused February 16, 2020 8:34 pm

    Anon@4 “The Supreme Court may well choose to write whatever they want to write. They may declare their raiments to be bedazzled with the most specular of gems, and woven in threads of pure gold, but their mere say-so DOES NOT make it so.”

    Anon, my brother in arms, what you wrote is correct in theory but the reality is that what the Supreme Court writes does make it so in today’s dysfunctional form of government that we have in this country.

    Given the paralysis in Congress (either as a result of internecine war between Democrats and Republics or Congressional critters who have prostituted themselves for donations from Big Tech) or the abdication of innovation leadership by this administration, the courts (and most notably, the black-robed dummies on the SCOTUS), have filled that governance void by making and executing this nation’s patent policy. A policy clearly designed to destroy the U.S. patent system and to allow efficient infringers to cravenly steal the discoveries and inventions of small, independent innovators without any compensation.

    This was another fine article by Mr. Quinn but all it did for me was rub salt in the lethal wound that is eBay. And as someone who deeply cares about this country, it grieves me to see the damage already wrought upon us by SCOTUS and the CAFC and the damage that will inevitably befall us in the not-too-distant future as a result of this decimation of American innovation.

  8. angry dude February 16, 2020 10:49 pm

    I’ll tell you why…

    In early-to-mid 2000s certain fundamental technological patents were issued by then (almost) non-corrupt USPTO (yes, there was a time… hard to believe nowadays)
    This got SV and Apple in particular worried so much that they poured zillions into wash dc to prevent the possibility that some dude coming out of woods with US patent can shut down their future products
    All this talk about big evil “patent trolls” torturing and tearing apart little helpless apple and co. was paid for by big corporate infringers – Apple in particular…
    YES ! Steve Jobs, Tim Cook and the rest of SV looters (I can give you a long list of actual names if you ask me to…)

    The MexcExchange’s patent was a “junk” e-commerce patent carefully chosen not to outrage tech community in general – nobody except Ebay cared about that useless Buy-It-Now feature

    But the Scotus Ebay decision was carefully designed to thoroughly f%^& the rest of us – small techies with fundamental tech patents related, in particular, to the internals of a nascent smartphone industry

    Indeed, first IPhone was announced by Steve Jobs in early 2007 – so Ebay decision was extremely well timed for Apple – their money paid many many times over to the tune of one TRILLION dollars

    Until those fundamental US patents expire a few (3-6) years from now there won’t be even a slightest possibility of congress critters reconsidering injunctions… all they do is lip service to inventors introducing bills which they know are dead on arrival…

    Money talks, money works, money easily crosses partisan barriers

    “Pecunia non olet” is your answer

    “The doc said to the morgue – to the morgue it is!” (that’s what I told you right after Ebay was decided but no one believed me)

  9. Anon February 16, 2020 10:54 pm

    Thank you brother Anon,

    And while I do appreciate the link (and the article itself), I believe that my post here says everything intimated there – and says it in a direct and straight forward manner.

  10. angry dude February 16, 2020 11:08 pm

    And Yes ! Steve Jobs was a looter !

    Maybe he was a marketing genius, a visionary blah blah blah… an icon for his lemmings fans… but as far as hardcore tech is concerned – he was a looter, he couldn’t even write a decent code himself – had to use Wozniak for that … or take it from some unknown dude without consent

  11. Ryan Carter February 16, 2020 11:58 pm

    Read the article and came across “non-practicing entities”. That’s legalese for patent troll, correct?

    My next question is, if a patent troll is just sitting on something, not using it for anything, how can they be suffering damages if someone infringes on it? It makes more sense to me that they are suffering damages when no one is infringing on one of the random patents in their portfolios.

  12. angry dude February 17, 2020 5:08 am

    “The hope inside the beltway among advocates for a return to a patent with true exclusivity is that over time positions will change…”

    It will… when China finally eats all of US hi-tech for free breakfast … with all apples, googles, facebooks, amazons, ciscos etc.etc.
    Give it couple years – things are moving fast in this day and age…
    But it will be a little late by then…
    US will become a third-world country – a huge banana republic … only you can’t grow bananas here
    But congress critters and scotus justices will retire by then in real banana republics leaving the rest of us to deal with their “legacy”

    Amen. To the morgue.

  13. TFCFM February 17, 2020 9:47 am

    GQ: “In eBay, the Supreme Court decided to throw out longstanding and well-established Federal Circuit jurisprudence and offered little or nothing in its place.

    This is, in my opinion, a rather short-sighted view. The non-blinkered, broader view is that the Supreme Court, in eBay, reined in a lower court that had misread a historical practice as something approaching a ‘rule’ and misapplied it under dramatically different circumstances — circumstances, moreover, in which the actual rule absolutely requires consideration of the circumstances.

    Injunctive remedies in civil cases have — throughout US and British common law practice — been reserved for situations in which monetary damages were, practically speaking, insufficient to redress a harm unlawfully visited upon the party seeking injunctive relief.

    In patent cases in which a patentee sought to reserve for itself the exclusive right to practice the patented invention, courts long recognized that money damages might not adequately remedy the reduced benefit a patentee would enjoy as the sole practitioner of a patented invention, leading to “irreparable” harm. As a result, injunctions commonly issued in cases in which a patentee sought to enjoin competitors from competing with the patentee. This is fully in keeping with the judicial practice of considering all the circumstances (including infliction of “irreparable” harm) before issuing the extra-ordinary remedy of an injunction.

    Obviously, circumstances have changed over the past decades, such that it is no longer uncommon for patentees to seek monetary profit from their inventions, rather than to practice the patented invention. Such non-practicing patentees will receive less money from licenses if others practice their invention without authorization. However, money is the utter antithesis of “irreparable” injury — monetary injuries are “repaired” by supplying the aggrieved party with money equal to the injury. Under circumstances where an alleged injury to a non-practicing patentee is merely monetary, an injunction should not issue for the simple reason that the injury is fully redressed by a transfer of money — the issue is simply that the court must endeavor to get the dollar value of the money-redress correct.

    This (and not empty dreams and name-calling) is why eBay will not be substantively reversed.

  14. Anon February 17, 2020 11:19 am

    the issue is simply that the court must endeavor to get the dollar value of the money-redress correct.

    That is more than just a little of a half-truth.

    The full truth is that the context of what a patent actually is NEED BE the driver.

    There is NO aspect of a patent right that is a positive right. ALL of the ‘make money’ and thus ‘money-redress’ based on the falsehood of a positive right should be expressly constrained.

    There is no such thing as the exclusive right TO PRACTICE.

    Further, the statement of “ Under circumstances where an alleged injury to a non-practicing patentee is merely monetary, an injunction should not issue for the simple reason that the injury is fully redressed by a transfer of money” is itself a ‘blinkered’ and unthinking misunderstanding of what a patent is.

    This makes the fundamental mistake of not applying the two important principles of equity in the proper context of what a patent is. ANY time I see the hand-waving of “an injunction should not issue,” I can pretty much guarantee that the person making that statement does not understand that the single best approximation of what a patent actually is — and the single best way of making an aggrieved party whole — IS by way of injunction.

    Often, pundits who may be attorneys (but who are not bona fide patent attorneys with real registration numbers and real experience working to protect the fruits of innovators) fall back to a more general (read that as not in the context of patents) view of remedies in which ‘injunction’ is viewed in a default (unthinking) manner of being the harshest form of remedy.

  15. angry dude February 17, 2020 11:29 am

    Ryan Carter @11

    “Read the article and came across “non-practicing entities”. That’s legalese for patent troll, correct?”

    Yeah, right, dude

    Patent trolls like Tesla, Edison and Wright Brothers… or major American research universities for that matter

    Either you were brainwashed or you are a shill for large SV infringers or both…

  16. Anon February 17, 2020 11:34 am

    Bemused,

    I hear you, and meant no slight by not responding to your post.

    Indeed, the manner in which patent law principles have become trampled — and the lack of champions (primarily in Congress, and at the CAFC) ‘almost’ creates the impression that the Supreme Court is NOT limited in our Sovereign.

    But this only all the more calls out for attorneys (and not just patent attorneys) to recognize that most all** State Attorney Oaths require attorneys to place the Constitution first and foremost.

    When the various branches of the government abdicate leadership is when OUR oaths are not only most tested — but OUR oaths are most necessary.

    ** in conversations past, I have put forth an open call for any attorney to actually list their State Attorney Oath for a discussion on this point. With the only (slightly) arguable position from the Commonwealth of Massachusetts, there have been NO takers to provide a state attorney oath that does not require attorneys to recognize the supremacy — not of the Supreme Court — but of the Constitution and the principles therein of EACH branch merely being of limited powers, with checks and balances necessarily in place.

  17. angry dude February 17, 2020 11:42 am

    @TFCFM

    Dude,

    On which planet do you live ?
    You are either completely clueless about patent laws (originally created by the Founding Fathers btw) or a shill for SV infringers – most likely both

  18. Jam February 17, 2020 1:14 pm

    The descent into intellectual property socialism/communism via crony capitalism leading to a never ending monopoly.

    (the descent)
    “If the public is deriving benefit from the infringement, then infringement logically should not be stopped under the traditional injunction test.”

    (into intellectual property socialism/communism via crony capitalism)
    In other words, the (intellectual) property of the inventor should be seized by the government for the “public use (and sale)” by the infringer, which the government does in response to lobbying and campaign contributions from the infringer.

    (leading a never ending monopoly)
    The well capitalized crony capitalist infringer can then “compete on price” by underpricing innovation and overcharging for branding. Since the small inventor has no “brand”, the small inventor is unable to “compete on price” because, even if the small inventor’s product includes more innovation, the infringer can merely copy the innovation, add their brand, and keep the market captured.

  19. Anon February 17, 2020 1:22 pm

    Ryan Carter,

    Perhaps you labor under a misapprehension of what a patent right is.

    Do you understand that a patent is solely a negative right?

    There is NO ‘right to practice’ ANYTHING in regards to what a patent actually provides.

    Unfortunately, there are plenty of people only too willing to misinform and mislead people on these types of concepts.

  20. New Lawschool Grad February 17, 2020 1:27 pm

    @TFCFM

    Let me pose a hypothetical. Let’s say a small inventor / company invents something new and receives a patent.

    A large company with existing manufacturing and distribution capability reads the patent, produces and begin to sell the new product before the small company/inventor can even release their first version.

    As soon as patent holder sees the infringing product, they reach out to large company with a cease and desist. Large company ignores this. Small company files a lawsuit. Small company spends 5 years in court / PTAB and overcomes all challenges.

    However, due to large company’s fast production and distribution, they are the recognized leader in the market (5 years later). Small company was never able to attract enough investment to mount any real challenge in the market due to large company’s rapidly expanding footprint.

    In the wake of Ebay, the courts would deny a (post verdict) injunction based on the 4th factor that “the public interest would not be served” by blocking the sale of the infringing product while the small inventor spent years growing a manufacturing and distribution operation that matched the scale of the large infringer.

    By all definitions, the small inventor who had every intention of growing a business around their patent but was unable to attract investment due to the rapid infringement of the large company is now labeled an NPE or, worse, a troll.

    If the small inventor still wishes to be the sole provider of the patented product, should they not have the right to do so? Past damages are certainly monetary, but why should the small inventor not have the choice to decide whether to injunct the large company or licence to them – especially AFTER a jury verdict in their favor?

  21. anonymous February 17, 2020 2:09 pm

    Gene’s observation is correct: an injunction in a patent infringement case is merely enforcement of the right to exclude – “the patent is a de facto injunctive right.”

    Congress, it is YOUR constitutional duty to set patent policy, not the judiciary. If society wants to limit the right to exclude, it should be done, and done clearly, in statute and not by merely telling courts “do what you think is fair.” The judiciary should not be moving the bar on innovation and economic policy, only Congress.

    Any compulsory licensing scheme to allow ongoing infringement is best understood as a TAKING. A court refusing an injunction is taking from the patentee his right to exclude and instead allowing willful patent infringement. Providing ongoing money damages is an attempt at “just compensation.” Therefore, what we think of as an “injunction” under 283 is better analyzed under the law of takings.

    But we know from Kelo that the sovereign is not supposed to act this way. SCOTUS in Kelo recognized, “[I]t has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation.” See, Kelo v. City of New London, 545 U.S. 469 (2005).

    In patent law, certainty is good. I think it would be best for Congress to re-write 283 altogether, removing the inquiry from equity. A clear statute, where CONGRESS ACTUALLY SETS POLICY, would set out how an ongoing infringer would need to prove that an exclusion is not warranted and an infringement is in the public interest. Naturally those circumstances ought to be narrowly defined and the test hard to meet, explaining why the Efficient Infringer lobby would fight any clear statutory language.

    Re-imagined 35 USC 283:

    “The several courts having jurisdiction of cases under this title shall exclude others from making, using, selling, offering for sale, or importing, such infringing activities being described in 35 USC 154(a)(1), when such activity infringes any patent claim, except:
    (1) when the infringer proves by clear and convincing evidence that:
    (a) infringement is in the public interest, and
    (b) there is no non-infringing alternative.
    Upon such a showing, the infringer shall, for the term, pay ongoing money damages to the patent owner in an amount the greater of a) three times a reasonable royalty, or b) two-thirds of the profit from the infringing activity.”

  22. PTO-Indentured February 17, 2020 3:43 pm

    They won’t clarify because the courts’ #1 job description to do just that, would not allow the 21st century double-standard won over by overwhelming ‘contributions’ (and power-driven appointments) — meant to favor but a few oligarchies — to go on unchecked. Which, IF clarified (or reversed like BRI was) could very well return the USPTO to its former #1 international stature; U.S. patents to their best strength; and, reflect a stewardship that yields a former / transparent equity in short order — versus an on-going hobbling of the PTO and U.S. patent law, wrought principally by continued multi-national corporate ‘influencings’.

    The main strategy (owing no loyalty to the U.S. and/or U.S. patents): maintain the on-going patent law ambiguities proven to favor the few oligarchies. Perpetuate objectively weak patent law so those with the most money / resources get the new-and-improved kind of ‘PTAB Success’ (you know, where wishing folks a “PTAB-success” means you’re wishing them the kind that wins 85% of the time).

    Note much of the above can be accomplished by influence-receivers merely doing nothing / not doing a thing (thus virtually no paper trail). This is all far enough along now (this-century) to be sustainable by omission of action.

    The rare exception being an opportunity where we mere mortals (non-oligarchs) can point to any court, politician or multi-national corporation who instead does — clearly the right, the truest, the best, the already previously-proven effective, thing — accountably, transparently, or otherwise.

  23. angry dude February 17, 2020 4:26 pm

    anonymous @20

    And world peace too…

    Almost like reading Harry Potter novel

  24. Pro Say February 17, 2020 5:45 pm

    From the front of each of my issued patents:

    “Therefore, this United States Patent grants to the person(s) having title to this patent the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States of America or importing the invention into the United States of America . . .”

    With their extrajudicial eBay decision, our very own Supreme Court unconstitutionally stole this limited-time exclusion right from myself . . . and untold 1,000’s of my fellow inventors and patent owners.

    ’nuff said.

  25. angry dude February 17, 2020 10:27 pm

    New Lawschool Grad @20

    Dude,

    It’s almost never like that – one patent = one product to manufacture

    Most of the time its’ a classical example of a better mousetrap

    Inventor of a better improved mousetrap is not legally allowed to produce it until all patents on a basic mousetrap (held by large incumbent manufacturers) expire or some kind of licensing/cross-licensing deal is achieved
    Only in a few cases like Bunch-o-Balloons or pharmaceutical substances a patent gives you the right to manufacture the product
    But in most cases your patent (theoretically) gives you only the right to exclude others from using your patented feature or improvement

    Patent is strictly NEGATIVE right

    Me thinks you need to learn more about patent law before posting here

  26. NewLawschool Grad February 18, 2020 9:40 am

    angrydude @ 20:

    Me thinks you need to look up the definition of “hypothetical” before posting here.

    As you point out, my hypothetical example does occur, albeit at a lower rate then improvements on existing tech.

    My point (that you missed) was to highlight a situation where the Ebay ruling could strip a patent owner’s right to exclude due to the infringer’s concurrent actions during a prolonged litigation that label the patent owner as an NPE/troll.

  27. TFCFM February 18, 2020 11:19 am

    NLG@#20: “If the small inventor still wishes to be the sole provider of the patented product, should they not have the right to do so?

    Your hypothetical glosses over the balancing of factors which consideration of injunctive relief necessarily requires. You state simply:

    NLG: “In the wake of Ebay, the courts would deny a (post verdict) injunction based on the 4th factor that “the public interest would not be served” by blocking the sale of the infringing product while the small inventor spent years growing a manufacturing and distribution operation that matched the scale of the large infringer.

    However, this simply assumes away the balancing, without disclosing the technology, the circumstances, or what “the public interest” in the product is. Consider, for example, two very different technologies:

    1) A (real) cure for all lung cancers (incredible, but simplifies our analysis).

    2) Some patentable combination of hardware/software that enables one to cause one’s phone to go to a favorite website by snapping one’s fingers above the phone’s screen.

    Clearly, the “public interest” in these two technologies is vastly different. One is life-and-death of thousands per year, the other is essentially trivial nonsense. If BigDrugCo can make the cancer cure today, while patentee *only-might* someday be able to make it, the court would be sentencing many thousands of the public to painful, avoidable death if the injunction issues. On the other hand, a cell phone software company might merely have to issue an update to disable the feature (and the public might have to web-surf a bit more) if an injunction issued in the case of the snap-to-website technology.

    This balancing of the equities is precisely the sort of balancing that is supposed to occur before a court issues an injunction. Such balancing can (and does) take into account the importance to our society of awarding to inventors the exclusive right to practice their inventions. It also can takes into account the fact that this interest is not paramount to all other interests (in our example, a stubborn or mean-spirited inventor cannot withhold a cancer cure from society, and thereby sentence thousands to early painful deaths, merely because (s)he was the first to invent it).

    The balancing can work equally well, of course, in closer cases than this cancer-cure example.

    Furthermore, our legislature has never enacted a rigid rule that an injunction must be issued to all prevailing patentees (whether practicing or not) in all instances. Neither does our Constitution’s Patent Clause raise the exclusive rights of inventors above all other rights and interests — it instead empowers our national legislature to make patent laws as it sees fit (including Congress’ decision NOT to enact so rigid a rule).

  28. New Lawschool Grad February 18, 2020 12:32 pm

    TFCFM @27:

    “This balancing of the equities is precisely the sort of balancing that is supposed to occur before a court issues an injunction.”

    Fair enough – and thank you for the well thought out reply.

    However, through the Ebay decision, SCOTUS (not Congress) set the bar so high in the lower courts that the threat of an injunction (and the transactive, pre-litigation licensing environment that it encouraged) has effectively gone away.

    Had it not, then we would have never have heard of the term, “efficient infringement”.

  29. angry dude February 18, 2020 1:17 pm

    NewLawschool Grad @26

    Your example is the Bunch-o-Balloons situation and it NEVER occurred in smartphone area where (very large) manufacturers combine hundreds if not thousands of patented technologies into a tiny shiny rectangular box to sell to hapless lemmings so they don’t just use it as a phone, but as a movie theater, an audio player, a library of books (maybe not – lemmings don’t read books anymore), an amazon shopping cart, a gps orientation device – thousands of things and applications included in a small box called “smartphone”

    That’s why EBay Scotus decision was so perfectly timed for Steve Jobs to introduce first IPhone in early 2007
    And Steve Jobs was a tech looter as we all know

    btw, we are not talking about smartphone software apps – those are dime a dozen
    Each software app builds upon hardware and sdk provided by the manufacturer
    We are talking about smartphone hardware internals which are impossible to remove without pulling all goodies off the store shelves and complete hardware redesign… thus Ebay…

    “Pecunia non olet”

  30. Anon February 18, 2020 1:58 pm

    TFCFM,

    Yet again, you ignore the first principles of what a patent right IS.

    Your “cure for cancer” carries NO positive right to DO anything.

  31. New Lawschool Grad February 18, 2020 3:03 pm

    TFCFM @29:

    My hypothetical could very well be the Bunch O’ Balloons case – it accurately underscores my point.

    I never referred to a specific technology or “smartphone” in my post @20. I am not sure why you keep referring to to smartphones in your replies???

  32. angry dude February 18, 2020 6:35 pm

    New Lawschool Grad @31

    “I am not sure why you keep referring to to smartphones…”

    Because smartphone is what triggered Ebay and other Scotus patent decisions plus AIA, of course (via generous “donations” to wash dc)

    SV could not care less about Bunch-o-Balloons, kitchen utensils and other similar inventions

    But Apple was scared by the possibility of some dude with fundamental technological inventions (e.g. smartphone hardware internals) to bring them down or take away some of their astronomical profits

    Injunction = Pulling all IPhones off the shelves of US distributors and stopping importation from China

    (“Designed in California by Apple, assembled in China”)

    Clear now ?

    Clarence Thomas ? You gotta be kidding :):):)

    Apple & SV are the real writers behind Scotus Ebay decision and all other Scotus and cafc decisions and AIA of course

    To the morgue with such patent system (and such government)

  33. New Lawschool Grad February 19, 2020 9:32 am

    angry @32:

    I understand the point you are trying to articulate re: Silicon Valley and its influence on the Ebay decision.

    However, this position is not a “counter” to my original post regarding a small (potentially non-tech) patent owner being labeled as a NPE during a prolonged litigation. This appears to be a different line of thought altogether.

    For you to be “right” does not make me “wrong”.

    As such, perhaps you should have simply posted this line of thought as a separate thread?

  34. Anon February 19, 2020 10:20 am

    NLG,

    Your point is (and should be) well-taken.

    However, you ARE dealing with someone who has reveled in the view of placing emotion above reason, so the mileage of your point is not likely to be appreciable.

    There are points with which angry dude completely agrees with me (for example, the patent right being a negative right), and yet, our interactions typically are driven by his choice of dealing with things through emotion.

  35. TFCFM February 19, 2020 10:38 am

    anonymous@#21: “Gene’s observation is correct: an injunction in a patent infringement case is merely enforcement of the right to exclude – ‘the patent is a de facto injunctive right.’

    Huh. If that were the law (i.e., the one that the Congress wrote after being empowered to do so by the Constitution), you’d think that Congress would have thought to mention that in the law.

    Injunctions were hardly unknown to the Congress — at any point in its history. If they had intended “injunction” in the patent context to mean the sort of SuperAutomaticInjunction that you and Gene suggest, why do you suppose Congress kept it such a secret?

    For example, instead of drafting 35 USC 283 to say:

    The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.

    Congress could (and would, if your imagination were not fiction) have written it to read something more like:

    The several courts having jurisdiction of cases under this title SHALL grant injunctions COMPLETELY IGNORING the principles of equity to prevent the violation of any right secured by patent, REGARDLESS OF WHETHER the court deems SUCH TERMS reasonable.

    Call me crazy, but I suspect that Congress didn’t write this for the very reason that Congress didn’t mean this. But your (and Gene’s) theory is cute, too.

  36. TFCFM February 19, 2020 10:53 am

    NLG@#28: “However, through the Ebay decision, SCOTUS (not Congress) set the bar so high in the lower courts that the threat of an injunction (and the transactive, pre-litigation licensing environment that it encouraged) has effectively gone away. Had it not, then we would have never have heard of the term, ‘efficient infringement’.”

    I disagree. The eBay decision merely puts patentees in the same box with all other parties seeking injunctions. For patentees who merely seek money for licenses (i.e., eminently “reparable” damage), injunctions will not normally issue without significantly more — but this is the same situation faced by all other damaged-parties who seek only money damages. Similarly, as in all other cases, parties seeking an injunction in patent cases need to demonstrate to the court that they are entitled to one under the normal equitable principles which have always applied to provision of equitable (i.e., injunctive) relief.

    Although Congress is empowered to pass a law that says “injunctions will automatically issue to patentees who prevail in patent infringement actions,” Congress HAS NOT done so, and it seems to me foolish to hope that a court will legislate such a provision out of thin air (all the more so since the Supremes have already swatted down the one court which attempted to do so).

  37. angry dude February 19, 2020 12:05 pm

    New Lawschool Grad @33

    I did not say you were wrong

    I just said the situations you cite are peripheral to the thrust of debate here – things like Bunch-o-Balloons (Josh finally won after 8(!!!) figures in legal expenses – for a simple water balloon invention !!!) or Tesia Thomas with her new zipper are just collateral damage
    They were not the targets when Apple and SV set up to destroy 230-year old US Patent System in mid-2000s (and continue to do so even though there is nothing left of it)

    The targets were dudes like me with inventions on smartphone hardware(or firmware) internals (obviously all those dudes are “NPEs” or “trolls” as they say… cause only very large manufacturers can produce smartphones)

    Of which I told everyone here back in 2006 right after EBay was decided
    I told them all that the day would come when there are no patent laws left in the United States…
    This day is finally here upon us – other countries have patent systems, USA does not!

  38. Anon February 19, 2020 1:20 pm

    TFCFM,

    You ARE ‘crazy’ in that you continue to disregard the words of Congress and the principles of equity —- as I have presented them to you.

  39. anonymous February 20, 2020 10:31 am

    @35 TFCFM

    We’re back to the debate of whether a patent confers a right to exclude. I say it does. You say it doesn’t.

    My evidence: the Constitution, statute, case law, and common sense. You seem to want to ignore the language from the Constitution and the corresponding statute, instead believing the word “may” in Sec. 283 trumps them both.
    What does the term of a patent relate to? The “term” of 154(a)(2) clearly relates to the “exclusive right” of 154(a)(1). Where in statute do you find a “term” being defined as the duration of an injunction, or the duration of a compulsory license? Where in statute do you find any statement that ongoing, willful patent infringement after a jury adjudication thereof is okay so long as a reasonable royalty is paid?

    Congress has constitutional authority ONLY to act “by securing” “the exclusive right” to “inventors.” Article 1, Section 8. The Constitution says nothing about Congress having authority to impose a compulsory licensing scheme upon inventors, once duped into thinking they had an ACTUAL right to exclude. At the very least, compulsory licensing is a taking of the patentee’s reasonable preference to license one and only one licensee.

    35 U.S.C. 154 states, “Every patent shall contain a . . . grant to the patentee . . . of the right to exclude others . . .” The words “by securing” and “the exclusive right” cannot be read out of the Constitution to substitute a compulsory license and cannot be rendered surplusage without effect, especially when the words “the exclusive right” from the Constitution are tracked by the corresponding statutory language “every patent” and “the right to exclude others.” Marbury v. Madison, 1 Cranch 137, 174 (1803) (“It cannot be presumed that any clause in the constitution is intended to be without effect”). You want to ignore Section 154 and the words “the exclusive right” from the Constitution. Your very argument is the words “the right to exclude others” are “intended to be without effect.” That’s wrong.

    35 U.S.C. 283 states, “The several courts having jurisdiction of cases under this title MAY grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.” The permissive “may” does not provide any public interest in allowing patent infringement and does not and cannot function to excise the words “by securing” and “the exclusive right” from the Constitution nor the words “Every patent shall contain a . . . grant to the patentee . . . of the right to exclude others” from 35 U.S.C. 154.

    The “right to maintain exclusivity” over one’s property is “a hallmark and crucial guarantee of patent rights deriving from the Constitution itself.” Apple v. Samsung, 801 F.3d at 1365.

    Lastly, my re-write of 283 was intended to reflect the reality of what is happening – a taking of the right to exclude – and the need to narrowly focus on the public interest, which in limited circumstances may trump the right to exclude.

    Big Tech finds efficient infringement efficient, but that is not the same as infringement being in the public interest. “[I]t has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation.” Kelo v. City of New London, 545 U.S. 469 (2005). Do you agree with that statement from SCOTUS? If not, why not?

    When is infringement in the public interest? That question is worthy of debate, the resolution of which ought to be reflected in statute. Without debate, we’re stuck with continuing mis-application of ebay. When read earnestly, there is NO CATEGORICAL RULE FROM EBAY that injunctions are not to be granted, rather the right to exclude is to be respected, even when “self-made inventors exercise[e] their reasonable preference to license rather than to bring their works to market themselves.”

  40. TFCFM February 20, 2020 10:43 am

    Anon@#38: “you continue to disregard the words of Congress and the principles of equity —- as I have presented them to you.

    If this is what you’ve been on about in any message you’ve written to date, you have completely fooled me. Perhaps if you could write your thoughts in a comprehensible manner (e.g., without inscrutable and incomprehensible references to “something I might have told you once in some past, unidentified comment in some past, unidentified thread”) it would be possible to reply.

    Perhaps you could start by mansplaining to us the meaning of 35 USC 283 (text in #35 above). Perhaps you can explain how (your subjective conception of) “the fundamental nature of patents” causes the words of Congress, as issued in section 283, to mean the opposite of what they say.

  41. Josh Malone February 20, 2020 10:56 am

    Smartphones are not unique. They can use off-patent components or licensed components. Capacitors, transistors, radios, OLED, Lithium-ion batteries are all more than 20 years old and in the public domain.

    The problem is that big corporations are upgrading their products with patented technology they don’t own.

    Corephotonics is a recent example. They figured out how to put a zoom lens into a smartphone and built and patented it. Apple could not compete with their fake/digital zoom technology. I presume that is why they IPR’d Corephotonics. https://www.linkedin.com/posts/malonejosh_ptab-total-track-length-means-partial-activity-6526106656269488128-Xl68

  42. Anon February 20, 2020 12:29 pm

    TFCFM,

    More games from you, as you have in the past simply dismissed or ignored the things that you do not like.

    Sorry, but I will not play your game of endlessly repeating a position that you have been made aware of and have chosen to dismiss. That it is a YOU problem, and NOT a problem with me or my writing. You characterizations then of “inscrutable and incomprehensible” are false, and rejected outright as such.

    You seem to make a common mistake that because YOU do not understand a legal concept, the person presenting that concept must not know what they are talking about.

    The plain truth is that you simply lack understanding.

    On other threads, I have asked you a plain and direct question as to your training. Your lack there of any honest reply bespeaks your games there as well as here (and frankly, ever since you starting posting on this blog, as I took issue with your tactics from the very start).

    Your games just don’t fly – no matter how much you may think it ‘cute’ to keep on trying them.

  43. angry dude February 20, 2020 8:32 pm

    Josh Malone @41

    “Smartphones are not unique. They can use off-patent components or licensed components. Capacitors, transistors, radios, OLED, Lithium-ion batteries are all more than 20 years old and in the public domain.”

    Typical infringer’s defense

    This reminds me the court scene from “Flash of Genius” movie where Ford tries to publicly nullify Bob Kearns intermittent windshield wiper patent by arguing that all of the elements (capacitor, variable resistor etc) were all well known and could be ordered from a catalog…
    Well… water balloons and nozzles were also well known

    But Bob Kearns managed to combine those catalog parts in some very unique way to solve very important problem with which big automakers struggled for years without much success.. that’s what true invention IS

    Well, in my case it boils down to an algo – you know, multiplications and additions/subtractions
    they were known for like how many thousand years ? I forgot myself
    Mesopotamia ? .. maybe earlier… before or after the wheel invention ? .. not sure . .probably after

    Yet, FFT was (re)invented only in 1965 and it completely changed the landscape
    And its just that – multiplies and adds – nothing else

    Perhaps you should limit your (otherwise very correct) observations to simpler mechanical inventions and patent law in general and stay away from smartphones

    Modern smartphone is a little universe in itself – the only window to outside world for many people, especially younger ones

  44. TFCFM February 21, 2020 10:19 am

    Anon@#42: “Sorry, but I will not play your game of endlessly repeating a position that you have been made aware of and have chosen to dismiss.

    Well, I surely can neither read your mind nor force you to discuss the substance of the issue at hand. No one can say I haven’t tried.

    You’re simply a phony. Please cease bothering me with anything other than substantive comments, which I remain willing to discuss (if you’ll actually make one).

  45. Anon February 21, 2020 12:05 pm

    TFCFM,

    Yet more game playing for you with the fallacy of: “Well, I surely can neither read your mind nor force you to discuss the substance of the issue at hand.

    You have never had to read my mind AND never had to force ME to discuss the substance of issues at hand.

    Quite the reverse with you, as YOU are the one that will insist on dismissing substantive points out of hand and then pretend that no counter point was EVER presented (all the while pretending that you are willing to engage in actual discussions when clearly it is YOU that refuse to so engage).

    One recent example was the direct and straight forward request from me to you of having you explain the actual training that you have had in claim writing. Only games from you ensued. It is beyond clear why.

    This is not a new trick from you, and anyone tracking back to your initial appearance on this blog will see that I quickly called you out for your tricks.

    You keep on acting that you are unaware that your tricks have been exposed. Such f00ls no one.

  46. TFCFM February 24, 2020 11:07 am

    It makes not the slightest difference if All The Lords Of Patent Drafting have schooled me on claim drafting or if I am one of an infinite number of monkeys pounding on keyboards. My words speak for themselves.

    The words in response to which you dodge, wave your hands (e.g., by questioning “training”), and change the subject — because you don’t like, and can’t refute, those words. No one is fooled.

  47. Anon February 24, 2020 12:15 pm

    You again have evaded giving a direct answer to the question put to you.

    It makes not the slightest difference

    Then WHY are you fighting so hard in giving me a direct answer?

    My words speak for themselves.

    Indeed – just not how you seem to keep on telling yourself. HINT: this is not good for you.

    Also, YOU are the one (still) dodging and waving hands – while doing the Accuse Others route.

    Another HINT: this is not good for you.

    But please, continue to post in a manner that continues to prove my point (while being so obviously self-absorbed so as to be clueless as to the results here).

  48. Anon February 24, 2020 6:12 pm

    … the questioning of training is NO dodge — and if you were a real genuine patent attorney that had ever been charged with protecting an innovation, you would immediately recognize such.

    That YOU want to play this off as something meaningless only shows that YOU cannot understand the meaning.

    You confirm that at best you are an attorney that has litigated patent cases. At worst, you have a registration number and think that such gives you the understanding of what it means to draft the instruments that protect innovation.

    This is FAR from some meaningless point. That you even begin to think so provides the proof of my points.

  49. TFCFM February 25, 2020 10:33 am

    I don’t know how to interpret you and have lost interest in attempting to do so. Although I think that option #1 below is likely the most correct, I’m willing to settle for #3b. Frankly, I’ve got work to do, and you’re clearly not interested in informed discussion. Bye.

    The options I see are:

    1. You can’t refute what I say, so you seek to distract/insult instead.
    2a. You are so focused on what you WANT to believe that you refuse to consider any contrary indications as to truth.
    2b. You are so focused on what you WANT to believe that you are intellectually unable to fathom any contrary indications as to truth.
    3b. You’re one of those debaters who think that whoever says the most words “wins.”
    3b. You’re one of those debaters who think that the last person to say something “wins.”

  50. Anon February 25, 2020 12:15 pm

    LOL – the “blame the other guy” while STILL NOT providing a direct and simple answer to a direct and simple question gimmick is just that: a gimmick.

    That you continue to TRY to insist that I ma not interested in an informed discussion — while YOU continue to evade providing the ‘informing’ part is chutzpah beyond belief.

    YOUR options do not fit. YOUR options may be what YOU are used to using yourself. You employ the (rather silly) Accuse Others game yet again — instead of actually engaging and actually informing. For someone who has “work to do,” you have certainly spent MORE effort avoiding a direct and eminently simple answer than anything else.

    As I stated: you continue to prove my point with how you choose to respond.

  51. PTO-Indentured February 25, 2020 2:01 pm

    We can clearly see now, for more than a decade, it has meant nothing to the courts, to congress, to cast aside (intentionally make worthless) U.S. patents numbering in the five-figures. Still such a mind-boggling number, an incalculable economical loss, a glaring double-standard inequity, and unfettered injustice, proves incapable of reaching even a periphery of their conscience.

    Based on such an impenetrable apathy, indifference and unwillingness to take corrective action, they have remained, and will be duly remembered as having been, the perpetrators of a darkest era in the history of the U.S. patent system (many ‘DUI)’. Oh how we could have shined, yet again, if not pinned under this unrelenting dark shadow.

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