The Impact of Overturning eBay v. MercExchange

By Evan Langdon
March 2, 2020

“At a time when most policymakers rightly argue that China and other countries need to do more to clamp down on intellectual property infringement, overturning the four-factor eBay v. MercExchange test would impose new hurdles and increase the PAE problem that Congress and the Supreme Court fought to address over the last two decades.”

The Impact of Overturning eBay v. MercExchange: Consequences: https://depositphotos.com/55355883/stock-photo-consequences-facing-facts.html

As anyone who follows the landscape of patent litigation knows, the Supreme Court’s decision in eBay Inc. v. MercExchange LLC, 547 U.S. 388 (2006) was meant for one primary reason—to combat patent asserted entities (PAEs).[1] It is true that prior to the Supreme Court’s decision in eBay, it was rare for a district court to deny a victorious plaintiff a permanent injunction in a patent infringement case. And PAEs knew that and used the threat of injunctive relief—no matter how remote—to extract license agreements.

The STRONGER Patents Act introduced now for the third Congress by Senator Chris Coons (D-DE) has provisions that, if enacted, would overturn eBay. Congress at large appears to have no desire to disturb this Supreme Court decision, and any bill that contains a provision overruling eBay cannot and should not be enacted. Such a bill would reopen the flood gates for PAEs to file patent infringement suits in federal district court armed with the threat of injunctive relief. At a time when most policymakers rightly argue that China and other countries need to do more to clamp down on intellectual property infringement, overturning the four-factor eBay v. MercExchange test would impose new hurdles and increase the PAE problem that Congress and the Supreme Court fought to address over the last two decades.

Despite the Supreme Court’s decision in eBay, PAEs remain a problem in district court litigation today. In 2013, according to a report by the U.S. International Trade Commission, 60% of all district court patent suits were brought by PAEs. In 2018, that number remained steady with PAEs accounting for 55% of all district court patent suits. See 2018 Patent Dispute Report: Year in Review (Jan. 2, 2019), (last visited Feb. 21, 2020).

As correctly noted in Gene Quinn’s February article Why eBay v. MercExchange Should, But Won’t, Be Overruled, the fallout of the Supreme Court’s eBay decision is that the United States International Trade Commission (ITC) has become a far more desirable forum for patent owners. The ITC allows patent owners the ability to obtain an exclusion order that prevents importation into the United States products found to infringe a valid intellectual property right. This provides great relief to complainants who can avail themselves of the ITC’s jurisdiction under Section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337. First and foremost, Section 337 is a trade statute, and the ITC is tasked with administering enforcement of the statute. The ITC investigates whether there is an unfair act in the importation of products into the United States. Section 337 defines such unlawful acts as, among other things, infringement of a valid patent, copyright, or registered trademark.

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Contrary to the claims of some critics, it has become increasingly difficult for PAEs to obtain exclusion orders at the ITC. The ITC interprets Section 337 in a judicious manner and carefully polices the domestic industry requirement and the application of the statutory public interest factors. Since the eBay decision issued in 2006, only 8% of all Section 337 investigations involved complaints filed by PAEs, and just 9% of all investigations involved the more broadly defined NPEs, such as research institutions, startups, and individual inventors. See U.S. International Trade Commission, Section 337 Statistics: Number of Section 337 Investigations Brought by NPEs, (last visited Feb. 21, 2020). This is consistent with a fact sheet the ITC published in 2013 showing that in the first seven years since the eBay decision, only 9% of all Section 337 investigations involved complaints filed by PAEs and 11% of all investigations involved in the more broadly defined NPEs. See U.S. International Trade Commission, Facts and Trends Regarding USITC Section 337 Investigations, at 2-3 (April 15, 2013) (85 PTCJ 927, 4/19/13).

Among the safeguards in place to thwart PAEs from obtaining unwarranted injunctive relief at the ITC is the “domestic industry” requirement. As a trade statute, Section 337 requires a complainant to prove it has a “domestic industry” related to articles protected by the asserted patents or the intellectual property being asserted. Although the 1988 amendments to Section 337 allow intellectual property holders that do not manufacture products, such as universities and research institutes, to obtain remedies at the ITC, the Commission has strictly enforced the statutory requirement that a domestic industry can only be established based on “substantial” investments. Federal Circuit decisions in InterDigital Commc’ns, LLC v. ITC, 690 F.3d 1318 (Aug. 1, 2012), reh’g denied, 707 F,3d 1295 (Jan. 10, 2013) and Microsoft Corp. v. ITC, 731 F.3d 1354 (Fed Cir. 2013) have further strengthened this safeguard. Based on these decisions, an NPE complainant must show the existence of articles that practice the asserted patents and the substantial investment—once protected articles are shown—in exploiting the asserted patents, including through engineering, research and development, or licensing.

In an effort to further deter PAEs from abusing the ITC as a forum, the Commission in 2013 launched a pilot program for a 100-day early disposition that allows earlier rulings on certain dispositive issues—such as domestic industry—to limit unnecessary litigation and conserve resources. The 100-day program was formally added in June 2018. Under this rule, the Commission will identify, at institution, investigations that are likely to present a potentially dispositive issue and direct the administrative law judge to conduct expedited fact-finding, hold an abbreviated hearing, and issue an initial determination within 100 days. The program was first initiated in Certain Products Having Laminated Packaging, Laminated Packaging, and Components Thereof, Inv. No. 337-TA-874, where the Commission employed the 100-day program for the first time to determine whether the complainant—a PAE that does not produce any product—satisfied the domestic industry requirement. The Commission’s use of the 100-day program properly places the burden on the PAE complainant to prove, at the outset of the litigation, whether it can meet the threshold domestic industry requirement. This program significantly undercuts the ability of PAEs to pressure respondents into early settlements.

Innovators believe some kind of injunctive relief is necessary to address widespread patent infringement. Because patent damages in federal court will generally approximate only what a negotiated pre-infringement license would have cost, implementers have no real incentive to take a license, which leads to hold-out scenarios. The risk that an implementer engages in “efficient infringement” has made the ITC an increasingly attractive forum, for at least some patent owners and notably not PAEs. ITC exclusion orders and cease and desist orders are the last vestige of the exclusivity promised to the right patent owners at the time they are granted a patent. Compared to proposed sections of the STRONGER Patents Act, the ITC strikes a balance between offering at least some patent owners the ability to prevent infringers from engaging in the never-ending game of “efficient infringement” while frustrating PAEs attempts to abuse the exclusionary remedies offered.  Congressional action should be reserved for a time when there is clear evidence that the eBay decision is harming U.S. businesses and those U.S. businesses are unable to obtain the relief they need at the ITC. At this time, there is no such evidence.

__________

[1] Non-practicing entities (NPEs) are entities that do not manufacture products that practice the asserted patents, such as inventors, research institutions, universities, and startups. Patent assertion entities (PAEs) are NPEs, whose business model primarily focuses on purchasing and asserting patents.

 

Image Courtesy of Deposit Photo
Image ID: 55355883
Copyright: kikkerdirk

The Author

Evan Langdon

Evan Langdon an Intellectual Property partner at Nixon Peabody LLP, leads the firm’s International Trade Commission (ITC) Section 337 team. He focuses on Section 337 “Unfair Import” investigations before the ITC, intellectual property litigation in U.S. District Courts, and appeals before the Federal Circuit. Evan counsels clients on the nuances of navigating fast-paced Section 337 litigation involving patents, trademarks, and trade dress, and other unfair acts.

For more information or to contact Evan please visit his Firm Profile Page.

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 91 Comments comments.

  1. Paul Morinville March 2, 2020 12:59 pm

    The results of overturning eBay would be that startups get more funding and because of that, many new technologies will be developed in the US rather than China where injunctions are the default.

    The author in this article is clueless about early stage startup funding. I suppose it is because he has zero experience in this and represents mostly infringing corporations.

  2. Pro Say March 2, 2020 4:04 pm

    Sheesh.

    Same ol’ tripe from yet another apologist for the patent-stealers.

    What is it about . . .

    “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 . . .”

    . . . that you clearly don’t like or want to accept Evan?

    The fact remains that 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.

    Exclusion means exclusion.

    Plain and simple.

  3. Anon March 2, 2020 4:43 pm

    As to the author’s reference to eBay, one need not explicitly overturn the four factor test to “right the wrong” in how the eBay decision is implemented.

    One need only spell out the already there plain facts of what 35 USC 283 calls for (emphasis added):

    “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.”

    This section of statutory law is a section dealing with transfer of a Constitutional power from one branch to another. As such, it already must be tightly construed – and strictly so in the patent context.

    This of course invokes BOTH one of the most basic of equitable principles: the aggrieved is to be made whole; and constrains another general equitable principle: injunctions as a ‘most severe’ form of remedy.

    Clearly, the controlling nature of what a patent right actually is (a negative power only with NO positive power to actually ‘make’ anything) is already binding on the Court (whether they heed that or not is an entirely different story).

    Alas, much like eligibility, in which the Court has refused to NOT mess things up, the most likely best answer going forward is to employ both a Constitutional power of the Congress to employ jurisdiction stripping of the non-original jurisdiction of patent cases from the Supreme Court AND reconfigure the Article III CAFC (both to preserve Marbury, as well as to remove the effects of the Supreme Court’s fire-hose-the-simians-in-a-cage psychological conditioning of the current CAFC).

  4. Pro Se March 2, 2020 4:49 pm

    Hey, how about allowing Inventors who hold on to their patents be exempt from eBay?

    Whenever I see these perspective pieces and opponents to overturning eBay, they like to use “PAE” as a blanket end-all identifier for any patent owners who’s not some superstar practicing company…

    But what about those of us who are independent Inventor patent holders that do practice their own inventions? We are the collateral damage to these pundits…

    No one cares right? Because it just may be “smart” to give Indie inventors the power to enforce their patents…

    If a solution to eBay was really the desire of the IP predators the U.S. has become, then eBay and the PTAB would not be in place to prevent the real valuable patents from existing… not the weak patents the PAEs operate, but the real strong IP independents win that large companies scan, observe, and steal…

    The U.S. IP landscape are lying about PAE little $30k settlements being a problem…

    It’s the $300mln IP from Independent holders the U.S. idea raiders don’t want to see on the witness stand in trial.

  5. Curious March 2, 2020 6:20 pm

    As I noted in response to another thread, the notion that NPE (non-practice entities) necessarily equals trolls is simply wrong and has been wrong for a very long time.

    Research universities do not manufacture or implement their inventions. Rather, they are partnering with others who do. Many technology companies (I gave BASF as one example) are developing technologies but are licensing those technologies for others to use. There are very few industries where a single company develop products/services from soup to nuts. As a result of a global economy, companies are focusing on their expertise (whatever that may be). For some companies, it is manufacturing. For other companies, it may be design. For other companies, it may be integration. For other companies, it may be cutting-edge innovation.

    Who wants to be the manufacturer that takes a license for a new technology only to subsequently discover that their competitors have decided that “efficient infringement” is the cheaper route because the intellectual property holder doesn’t have the resources to enforce their technology? In that circumstance, how likely is it that the manufacturer (once burned) will take another license on different technology? In a race to the bottom in which companies who infringe the most reap the most benefits, the original innovators are the ones who are harmed the most followed by those companies who try to do the right thing by negotiating in good faith and taking licenses on technologies that they are using. This doesn’t seem like the optimal result, but this is what the current patent system is set up to accomplish.

    Oftentimes, it is the collaboration of all of these types of companies that lead to the introduction of a new product in the marketplace. However, by denying NPE the “exclusive right” to their invention, the Supreme Court has turned its back on the US Constitution. For modern tech companies that do design but not manufacturing, how can they effectively license their (patented) technology in today’s environment? If I’m a manufacturing company that wants to pay for licensed technology, I want to have the option to take an exclusive license to that technology (conversely, as a design firm, I may want the ability to give an exclusive license).

    Additionally, an infringing entity has little incentive to take a license when they do not face the specter of an injunction. If the dollar amounts are small enough, they know that it doesn’t make economic sense for a company to spend $3M on a patent litigation when they can only recoup $1M. To make enforcement a good economic decision, the value of the infringement has to be at the very least 2x or 3x the licensing value — if not closer to 10x (litigation is a risky proposition and any business decision analysis will discount for that risk). This means that any company with less than $10M? $15M? of infringement is inoculated against most patent infringement lawsuits. Unless the patent owner is not acting in their own best interest, patent judgments of less than those numbers really cannot justify a litigation absent the issuance of an injunction. An injunction adds the additional cost to an infringer of having to redesign their product (or forgo the product altogether), which can be a substantial cost to the infringer and increases the likelihood of settlement rather than a full litigation.

    With many Supreme Court decisions making it easier to invalidate patents (e.g., KSR, Alice, Mayo, and Nautilus) and the AIA making it easy to invalidate patents at the PTAB, even when the infringement value is significantly higher, the cost/benefit analysis for a potential licensee leans heavily to the side of infringement. If a patent is challenged in Court, there is a much higher likelihood that this patent will be invalidated. As such, why pay a $50M licensing fee when you have a high likelihood of invalidating the patent for $5M (or less if you go the PTAB route)? It is a no-brainer to keep infringing while daring the patent holder to enforce their intellectual property.

    The current patent system is set up to make it economically disadvantageous for innovators to sue companies for small infringement amounts and make it economically advantageous for infringers to fight tooth and nail on large infringement amounts. This means that all innovators are being harmed in their ability to assert their patent rights by the current patent system. The current system not only hurts PAEs (i.e., the alleged bad guys) but equally hurts NPEs of the kind that most people believe are valuable in generating innovation (e.g., research universities and tech development companies). When these people are forced to spent more time and effort enforcing their intellectual property, then that is taking away from their ability to innovate more.

    Moreover, the current patent system has made the proliferation of PAE’s more commonplace. If it was relatively easier for NPEs to assert their patents, they would do so more in-house because they would retain more of the value of the licenses. However, because asserting one’s patent rights has become a figurative minefield that must be traversed, intellectual property owners have found the process to be too complicated/costly and decided to recoup at least some of their investment by divest their rights to these PAEs.

    The important difference between a licensing campaign engaged in by original patent holders and a licensing campaign engaged in by a PAE is that the original patent holders are usually looking for collaborators and are less likely to engage in so-called “nuisance” lawsuits. On the other hand, a PAE merely looks at the intellectual property as an asset whose value needs to be maximized, which has led to the more slimy tactics commonly associated with PAEs.

    Reducing the need for PAEs would put more money into the pockets of the original inventors, which is great for innovation. However, to do that, the patent system needs to make it easier for original inventors to license their intellectual property, which includes the threat of an injunction.

  6. Anon March 2, 2020 7:46 pm

    Pro Se,

    Hey, how about allowing Inventors who hold on to their patents be exempt from eBay?

    For reasons already extensively covered, this is a horrible idea, and one I will not — cannot — agree with.

    As I have noted recently (on the thread that Curious references), the Founding Fathers were explicit that the personal property right of full legal rights of a granted patent (as comes from turning an innovator’s inchoate right into that full set of legal rights through the Quid Pro Quo) was always meant to be fully alienable.

    You start turning that full set into a “less than or maybe full” set depending on an owner’s identity, and you have broken that fundamental aspect of full alienability.

    Call me a purist if you must, but that avenue is not the right path.

  7. angry dude March 2, 2020 8:03 pm

    “At a time when most policymakers rightly argue that China and other countries need to do more to clamp down on intellectual property infringement, overturning the four-factor eBay v. MercExchange test would impose new hurdles and increase the PAE problem that Congress and the Supreme Court fought to address over the last two decades”

    Dude,

    You have a problem with basic logic and reasoning

    So China needs patent injunctions, but US do not ?

    Wtf are you trying to say here, dude ???

    P.S. Btw Elon Musk predicted that China’s economy will surpass US 2-3 times in the near future
    You know what happens next ??? Chinese master comes with a big whip to teach you or your children/grandchildren manners (Chinese manners of course)

  8. angry dude March 2, 2020 8:18 pm

    Pro Se @4

    “It’s the $300mln IP from Independent holders the U.S. idea raiders don’t want to see on the witness stand in trial.”

    It’s actually more like 30 billion – a modest 3% of a trillion dollar IP thief like Apple

    Btw “small inventor” definition has shifted over the years from “garage inventor” to a multi-million dollar private tech company still unable to defend its patents against the likes of Apple and Google – the whole premise behind US patent system

    We do not need such patent system. Period.

  9. anonymous March 2, 2020 9:36 pm

    The STRONGER Patents Act does not “overturn” eBay. SCOTUS in eBay says “We hold only that the decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts.” The STRONGER Patents Act does not remove that equitable discretion, which is what “overruling eBay” would mean. Courts would still have discretion.

    Congress is well within its constitutional authority, however, to clarify by statute that once a court has already found infringement of a valid and enforceable patent, the irreparable harm prong of the inquiry is satisfied by the mere trespass on the right to exclude and that the patent owner must not necessarily accept future money for continued unwanted trespass on the right to exclude. There is nothing wrong with a statute saying the infringer has no right to continue to willfully infringe.

    In any case, I believe the “Efficient Infringer” problem is far worse than the “PAE problem.” Amazon, Apple, Google, Facebook, Microsoft, et al are too big, too powerful, and too politically influential, and the power imbalance is far more dangerous to consumers and fair competition than PAE’s asserting their property rights. (Do you own a property interest in your home if you bought it instead of building it yourself? Of course. No different than a patent owner who isn’t himself the inventor.)

    This article also plainly ignores eBay, which says independent inventors can and should be able to obtain an injunction: “some patent holders, such as university researchers or self-made inventors, might reasonably prefer to license their patents, rather than undertake efforts to secure the financing necessary to bring their works to market themselves. Such patent holders may be able to satisfy the traditional four-factor test, and we see no basis for categorically denying them the opportunity to do so.”

    The STRONGER Patents Act should pass. It doesn’t “overrule” eBay, but reasonably protects an actual right to exclude.

    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.

  10. angry dude March 2, 2020 10:38 pm

    Anon @6

    Purist ??

    Dude,

    We do not have patent system in the US right now

    Got it?

  11. Pro Se March 2, 2020 11:18 pm

    @6 Anon:

    U.S. Constitution 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.”

    -The rights of the U.S. constitution was authored to protect the inventor to the exclusive right of their discoveries and Congress must “promote the progress” –

    But of course, that was authored at a time before LLCs and political greed.

  12. concerned March 3, 2020 6:42 am

    As a lay person, I cannot get pass the whole NPE argument, neither can my patent attorney. If a person “allegedly” owns their legally obtained patent, that person should be authorized to rent or sell it to anyone, just like their house.

    Of course, now I learn via Oil States that a patent is not owned by the person who came up with a novel idea and spent untold dollars and time.

    The patent system is suspect and so are articles that advance concepts that are very interesting to say the least.

  13. Anon March 3, 2020 7:30 am

    Pro Se,

    Part of that securing – a basic part – is the ability of the innovator to ‘part’ or alienate the property of his inchoate-turned-full-legal property.

    Any law that attaches substantive rights based on ownership detracts from the full alienability.

    Such is a trap, a mirage.

  14. Curious March 3, 2020 10:17 am

    We do not have patent system in the US right now
    Stop trolling. All you are doing is trying to get a rise out of Anon.

  15. TFCFM March 3, 2020 10:33 am

    Thanks, EL — a well-reasoned, informative post. I’ll quibble with only one point: reference to

    EL: “…the four-factor eBay v. MercExchange test…

    This reference suggests to me that the eBay court made up a NEW test. That is, of course, not accurate. The Supremes took pains to emphasize that they were merely correcting the Federal Circuit’s failure to follow LONG-STANDING EXISTING precedent regarding assessing the appropriateness of a requested injunction. Although the Supremes could have cited far older precedent, they cited only two relatively recent examples of the four-part test for injunctions (“Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-313 (1982); Amoco Production Co. v. Gambell, 480 U.S. 531, 542 (1987)“).

    Indeed, even in the section where the majority opinion directly analogizes the decision to the same decision made in the context of copyright matters, the Court cites far older precedent:

    Like the Patent Act, the Copyright Act provides that courts “may” grant injunctive relief “on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” 17 U. S. C. § 502(a). And as in our decision today, this Court has consistently rejected invitations to replace traditional equitable considerations with a rule that an injunction automatically follows a determination that a copyright has been infringed. See, e. g., New York Times Co. v. Tasini, 533 U.S. 483, 505 (2001) (citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578, n. 10 (1994)); Dun v. Lumbermen’s Credit Assn., 209 U.S. 20, 23-24 (1908). 547 U.S. 388, 393-393 (2006).

  16. TFCFM March 3, 2020 11:09 am

    Pro se@#4: “…how about allowing Inventors who hold on to their patents be exempt from eBay?

    I think you miss the point of the equitable test for assessing the appropriateness of an injunction. The point of the test is not to stick it to certain parties, but rather to assess whether it is appropriate (substitute “equitable” or “just” if you prefer) to invoke the power of a court to order a party to do (or refrain from doing) certain acts in order to remedy the harm that has been or will be caused to the party requesting the injunction.

    To assess what is necessary to remedy harm, the nature of the harm must be considered. Where harm is merely monetary (the injunction-seeking party wants only money, an award of money will fully remedy that party, and ordering the other party to do anything beyond “pay money” is unnecessary. It is immaterial who/what the injunction-seeking party is. Thus, in the context of a patent suit where a patent owner seeks only money damages, it is immaterial whether the owner is the inventor or not — the owner’s harm can be fully compensated by money damages and an injunction is unnecessary. Getting the quantum of money damages right is the sole remaining question (albeit a sometimes-difficult one).

    Where a patent owner genuinely seeks more than “just money” (the patent owner actually operates a business and seeks to use the patent to enhance the business’ competitive position), money damages will not normally adequately remedy the harm that this owner has endured or will endure, and an injunction may be appropriate (upon assessing the balance of the four factors). Again, it is immaterial whether the patent owner in this situation is the inventor, an inventor-owned business, an employer of the inventor, or someone who has simply purchased the inventor’s rights.

    In an example of a prototypical “troll” case, imagine an inventor has (let’s say genuinely) invented and patented some relatively minor feature that is incorporated (whether willfully, innocently, or somewhere in between) into cellular telephones. Regardless of whether the owner of that patent wishes to practice the technology or not, the owner has been damaged (assuming infringement and validity of the patent, at least). The question becomes what is an appropriate remedy.

    If the patent owner was genuinely positioned to offer competing cell phones (with production arranged, all necessary licenses in place, and a genuine ability to make, distribute, and sell them), an injunction likely should issue, because this permits that patent owner to compete in the marketplace on the basis of the patented invention, without depriving society of all cell phones.

    In the far-more-common situation, however, in which the patent owner simply seeks to extract as many dollars as possible from cell phone companies and has no plans or ability to offer replacement cell phones, an injunction should not issue, for two reasons:
    1) because the patent owner seeks only money, the court can fully remedy the owner’s harm by awarding the owner the “right” amount of money; and
    2) because society ought not to be deprived of (or threatened with deprivation of) all cell phones merely because the owner of some patented minor feature is dissatisfied with the valuation of the patented invention.
    Again, the identity of the patent owner (whether the inventor or another) is utterly unconnected with these concerns.

    It is not difficult to appreciate that the value-to-society of complicated technologies will often be far, far greater than the value of relatively minor features of those technologies. Allowing the inventor/owner of every minor feature to deprive society of a technology in order to extort a value greater than the value-of-the-minor-feature will prevent such technologies from being available to society. That can hardly be said to promote progress.

    The issue seems to me to boil down to whether progress is better served by awarding to non-practicing innovators the value they can demonstrate for their inventions (our current system) or effectively preventing society from possessing all technologies to which more than a small number of cooperating innovators have contributed. Progress seems, to me, better served by permitting society to enjoy technologies (even when a few contributors get less reward than they believe they are entitled to) than by effectively outlawing all technologies which involve multiple inventive concepts until the next-to-last-to-expire patent has expired.

  17. angry dude March 3, 2020 11:44 am

    Curious @14

    “Stop trolling”

    Yeah, right, dude…

    I was “trolling” here back in 2006 predicting almost exactly what would happen to the 230-year old US Patent System established by the Founding Fathers

    No one would listen, people ridiculed me… but if you read my posts from back in the days they were almost identical to what Gene and other patent attorneys here (even Anon) write today (minus legal mumbo-jumbo)

    Now I am predicting what will happen to this entire country called USA of mega-rich IP thiefs and the rest of lemming population…
    Chinese master is coming with a big whip… Get your ar$es ready
    Don’t want to be a magnet for people from all over the world to come here and invent new things, start new industries?
    Don’t want to feed your own inventors ?
    You’ll feed all of China… and pretty soon

  18. Curious March 3, 2020 12:20 pm

    failure to follow LONG-STANDING EXISTING precedent regarding assessing the appropriateness of a requested injunction
    It seems to me that the LONGEST-STANDING PRECEDENT is the US Constitution, which talks about “exclusive right” to inventors. However, the Supreme Court has deemed “exclusive right” to be a non-exclusive right for many inventors. As such, the Supreme Court has rewritten Article I Section 8 of the US Constitution to read:
    [The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to … [some] inventors the exclusive right to their respective … discoveries [upon good showing].”

  19. Jam March 3, 2020 1:28 pm

    Correct me if I’m wrong, but 35 USC 154 (granting the patentee the right to exclude others) was written in a different time, i.e., before the Internet. It seems like that back in the day, researching competitors was difficult and expensive work that cost more than the expected return from filing nuisance litigation. With the advent of the Internet, the cost of researching competitors fell so that the costs of filing nuisance litigation fell below the expected return yielding a net profit, leading to the rise of patent assertion entities (PAEs) and non-practicing entities (NPEs). This cost asymmetry may have also be exacerbated by certain courts having plaintiff friendly rules.

    This issue could have been addressed economically without affecting the meaning of the underlying laws, e.g., requiring a patent litigation bond in the amount of the average cost to defend until summary judgment, paid by the plaintiff, recovered by the plaintiff if summary judgment is passed, recovered by the defendant if summary judgment is not passed.

    Instead, judicial activism, in conjunction with constitutionally flawed regulations, have remade once settled law into an Orwellian mess where the law says one thing (e.g., patents are presumed valid, 35 USC 282; whoever invents a new machine or improvement thereof may obtain a patent therefor, 35 USC 101), and yet, in practice, the exact opposite is true (i.e., see the kill rate of patents by the PTAB and the Federal Circuit).

    We are in the slow painful process of updating laws that were written around different assumptions. Myopic viewpoints on either side are less then helpful. To say that everything is fine with the patent system discounts the difficulty that small inventors face with using the patent system and ignores the Orwellian logic used by the courts (which erodes their moral authority). To say that everything was perfect before the AIA, Alice, Ebay, etc. discounts the harm created by the increase of nuisance litigation that was enabled by the advance of technology and increasing cost asymmetry since the time from when the laws were originally written.

    There is a balance. We just haven’t found it yet.

  20. Ternary March 3, 2020 1:55 pm

    Absolutely Curious@5.

    Creation of new knowledge does not depend on the inventors actually using or applying the invention. Pupin obtained his “loading coil” patent with priority to ATT’s Campbell. Both were inspired by Heaviside’s original (and counter intuitive) idea to increase induction in a transmission line to lower its overall (low frequency) impedance. ATT acquired Pupin’s patent. Pupin was a professor who did not use his “loading coil” in practice. Most likely (because of the significant economic impact of his patent) Pupin would nowadays be branded a troll.

    The whole concept of an NPE in relation to inventions is a red herring introduced by infringers. The suggestion now is that if a company pays one or more employees to “develop” a new technology/invention that such invention has more “intrinsic” value. Which is of course absurd.

    It seems to imply that “practicing entities” (those who “make” something) have somehow a greater insight and right to obtain and assert patents. Companies like Kodak (and almost everyone can recite a litany of these companies) demonstrate over and over again that “knowledge” and “innovation” are not the prerogative of “practicing entities” who tend to screw up in later life at an alarming rate. Because they are so large and influential, they have successfully rigged the system to their advantage and to the disadvantage of a vibrant new technology driven economy. They have created their own eco-spheres driven by the specific and limited interests of the top companies that are pursuing monopolistic structures.

    The removal/reduction of injunctions as a tool to protect IP has diminished the value of a patent.

  21. Ternary March 3, 2020 2:55 pm

    TFCFM@18. You preface your examples with biased conditions: “imagine an inventor has (let’s say genuinely) invented and patented some relatively minor feature that is incorporated (whether willfully, innocently, or somewhere in between) into cellular telephones.”

    There is no legal distinction between different forms and intents of infringement except for provable willful infringement. Your example merely reflects your bias, not the legal definition of infringement.

    Cellphones are integrated systems. A manufacturer planning to incorporate a new feature should do an extensive patent search on that feature. It is the equivalent of an inventor to do a prior art search before filing a patent application. If the manufacturer fails to do so and cannot provide proof of such a search, I would say it is automatically willful infringement. Because cellphone manufacturers are well aware of the integrated nature of their systems/devices they risk shutting down of their product line when infringing (even of a “minor” feature). I would suggest that if it is minor, manufacturers should take measures to be able to de-activate or remove those features. The excuse that the feature is “minor” is in defense of infringers and a political opinion and ignores the rights of patent owners.

    I don’t want to leave it to a judge/court to decide if something was genuinely invented (whatever that is compared to non-genuinely invented), if an invention was minor or not, and what the intention is of a patent owner to assert a patent. I have patent rights or I don’t have patent rights. To leave it up to the infringers and their allies to decide what I am entitled to as a patent owner is absurd. It is certainly not “justice for all.” It is a continuing and deliberate erosion of our legal system that benefits infringers.

  22. angry dude March 3, 2020 3:01 pm

    Ternary @20

    “Pupin would nowadays be branded a troll”

    Forget Pupin

    Tesla – not the car maker named after him but one of the greatest inventors who ever lived on this planet would be branded a troll

    Not even mentioning Edison and Wright Brothers…

  23. angry dude March 3, 2020 4:25 pm

    Ternary @21

    “Cellphones are integrated systems. A manufacturer planning to incorporate a new feature should do an extensive patent search on that feature”

    Dude,

    You have no clue about real world of Apple & Co. out there

    You mean the “new feature” was so obvious that manufacturer’s R&D division just came up with the “new feature” on their own in no time ?
    Or maybe just maybe they just browsed the Proceedings of IEEE to find the new feature they were looking for … for decades ???

    And then checked that the “new feature” was patented by some small garage type startup with no capital… so they made the most practical (after EBay) “efficient infringement” choice decision…

    And when eventually dragged to the court room they cry loud that removing that feature from their gadgets will hurt the public ?

    Can you you do it in any other area of law ?

    Like you rob a bank and then argue to the judge that putting you in prison will harm your underage children ? No ?

  24. angry dude March 3, 2020 4:47 pm

    TFCFM @16

    “If the patent owner was genuinely positioned to offer competing cell phones (with production arranged, all necessary licenses in place, and a genuine ability to make, distribute, and sell them), an injunction likely should issue, because this permits that patent owner to compete in the marketplace on the basis of the patented invention, without depriving society of all cell phones”

    Dude,

    Are you really clueless or someone (Apple junkies?) pay you ?
    You ARE a paid troll
    Talk all you want to your alter ego Anon

  25. Anon March 3, 2020 5:47 pm

    Talk all you want to your alter ego Anon

    You really don’t like to apply any critical thinking, do you my angry friend?

  26. Ternary March 3, 2020 10:04 pm

    AD @22. Heaviside was the one who almost single-handedly developed modern EM and circuit theory. He modified Maxwell’s awkward 20 quaternion based equations, into the 4 vector field based equations that we know nowadays. Pupin tried several times to capture the idea of equalizing the impedance of transmission lines. He failed until he finally understood Heaviside’s explanation. Campbell had a better grasp of the science and used it to develop the concept of a wave filter. Unfortunately, ATT/Campbell wanted to be sure on the practical realization of loading coils and it took some time to develop operational rules. Pupin was a clever smarty-pants and self-promotor and after first suggesting that one should increase capacitance to equalize impedance, he finally got it right and quickly filed a patent application, of which he sold the patent to ATT after an interference procedure.

    Oliver Heaviside is an example of a self-made independent inventor/scientist, shunned by so-called experts. He developed EM theoretical concepts before the existence of EM fields and electrons were actually demonstrated.

    This was a man who was brilliant, creative and persistent. He was in an almost continuing fight with the Chief Engineer of the British Post Office (Preece) at the time. Most importantly, Heaviside believed in what he did. He was not one to declare: to the morgue. He is the proverbial example why independent inventors/scientists should receive support in their endeavors.

  27. Curious March 4, 2020 12:15 am

    I was “trolling” here back in 2006 predicting almost exactly what would happen to the 230-year old US Patent System established by the Founding Fathers
    I’m sorry, you’ve lost your credibility here a LONG … TIME … AGO. Unlike most of us who are actually engaged in the field, you’ve described yourself as an inventor that has essentially given up years and years ago. Do everybody a favor and go find the blog of your favorite sports team and complain about them there. You add nothing constructive to the conversation.

    Honestly, I don’t know why Gene hasn’t pulled the plug on you.

  28. angry dude March 4, 2020 12:39 am

    Ternary @26

    Oliver Heaviside was a very strange and troubled man – no wife, no family, no children as far as I remember from reading his biography back in college days (correct me if I’m wrong)

    Do you want all of us, independent inventors, to be like him ?

    “To the morgue” means I care more about my family than about US patent system and the entire country…

    It is the job of wash dc critters to care about survival of the US in this not so friendly world

  29. angry dude March 4, 2020 6:54 am

    Curious @27

    “I’m sorry, you’ve lost your credibility here a LONG … TIME … AGO. Unlike most of us who are actually engaged in the field, you’ve described yourself as an inventor that has essentially given up years and years ago”

    Dude,

    I gave up filing useless US patent applications back in 2006 right after Ebay… cause I KNEW exactly what was coming…
    And because of this I am still here, not bankrupt, and my patent is still alive, not cancelled by PTAB as being “abstract” for being “computer-implemented”, with just a few years of life left until it expires
    You can call me anything you want but I do not throw good money after bad and do not shoot myself in the foot like a lot of other dudes did over the last 14 years

    “Honestly, I don’t know why Gene hasn’t pulled the plug on you”

    He did, years ago, for a while… But what I was posting back in the days is pretty much what he writes now – minus legal mumbo-jumbo plus strong cursing
    To Gene’s credit he does value free speech
    Yeah… I know this is legal blog blah blah blah
    But the situation with patents in the US is far beyond being polite to each other and to our opponents. We now have LEGALIZED racketeering outfits like Unified Patents acting IN CONCERT and with active participation with our own USPTO to cancel valid and duly issued patents and/or make inventors and small companies go bankrupt
    Wars have been started for much less
    The only reason we don’t have have civil war is that patents apply to a very small percentage of the US population
    Try to do similar changes to alcohol/tobacco sales or gun controls or medical care or education and you WILL have bloody civil war next day
    This situation is simply untenable and can’t last for much longer

  30. Ternary March 4, 2020 9:33 am

    AD, Heaviside became “troubled” as you say when he had retired and found himself very much isolated. His story is pretty much of an outsider who had initially trouble finding an outlet for his ideas. The Maxwellians (of which Heaviside was a member) were a group of (British) physicists who had little traction in the world of engineering, until Hertz demonstrated EM field transmission.

    I am interested in the growth of knowledge and how it comes about. Despite what everybody claims about science and technology, society as a whole resists change and especially change created by outsiders.

    The US patent system provides/provided an outlet for independent thinkers to claim their ideas. It is separate and independent from the science “peer review” crowd that has streaks of defending its own interests and ignoring contributions of outsiders. The establishment tries to mold the system to its own interests. What we are experiencing nowadays has happened before. We should not let that continue. And there are people of influence who are open to rational arguments.

    What we found over and over again is that we need to provide an outlet for independent thinkers to protect their IP. From that perspective the patent system used to serve the US extremely well.

    I don’t want all inventors to be like Heaviside. What I want is that independent inventors, even when they are like Heaviside, will find an inventor friendly, affordable, rational and effective patent system.

    What I also believe is that we need inventors/scientists like Heaviside. Otherwise we will be dominated by incumbents who ultimately (despite having great scientists and engineers) will screw up (Kodak, Lucent, Boeing, DEC, and the list goes on.) Incumbents have found that choking off unwanted change at an early phase is very effective in preventing creating existence-threatening technology.

    That is what we are experiencing. That is: a transformation of the US patent system into an incumbent and corporate friendly instrument and basically anti independent inventors. It should not be a surprise that pro-corporate patent measures particularly are focused on computer-implemented inventions. Computer implemented inventions being “par excellence” the domain of independent inventors.

  31. Anon March 4, 2020 10:12 am

    Bravo Ternary.

    I posit that the posts of yours and the likes of Curious are very much more of what we need than the emotional rants that serve the purpose of the Efficient Infringers (no matter what may be the emotional basis of the ranter).

  32. TFCFM March 4, 2020 10:16 am

    Ternary@#21: “I don’t want to leave it to a judge/court to decide if something was genuinely invented (whatever that is compared to non-genuinely invented), if an invention was minor or not, and what the intention is of a patent owner to assert a patent. I have patent rights or I don’t have patent rights.

    I think that you:
    1) Misunderstand my assumptions and
    2) Miss the point of the discussion between commenter Pro Se and me.

    1) The assumptions that I propose simply remove the questions of patent validity, enforceability, eligibility, and infringement from the scenario (by assuming all are satisfied) so that we can concentrate the discussion on appropriate remedy(ies).

    2) The reasons I make those assumptions are so that we can discuss the merits of Pro Se’s proposal to “exempt” inventor-owned patents from the equitable-balancing test discussed in the eBay case for assessing the appropriateness of injunctive belief.

    My conclusion was that, even setting aside each of those frequently-contested issues, there appears to be no justifiable reason (related to the rationale for using the equitable test to begin with) for exempting inventor-owned patents from the balancing test. The identity of the patent’s owner appears to me to be entirely irrelevant to the applicability of and the rationale behind, the equitable balancing test for assessing a request for equitable relief.

    (Use of the cell-phone example was intended merely as a illustrative example of the principles I discussed. The possibilities and factors you propose can, and should, be considered by a court as part of the equitable balancing when an injunction is requested. I think your bitterness stems from the fact that when they ARE so considered, courts tend not to grant injunctions under circumstances like those proposed by each of us.)

  33. TFCFM March 4, 2020 10:22 am

    Curious@#18: “It seems to me that the LONGEST-STANDING PRECEDENT is the US Constitution, which talks about “exclusive right” to inventors. However, the Supreme Court has deemed “exclusive right” to be a non-exclusive right for many inventors. As such, the Supreme Court has rewritten Article I Section 8 of the US Constitution…

    We’ve had this discussion before, I think, so I’ll offer a summary response.

    The Constitution merely mentioning “exclusive rights” does not specify what those rights might be.

    The Patent Clause is a simple enumeration of a power which Congress may choose to exercise, not a detailed specification of precisely how Congress must exercise it.

    Congress exercised the powers granted to it in the Patent Clause by enacting our current patent statutes, which grant inventors only certain exclusive rights and with certain limitations. That is and was Congress’ prerogative to do, no matter how displeased you may personally be with how Congress exercised its constitutionally-granted power.

    Crying, “Waaah! But… the Constitution!!!” changes none of this.

  34. angry dude March 4, 2020 11:56 am

    Ternary @30

    Forget about independent inventors for a moment

    This is a red herring

    I am talking small private US-based R&D-focused tech companies

    US patent system is supposed to protect them from large predators

    Does it protect them ? Can the success story of Quallcomm repeat in the current environment ? I don’t think so – Quallcomm would be robbed of their patented tech in bright daylight and go bankrupt
    We would not have Quallcomm without strong patent protection as it existed prior to Ebay

  35. Ternary March 4, 2020 12:30 pm

    TFCFM. Your overall opinion seems to be: this is what it is, so live with it. Your examples in general put inventions in a bad light. You claim it just to be an assumption for argument’s sake. But that is not supported by your posts.

    The patent system and it rules are not a physical system governed by natural laws. They are human rules open to change and interpretation and thus highly political. The current system has a strong corporate flavor (like the European system) and has moved away considerably from supporting independent inventors. Because rules can be changed (and are constantly changed) it is open to recommendations to improve the situation for independent inventors.

    It has become increasingly difficult for independent inventors to obtain, maintain and assert patents. After taking all barriers to maintain validity of a patent, inventors will meet yet another barrier to obtain an injunction against infringers.

    While I prefer to believe that (patent) justice is blind, it is not. Since the issues of trolls, eligibility, functional claiming and obviousness affects the position (and rights) of independent inventors, it is reasonable for inventors to make their own political demands. We can and do adjust rules for certain classes of inventors, as with filing fees.

    The issue of patent trolls plays an outsized role in discussion around patent assertion. A simple solution to the problem: an original inventor on a patent is not a troll. One cannot look into the mind of an inventor why she/he did the invention. The best assumption is to assume that an inventor obtained a patent under the promise that it protects against infringement. A remedy against infringement is injunction to practice the claimed invention by the infringer.

    Introducing factors such as “genuinely inventing”, ability to build a device, etc. are all sidetracking, irrelevant arguments to diminish the “true value” of an invention.

    “…there appears to be no justifiable reason (related to the rationale for using the equitable test to begin with) for exempting inventor-owned patents from the balancing test. ” Of course there is: that rationale is the right of the named inventor on a patent to stop infringement. You may not be convinced by that rationale. But still it is a valid rationale. That rationale finds its roots in “exclusive rights.” The proposed change is one that makes the Constitutional “exclusive rights” operational, at least for independent inventors.

  36. Curious March 4, 2020 1:07 pm

    The Constitution merely mentioning “exclusive rights” does not specify what those rights might be.
    What are those exclusive rights then?

  37. Anon March 4, 2020 2:45 pm

    Curious,

    TFCFM is merely showing off his lack of knowledge on Con Law again.

    There are phrases in the Constitutional that are merely hortatory. “Exclusive” is not one of them.

    He will of course try to veer to the Constitutional section being a distribution of power (and that would be correct), and then he would try the “it’s not defined” line. That line of course is bogus, as the Constitution does NOT have a dictionary setting AND at the same time, each word in the Constitution is NOT “up for being defined” at any whimsical date (nor by any branch of the government, be that branch the legislative one or the judicial one).

    TFCFM is — at best — a litigating attorney who may have litigated a patent matter. He has long ago forgotten his Con Law class (if he ever even took one), and certainly only knows the subject on a rudimentary basis.

    By the way, he also suffers the same affectation in regards to remedies, as he has perpetually misapplied remedies and the doctrines of equity as if they not only exist in a vacuum, but as if they operate to rewrite statutory patent law. He takes the entire context out of the actual right being transgressed — and to which, the branch to branch shared authority is made by Congress.

    As much as you light into angry dude (and deservedly so); TFCFM is even more of a menace. This is because TFCFM actually uses reason and appears to be applying the law. angry dude is clearly — well — an angry dude, and his rants are merely annoying Efficient Infringer like propaganda. One easily sees that angry dude has no basis in law and uses no reason.

    TFCFM will more easily mislead others.

  38. NewLawschoolGrad March 4, 2020 5:22 pm

    “Congressional action should be reserved for a time when there is clear evidence that the eBay decision is harming U.S. businesses and those U.S. businesses are unable to obtain the relief they need at the ITC. At this time, there is no such evidence.”

    Evan – how about this for clear evidence: the ITC does ZERO to provide relief to US businesses with patents that are being infringed by other US-based businesses.

    No importation means no access to ITC.

    I would love to hear your thoughts on this not-insignificant portion of domestic to domestic patent infringement.

  39. angry dude March 4, 2020 8:02 pm

    NewLawschoolGrad @38

    Dude has no thoughts – he is paid to write what he writes

    Concerning your question about domestic infringers:

    “All animals are equal but some animals are more equal than others”

  40. TFCFM March 5, 2020 10:42 am

    Ternary@#35: “Your overall opinion seems to be: this is what it is, so live with it.

    I don’t object in the least to anyone advocating a change to our patent laws in line with their opinions and views as to what the law should be. On the contrary, I object strenuously to disingenuous people arguing that our current patent laws ARE whatever their mind believes they should be, simply because they want it so.

    That is, it is one thing to argue about whether our laws ought to be changed to read XYZ because you or I think that XYZ would be a good idea. It is quite another to argue that the law is XYZ — when it clearly is not — just because you or I think it ought to read XYZ.

    For example, you and I are discussing (@#18/21/32) whether it might be sensible to apply a different test for injunctive relief in cases in which a patent is owned (presumably solely) by an inventor(s). There are, as you suggest, arguments to be made for and against making such a change to current patent law. However, it is dishonest, disingenuous, and simply not-at-all convincing to that this is “already” the law because the Constitution vaguely employs the undefined phrase “exclusive rights” in the clause empowering Congress to set up a patent system.

    The Patent Clause of the Constitution fails to define any of a zillion details of what a patent system might look like, including specifying what “exclusive rights” means in the context of empowering-Congress-to-make-a-patent-system.

    Congress surely CAN make the change that you advocate to our patent laws, should it choose to do so. However, the current law is clear and does NOT embody that change. Courts are not empowered to legislate changes to our laws (patent or other), no matter how desirable the change might be. That job simply belongs to the legislative branch.

  41. TFCFM March 5, 2020 10:47 am

    TFCFM@#33: “The Constitution merely mentioning “exclusive rights” does not specify what those rights might be.

    Curious@#36: “What are those exclusive rights then?

    They are the rights embodied in the patent statutes enacted by the legislative branch as interpreted (note: not re-legislated) by the courts of the judicial branch.

    Put more simply, our patent laws define the “exclusive rights” — absolutely in keeping with the Constitution’s grant to Congress of the power to define those rights in patent statutes.

  42. TFCFM March 5, 2020 10:59 am

    NLSG@#38: “ the ITC does ZERO to provide relief to US businesses with patents that are being infringed by other US-based businesses.

    By way of clarification, the ITC DOES provide relief to businesses, even when other US-based business are:

    – importing

    – selling abroad for import into the US

    – selling within the US, after importation,

    articles that infringe a US patent (subject to several limitations and requirements). That is, simply being a US-based business does not exempt a party that does one of these things from liability under section 337. The nationality of a party that performs one of these acts is immaterial to section 337 liability.

    You are correct when you say that
    No importation means no access to ITC.
    However, this is perhaps best understood by appreciating that section 337 (i.e., 19 USC 337) is a TRADE statute, rather than a PATENT statute (which appear in 35 USC). Indeed, the very title of section 337 is “Unfair Practices in Import Trade.” Thus, section 337 isn’t a patent statute that happens to involve importation, but is more properly considered a trade statute that happens to involve patents (among other things). It is also why jurisdiction lies with the ITC rather than with federal district coursts (where patent cases go), as well as why injunctive relief is a relative routine remedy in ITC cases (because “unfair trade” acts are being remedied, not just practice of a patented invention.

    In short, section 337 is meant to “fix trade,” not “fix patent infringement.” That is why domestic-only patent infringement issues are not actionable under section 337.

  43. angry dude March 5, 2020 12:53 pm

    @TFCFM

    Dude,

    You have to disclose your paycheck before anyone takes you seriously here

    YOU ARE A PAID STOOGE !!! (and perhaps the twin brother on Anon)

  44. angry dude March 5, 2020 1:59 pm

    @TFCFM

    YOU ARE PAID STOOGE

    GET LOST !!!

  45. Curious March 5, 2020 2:32 pm

    They are the rights embodied in the patent statutes enacted by the legislative branch as interpreted (note: not re-legislated) by the courts of the judicial branch.
    Put more simply, our patent laws define the “exclusive rights” — absolutely in keeping with the Constitution’s grant to Congress of the power to define those rights in patent statutes.

    Nice non-answer. I asked what those “exclusive” rights are — not where they could be found. Try again.

  46. Anon March 5, 2020 3:04 pm

    The irony of:

    On the contrary, I object strenuously to disingenuous people arguing that our current patent laws ARE whatever their mind believes they should be, simply because they want it so.

    As this is exactly what TFCFM is doing.

  47. TFCFM March 6, 2020 10:31 am

    Curious@#45: “I asked what those “exclusive” rights are — not where they could be found. Try again.

    In precisely HOW FEW sentences would you like me to summarize the entire US patent statute, all related statutes, and over two centuries of decisions interpreting it? My patent law casebook from law school extended over 800 pages, and that just scratched the surface (not to mention that that was back when dinosaurs ruled the earth).

  48. Anon March 6, 2020 1:09 pm

    TFCFM,

    Stop the spin, please. The request was on a single notion, not the entirety of patent law.

  49. Curious March 6, 2020 1:14 pm

    In precisely HOW FEW sentences would you like me to summarize the entire US patent statute, all related statutes, and over two centuries of decisions interpreting it? My patent law casebook from law school extended over 800 pages, and that just scratched the surface (not to mention that that was back when dinosaurs ruled the earth).
    Deflecting again. I’m not asking you to summarize the entire US patent statute, I’m asking that you name the “exclusive” rights being provided.

  50. Anon March 8, 2020 10:51 am

    Curious,

    Spin, deflect, and accuse (others of that which he does)…

    Remind you of anyone?

    Not only that, I got a kick out of TFCFM’s pretentiousness, and his (expanded – but just scratch the surface) “patent law casebook from law school” comment.

    So we now know that TFCFM has had A patent law casebook in law school.

    One casebook and maybe a litigated case or two, and he is the self-anointed expert on “what the law really is” (as opposed to not even recognizing that he himself projects only that which “in his mind, that’s how our current patents laws ARE, to his own mind believes they should be, simply because he want it so”).

    At least he recognizes that one casebook of over 800 or so pages hardly scratches the surface.

    But intrigued, I took a gander over at my own partial collection here at my office, and quickly tabulated my own partial page count for IP casebooks and the like (not including the treatise series of the likes of Chisum, Faber, Donner or McCarthy, nor my USCA series, nor even my Strategy of Application Writing Handbook (which is not paginated, but has 10 sections and 71 appendices). I also do not include the annotations of my own, running on actual cases for the past dozen plus years.

    The other direct patent law books that I have total 13,773 pages. I have another 4,732 pages in casebooks for Constitutional Law, First Amendment Law, Administrative Law and Ethics.

    But why would one brandish numbers like that outside of the point at hand being one specific notion within patent law? I do not think that he understands who his audience includes.

  51. Non Sequitur II March 8, 2020 7:31 pm

    @Curious, TFCFM has clearly answered your question @41. Assuming you aren’t being intentionally obtuse, perhaps I can spoon feed it for you. TFCFM is claiming that ALL patent rights are granted by the Patent Act based on the premise that the patent clause of the Constitution authorizes Congress to create a patent system, but does not explicitly define HOW Congress must do it. Thus the term “exclusive right” as used in the patent clause means whatever Congress says it means, which is reflected in the Patent Act. I seriously doubt that you have trouble interpreting and understanding the Patent Act. If you are trying to make a counter argument, you should address the point rather than ignore it.

  52. Curious March 8, 2020 8:38 pm

    Another non-answer. Perhaps, like TFCFM, you should read Title 35 of the United States Codes. Most of the Parts do not involve rights (exclusive or not). Part I (i.e., sections 1-42) generally involves the establishment of the patent office and proceedings before it. Part II (i.e., sections 100-212) involves patentability. Patent IV (i.e., sections 351-376) involves the PCT. Part V (i.e., sections 381-390) involves the Hague Agreement regarding industrial designs. So, let me give you guys a big hint, Part III (i.e., sections 251-329) is entitled “Patents and Protection of Patent Rights.” Of that, we can safely ignore Chapters 30-32 (sections 301-307, 311-319, 321-329), which basically involves post-grant procedures. Have I narrowed down the potential choices enough for you?

    TFCFM is claiming that ALL patent rights are granted by the Patent Act based on the premise that the patent clause of the Constitution authorizes Congress to create a patent system, but does not explicitly define HOW Congress must do it.
    I’ll repeat what I told him … I asked what those “exclusive” rights are — not where they could be found.

    Thus the term “exclusive right” as used in the patent clause means whatever Congress says it means, which is reflected in the Patent Act.
    So (for the fourth? fifth? sixth? time … I’ve lost count), what are these exclusive rights to the inventors’ discoveries?

    If you are trying to make a counter argument, you should address the point rather than ignore it.
    There is no point to address … if you read what I have written in the past, and I have tended to be a fairly prolific writer in the comment section of this blog, I relish the opportunity to address specific points being made. However, neither he nor you have made a point except to state that the “exclusive rights” are somewhere in the code, which is NOT an answer to the question originally posed (and repeatedly asked).

    The answer is one (if it actually existed) that could be rendered in a sentence or two — perhaps 20 to 30 words (or even less). Of course, you can expound upon those original 20 to 30 words, but I’m not looking for a treatise and neither is a treatise needed to explain these (supposedly) exclusive rights.

    Your continued dodging of the question helps neither your nor TFCFM’s credibility.

  53. Anon March 8, 2020 9:02 pm

    Curious,

    Non Sequitur II already has zero credibility.

  54. TFCFM March 9, 2020 10:19 am

    Curious@#49: “I’m not asking you to summarize the entire US patent statute, I’m asking that you name the “exclusive” rights being provided.

    You appear to want a summary of “exclusive rights” that will fit on a bumper sticker. The nature of patent law, however, does not permit the law to be accurately summarized so briefly. As briefly as possible:

    The patent statutes at 35 USC 100 et seq., as well as certain other statutes (e.g., ITC patent-related exclusion provisions such as 19 USC 1337, as we’ve discussed in this or ?another? thread), define the exclusive rights that Congress has enacted subject to its power to do so (enumerated in the Patent Clause of the Constitution).

    On the ‘business’ end of the patent statutes (limiting ourselves to 35 USC for the sake of simplicity), section 271 defines certain acts which will ordinarily be considered “infringement” of a patent. Section 281 requires that a patentee file a civil suit to remedy infringement (i.e., patents are not self-enforcing). Sections 283-289 specify the remedies that follow from a judicial determination of infringement.

    Prior to even reaching the ‘business end’ of a patent, an inventor must apply for a patent (patent rights do not inhere in inventions, unlike copyright… to a degree) and comply with all of the requirements listed throughout the patent statutes, including numerous rules which the statute empowers the Patent Office to make. Failure to comply with those requirements may result in non-award of a patent or — if a patent is mistakenly awarded despite such failure — invalidation and non-enforcement of a patent at the time enforcement is attempted.

    All of the foregoing are subject to over two centuries of judicial decisions which (as with essentially all areas of statutory law) interpret the statutes that Congress enacted and the rules which the Patent Office promulgated and with all other relevant statutes, Constitutional provisions, and judicial procedural rules.

    Makes a lousy bumper sticker, doesn’t it (and even the foregoing is far from completely accurate). Prepare to be shocked, but such complexity has a TEENSY bit to do with why folks hire experienced patent attorneys to deal with important and/or complicated situations.

    (But waving around out-of-context snippets of the Constitution is fun, too, even if it isn’t the slightest bit convincing to anybody-who-matters.)

  55. Anon March 9, 2020 10:52 am

    Le tme repeat:

    TFCFM,

    Stop the spin, please. The request was on a single notion, not the entirety of patent law.

    You still have avoided that single notion, and merely wish to present a “gee, it’s complicated” NON-answer to that single notion.

    As you say (but clearly misapply): “it isn’t the slightest bit convincing to anybody-who-matters.

  56. Ternary March 9, 2020 11:41 am

    Thanks Curious. I did not really fully grasp your comments until @52, and I looked it up as you recommended. This is actually a very instructive discussion because Title 35 mentions “exclusive rights” several times, but mostly in relation to “exclusive rights” bestowed by a patent owner upon a licensee. (I am sorry if I ruined your funny fight with TFCFM on this. TFCFM’s refusal to actually review/read documents will get him into real trouble one day.)

    Title 35 is actually self-referential to the Patent clause. It mentions “exclusive rights” of a patent only once (that is 1 time) in section 284 on Damages in (3)A(iii): “the need to restore the exclusive rights secured by the patent.”

    Title 35 does not explicitly define what the exclusive rights are. We must assume that Congress in failing to provide further explanation demonstrates deference to the Constitution. Much like it does with the second amendment which it does not dare to touch. In light of that it is very disappointing to note that very few “exclusive rights” remain for inventors as they have been stripped away by the courts and Congress. Where are “originalists” when you need them?

  57. Non Sequitur II March 9, 2020 1:37 pm

    “We must assume that Congress in failing to provide further explanation demonstrates deference to the Constitution. Much like it does with the second amendment which it does not dare to touch.”

    Actually, these are very different. The 2nd amendment is a limitation on Congressional power whereas the patent clause is an affirmative grant of power to Congress. There is no need to define “exclusive rights” in the patent clause UNLESS one is claiming that Congress has exceeded its authority in the Patent Act. The only way that Congress could strip “exclusive rights” from inventors is if the patent clause is self-executing meaning that patents are granted by the Constitution itself and not by acts of Congress. Otherwise, patent rights are simply those rights granted by Congress. Self-execution is a hard argument.

  58. Anon March 9, 2020 1:54 pm

    The only way that Congress could strip “exclusive rights” from inventors is if the patent clause is self-executing meaning that patents are granted by the Constitution itself and not by acts of Congress.

    That’s not even close to being close.

    Self-execution is a hard argument.

    Then it’s a good thing than no one (except you and your Strawman) is making that argument.

    By the way, ‘self-executing’ is phrase used in the discussion of treaty powers, and generally not as you attempt here with language within Constitutional phrases.

    NSII – you continue to underwhelm.

  59. Ternary March 9, 2020 4:12 pm

    So, repeating Curious’ question, what then are these exclusive rights that the Constitution mentions as well as the Statute (once)?

    As an independent inventor I have seen my rights being narrowed and thus stripped over the last 10 years. So, again, what are these exclusive rights that I presumably have and should have? Did the Framers just have a brain fart put into meaningless words? I don’t think so. The Framers had a very specific idea about this.

    I have argued this previously and I will say it again, the Patent Clause should be interpreted in the context of the Enlightenment. That context is: if you don’t know it you cannot use it. So everything should be done to promote disclosure, including providing “exclusive rights.”

    In the further context of Patents at that time, it is not too difficult to tell what those “exclusive rights” are. Those rights are rights of property. That is: if it is mine nobody else can use it without my permission. See, not difficult at all.

  60. Curious March 9, 2020 5:04 pm

    Prepare to be shocked, but such complexity has a TEENSY bit to do with why folks hire experienced patent attorneys to deal with important and/or complicated situations.
    They’ve been hiring me for well over 20 years. I have well over a thousand issued patents to my name. I can imagine a conversation at your office:
    Potential Client: “Can I get a patent on this?”
    TFCFM: “What do you mean — a patent?”
    Potential Client: “You know, what I came here to ask you about?”
    TFCFM: “Oh right, there is 35 U.S.C. which can tell you all about it.”
    Potential Client: “I just want an answer.”
    TFCFM: “I gave you an answer.”
    Potential Client: “No you didn’t.”
    TFCFM: “I did, trust me.”
    Potential Client: “You are piece of work … I’m out of here”
    TFCFM: “Glad I could help … please recommend me to all of your friends
    Potential Client: [laughs]

    patent rights are simply those rights granted by Congress.
    I didn’t ask about “rights granted by Congress.” I asked about the “exclusive rights” mentioned in the US Constitution.

  61. TFCFM March 9, 2020 5:24 pm

    Curious@#60: “I didn’t ask about “rights granted by Congress.” I asked about the “exclusive rights” mentioned in the US Constitution.

    The two are precisely the same. The Constitution’s Patent Clause empowered Congress to grant “exclusive rights” however it saw fit in the context of a patent system. Congress saw fit to do so by enacting the patent statutes. Those are the “exclusive rights” to which you refer.

    At some point in this conversation, you suggested that you thought you could define these “exclusive rights” in “20 or 30” words. Given that you’ve typed far more than that many already, why don’t you give us a rendition of your 20 or 30 words, so we can compare notes?

    (If it isn’t evident where your 20 or 30 words is coming from, please identify the source or justification for those particular words, to save us some time.)

  62. TFCFM March 9, 2020 5:27 pm

    Sorry – I didn’t mean to shut anyone out of the conversation. Anyone else who wants to propose a definition for what “exclusive rights” in the Patents Clause purportedly means, please do so — and please identify your source/justification as I asked of commenter Curious. (And please spare us “the fundamental nature of Patents” or “the Enlightenment” as supposed justification, at least unless you also explain why such vague concepts are binding as a definition.)

  63. TFCFM March 9, 2020 5:33 pm

    Ternary@#56: “Title 35 is actually self-referential to the Patent clause. It mentions “exclusive rights” of a patent only once (that is 1 time) in section 284 on Damages in (3)A(iii): “the need to restore the exclusive rights secured by the patent.”

    I don’t see this. 35 USC 284 does not appear to me to include the phrase “exclusive rights.”

    https://www.law.cornell.edu/uscode/text/35/284

    Are we reading different sections 284?

  64. angry dude March 9, 2020 6:33 pm

    Curious @60
    Potential Client: “You are piece of work … I’m out of here”

    Dude,

    “Get out of here!” IS the right answer in this anti-patent legal environment

  65. Ternary March 9, 2020 10:52 pm

    TF… A really simple question you will not, cannot, or do not want to answer: per Curious “So (for the fourth? fifth? sixth? time … I’ve lost count), what are these exclusive rights to the inventors’ discoveries?”

    Admittedly, I have my own explanation, supported by empirical studies. (You really have an aversion against studying/research, it seems.) The “exclusive rights” are property rights. No doubt about it. I even explained why that is. I really cannot help it that you are nor interested in the roots of the US Constitution and the history of patents. But that is what empirical research shows.

    Why don’t you answer this very simple question? Your explanation seems to be: “exclusive rights” are whatever the statute says about rights. But clearly the Framers did not know what the Statute and the court decisions of the 21th century were going to be. The intention of the Framers was expressed in patent law as practiced, let’s say the first 50 years of the USA. Which are: exclusive rights of patents are property rights and not a vague franchise that can be withdrawn at will.

    As to section 284, a typo. Should have been section 287. You can read and research the complete title 35 of the statute at: https://www.uspto.gov/web/offices/pac/mpep/consolidated_laws.pdf. Do search on “exclusive right” and you will see what we are talking about here.

  66. Curious March 10, 2020 9:29 am

    The two are precisely the same.
    Have trouble with the English language much? For example, I have a right to cast a vote in the upcoming elections. It is, however, not an exclusive right since other people also have that right. If you want to look at the wikipedia definition:
    In Anglo-Saxon law, an exclusive right, or exclusivity, is a de facto, non-tangible prerogative existing in law (that is, the power or, in a wider sense, right) to perform an action or acquire a benefit and to permit or deny others the right to perform the same action or to acquire the same benefit.
    Consider the First Amendment, which reads, in part, “Congress shall make no law … abridging … the right of the people peaceably to assemble.” You see how that is a right — not an exclusive right. The Fourth Amendment reads “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Nineteenth Amendment refers to “[t]he right of citizens of the United States to vote.” These are all rights, but they are not exclusive rights.

    The US Constitution is capable of distinguishing between “exclusive rights” and merely “rights” yet you are incapable of doing the same. You previously preferred to “why folks hire experienced patent attorneys to deal with important and/or complicated situations.” It seems to me that you are in need of some hiring.

    Congress saw fit to do so by enacting the patent statutes. Those are the “exclusive rights” to which you refer.
    The patent statutes are not exclusive rights. Rather, the patent statutes are the exercise of Congress’s powers.

    Given that you’ve typed far more than that many already, why don’t you give us a rendition of your 20 or 30 words, so we can compare notes?
    You first — I asked that question of you many times — the earliest in this set of comments being March 4, 2020 1:07 pm.

  67. Anon March 10, 2020 9:59 am

    From the person that wants to retreat to the entirety of patent law to beg off actually being on point to the particulars of “exclusive rights,” it is beyond banality to try to exclude a foundational understanding of patents and exclaim “And please spare us “the fundamental nature of Patents” or “the Enlightenment” as supposed justification, at least unless you also explain why such vague concepts are binding as a definition.)

    This background that you would dismiss is the context of the words chosen.

    More likely, you simply have never studied innovation or the history of the legal mechanisms that sought to provide a Quid of full legal property rights for the Quo of the sharing of the innovator’s inchoate work.

    And no, I did not include the pages of my undergraduate minor in the history of science and technology in the page count tally for comparison to your single casebook of 800 plus pages.

  68. TFCFM March 10, 2020 10:50 am

    Ternary@#65: “Your explanation seems to be: “exclusive rights” are whatever the statute says about rights.

    That’s close. The rights are not “whatever the statute says about rights,” but rather they are the rights which result from application of the statute, as enacted and interpreted. The statute, as interpreted, is an integrated whole, and it is not appropriate to pretend that “exclusive rights” are some stand-alone part of the statutory scheme, somehow unrelated to the whole of which they are part.

    To briefly (and accordingly not-fully-accurately) summarize the statutory scheme: A person who obtains a patent that fully complies with the statutory scheme, using the application process specified in the statutory scheme, may have the right to obtain damages and/or an injunction as a result of acts of infringement (as defined in the statutory scheme) are committed by another who lacks the patentee’s authorization and for whom no statutory defenses apply, subject to the terms and limitations of every part of the statutory scheme, all of this applied in view of judicial interpretations of the statutory scheme which have been made over the past two centuries.

    (And the foregoing *really* inaccurately glosses over ‘non-patent’ US statutes {e.g., anti-trust laws, trade laws, contract law…}, which also apply, as usual.)

    ___

    Ternary: “Should have been section 287

    OK. 35 USC 287(b)(3)(A)(iii) (the portion that refers to “exclusive rights”):

    1) Does not remotely define what these “exclusive rights” are, and therefore cannot serve as a definition.

    2) Applies only to infringement under 271(g) (importation of a product made outside the US by a process patented in the US).

    3) Is at most, one of three factors to be considered by a court “in making a determination with respect to the remedy in an action brought for infringement under section 271(g).” It is, thus, merely a ‘modification factor’ for fashioning an appropriate remedy in a non-infringing-product-made-abroad-by-an-infringing-process case, not any kind of definition of what the remedy must be.

    If you think use of the phrase “exclusive rights” in section 287 imbues that phrase with some meaning, please explain what you think that meaning is and what basis you have for believing so.

  69. TFCFM March 10, 2020 10:55 am

    TFCFM@#61: “Given that you’ve typed far more than that many already, why don’t you give us a rendition of your 20 or 30 words, so we can compare notes?

    Curious@#66: “You first…

    You’re well aware that I’ve provided you my understanding of the meaning of “exclusive rights” and multiple explanations for my understanding. The mere fact that you don’t like my understanding/explanations does not change that.

    Besides, even if had provided no explanation whatsoever, there is no reason you can’t save yourself a ton of work and tap in the “20 or 30 words” that you think define the phrase, as well as your rationale.

    I won’t even hold you to the “20 or 30 words” limit.

    You are, of course, merely blowing smoke, as usual.

  70. Anon March 10, 2020 11:00 am

    Curious,

    Your post was not visible when I made mine. Had it been, I would have added the following to mine:

    One aspect that our friend TFCFM has continuously avoided (feigning ignorance repeatedly) is any acceptance of the nature of the patent right being entirely a negative right. There is NO part of the patent right that provides for the holder of the patent right to actually DO or MAKE something within the scope of the granted patent claims.

    Anyone who actually travels in the legal landscape of patent law should understand this — as well as should understand the repercussions of this.

    The repercussions include effects on the doctrines and laws of remedy and equity. The repercussions also include effects on compulsory licensing and the fact of the matter being that improvement patents may well proceed prior to the term of protection on a base item expiring (and the fact that any such protection on a base item may well belong to someone else).

    The repercussions also include the effect that there is NO harm to the public if the patent holder ENTIRELY refuses anyone to practice their claimed invention for the entire term of protection. The deal — the Quid Pro Quo — does not call out for or require ANY actual use in commerce.

    While these concepts may not have been in the 800 plus single case book that TFCFM may be familiar with from his law school days, but they are none-the-less a critical item to be understood and provides the difference between any old opinion (which of course, anyone may have) and an informed opinion (of which, is an item that TFCFM indicates is why any client would select him).

  71. Anon March 10, 2020 11:49 am

    TFCFM: “You’re well aware that I’ve provided you my understanding of the meaning of “exclusive rights”

    You really want to rest on what you have ‘provided?’

    And you cannot see that your ‘reply’ was a non-answer…?

  72. Anon March 10, 2020 11:54 am

    TFCFM:

    Besides, even if had provided no explanation whatsoever, there is no reason you can’t save yourself a ton of work and tap in the “20 or 30 words” that you think define the phrase, as well as your rationale…

    You are, of course, merely blowing smoke, as usual.

    You really cannot be THAT dense, can you? The entire reason why YOU have been called out is because YOU are merely blowing smoke, as usual, TFCFM.

    I do wonder whether you and Malcom Mooney has the same class for legal rhetoric in which you learned of this “Accuse Others” meme that you so often resort to. I also wonder exactly who it is that you think to be f001ed by such a tactic.

  73. Ternary March 10, 2020 3:07 pm

    This is what I wrote “Title 35 does not explicitly define what the exclusive rights are.” You are only confirming in @68 what was already said.

  74. Curious March 10, 2020 9:37 pm

    You’re well aware that I’ve provided you my understanding of the meaning of “exclusive rights” and multiple explanations for my understanding.
    You’ve provided a whole bunch of hand-waving while advising us to “ignore the many behind the curtain.” Since you are obviously having problems, let me give you something to work with.

    For example, one might say that “an inventor has an exclusive right to practice their invention.” Here, we have a statement as to an exclusive right that is merely 10 words long. I used this as an example of what can be proposed — not what is actually true. We know this statement is not true for two reasons. First, there is no right to practice an invention as the invention may be patented by another. Second, there is no exclusive right to practice the invention since an infringer can still practice the invention (see eBay).

    A person who obtains a patent that fully complies with the statutory scheme, using the application process specified in the statutory scheme, may have the right to obtain damages and/or an injunction as a result of acts of infringement (as defined in the statutory scheme) are committed by another who lacks the patentee’s authorization and for whom no statutory defenses apply, subject to the terms and limitations of every part of the statutory scheme, all of this applied in view of judicial interpretations of the statutory scheme which have been made over the past two centuries.
    I’m looking for exclusive rights — not just rights. As I explained above, they are not one and the same.

  75. TFCFM March 11, 2020 10:12 am

    Ternary@#73: “This is what I wrote “Title 35 does not explicitly define what the exclusive rights are.” You are only confirming in @68 what was already said.

    OK. Perhaps I should have asked my question more clearly:

    What do you believe is the significance of the fact that the words “exclusive rights” appear in 35 USC 287?

  76. TFCFM March 11, 2020 10:18 am

    Curious@#74: “I’m looking for exclusive rights — not just rights. As I explained above, they are not one and the same.

    I strongly suspect that we could have a more intelligent discussion if you would match my disclosure and explanation of what I understand “exclusive rights” in the Patent Clause of the Constitution to mean with a disclosure/explanation by you of what you understand the term to mean.

    As it stands, I can’t even tell what you’re asking, other than that you apparently want “exclusive rights” to be SOMETHING other than what the patent statutes, as interpreted, provide. What is that “something,” and why ought we to believe that the Constitution specifies it?

  77. Anon March 11, 2020 11:16 am

    if you would match my disclosure and explanation

    That’s the point, TFCFM – what you have provided is nothing more than hand-waving, “it’s in there,” and “it’s too complicated” — ALL of which has been called out as NOT providing ANY actual on point disclosure or explanation.

    There is nothing THERE there TO match.

    Your ‘strong suspicions’ are very evidently misapplied.

    As to “I can’t even tell what you’re asking,” is nothing more than your (Malcolm-like) Vinnie Barbarino “Huh, what?” rhetorical game. It does not work for him. It does not work for you.

    It is beyond clear to any actual attorney the games that you are playing.

  78. Curious March 11, 2020 1:50 pm

    I strongly suspect that we could have a more intelligent discussion if you would match my disclosure and explanation of what I understand “exclusive rights” in the Patent Clause of the Constitution to mean with a disclosure/explanation by you of what you understand the term to mean.
    I strongly suspect that we could have a more intelligent discussion if you didn’t continue to dodge the question by specifically identifying what you believe to be the “exclusive rights to their … discoveries” that Congress has provided to inventors. Merely stating that “[t]hey are the rights embodied in the patent statutes enacted by the legislative branch as interpreted (note: not re-legislated) by the courts of the judicial branch” is NOT an answer. It is an admission that you cannot identify any (if you could, you would — just to shut me up).

    I can’t even tell what you’re asking
    Didn’t you write “but such complexity has a TEENSY bit to do with why folks hire experienced patent attorneys to deal with important and/or complicated situations”? Are you hiring people to post comments in this blog? If so, you need to be hiring some patent attorneys that are bit more experienced.

    It is beyond clear to any actual attorney the games that you are playing.
    It is beyond clear to anybody (attorney or not) that TFCFM does not have an answer to this very basic question that was derived from the words of the US Constitution itself.

  79. TFCFM March 12, 2020 10:07 am

    OK. If you’ve got nothing, you’ve got nothing.

    “Nuh UHHH!!!” remains not much of an “argument.”

  80. Anon March 12, 2020 10:44 am

    TFCFM,

    And neither is your Accuse Others meme.

    Apparently (and very much so), YOU have nothing.

  81. anonymous March 12, 2020 12:14 pm

    It seems we’re rehashing this thread: https://www.ipwatchdog.com/2020/02/16/ebay-v-mercexchange-wont-overruled/id=118929/#comment-2802700

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

    My evidence: the Constitution, statute, case law, and common sense. TFCFM seems 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 35 USC 154(a)(2) clearly relates to the “exclusive right” of 154(a)(1), nothing else. 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? I posit that language is nowhere in statute. TFCFM @ 40 admitted, “Courts are not empowered to legislate changes to our laws (patent or other), no matter how desirable the change might be. That job simply belongs to the legislative branch.” (There goes the abstract idea “judicial exception” to patent eligibility, too).

    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. That is, Congress’ authority to enact a patent statute is not without limits – it must act “by securing” an “exclusive right” and those words must have meaning. This goes to Gene’s longstanding point that a patent must, at some time, actually vest. (And to my related point that patent incontestability, say after ~3 years, ought to be debated.) 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. It’s your burden to show why there is no “right to exclude others.”

    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.

    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 by the judiciary. 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.”

  82. angry dude March 12, 2020 2:14 pm

    anonymous @81

    I find the scotus speak of “self-made inventors” denigrating, disrespectful and discriminating – all it means is inventor not employed by a major corporation

    Totally un-American

    Founding Fathers are rolling over in their graves

  83. Curious March 13, 2020 9:46 am

    OK. If you’ve got nothing, you’ve got nothing.
    Yup … we’ve got no exclusive rights conferred by Congress. I’m glad we can agree on something.

  84. TFCFM March 13, 2020 10:26 am

    anonymous@#81: “We’re back to the debate of whether a patent confers a right to exclude. I say it does. TFCFM seems to say it doesn’t.

    That grossly mischaracterizes the conversation. Commenter curious requested (#36) that I identify what the “exclusive rights” to which the Patent Clause refers. I did so in #41, upon a request for further explanation in #54, and still further in #68. In none of those explanations do I remotely suggest that a patent confers no right to exclude. To the contrary, I merely indicate that those exclusive rights are defined by the patent statutes (and a few other, arguably “non-patent” statutes) and by how the statutes have been interpreted by the courts.

    anonymous: “TFCFM seems to want to ignore the language from the Constitution and the corresponding statute, instead believing the word “may” in Sec. 283 trumps them both.

    ??? My contention is that the Constitution empowered Congress to create a patent system giving meaning to the “exclusive rights” mentioned in the Patent Clause, and that Congress did so by enacting the patent statutes which express precisely what those rights entail. That’s hardly “ignoring” the Constitution and the statutes.

    The word “may” in section 283 (a statute, you might notice) does not “trump” (your word) either the statute or the Constitution. Section 283 (like the rest of the patent statutes) instead embodies how Congress sought to exercise the power granted to it in the Constitution — by enacting patent statutes which empower courts to issue an injunction in certain cases, subject to equitable concerns (but do not require courts to issue them in all patent cases).

    anonymous: “You want to ignore Section 154 and the words “the exclusive right” from the Constitution.

    Not at all. Section 154 is ONE of the statutes which make up the patent laws that Congress has enacted, pursuant to its Constitutional empowerment to do so. However, section 154 has to be read together with ALL OTHER patent statutes — you’re not entitled to pick and choose the ones you like and ignore the ones you don’t like so much. Section 154 refers to “exclusive rights” — but does not define the scope or extent of those rights, how they may be enforced, and what remedies may lie for their violation. Those issues are specified in the other statutes and (where the statutes do not explicitly specify) in decisional law interpreting the statutes.

    (Previous comments in this thread already discussed the fact that the Constitution does not define the meaning, scope, procedure-for-enforcing, or remedies-for-violating “exclusive rights,” so I’ll simply refer to them here, rather than repeat.)

    If you disagree with my explanation of current law, you should present logical arguments to dispute that explanation — not grossly mischaracterize my explanation and then ridicule the straw man that you thereby create (and not even well, at that, I might add).

  85. Anon March 13, 2020 1:53 pm

    That grossly mischaracterizes the conversation.

    No. No, it does not.

    What that does is cut through the smoke that you, TFCFM, bellow with your attempt to not recognize just what a patent is (likely because you are merely a litigator who may have had a patent case, rather than being someone who is a bona fide patent attorney with an understanding of innovation and innovation protection).

    Your posts at #41, #54, and #68 do NOT do as you claim, and this has been made abundantly clear. You have been asked particulars and have ONLY hand-waved and dismissed those things that DO provide context.

    Your retreat to the Constitutional clause as a provision of authority to a particular branch is again noted as itself being a strawman (a tactic that you accuse others of, even as you continue to deploy that tactic).

    You have answered NONE of the many points actually put to you, and it is disingenuous to pretend otherwise. Notwithstanding the attempt at a calm ‘closing argument,’ your eloquence provides no substance. Still.

  86. Curious March 14, 2020 4:00 pm

    LOL
    Commenter curious requested (#36) that I identify what the “exclusive rights” to which the Patent Clause refers. I did so in #41
    This is what you wrote in #41:
    They are the rights embodied in the patent statutes enacted by the legislative branch as interpreted (note: not re-legislated) by the courts of the judicial branch.
    Put more simply, our patent laws define the “exclusive rights” — absolutely in keeping with the Constitution’s grant to Congress of the power to define those rights in patent statutes.

    As the late Justice Scalia would put it, your answer is gobbledygook. It is nothing more than ‘it is in there somewhere, figure it out for yourself.’

    Then we arrive at this one:
    If you disagree with my explanation of current law, you should present logical arguments to dispute that explanation
    LOL. Saying that the law can be found in 35 U.S.C. is not an “explanation of current law.” What law school did you attend in which the naked citation to a statute constitutes an “explanation”? Was it even accredited?

    I cannot believe that you think anybody (either those of us that are commenting or those that are just reading the comments) is going to accept your ‘the exclusive rights are defined in the code’ as a proper answer to the question posed. As such, I can only conclude that your continued responses are for the sole purpose of trolling us.

  87. TFCFM March 16, 2020 10:35 am

    Alas, I apparently have greater respect for the intelligence of comment readers than you.

  88. Anon March 16, 2020 1:48 pm

    TFCFM,

    Your last response is utter nonsense. You certainly do not show respect (much less greater respect) for the intelligence of comment readers because you disdain actually engaging with the comments from comment readers.

  89. Anon March 17, 2020 8:34 am

    TFCFM,

    The genteel ‘closing argument’ style that you want to use just does not work when the bulk of your posts have been eviscerated.

    That’s just not the right “lawyer-stuff” that you need to be using, and that stuff only comes across as a cheap salesman-like tactic.

    And THAT is the actual respect for the intelligence of many (albeit certainly not all) of the comment readers.

  90. TFCFM March 17, 2020 10:33 am

    You remain a mere legend in your own mind if you believe that “Nuh UHHH! What about if I wave my hands like THIS over HERE?!?” is an “evisceratng” reply.

  91. Anon March 17, 2020 12:27 pm

    TFCFM,

    As you are the one that waves their hands, and the one that believes that “Nuh UHHH!” is enough, the one that does NOT engage, your reply has no impact on those of us that DO engage.

    You need more than that Accuse Others Of That Which You Do meme.