The Troll Narrative Infected the Supreme Court and Justice Kennedy was the Vector

“Why does Justice Kennedy seem to go out of his way and beyond the case records to adopt these pleas of the Coalition for Patent Fairness? No question, he believed them. But on what basis?”

Justice Anthony Kennedy (Ret.)

An untold story of the patent “reform” era is how the High Court (as well as the Congress) blithely accepted an exaggerated narrative spun by the PR campaign of the Coalition for Patent Fairness (CPF). It might have been more accurately named the “Coalition for Patent Weakness.” That is what its massive PR/lobbying campaign relentlessly sought and the result CPF members ultimately got, including at the Supreme Court. But how did it happen?

To see it emerging, one need only look at three opinions of retired Justice Anthony Kennedy:  eBay in 2006, KSR in 2007 and Bilski in 2010. Then compare his many factual assertions, although unsupported, except for two, to the widely publicized narrative of the CPF.

Ten Steps to an Epidemic

The opinion authored by Kennedy in eBay Inc.v. MercExchange, 547 U. S. 388, 396-97 was not even the opinion of the Court, but a short concurrence. Yet, over time it came to be treated by district courts as if it was the majority’s view. It was distinctly hostile to injunctions being granted to prevailing patent owners, particularly non-manufacturers, seeking to enforce their “exclusive right” to block continuing infringement after trial. The Justice Thomas opinion for the unanimous Court adopted nothing from the troll narrative, even allowing injunctions for universities. Nor did Chief Justice Roberts’ concurring opinion, supporting permanent injunctions as the historically normal remedy for proven infringement of a valid patent claim. But Kennedy’s, opposing injunctions, echoed every point of the CPF mantra.

  1. He wrote: “An industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining license fees.” But as patent lawyers all know, that model was very common throughout the 19th and 20th centuries. And perfectly consistent with the deliberate design of the U.S. patent system, which eliminated a “working requirement” and was thus quite unlike Britain’s, which required the patentee to practice his or her invention by manufacturing products.
  2. Next, he said: “For these firms, an injunction, and the potentially serious sanctions arising from its violation, can be employed as a bargaining tool to charge exorbitant fees to companies that seek to buy licenses to practice the patent.”
  3. Next, he wrote: “When the patented invention is but a small component of the product the companies seek to produce and the threat of an injunction is employed simply for undue leverage in negotiations, legal damages may well be sufficient….”
  4. Then, he wrote: “In addition injunctive relief may have different consequences for the burgeoning number of patents over business methods….”
  5. Finally, he suggested: “The potential vagueness and suspect validity of some of these patents may affect the calculus under the four-factor test.” That makes little sense because permanent injunctions, the issue in eBay, are only granted after validity has been upheld.
  6. Then, in Bilski (2010), Kennedy wrote: “With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent application of general principles.” 561 U.S. 593, 606-08, 612. That sounds like obviousness, not eligibility, but Kennedy conflates them and Mayo and Alice followed his lead.
  7. Kennedy wrote for the Court, paraphrasing his own concurrence in eBay, that: “…some business method patents raise special problems in terms of vagueness and suspect validity.” But patentability and eligibility are distinct issues and Kennedy conflates them in a case solely about eligibility.
  8. He continued, saying, “If a high enough bar is not set when considering patent applications of this sort, patent examiners and courts could be flooded with claims that would put a chill on creative endeavor and dynamic change.”
  9. Finally, the Bilski opinion, referring to the judicial exception to eligibility for “abstract ideas”, concluded: “The Court, therefore, need not define further what constitutes a patentable “process” beyond looking to the guideposts in Benson, Flook and Diehr.” But none of these cases defined “abstract.” And they involved mathematical formulas, not computerized systems for managing multi-party economic transactions.
  10. In the interim, Justice Kennedy wrote the Court’s 2007 opinion in KSR, which concerned not eligibility but obviousness. 550 U.S. 398, 419. He stated: “Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility.” But under Section 103, innovation is assessed according to prior art teachings, not some subjective notion of a judge about “real invention.” Indeed, Section 103 was added to the Patent Act in 1952 precisely to negate Supreme Court requirements like “flash of genius” and “synergy.” And Section 101 explicitly approves patents on an “improvement.”

So, in the space of four years, Justice Kennedy repeated every complaint of the CPF as if established fact, although the last eight assertions above cited nothing in the appeals’ factual record or any precedent, and even the first two cited only generally, and without quotation or explanation, to a Federal Trade Commission Report from 2003.

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The Infection Takes Hold

These last eight assertions are subject to serious doubt as to their accuracy. Readers can judge for themselves. Patent lawyers, however, will have little doubt they are not accurate, but rest on speculations and assumptions.

Note, too, the choice of conditional or vague wording: “can be employed”; “exorbitant fees”; ” simply for undue leverage”; “potential vagueness of some of these patents”; “suspect validity”; “may affect”; “high enough bar”; “without real innovation”; “could be flooded”; “need not further define.”

Why does Justice Kennedy seem to go out of his way and beyond the case records to adopt these pleas of the CPF? No question, he believed them. But on what basis? Special interest pleading in some amicus briefs? House editorials in newspapers like the Wall Street Journal?

Although technically just dicta, the assertions found their way into later opinions of the Court, including Mayo and Alice, hardened into doctrine and influenced outcomes as well as encouraging more speculation-based, policy-oriented dicta.

Worst of all, the assertions invited the Court to greatly expand its self-assigned role as the framer of national innovation policy, a duty rightly belonging to Congress and, I submit, beyond the competence, appeal record and proper role of unelected Justices. Nevertheless, the Court accepted the invitation.

Still Searching for a Vaccine

That is how the Supreme Court got “infected.” Dicta run amok and Justice Kennedy, relying on assumptions that mirrored arguments of the CPF, writing as policy czar. That is the genesis of the mess in patent law.

Justice Kennedy’s mantle was taken up two years later by Justice Breyer in Mayo, as a subsequent article will demonstrate. But the three Kennedy opinions show how the CPF’s PR assertions entered Supreme Court opinions, infecting injunction and eligibility doctrine.

 

The Author

Judge Paul Michel (Ret.)

Judge Paul Michel (Ret.) became a private citizen on June 1, 2010 for the first time since he graduated from law school at the University of Virginia in 1966. Upon graduating from law school he became an Assistant District Attorney in Philadelphia, thus embarking upon the career of a public servant from 1966 to his retirement from the United States Court of Appeals for the Federal Circuit in 2010. Michel served on the Federal Circuit, which is the main patent appeals court in the United States, from 1988 to 2010, serving as Chief Judge from 2004 to 2010.

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 as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 44 Comments comments.

  1. Paul Morinville November 3, 2020 4:39 pm

    Scania was infected as well. He actually used the perjotative term “patent troll” in his dissent on at least one case.

  2. Pro Say November 3, 2020 8:23 pm

    Superb scholarship as always Judge Michel.

    Fundamentally, SCOTUS and the CAFC — with Judge Kennedy leading this torch-wielding, innovation-killing judicial mob ala’ the Frankenstein-hunting mob — usurped and supplanted the authority our constitution grants only to Congress.

    With Congress — instead of dousing the flames and taking back the American innovation reins — rolling over like an obedient, subservient puppy.

  3. Pro Say November 3, 2020 10:51 pm

    “Sonos Gets Google Patent Scrapped Under Alice In IP Fight”

    https://www.law360.com/ip/articles/1325398/sonos-gets-google-patent-scrapped-under-alice-in-ip-fight

    So how do you like Alice, now, Google?

    What’s good for the goose . . .

  4. William November 4, 2020 8:39 am

    I’m not convinced. I don’t disagree about Justice Kennedy’s hostility to patent rights. However, based on his writing the opinion in Flook and the content of his dissent in Diehr, I think Justice Stevens had already introduced a strong anti-patent sentiment to the court, and would have continued it independent of Justice Kennedy.

  5. Bruce Berman November 4, 2020 8:50 am

    Thank you Judge Michel for your cogent article on how the troll narrative has been weaved into SCOTUS decisions. I am afraid that you are right about the “exaggerated narrative spun by the PR campaign of the Coalition for Patent Fairness (CPF).”

    If IP is to be a meaningful part of the economy and society, and the U.S. is to compete with other nations, there must be better understanding on the part of not only the SCOTUS of what IP rights are, how they work in the real world and who they benefit. Audiences such as educators, students, investors, creators, consumers, parents and policymakers need to be better informed about IP basics and how to process IP propaganda from vested interests. Leadership is crucial. We also need IP and senior executives, like Manny Schecter of IBM and Scott Frank of AT&T, to step up and make clear that IP rights, like patents, benefit people and society, as well as businesses, and everyone needs to have accurate information about how they are used.

  6. Paul Morinville November 4, 2020 9:02 am

    Pro Say, It won’t hurt Google much. It is only one patent in a very large portfolio. To be proportional damage to an invalidation of a small entity, they should expand invalidation to half their portfolio.

  7. TFCFM November 4, 2020 10:02 am

    Wacky conspiracy theories notwithstanding, there’s no question that assertions of patents by entities not practicing the patented technology are far more frequent now than than they have been historically.

    Similarly, it remains an irrefutable fact that federal statutes pertaining to injunctions do not include an “except patent cases” exception.

  8. Bob Taylor November 4, 2020 12:11 pm

    Accolades to Judge Michel for digging out the actual facts and for his clear and compelling analysis!! One hopes that some of the Justices are provided with a copy and take the time to read it. When an nonelected institution such as our Supreme Court tries to legislate policy, it brings our entire legal system into disrepute, which is where this Court stands today with a large segment of the inventor and entrepreneurial communities.

  9. Curious November 4, 2020 4:48 pm

    Wacky conspiracy theories notwithstanding, there’s no question that assertions of patents by entities not practicing the patented technology are far more frequent now than than they have been historically.
    Shooting from the hip again? Your aim wasn’t that good to begin with.

    Similarly, it remains an irrefutable fact that federal statutes pertaining to injunctions do not include an “except patent cases” exception.
    It remains an irrefutable fact that the US Constitution refers to the “securing for limited times to … inventors the exclusive right to their … discoveries.” That’s the exception.

  10. Curious November 4, 2020 5:02 pm

    This is a great article that is unfortunately published at in inopportune time as most people’s attention are directed elsewhere.

    The patent jurisprudence coming out of SCOTUS is chockfull of comments, couched as findings of fact, that have no factual basis in the record. My favorite comes from Mayo (quoted in Alice) that “monopolization of those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it.” Although Mayo was written by Breyer, I suspect that Kennedy influenced how the decision was written.

    The problem with SCOTUS, as I have written many times, is that they interject themselves in addressing questions of policy that they have no legitimate business (or competency) doing. Congress should be the one investigating the facts and making determinations as to the law based upon those facts — not the judiciary. The judiciary cannot hold hearings in which they can bring people on both sides of the issue. The appellate courts merely work with the factual record from down below, which may or may not be relevant to the policy issues at hand. Regardless, it is not their place to make policy decisions — that belong to Congress.

  11. Anon November 4, 2020 5:31 pm

    TFCFM loves to characterize anything not in accord with his world view in terms of denigration.

    He has shown zero capability of understanding Constitutional Law arguments, nor does he truly understand just what the principles of equity are. First and foremost of those principles is to make the transgressed as whole as possible.

    As to any time one branch of the government shares its Constitutionally apportioned powers with another branch, the proper and historic view of the legitimacy of such sharing is given a very short leash.

    There is no doubt that Congress has shared a portion of its power with the Judicial Branch when it comes to injunctions.

    The purpose of that sharing is paramount in understanding the proper limits of the shared authority.

    The sharing by Congress was simply not as open-ended as TFCFM would imagine. The emphasis below cannot be dismissed.

    35 U.S. Code §?283. Injunction
    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.

    When properly understand, there is NO purpose of shared authority to ‘protect’ the Efficient Infringers.

    It is also critical to understand that the right transgressed is NOT any type of “positive right,” as the nature of a patent is a negative right.

    There is NO better remedy for the right transgressed than an injunction.

  12. AAA JJ November 5, 2020 9:08 am

    The main failure of KSR was its failure to answer the questions of: 1) what does PHOSITA know?; 2) what does PHOSITA seek/want to do with what PHOSITA knows?; and 3) what is PHOSITA capable of doing with what PHOSITA knows and wants/seeks to do?

    There were some hints of the answers to those questions in KSR, but unfortunately the decision included silly nonsense like “fitting the prior art together like a jigsaw puzzle” (i.e. with the use of hindsight PHOSITA can cobble together the claimed invention) and “ordinary creativity.”

    I think a useful amendment to 103 would be, “For purposes of this section one of ordinary skill in the art can apply known solutions to known problems.”

    Until some clarification, either by statute or precedent, is provided we’re stuck with the mess that is KSR.

  13. TFCFM November 5, 2020 10:35 am

    TFCFM@#7: “…it remains an irrefutable fact that federal statutes pertaining to injunctions do not include an “except patent cases” exception.

    Curious@#9: “It remains an irrefutable fact that the US Constitution refers to the “securing for limited times to … inventors the exclusive right to their … discoveries.” That’s the exception.

    You overlook that out patent statutes were written after (hence, in view of) the Constitution, and that, as the Court explained, nothing in the patent statutes altered the long-standing balance-of-the-equities test for entitlement to an injunction. Thus, your observation that the Constitution includes the Patents Clause is irrelevant.

    The mere fact that injunctions have issued (presumably appropriately) in many patent cases does not mean that they must or should-automatically in all patent cases.

  14. TFCFM November 5, 2020 10:44 am

    Anon@#11: “35 U.S. Code §?283. Injunction
    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.

    You cite an appropriate statute, but the part you highlight is not the point we are discussing. There is no dispute that the point/purpose of an injunction in a patent case is “to prevent the violation of any right secured by patent.” However, the point we are discussing, and the point decided in Ebay v. MercExchange was the test for entitlement to an injunction.

    In the statute you cite, the following highlighted text is the language which pertains to entitlement to an injunction:

    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 patent statutes do not require that a court IGNORE these “principles of equity but instead, as the patent statute you cite indicates, requires that a court NOT-IGNORE them.

  15. Anon November 5, 2020 12:19 pm

    The part I highlight is the pertinent part and shows that your assertion of “and that, as the Court explained, nothing in the patent statutes altered the long-standing balance-of-the-equities test for entitlement to an injunction is a false statement misapplying the branch-to-branch borrowed authority.

    That borrowed authority is NOT unlimited, and the judicial branch is NOT operating in a vacuum when it looks to the principles of equity.

    And on those principles themselves, YOU (and the Court, or perhaps better stated, those that want a certain spin of what the Court has written), elevate the balancing test improperly over the principle of making the transgressed as whole as possible.

    You are getting Constitutional Law, statutory law, remedies and judicial principles of equity ALL wrong in your aim for a certain desired Ends.

  16. Anon November 5, 2020 12:29 pm

    Further, you mischaracterize the issue as to being one of “entitlement,” when you should be reflecting on the very limits of the authority that you pin ALL of your hopes on.

    What anyone is “entitled to” is the Rule of Law.

    In this case, the Rule of Law is in fact governed and controlled by the factors as I have presented them.

    My points are NOT tangents — they are critical to the proper application of the Rule of Law and do in fact dictate the limits of HOW the judicial branch may use the authority that is borrowed from the legislative branch.

    Put plainly, the judicial branch is NOT writing on a blank slate, and their use of authority for ALL considerations is constrained for the purpose (explicitly stated) for that sharing in the first instance.

    Given that – and a better understanding of the principles of equity (making the transgressed whole) AND understanding the nature of the right that has been transgressed (patent rights are strictly negative rights, and not rights TO practice an invention that may fall within the scope of the claims), my position clearly is far better than yours.

  17. Anon November 5, 2020 12:51 pm

    Further still, you mischaracterize my position as being somehow one of ignoring principles.

    By doing so, you not only invert the Rule of Law, you lay waste to the critical Constitutional Law principle of borrowed authority.

    Not that this is altogether unsurprising, given your past ‘discussions.’

  18. Curious November 5, 2020 3:04 pm

    Thus, your observation that the Constitution includes the Patents Clause is irrelevant.
    Only if you assume that not granting injunctions achieves the stated purpose of “securing … inventors the exclusive right to their … discoveries.” No injunction — no exclusive right. Again, that’s the exception. I don’t recall any mention of exclusive rights being discussed in any other portion of the US Constitution. As such, the exclusive rights for patents described by the US Constitution are special rights that should be treated differently.

    Regardless, you are comfortable with the Federal Circuit interpreting the Supreme Court’s E-bay decision as effectively reading the phrase “exclusive rights” out of the Patent Clause of the US Constitution. Other people are not.

    If the patent statues are being interpreted in a manner that ignores the specific remedy set forth in the US Constitution, then there are many people who believe that is a fundamental problem. Nothing you’ve written (today or in the past) changes our belief as to that fundamental problem. You are wasting your time arguing otherwise.

  19. TFCFM November 6, 2020 10:26 am

    Anon@#15: “ YOU (and the Court…), elevate the balancing test improperly over the principle of making the transgressed as whole as possible

    What you fail to justify is that “the principle of making the transgressed as whole as possible” is the “principle” that controls whether or not an injunction should issue in any given case. Even though you may wish it were and prefer if it were, it is not. If you believe otherwise, kindly cite the legal authority that mandates that all U.S. statutory and common law be ignored in deference to this purported “principle.”

    You can’t, of course, because no such authority exists. You simply wish to read “in accordance with the principles of equity” out of the statute because you don’t like it. The statute was written in view of the Constitution’s Patent Clause, consistent with that Clause, and has been (and continues to be) applied consistent with that Clause.

    (Incidentally, the Patent Clause does not include “and patentees are entitled to an injunction in all situations” among its text. But, of course, you know that.)

  20. TFCFM November 6, 2020 10:31 am

    Curious@#18: “If the patent statues are being interpreted in a manner that ignores the specific remedy set forth in the US Constitution…

    We need read no further than this clause, because the Constitution merely empowers Congress to grant exclusive rights (however and IF ever Congress sees fit). Congress saw fit to enact 35 USC 283 to authorize courts to “grant injunctions in accordance with the principles of equity.”

    Nothing in the Constitution prevents Congress from granting the exclusive rights it is empowered to grant in this way.

  21. Anon November 6, 2020 12:16 pm

    simply wish to read “in accordance with the principles of equity” out of the statute because you don’t like it

    Absolutely not.

    Maybe you should go back to the basics of remedies and equities. Not everything (especially at a basics level) will be found in a case cite, for several reasons.

    Basics are not decided at a case law level.

    Some basics are outside of the purview of ‘common law.’ This last comment reflects your prior disregard for the structure of US law in past comments of yours NOT tracing authority back to the Constitution (as you must), but instead, relying on ‘centuries of common law predating the Constitution.’

    This great American Experiment is founded on a government of limited powers.

    You fail — at the most foundational level — to appreciate this.

  22. Anon November 6, 2020 12:20 pm

    TFCFM,

    Your reply to Curious is in error.

    Branch to branch allocation of authority must meet strict standards to be deemed Constitutional. Did you not learn anything when you studied Separation of Powers doctrine?

    Yet again, you are the one turning a blind eye to a critical element of the legal point at hand.

  23. AAA JJ November 6, 2020 4:48 pm

    An injunction is an equitable remedy. You can only get an equitable remedy if your remedy at law is inadequate. Nothing in the Constitution or U.S.C. change(d)(s) that.

  24. Anon November 6, 2020 6:04 pm

    AAA JJ,

    No change needed – as long as you recognize WHAT the remedy is for and the constraints of Branch to Branch shared authority.

  25. TFCFM November 9, 2020 10:47 am

    TFCFM</b@#19: "What you fail to justify is that “the principle of making the transgressed as whole as possible” is the “principle” that controls whether or not an injunction should issue in any given case.

    Anon@#21: “Some basics are outside of the purview of ‘common law.’

    Fine. So cite for us your basis for asserting that EVERY patentee who prevails in a patent case is entitled to an injunction, patent-statute recitation of “courts … may grant an injunction in accordance with the principles of equity” be damned.

    1) How could Congress POSSIBLY have meant this language to mean that an injunction MUST issue REGARDLESS OF the principles of equity?

    2) If you claim, instead, that the Constitution somehow bars Congress from enacting section 283, as worded, please explain why you think so (we’ve understood, “because it’s what I want;” please explain a LEGAL basis for Congress’ purported non-authorization to enact the law that it did.)

  26. TFCFM November 9, 2020 10:55 am

    Anon@#22: “Branch to branch allocation of authority must meet strict standards to be deemed Constitutional

    In section 283, Congress (the legislative branch) enacted a law that authorized courts (the judicial branch) is issue injunctions in patent cases “in accordance with the principles of equity.”

    Legislatures enact laws. Courts develop equitable policies (such as the ‘balance of hardships’ test for assessing entitlement to an injunction.

    Thus, in section 283, the legislature enacted a law authorizing the courts to apply a judicial equitable doctrine in patent cases. There’s not the slightest thing improper there — attempts to deflect attention through hand-waving about “branch to branch shared authority” notwithstanding.

    If you believe that something prohibits Congress from enacting section 283 the way it enacted it, or prohibits courts from applying section 283 the way it was enacted, kindly tell us what that “something” is and why we should understand it as you want us to.

  27. Anon November 9, 2020 6:17 pm

    TFCFM,

    Your assertions do not match my arguments and you — yet again — mischaracterize both what I and Congress have stated.

    Try again.

  28. TFCFM November 11, 2020 11:27 am

    So you’ve got nothing. Understood.

    If you aren’t finished vaguely waving your hands in a hoped-for-distracting manner, kindly explain to us precisely WHAT “Congress ha[s] stated” that either:
    – prohibits Congress from enacting section 283 the way it enacted it or
    – prohibits courts from applying the plain meaning of the words of section 283 as enacted.

    (Color me unconvinced if you, again, merely pathetically whine that, “You don’t understaaannnd!

  29. Anon November 11, 2020 3:10 pm

    TFCFM,

    It is you that has nothing but diatribe and insults. You shuffled your feet, misstated my views, merely reiterated your initial position — to which my points already attacked, and called important concepts like the Constitutional limits on shared authority between branches of the government “handwaiving deflection” when they are anything but, and instead set the legal foundation upon which any argument that you may want to use must rest upon.

    As to “kindly explain to us precisely WHAT “Congress ha[s] stated” I already did that above at post 11, to which you ‘mirrored’ at your post 14, but you did not address.

    Your “

    – prohibits Congress from enacting section 283 the way it enacted it or
    – prohibits courts from applying the plain meaning of the words of section 283 as enacted.

    are NOT the points that I have put to you. Least not how you attempt to spin this.

    The second point IS my point, but the “plain meaning” includes the points that YOU attempt to hand waive away.

    You don’t get to hand waive away the limitations necessary to maintain Separation of Powers doctrine in a statutory law dedicated to one branch of the government by the Constitution when that one branch shares its power and authority with another branch.

    The first point here is simply NOT holding what you think it holds. Thus, it is a bit of a non sequitur and strawman for you to set up an argument to knock it down when that setup does not reflect the points put to you.

    Kindly address the actual points put to you in a cogent and inte11ectually honest manner (that is, not running away and calling those points names).

    On an earlier thread (some three pages deep now), you accuse others of doing the very thing that you are doing here.

    Stop being a hypocrite.

    And color me impressed if you actually address the (actual) issues put to you.

  30. AAA JJ November 12, 2020 8:53 am

    There is nothing in the Constitution that guarantees a patent owner a right to an injunction for infringement. Nothing.

  31. TFCFM November 12, 2020 12:13 pm

    Anon@#29: “As to “kindly explain to us precisely WHAT “Congress ha[s] stated” I already did that above at post 11, to which you ‘mirrored’ at your post 14, but you did not address.

    Baloney. All you did in post 11 is NOT-HIGHLIGHT a part of section 283 that you don’t like (“courts…may grant injunctions in accordance with the principles of equity…”) and that you wish wasn’t there.

    You also provided more of your usual non-sensical and not-remotely-explained hand-waving about “any time one branch of the government shares its Constitutionally apportioned powers with another branch” — which is utter nonsense where, as here, Congress did not “share” its power to enact section 283. It simply ENACTED section 283, authorizing the courts the option to grant injunctions in accordance with equitable principles.

    If you think otherwise, try to give us the plain-English, non-hand-waving, includes-even-a-hint-of-logic version of why you think so.

    It’s fine that you wish patentees were entitled to an injunction in every case in which they prevail. It’s quite another thing (namely, either ignorance or dishonesty) to claim that it is so.

  32. Anon November 12, 2020 2:11 pm

    TFCFM,

    Way to double down and accuse something which is simply not true.

    In no way did I make any part “disappear,” as I have also addressed what the non-highlighted section means when basics are considered.

    On the other hand, it is you that has done the hand waiving and wanting to make the portion that I highlighted to disappear because you don’t happen to like what that portion portends.

    As to “the legislature did not give the power to enact,” that’s not only NOT the point at hand with shared authority, it is a nonsensical approach TO the concept of shared authority. Were you absent in Con Law when this was discussed?

    As it is, you have only provided mischaracterizations and false accusations (with more name calling). When are you going to actually address the actual points presented? Do you have any actual legal counter points to provide?

  33. TFCFM November 13, 2020 12:54 pm

    Yeah. We’re fooled. If you had a point to make, you’d make it.

    Instead, you childishly seek to insult.

  34. Anon November 13, 2020 8:24 pm

    TFCFM,

    That you refuse you acknowledge the point does not mean that I have not made a point.

    The point is there. It is you that needs to stop with the insults and the dismissals and address the point put to you.

    Actually, that’s plural: points put to you.

  35. Anon November 15, 2020 8:27 am

    It appears that my response will not make it out of the time delay…

    To summarize then, TFCFM, it is you that has played the childish insult game here, as I have provided points that you seek to hand waive away rather than actually address.

    That you want to use a plural “We’re fooled” fools no one.

    I made my point.

    And you make my point stronger with your games.

    Your hypocrisy is on full display here. You have a choice to continue being a hypocrite or actually engage on the merits.

  36. TFCFM November 16, 2020 10:54 am

    Honest folks aren’t afraid to restate their points and explain them when they draw scrutiny, rather than making intelligent folks hunt and try to find whatever nonsense you are pretending to be a “point.”

    In response to my previous question:

    TFCFM@#28: “kindly explain to us precisely WHAT “Congress ha[s] stated” that either:
    – prohibits Congress from enacting section 283 the way it enacted it or
    – prohibits courts from applying the plain meaning of the words of section 283 as enacted.

    kindly explain to us precisely WHAT “Congress ha[s] stated” that either:
    – prohibits Congress from enacting section 283 the way it enacted it or
    – prohibits courts from applying the plain meaning of the words of section 283 as enacted

    you replied,

    Anon@#29: “The second point IS my point

    So that’s a start, I suppose — at least we can even begin to understand what you think you’re pretending to try to say. However, your “explanation” of that point leaves me at a loss:

    Anon@#29: “You don’t get to hand waive away the limitations necessary to maintain Separation of Powers doctrine in a statutory law dedicated to one branch of the government by the Constitution when that one branch shares its power and authority with another branch.

    What would be the logical-English translation of this word slaw? (i.e., What are you trying to say?)

    It seems to me that our Constitution empowers Congress to make laws (Art. I, Sct.1), including (should it choose to do so) laws relating to patents (Art. I, Sct. 8). The Constitution also empowers Congress to establish federal courts (Art. III, Sct.1).

    Congress chose to exercise these powers by creating federal courts, by creating federal patent laws (including the section 283 we are discussing), and by authorizing the federal courts to exercise their equitable power in patent cases by issuing injunctions, in accordance with the principles of equity — exactly as they have done in section 283.

    If you believe that some kind of “Separation of Powers doctrine” prevents Congress from doing any of these things, kindly explain how and why (and please don’t merely assert, “I told you on an unknown date in an unknown thread in unknow words.”)

    If you’re serious about discussing, DISCUSS.

    What “point” are you trying to make that we are to believe leads logically to the conclusion that all prevailing patentees are automatically entitled to an injunction?

  37. Anon November 16, 2020 8:23 pm

    TFCFM,

    You fail your own first paragraph.

  38. Anon November 17, 2020 7:58 am

    TFCFM,

    Your ‘previously stated’ question was debunked as a smokescreen and an improper attempt to rephrase the points that I had already presented.

    I owe NO answer to such games.

    I clearly called out this tactic of yours and AGAIN asked you to address what I have actually put to you.

    If you’re serious about discussing, DISCUSS.

    Indeed – just not how you are trying to spin it.

    Stop spinning, Start discussing.

  39. TFCFM November 17, 2020 10:45 am

    It’s clear who’s serious and willing to discuss substance and who’s merely blowing smoke.

    If you had a shred of confidence that your “arguments” would withstand scrutiny, you’d discuss them, rather than always deflecting. That you constantly insist that “I told you something terrific previously, but I can’t specifically identify it or (heaven forbid) repeat it” tells us all we need to know about your sincerity.

  40. Anon November 17, 2020 7:23 pm

    TFCFM,

    Yet again, you fail your own first sentence.

    I am more than happy to discuss MY arguments. You are more than apparent NOT to – as now TWICE you have inserted something that is NOT my arguments and attempted to argue them.

    I need not repeat something when that very something remains up above in this thread.

    As to sincerity, well, my friend, you have none. That you may think otherwise and that you may wish to impugn others is only more the joke coming from you.

    So, yet again, stop spinning, Start discussing. And by that, I do mean discussing what I have actually stated, and not what you may have wanted me to state.

  41. TF November 18, 2020 10:40 am

    Anon@#40: “I need not repeat something when that very something remains up above in this thread.

    I get it. Letting anyone know what the heck you think you’re talking about (and, of course, subjecting that ‘what’ to scrutiny) would kill you.

    Color me skeptical. Last I checked, neither “control C” nor “control V” is associated with a high mortality rate. I suppose you can’t be TOO embarrassed if no one knows what you’re talking about…

  42. Anon November 18, 2020 4:05 pm

    Simply not a matter of your current spin of “that would kill you,” and more a matter that I refuse to play your game of “say it again.”

    Especially when the points presented are on the same thread.

    Would it “kill you” to actually discuss the points presented?

  43. TFCFM November 19, 2020 11:20 am

    Sensible folks would consider the remote possibility that when one does not identify what one is talking about, many people will have no idea what the one is talking about.

    Works well when the one seeks to avoid scrutiny of whatever nonsense the one is talking about.

  44. Anon November 19, 2020 12:19 pm

    Sensible people will recognize the game of “repeat that again” — especially on the same thread— as just that: a game.

    Funny how you want to accuse me of avoiding scrutiny as I am the one dragging you kicking and screaming to address the actual points that I have presented (and not your fallacious twice misrepresented spin versions).

    You really are not fooling anyone TFCFM.