Time to Undo eBay

Are infringed patent holders entitled to remediation as owners of the personal property? Or do valid as violated patents protect their subject matter with ill-defined”liability” theory with “attributes” derived from their structure, owner identity, or developmental stage in the stream of commercial development.? The debate depicted by this false “choice” is economically and legally debilitating. It is undermining the centuries-old reliability of US patents. With SCOTUS benches filled again our patent system’s future now depends upon reversing the 2006 eBay detour from our patent system’s history and original purpose. SCOTUS must act soon or it will be too late to save US based innovation. The Court should return our patent law to the Lockean definition our founding fathers relied on while drafting our Constitution. It is time to recall Abe Lincoln’s famous phrases about investors’ “fuel of interest” in inventors’ “fire of genius”. The fuel of investors’ interest is running low. Our innovation ecosystem is sputtering. Investment in commercializing university basic research is shrinking. For some institutions such investment public and private investment funding it is an existential issue.
eBay and its concurring opinion by Justice Kennedy signaled SCOTUS’ surrender to the misdirection of a congressional and amicus brief “bait-and-switch” campaign by big ICT tech. Its “bait-and-switch assertions have since been proven wrong. Whatever merit they once had have been appropriately addressed.  Big techs’ strategic goal was to protect themselves from the remedial consequences of their “efficient infringement”, an economically fruitful but systemically amoral business model they feel compelled to continue. Sadly they conned the Courts into killing injunctions for everyone but themselves.  Big tech’s tactical rhetoric is what infected eBay. Ever since it has contaminated SCOTUS jurisprudence. It has also led to sanctioning PTAB’s intrusive elimination of statutory presumptive validity and its unconstitutional obliteration of trial by jury. Injunctions may be commercially disruptive, but the Blackberry injunction scare never happened and besides is ancient history.
Judicially framing patent infringement remediation theory with vague “liability” theory instead of “property “theory corrodes our patent system by degrading patent value. Our ICT patent community colleagues have been selfishly pursuing “liability theory” for more than a decade. Junk science academic accusations of a “tax on innovation”, speculative theories about patent “holdups”, “thickets” and “royalty stacking” and phony litigation and troll crises are over. Global markets moving up the value chain are signaling it’s time for the US to revalue patents as investors redirect their support to China and the EU. Talented researchers and students are headed there as well.Unless our new Court changes its direction, US innovation’s competitive advantage will follow them.

Peter Harter Comment
” In the past two years, several cases have been working their way through the court system attacking IPR for breaking the Constitution. Last Fall the US Supreme Court denied cert in two cases: Cooper v. Lee and MCM v. HP. In December 2016 Oil States petitioned the Supreme Court on this issue. Oil States v Greene’s Energy involves two fracking companies. The Supreme Court recently asked for a reply brief from the US government and specifically addressed their request to USPTO Director Michelle Lee. This reply brief is due April 28th.
The Obama administration lawyers from the SG’s office at the DOJ and the USPTO generally argued that a patent is a public right and thus the PTAB has the right to review the patent throughout its life no matter any Article III court decision. Separation of powers, a right to a jury trial, quiet title to private property rights… all out the window.
All eight Supreme Court justices have said in majority opinions that patents are private property rights.  The GOP convention platform in July 2016 said patents are private property rights just like land and are protected by the Constitution. Trump the real estate developer liked using eminent domain and as some of you remember this point came up during an early debate with Jeb Bush.  For those of you who remember the ruckus the Kelo v. City of New London case there is much controversy in these issues.  Even if you like eminent domain you depend on a system that enables certainty, enforceability in private property rights. Will the Trump administration continue with the Obama “public rights” argument?
…Seems that some new thinking is needed here.

Leave a Reply

Your email address will not be published. Required fields are marked *