Confused and frustrated, patent policy experts bemoan America’s absurd compulsory licensing patent system

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The English language has interesting group nouns. Groupings like a “gaggle” of geese, a “murder” of crows or a “pride” of lions come to mind. Anyone attending the IIPC’s Capitol Hill Conference earlier this week might wonder if there is a group noun for a gathering of patent policy experts. We would respectfully suggest referring to such gatherings as a “confusion” of patent experts. Many Conference attendees have been on opposite sides over the years, but the experts gathered that day were in concerted agreement that the patent landscape has been carpet-bombed with confusion caused by the Courts, the Congress, and the PTO. Despite their collective confusion regarding the roiled patent landscape, as Steve Brachmann and Gene Quinn noted in their joint summary of the proceedings, there were a number of key issues where despite confusion imposed by DC decision makers, general agreement was the order of the day.

The consensus reached by the patent experts in attendance included; frustration with the misleading patent troll narrative that wrongfully claims all patents are “bad patents”, the persistent push of the efficient infringer lobby for comprehensive patent litigation reform despite the fact that patent litigation continues to decrease, and that unanimous view that patents are property, which is, after all, what the Patent Act declares in 35 U.S.C. 261.

There was no philosophical discussion about liability vs. property legal theory. There was no debate about the “public rights” doctrine the PTAB and the Federal Circuit have dredged-up from juridical obscurity. On the contrary, there were repeated references to the appropriateness of analogizing patents to real estate, which the Supreme Court itself has done well over 100 years.

The experts in attendance reminded us of the insanity of the compulsory licensing system that now pervades the U.S. patent marketplace, which when explained in terms of real estate is obviously absurd.

“A man came home from work one day to find a strange family living in his dining room. He wanted to have them evicted but was told he would have to spend five years and millions of dollars proving in court that he owned the room where the invaders had pitched their tent. A judge finally found that indeed he owned his dining room. But instead of ordering the family’s eviction she ordered the invaders to pay rent to the homeowner in an amount hypothetically determined by calculating what he and the squatters would have agreed to before his unwelcome visitors moved in.”

Despite the fact that this poor fellow was not in the dining room rental business, and regardless of the fact that he had his exclusive right in his dining room confirmed, the squatters had a right to stay as long as they paid what would have been a fair rental had it been unnecessary to sue and live through five years of litigation. The absurdity is palpable, of course. Even in the America of today no judge would allow homeowners to cohabitate with squatters, but a patent is different. Despite the fact that the Supreme Court has repeatedly said a patent in land carries the same rights as a patent in an invention, the patent owner today must come to terms with the reality that exclusivity no longer exists as one of the bundles of rights thanks to eBay v. MercExchange.

In the circumstances described above, court-ordered rental is equivalent to the compulsory licensing now automatically imposed by the lower court lemmings following Justice Kennedy’s concurrent eBay opinion while ignoring the common sense former rule that recognized that the owner of an exclusive right ought to get an injunction from a court that orders no further infringement of that exclusive right. Without such an injunction, which would just confirm what the patent grant itself already allegedly commands, exactly how does a patent confer an exclusive right? It doesn’t, and that is the reality facing patent owners who are forced to share their exclusive rights, which is as ridiculous as it sounds. Our victorious homeowner it seems must dine out or eat in the kitchen.

Maybe there ought to be an IPWatchdog contest to select the appropriate group noun for gatherings of patent policy experts. I nominate “confusion”. But unless our roiled patent landscape is soon restored, a “frustration” of patent policy experts may be the better choice.

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