In its recent Impression Products v. Lexmark decision, SCOTUS (Chief Justice Roberts for the 7-1 majority) more than once referred to a patent’s “monopoly.” Patents do not confer a monopoly. They confer exclusivity rights for a limited time.This common patent monopoly misconception may be a tolerable one-time error among patent law tyros and first-year law students. It is intolerable however when routinely used by the Chief Justice of the US Supreme Court, not because it is wrong, but because it reveals in our nation’s highest judicial tribunal a fundamentally inadequate understanding of US patents’ purpose and place in our mixed economy. If the Supreme Court can routinely refer to patent rights as “monopoly” powers, it demonstrates either inadequate understanding of US commerce and our nation’s waning global economic leadership, or a dangerous susceptibility to misguidance by self-serving special interests. When a clock strikes thirteen, it is not merely an inconsequential occurrence of little importance. It means that there is a fundamental problem with its entire mechanism, making its next chime ringing unpredictable and unreliable. SCOTUS references to patent monopolies are like a clock striking thirteen!
Is it that the Court doesn’t know what it doesn’t know? Does it not care? Are patent decisions being drafted chiefly by legally sophisticated but commercially inexperienced law clerks? Is SCOTUS treating amicus brief propaganda as if it were submitted for any purpose other than to lobby the Court? Do the Court’s recent anti-patent decisions signal further patent diminution based upon a re-emergence of antitrust market power concerns? These are unanswerable questions, but their import must be soon offset. Take Lexmark. Is it merely one “domino “in a pre-orchestrated series of cases the Court is absorbing while waiting for its next opportunity to cripple our innovation ecosystem further? For example, will SCOTUS next consider the patent exhaustion issue in a case involving the license of a patented product they “find” so restrictive that it is constructively a conditional sale of underlying patent rights exhausted when the “license” was granted? These questions are not unimportant. Rather they reflect an urgent need to educate SCOTUS before it is too late. Congress theoretically could fix this problem and many others that lately have arisen but . . .
Do pro-patent advocates dare to risk congressional resolution of patent issues knowing that Innovation Act “modular” add-ons may be attached to any relevant vehicle? Will Sec 101 eligibility issues provoke legislation raising the similar risks? And even if congressional clarification of judicially-created eligibility issues were to be enacted, are we confident that SCOTUS would not reject it because Congress has tinkered with long established “judicial” issues and thus acting ultra vires under a separation of powers type analysis?
The conceptual foundation for anti-patent holder comprehensive litigation reform was laid by infringement lobby lawyers and friendly academics long before the eBay decision. eBay’s Injunctive restraints were loaded on to a strategic judicial influence assembly line long before its 2006 emerging. Pro-patent advocates barely propped up Justice Kennedy’s next domino of apportionment of damages. But they were sufficiently back-footed by the patent troll narrative and were picked-off one by one to support AIA’s establishment of PTAB. Alice/ Mayo incursions into eligibility were no more accidental than Lexmark. The list of anti-patent decisions by anti-patent decision makers is almost endless. Do pro-patent advocates think the onslaught is over? It isn’t.The digital platform aggregators still fighting among themselves for markets but when it comes to suppressing component suppliers, they act as allies. We have to take the offensive. Defense is a reflex. The strategy is planned. To save our innovation ecosystem, we will have to be strategic allies.