Before the long weekend ahead we want to call your attention to two hurdles ahead as Congress considers the Coons-Cotton STRONGER Patents Act and SCOTUS considers PTAB’s constitutionality in Oil States.
When our Founders expressly established patent rights in the Constitution they underlined the document’s unique establishment of a new and different sovereignty for the US. It was to be vested by the people in a Constitution not by a deity in a king. Patent property rights were expressly defined and vested in the inventor whose labor produced it and were no longer subject to a royal grant or withdrawal pursuant to the king’s sovereign whim. Like the Constitution itself, patent property rights were based upon the property theories of John Locke. Congress was given the power to codify them but Congress could not completely cancel, replace, or repeal them by completely denying their exclusivity. In short Congress could set a time limit but could not do so in a way that allowed for no time at all to securely exercise the rights conferred.
By characterizing these constitutionally-established rights as “public rights” for their entire term anti patent advocates aver that Congress can amend their term. But even if that was the Founders’ intent because of the words “secure …for a limited time” Congress cannot eliminate them entirely. Nor can Congress create an administrative agency like PTAB by which PTO’s administrative examination powers enables PTAB to nullify those rights all the way to and through the end of a patent’s term. PTAB’s nullification powers up to and through the final nanosecond of a patent’s entire term is contrary to the express words of the Constitution.” Secure for Limited Times” cannot mean for no time at all. This matters because unless parent rights are property rights in which ownership can become settled for a limited time such patents cannot support investment in commercialization. Gene Quinn provides further chapter and verse in a link below.
In another recent IPW post pro-patent all-star Paul Morinville, describes Google-bro Issa’s recent smarmy dismissal of Professor Adam Mossoff’s property rights testimony and explanation of what is now referred to as the China syndrome as the Asian powerhouse strengthens its patent system while weaken ours. Apparently preferring re-election support from Google and friends, Issa (who just won a close election in a recount) stands firmly on both sides of the property issue. In Paul’s description of a recent hearing, Issa first champions patent property rights but later mocks Professor Mossoff’s refutations of proponents’ support of patents as public rights. As Judiciary Chairman Goodlatte’s anti-patent poodle, Issa can be expected to block (or even adversely amend) much-needed pro-patent progress in the House during this unusual session. If Senator Coons’ STRONGER Patents Act clears the Senate, Issa will do what its takes to sabotage its passage in the House.
Both obstacles are not insurmountable but they are formidable. Please take a moment to read Gene Quinn’s take on choosing a “patent as property” PTO Director and Paul’s post describing Google tub-thumper Issa’s oily duplicity on the issue and the China Syndrome. They both are linked below. Continue reading “Secure for Limited Times” Can Not Mean No Security Ever
President Trump does not use a computer but last week summoned big tech’s “Help Desk ” anyway. They came to the White House no doubt carrying their own congressional and administration punch list. Mr. Trump wanted help bringing US Gov. tech up to modern standards. They agreed to help. Trump doesn’t read long documents written in mouse print so we can assume like the rest of us he took a quick look at big tech’s “terms agreement” and perhaps performed one of his singing ceremonies. The question of course is what will big tech ask in return? We can assume Trump will be too busy to provide Obama-level fervor for their Innovation Act comprehensive patent litigation revisions (to further protect efficient infringement) but we also can reasonably assume that by now he will sign anything this Congress can get to his desk.
Last week’s health system debate masked the introduction of the Coons-Cotton STRONGER Act . But it successfully ddressed the declining health of our patent system by :
- Treating patents like any other property, permitting injunctions to protect patent owners against infringement during and after court cases;
- Ensuring fairness in Patent Office administrative proceedings, limiting repetitive and harassing challenges against inventors; and
- Ending the diversion of patent application fees to other government spending, ensuring the Patent Office has the funding needed to grant high-quality patents without harmful delay.
Many of the timely statements of organizational support for STRONGER (linked below) emphasized the PTAB issues now headed for SCOTUS review next year in the Oil States case.
Because of their 11th Amendment PTAB immunity state affiliated research universities and their patent attorneys may be tempted to wait on the sidelines.That would be a big mistake.
Continue reading We Must Support the STRONGER Patents Act
The availability of state sovereign immunity shields against IPR petition challenges to patent claims of state-chartered universities and their affiliates is a hot topic within TTO circles. Where available PTAB immunity increases patent value and royalties. Issues still under consideration, however, include:
- How broad is the immunity’s reach from state capitals beyond state-chartered university affiliates?
- When must non-waiver status be asserted?
- When is it legally presumed to have been abandoned?
- Does it apply to other PTO proceedings like reexaminations?
- Are there any district court patent proceedings to which it does not apply?
- If you assert a patent in a district court enforcement proceeding is it then considered waived at PTAB?
- Can its protective shield be shared with non-state chartered universities or other co-owners?
The extent of state sovereign immunity’s availability under the 11th amendment has been considered again at PTAB. A petition against a state-chartered university was rejected when the university in question was found not to have waived its immunity despite its initial engagement in the preceding. This post highlights some of these issues and also links to an IPWatchdog post that does so in more depth. PTAB is an expensive and deadly procedure for all university patent holders. Yet only same have 11th Amendment immunity. CAFC will have to clarify some of these issues. One open question is how its eventual clarification will bear on the formation of friendly “ownership alliances” with state agencies or with state-chartered universities. Continue reading 11th Amendment Sovereignty Reach to be Tested