“Secure for Limited Times” Can Not Mean No Security Ever

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

Trump Tower Meeting

The posts below are paired because together they accurately describe today’s parlous patent reality. Soloman and Quinn do not pull their punches. They neither bend economic realities nor misstate facts. But others must share the blame. The unfortunate truth was stated by comic strip possum Pogo who said “We have met the enemy and it is us.”  Those of us who understood what was happening but failed to speak up are guilty. Those of us who supported AIA and now fear facing up to its flaws are guilty as well.  Continue reading Trump Tower Meeting

Conference on Sec 101 and Joe Allen on Bayh-Dole, Past and Present

We attended an excellent conference at Covington & Burling this AM sponsored by Inventing America and IPWatchdog. The panels and speakers are listed below. An all-star cast gave a great performance. The first panel was moderated by Qualcomm’s Lauri Self and the second by IPW’s Gene Quinn. The morning’s focus was on the real life impacts of recent SCOTUS decisions addressing patent eligibility. After the state of developing law was ably explained by Jeff Lefstin, the panelists talked about the harms the decisions have caused and what to do about the new uncertainties haunting patent eligibility under Sec 101. The new doctrines emerging from several SCOTUS decisions are commonly referred to as Alice-Mayo eligibility .We will explain the problems in detail later. Suffice it to say for now that because commercialization occurs so early in the development sequence, every problem discussed most adversely affects research university Bayh-Dole execution. Continue reading Conference on Sec 101 and Joe Allen on Bayh-Dole, Past and Present

Efficient Infringer Lying Previewed the Post Truth Era

The Oxford Dictionary’s Word of the Year 2016 is “post-truth” an adjective defined as, “relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.“

When lying without being shunned by society becomes generally acceptable, lying becomes institutionalized. Truth as a basic norm of societal conduct is supplanted by power which is validated by winning.  Designed to reflect society as a whole, Capitol Hill policy-making is about to be flooded with “post truth politics and politicians”. Gene Quinn’s post today features some of the efficient infringement lobby’s past blurred if not brutalized “facts” used in the past to to push their patent litigation reform. Patent litigation reform lobbying was an early congressional invasion of post-truth-politics. It was a preview of the very dangerous future. Here are added reasons why it worked so well, so early, and why it will intensify.  Continue reading Efficient Infringer Lying Previewed the Post Truth Era

China and US Head in Opposite IP Directions

China increasingly a preferred venue for patent litigation, even for US patent owners

Quoted below are the closing paragraphs of IPWatchdog’s post today co-authored by Steve Brachmann and Gene Quinn.

The entire piece is well worth reading. The warning in its closing sentence (below) is must reading. China is strengthening its patent system while we are weakening ours. Continue reading China and US Head in Opposite IP Directions

Silver Lining?

Here is an interesting, encouraging look at President Elect Trump’s presumed IP leanings by two smart IP policy people. Gene Quinn and Peter Harter share their views about the rising likelihood of efficiency infringement’s potential to conquer the Hill’s PR manufactured troll crisis. Beyond the virtually certain influence on Trump of prominent libertarian and Facebook Board member Peter Thiel (of Paypal, Palantir fame ) the rest of Silicon Valley has prominently been opposed to Trump. Many still are now actually threatening to leave the USA. Google has successfully installed influential acolytes in many powerful positions, including USPTO, but once the FTC’s recent condemnation of framing patent reform with the “unhelpful” distraction of the troll terminology the troll meme may finally be erased. And for many in Congress that is all they know about patents. We have made substantial gains in recent years with many members. For the rest of the congressional membership empty (and thus open) minds may allow for fresh interest where before there was only lobbyist manufactured apathy. Continue reading Silver Lining?

Efficient Infringement’s Consequences Are Mostly Unavailable

The Quinn-Keller dialogue below is must reading. Today’s patent problem isn’t patent trolls. It is the diminishing availability of infringement damages after efficient infringement. In the case of IT hardware companies like Apple, in a post IPR environment efficient infringement is virtually inevitable. In a post HR 9 business environment it will become virtually mandated. Continue reading Efficient Infringement’s Consequences Are Mostly Unavailable