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Archive for June, 2011


Mayo Clinic’s Invention Theft Strategy

Mayo clinic’s management is pursuing a business strategy of efficient infringement – more commonly known as theft of other people’s inventions.  This immoral course of action is exemplified by Mayo’s involvement in the frivolous patent lawsuit Mayo v. Prometheus and Mayo researcher’s intellectual support for ACLU, Mayo et al. v. Myriad and in their support, through their lobbying organizations, for the America Invents Act (H.R. 1249 & S.23). The Act is nothing but a power grab by large multinational companies to steal the inventions of individuals and startups.  The researchers at Mayo better wake up and realize that their managements’ actions, if successful, will not be limited to stealing the intellectual effort of non-Mayo inventors.

 
Mayo v. Prometheus – Supreme Court Grants Cert (Again)

On June 20th, the Supreme Court granted cert. for the second time in Mayo Collaborative Services v. Prometheus Labs., Inc, Supreme Court No. 10-1150.  This case is about patents 6,355,623 and 6,680,302 to Prometheus, which claim methods for determining the optimal dosage of thiopurine drugs used to treat gastrointestinal and non-gastrointestinal autoimmune diseases.  Prometheus sued the Mayo Clinic for infringement and Mayo’s defense was that the patents are invalid as not being patent eligible material under 35 USC 101.

 
America Invents Act H.R. 1249 Passes House

The America Invents Act passed the House with a vote of 304-117 Thursday, 6/23/11, night.  The House (H.R. 1249) version differs from the Senate version (S.23) so the passage of the Act is not a done deal.  The major difference was the House version stripped provisions stopping fee diversion.  Some people are optimistic that the Bill will die in conference because of these differences.  I hope they are correct, but I am not optimistic.

 
Congressman Doug Lamborn Votes for Constitution

Lamborn voted against the America Invents Act (H.R. 1249) today (6/23/11) and for upholding the Constitution.  Congressman Lamborn of Colorado was under incredible pressure to support this unconstitutional bill that would strip inventors of their rights. He voted against the special interests, the multinational corporations, and foreign countries who wish to hurt the U.S economy.  Unfortunately, the Act passedanyway.  As the Congressman recognized, this Bill will be bad for theColorado Springseconomy.  Please join me in letting Mr. Lamborn know how much we appreciate his efforts.

 
House Debate on Constitutionality of H.R. 1249 – America Invents (NOT) Act

The House had their first ever debate last night (6/22/11) on the Constitutionality of a piece of legislation under the new rules requiring the House specifically address the Constitutionality of legislation. The major supporter for the Constitutionality of America Invents Act was Lamar Smith, Republican from Texas and the major Congresswoman challenging the Constitutionality was Marcy Kaptur, Democrat from Ohio.

 
Congressman Rohrabacher’s Office Expects Vote on America Invents Act (H.R. 1249) on Thursday

We spoke with Congressman Dana Rohrabacher’s office Wednesday night (6/22/11) and they said that they expected a vote on H.R. 1249 on Thursday (6/23/11). Congressman Rohrabacher has been a courageous, principled opponent of this Bill. Other groups are reporting that thevote will be Friday or may be delayed.  Let’s hope for delay, because I doubt the supporters will bring this Bill to a vote unless they believe they can win.

 
America Invents Act: House Vote Likely This Week 6/21

According to Jim Abrams of the Associated Press the House is taking up the America Invents Act (H.R. 1249) this week. It was pulled from the floor last week.

 
First-to-File: Is it Constitutional?

The following letter from a number of Law Professors deals with the Constitutionality of a First-to-File system as contemplated by the America Invents Act (H.R. 1249 and S. 23)

June 17, 2011

By Email

Speaker John Boehner

Office of the Speaker

H-232 U.S. Capitol

Washington, DC 20515

Democratic Leader Nancy Pelosi

Office of the Democratic Leader

H-204 U.S. Capitol

Washington, DC 20515

Re: Unconstitutionality of “First-Inventor-to-File” Provision in H.R. 1249

Dear Speaker Boehner and Leader Pelosi:

We are writing concerning the issue of the unconstitutionality of § 2 in H.R. 1249, the provision titled “first-inventor-to-file.” It is the belief of the signatories to this letter, all of whom are law professors who specialize in intellectual property law, that this provision is unconstitutional under the Copyright and Patent Clause in Art. I, § 8, Cl. 8.

Section 2 of H.R. 1249 violates both the plain terms of the Copyright and Patent Clause and the historical interpretation of this clause by Congresses and the federal courts. Although there are many legitimate concerns about H.R. 1249’s impact on innovation, this unconstitutional provision by itself is sufficient to justify withdrawing this bill from consideration. At a minimum, this is a justifiable reason supporting the 54 House Members who have joined the June 1, 2011 letter to the Rules Committee in expressing their concerns about the constitutionality of H.R. 1249.

H.R. 1249 Unquestionably Takes Patents Away From Inventors

Although the word “inventor” appears in the title in § 2, which confusingly uses the phrase “first-inventor-to-file,” it nonetheless creates the same first-to-file rights that existed in the patent reform bills that had been introduced in prior Congresses and which were universally recognized as creating a first-to-file patent system. It also creates the exact same first-to-file rights that exist in other countries that have adopted first-to-file patent systems in both name and substance, such as Canada. Section 2 has to create a first-to-file patent system if only because one of the primary justifications for this provision in H.R. 1249 is that the United States should harmonize with other countries’ first-to-file patent systems. In sum, despite the confusion created by its title, H.R. 1249 unquestionably creates a first-to-file patent system.

The Constitution Only Empowers Congress to Give Patents to “Inventors”

The basis of the 220-year-old first-to-invent patent system in the United States is the Copyright and Patent Clause, which states that Congress has the power:

“To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const., Art. I, § 8, Cl. 8 (emphasis added).

The operative terms for patent law is that Congress is empowered only to “secure[e]” to “Inventors” their “exclusive Right to their . . . Discoveries.”

In the Founding Era, the term “Inventors” was defined in the newly independent United States of America as referring only to first inventors. In Samuel Johnson’s 1785 dictionary, often relied on by the Supreme Court as an authoritative source of meaning in the Founding Era, an “inventor” is defined as “one who produces something new; a devisor of something not known before.” Moreover, Johnson defined a “discoverer” as “one that finds anything unknown before.” Samuel Johnson, A Dictionary of the English Language (6th ed. 1785). Johnson was not alone in thinking that “Inventors” referred only to first inventors. St. George Tucker, for instance, defended the Copyright and Patent Clause against criticisms that it empowered Congress to create commercial monopolies by observing that “nothing could be more fallacious,” because this constitutional provision limited Congress to securing only an “exclusive right” in “authors and inventors.” St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, vol. 1, appendix (1803): p. 266.

Moreover, the First Congress, whose acts are often recognized as probative of the original meaning of constitutional terms, explicitly rejected the English practice of granting patents to importers of technology, recognizing that importers were not first and true inventors. During the drafting of the bill that became the Patent Act of 1790, the House committee decided not to follow the English practice of extending patent rights to the “first importer” of overseas inventions. Representative Thomas Fitzsimmons wrote: “The 6th Section, allowing Importers, was left out, the Constitutional power being Questionable.” See Karen E. Simon, The Patent Reform Act’s Proposed First-to-File Standard: Needed Reform or Constitutional Blunder?, 6 J. MARSHALL REV. INTELL. PROP. l. 129, 141 & n. 95 (2006-2007) (quoting congressional record).

Thus the Patent Act of 1790 authorized the grant of a patent only to a person who has “invented or discovered any useful art . . . not before known or used.” See Patent Act of 1790, § 1, 1 Stat. at 109-110. The Patent Act of 1790 further provided for termination of a patent “if it shall appear that the patentee was not the first and true inventor.” See Patent Act of 1790, § 6, 1 Stat. at 111. This uniquely American first-to-invent requirement was readopted in all patent statutes enacted by successive Congresses in 1793, 1836, 1870 and 1952.

As the famed patent law historian, Edward Walterscheid, whose work has been relied on by the Supreme Court in many patent cases, has written: “Implicit in the use of the terms ‘inventors’ and ‘discoveries’ in the intellectual property clause is the premise that before an exclusive right can be granted, the discovery to be patented must be novel. . . . Simply put, novelty is a constitutional requirement.” Edward C. Walterscheid, The Nature of the Intellectual Property Clause: A Study in Historical Perspective (Buffalo: William S. Hein & Co., 2002) at p. 310-11 (emphasis added). Walterscheid further writes that James Madison and early Congresses embraced a uniquely “narrow” conception of novelty compared to England (which permitted patents for importation), as they believed that for an invention “to be patentable in the United States a discovery had to be original to the inventor.” Id. at p. 312-13.

Supreme Court Confirms Patents Must Be Granted to Inventors

In numerous court decisions since the early American Republic, Supreme Court Justices have repeatedly recognized that the patent statutes imposed this constitutional requirement. In 1813, Chief Justice John Marshall, riding circuit, wrote that the “constitution and law, taken together, [give] to the inventor, from the moment of invention, an inchoate property therein, which is completed by suing out a patent.” Evans v. Jordan, 8 F. Cas. 872, 873 (C.C.D. Va. 1813) (No. 4,564) (emphasis added).

In the Supreme Court’s decision in Stanford v. Roche just last week, Chief Justice Roberts quotes from many of the Supreme Court’s decisions over the past 220 years to establish that “Our precedents confirm the general rule that rights in an invention belong to the inventor.” This included, for instance, the decision in United States v. Dubilier Condenser Corp., in which the Supreme Court held that U.S. patents have long secured “the result of an inventive act, the birth of an idea and its reduction to practice; the product of original thought.” 289 U.S. 178, 188 (1933) (emphasis added). Justice Joseph Story, recognized by patent scholars today as one of the founders of American patent law, wrote that “No person is entitled to a patent under the act of congress unless he has invented some new and useful art, machine, manufacture, or composition of matter, not known or used before.” Bedford v. Hunt, 3 F. Cas. 37, 37 (C.C.D. Mass. 1817) (No. 1,217) (emphasis added).

Congress May Not Define “Inventors” However It Wishes

Some supporters of the constitutionality of § 2 have stated that the meaning of the word “Inventors” in Art. I, § 8, Cl. 8 should be left to the policy discretion of Congress to interpret and apply in its patent statutes. But this cannot be a valid principle for applying constitutional provisions to Congress, because it would mean that every word in every provision of the Constitution should be left to the policy discretion of Congress as to how it should be applied to American citizens. Under this approach, Congress could freely redefine the meaning of “speech” in the First Amendment, or Congress could freely redefine the meaning of “due process” in the Fifth and Fourteenth Amendments. Certainly Congress has some discretion within the scope of its enumerated powers to enact legislation; this is why the Framers adopted the Necessary and Proper Clause. But the very idea of a Constitution that specifically enumerates limited powers in the federal government through expressly worded provisions requires that the limiting terms in these provisions not be read out of the Constitution by interpretative fiat. If “Inventors” is to have any meaning whatsoever in defining and limiting the scope of Congress’s power to enact patent statutes under the Copyright and Patent Clause, it can only mean what it has been consistently interpreted to mean for 220 years: patents may be secured only to the first inventors.

Supporters of the constitutionality of § 2 have further claimed that the instances in which patents are denied to first inventors given their post-invention activities, such as public use or abandonment, suppression and concealment of an invention, prove that the Constitution does not require that patents go to first inventors. Again, this is a nonsensical principle of constitutional interpretation. The Constitution establishes the presumption that first inventors are secured a patent, but it does not mandate that first inventors must receive patents regardless of their own actions. Thus, Congresses and courts have identified instances in which post-inventive actions by a first inventor can result in a default on the right to receive a patent. There are myriad examples—such as strategic behavior by an inventor in commercially exploiting an invention as a trade secret long before filing for a patent or an inventor’s publicly disclosing an invention and thus creating reasonable reliance interests in third parties that the invention is in the public domain—but they all entail post-invention actions that result in a substantive or procedural default by the first inventor in receiving a patent. This is no different from the constitutional practice of denying to felons the right to vote or the right to own firearms or restricting every American citizen’s due process rights through statutes of limitation, and so on.

Accommodating Foreign Laws Is No Excuse to Violate Constitution

Lastly, the supporters of the constitutionality of § 2 have alleged that Congress’s longstanding practice of accommodating foreign countries’ first-to-file rules when foreign inventors apply for patents in the U.S. somehow disproves the constitutional argument against this first-to-file provision. But such laws prove no such thing. The Constitution applies only within the jurisdictional boundaries of the United States of America, and thus it is merely an act of comity for Congress to permit foreign inventors who have created inventions in foreign countries to apply for U.S. patents; under the Constitution, Congress may permit or refuse such a patent application by discretionary fiat. This is why the United States has entered into treaties to secure international protection of patent rights. It is also why, since the early American Republic, foreign inventors working in foreign countries have always required Congress to enact special statutes to permit them to apply for U.S. patents. But the constitutional requirement for U.S. inventors is neither discretionary nor unclear: It requires that the laws “securing” patents to “Inventors” who are living and working in the United States may do so only for those “Inventors” who have created “Discoveries”—those who are first to invent, not first to file for the patent itself.

In closing, it is our belief that there is a serious question concerning the constitutionality of the first-to-file provision in H.R. 1249. But regardless of whether one agrees that a first-to-file system is unconstitutional, it is entirely appropriate that this debate occur in the deliberations concerning whether H.R. 1249 should be enacted by Congress. The constitutionality of a statute under consideration by Congress, in addition to whatever policy issues may be raised by it, is always something that should be openly and forthrightly considered by Congress, which has as much a duty to uphold the Constitution as do the Executive and Judicial branches.

Sincerely,

Daniel B. Ravicher

Lecturer in Law, Benjamin N. Cardozo School of Law

Executive Director, Public Patent Foundation

Adam Mossoff

Professor of Law

George Mason University School of Law

Lateef Mtima

Professor of Law and Director,

Institute for Intellectual Property and Social Justice

Howard University School of Law

Kali Murray

Assistant Professor of Law

Marquette University Law School

Sean Patrick Suiter Adjunct Professor of Law, Creighton University School of Law Visiting Professor of Law, Peking University School of Law

Dale L. Carson

Adjunct Professor of Law

Quinnipiac University School of Law

 
First-to-File: Is it Constitutional

The following letter from a number of Law Professors deals with the Constitutionality of a First-to-File system as contemplated by the America Invents Act (H.R. 1249 and S. 23) 

 
Patent Office Fees an Unconstitutional Tax

Congressman Paul Ryan[1] and Congressman Hal Rogers’ argument that ending Patent Office fee diversion is a sham.  The Congressmen point to Article 1, Section 9, Clause 7, which states:

 
The Myth of the Sole Inventor: A Socialist Diatribe by Professor Mark A Lemley

The Myth of the Sole Inventor, By Mark A. Lemley, Stanford Law School http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1856610

Professor Mark A Lemley has written a paper suggesting that sole inventors and individual genius does not exist.  Mr. Lemley teaches patent law and intellectual property law at Stanford University.  However, Mr. Lemley is not a patent attorney, does not have a technical background and as his paper proves has not understanding of technology.  Mr. Lemley’s idea of collectivist invention ignores three basic facts:

1) Groups of people are made up of individuals.

2) Every individual has to think for themselves – you cannot think for someone else, which is a source of frustration for every parent (child).

3) Throughout history the rate of invention was very slow until we introduced property rights for inventions (patents).

Lemley purposely downplays Edison’s achievement.  The fact is that Edison created the first high resistance, long lasting, incandescent light bulb.  This was a huge achievement that made electrical lighting commercially feasible.  Many “experts” with Ph.D.s from the most prestigious universities at the time said electrical lighting was impossible commercially.  Lemley also has his history wrong.  Swan was the most important inventor of the light bulb, before Edison.  He mentions Man and Sawyer, who I find no reference to in any history of the incandescent light bulb.  Lemley appears to have no regard for facts.  His analysis of the Wright brother’s achievements is similarly sloppy and just plain wrong.

Lemley’s argument that great inventions are created by multiple people simultaneously has been examined by numerous scholars and found to be incorrect.  For instance, see Jacob Schmookler and his ground breaking book, Invention and Economic Growth, which examined this issue.  People like Lemley attempt to smear together multiple inventions as being the same invention.  For instance, they see Swan’s light bulb and Edison’s light bulb as simultaneous inventions of the light bulb.  Lemley may have made this mistake because he does not have the technical background necessary to understand the issues surrounding the invention of the light bulb.  However, I suspect that Lemley is not interested in the truth, he is interested in pushing a political theory of collectivist invention.  If Lemley’s ideas held any water at all, then you would expect either: 1) the USSR/North Korea should have been one of the greatest sources of inventions in the history of the World, and/or 2) the greatest population centers would be the biggest creators of new technology.  The facts are that neither are true.  The first is self evident.  The second appears to be true until the creation of property rights for inventions.  When England and the U.S. create an effective property rights system for inventors almost all significant inventions for the Industrial Revolution are invented in the U.S. and England, even though their populations are much smaller than France, China, India, etc.

Lemley is pushing an old worn out socialist idea that individuals do not matter only the collective.  This paper is not novel and its thesis has been proven false over and over again.  But socialists do not believe in an objective reality.

The paper is an example of the intellectual and moral bankruptcy of many of our academic institutions.

The Myth of the Sole Inventor, By Mark A. Lemley, Stanford Law School http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1856610

 
America Invents Act Pulled From Floor

According to a Congressional aid who has been keeping me informed on the America Invents (not) Act (H.R. 1249) the Bill has been pulled from the floor this week and will not be voted on.  They are uncertain now when the Bill will be voted on.  I consider this good news.

 
Guest Post: Dale L. Carlson on the Experience of Other Countries with Post Grant Reviews and its Implication for the America Invents (not) Act

A patent reform bill is currently pending in Congress (Senate S. 23 and its House counterpart H.R. 1249) titled the “America Invents Act.” The bill proposes radical changes to the existing patent system that would impede innovation. Moreover, the bill contains ambiguous language that tends to confuse the reader, and is likely to confuse users of the patent system.

In particular, the bill attempts to draw a line of demarcation between “inter partes review” of a patent, on the one hand, and “post-grant review” on the other. The fly-in-the-ointment is that “inter partes review” occurs after grant, and is thus “post-grant.” Conversely, “post-grant review” is “inter partes” since it involves multiple parties, namely the patent owner and a third-party opponent. Accordingly, the bill is confusing since words appearing in one section are interchangeable with, and confusingly similar to, words in another.

In reality, the “post-grant review” proposal appears to be modeled after an analogous opposition procedure in place in Europe. Both procedures require the opposing party to submit a petition against the patent within a fixed number of months after the patent’s grant, or lose the opportunity to oppose using those procedures.

Significantly, other countries already tried European-style oppositions. In fact, Japan, China and South Korea implemented patent oppositions more than a decade ago. Within the decade, these efforts to mimic the European protocol all failed, and the procedures were abolished.

In Europe, there are no administrative alternatives to the opposition procedure. Hence, there’s no risk of redundancy in the European system, nor of confusion among users of the system. In contrast, Japan, China and South Korea have a separate administrative option, which still exists, called an “invalidation trial.”

The invalidation trial is comparable to the separate administrative option already available in the U.S. Patent Office, namely inter partes re-examination. The lesson we should learn from these Asian countries’ negative experiences with European-style oppositions is that introducing such a procedure is likely to confuse users of the system. Confusion among users of the patent system tends to stifle innovation.

Another provision of the bill would change our system from “first-to-invent” to “first to file.” That change might suit those who believe they can win a race to the U.S. Patent and Trademark Office. However, a race is not what Article 1, Section 8, Clause 8 of the Constitution envisions, nor is it what the Patent Act of 1836 formerly required or what the Patent Act of 1952 currently requires.

To the contrary, an “inventor” is not the person who is most fleet-footed in a race to the PTO, but rather the one who actually makes the invention first, unless the first party has “abandoned, concealed or suppressed it.”

A first-to-file system will demotivate inventors who believe that they do not have sufficient resources to win the race to the PTO. Demotivation of inventors tends to impede and stifle innovation. Such demotivation is the last thing that our nation needs, given the current state of the economy.

Another provision of the bill would undermine the incentive force associated with the constitutional mandate to “promote the…useful Arts” by tacitly encouraging each patent applicant to decrease the quality and quantity of disclosure of the invention in their patent applications.

Specifically, this provision would eliminate the penalty of unenforceability or invalidity that currently can be leveled against patentees in litigation for failing to disclose the best aspects of their invention in the patent application.

By virtue of this proposed change, a patentee’s failure to provide “best mode disclosure” of their invention would not be usable as a defense against patent infringement.

Although the best-mode requirement would technically remain “on the books,” it would have a hollow ring to it since there would be no risk of judicial penalty for failure to comply with the requirement.

Without the risk of sanctions, patent applicants may decide that it is in their best interest not to comply with the requirement, irrespective of their patent attorney’s counsel to the contrary. The likely result will be a diminution in the quantity and quality of information provided.

Reduced disclosure in patent applications will impede innovation by causing the patentee’s competitors to have to “reinvent the wheel” in order to piece together details about the invention that were left out of the patent application in order to keep those details a trade secret.

In conclusion, the proposed bill will diminish innovation and should not be enacted. If enacted, the resulting statute is likely to be repealed, but only after a huge waste of time, effort and taxpayers’ money.

Dale L. Carlson is a partner at Wiggin and Dana in New Haven, Conn., an adjunct professor of patent law at Quinnipiac University School of Law in Hamden, Conn. and immediate past president of the New York Intellectual Property Law Association, the largest regional IP law association in the country.

 
Legislative Update: America Invents (not) Act

I met with a couple of Congressional aides today and it looks like there will be debate on the amendments Wednesday (6/15/11) and Thursday and the vote on the America Invents Act (H.R. 1249 & S.23) by the end of the week.  The only reason for the rush must be that the Bill continues to lose support and the big companies pushing this Bill want it crammed through before opposition can coalesce.

According to the aides one amendment is to gut the Bill and only preserve full funding for the Patent Office (PTO).  This is the only form of the America Invents Act that I could support.

Other amendments include the Paul Ryan and Hal Rogers proposal to cut the provision to stop fee diversion.  Some Conservative groups have supported this idea under the idea that stopping fee diversion is violation of the US Constitution.  The argument is that stopping fee diversion takes the power of the purse away from the Congress.  This argument is nonsense.  The PTO is and always has been a totally self funded agency.  When you apply for a patent you write a check to the PTO, not to the General Treasury.  When the funds are deposited into the General Treasury it puts Congress in the position of a trustee.  A trustee has oversight power, but does not have the power to spend that money on other programs.  When it spends PTO money on other programs it is committing fraud and theft.  If Congress was private entity, all Congressmen would all go to jail for converting funds.  When different (less stringent) rules apply to those in government than those in the private sector, then you have tyranny.

I was asked my opinion on giving the PTO fee setting authority.  I am mixed.  If the idiot, Jon Dudas former Director of the Patent and Trademark Office, had had fee setting authority, it would have terrified me the damage he could have done to the patent system.  Of course, fee setting without the end of fee diversion is completely meaningless.  So I see this issue with ambivalence at best.

Now is the time to put pressure on your Congressman.  Please call you them and tell them to vote NO on the America Invents (not) Act.

 
Good News on Patents From the Supreme Court

In two cases this week, the Supreme Court preserved the integrity of our patent system.  In the Stanford University v. Roche Molecular Systems, case the ownership of three patents for a diagnostic test used worldwide to measure the concentration of HIV in patients’ blood plasma was at issue.  The Court emphasized that U.S. patent law is based on the concept that the inventor is the first owner of his invention.

“Since 1790, the patent law has operated on the premise that rights in an invention belong to the inventor,” Chief Justice John G. Roberts Jr. wrote for the court’s majority. “Although much in intellectual property law has changed in the 220 years since the first Patent Act, the basic idea that inventors have the right to patent their inventions has not.”

This would seem to strike a blow to America Invents Act, which is trying to change the law so that the first person to file a patent application is the owner of the invention.

The second case was Microsoft Corp v i4i Limited Partnership, in which Microsoft argued that prior art not considered by the Patent Office should only have to meet the “preponderance of evidence” test to invalidate a patent.  The court disagreed and upheld the CAFC (Court of Appeals for the Federal Circuit) in requiring “clear and convincing” evidence.  If Microsoft had prevailed it would have significantly weakened patent rights.

These two cases taken together seem to signal a change in the Supreme Court towards patent cases.  For the last 3-5 years the Supreme Court has ruled on a number of patent cases that all weakened the patent right.  For instance, the KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398 (2007), made it easier to find a patent invalid for obviousness.  The eBay Inc v. MercExchange, L.L.C., 547 U.S. 388 (2006) case made it more difficult to obtain an injunction against an infringer, even after winning a case showing that there was infringement.  The In re Bilski, 545 F.3d 943, 88 U.S.P.Q.2d 1385 case narrowed the scope of patentable subject matter.  The Medimmune, Inc. v. Genetech, Inc., 549 U.S. 118 (2007), case overturned a long-standing rule that a licensed patent user cannot file a declaratory judgment action when they have not breached the license terms.  These cases showed a Supreme Court that had become hostile to patents and was willing to ignore or rewrite the law to weaken patent rights.  While neither of these cases strengthens the rights of inventors, at least they did not undermine patent rights.  The timing of the Stanford case appears to be a way for the Supreme Court to weigh in on the Constitutionality of the America Invents Act before it passes.

 

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