The English language has some interesting group names. Groups like a “flock” of geese, a “slaughter” 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 name for a gathering of patent policy experts. We respectfully suggest that such meetings be characterized as “confusion” of patent experts. Many conference attendees have opposed over the years, but the experts gathered that day agreed that the patent landscape has been carpet-bombed by the confusion caused by the courts, Congress and the PTO. Despite their collective confusion regarding the disrupted patent landscape, as Steve Brachmann and Gene Quinn noted in their Joint Summary of Proceedings, there were a number of key issues where, despite the confusion imposed by DC policymakers, a general agreement was on the agenda.
Consensus reached by patent experts in attendance included: frustration with the misleading narrative by patent trolls that falsely claiming that all patents are ‘bad patents’, continued pressure from the effective counterfeiters’ lobby for comprehensive litigation reform. matters despite the fact that patent litigation continues to decline, and this unanimous opinion that patents are property, which is after all what the Patent Act says in 35 USC 261.
There has been no philosophical discussion of the legal theory of liability over property. There was no debate on the “public rights” doctrine that the PTAB and the Federal Circuit have pulled from legal obscurity. On the contrary, there were repeated references to the desirability of analogizing patents to real estate, which the Supreme Court itself has done for over 100 years.
The experts in attendance reminded us of the compulsory licensing folly that is now pervading the US patent market, which, when explained in terms of real estate, is obviously absurd.
“One day a man came home from work to find a strange family living in his dining room. He wanted 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 pitched their tent. A judge ultimately concluded that he did indeed own his dining room. But instead of ordering the family’s eviction, she ordered the invaders to pay the landlord a hypothetically determined amount by calculating what he and the squatters would have agreed to before his unwanted visitors moved in.
Despite the fact that this poor guy was not in the dining room rental business, and regardless of whether he had his exclusive right to his dining room confirmed, the squatters were allowed to stay as long as they were paying what would have been fair rent if it had not been necessary to sue and endure five years of litigation. The absurdity is palpable, of course. Even in America today, no judge would allow landowners to cohabit with squatters, but a patent is different. Despite the fact that the Supreme Court has repeatedly stated that a land patent confers the same rights as a patent for invention, the patent owner must now accept the fact that exclusivity no longer exists as a that one of the sets of rights thanks to eBay vs. MercExchange.
In the circumstances described above, the court-ordered rental equates to the compulsory license now automatically imposed by lower court lemmings as a result of Justice Kennedy’s concurrent ruling. eBay opinion while ignoring the old rule of common sense which recognized that the holder of an exclusive right had to obtain an injunction of a court which orders not to infringe any more this exclusive right. Without such an injunction, which would only confirm what the grant of the patent itself already commands, how exactly does a patent confer an exclusive right? This is not the case, and this is the reality faced by patent owners who are forced to share their exclusive rights, which is as ludicrous as it sounds. Our victorious owner, it seems, must dine outside or eat in the kitchen.
Perhaps there should be an IPWatchdog competition to select the appropriate group name for the patent policy expert gatherings. I call it “confusion”. But unless our disrupted patent landscape is soon restored, “frustration” from patent policy experts might be the best choice.
Chris Gallagher is President of IP Strategic.com and a lasting selection from The Best Lawyers in America. After spending years as one of the most influential and respected advocates of the New Hampshire legislature and state administrative agencies, Chris now focuses primarily on federal politics in Washington, DC. Chris has been involved in nearly every major New Hampshire economic regulatory initiative over the past 25 years. He has served as legal counsel to the New Hampshire Bankers Association and has represented New Hampshire utilities, hospitals, insurers, aggregate manufacturers and many other entities. This experience gives him a particularly respected voice on Capitol Hill, enabling him to communicate effectively with members whose federal decision-making must reflect and respect the complexities of their original constituents.
A frequent speaker and commentator in local and national media on matters of policy, financial services, privacy, business and government, Chris has testified on financial services matters before State House and Senate committees United and was a panelist at briefings in Capitol Hill on intellectual property issues. . He can be reached at [email protected]