Subject: Re: The term "intellectual property" considered useful
From: "David H. Lynch Jr" <>
Date: Sun, 28 May 2006 10:35:44 -0400

Thomas Lord wrote:
> David H. Lynch Jr. wrote:
>>    I just tripped over a recent US Supreme court decision on patents.
> What case, please?

eBay patent case
>>     Apparently the statutory law creating patents defines patents as
>> personal property. I believe that is in the sense referred to earlier on
>> this list - that the collection of rights embodied in a patent
>> constitutes personal property, not that the patented idea constitutes
>> personal property.
> Glad we could help with the comprehension.

    Obviously, lots of people are going to read supreme court decisions
differently. Regardless, there is a specific cite to The Statute
creating patents and it just flat out defines patents as personal
property. However, I am pretty sure that the majority oppinion makes it
clear that the US Supreme court has never considered that determinative.
Basically that congresses rights to create patents and copyrights is
limited by Article I Section 8.

    Frankly, I was surprised that alot of Justice Thomas's majority
reasoning strongly resembled alot of what Richard has written.

    Had they followed the same line of reasoning in Lessig's Bono
copyright extension case they would have easily found it unconstitutional.

    I think one of the fundimental distinctions was that the Supreme
court had little difficulty seeing that there was more at stake than the
interests of MercExchange and eBay.
    That MercExchange might be entitled to shutdown eBay on property
issues, but there were public interests that trump those of eBay and Merc.

    The concurring oppinion is even more interesting as it looks to go
much farther. It seemed to be inviting a business method patent case.

    Regardless, both the majority and concurring oppinions were short.
They did not go into much at depth, but they made it clear that what
constitutes a patent and its attendent rights is limited by more than

> -t

Dave Lynch 					  	    DLA Systems
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