Subject: Re: The term "intellectual property" considered useful
From: "David H. Lynch Jr" <>
Date: Sun, 28 May 2006 11:18:17 -0400

Thomas Lord wrote:
> Regarding eBay Inc v. MercExchange L.L.C.
> David H. Lynch Jr. wrote:
> > Regardless - and I believe in the majority opinion the court
> > made it clear that patents as property are a useful fiction,
> The opinion of Justices Kennedy, Stevens, Souter, and Breyer has
> some encouraging (and some discouraging) stuff in it but nothing
> at all like what you say (if we read your words as what they
> usually mean vs. what we can kind of guess you mean).
    I beleive I read the rejection of the property analysis out of
Thomas's majority oppinion.

    Regardless, this was a unanimous oppinion, and it left me with the
strong impression that the court was taking MUCH more seriously than in
the past the public interest in this matter.
    As you noted below some of it seemed to strongly echo Richard's own

    The most depressing aspect of the Bono Copyright extension decision
was the short shrift given to the public interest - Lessig admited in
his judicature article that he felt he had erred but not more heavily
stressing the loss to the public.

     This decision seems to reflect a more meaningful reading of Article
I Section 8.

    The Bono decision read more as Congress can do as it pleases. While
this was more directed at the courts, it still was less deferential to


> Rather than calling "patents as property [.... a] fiction" it
> says that, regarding the question of injunctive relief, patents
> are not a *special* form of property.
    Thomas did not use the term fiction, but he made it clear the court
did not need to hold strictly to that metaphor. In fact he went out of
his way to call attention to the fact that the court never had.

    I am not sure I would actually agree with him on the history and
intent of the court.

> I'm encouraged and discouraged by J's Kennedy, Stevens, Souter,
> and Breyer when they go a little out of their way to acknowledge
> the existence of patent trolls as a special problem.  ("Patent
> troll" is not their words, of course.)  They *link this issue*
> to issues close to business method and software patents.  They
> *almost* sound like RMS when they write:
>       "In cases now arising trial courts should bear in mind
>       that in many instances the nature of the patent being
>       enforced and the economic function of the patent holder
>       present considerations quite unlike earlier cases. An
>       industry has developed in which firms use patents not as
>       a basis for producing and selling goods but, instead,
>       primarily for obtaining licensing fees. [....]
>         For these firms, an injunction, and the potentially
>       serious sanctions arising from its violation, can be
>       employed as a bargaining tool to charge exorbitant fees
>       to companies that seek to buy licenses to practice the
>       patent. See ibid.  When the patented invention is but a
>       small component of the product the companies seek to
>       produce and the threat of an injunction is employed
>       simply for undue leverage in negotiations, legal damages
>       may well be sufficient to compensate for the infringement
>       and an injunction may not serve the public interest."
> So, from the free software movement perspective, they have the
> gist of some important logic and all that remains is to fill in
> the gaps that show why even damages are unreasonable.  (Hint: in
> these "cases now arising" the foreseeable conjunction of
> unavoidable damage still adds up to a de facto "injunction" to
> not do anything at all.)
> > and that when patent holder rights conflict with the public interests,
> > the personal property analogy may be abandoned.
> You deeply misunderstand something.
> The issue before the court concerns injunctive relief ("stop
> doing that!" orders) arising out of plaintiff's property rights.
> The court is saying that *for all _other_ forms of property* the
> public interest is a limit on injunctive relief -- and patents
> are no exception.
> It's not a property *analogy*.  That public interest element is
> inherent in *all forms of property*.
    I still think it was broader than that. Patents ALWAYS implicate
public interests.
    Other forms of property implicate public interests much more weakly
and much more rarely.

    I would also read Thomas more carefully - particularly the section
including the quote from Fox Film vs. Doyle.

    I do not think Thomas's choice to juxtapose the statutory and equity
analysis - which would have been sufficient on its own, with a reference
making it clear that
    patents and copyrights ONLY exist to serve the public interests.

    Even Thomas makes a less direct reference to Patent Trolls -
indicating that failing to practice a patent weakens or eliminates
claims of irreparable economic harm.

> >     My specific analysis may be incorrect.
> It is.
    Regardless, despite the claims to the contrary within the oppinions
themselves, this does reflect a keener interest on the part of the court.

    While the narrow specifics of the decision are important enough, The
majority decision is sending a message that they are concerned that the
patent situation is out of hand - and not just at the injunctive releif
level, and the concurrance is threatening to redraft what is and is not
patentable and where you can hold a patent without practicing it.

    With fews exceptions the Supreme Court does not have to take a case
just because it was wrongly decided.

    I would also note that while it is not clear precisely what the
Roberts court is going to be, O'Conner is gone. I think we are going to
see the Supreme Court acting more to to define broad meaning than acting
practically as a trial court where nothing means anything except as
relevant to the specific case.

> -t

Dave Lynch 					  	    DLA Systems
Software Development:  				         Embedded Linux
fax: 1.253.369.9244 			           Cell: 1.717.587.7774
Over 25 years' experience in platforms, languages, and technologies too numerous to

"Any intelligent fool can make things bigger and more complex... It takes a touch of
genius - and a lot of courage to move in the opposite direction."
Albert Einstein