Subject: Re: The term "intellectual property" considered useful
From: Seth Johnson <>
Date: Sun, 28 May 2006 19:44:50 -0400

Thomas Lord wrote:
> Seth Johnson wrote:
> > The case is a resounding rebuke against the general principle
> > approach applied by the Federal Court of Appeals.
> Part of it is, yes, ... *because* ... the general principle
> stated by Appeals is not consistent with how remedies in
> property cases are generally treated.    Congress did not,
> in defining a property right for patents, create statutory
> penalties around patents that would make injunctive relief
> the default.  Rather, general principles of equity apply.
> You quoted one place where SCOTUS says as much:
> > To be sure, the Patent Act also declares that "patents shall have
> > the attributes of personal property," 261, including "the right
> > to exclude others from making, using, offering for sale, or
> > selling the invention," 154(a)(1). According to the Court of
> > Appeals, this statutory right to exclude alone justifies its
> > general rule in favor of permanent injunctive relief. 401 F. 3d,
> > at 1338. But the creation of a right is distinct from the
> > provision of remedies for violations of that right. Indeed, the
> > Patent Act itself indicates that patents shall have the
> > attributes of personal property "[s]ubject to the provisions of
> > this title," 35 U.S.C. 261, including, presumably, the provision
> > that injunctive relief "may" issue only "in accordance with the
> > principles of equity," 283.
> The property right is defined in terms of a right to exclude, yes.
> But that definition does *not* imply the specific remedy of an
> injunction to enforce the exclusion.   The exclusion *only* tells
> the court when a remedy must be considered -- not what the
> remedy must be.
> Defining the right is separate from defining the remedies.
> In defining the remedies, the statute explicitly invokes ordinary
> principles of equity -- just like all "ordinary personal property".

It would appear that I must repeat myself a third time:

They treat that general principle for remedies as arising from
treating patents as having "the attributes of personal property
[including] the right to exclude others from making, using,
offering for sale, or selling the invention" and contrast, and
dismiss, that approach against the four factor equity test.

See the above quote.


> > They absolutely do do such a thing.  Your preachy little noggin
> > is imagining opposites where there are none.  You basically had a
> > speech you wanted to deliver, key trope of which being "See? It's
> > all about what the law really means" -- and deliver it you must.
> >
> > You went on at great length in your message, but I decided not to
> > waste time being snarky.
> >
> No, you got right to it.
> Look, just as a technical matter, don't overlook that the SCOTUS
> opinion *also* affirms Appeals' rejection of District's reasoning.
> That's significant because SCOTUS is not just undoing Appeals
> and reverting to District -- they've tossed both.   It's significant
> for software developers because District's original decision appeared
> to strike a pretty decent blow against trolls (not a knock-out, but
> a good hit) -- but that blow doesn't stand.
> "Forget two.  It's *one* people separated by a common tongue."
> -t


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