Subject: Re: The term "intellectual property" considered useful
From: Seth Johnson <>
Date: Sun, 28 May 2006 22:09:58 -0400

Thomas Lord wrote:
> Seth Johnson wrote:
>  > 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.
> When you express yourself that way, I am not certain
> whether or not we disagree about anything.

I guess that's the best I can hope to get.


> There are two decisions to look at. One is the opinion of the
> Appeals court:
> and the other is the SCOTUS decision:
> The Appeals court, citing precedent, asserts:
> [...] the “right to exclude recognized in a patent is but the
> essence of the concept of property,”[...] Richardson
> v. Suzuki Motor Co., 868 F.2d 1226, 1246-47 (Fed. Cir. 1989).
> Do you agree that the Surpreme Court concurs? They
> do, as your favorite quote from their opinion demonstrates.
> Let's call that assertion by Appeals "proposition A".
> Appeals also asserts:
> *Because* [... proposition A ...] [*therefore*]
> the general rule is that a permanent injunction will
> issue once infringement and validity have been
> adjudged.
> It is precisely that "*because*/[*therefore*]" that
> SCOTUS is rejecting in that decision. "There's no
> such rule!" says SCOTUS.
> SCOTUS hasn't said that patents aren't property.
> SCOTUS hasn't said that patents are a special kind
> of property.
> They are saying that Congress' definition of what the property
> consists of does not imply almost automatic injunctive relief
> against patent violators. Rather, the traditional tests for
> when injunctive relief is appropriate apply to patents just as
> much as they do in any other question of equity.
> SCOTUS said the *opposite* of "patents are either non-property
> or a very special kind of property." They overturned lower
> courts because the lower courts tried to treat patents as
> something other than ordinary property.
> Here's an example from real life, in my neighborhood,
> having nothing to do with patents:
> An apartment building has recently been built
> next to another commercial property. It has not yet
> opened for business. There is some difficulty
> completing the construction because of a dispute
> between the two property owners.
> There is a boundary dispute. The adjacent owner
> now claims that the apartment building crosses his
> property line and occupies, by a few inches, his
> land. [In the actual case here that claim is dubious
> but let's stipulate that, in fact, the apartment
> building infringes on the adjacent plot.] Additionally,
> to complete the construction, the apartment building
> owner will need to briefly do some work from a
> position on his neighbor's property.
> Exclusion being the essence of property, clearly
> the apartment building owner has infringed on
> his neighbor. The law defines a clear boundary and
> the boundary has been crossed. [The Mercexchange
> patent establishes a clear boundary and a jury finds
> that eBay crossed it.]
> Does it follow, by some "general rule", that the
> court must now order the modification/removal of the
> apartment building?
> Well, no -- it doesn't follow. The court has to weigh
> a lot of considerations. Does the infringement really
> damage the neighbor? (Completely unclear in this case.)
> Has the neighbor lesser remedies such as a damages
> settlement that would be adequate? Would an injunction
> to modify/destroy the apartment building be patently
> unfair to the apartment building owner who, after all,
> wasn't challenged until after he (nearly) completed
> the building? Is the existence of the apartment building
> of such vital importance to the community that those
> concerns preclude its destruction?
> It's the same thing with Mercexchange's patent, is all
> SCOTUS is saying. Patent rights, at the moment, are
> more or less "ordinary personal property."
> -t


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