Subject: Re: The term "intellectual property" considered useful
From: Seth Johnson <seth.johnson@RealMeasures.dyndns.org>
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.


Seth



> There are two decisions to look at. One is the opinion of the
> Appeals court:
> 
> http://www.fedcir.gov/opinions/03-1600.pdf
> 
> and the other is the SCOTUS decision:
> 
> http://www.supremecourtus.gov/opinions/05pdf/05-130.pdf
> 
> 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

-- 

RIAA is the RISK!  Our NET is P2P!
http://www.nyfairuse.org/action/ftc

DRM is Theft!  We are the Stakeholders!

New Yorkers for Fair Use
http://www.nyfairuse.org

[CC] Counter-copyright: http://realmeasures.dyndns.org/cc

I reserve no rights restricting copying, modification or
distribution of this incidentally recorded communication. 
Original authorship should be attributed reasonably, but only so
far as such an expectation might hold for usual practice in
ordinary social discourse to which one holds no claim of
exclusive rights.