Justices question eBay patent arguments (Yahoo) [LWN.net]

Yahoo has a Reuters article on the Supreme Court hearing of the eBay patent case. "'You're talking about a property right, and the property right is explicitly the right to exclude others,' Justice Antonin Scalia told eBay's lawyer. 'That's what a patent right is ... give me my property back.'"

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Omigawd

Posted Mar 30, 2006 13:38 UTC (Thu) by Max.Hyre (subscriber, #1054) [Link] (10 responses)

Now I'm scared.

For what it's worth, Law.com thinks the Court is ``closely divided''. May it be so, but having Justice Scalia call patent a ``property right'' shows how far we've come from the founders' intent. (And once more, RMS seems prescient). Strict constructionism, anyone?

Omigawd

Posted Mar 31, 2006 1:19 UTC (Fri) by lordsutch (guest, #53) [Link] (6 responses)

You do realize that the Constitution explicitly gives Congress the power to grant patents, which are (for the duration of their terms) the property of their owner. That is the very definition of "strict construction."

Whether Congress was wise to extend that protection to intellectual property is another question entirely, but the power is grounded in the text of the constitution much more clearly than many other rights and powers that we take for granted.

Omigawd

Posted Mar 31, 2006 2:07 UTC (Fri) by Ross (guest, #4065) [Link]

It isn't a simple power grant without conditions, and it doesn't say anything about property. Property has a long legal history totally outside of the Constiution. The copyright/patent clause allows Congress to make such grants for limited times and only when it is for the purpose of progressing the arts an sciences. The Supremes made it clear that strict constructionism is dead, at least outside of the commerce clause, with the Eldred opinions.

Patent particulars

Posted Mar 31, 2006 3:26 UTC (Fri) by Max.Hyre (subscriber, #1054) [Link] (3 responses)

lordsutch observes:

You do realize that the Constitution explicitly gives Congress the power to grant patents, which are (for the duration of their terms) the property of their owner. That is the very definition of "strict construction."

I think you're spot on, but don't recognize the truth you utter. (I know what you said better than you do? Now there's hubris. :-) To be specific, the Constitution reads

8. To promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries:

Note that they don't say ``securing [...] the ownership of...''. What the recipient get is an exclusive right to an object which they don't own. Your take is the same: ``patents, which are[...]the property of their owner.''. The patent is the property, not the concept.

<Rant>
99 and 44/100ths percent of commentators miss the meaning (as well as the intent) of the eighth clause. They think it's all about rights. Dead wrong! The power, stripped of its subordinate clause, is

8. To promote the progress of science and useful arts,[...]

That is what Congress is given the power to do. All that jazz about exclusive rights is just a means to that end. Unfortunately, as Ross notes, the Eldred decision makes it clear that a majority of the Supreme Court is in that 99.44%.
</Rant>

s/get/gets/

Posted Mar 31, 2006 3:28 UTC (Fri) by Max.Hyre (subscriber, #1054) [Link]

/me blushes

Patent particulars

Posted Mar 31, 2006 12:42 UTC (Fri) by ibukanov (subscriber, #3942) [Link]

<more_rant>

> 8. To promote the progress of science and useful arts,[...]

But surely patents promotes the progress at least for law science and layers: they get more cases and bigger salaries. Since AFAIK all judges in Supreme Cort in USA consists of lawyers, it would very strange if they want stop farther advances in that progress.

</more_rant>

Patent particulars

Posted Apr 8, 2006 19:16 UTC (Sat) by giraffedata (guest, #1954) [Link]

I think you're just getting into a lather over terminology. What we have here is a conversation between lawyers, using legal language well known to them. "Property" is a legal term well understood among lawyers, and applies perfectly to what Scalia is using it for. I doubt that the Ebay attorney to whom he's talking would object to Scalia calling a patent property.

Regardless of the purpose of patents, US law, as authorized in the Constituttion, aims to achieve it by creating property.

Further, when Scalia talks about "rights," he means legal rights -- not some moral right accorded by God. Patent law creates legal rights for inventors -- again, as a means of achieving some purpose, whatever that may be.

Law books go on for hundreds of pages essentially specifying what "property" is, but here's a pretty good line from the top of the definition in Black's Law Dictionary: "An aggregate of rights which are guaranteed and protected by the government."

Note that to a lawyer, an object is never property per se. The right to use the object or exclude others from using it is the property.

An etymological note that might be of interest: "Property" is just a variation of the Latin word for "own." I.e. property is by definition that which is owned. "it is the property of its owner" is redundant -- just say "it is property."

Omigawd

Posted Mar 31, 2006 8:35 UTC (Fri) by laidlaws (guest, #26237) [Link]

So long as the patent stands, it can be enforced. What one would expect, is for eBay to have argued that the patent is invalid because it was obvious or something, and to have it removed. From what I have read, eBay has not made it an issue in the case that the patent shouldn't be on the books. If it wasn't made an issue in the pleadings when the case was launched, the Supreme Court cannot use it to throw the claim out at this level. The only issue seems to be whether what eBay is doing infringes the patent. Apparently there is already a decision to the effect that the patent is valid, but of what authority, I do not know.

That is different from "strict construction." In one famous English case, a taxpayer who had understated his income was to pay three times the tax he ought to have paid. The House of Lords said that meant not just three times the tax he had avoided, but three times his total amended assessment, That is "strict construction."

Omigawd

Posted Mar 31, 2006 2:47 UTC (Fri) by zotz (guest, #26117) [Link] (2 responses)

Next up:

abusive eminent domain takings of so called "intellectual property" - film at 11.

You know it has to come if they don't sort out this madness.

"I'm sorry, I know that we the government gave you an exclusive copyright to your work, but you see, you aren't doing much with it and there is this "intellectual property" developer down the street who claims he has some big ideas for the "property in question" and so we need to take it from you and give it to him."

all the best,

drew

Omigawd

Posted Mar 31, 2006 6:03 UTC (Fri) by sir99 (guest, #3286) [Link]

What if the developer down the street is the army? Try this one: http://www.padrak.com/ine/INE13.html

I'm sure I heard of others at some point, which had already been granted before being made secret. 35 USC 181-186.

Eminent domain

Posted Mar 31, 2006 6:22 UTC (Fri) by xoddam (subscriber, #2322) [Link]

Patent trolls really do sit on prime construction sites, building
nothing.

Oh please! If only it were plausible...

Annoyingly not the point

Posted Mar 30, 2006 13:57 UTC (Thu) by jamienk (guest, #1144) [Link]

It doesn't seem that eBay is arguing that the patent they've been found guilty (so far) of violating is a bullshit patent. That's my opinion: that a patent on a "Buy it now" link is a bullshit patent and that a society that prevents anyone from having such a link on their website like that is broken in a deep way. But eBay isn't arguing that, and the Court isn't discussing that. They are arguing whether or not a patent violator should be allowed to continue to use the patented "thing" (you have to use the term loosely here) while the parties fight it out more deeply.

Scalia's quote about property and about the Free Market demonstrate, to me, a twisted faux-Capitalist line of reasoning. Many, if not all, markets are "set up" before they are allowed to be "free" -- ground rules are laid, like anti-fraud laws, anti-dumping laws, environmental regulations, liability laws, etc. to say nothing of laws creating social stability. When these kind of ground rules are created, they are meant to make the market have real competition, to encourage innovation, and to protect the buyer and the society at large. Each "rule" that gets set should be evaluated on if and how it leads towards these goals.

Scalia talks as if the concept of patents is very fundamental and that its benefits are decided. But the recent spate of software-related patents (to say nothing of the genetic patents, etc.) and the associated issues shows that something is very wrong here.

My fantasy is that the Supreme Court would see a case like this and be so appalled at the DAMAGE to competition, innovation, and "buyer" protection (e.g., Free Software users), that they would demand serious reform of the patent system. I know the courts don't work that way but...

But eBay and Blackberry and post-Eolas Microsoft (and "even" IBM) and their ilk are NOT arguing for massive reform of the patent system; they are all arguing narrow issues for their own benefits. Instead, the US gov't and it's native lobbyists are strongly pushing for a de-facto International patent system to match our own.

Where are the anti-patent forces? Alas, we are small, and weak. But right.

Justices question eBay patent arguments (Yahoo)

Posted Mar 30, 2006 15:45 UTC (Thu) by laidlaws (guest, #26237) [Link] (1 responses)

If this is an application for an interim injunction, the Plaintiff would normally have to give an undertaking to pay any damage eBay suffered if the patent were eventually thrown out. But the undertaking to pay damages is not enough; the Plaintiff must show a reasonable chance of winning.

I agree that it is a "bullshit patent." Why aren't eBay claiming that and counterclaiming to have the patent declared void? Probably because there is already a decision against them on that argument.

(I am an Australian lawyer, and a G.P at that. This is a highly technical area of the law, but if the outcome looks ridiculous, it brings the law into disrepute.)

Justices question eBay patent arguments (Yahoo)

Posted Mar 30, 2006 16:44 UTC (Thu) by swiftone (guest, #17420) [Link]

I agree that it is a "bullshit patent." Why aren't eBay claiming that and counterclaiming to have the patent declared void?

Because that's an argument for the lower courts. At the Supreme Court, they're arguing about procedural issues.

As I understand it, eBay lost at the lowest court (Court decided they did infringe, but declined to put an injunction), the MercExchange decided to appeal about the injuction, and the appeals court sided with them, and eBay appeal that decision.

So the question on the table is the injunction, not the patent or the infringement.

Buy it in 10 seconds.

Posted Mar 30, 2006 22:55 UTC (Thu) by zotz (guest, #26117) [Link]

So, can I get a patent on a buy it in 10 seconds link?

all the best,

drew

(Sorry, couldn't resist.)