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posted by janrinok on Wednesday April 25 2018, @11:02AM   Printer-friendly [Skip to comment(s)]
from the now,-let's-look-at-some-of-those-dodgy-claims dept.

World IP Review reports

Inter partes reviews (IPRs) do not violate the US Constitution and the Patent Trial and Appeal Board has authority to invalidate patents.

This is the holding of the US Supreme Court, which handed down its decision in Oil States Energy Services v Greene's Energy Group today.

In June last year, the court granted[1] Oil States' petition for certiorari.

Oil States, a provider of services to oil and gas companies, had claimed that the IPR process at the US Patent and Trademark Office (USPTO) violates the right to a jury in an Article III court (a federal court established under Article III of the US Constitution).

The service provider added that although in certain situations non-Article III tribunals may exercise jurisdiction over disputes involving "public rights", this doesn't apply to IPRs because patents are private property rights.

The Supreme Court asked the government to weigh in--Noel Francisco, the acting solicitor general, submitted a brief[1] on behalf of the US government in October 2017.

"Consistent with longstanding practice, the Patent Act authorises USPTO examiners within the executive branch to determine in the first instance whether patents should be granted. That allocation of authority is clearly constitutional", he said.

Siding with the US government, in a 7-2 opinion, the Supreme Court rejected Oil States' argument and found that patents are "public" rights, not "private" in an IPR context.

"The primary distinction between IPR and the initial grant of a patent is that IPR occurs after the patent has issued. But that distinction does not make a difference here", said the court.

[1] Paywall after first article, apparently.

Also at Ars Technica.


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  • (Score: 4, Informative) by Anonymous Coward on Wednesday April 25 2018, @11:16AM (1 child)

    by Anonymous Coward on Wednesday April 25 2018, @11:16AM (#671578)

    To the surprise of absolutely no one, Neil Gorsuch dissented. John Roberts joined the dissent.

    -- OriginalOwner_ [soylentnews.org]

    • (Score: 0) by Anonymous Coward on Wednesday April 25 2018, @01:29PM

      by Anonymous Coward on Wednesday April 25 2018, @01:29PM (#671612)

      Mass wishful thinking failed to magically turn it real. This is good.
      "almost everyone considered an issued patent a personal right", yeah sure.

  • (Score: 4, Informative) by The Mighty Buzzard on Wednesday April 25 2018, @11:23AM (32 children)

    SCOTUS misunderstands what a right is. Why does this not surprise me?

    A right is not something the government grants you, it is a freedom you innately possess until you allow it to be taken away. Anything that you did not possess until granted may be an entitlement but it is not a right.

    Oh well, better the right decision for the wrong reasons than the wrong decision for any reason.

    --
    My rights don't end where your fear begins.
    • (Score: 0) by Anonymous Coward on Wednesday April 25 2018, @12:00PM (8 children)

      by Anonymous Coward on Wednesday April 25 2018, @12:00PM (#671586)

      Still not quite getting your point, perhaps a car analogy would help?
              Is the right to drive inate, or granted by the state through a driver's license?

      Aside:
      My father had access to practice areas (off the public roads) and taught me to drive stick at age five.

      • (Score: 2) by The Mighty Buzzard on Wednesday April 25 2018, @02:05PM

        Yes, driving would be a right. Owning a car would be a right. Purchasing a car would be contract but the ability to negotiate a contract would be a right. Getting a car from the government/your company/your dad would be an entitlement.

        Mind you, we've surrendered at least pieces of many of the above rights. That doesn't make them other than rights, it just means we've decided for whatever reason to allow some infringement of those rights.

        --
        My rights don't end where your fear begins.
      • (Score: 3, Informative) by quacking duck on Wednesday April 25 2018, @02:55PM (6 children)

        by quacking duck (1395) on Wednesday April 25 2018, @02:55PM (#671640)

        Driving is NOT a right. It is a privilege and as such can and is granted by the state through a license.

        You may as well ask if piloting planes is a right, or manufacturing dangerous chemicals is a right. They are not, and neither is driving.

        "Whereas a right is something that can be done because it originates commonly within all individuals, a privilege is something that cannot be done without permission"
        https://voicesofliberty.com/2015/04/22/how-to-tell-the-difference-between-a-right-and-a-privilege/ [voicesofliberty.com]

        I admit it's the distinction between "cannot be done without permission" and "government is restricting a natural right" is a tad blurry, but consider this...

        I can accept that the US's Second Amendment stems from the right to defend yourself or be secure in your person (by in turn keeping a free state secure). But that is not absolute, otherwise you'd be allowed to mine your lawn against intruders, or carry nuclear weapons.

        Following that, driving is NOT a right simply because you have a right to free movement and association, because you can already walk or bike.

        • (Score: 3, Insightful) by Arik on Wednesday April 25 2018, @04:45PM (4 children)

          by Arik (4543) on Wednesday April 25 2018, @04:45PM (#671693) Journal
          "Driving is NOT a right. It is a privilege and as such can and is granted by the state through a license."

          Eh, not quite. The privilege granted by the state is not "driving," it's "driving on public roads." There is a difference.

          You have every right to drive your own car on your own road, with no license, drunk as a skunk and with busted turn signals if you want.

          "You may as well ask if piloting planes is a right, or manufacturing dangerous chemicals is a right."

          No? So if I owned a plane, and I was complying with all necessary safety regulations, you still think you have a right to stop me from flying it? Why?

          Or chemicals, really? So that chemistry set I had when I was a kid, you have the right to stop me from giving my kid the opportunity to have one? Why?

          "I admit it's the distinction between "cannot be done without permission" and "government is restricting a natural right" is a tad blurry"

          It's not a tad blurry, it's stark as day.

          "I can accept that the US's Second Amendment stems from the right to defend yourself or be secure in your person (by in turn keeping a free state secure). But that is not absolute, otherwise you'd be allowed to mine your lawn against intruders, or carry nuclear weapons."

          Mining your front lawn is insane, it's called creating a public hazard, and if you were allowed to do it then we'd have to allow the heirs of the first kid that accidentally hit one to sell you to slavers, or for medical experimentation, or something, and it's just a stupid bad road to go down. Even the army shouldn't be using land mines.

          Or nukes either, for slightly different reasons. They're "terror weapons" par excellence. Virtually useless militarily, let alone for 'self defense' - useful only for the terrifying threat of mass murder, for blackmail or bullying. And then there's the fallout and the ecological effects etc.

          Of course, citing nukes to justify the banning of 'assault weapons' is just nonsense. The intent of the founders was clear. The second amendment is specifically meant to protect the right of individuals to own squad-level military weapons. In todays terms, that means assault rifles (that's a real thing, not an 'assault weapon') submachine guns, light and heavy machine guns, potentially grenade launchers/RPGs, LAWs, light artillery/mortars, etc. It's not that they were against hunting or self defense (the 'excuses' that are still considered acceptable in DC today) they just weren't so concerned with that. What they wanted was local militias that bought and maintained their own equipment and trained together (that's what 'well regulated' meant) enough to be of some use if needed. This looked back to the historical English system of yeomanry and the earlier system of fyrdmen and hundreds, as well as the Swiss system which they were huge fans of. If anyone invaded, we wouldn't need to raise an army, it would essentially raise itself, and the capital need only supply the higher levels of the chain of command and some other glue to form a fully functional army. They did want to be able to defend ourself if invaded (and for many years we expected the Brits to come back for another go, or for another great Empire to try and swallow us.) But they thought it was of extremely important to avoid having a standing army. So this was the way.

          And it's still to this day a perfectly feasible model, with some modifications. The founders would recognize much of their ideal in the Kurdish militias that have been in the news recently in Syria and Iraq. They don't have their own air force, and they may not do too well against an army that has one and is allowed to use it as with Turkey, but as long as they were able to get air cover from another source, whether US or Russian, they have been nearly invincible. If we practiced that militia system today we could pare the Army down to a couple of installations, mothball the Navy (probably let the Coast Guard pick up a couple of ships) and still be quite secure against invasion relying primarily on the Air Force and militia to make any invasion a painful and expensive exercise in futility for anyone that attempts it.
          --
          If laughter is the best medicine, who are the best doctors?
          • (Score: 2) by tangomargarine on Wednesday April 25 2018, @06:12PM (1 child)

            by tangomargarine (667) on Wednesday April 25 2018, @06:12PM (#671753)

            No? So if I owned a plane, and I was complying with all necessary safety regulations, you still think you have a right to stop me from flying it? Why?

            Erm...isn't one of the safety regulations that you have to be a licensed pilot? Ipso facto...

            --
            "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
            • (Score: 2) by Arik on Wednesday April 25 2018, @06:48PM

              by Arik (4543) on Wednesday April 25 2018, @06:48PM (#671778) Journal
              "Erm...isn't one of the safety regulations that you have to be a licensed pilot?"

              Yes indeed, which makes that a corner case that's mostly useful as a hypothetical.

              If you think that there is a right involved here, then the licensing regime can only be legitimized by that public safety argument, so if it becomes divorced from it, it loses legitimacy.

              If the licensing is done in a non-discriminatory manner, if it's truly concerned only with safety, then there's no reason to violate it and many to follow it, but if that changed and licenses were being denied as a matter of course, if you had to have 'juice' to get a pilots license (the way you have to have 'juice' to get a firearms license in places like NYC) then it might well become a legitimate act of civil disobedience to fly without a license.

              But if you think there is no right involved, if flying is a *privilege* which the legislature may issue or deny at their prerogative and entirely as they see fit, then that would not be the case, and the notion of 'legitimate civil disobedience' wouldn't even make sense.
              --
              If laughter is the best medicine, who are the best doctors?
          • (Score: 1) by redneckmother on Wednesday April 25 2018, @07:40PM

            by redneckmother (3597) on Wednesday April 25 2018, @07:40PM (#671809)

            You have every right to drive your own car on your own road, with no license, drunk as a skunk and with busted turn signals if you want.

            Hey! Have you been spying on me? Apart from "no license", you're describing my usual evening activity. Aside from the pitiful internet connectivity, I love living in the boonies.

            --
            Mas cerveza por favor.
          • (Score: 2) by quacking duck on Thursday April 26 2018, @03:31PM

            by quacking duck (1395) on Thursday April 26 2018, @03:31PM (#672184)

            Eh, not quite. The privilege granted by the state is not "driving," it's "driving on public roads." There is a difference.

            You have every right to drive your own car on your own road, with no license, drunk as a skunk and with busted turn signals if you want.

            When the AC asked "Is the right to drive inate, or granted by the state through a driver's license?", it should've been clear that meant "public roads". NO ONE who's arguing in good faith about "right vs privilege to drive" is talking about driving on their own property, because the vast majority (80%) of the US population lives in urban areas [citylab.com], so that drivable property is limited to at most a parking spot (if you own a spot in a building garage or lot), driveway or lawn (detached or semi-detached home).

            In any event, you're still wrong; what you are talking about is not in fact a "right to drive" but your umbrella right to do what you want on your own property as long as it doesn't harm/disturb others (as defined by law).

        • (Score: -1, Flamebait) by Anonymous Coward on Thursday April 26 2018, @04:41PM

          by Anonymous Coward on Thursday April 26 2018, @04:41PM (#672201)

          "Driving is NOT a right. It is a privilege and as such can and is granted by the state through a license."

          we need a purge of people like you. start with the slugs in all the state capitals.

    • (Score: 0) by Anonymous Coward on Wednesday April 25 2018, @01:06PM (11 children)

      by Anonymous Coward on Wednesday April 25 2018, @01:06PM (#671605)

      Please demonstrate the nature of the innateness.

      Is this innate property genetic ? if so: please point out the gene or genes that an absolute 100% of all humans possess that brings this innate property to expression.

      is it spiritual ? if so: please demonstrate the existence of souls/spirits.

      • (Score: 2) by The Mighty Buzzard on Wednesday April 25 2018, @02:23PM (8 children)

        Any conceivable action you could either take or refrain from taking is a right. The idea "your rights end where someone else's begin" is not precisely true so much as it is a compromise you make to be able to interact with other human beings with neither of you feeling the need to engage in violence. When we as a society say "you have the right to X", we mean that you exercising your innate right to X is not going to cause a major disagreement.

        --
        My rights don't end where your fear begins.
        • (Score: 0) by Anonymous Coward on Wednesday April 25 2018, @03:48PM (5 children)

          by Anonymous Coward on Wednesday April 25 2018, @03:48PM (#671663)

          Any conceivable action you could either take or refrain from taking is a right.

          So, killing, theft, rape, battery, etc., are all rights?

          • (Score: 2) by The Mighty Buzzard on Wednesday April 25 2018, @05:14PM (4 children)

            Yes. They're just ones we voluntarily surrender in order to have a less violent society.

            Consider it this way... Do you have the right to blow your nose? Why? Because there is nothing anywhere taking that right from you. We as a nation have decided that certain rights can not be exercised and maintain a civil society. Most everyone agrees to the vast majority of these prohibitions but that does not make them any less a natural right.

            --
            My rights don't end where your fear begins.
            • (Score: 4, Insightful) by tangomargarine on Wednesday April 25 2018, @06:09PM (1 child)

              by tangomargarine (667) on Wednesday April 25 2018, @06:09PM (#671750)

              I'm getting a headache trying to figure out what you're actually arguing.

              Siding with the US government, in a 7-2 opinion, the Supreme Court rejected Oil States' argument and found that patents are "public" rights, not "private" in an IPR context.

              SCOTUS misunderstands what a right is.

              Any conceivable action you could either take or refrain from taking is a right.

              The Supreme Court didn't say that whatever wasn't a right. They just ruled on what type of right it is.

              And since you seem to be arguing that anything you can physically do is a right (headache intensifying...), how could TSC possibly be wrong by your logic?

              So you're arguing rights proceed from free will. I'd say it's more useful to argue that rights proceed from a collective agreement of society (often codified in law) of what they are, but hey.

              --
              "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
            • (Score: 0) by Anonymous Coward on Thursday April 26 2018, @05:58PM (1 child)

              by Anonymous Coward on Thursday April 26 2018, @05:58PM (#672230)

              Hmm, at least you're consistent in your definition. I'm pretty sure that it's not the same definition of rights used by the Constitution at any time, though, since jury trials and restrictions on government searches are considered rights there but aren't actions and so aren't rights under your definition.

              • (Score: 2) by The Mighty Buzzard on Friday April 27 2018, @01:16AM

                It's not a definition, it's just a fact. If you actually read the constitution and think about why they laid it out how they did, you'll come to the conclusion that they understood this as well. Really think about it yourself and you'll see there's no other way to look at it without misunderstanding the dynamics of the situation.

                --
                My rights don't end where your fear begins.
        • (Score: 2) by Mykl on Thursday April 26 2018, @07:00AM (1 child)

          by Mykl (1112) on Thursday April 26 2018, @07:00AM (#672051)

          Any conceivable action you could either take or refrain from taking is a right

          That definition is so broad as to be useless in a discussion - you may as well just discard the word "right" and use "action".

          It's also wrong. You don't have the innate "right" to kill someone, though you do have the ability to do so. Rights are actually just a reflection of the morals of today. So says Dictionary.com (the authoritative source for Internet arguments!), which defines a Right as:

          A just claim or title, whether legal, prescriptive, or moral: You have a right to say what you please

          Key to this definition is "just", which is defined by the morals of the day. People no longer have the "right" to own slaves, though they once did.

          Of course, you have the right to disagree, but that might take time away from your jerking off to Atlas Shrugged tonight.

          • (Score: 2) by The Mighty Buzzard on Thursday April 26 2018, @11:01AM

            A just claim or title, whether legal, prescriptive, or moral: You have a right to say what you please

            Do please look at that definition again. It says precisely what I've said if you're equipped to understand it. Each and every limitation placed upon the definition of what is a right is self imposed; either by your own mind or by your desire to interact with other people.

            Absent other people, you are the sole arbiter of "just" and "moral", while "legal" makes no sense in this context and "prescriptive" is meaningless in any context. Thus, in this context, your rights have no limits but what you put upon yourself.

            Given a desire to associate with other people, however, I've repeatedly said you're going to need to choose not to exercise quite a lot of rights if you desire interactions to have minimal strife. This is where laws and group morality come in. They do not, however, actually take away your rights; they only impart consequences of exercising them in an anti-social manner. Again, not exercising a right here is utterly self-imposed.

            For day to day use, consider a "right" to be any defined (read: limited set of the infinite whole of) liberty that you refuse prohibition of for whatever reason; a practical use rather than a precise one.

            If you can't understand the fundamental truth of the above, you have my sympathies. Your failure does not affect truth though. It will continue on being truth whether you understand it or no.

            --
            My rights don't end where your fear begins.
      • (Score: 4, Insightful) by Arik on Wednesday April 25 2018, @04:05PM

        by Arik (4543) on Wednesday April 25 2018, @04:05PM (#671670) Journal
        It is in the possession of a few qualities that are fundamental to our existence; we are discrete individuals who are able to communicate with each other and also to understand and anticipate the consequences of our actions, and we have more to gain from coöperation than conflict. Given this, a certain set of ground rules proceeds quite logically and more-or-less obviously. Virtually every society has acknowledged some of the basic values. Don't assault people, don't rape people, don't murder people. Don't force them in general. Instead we do things consensually. If someone has something you want, you don't just go grab it, you have to find something the other person wants more, so you can trade.

        This is kindergarten level stuff in virtually every culture, with differences being minor and cosmetic. Societies that have functioned very well in the past have tended to be the ones that reflected this basic understanding of justice relatively well, and as that ceases to be the case we speak of 'decline and fall.'

        Natural rights is simply a highly abstracted, western-academic codification of those basic kindergarten level rules that every society acknowledges, has to acknowledge to some degree in order to function.
        --
        If laughter is the best medicine, who are the best doctors?
      • (Score: 2) by tangomargarine on Wednesday April 25 2018, @06:01PM

        by tangomargarine (667) on Wednesday April 25 2018, @06:01PM (#671738)

        As with many things in life, it's only a thing because people agreed it was a thing. "We hold these truths to be self-evident..." Obviously you can't "demonstrate" it because it's an abstract principle.

        --
        "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
    • (Score: 5, Informative) by Virindi on Wednesday April 25 2018, @01:06PM (2 children)

      by Virindi (3484) on Wednesday April 25 2018, @01:06PM (#671606)

      Yes but.

      In legal terminology, a "right" is anything you may exercise under the law. A "right" can be created by statute, contract, or be natural. What you are talking about are "natural rights", which is a subset of "rights".

      • (Score: 2) by The Mighty Buzzard on Wednesday April 25 2018, @02:27PM

        Actually, legal rights are a subset of natural rights. Natural rights include any action you could possibly take or refrain from taking while legal rights are those that we have felt the need to spell out as something that other people should be barred from prohibiting you.

        --
        My rights don't end where your fear begins.
      • (Score: 3, Interesting) by Arik on Wednesday April 25 2018, @03:44PM

        by Arik (4543) on Wednesday April 25 2018, @03:44PM (#671661) Journal
        A "right" is not "anything you may exercise." Privileges may be exercised as well, and that's what patents are - privileges established by Congress under constitutional authority, but privileges nonetheless.

        Congress can establish privileges and it can take away privileges.

        Rights are something different. They pre-exist the state both logically and historically. You can repeal all the various murder statutes but murder would still be unlawful for instance. Congress can pass laws that violate, for instance, the first amendment - but they are null and void, "as if they were never written" and completely unenforceable, according to prior precedent. Because Congress does not establish rights, it is only obliged to respect them.

        At least that's the theory on which our system was built. Interesting that not even the supremes themselves seem to remember, or is it care? anymore.
        --
        If laughter is the best medicine, who are the best doctors?
    • (Score: 4, Insightful) by bob_super on Wednesday April 25 2018, @05:23PM (4 children)

      by bob_super (1357) on Wednesday April 25 2018, @05:23PM (#671709)

      > SCOTUS misunderstands what a right is. Why does this not surprise me?

      Because you don't have enough training in law to understand what you're talking about.
      SCOTUS deals with rights every day. Down to the finest minutiae that lower courts could agree on. Are you Dunning-Krugering ?

      SCOTUS just said that the government-granted monopoly - as in: the government will deprive other people of their right to copy your idea - is not a personal right, or property.
      That license to a monopoly is granted by the government, through USPTO. It is transferable and saleable, so owners want to consider it as full-blown property, rightfully protected from seizure by anything but a court, when SCOTUS says it is merely a license.
      It could always be taken away by the courts, but now it officially can be taken away by the same people who grant it.

      • (Score: 2) by The Mighty Buzzard on Wednesday April 25 2018, @05:52PM (3 children)

        Law has nothing to do with rights. Rights existed before law and will exist after every law currently in existence has faded to dust. Our founders understood this, which is why they wrote the constitution as they did; to prohibit the government from infringing specific pre-existing rights rather than enumerating rights affirmatively.

        --
        My rights don't end where your fear begins.
        • (Score: 3, Interesting) by bob_super on Wednesday April 25 2018, @06:00PM (2 children)

          by bob_super (1357) on Wednesday April 25 2018, @06:00PM (#671737)

          Did I point out that this specific clause exists to prevent people from exercising their very natural right to copy ?
          I'm pretty sure "grabbing the same edible fruit" and "putting a similar sharp rock on a stick" long predate any silly notion that you could have a right not to get copied when you have a life-saving idea.

          • (Score: 2) by DannyB on Wednesday April 25 2018, @06:28PM

            by DannyB (5839) Subscriber Badge on Wednesday April 25 2018, @06:28PM (#671767) Journal

            But what about profit?

            Imagine the patent licensing income to the guy (and his heirs) who "invented" fire! (It was an "invention" wasn't it? It would be profitable to license, so therefore it must be an invention!)

            --
            The one who oppresses the poor person insults his Maker, but one who is kind to the needy honors him. Prov 14:31
          • (Score: 2) by The Mighty Buzzard on Wednesday April 25 2018, @06:47PM

            No, you were arguing the other side of it for some reason from my perspective. SCOTUS said it was a "right" of a different kind than they wanted. I said it was not a right at all.

            --
            My rights don't end where your fear begins.
    • (Score: 2) by DannyB on Wednesday April 25 2018, @06:25PM (2 children)

      by DannyB (5839) Subscriber Badge on Wednesday April 25 2018, @06:25PM (#671765) Journal

      God didn't give us inalienable rights to unlimited length patents and copyrights?

      --
      The one who oppresses the poor person insults his Maker, but one who is kind to the needy honors him. Prov 14:31
      • (Score: 3, Funny) by The Mighty Buzzard on Wednesday April 25 2018, @06:48PM (1 child)

        Shit, man, he didn't even give us britches to keep the skeeters off our tender bits.

        --
        My rights don't end where your fear begins.
        • (Score: 2) by DannyB on Wednesday April 25 2018, @08:45PM

          by DannyB (5839) Subscriber Badge on Wednesday April 25 2018, @08:45PM (#671849) Journal

          Then it must not be a right.

          (maybe a wrong or a left)

          Q. Who made the biggest mistake in history?
          A. Noah when he didn't swat the two flies while he had the chance.

          --
          The one who oppresses the poor person insults his Maker, but one who is kind to the needy honors him. Prov 14:31
  • (Score: 4, Interesting) by canopic jug on Wednesday April 25 2018, @01:33PM (2 children)

    by canopic jug (3949) Subscriber Badge on Wednesday April 25 2018, @01:33PM (#671613) Journal

    It looks like they'll have to stop pretending it is property and stop calling it that. The court decided that patents are franchises not property [arstechnica.com]. So now there is further legal proof that anyone using the term "intellectual property" is lying or confused.

    --
    Money is not free speech. Elections should not be auctions.
    • (Score: 0) by Anonymous Coward on Wednesday April 25 2018, @07:00PM (1 child)

      by Anonymous Coward on Wednesday April 25 2018, @07:00PM (#671786)

      Is "patents are not intellectual property, therefore there is no such thing as intellectual property" a fair restatement?

      • (Score: 0) by Anonymous Coward on Thursday April 26 2018, @12:00AM

        by Anonymous Coward on Thursday April 26 2018, @12:00AM (#671955)

        That would still leave trademarks and copyright.

        therefore there is no such thing as intellectual property

        Clearly not a logical conclusion.

        -- OriginalOwner_ [soylentnews.org]

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