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posted by janrinok on Wednesday April 25 2018, @11:02AM   Printer-friendly
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: 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.