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October 23, 2016

Comments

To your last paragraph, I am curious as to why you think that path (convincing Congress to change the law) would be more fruitful?

Do you really think the Voice of the People $howering down into the wallets of Congress (thank you Citizens United) has changed since the AIA? More likely, instead of bread, we will just see more circus.

The more powerful path (in my humble opinion) is to pursue the innate frailty of the IPR - which is only made more frail with the strengthening of the inability to place the separate institution decision (which results in a taking of sticks from the bundle of the granted property right - a taking by a politically controlled body that ALSO happens with no remuneration and substantially harms the property) in an Article III court to review that separate legal action of institution.

Dear Skeptical: my recommendation was only in the context that the Court in Cuozzo made it clear that they believed Congress has spoken and that the constitutional and institutional integrity limitations were the only ones that could be used to get judicial review. I don't see that changing any time soon (just as I don't see the dysfunction in Congress changing either).

Thanks for the comment.

Thanks Dr. Noonan - I did misunderstand your statement then. I thought that you were calling on Congress to make the change rather than your clarified view here that Congress would not make that change any time soon (unless of course, they had to for, say, the law that they wrote is found Unconstitutional).

Mike "While U.S. patents are granted and enforced by the U.S. Federal government, any acts that occur in accordance with a claimed invention are those of the patent owner or its licensee. To the extent that such an entity is a private party, any restriction to communication that might occur due to practicing claims like those of the '610 patent would not be that of the government."

Oh, please. You are contradicting yourself here. The government can't avoid a prior restraint problem merely by granting the right to enjoin public speech along to some private party. Patent infringement is strict liability.

When the government issues a patent claim to, e.g., "A method, comprising communicating information about a cancer correlation, wherein said communication uses a computer configured to request authorization before initiating said communication" that claim turns people engaging in protected speech into infringers. Nobody can tell me (or anyone else) that I can't communicate information about a cancer correlation (or any other fact) using prior art communication technology that I control (by virtue of owning it or renting it). That's why we have a First Amendment.

Now go ahead and tell everyone that "the PTO never grants patents like this." Or better yet: "this a 103 issue". That's a tried and true way of avoiding the subject.

Your claim to "practicing protected speech" misses the issue, as the ability to practice ANY speech (protected or otherwise) outside of the ambit of the utility protected by the patent (novelty and non-obviousness presumed for this argument) remains every bit as possible as was there prior to the grant of the patent.

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