The Case for RESTORE? Injunctions, Patents, and the Future of Innovation

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Welcome to fedsock Forums, a podcast of the Federal Society's
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Practice Groups. I'm Ny kas Merritt, Vice President and Director
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of Practice.
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Groups at the Federal Society.
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become a Federal Society member.
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Today at fedsoc dot org.
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Hello everyone, and welcome to this Federalist Society virtual event.
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My name is Edith Harold and I'm an assistant director
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of Practice Groups with the Federalist Society. Today we're excited
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to be hosting this fedsock Forum called the Case for
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Restore Injunctions, Patents and the Future of Innovation. We're very
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pleased to welcome the honorable andre I Yanku, who will
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be joining us shortly, Professor adomasov Dian Kristin Osanga and
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Chris Storm as our excellent panelists to this discussion today.
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And special thanks to Judge Ryan Holt for moderating this discussion.
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Judge Holt is on the US Court of the Federal
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Claims and is a juris and residence professor of law
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at the University of Akron's School of Law. If you'd
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like to learn more about today's moderator, or speakers. They're
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full can be viewed on our website fedsog dot org.
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Throughout the program, we may turn to the audience for questions,
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So if you have a question, please enter it into
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the Q and A function at the bottom of your
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zoom window, and we'll do our best answer as many
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as we can. And finally, I note that, as always,
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all expressions of opinion are those of our guest speakers
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and not with Federalist Society.
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And with that, Judge Holt, thanks for.
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Joining us today and I'll hand things over to you great.
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Thank you, Edith, very happy to be here, and thank
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you to all of our participants for serving on this
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panel with me. Brief note that Director Yanku will be
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joining in a couple minutes late, so we will add
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him in as he arrives. As Edith noted, we have
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four panelists and the topic of discussion is injunctions patents
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in the future of innovation as it relates to the
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Restore Act. And this is especially interesting to me while
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serving as a judge and a juristen residence professor of law,
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prior careers and academic resulted in a lot of scholarship work,
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and I brought out a couple of my law review
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articles on this, including one on top from a previous
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federal a Federalist Society panel that Professor Ozenga and I
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did back in twenty twenty three that was published in
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the Federal Circuit Bar Journal. So there's lots of other
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reading opportunity for anyone interested as we get things started
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related to the eBay case and injunctions. The Supreme Court's
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Ebab Murky Exchange decision in two thousand and six significantly
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limited inventor's ability to seek injunctive relief. The Restore Patent
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Rights Act, introduced February of twenty twenty five, aims to,
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as the name suggests, restore inventor's ability to seek those
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injunctions for patent infringement. Currently, thirty five USC. Section two
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eighty three, which is the statute responsible for injunctive relief
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in patent infringement cases, states, the following courts have jurisdiction
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of patent infringement cases may grant injunctions in accordance with
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the principles of equity to prevent the violation of any
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right secured by patent on such terms as the court
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deems reasonable. If the Restore Act were to pass, however,
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Section two eighty three would gain a new subsection establishing
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rebuttable presumption of granting permanent injunctive relief. The language would
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read as follows. If in a case under this title,
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the Court enters a final judgment finding infringement of a
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right secured by patent, the patent owner shall be entitled
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to a rebuttable presumption that the Court should grant a
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permanent injunction with respect to that infringing conduct. Senator Kons
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and Senator Cotton introduced the Restore Act in the Senate
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on twenty five February twenty twenty five, which was thereafter
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referred to the Committee on Judiciary. Today, this panel will
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aim to answer how the Restore Act seeks to rebound
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the patent system in favor of property rights. Our panel
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will include Professor Kristin Ozenga of the University of Richmond
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School of Law, Chris Storm, Ip, Legal director at UBER,
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Professor Adam Mossof, Professor of Law at Antonettes Scalia Law School,
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and finally Director former Director Andre Iyanku, currently a partner
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at Sullivan and Cromwell, and former USPTO Director. We have
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a variety of interesting questions for the panelists, but we
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will begin with Professor Kristin Ozanga to share five to
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seven minutes of opening remarks and proceed through the other
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speakers before we get to those questions. As brief introduction
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of Professor Kristin Ozenga, I will note that she currently
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serves as Professor of Law and Associate Dean for Academic
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Affairs at the University of Richmond School of Law, where
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she teaches and writes about intellectual property law and antitrust.
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She's also the Chief policy Counselor at the Inventor's Defense Alliance,
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as well as an active member of the American Intellectual
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Property Law Association. She began her career in law, practicing
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at the Finnigan Henderson Law Firm, where she worked on
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patent prosecution and litigation matters, clerk for Judge Lynn on
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the Court of Appeals for the Federal Circuit, and after clerking,
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entered academia, first at the Chicago Kent College of Law
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and then at the University of Richmond. She has a
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BS degree in biomedical engineering, as well as an electrical
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engineering degree and a jd from the University of Illinois.
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College of Law.
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With that, I'll hand things over to Professor Rosenge for
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five to seven minutes of opening remarks.
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Here we go.
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Thank you, Jejul, and thank you to the Federalist Society
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for putting on this webinar. I am excited to talk
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about injunctions and the Restore Act today. I was honored
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to testify in favor of the Restore Act last December
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before the IP sub Committee of the Senate Judiciary Committee,
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and I am still a very strong proponent of the bill.
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I have many thoughts, but I've been tasked with setting
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the stage for this webinar with some background, including the
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eBay case and how we got to where we are.
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I am sure most of the audience is very familiar
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with the eBay case, but I want to provide a
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quick recap and also highlight a few things that sometimes
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get overlooked or forgotten before eBay. As Judge Holt mentioned,
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patent owners could reliably expect to obtain a permanent injunction
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upon a finding of patent infringement. Studies showed that injunctive
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relief was granted somewhere in the neighborhood of ninety five
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percent of cases or more of Overow two thousand and six.
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In the eBay case, the patent owner, Murk Exchange, was
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an unsuccessful startup that then licenses patented technology to other companies.
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Murk Exchange sued eBay for patent infringement. The court found
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work Exchange as patent was not invalid, EBA did infringe,
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and while the court granted Mark Exchange a substantial damages award,
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it did not issue a permanent injunction because the court
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said Murk Exchange doesn't make anything, it only licenses its technology.
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On appeal, the Federal Circuit affirmed the trial court's validity
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and infringement findings, but reversed the denial of injunct relief
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because the Federal Circuit stamps was absent a good reason
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injunctions should just issue against patent infringement. eBay petitioned for
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a cert at the Supreme Court, seeking to reinstate the
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denial of injunctive relief, so the Supreme Court took the case.
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Very short unanimous opinion stated that categorical denials of injunctive relief,
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which is what the district court did, or automatic grants
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of injunctive relief, which was the Federal circuits practice, we're
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both wrong. Instead, the Supreme Court gave us the now
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familiar four factor test irreparable injury, monetary damages, inadequate balance
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of the hardships public interest, and that would have been fine.
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Well, it may have been fine.
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There are definitely questions about the origin of the four
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factor test, but the real problem is that the eBay
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case spawned to concurring opinions. And before I get to those,
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remember the majority opinion unanimous majority opinion states that no
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categorical grants or denials of injunctive relief should issue. So
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the first concurrence, Robert Scalia and Ginsberg says that while
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automatic grants are not appropriate, from at least the early
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nineteenth century, courts ranted injunctive relief for patent infringement, and
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thus basically said, history suggests that injunctions are the property
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proper remedy for patent infringement.
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Nobody ever pays attention to that opinion.
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The second concurrence, on the other hand, Kennedy, Stevensuter Embryer
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is Weirdly enough, the opinion that is most frequently cited
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is for what eBay stands for is a concurrence. The
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Kennedy opinion suggests that policy considerations, not history, should drive
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whether injunctive relief is available, and notes that sometimes injunctive
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relief shouldn't issue, including cases involving business methods, cases involving
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patent licensing firms or patent trolls for the haters, or
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cases where the patented technology is a small component of
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a larger project product, such as in standardized technology. So
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these are the three boogeymen of modern patent law as
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I like to think of it, business methods, patentrols, and
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standard essential patents or SEPs. And oftentimes these three concerns
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overlap right patent licensing firms sometimes assert business method patents,
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and SEPs are sometimes held by firms that develop and
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primarilyly license their technology, and those are the parties that
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we see getting hurt by the eBay opinion and not
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being able to obtain injunctive relief.
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So I will wrap up with just a few thoughts first.
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As I mentioned, the boogeymen of the Kennedy concurrence are
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generally and often seamlessly woven into the four factor tests
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of the majority, which leads to confused understanding of what
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exactly the Obay opinion says and requires second, Patent licensing
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firms are the ones most often negatively affected by the
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eBay test as it's being applied. And the funny thing
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is the majority opinion in eBay actually calls for going
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in the other direction. Specifically, the majority opinion notes that
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the district court's categorical denial of injunctive relief in eBay
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was intention with Continental Paperbag, which is in nineteen oh
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eight Supreme Court opinion that specifically rejects the argument that
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it wouldn't be equitable to grant injunctions if the patent
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holder wasn't using the patent, which is exactly what the
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argument is with respect to patent licensing firms. Apparently, the
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Kennedy concurrence and the many many cases that have followed
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have missed that particular line of the majority opinion. And then, last,
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I want to highlight the significance of the eBay case. Recall,
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before two thousand and six, permanent injunctions were granted in
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upwards of ninety five percent of cases where patent infringement
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was found. After eBay, empirical studies generally say the numbers
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drop somewhere below seventy five percent, and maybe that doesn't
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feel like a big change, but there are two facts
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behind that number that I think matter. First, my friend
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Christina Acri, who is an economics professor, has done a
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rigorous study and that seventy five percent number is misleading
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because it only captures when there's been a request for injunction.
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It turns out, and I've heard this anecdotally from attorneys,
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so it was nice for profess or Acrey to show
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it empirically.
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Companies are actually not.
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Seeking injunctions at the same rate they were seeking them before,
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which means that that decrease in the number of injunctions
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granted doesn't capture the decrease in actually how many injunctions
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aren't being granted because they aren't being asked for. So
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the seventy five percent number only reflects companies who seek it.
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So injunctive relief is actually being granted in very, very few,
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guer cases than we realize, all because of the eBay opinion.
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And then finally, and second, second, and finally, the lack
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of reliable injunctive relief has led to what some call
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efficient infringement. That's a stupid name. I call it predatory infringement.
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If the worst thing that will happen to you if
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you infringe someone's patent is you'll have to pay damages
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because injunctions won't issue, you might as well infringe first
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and pay later. And that's what some big companies are
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opting to do, and that's why we need the Restore
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Act to stop predatory infringement. And with that I pass
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it back to Judge Holt.
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Thank you, Professor Rosanga, a wonderful summary of the volume
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of stack of legal scholarship by having next to me
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in less than seven minutes. We appreciate that your history
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and background regarding eBay and the Continental paper Bag case
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which is often forgotten, and I'm sure we will come
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back to that for our question and answer period. Moving
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on for our panelists. Second up is Chris Storm, IP
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legal director at Uber, who's speaking us speaking with us
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today in his personal capacity, but he has authored and
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presented academic articles regarding the historical development of American patent
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remedies as well as the intersection of patent remedies with
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technology commercialization. He is currently the IP legal director at Uber,
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where he leads Uber's IP policy initiatives and Uber's IP
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strategy for self driving and other emerging transportation technology. He
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received his BS in Aerospace Engineering and MS in Technology
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Commercialization from the University of Texas at Austin, and is
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jd from the University of Houston Law Center. After law school,
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he worked as an associated at Baker Bots and then
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assistant General counsel for IP at Bell Helicopter. In twenty sixteen,
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Chris joined Uber, where he has since held rules in
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IP and non IP positions, and today he'll be speaking
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with us regarding the congressional and legislative history concerning permanent injunctions.
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With that, Chris, I'll hand things over to you. Thank you,
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and thank you, and thank you for the invitation. It's
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an honor and a pleasure to be with you all today.
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It is a great mistake for anyone to think for
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a moment that the patent boss primarily intended to reward inventors,
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because it is not. It is intended to develop industry
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for the benefit of all the people. I want to
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emphasize that side of it, because after all my years
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in this work, I feel most strongly than ever that
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you're considering this question. Too much attention is sometimes paid
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to the mere matter of the inventor's reward. Of course
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you've got to reward him, that doesn't matter of sound
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public policy. But you also have to protect the public.
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It is a very serious matter to keep the balance
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right in the patent office in the courts between the inventors,
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who must be protected on one hand, public on the other,
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who must have its rights preserved. It is just as
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important that the public should not have to pay more
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than they should as it is that the patent d
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should receive what he ought to have. Now, before anyone
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starts accusing me of aiding patents or anything like that,
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you should know that I was just quoting from Frederick
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Fish's testimony to Congress in nineteen nineteen. At the Times,
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peers called him the Dean of the patent bar. His
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representation of inventers like Alexander Graan Bell, Thomas Edison, and
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the White Brothers was a legendary. He was also a
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tireless advocate for the patent system, leading the charge to
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improve working conditions at the Patent Office, to defeat compulsory
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license proposals, and he even was one of the original
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proposers of a single patent appeals for him. Frederick Fish
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represents pattent industry leadership at its best. He didn't look
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just look out for inventors or his own selfish interests
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as a patent play this attorney, he didn't hide behind
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constitutional rhetoric or property analogies or name calling or whatever. Instead,
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Fish argued why balanced patent laws benefits society. This did
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this because mother hated the patent clause has written gives
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us a populis patent system where powers tested solely in Congress,
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patents exist to serve the public and inventors are left
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exposed to the tyranny of the majority. In fact, the
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very first gone Congress gave us a uniquely American patent
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system built on conservative patent remedies. Unlike the Statute of
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the Monopolies, which did not provide for financial damage to
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law and delegated authority over patent limities to the English courts,
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the seventeen ninety Acts established financial damages as the sole
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remedy for patent infringement. Congress was so committed to illegal
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damages that it kept equitable relief out of the patent
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x with modifying damage's calculations. In seventeen ninety thirty to
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eighteen hundred. Congress even deleted bills of equity from graft
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legislation in seventeen ninety and gave US treble damages in
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seventeen ninety three to discourage repeat infringements without the need
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for injunctor early Now, if you want to understand how
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American policy on patent junctions devolved after seventeen ninety, I
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highly recommend an article written by Andrew Morrison Pregnard titled
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Institutional choice and Interest Groups in the Development of American
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Patent Law. That paper examines how the patent bar emerged
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as a special interest group that used repeat litigation before
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activist judges in the Northeast to advance patent policy positions,
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and then lobby Congress to codify those judicial gangs. The
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early patent industry tried using this same playbook on patent injunctions.
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The Massachusetts Association for the Encouragement of Useful Enbitions petition
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Congress to mandate injunctions in all cases where infringement is proven.
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Congress declined. The next year, Congress considered new legislation stating
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that patents were entitled to injunctive relief, but Congress declined again. Instead,
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Congress gave us the more modest Patent Act of eighteen ninety.
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Now every textualist listening in should appreciate that the eighteen
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nineteen Acts for some principles of equity limitation must have
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had meaning at the time, and that meaning cannot be
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presumed away or deprived of legal effect. Congress included the
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word may both to prevent injunction and to limit when
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they are available. Judicial destruction were cited by the statute, meanwhile,
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only applied to the terms of the injunction, not to
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its availability. Finally, the principles of equity standard had nothing
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to do with federalism and jurisdictional issues, because the eighteen
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nineteen Act addressed jurisdiction and moved an entirely different clause
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than the one that limited when patents when courts can
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award injunctions. Now we're gonna talk about EBA today. We
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can quibble about eBay all we want, but Justice Thomas's
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unanimous opinion gave us the most accurate statutory construction of
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the eighteen nineteen Act that has been proposed to date.
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Roberts and Kennedy also reinforced key aspects of equity practice
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that would have been known to Congress in eighteen nineteen,
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and their concurrences agree with each other far more than
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they supposedly conflict, and the net effect of all three
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opinion says to bring patent cases closer to what Congress
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intended financial damages as the general rule, and injunctor of
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relief in extraordinary cases. And for years, Congress has repeatedly
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tried to defend its policy on patent injuncts fire, rejecting
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proposals like restore. It did so in eighteen sixty, eighteen
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seventy seven, eighteen seventy nine, eighteen ninety four, nineteen nine, thirty,
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nineteen oh six. The list goes off. Lawmakers even declined
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to liberalize and access to injunctive relief when the issue
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came up in committee. Here is throughout history. For example,
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in nineteen forty six, Congress took inspiration from a Federate
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Fish Fledter authored nineteen twenty nine, and decided to amend
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Section forty nine twenty one to eliminate all forms of
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profit esforcement, including the areasonableyalthy estimation. Although House Committee members
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dissessed the fact that injunctions were far from automatic under
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current law. They decided not to touch the principle of
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equity limitation when they admitted Section forty nine twenty one
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the fourteenth nineteen forty six Act in the related nineteen
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sixty four Supreme Court decision or a manufacturing are actually
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soil good law today, even though the Federal Circuit doesn't
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quote either when in reagionable woryalty cases. I bring this
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up because the eighteen nineteen Acts in the nineteen forty
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six Act together illustrate how Congress once remedies tethered to
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the pas and owns actual injuries. If you want more
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than nominal damages, you're expecting to explain how the defendants
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infringement caused you harm or why you're actually worse off
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now compared to what your position would have been if
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the infringement had not occurred. Remember, you cannot have your
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ruppelable harm without actual harm, and you can't determine whether
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damage is or adequate to compensate for the injury under
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section two eighty four or inadequate under section two eighty
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three if you don't even know what the injury is.
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Concress thought this one right. The principles of equity in
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the injury in factor requirement protect inventors from harm without
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unduly taxing innovators for their success. Restore undermines this bouts
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by directing courts that disci like the cases based on
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counterfactual presumptions rather than the actual facts presented by the parties.
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Although this probably sounds great if you're a patent lawyer,
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I believe it's bad news for inventor innovators and bad
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news for the public.
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Great.
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Thank you Chris your comments, and I suspect.
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That we'll have a lively Q and a afterwards next
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up in the panel to well to basically Rebut what
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Chris was mentioning is Professor Adam Mossov, who is no
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stranger to injunction discussions. He is a professor of law
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at the Antonin Scalia Law School at George Mason University,
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currently serves as well as the chair of the Forum
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for Intellectual Property and a Senior Fellow at the Hudson
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Institute and a Visiting Intellectual Property Fellow at the Heritage Foundation.
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He graduated with honors from the University of Chicago Law
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School and served as a research assistant to Professor Richard
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Epstein receiving a Bradley Governance Fellowship.
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Following law school, he was a.
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John Olin Fellow in Law and a visiting lecturer at
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Northwestern University. Clerked for the Honorable Jock Sweener of the
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US Court of Appeals for the Fifth Circuit. He's testified
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now seven times before the Senate and the House of
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Representatives on proposed patent legislation. Professor Mossof's recent zollowship is
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focused on patent injunctions, which is perfect for today's panel,
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and his scholarship also includes the intersection of patents and pharmaceuticals,
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standard essential patents, copyright of computer code, and much more.
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And with that, Professor Mossov.
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Thank you, Jed Holten, it's a real pleasure to be
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here and enjoy the presentations so far.
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So I'm going to be.
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Addressing some of the historical issues which are important, and
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the history is deeply relevant because, as Kristen described, the
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deba opinion is incredibly short. The majority opinion, the unanoist opinion,
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and its entire justification, its entire justification for the four
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factory test is that this four factory test is and
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this is the language from the debate.
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Majority opinion is.
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Historically employed the forour factory test is represents well established
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principles that must be satisfied by a patent owner and
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seeking any actually any litic gate in seeking an injunction,
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and represents a quote long tradition end quote of equity practice.
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And I got interest in this because I also teach remedies,
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and I write in remedies scholarship and law and remedy
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scholars who don't have a dog in the patent law debates,
395
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either legal debates or policy debates. They couldn't care less
396
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about patents. Frankly went apoplectic over eBay. Prominent remedy scholars
397
00:22:20.519 --> 00:22:22.960
said there's no such thing as a for factor test.
398
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They've referred to eBay using words like it is a
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cancer spreading through the legal.
400
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System, and things of this sort.
401
00:22:30.079 --> 00:22:33.640
Normally you know stayed you know, academic scholars studying history
402
00:22:33.680 --> 00:22:34.640
of equity and law.
403
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You know, it's pretty strong language. And I got interest in.
404
00:22:37.799 --> 00:22:39.880
This because I said, well, maybe there was an exception
405
00:22:39.920 --> 00:22:44.119
in patlow cases. Maybe there was an exception in the
406
00:22:44.200 --> 00:22:46.759
cases being decided by courts and patent law that they
407
00:22:46.759 --> 00:22:50.640
were applying a for factor test. There there were no
408
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far other forur factory tests or just traditionally historically in
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other areas of law. And I have been doing a
410
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lot of historical scholarship and a lot of historical scholarship
411
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addressing some of the claims made by Cris. These are
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long sending claims that have been made in academic scholarship
413
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for several decades, and I have been right, and I
414
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have had since in previous work had read all of
415
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the patent decisions in the early nineteenth century, eighteenth century,
416
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late eighteenth century written on the attached monopolies and things
417
00:23:15.319 --> 00:23:18.240
of the sort, and showing the evolution of patents in
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the United States actually as a property right system and
419
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as a private property right system, primarily as adjudicated through
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courts and through private law doctrines. So I went and
421
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reread all of the patent decisions that I have from
422
00:23:32.359 --> 00:23:35.359
the Federal Cases Reporter from seventeen ninety to eighteen eighty two.
423
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It's about fifteen hundred of them. I'd read them before
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from my prior historical scholarship, but this time I was
425
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reading them for the remedies analysis. This resulted in Senator
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Chris Kruns telling me at the last time I testified
427
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before the Senate IP Subcommittee on this issue that I quote,
428
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need to get out more often. I responded that, well,
429
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this is how you know you're doing exactly what you
430
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should be doing.
431
00:24:00.079 --> 00:24:01.759
This is the type of stuff that you enjoyed doing.
432
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So there's a so I read and I and I
433
00:24:04.240 --> 00:24:06.920
created a database of the time, you know, of how
434
00:24:06.920 --> 00:24:09.960
often the pan owners requested injunctions and how often they're
435
00:24:09.960 --> 00:24:12.440
issued injunctions, and when they were in law and when
436
00:24:12.440 --> 00:24:15.240
they were inequity and things of this sort. And what
437
00:24:15.319 --> 00:24:18.279
you have is a situation where there are six hundred
438
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and four total cases where PAN owners sued in equity.
439
00:24:21.880 --> 00:24:24.400
I mean, because equity was a different court system back then.
440
00:24:24.400 --> 00:24:26.680
You actually had to have a justification to get to equity.
441
00:24:27.880 --> 00:24:34.440
And of these you had in four hundred and forty
442
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three cases where a patent was found to be valid
443
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because the equity court held the entire hearing, so they
444
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heard the claims by the defendant that the pad was invalid,
445
00:24:43.599 --> 00:24:45.799
and they also heard the arguments by the defendant that
446
00:24:45.880 --> 00:24:48.640
they had not infringed. So you had to so you
447
00:24:48.680 --> 00:24:50.799
had to control for that. So the cases in which
448
00:24:50.839 --> 00:24:54.599
the courts found patent two have survivalidity challenges and to
449
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be have have been fringed. I found that the I
450
00:24:57.640 --> 00:25:00.680
found that the courts granted injunctions at ninety one point
451
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two percent. So so four hundred and four cases courts
452
00:25:05.400 --> 00:25:08.039
granted a permanent injunction and.
453
00:25:09.599 --> 00:25:10.079
Very rare.
454
00:25:10.119 --> 00:25:12.039
Actually did I find the kind of what we now
455
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think of as quote to the classical equitable factors being deployed.
456
00:25:16.440 --> 00:25:18.799
I only found balance of hardship being arguedent in thirty
457
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two cases, public interest being acknowledged in four cases, unclean
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00:25:22.839 --> 00:25:26.160
hands in three cases, stopple in three cases, and latches
459
00:25:26.160 --> 00:25:29.680
in fifteen cases. So it shows you how significant that
460
00:25:29.720 --> 00:25:32.960
the courts took this attitude towards issuing injunctions. This is
461
00:25:33.000 --> 00:25:35.359
all detailed in my forthcoming article in the Harvard Journal
462
00:25:35.480 --> 00:25:40.119
Law and Technology called Conjunctions for Patent Infringement. And I
463
00:25:40.160 --> 00:25:43.680
also though found so therefore you know, I found a
464
00:25:43.720 --> 00:25:47.400
significant rate of injunctions issuing. But more importantly, how many
465
00:25:47.440 --> 00:25:49.480
times did I find the court supplying a four factor
466
00:25:49.559 --> 00:25:54.799
test zero in four hundred and four cases, actually, in
467
00:25:54.880 --> 00:25:58.599
six hundred and four cases where there are assessing injunctions,
468
00:25:58.720 --> 00:26:02.039
zero time that the courts applied to for a factory
469
00:26:02.119 --> 00:26:05.240
test confirming what remedy scholars have been saying in patent
470
00:26:05.279 --> 00:26:06.400
law that there is no such.
471
00:26:06.279 --> 00:26:07.559
Thing as a for factor test.
472
00:26:07.799 --> 00:26:10.039
And it also confirms a lot of aspects of what
473
00:26:10.240 --> 00:26:12.519
remedy scholars have said more generally, which is true that
474
00:26:12.599 --> 00:26:16.200
the four factory test is conceptually incoherent. Irreparable injury and
475
00:26:16.240 --> 00:26:19.039
remedy of laws inadequate are the same thing. These were
476
00:26:19.160 --> 00:26:22.559
jurisdictional requirements, They were terms of art. They weren't generalized,
477
00:26:22.599 --> 00:26:24.839
equitable inquiries about whether you were harmed or not.
478
00:26:25.160 --> 00:26:28.079
It was related to issues like is the harm continuing?
479
00:26:28.640 --> 00:26:28.839
Well?
480
00:26:29.160 --> 00:26:29.640
Is the harm?
481
00:26:30.079 --> 00:26:32.519
Is this a unique asset that is not difficult to
482
00:26:32.519 --> 00:26:35.160
assess damages for in things of that sort. These are
483
00:26:35.160 --> 00:26:38.279
classic terms of our phrases that we have in the law,
484
00:26:38.359 --> 00:26:39.400
especially in equity.
485
00:26:39.799 --> 00:26:41.559
And this is what was being deployed.
486
00:26:41.559 --> 00:26:44.680
And since patent infringement is inherently a continuing act, it's
487
00:26:44.680 --> 00:26:48.839
a commercial act. They're constantly manufacturing, they're constantly selling, then
488
00:26:48.960 --> 00:26:51.880
this is why patent owners were permitted actually to obtain injunctions.
489
00:26:52.079 --> 00:26:53.799
It's actually, while Chris is correct that.
490
00:26:53.680 --> 00:26:56.599
Injunctions were not provided for in the seventeen ninety and
491
00:26:56.599 --> 00:26:59.400
seventeen ninety three pen apps. It's actually untrue that injunctions
492
00:26:59.440 --> 00:27:02.440
in an issue. You could still get injunctions through diversity
493
00:27:02.519 --> 00:27:06.000
jurisdiction under the general equitable powers granted under Article three,
494
00:27:06.079 --> 00:27:08.720
and patent injunctions did issue because most patent cases were
495
00:27:08.720 --> 00:27:12.039
diversity cases. So the eighteen nineteen Act is largely just
496
00:27:12.079 --> 00:27:15.920
a declaratory act where Congress was actually settling that you
497
00:27:15.920 --> 00:27:18.759
could in fact get this right because actually the concerns
498
00:27:18.799 --> 00:27:22.160
underlying the seventeen ninety AFT words in fact that were
499
00:27:22.200 --> 00:27:27.440
more federalism concerns and concerns about federal courts interfering directly
500
00:27:27.480 --> 00:27:31.240
within internal state affairs with respect to internal matters that
501
00:27:32.079 --> 00:27:38.839
largely interstate issues didn't address. So more broadly, the reality
502
00:27:38.960 --> 00:27:42.920
is that patents were actually recognized, and I actually found
503
00:27:43.119 --> 00:27:47.799
significant more recognition of patents as property rights. Recognized in fact,
504
00:27:47.839 --> 00:27:50.599
is being protected as property rights through private law doctrines
505
00:27:50.640 --> 00:27:54.920
like injunctions, damages, and other types of activities, through regular
506
00:27:54.960 --> 00:27:58.559
courts and through regular court processes. In fact, pat owners
507
00:27:58.559 --> 00:28:02.200
were provided special the same type of special treatment as
508
00:28:02.400 --> 00:28:05.200
property owners in real estate and being able to immediately
509
00:28:05.240 --> 00:28:10.039
sue in inequity court, not having to go through a
510
00:28:10.119 --> 00:28:14.400
legal process first approved that their legal that their damages
511
00:28:14.440 --> 00:28:17.039
at law was UH and their remedy at law was
512
00:28:17.039 --> 00:28:21.119
irreparable because it was recognized as being inherent in the
513
00:28:21.200 --> 00:28:23.519
narature of the Act. And so what you had is
514
00:28:23.519 --> 00:28:26.240
exactly what the is what you had being deployed by
515
00:28:26.279 --> 00:28:29.880
the courts historically, according to the long history and long
516
00:28:29.920 --> 00:28:33.880
tradition of equity has claimed in an eBay is a
517
00:28:34.079 --> 00:28:37.839
rebuttable presumption of an injunction upon a finding of continuing
518
00:28:37.880 --> 00:28:40.279
infringement of the valid patent right. And the same way
519
00:28:40.279 --> 00:28:43.240
that you had a rebuttable presumption of an injunction for
520
00:28:43.319 --> 00:28:47.759
continuing infringements of any property rights and any other in
521
00:28:47.839 --> 00:28:55.039
any other lawsuit brought or petition brought inequity. Thank you,
522
00:28:55.119 --> 00:28:57.599
and I think we would we would rather have kind
523
00:28:57.640 --> 00:29:01.000
of more further discussions about you know, and I would
524
00:29:01.000 --> 00:29:03.519
like to hear from Director Iyankus. So I'm going to
525
00:29:03.559 --> 00:29:06.880
invent you my time any other time for further discussion.
526
00:29:07.240 --> 00:29:07.839
Thank you, Adam.
527
00:29:07.880 --> 00:29:11.680
And actually before we move on from the historical historical notes,
528
00:29:12.039 --> 00:29:14.160
I just wanted to go back to Chris since there
529
00:29:14.200 --> 00:29:17.119
was a question that came from the audience, and I
530
00:29:17.119 --> 00:29:20.400
think Professor Mossov addressed this. But Chris, just to clarify
531
00:29:20.599 --> 00:29:24.720
on what you mentioned prior to eighteen nineteen, you're not
532
00:29:24.759 --> 00:29:28.240
suggesting that courts did not award injunctions in patent cases.
533
00:29:28.240 --> 00:29:32.839
Correct. Correct, the courts awarded injunctions in patent cases, they
534
00:29:32.839 --> 00:29:36.000
did not have the authority to do so from Congress.
535
00:29:36.519 --> 00:29:39.680
The Judiciary of the Judiciary Act was used as an
536
00:29:39.759 --> 00:29:43.400
end round of the remedies that Congress set in seventeen
537
00:29:43.480 --> 00:29:46.039
ninety but doesn't mean that they were supposed to do that.
538
00:29:46.680 --> 00:29:49.680
And if you look, it doesn't make sense that Congress
539
00:29:49.720 --> 00:29:52.880
would have permitted injunctions because it doesn't explain why did
540
00:29:52.920 --> 00:29:57.720
we get trouble damages in seventeen ninety three, Why did
541
00:29:58.319 --> 00:30:03.160
Congress keep resolved the jurisdictional issue in seventeen ninety three?
542
00:30:03.440 --> 00:30:08.319
After Joseph Barnes called this out in his very influential
543
00:30:08.799 --> 00:30:12.920
treatise in seventeen ninety two. Why did the eighteen nineteen Act,
544
00:30:13.200 --> 00:30:14.519
Why was it written the way it was?
545
00:30:14.680 --> 00:30:14.880
Right?
546
00:30:16.640 --> 00:30:19.680
This is a pattern that was occurring at the time.
547
00:30:19.720 --> 00:30:22.160
Scholar Stuff identified this pattern in other areas of law
548
00:30:22.200 --> 00:30:25.799
outside of remedies, where judges were looking the English law,
549
00:30:26.079 --> 00:30:29.119
they just assumed that the Patent Act as a whole
550
00:30:29.680 --> 00:30:32.400
was merely restating what was happening in England and that
551
00:30:32.480 --> 00:30:35.480
English sports were the priority. But they weren't looking at
552
00:30:35.480 --> 00:30:39.839
the differences between the statue of monopolies and the balance
553
00:30:39.880 --> 00:30:43.480
that Congress crafting for Americans. And so when you look
554
00:30:43.519 --> 00:30:46.079
at these cases, if they're not citing the statue, if
555
00:30:46.079 --> 00:30:49.359
they're not trying to apply what Congress was saying, Yes,
556
00:30:49.480 --> 00:30:51.839
the numbers work out that way, but it doesn't mean
557
00:30:51.880 --> 00:30:55.599
that we should embrace what those activist judges were saying
558
00:30:55.960 --> 00:30:57.799
over what Congress decided at the time.
559
00:30:58.960 --> 00:31:02.720
Okayvoting Chief Justice Roberts in his concurrence on eBay, A
560
00:31:02.720 --> 00:31:05.559
page of history is worth a volume of logic. I
561
00:31:05.599 --> 00:31:09.480
just wanted to clarify from a historical perspective that injunctions
562
00:31:09.880 --> 00:31:13.880
were issuing in courts for patent cases starting with the
563
00:31:13.920 --> 00:31:17.519
original patent nect and Professor Mossov, just to clarify your
564
00:31:17.599 --> 00:31:22.119
notes empirically looking at those historical patent cases, injunctions were
565
00:31:22.160 --> 00:31:25.359
actually issuing, perhaps more often in the early patent cases.
566
00:31:25.440 --> 00:31:26.000
Is that correct?
567
00:31:27.000 --> 00:31:27.920
They are?
568
00:31:28.960 --> 00:31:29.160
Yeah?
569
00:31:29.200 --> 00:31:31.640
I mean well, I mean they're issuing, you know, on
570
00:31:31.720 --> 00:31:33.759
a finding of infringement of a valid that and over
571
00:31:34.119 --> 00:31:38.799
ninety one percent of cases. And I have to say,
572
00:31:38.799 --> 00:31:40.400
and like I said, I've spent a lot of time
573
00:31:40.440 --> 00:31:44.200
studying the history. And while there were yes, judges citing
574
00:31:44.240 --> 00:31:48.359
to the statue monopolies, and they were citing, and there
575
00:31:48.359 --> 00:31:50.960
were and there were claims that we were following statue monopolies,
576
00:31:51.039 --> 00:31:52.960
there is just as much and if not more so,
577
00:31:53.079 --> 00:31:56.000
because there's always minority and majority rule approaches of things.
578
00:31:56.279 --> 00:31:59.799
The judges actually pointing out these significant differences between the
579
00:31:59.880 --> 00:32:02.039
u u S and England, and that we were not
580
00:32:02.160 --> 00:32:05.319
modeling ourselves after the Statute of monopolies. For instance, if
581
00:32:05.359 --> 00:32:07.720
we were, we would have first off, the statue monopolies
582
00:32:07.759 --> 00:32:09.960
is a limitation on the executive authority. If we were
583
00:32:10.000 --> 00:32:12.880
following English model, then then patents would have been put
584
00:32:12.920 --> 00:32:16.279
in Article one, not UH. And I'm sorry, in our yeah,
585
00:32:16.359 --> 00:32:20.079
article article two not an Article one. In the people's
586
00:32:20.119 --> 00:32:24.160
representatives and as a delegated power to the Congress as
587
00:32:24.200 --> 00:32:28.279
a representative of the people to secure their rights and
588
00:32:28.279 --> 00:32:32.799
and also many other differences such as the protection of
589
00:32:32.839 --> 00:32:35.640
the rights to tou to transfer them and to and
590
00:32:35.759 --> 00:32:39.079
to license and to UH and to profit in the
591
00:32:39.119 --> 00:32:42.160
marketplace through lots of different traditional mechanisms which you were
592
00:32:42.160 --> 00:32:45.240
actually prohibited from doing because in England, patents were a
593
00:32:45.359 --> 00:32:48.440
special privilege grant to you from the Crown personally, and
594
00:32:48.480 --> 00:32:50.480
so you weren't allowed to transfer. It wasn't to property
595
00:32:50.519 --> 00:32:53.400
right in that sense, and therefore you had and therefore
596
00:32:53.440 --> 00:32:57.039
you you had to work with other people pound owners
597
00:32:57.039 --> 00:33:00.400
could imediately transfer and their interests. And in those cases,
598
00:33:00.400 --> 00:33:03.839
in many of the cases, the courts relied upon incited
599
00:33:03.880 --> 00:33:06.559
to real property cases. In fact, our terms licenses and
600
00:33:06.559 --> 00:33:09.319
assignments that we haven't that law comes from common law
601
00:33:09.720 --> 00:33:12.240
real property doctrine. These are the terms for how you
602
00:33:12.279 --> 00:33:15.440
commercialized and transferred your interests. I also teach first year
603
00:33:15.480 --> 00:33:17.319
property and these are the concepts that I teach to
604
00:33:17.359 --> 00:33:21.160
my first year property students. So I appreciate that Chris
605
00:33:21.200 --> 00:33:23.640
is identifying the fact that there are some people in
606
00:33:23.720 --> 00:33:26.000
history that talk about the issues that he's talking about,
607
00:33:26.000 --> 00:33:28.400
which is true. But the reality is that you know, yes,
608
00:33:28.440 --> 00:33:30.200
I mean, as in all things in law, theres could
609
00:33:30.240 --> 00:33:32.319
contest contested views, and you have to look at what
610
00:33:32.400 --> 00:33:35.160
was actually the dominant doctrine that was applied, and the
611
00:33:35.160 --> 00:33:37.960
dominant doctrine that was applied was not what Chris is identifying.
612
00:33:38.359 --> 00:33:40.200
And I would point to people in my who cares
613
00:33:40.200 --> 00:33:43.160
what Thomas Jefferson thought about patents article as well as
614
00:33:43.240 --> 00:33:45.279
my as well as my injunction function piece where I
615
00:33:45.279 --> 00:33:47.960
actually detail and I talked about the eighteen nineteen Act
616
00:33:47.960 --> 00:33:50.720
and how it's and how it reflects the declaratory Act
617
00:33:50.720 --> 00:33:53.599
that Congress. The type of declaratory act, not not the
618
00:33:53.640 --> 00:33:56.319
type of creation of a property interest, but a declaratory
619
00:33:56.319 --> 00:33:58.880
act itself, not the creation of a remedy act, remedial
620
00:33:58.920 --> 00:34:01.880
act that you would expect to see from Congress. Great,
621
00:34:02.119 --> 00:34:04.599
thank you, Now we'll turn it over to Director Yanku.
622
00:34:05.039 --> 00:34:06.119
Absolutely so Yeah.
623
00:34:06.160 --> 00:34:09.960
Moving from the eighteenth century on through the nineteenth, twentieth
624
00:34:10.000 --> 00:34:14.039
and into the twenty first century, we have Director andre Iancu,
625
00:34:14.400 --> 00:34:18.320
currently partner at Sullivan and Cromwell, former director of the USPTO.
626
00:34:19.199 --> 00:34:22.320
He's a triple UCLA graduate, earning a Bachelor of Science
627
00:34:22.360 --> 00:34:26.320
degree in aerospace engineering, master's degree in mechanical engineering, and
628
00:34:26.440 --> 00:34:32.079
Juris Doctor. After law school, Honorable Director Yanku joined the
629
00:34:32.159 --> 00:34:34.519
law firm of Irell and Manella, where he was promoted
630
00:34:34.519 --> 00:34:37.000
to partnership and served as the managing partner of the
631
00:34:37.039 --> 00:34:41.159
firm for over six years. He was confirmed as the
632
00:34:41.280 --> 00:34:45.639
director of the PTO ninety four to zero in February
633
00:34:45.679 --> 00:34:48.599
of twenty eighteen and remain there until January of twenty
634
00:34:48.599 --> 00:34:51.719
twenty one. Today, in addition to being a partner at
635
00:34:51.719 --> 00:34:56.000
Sullivan and Cromwell, Andre serves as the co founder and
636
00:34:56.079 --> 00:35:00.440
senior advisor of the Renewing American Innovation and the Center
637
00:35:00.559 --> 00:35:04.280
for Strategic and International Studies. He's also co founder and
638
00:35:04.320 --> 00:35:07.239
chairman of the board for the Council for Innovation Promotion,
639
00:35:07.679 --> 00:35:11.559
which is also known as C four IP bipartisan coalition
640
00:35:12.039 --> 00:35:15.840
led in part by former federal judges and USPTO directors,
641
00:35:16.280 --> 00:35:20.000
dedicated to promoting strong and effective intellectual property rights that
642
00:35:20.119 --> 00:35:24.960
drive innovation, boost economic competitiveness, and improve lives. With that,
643
00:35:25.079 --> 00:35:27.320
we'll hand things over to Andre.
644
00:35:28.920 --> 00:35:29.199
Great.
645
00:35:29.920 --> 00:35:30.880
Thank you, just Holt.
646
00:35:31.320 --> 00:35:34.960
Great to be with all of you fabulous panelists and
647
00:35:35.199 --> 00:35:38.519
the audience, and to the Federal Society for putting this on.
648
00:35:39.840 --> 00:35:42.119
Don't know if I can compete with the depth of
649
00:35:42.199 --> 00:35:50.039
academic thoughts from Chris and Adam and Kristen, but especially
650
00:35:50.599 --> 00:35:53.760
going back to the eighteenth century. But we'll do my
651
00:35:53.840 --> 00:35:58.079
best and we'll talk a bit about where things stand
652
00:35:58.199 --> 00:36:04.199
now in the administrator and Congress. First to respond to
653
00:36:04.239 --> 00:36:08.519
a point about Congress not having legislated on this issue
654
00:36:08.599 --> 00:36:15.000
from the beginning of the Patent Act in the end
655
00:36:15.079 --> 00:36:20.360
of the eighteenth century. Again, I'm not an academic, but
656
00:36:22.079 --> 00:36:26.280
I'm not sure that Congressional action was needed at the time.
657
00:36:26.400 --> 00:36:35.920
I mean, the Constitution gives Congress the power in Article one,
658
00:36:36.039 --> 00:36:40.199
Section eight, Clause eight, right to promote the progress of
659
00:36:40.280 --> 00:36:44.360
science and useful arts by securing for limited times to
660
00:36:44.440 --> 00:36:48.599
authors and inventors the exclusive right to their respective writings
661
00:36:49.320 --> 00:36:53.320
and discoveries. So it gives Congress that power, and then
662
00:36:53.559 --> 00:36:56.760
Congress establishes the Patent Act of seventeen ninety and then
663
00:36:56.800 --> 00:37:01.079
seventy ninety three. It seems to be an inherent in
664
00:37:01.760 --> 00:37:05.760
the Constitutional grant and then the Patent.
665
00:37:05.440 --> 00:37:09.159
Act itself that they are exclusive rights.
666
00:37:09.639 --> 00:37:13.920
And I don't personally, I've never understood, and this is
667
00:37:13.960 --> 00:37:19.760
something I don't understand from some of the more recent
668
00:37:19.800 --> 00:37:23.800
Core decisions since eBay. I've never quite understood how you
669
00:37:23.880 --> 00:37:29.920
can practically enforce an exclusive right with non exclusive remedies.
670
00:37:31.320 --> 00:37:34.960
And you can get you know, we can get academic
671
00:37:35.079 --> 00:37:36.679
and obviously.
672
00:37:36.320 --> 00:37:41.519
There are ways to, you know, justify all of this.
673
00:37:42.360 --> 00:37:48.440
But at bottom, if you just ask common legislators who
674
00:37:48.480 --> 00:37:52.079
are not steeped into these issues, or common folks who
675
00:37:52.199 --> 00:37:58.000
are just asked about what is a patent, the first
676
00:37:58.039 --> 00:37:59.920
thing he comes to mind is the right to ex
677
00:38:01.320 --> 00:38:04.119
just like what does it mean to have a house?
678
00:38:04.719 --> 00:38:07.199
What does it mean to have owned land? What does
679
00:38:07.199 --> 00:38:10.880
it mean to own property of any kind? The first
680
00:38:10.920 --> 00:38:12.920
answer is I have the right to put a fence
681
00:38:12.960 --> 00:38:14.920
around it and keep you out, whether I'm in it
682
00:38:15.039 --> 00:38:19.079
or not. And I think that's the natural understanding of
683
00:38:19.440 --> 00:38:22.920
the word's exclusive right in the Constitution itself. And I
684
00:38:22.960 --> 00:38:26.320
don't know that you need a positive articulation for Congress.
685
00:38:26.360 --> 00:38:29.000
Once you've said the exclusive right, that you need more
686
00:38:29.280 --> 00:38:29.960
to say. Yeah.
687
00:38:30.000 --> 00:38:32.440
And by the way, by exclusive right, we mean injunctions
688
00:38:32.440 --> 00:38:37.519
and not just money damages. Now, of course, if courts
689
00:38:37.559 --> 00:38:41.840
begin to deny injunctions for one reason or not, or
690
00:38:41.920 --> 00:38:45.880
there might be you know, other reasoning behind it, then
691
00:38:45.920 --> 00:38:52.039
you probably need legislation. And that's basically where we are today.
692
00:38:53.239 --> 00:38:59.400
And the obviously we've heard from Professor Rosena about the
693
00:38:59.400 --> 00:39:03.599
Ebak and then all the history since the eBay case,
694
00:39:05.119 --> 00:39:09.760
and the question now comes. Does Congress have to come
695
00:39:09.840 --> 00:39:14.760
back and legislate to overrule.
696
00:39:15.679 --> 00:39:20.440
This judicial development in the last twenty years or so where.
697
00:39:20.920 --> 00:39:25.320
Courts believe that they can enforce exclusive rights with non
698
00:39:25.360 --> 00:39:32.039
exclusive remedies. And indeed, Congress has a bill. It's bipartisan
699
00:39:32.119 --> 00:39:37.079
and b camera. It's called the Restore Patent Sact and
700
00:39:37.840 --> 00:39:41.880
was introduced in the last Congress. It's been reintroduced just
701
00:39:42.000 --> 00:39:46.159
recently in this Congress again in both chambers of Congress,
702
00:39:46.199 --> 00:39:50.360
and it's a waiting for the right action and it's
703
00:39:50.559 --> 00:39:54.039
a simple bill. It's a one sentence bill that effectively
704
00:39:54.199 --> 00:40:00.480
just says that if a patent owner approves that patent's
705
00:40:00.519 --> 00:40:04.880
been infringed, it shall be entitled to a presumption that
706
00:40:05.039 --> 00:40:09.039
an injunction should issue from.
707
00:40:09.079 --> 00:40:14.800
That from that finding of patent infringement. Doesn't mean it's automatic.
708
00:40:14.920 --> 00:40:17.599
It's ultimately still an equitable right.
709
00:40:17.760 --> 00:40:25.360
That's always been the case, as Professor Massof indicated. But nevertheless,
710
00:40:25.519 --> 00:40:29.239
a presumption exists that hey, it's your property, right, somebody
711
00:40:29.280 --> 00:40:33.960
stresspassing on it, you have the right presumptively to exclude
712
00:40:33.960 --> 00:40:37.800
them unless there are exigen circumstances of one for one
713
00:40:37.840 --> 00:40:39.239
reason or another.
714
00:40:40.000 --> 00:40:45.400
So what is the administrative view on this so far, for.
715
00:40:45.440 --> 00:40:50.880
Many years since the eBay decision, the administration of that's
716
00:40:51.199 --> 00:40:56.320
you know, under the leadership of both parties, has been
717
00:40:56.440 --> 00:41:03.440
rather silent on this issue. But it so happens that
718
00:41:04.599 --> 00:41:11.000
in this administration, uh, there is this administration has taken
719
00:41:11.039 --> 00:41:15.800
a position on injunctive relief very recently, just a few
720
00:41:15.800 --> 00:41:22.599
weeks ago, not on the Restore Patents Act per se, but.
721
00:41:24.239 --> 00:41:26.840
But in a particular case called Radian v.
722
00:41:27.039 --> 00:41:32.719
Samsung Electronics in the Eastern District of Texas, where the
723
00:41:32.840 --> 00:41:40.920
plaintiff Radian is actually a non practicing entity, has patents
724
00:41:40.920 --> 00:41:43.639
but is not actually practicing those patents at the moment,
725
00:41:45.679 --> 00:41:49.920
and is actually asking for a preliminary injunction as a
726
00:41:49.920 --> 00:41:53.800
matter of fact, and the Department of Justice, in combination
727
00:41:54.000 --> 00:41:56.639
with the US Patent and Trademark off is put in
728
00:41:56.639 --> 00:41:58.559
a brief a statement of interest.
729
00:41:59.559 --> 00:42:04.159
Saying that, uh.
730
00:42:03.280 --> 00:42:10.519
Basically, to summarize a fairly lengthy brief, that uh that
731
00:42:10.519 --> 00:42:14.320
that injunct, that that the injunctive relief, especially at the
732
00:42:14.320 --> 00:42:17.599
preliminary stage, but it applies to permanent injunctions as well,
733
00:42:18.480 --> 00:42:22.679
are appropriate remedies even where the plaintiff is a non
734
00:42:22.800 --> 00:42:30.000
practicing entity. Again, the statement of interest accepts the that
735
00:42:30.000 --> 00:42:32.360
this is an equable remedy and that it's a balance
736
00:42:32.480 --> 00:42:41.559
of factors, but ultimately it recognizes that money damages is most.
737
00:42:41.400 --> 00:42:44.000
Often not sufficient.
738
00:42:45.039 --> 00:42:48.360
To discharge an exclusive right or to enforce an exclusive right,
739
00:42:49.000 --> 00:42:53.400
even if the plaintiff is a non practicing entity, and
740
00:42:53.480 --> 00:42:55.920
of course even more so one would presume.
741
00:42:56.039 --> 00:42:58.719
If the plaintiff is practicing the.
742
00:42:58.679 --> 00:43:03.480
Patent or a competitors, interrupt for one second and read
743
00:43:03.519 --> 00:43:06.199
from that brief, and maybe you can share some further
744
00:43:06.239 --> 00:43:09.280
insights on it. So this is from the Department of
745
00:43:09.440 --> 00:43:12.519
Justice's statement of interest in the radiant case in the
746
00:43:12.559 --> 00:43:16.119
Eastern District of Texas. The incentive to innovate at the
747
00:43:16.159 --> 00:43:19.400
heart of the Patent Act is undermined when the availability
748
00:43:19.559 --> 00:43:24.639
of preliminary injunctions to block infringement is unduly limited. Congress
749
00:43:24.639 --> 00:43:28.960
has authorized injunctions quote in accordance with the principles of
750
00:43:28.960 --> 00:43:34.119
equity to prevent the violation of any right secured by patent,
751
00:43:34.480 --> 00:43:38.159
and injunctions are vital to the patent system for encouraging
752
00:43:38.280 --> 00:43:42.559
innovation without the possibility of injunctive relief. The right to
753
00:43:42.679 --> 00:43:46.079
exclude granted by the patent would be diminished, and the
754
00:43:46.199 --> 00:43:50.199
express purpose of the Constitution and Congress to promote the
755
00:43:50.199 --> 00:43:53.000
progress of the useful arts would be seriously undermined.
756
00:43:53.880 --> 00:43:58.119
Yes, go ahead, back to you, Andre, exactly right, and
757
00:43:59.159 --> 00:44:06.440
it has several statements to that effect, and to support
758
00:44:06.480 --> 00:44:11.840
those statements, it cites two primary problems with not granting
759
00:44:11.880 --> 00:44:18.480
injunctive relief in circumstances of patent infringement. One is that
760
00:44:18.639 --> 00:44:23.159
the patent owner, whether it practices or not the patent,
761
00:44:23.679 --> 00:44:28.159
the patent owner loses control over its property rate.
762
00:44:28.960 --> 00:44:31.480
And even if the.
763
00:44:31.360 --> 00:44:34.159
Only business of the property of the patent owner is
764
00:44:35.079 --> 00:44:41.480
to license that patent, then it still loses control over
765
00:44:42.320 --> 00:44:46.960
whom to license, under what circumstances, to license what territory,
766
00:44:48.000 --> 00:44:55.400
obviously what rates in certain circumstances.
767
00:44:56.280 --> 00:45:02.440
And as a second fact, it cites that the.
768
00:45:02.519 --> 00:45:05.719
Value and damages in a patent infringement case are very
769
00:45:05.760 --> 00:45:11.840
difficult to calculate sometimes and as a result, money damages
770
00:45:12.119 --> 00:45:19.199
are usually difficult to to assess, and therefore irreparable harm
771
00:45:20.400 --> 00:45:26.360
can be can be presumed. I do want to touch
772
00:45:26.480 --> 00:45:31.360
briefly on what Jeff Holt just mentioned about from the
773
00:45:31.360 --> 00:45:36.519
from the statement of interest that the that injunctions are critical,
774
00:45:36.719 --> 00:45:42.039
critical to the incentive to innovate. And I want to
775
00:45:42.039 --> 00:45:47.599
address Chris's point that the patent system is not there
776
00:45:47.960 --> 00:45:53.199
only to incentivize inventors to innovate, and that is absolutely right.
777
00:45:53.559 --> 00:45:57.159
The patent system is meant to be a quid pro quo.
778
00:45:57.840 --> 00:45:59.159
It is a balance.
779
00:45:59.719 --> 00:45:59.920
It is.
780
00:46:00.800 --> 00:46:06.360
It is on the one hand incentivizing inventors, on the
781
00:46:06.400 --> 00:46:11.320
other hand, transferring that knowledge to the public and giving
782
00:46:11.360 --> 00:46:13.960
the public access to that knowledge.
783
00:46:14.079 --> 00:46:14.159
And.
784
00:46:17.000 --> 00:46:23.039
Therefore innovation is incentivized. Public gets access to it, and
785
00:46:23.360 --> 00:46:28.199
others can invent follow on technologies from there, and it
786
00:46:28.239 --> 00:46:33.079
builds on itself. But those issues, it would be a
787
00:46:33.119 --> 00:46:38.880
mistake to think that those issues are at odds.
788
00:46:38.840 --> 00:46:39.480
With each other.
789
00:46:41.320 --> 00:46:44.039
The right of the inventor and the incentive to the
790
00:46:44.079 --> 00:46:48.360
inventor and the right and benefits to the public are
791
00:46:49.199 --> 00:46:57.639
symbiotic benefits of the patent system. Obviously, their negotiations that
792
00:46:57.760 --> 00:47:01.280
always take place. Sometimes they are this agreements, and litigation
793
00:47:01.400 --> 00:47:04.920
needs to resolve those things. But in the end, at
794
00:47:04.960 --> 00:47:08.199
the high level grand scheme, and if you look over
795
00:47:08.239 --> 00:47:10.960
the arc of history of the United States from its
796
00:47:11.000 --> 00:47:15.119
foundation till now, with a patent system as we know it,
797
00:47:15.119 --> 00:47:20.360
it is a quit mutual beneficially mutually beneficial quit pro quo.
798
00:47:21.360 --> 00:47:24.960
And what's interesting is that James Madison saw this early
799
00:47:25.000 --> 00:47:30.079
on and in the Federalist forty three, the first paragraph
800
00:47:30.159 --> 00:47:36.000
for Federalist forty three, where he defends the intellectual property clause,
801
00:47:37.280 --> 00:47:39.280
he says that.
802
00:47:41.039 --> 00:47:42.440
The right of useful.
803
00:47:45.119 --> 00:47:49.440
I'm sorry, the public good fully coincides in both cases
804
00:47:49.480 --> 00:47:52.719
patents and copyrights. The public good fully coincides in both
805
00:47:52.719 --> 00:47:59.000
cases with the claims of individuals. It recognizes this beneficial
806
00:47:59.480 --> 00:48:04.559
quit pro quote. So the practical effect in the end
807
00:48:05.400 --> 00:48:07.920
is right now, the status quo right now is that
808
00:48:07.960 --> 00:48:10.800
we have an administration that has taken a public position
809
00:48:11.239 --> 00:48:14.760
as to the benefit of injunctive relief and the harms
810
00:48:15.639 --> 00:48:22.119
that come from the eBay line of decisions of not
811
00:48:22.320 --> 00:48:27.760
presuming irreparable harm in the case of patent infringement. They've
812
00:48:27.760 --> 00:48:30.840
taken a public position on this. We'll see how the
813
00:48:30.880 --> 00:48:36.000
court decides now, and we will see if the administration
814
00:48:37.039 --> 00:48:43.360
likewise now supports the Restore Act, which effectively would address
815
00:48:43.920 --> 00:48:48.360
the concerns articulated by the statement of interest in the
816
00:48:48.360 --> 00:48:53.239
irradiant case. One final point in the final month or
817
00:48:53.280 --> 00:48:57.639
weeks of the first Trump administration, Congress passed and the
818
00:48:57.679 --> 00:49:00.519
President signed the Trademark modern Is Act.
819
00:49:01.559 --> 00:49:03.440
In the trademark context.
820
00:49:03.519 --> 00:49:07.880
That statute includes.
821
00:49:09.559 --> 00:49:11.239
A sentence that.
822
00:49:12.679 --> 00:49:16.440
Addresses the same issue for trademarks, and in the Trademark
823
00:49:16.440 --> 00:49:22.559
Monization Act, we say, or it says that that in
824
00:49:22.599 --> 00:49:23.159
the case.
825
00:49:22.960 --> 00:49:24.719
Of trademark intringement.
826
00:49:25.719 --> 00:49:30.400
There is a presumption of irreparable harm to overcome the
827
00:49:30.519 --> 00:49:35.519
eBay concerns if they were to be applicable to trademarks.
828
00:49:35.840 --> 00:49:40.320
So Congress passed that legislation, President Trump signed it five
829
00:49:40.400 --> 00:49:43.519
years ago. Let's see if that gets to be repeated
830
00:49:43.599 --> 00:49:46.360
with the Restore Act in a similar context, but on
831
00:49:46.400 --> 00:49:48.400
the patent side, do you.
832
00:49:48.400 --> 00:49:49.920
Might I know we're plenty at the time, but I
833
00:49:50.000 --> 00:49:52.480
think I think the audience would enjoy a quick update
834
00:49:52.519 --> 00:49:54.679
on Radiant because there's some news that came out there.
835
00:49:55.559 --> 00:50:00.599
The Radiant did withdraw its requests for pulminary injunction after
836
00:50:00.639 --> 00:50:04.920
it learned that Samsung was no longer using the fringing functionality,
837
00:50:05.719 --> 00:50:08.320
which is I'm kind of bummed about it. I was
838
00:50:08.360 --> 00:50:11.239
actually I really liked the radio and was pushing this,
839
00:50:11.320 --> 00:50:15.800
and I liked the DOJ's incursion in here. I wanted
840
00:50:15.840 --> 00:50:17.920
to see this case play out because, frankly, I think
841
00:50:17.920 --> 00:50:20.960
it would show why restore is bad policy. We have
842
00:50:21.000 --> 00:50:24.079
to remember that resort doesn't help injured in vendors as
843
00:50:24.159 --> 00:50:25.159
much as it silences.
844
00:50:25.159 --> 00:50:25.360
Though.
845
00:50:25.719 --> 00:50:28.280
Remember it's more than just a one sentence amendment to
846
00:50:28.320 --> 00:50:32.280
section two eighty three. There's pages of findings that crafted
847
00:50:32.320 --> 00:50:34.639
direct courts to do things like assume harm as a
848
00:50:34.760 --> 00:50:38.159
given instead of asking patent owners to tell their story.
849
00:50:38.599 --> 00:50:40.679
And I don't know about you, but I hate when
850
00:50:40.719 --> 00:50:43.760
we silence our own clients on this point. We saw
851
00:50:43.800 --> 00:50:46.280
this in the December resort here, and when Jacob Babcock
852
00:50:46.719 --> 00:50:50.360
testified in a book here. My experience working with lawyers
853
00:50:50.360 --> 00:50:52.079
in this case is that they say, we are not
854
00:50:52.199 --> 00:50:54.880
even going to request and junk of relief anymore because
855
00:50:54.920 --> 00:50:58.519
we can't get it. Those lawyers were wrong to silence
856
00:50:58.559 --> 00:51:02.000
their client based on bad pops testimony. New Current had
857
00:51:02.039 --> 00:51:05.519
an actual injury in fact story that needed to be told,
858
00:51:05.639 --> 00:51:08.719
but apparently their lawyers decided to create their client like
859
00:51:08.880 --> 00:51:12.480
just another unharmed patent holding company. This happens every day.
860
00:51:13.039 --> 00:51:16.119
Eco Factory case. My amagust brief that I fought an
861
00:51:16.159 --> 00:51:18.840
Eco factor was the only one to call out the
862
00:51:18.880 --> 00:51:22.639
fact that Google actually hurt Eco Factor and if Eco
863
00:51:22.679 --> 00:51:25.199
Factor's council had followed the law correctly, they could have
864
00:51:25.239 --> 00:51:28.519
asked for more money. Right, nobody seems to care about
865
00:51:28.559 --> 00:51:32.440
the actual injury. We're treating patent owners as a monolith,
866
00:51:33.039 --> 00:51:35.880
as if they're all the same. You know, some of these,
867
00:51:36.280 --> 00:51:39.280
you know we talked about count Middle paper Bag. There
868
00:51:39.320 --> 00:51:42.559
are some non practicing entities that are like Cotton Middle
869
00:51:42.559 --> 00:51:45.880
paper Bag. You know, they're like Margaret Knight who built
870
00:51:45.880 --> 00:51:49.239
a business a fire to patent, suffered actual injury when
871
00:51:49.280 --> 00:51:52.920
their competitors infringed the patent. We should let those stories through,
872
00:51:53.320 --> 00:51:56.719
but at the same time, we shouldn't presume that every
873
00:51:56.760 --> 00:52:01.639
anonymous patent holding company is Margaret Knights instead. If you
874
00:52:01.920 --> 00:52:04.719
care about small businesses, if you care about entrepreneurs, if
875
00:52:04.760 --> 00:52:06.880
you care about little tech, if you want them to
876
00:52:06.920 --> 00:52:09.599
tell their story in court so they can have better
877
00:52:09.679 --> 00:52:13.519
access the patent remedies than the typical unharmed patent holding
878
00:52:13.559 --> 00:52:16.679
companies that are dominating the litigational landscape today.
879
00:52:20.679 --> 00:52:22.840
Thank thank you, Chris, Thank you for that follow up
880
00:52:22.920 --> 00:52:26.400
on the Radian case and update any of the other
881
00:52:26.440 --> 00:52:30.199
panelists want to follow up on Andre's points related to
882
00:52:30.920 --> 00:52:34.400
Radiant or the Department of Justice statement of interest that
883
00:52:34.480 --> 00:52:36.800
I read as it relates to Restore.
884
00:52:41.039 --> 00:52:43.159
I'd be interesting in hearing if there's any questions from
885
00:52:43.159 --> 00:52:44.360
the audience actually.
886
00:52:45.480 --> 00:52:46.840
Just say that, yeah, well I'm sorry.
887
00:52:47.199 --> 00:52:49.039
Yeah, So in questions from the audience, I should note
888
00:52:49.079 --> 00:52:50.480
that I think we've had a handful of them.
889
00:52:50.920 --> 00:52:52.039
They've actually been covered.
890
00:52:52.199 --> 00:52:57.280
Professor Mossov and Andre covered them pretty well in following
891
00:52:57.320 --> 00:53:02.719
up to the comments from Chris and Professor Orosenga. But
892
00:53:02.800 --> 00:53:05.800
anything else from the panelists, I guess on radio before
893
00:53:05.840 --> 00:53:09.440
we move on to the next question that I had
894
00:53:09.440 --> 00:53:13.119
related to the Restore Act and for protecting the rights
895
00:53:13.159 --> 00:53:21.280
of inventors through it. No, okay, we'll move on to
896
00:53:21.360 --> 00:53:26.039
that second question. Well, I guess I'll read one question
897
00:53:26.079 --> 00:53:28.719
from the audience now that relates to the current discussion.
898
00:53:29.880 --> 00:53:33.719
This is from an anonymous attendee, and I'll put it
899
00:53:33.800 --> 00:53:36.599
out there to the group. But I guess maybe we'll
900
00:53:36.840 --> 00:53:39.880
head back to Professor Ozenga specifically to respond to this.
901
00:53:40.360 --> 00:53:44.920
When patent rights are weaponized, for example, by nonpracticing entities
902
00:53:45.000 --> 00:53:50.760
that sue not to protect innovation, the core public benefit
903
00:53:51.280 --> 00:53:54.880
can get distorted that said, if they're too hard to get,
904
00:53:55.000 --> 00:53:59.679
inventors may lose incentive to innovate. What is the proper
905
00:54:00.000 --> 00:54:03.000
ballots on Professor Rozanga? Any comments on.
906
00:54:02.960 --> 00:54:08.400
That, Yes, so many, but I'll try to be brief.
907
00:54:09.840 --> 00:54:12.599
I really think that the idea of patent rights being
908
00:54:12.639 --> 00:54:18.760
weaponized as overstated. I think oftentimes licensing entities are not.
909
00:54:21.199 --> 00:54:22.320
Using patents as a weapon.
910
00:54:22.360 --> 00:54:26.239
They're simply asserting a property right that they have either
911
00:54:27.320 --> 00:54:32.840
developed themselves and weren't able to manufacture, or they bought
912
00:54:32.920 --> 00:54:37.519
from some other entity that wasn't able to manufacture. In
913
00:54:37.559 --> 00:54:41.400
any case, they're providing a market and allowing other companies
914
00:54:41.440 --> 00:54:46.960
to use that technology by licensing technology. So the first
915
00:54:47.000 --> 00:54:50.480
sentence of the anonymous attendees question just kind of puts
916
00:54:50.480 --> 00:54:52.440
my teeth on itch. But that's okay. I don't really
917
00:54:52.480 --> 00:54:55.400
see it as weaponizing. So you're right though, there is
918
00:54:55.400 --> 00:54:58.880
a balance. But I do think that the balance is
919
00:54:59.239 --> 00:55:03.039
right now being overthrown by the narrative that patents are
920
00:55:03.039 --> 00:55:06.679
being weaponized. That there's lots of nuisance litigation. I think
921
00:55:06.679 --> 00:55:09.679
that's a very very small component. I do think the
922
00:55:09.719 --> 00:55:12.079
idea that patent's being hard to get and worse than
923
00:55:12.119 --> 00:55:14.280
that hard to enforce once you get them, which is
924
00:55:14.320 --> 00:55:16.880
where we're currently at. I think that's a much bigger
925
00:55:16.880 --> 00:55:21.199
problem and a distanc entive to innovation, So I'll stop there.
926
00:55:21.960 --> 00:55:25.119
Well, Professor, Also, any comments on that or the other
927
00:55:25.199 --> 00:55:27.679
question that I had, How will the Restore Act and
928
00:55:27.760 --> 00:55:32.000
the availability of injunctive relief better protect the rights of
929
00:55:32.199 --> 00:55:33.440
American innovators.
930
00:55:34.199 --> 00:55:41.400
Yes, it's a great question, and you know, the fundamental
931
00:55:41.400 --> 00:55:44.760
core point to remember here is that, as as Director Yanku,
932
00:55:45.599 --> 00:55:50.199
I think I very effectively explained, is that injunctions are
933
00:55:50.000 --> 00:55:54.920
are a key factor of ensuring what sometimes properties called
934
00:55:54.960 --> 00:55:58.800
us called control rights over property, your ability to decide
935
00:55:58.920 --> 00:56:02.119
how your properties go to be used, including this is
936
00:56:02.119 --> 00:56:05.000
a very capacious understanding of use, sometimes uses non use,
937
00:56:05.119 --> 00:56:07.599
Sometimes uses I want to build a moat around my property,
938
00:56:07.840 --> 00:56:12.039
Sometimes uses I have this is an investment. I'm sitting
939
00:56:12.039 --> 00:56:14.159
on this for a while for something else, something recognized
940
00:56:14.159 --> 00:56:20.119
by Continental Paperbag. But more importantly and foundationally, injunctions are
941
00:56:20.239 --> 00:56:24.840
what economists call a backstop to commercial transactions. You cannot
942
00:56:24.960 --> 00:56:27.920
have a commercial negotiation that sets a fair market price
943
00:56:27.920 --> 00:56:31.679
in the marketplace if someone can say I don't have
944
00:56:32.119 --> 00:56:34.000
If you say no, I don't have to listen to you,
945
00:56:34.039 --> 00:56:36.079
and I can just take your bicycle and then you
946
00:56:36.159 --> 00:56:38.840
consuming we can go through ten years of court of
947
00:56:39.239 --> 00:56:44.159
litigation before you'll get a reasonable royalty for what will
948
00:56:44.159 --> 00:56:46.880
be deemed to be my one day use of your
949
00:56:46.920 --> 00:56:50.239
bicycle or your car. Or perhaps you come home and
950
00:56:50.280 --> 00:56:52.840
you find someone squatting in your spare bedroom that you
951
00:56:52.920 --> 00:56:56.280
never use, and they say, well, you're not using this bedroom,
952
00:56:56.519 --> 00:56:59.239
and so Chris would say, call that being not harmed
953
00:56:59.480 --> 00:57:01.760
because you're not using it. You're not being using the
954
00:57:01.760 --> 00:57:03.960
bedroom in any way, shape or form. They're not interfering
955
00:57:03.960 --> 00:57:07.239
with any actual, direct, literal, physical use of your home.
956
00:57:07.679 --> 00:57:10.039
And he would call that not being harmed. And they
957
00:57:10.079 --> 00:57:13.280
would say, and you consume me and I'll pay reasonable rent.
958
00:57:13.519 --> 00:57:15.840
When you say, fine, pay me a million dollars, they'll say, no, no, no,
959
00:57:16.000 --> 00:57:18.760
Now you're weaponizing your property rights against me. You need
960
00:57:19.480 --> 00:57:21.400
but I'll pay, but we need to go through court
961
00:57:21.559 --> 00:57:23.639
for a neutral judge to determin what should be the
962
00:57:23.679 --> 00:57:26.039
reasonable rent. You can see how this would destroy the
963
00:57:26.119 --> 00:57:28.840
value of your home economically. Try selling your home with
964
00:57:28.920 --> 00:57:32.320
a with now a compulsory squatter, just like a compulsory
965
00:57:32.360 --> 00:57:38.079
licenser licensee. Try and the value in the use of
966
00:57:38.119 --> 00:57:40.880
your home to you would be diminished. And this is
967
00:57:40.960 --> 00:57:45.159
exactly what was recognized by the courts historically running all
968
00:57:45.159 --> 00:57:47.679
the way up through into eBay. When you have this
969
00:57:47.800 --> 00:57:52.599
kind of conceptually incoherent four factor test created through remedies doctrine,
970
00:57:52.599 --> 00:57:54.840
because these are again are all terms of art. To
971
00:57:54.880 --> 00:57:57.000
say something as a reparable harm means that there's been
972
00:57:57.000 --> 00:58:00.960
a finding of continuing infringement, of which then damages do
973
00:58:01.039 --> 00:58:04.800
not effectively capture that you have ongoing harm, which means
974
00:58:04.840 --> 00:58:07.360
if you only award damages, you're not affecting the exclusive
975
00:58:07.599 --> 00:58:11.559
you're not protecting the exclusive control rights to establish market
976
00:58:11.639 --> 00:58:14.880
transactions that need to be established. And you have the
977
00:58:14.880 --> 00:58:18.320
difficulty of evaluating this because these are unique property interests, which,
978
00:58:18.360 --> 00:58:22.079
by the way, which is why injunctions are presumptive remedies
979
00:58:22.159 --> 00:58:25.119
for violations of real property for the exact same reason.
980
00:58:25.599 --> 00:58:27.840
It's not an automatic per se rule. People sometimes think
981
00:58:27.840 --> 00:58:29.360
of it as such, but there's no such thing as
982
00:58:29.360 --> 00:58:31.519
an automatic per se rule in equity, but it's a
983
00:58:31.519 --> 00:58:35.519
presumptive remedy, which means that once you show continuing ongoing infringement,
984
00:58:36.760 --> 00:58:40.119
and then it's a presumptive remedy. You have a wrongdoer
985
00:58:40.360 --> 00:58:43.199
who and you have, then the burden shifts to them
986
00:58:43.239 --> 00:58:44.239
to show why you can't.
987
00:58:44.559 --> 00:58:46.719
You can't should an issue.
988
00:58:46.440 --> 00:58:51.880
With classical, classic equitable doctrines like estoppel latches and things
989
00:58:51.880 --> 00:58:55.280
of that sort. It's not a free standing Well, you're
990
00:58:55.800 --> 00:58:59.280
a bad mpe, You're a bad person in some way,
991
00:58:59.320 --> 00:59:02.199
shape or form. Therefore we're not going to enforce this
992
00:59:02.280 --> 00:59:06.079
property right against you. That is not the historical role
993
00:59:06.079 --> 00:59:08.360
of equity, and that's not what equity means in legal
994
00:59:08.400 --> 00:59:13.039
practice right. And unfortunately, though, because of the incoherence internally
995
00:59:13.119 --> 00:59:16.920
of what the eBay four factor test has has meant,
996
00:59:17.280 --> 00:59:21.440
it has kind of become this freestanding evaluation by judges
997
00:59:21.519 --> 00:59:24.320
as to whether the person should get an injunction or not,
998
00:59:24.360 --> 00:59:27.360
which is completely undermined both the property right function of
999
00:59:27.400 --> 00:59:31.559
patents as a driver of economic activity and innovation, which benefits,
1000
00:59:31.679 --> 00:59:35.199
as Directoryankhu said, and as Madison recognized, the public as well,
1001
00:59:35.440 --> 00:59:37.800
just as all property rights benefit the public through out
1002
00:59:37.800 --> 00:59:41.840
of economic activity. And it's on it's resulted in the
1003
00:59:41.920 --> 00:59:45.159
lack of enforcement of the actual exclusive right. It's unique
1004
00:59:45.159 --> 00:59:47.880
that it's actually revealing the founders use the term exclusive
1005
00:59:47.920 --> 00:59:50.039
right if they were, if they were actually implementing the
1006
00:59:50.440 --> 00:59:53.960
statue monopolies, they would They actually had two terms that
1007
00:59:54.000 --> 00:59:56.599
they could have used from England, which worked monopoly or
1008
00:59:56.639 --> 00:59:59.960
patent in the Constitution, and it's notable they chose not
1009
01:00:00.079 --> 01:00:03.960
either in protecting patents and copyrights in the Constitution, the
1010
01:00:04.079 --> 01:00:06.400
very first time the protection of intellectual property has been
1011
01:00:06.400 --> 01:00:08.599
put in a Foundational Countries document.
1012
01:00:09.280 --> 01:00:12.960
Yeah, thank you, Professor Mossov. Chris, I'll hand things over
1013
01:00:12.960 --> 01:00:16.559
to you for a quick response to Professor Mossov, since
1014
01:00:16.599 --> 01:00:20.920
I saw you shaking your head. Yeah, and then I'll
1015
01:00:20.960 --> 01:00:23.760
let you close out with a final word, and then
1016
01:00:23.800 --> 01:00:25.599
I'll go through the rest of the panel for closeout
1017
01:00:25.599 --> 01:00:30.719
as well. Regarding if Restore or another bill similar would
1018
01:00:31.320 --> 01:00:33.760
likely pass Congress in order to reverse eBay.
1019
01:00:33.840 --> 01:00:39.159
So, Chris, thank you. Yeah, I think the I disagree
1020
01:00:39.159 --> 01:00:44.159
with the characterization of let's put aside congressional policy on
1021
01:00:44.280 --> 01:00:47.800
injunctions in Congress's role. We seem to disagree there. Even
1022
01:00:47.840 --> 01:00:51.920
if you say that what courts did in the eighteenth century,
1023
01:00:52.000 --> 01:00:55.400
nineteenth century, twenty century, they can legislate from the bench
1024
01:00:55.440 --> 01:00:58.960
and set American policy on injunctions, I don't think Professor
1025
01:00:59.039 --> 01:01:03.320
Mossov is characterized it correctly. Instead, you look through the
1026
01:01:03.400 --> 01:01:06.679
lens of actual injury. Was the how was the patent
1027
01:01:06.719 --> 01:01:11.000
owner actually injured? It's not infringement. Infringement occurs in every case.
1028
01:01:11.280 --> 01:01:13.760
The question is what are the consequences of that infringement?
1029
01:01:13.840 --> 01:01:18.159
And just in the interest of time, you know I did.
1030
01:01:18.800 --> 01:01:21.519
I did actually have as few professional Massa in your
1031
01:01:21.599 --> 01:01:27.280
latest paper, why did you end your study starting in
1032
01:01:27.320 --> 01:01:29.519
seventeen ninety Why did you end it nineteen eighty two?
1033
01:01:29.639 --> 01:01:31.880
Can you explain why the eighteen eighty two date was
1034
01:01:31.920 --> 01:01:32.639
so significant?
1035
01:01:35.159 --> 01:01:37.599
Well, I mean, these are supposed to be closing remarks, Chris,
1036
01:01:37.760 --> 01:01:40.239
I don't know. I don't think it's too long.
1037
01:01:40.559 --> 01:01:42.480
I actually explained in the paper why I ended in
1038
01:01:42.559 --> 01:01:44.000
aighta too happened to be just I just looked at
1039
01:01:44.039 --> 01:01:46.360
the federal case as reporter, which is the.
1040
01:01:48.360 --> 01:01:50.519
Just the first few pros I had for my priority
1041
01:01:50.519 --> 01:01:52.639
storical research. I couldn't continue to then further.
1042
01:01:52.679 --> 01:01:54.400
But I mean, but the point is is that I
1043
01:01:54.440 --> 01:01:58.519
was responding to I was testing the claim in eBay.
1044
01:01:58.840 --> 01:02:03.960
It is a long staying, well established historical test. And
1045
01:02:03.960 --> 01:02:06.159
this is an opinion by touch Justice Thomas So when
1046
01:02:06.199 --> 01:02:08.880
he says longstanding historical test. He doesn't mean nineteen seventy.
1047
01:02:08.960 --> 01:02:12.079
He doesn't mean nineteen sixty. He means nineteenth century or
1048
01:02:12.119 --> 01:02:15.519
eighteenth century, especially if you're talking in equity, which is
1049
01:02:15.599 --> 01:02:20.119
because equity is an historical regime. It didn't mean, you know,
1050
01:02:20.159 --> 01:02:22.639
after you have the merger of lawn equity in nineteen
1051
01:02:22.639 --> 01:02:25.039
thirty six, which results in some of the confusion of
1052
01:02:25.039 --> 01:02:27.599
the legal concepts that that I think have been demonstrated
1053
01:02:27.639 --> 01:02:30.280
in our conversation, given that you've had the merger of
1054
01:02:30.360 --> 01:02:32.639
lawn equity and people have lost the concept of understanding
1055
01:02:32.679 --> 01:02:34.639
of what it means to say a rapable harm, which
1056
01:02:34.679 --> 01:02:37.719
was originally just a jurisdictional requirement, not a substantive requirement
1057
01:02:37.880 --> 01:02:40.320
about how you got int equity quart or not. So
1058
01:02:41.920 --> 01:02:44.239
I would just direct people to respond to take a
1059
01:02:44.239 --> 01:02:47.079
look at my paper I mentioned and explain that I'm.
1060
01:02:46.840 --> 01:02:48.519
Just yeah, no, I decisions.
1061
01:02:49.239 --> 01:02:51.800
I don't believe get that full explanation out of your paper.
1062
01:02:51.880 --> 01:02:53.639
And the reason why I asked was because it's just
1063
01:02:54.039 --> 01:02:57.079
coincidental that the Supreme Court decided to revive the Railway
1064
01:02:57.119 --> 01:02:59.920
Company in eighteen eighty one. That's the case involving Tom
1065
01:03:00.159 --> 01:03:03.440
Sales the most notorious pattern shark of the nineteenth century.
1066
01:03:03.599 --> 01:03:05.679
And this was a huge news story at the time.
1067
01:03:05.760 --> 01:03:08.760
This went before Congress. Congress was debating whether or not
1068
01:03:08.840 --> 01:03:11.199
to drop the principle of equity standard at that time.
1069
01:03:11.599 --> 01:03:16.400
Albert Walker, Thomas Sales's nephew, represented him there and they said,
1070
01:03:16.480 --> 01:03:19.440
they talked to They said, no, like you, if you
1071
01:03:19.480 --> 01:03:23.159
aren't actually injured, you do not get the benefit of
1072
01:03:23.239 --> 01:03:27.400
equitable relief. That means no injunctions, no profit disforking, nothing.
1073
01:03:27.519 --> 01:03:31.239
The Sales estate only received nominal damages. That's also part
1074
01:03:31.280 --> 01:03:35.360
of this equity history, right, And there's the prior of
1075
01:03:35.840 --> 01:03:36.679
career case.
1076
01:03:38.239 --> 01:03:38.639
There's a.
1077
01:03:40.159 --> 01:03:43.679
October. How about let's keep it on the twenty first century.
1078
01:03:44.079 --> 01:03:44.440
And just.
1079
01:03:45.960 --> 01:03:48.599
I guess a lot of this notion that like nineteenth
1080
01:03:48.639 --> 01:03:51.639
century case laws a monolith and that courts were not
1081
01:03:51.679 --> 01:03:53.960
they were ignoring the principles of equity because they were
1082
01:03:54.039 --> 01:03:56.639
looking at actual injury. And if you look at the Casel,
1083
01:03:56.679 --> 01:03:59.639
you look at Sullivan, you look at more questions, rare cases,
1084
01:04:00.039 --> 01:04:04.079
a turn on actual injury. I think that that matters
1085
01:04:04.440 --> 01:04:07.719
for whether or not you believe you need a pass
1086
01:04:07.840 --> 01:04:12.239
legislation to help injured patent owners. Are uninjured patent owners.
1087
01:04:13.239 --> 01:04:17.079
I will conclude, I hope we talked about like making predictions.
1088
01:04:17.360 --> 01:04:19.599
I will conclude with I have no idea whether not
1089
01:04:19.639 --> 01:04:22.679
this bill is going to pass. Thank you, Professor will
1090
01:04:22.760 --> 01:04:23.159
leave it to that.
1091
01:04:23.199 --> 01:04:27.800
Professor Rose final conclusion remarks on twenty twenty five Restore Act.
1092
01:04:29.519 --> 01:04:31.639
I am sad, but I think the answer is it's
1093
01:04:31.639 --> 01:04:33.599
not going to pass. I think there's too much confusion
1094
01:04:33.639 --> 01:04:36.880
about what it means, as evidenced by many of the
1095
01:04:36.920 --> 01:04:37.760
discussions we've.
1096
01:04:37.639 --> 01:04:38.320
Had here today.
1097
01:04:38.960 --> 01:04:42.199
All right, Professor Massov final words twenty twenty five Restore Act.
1098
01:04:43.639 --> 01:04:46.199
I mean I think we'll probably see some progress made
1099
01:04:46.239 --> 01:04:48.320
on it, hopefully. I mean, there's always debate, and there's
1100
01:04:48.320 --> 01:04:51.559
always confusion. There's no bill that's enacted that it receives
1101
01:04:51.639 --> 01:04:54.440
very rarely one hundred percent. It speaks highly of Director
1102
01:04:54.519 --> 01:04:57.880
Yanku that he was he was confirmed ninety four to zero,
1103
01:04:58.800 --> 01:05:00.960
as such votes are very rare in today's Congress.
1104
01:05:01.000 --> 01:05:02.880
So and so I think.
1105
01:05:02.960 --> 01:05:05.480
Hopefully we'll we'll see some movement, even though there will
1106
01:05:05.519 --> 01:05:06.920
be continued disputes about it.
1107
01:05:07.400 --> 01:05:08.000
About the bill.
1108
01:05:08.599 --> 01:05:12.320
Okay, and Andre, you get you get the final words
1109
01:05:12.400 --> 01:05:13.920
and give us some insight on the bill.
1110
01:05:13.960 --> 01:05:15.039
Do you think it will pass.
1111
01:05:16.400 --> 01:05:16.800
Well?
1112
01:05:17.400 --> 01:05:20.679
I think anyone who tries to predict what Congress might do,
1113
01:05:20.840 --> 01:05:26.000
especially the passage of any piece of legislation, would be
1114
01:05:26.000 --> 01:05:29.079
foolish and risk reputation.
1115
01:05:29.320 --> 01:05:32.360
But look, I agree that I.
1116
01:05:32.320 --> 01:05:35.840
Think there will be debates, progress will be made, and
1117
01:05:36.800 --> 01:05:41.239
a lot of it will turn on what the administration does.
1118
01:05:41.880 --> 01:05:48.719
Will the Trump administration, in one form or another, express
1119
01:05:48.760 --> 01:05:53.239
additional support for the bill now that it has expressed
1120
01:05:53.679 --> 01:05:59.400
supporting concept for when injunctive relief is appropriate.
1121
01:06:00.440 --> 01:06:05.480
On a final note, the reality is, in my view.
1122
01:06:05.320 --> 01:06:10.840
Having litigated patents for almost thirty years, now, when you
1123
01:06:11.079 --> 01:06:17.199
distort the market of any property right, and you put
1124
01:06:17.199 --> 01:06:23.360
the cloud over one of the most fundamental attributes of property,
1125
01:06:23.480 --> 01:06:26.840
which is the right to exclude, the market gets distorted
1126
01:06:26.920 --> 01:06:30.920
and the legal system gets distorted. And what we see
1127
01:06:30.960 --> 01:06:34.280
as a result of this over the last two decades
1128
01:06:34.400 --> 01:06:38.320
or so is an increase, not a decrease, but an
1129
01:06:38.360 --> 01:06:44.239
increase in patent litigation and an increase in the length
1130
01:06:44.800 --> 01:06:46.360
and expense of.
1131
01:06:48.000 --> 01:06:49.280
That litigation.
1132
01:06:49.760 --> 01:06:54.320
And that's true for both sides on average, both for
1133
01:06:54.400 --> 01:07:00.679
the patent owners and for the accused infringers. And that
1134
01:07:00.920 --> 01:07:06.119
has resulted in an inefficient market. And just to leave
1135
01:07:06.480 --> 01:07:11.880
with a kudos to Professor Asena because she is cited
1136
01:07:12.480 --> 01:07:17.079
on the specific point of the efficiency of infringement in
1137
01:07:17.199 --> 01:07:22.480
the administration's brief in the Radiant case, and that and that.
1138
01:07:24.280 --> 01:07:29.000
And that scholarship Professor Orozenga and Professor Mosso for both
1139
01:07:29.039 --> 01:07:29.880
sided in that brief.
1140
01:07:30.159 --> 01:07:33.559
I was going to say, and Professor's mossof.
1141
01:07:35.440 --> 01:07:40.679
Uh academic papers that have been discussed here for the
1142
01:07:40.840 --> 01:07:46.159
history and importance of injunctions. But the bottom line is
1143
01:07:46.199 --> 01:07:51.719
that having an efficient patent system that works in balance
1144
01:07:51.880 --> 01:07:56.239
for all sites, like any system of laws that protects
1145
01:07:56.280 --> 01:07:59.360
property rights.
1146
01:07:58.159 --> 01:07:59.880
Needs to be the law.
1147
01:08:00.880 --> 01:08:04.800
The need to be clear, and the bundle of rights
1148
01:08:05.280 --> 01:08:10.519
need to be complete, and then both sides benefit. The
1149
01:08:10.599 --> 01:08:15.159
private market takes over parties negotiate in good faith, and
1150
01:08:15.199 --> 01:08:18.800
when those negotiations break down, the court system is there
1151
01:08:19.119 --> 01:08:22.520
to resolve those disputes under the clear.
1152
01:08:23.279 --> 01:08:23.960
Rule of law.
1153
01:08:24.279 --> 01:08:27.119
And I think we need to return to a point
1154
01:08:27.399 --> 01:08:31.319
where in the patent system that is the driving force.
1155
01:08:34.279 --> 01:08:38.039
Thank you for those excellent closing remarks, Andre, and we
1156
01:08:38.079 --> 01:08:41.840
appreciate everyone's time. I appreciate the handful of questions that
1157
01:08:41.880 --> 01:08:44.680
we were I think able to incorporate from the audience
1158
01:08:44.680 --> 01:08:48.880
who joined in. I'll hand things over back to Edith
1159
01:08:48.960 --> 01:08:51.600
in order to close us out or end our TeleForm.
1160
01:08:51.640 --> 01:08:54.239
And thank you to all the participants for an excellent
1161
01:08:54.279 --> 01:08:55.399
and lively discussion.
1162
01:08:56.720 --> 01:08:59.840
Yes on behalf of the Federalist Society. Thank you so
1163
01:09:00.159 --> 01:09:03.960
much to Director Yanku, Professor Mossof Kristen, and Chris for
1164
01:09:04.000 --> 01:09:06.920
speaking with us today, and to Judge Holt from moderating.
1165
01:09:06.960 --> 01:09:09.960
We're so grateful for your time and expertise. And thank
1166
01:09:09.960 --> 01:09:12.479
you also to our audience for joining us. We really
1167
01:09:12.520 --> 01:09:15.600
appreciate your participation. You could stay up to date with
1168
01:09:15.680 --> 01:09:18.880
other announcements and upcoming webinars on our website fedsoc dot
1169
01:09:18.960 --> 01:09:22.199
org or on all major social media platforms. Thank you
1170
01:09:22.239 --> 01:09:24.520
once more for tuning in, and we are a journed.
1171
01:09:25.720 --> 01:09:28.359
Thank you for listening to this episode of FEDSOC Forums,
1172
01:09:28.439 --> 01:09:31.600
a podcast of the Federal Societies Practice Groups. For more
1173
01:09:31.600 --> 01:09:34.840
information about the Federal Society, the Practice Groups, and to
1174
01:09:34.880 --> 01:09:37.760
become a Federal Society member, please visit our website at
1175
01:09:37.800 --> 01:09:39.119
fedsock dot org.