State rights v. Patent law 34
snopes writes "Here's an article discussing whether states should be exempt from the same patent laws which US companies must abide by. It's not a terribly exciting read, but important if you're at all concerned with these sorts of issues. The core argument: Patent law is federal and federal law cannot be applied against a state government. Therefore, can a state using unlicensed technology be sued by the patent holder? Of course, there's still the issue of whether this sort of thing should be patented in the first place.
" Yeah, it's about as exciting as reading abstracts for academic papers-but it does have an interesting arguement.
States' rights? OH, my God . . . (Score:1)
I'm always amazed by how people equate states' rights with "freedom" or something. In broad terms, a government is a government, and in narrow specific terms, "States' Rights" has for decades been a code-word for restoring segregation and Jim Crow laws -- hardly a blow for freedom IMHO. Of course, "freedom" is being used in a very particular sense, specifically meaning the freedom of white people to fuck with black people. Really, they're just backing up my first point: A "state" government has no reason to be less abusive than a national one, and given its inability to neutralize its own regional biases with the opposing biases of other regions, probably more so. As for size, many of the states are probably now as populous as the entire original 13 colonies were in 1776, so what's the damn difference?
Sovereign Immunity (Score:2)
IANAL and this is not my area of expertise so if anyone has corrections to what I just said, let me know.
Re:Sovereign Immunity (Score:1)
Anyway, you have the gist of the problem correct. However, immunity in federal courts is a states' rights issue. OTOH, it has generally been held to apply only to the states themselves, and not their subdivisions or creations (thus agencies, counties, cities, universities, etc. get sued.) The case that comes to mind is the copyright case against the University of California.
It would be nice if the case were about more a more reasonable patent; "business method" patents make software patents look like a good idea . . .
Also, careful of the authors' comments on the judges--when he refers to Scalia as a "conservative," he shows he doesn't understand the ideological makeup of the court: there are three blocks: liberal, conservative, and classic liberal. Scalia, Thomas, and Kennedy (on his good days) are in the third block. This block votes with the conservative block more often than not, but that's largely a matter of which cases the court takes. If it's a matter of the government throwing it's weight around, you're going to get more help from the classic liberal block than the liberals (unless a) it's a "good thing" that the government's doing, which means we should sacrifice liberty for it, or b) Scalia's knee jerks to a law and order theme, in which case he bolts for the conservative block.)
Anyway, i've drifted, but your analysis is correct. Just don't go to law school, you'll become a lawyer and become miserable
hawk, esq.
Supremacy & Sovereign Immunity (Score:1)
This is a different immunity, coming from the Twelvth Ammendment. Being black-letter from the Constitution, supremacy is irrelevant. The question is whether the immunity goes this far.
hawk, who's not sure what if any difference there is between small-l libertarianism & Classic Liberalism . . .
Good... (Score:1)
Translated, in a slightly different context - Copyleft is only enforcable because of Copyright. That doesn't make Copyright healthy or productive - it, too, is a sick hand - but it may be curable, and Copyleft may be a part OF that cure. Chop it off, and you lose Copyleft as well, losing both.
In the case of patents, IMHO, what's needed is not so much to completely chop the whole system off, but to cure it of it's ills. This current case, to ME, illustrates a need for an equivalent to Copyleft, not just for freedom's sake, but also to start the process of healing the system.
Good... (Score:1)
Anything that weakens our (US) patent system can't be all bad. If it also strengthen's States' Rights as a consequence, even better. The reasons for its creation (history, anyone?) was to protect ants (like us) from giants and to protect innovation.
It its current form, it serves mainly towards the obverse of both. Innovation is thwarted by vague terms and legal entanglements. Our court system was meant to serve as an equalizing ground in which justice is blind. As for the flavor of our court system applied to patents, the best attorney (or panel of them) often wins. For cases in which the ant cannot lose, the giant's skilled panel of lawyers can delay a decision for years.
Hence, my (radical) conclusion: if your hand goes bad, its best to cut it off...
Legal Precedent (Score:1)
Christopher A. Bohn
I have 1 word for you folks: Preemption... (Score:1)
Patent law originates its power in the Constitution. It is a matter of original federal jurisdiction. Thus, federal statutes and case law will apply.
In theory, it may be better for there to be a state exemption from federal law on patent issues. I'll concede that. What I'm saying is that current patent law is so ingrained in our federal system that it would take a constitutional amendment or a new form of government to supersede the current rules.
Good Luck!
Read the Constitution, it's good for you (Score:1)
Oh get off of it. (Score:1)
It is better to have the patent system in place, as flawed as it may be, than to not have any at all. To make the argument that the patent system has sickened to an extent such that it has stopped innovation is foolish. The US is still leading the world in this department while many other countries have far more liberal views on intellectual property. It has nothing to do with natural resources, or the intelligence of our people, or our size, etc, etc, etc.
Granted, there are some problems with the USPTO. However, I think most of these problems are an unavoidable side effect of having a very busy system and parties who are naturally going to have disagreements. This does not mean that it is better to kill it all together.
Our time in eden (Score:1)
Since precedent is law, Linux advocates should start trying to punch holes in the GPL in order to have any adverse rulings being given to relatively benign organizations. Think of it as a miltary training exercise. In order to best know your own weakness' you have to try to find them first.
Re:Our time in eden (Score:1)
Patent Law (Score:1)
Kind of a moot issue ... (Score:1)
Re:One seemingly small nit . . . (Score:1)
Re:Good... (Score:1)
Imagine if states could ignore patents. What's to prevent them from creating `state-run' businesses that don't have to pay royalties (besides votes of course, and the states position can be spun to seem a lot better to joe schmoe); thereby, with the aid of tax money, putting other businesses out of business, and forming (in the worst case scenario) a de facto communist system (again, besides the voters). With the correct spin, this could even be made to seem a good idea, inching along year by year until 20 years from now people think it's normal (ala Nazi takeover of German Politics).
The States/Cities already have monopolies such as electricity and water, for good reasons though. The scary part is there are also ``good reasons'' for the states to have businesses/monopolies/anti-patent protection for other things as well. Where does the line get drawn?
States Rights (Score:1)
Individuals need to be protected from the States by a federal government today. The federal government has the burden of accomodating people from wildly different walks of life, and is more resistant to regional bigotry and lunacy. Individual inventors should be protected from State governments using their work freely; especially in an age where State governments run lotteries, stores, auctions and other commercial establishments. Otherwise the patent system will be defeated-- would you seek a patent or rely on a trade secret if the patent allows a State government to use it for free and keeping your technology secret allows you to contract to the State? It's bad enough that the federal government can abuse patents by classifying them and claiming "National Security".
That said, I get a sick feeling every time I think about some patents-- like software ones. These completely restrict innovation by preventing people from using the best algorithms and letting large companies eat up mindspace and prevent small companies from producing products. Has the GIF patent really helped the state of the art? Maybe-- it forced the open source movement (when did we become a movement? I'm getting media blitzed) to introduce PNG and JPEGroup to work on JPEG2000.
It seems most companies (at least the ones I've worked for) pursue patents not because they intend to use the technology, but to prevent someone else from using the technology to obsolete the company's ancient business plan and technology. Rumor has it that oil companies patent the heck out of alternative energy sources to prevent them from being used...
-m
GPL (Score:1)
One seemingly small nit . . . (Score:1)
from "the people," not from "the states."
It seems like a small point, but it was this
very distinction that justified the formation
of a Federal government in the first place.
ummm, no (Score:1)
Re:Sovereign Immunity (Score:1)
Whilst I, too, am not admitted to the practise of law, being a concerned libertarian (yes-- small 'l') I have soemthing of a vested interest.
Cheers,
Drieux
...sans most of the usual caffiene load....
The Poop on States Rights v. Patent Clause (Score:1)
Previous posters are correct that Article I of the Constitution expressly gives Congress the power to regulate interstate commerce, establish patent monopolies and pass laws necessary to enforce those rights.
However, the Supreme Court a few years back reviewed the scope of those powers concerning the federal government's power to regulate states relationships with Indian jurisdictions in view of the 11th Amendment. In short, the Supreme Court held that the 11th Amendment, which was passed after the Commerce Clause, was found to trump it.
And so, the problem in Patent cases is precisely the same -- both the Commerce Clause and the Patent Clause are in Article I, Section 8. By a straightforward application of the Seminole Tribe opinion, the States would lose.
So the State's law issue has already been decided in the Seminole Tribe case. The interesting new fillup in the Patent case (Florida Prepaid College Fund, or something like that) is that a patent is a PROPERTY interest. Now the 14th Amendment (passed after the 11th, says that a state may not take property without compensation, and Article 5 of that clause says Congress may pass laws to enforce it.
Oral argument was held a few weeks ago. Most of the scuttlebut I have heard convinces me that its the usual tea-leaves reading, and noone knows how they will decide.
It will be very, very interesting, but will have little impact except upon patentholders who are suing states directly. Moreover, I anticipate that many states will probably waive S.I. in the interest of "attracting" technology companies.
CAVEAT: the preceding argument is quite intentionally thinned and simplified. I KNOW that it skirts many relevant legal issues, but believe it is nevertheless useful in explaining what this case is about for those who are interested in the broad strokes only.
Re:The Poop on States Rights v. Patent Clause (Score:1)
Sorry -- this is a typo. The straightforward application of Seminole Tribe to the Florida Prepaid Credit patent case would have the states winning.
Re:I have 1 word for you folks: Preemption... (Score:1)
First of all, you must recognize that as between an act of Congress and a provision in the Constitution, the latter controls. Not bad for your position, since Article I, Section 8 provides that Congress can promulgate patent laws.
But its still not enough. You must also recognize that Amendments trump plain language of the Constitution. Even if an act of Congress falls within an enumerated power, if it is barred by a subsequent Amendment, no dice.
The Eleventh Amendment is the subject of this case, and the Supreme Court has already held that the Commerce Clause (also in Article I, Section 8) doesn't trump it. So, where would Congress get the power to "preempt" with regard to sovereign immunity -- the right of the STATE itself to be free from suit?
The Supreme Court is presently considering this issue, contemplating whether the 14th Amendment trumps the 11th in this regard.
Time will tell. Meanwhile, although you had the right idea to get the ball rolling, the full analysis is somewhat more interesting.
Federal Courts and State Sovereign Immunity (Score:1)
Under the Constitution's Supremacy Clause, the state courts have to apply federal patent law, anything in the state's own laws notwithstanding. If a state court refuses to apply federal patent law, or misapplies it, review of the state court's final decision may be had in the U.S. Supreme Court under 28 U.S.C. s 1257.
There may be a few instances where a state may claim sovereign immunity in its own courts, and the 11th Amendment will prevent you from suing in federal court. But a state can't simply refuse to entertain federal patent suits in its own courts.
The Supreme Court recently affirmed in Howlett v. Rose, 496 U.S. 356, 357 (1990), that if a state wants to assert sovereign immunity in its own courts, it must do so by means of a neutral rule that does not discriminate against federal law. In the words of Justice Stevens: "The Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source. A valid excuse may exist when a state court refuses jurisdiction because of a neutral state rule of judicial administration
Patent infringement is a kind of tort, and to exempt itself from patent suits in its own court, a state would have to deprive its courts of the power to hear all tort suits against the state. If you live in a state that has totally exempted itself from all tort liability, not being able to sue for patent infringement is the least of your worries.
There are a few big reasons to want to be in federal court, but they don't have anything to do with whether states are subject to federal patent law. Federal courts have much greater patent law expertise, particularly at the intermediate appellate level. Many people consider the quality of the judges to be generally higher than in state court. Patent lawyers are familiar with federal courts, and don't want to have to learn their way around an unfamiliar forum. Proceeding in state court adds cost because there is an additional level of appeal before the U.S. Supreme Court.
Hope this hasn't confused things more.