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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.
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State rights v. Patent law

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  • by Anonymous Coward

    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?

  • I don't think this about states' rights. Congress has the power to legislate on patents. This is specific and does not depend on the interstate clause, thus applies to businesses operating in only one state. (The false advertising one probably is based on commerce clause powers and then would possibly not apply to a business not engaged in interstate commerce). The issue here is whether or not you can sue a state for violation of a federal statute in federal court. The constitution says that you basically have to bring suits against states in state court. This grants the states sovereign immunity from lawsuits just like the federal government has. Part of the notion of federalism is that the state governments are not creatures of the federal government and are not subservient to it. Allowing people to bring tort claims against states in federal court essentially shatters federalism because the federal gov't could pass any number of laws that exposed the states to theoretically unlimited damages. (Of course here there is the added question of whether a state operated business enterprise is the same as the state itself).

    IANAL and this is not my area of expertise so if anyone has corrections to what I just said, let me know.
  • IIAL (?) hmm. IA!NAL ? What's the abbreviation for, "I'm a lawyer, but I'm a recovering lawyer, and haven't sued anyone for nearly five years" ? :)

    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.
  • Let me startwith something i should have changed yesterday--sovereign immunity is an entirely different issue, the ability of a sovereign to reject broad classes of claims.

    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 . . .
  • by jd ( 1658 )
    Here's my even more radical conclusion: If your hand goes bad, inject it with antibiotics & treat it with kindness. If it cures it, you're a whole hand better off. If it doesn't, you're no worse off than you would have been.

    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.

  • 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...

  • IANAL but I have studied Constitutional history. Under the 12th(?) Amendment (I'd have to double-check -- it's been a few years), states cannot be sued in federal court. The way people & companies have gotten around this since almost-day-one is to file suit against the relevant people in the state government.
    Christopher A. Bohn
  • It means in a matter of original federal jurisdiction the Supreme Court's long standing case law say that federal law preempts state law.

    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!

  • I'm not a Constitutional lawyer. But I think the following relevant excerpts make one thing very clear: states have no jurisdiction over patent law. Article I, Section 8, Clause 8: [Congress shall have the power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; Article VI, Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. That seems pretty clear to me, eighteenth-century diction aside. It would take a gross distortion of the Constitution to side with the defendant and say that patent law isn't binding on state governments or agencies.

  • 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.
  • This article foreshadows the loss of innocence for the Linux OS.

    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.
  • I meant to reply to the business week article whoops!
  • I recently installed a network for a guy who is making millions selling patented and protected stuff to the US government. Seems that anyone can legally pirate a protected item as long as the federal government is your only customer. He takes the plans to complex objects, finds a simple part, orders the part under a different company name and then uses his micrometer and AutoCad setup to reverse engineer it. He knows exactly how to label his blueprints to get them accepted and how to watch the government supply request lines and just waits for the part to be ordered. As long as his price is even 1 cent below what the company is offering it for, he wins the bid and contracts the part out to a machine shop to be built. He also has a way (that he wouldn't describe to me) to eliminate the original company from being able to sell that part to the government. He calls it bootlegging and he's particularly well suited for it, very meticulous and very paranoid. From what I understand he is actually saving the government money because he can sell this stuff cheaper than the big companies. There's a LOT more to it than I explain here, he took a few years to sort it all out. You can argue the morals of such a thing, but have no illusions, this does work!
  • The (US) federal government doesn't have the right to do alot of the things it does! The 55 mph speed limit, the drinking age set at 21, etc. They don't pass laws about it; they just set _policy_ by witholding tax dollars that have been sent to it by the states. Example: The feds can't set a national speed limit at 55; it's unconstitutional. So what do they do? They raise taxes on citizens, and then refuse to give that money back to the states/people until they set their state speed limit to 55 mph. Voila! Instant national speed limit. No state wants to give away that money, so they pass the law ... It's a slippery slope from there.
  • Yes, but that idea has been perverted since then, and money is not returned to the people individually; rather, it is returned to the states in a lump sum, making it a very big deal to them. That is how the control granted the states by the constitution is wrested from them by the federal govt. And how I got so far off topic! ;-)
  • The States are not the individuals. While I agree that ``method of doing business'' patents shouldn't exist, this would set a bad precedent. It would give states the right to ignore patents. Patents and Copyrights are around to encourage inovation. If the states can steal innovation, it greatly hinders the encouragement of patenting an item/idea. The states are hardly ants, compared to the individual.

    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?

  • Have you ever lived in the Northeast US? The states are way too powerful-- they have too many rights and the individuals have too few. Mass., NY, and Conn. have almost restored things to the way they were prior to the American Revolution-- religious based laws regarding alcohol and recreation, gun control laws that border on the insane, curfews [for young people], huge taxes, and an indirect and unresponsive legislature.

    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...

  • I saw an interesting comment on the GPL last year in an article on the UCC 2B website. The attorney writing an explanation of what liability meant in the software arena commented that "writers of GPL'd software had legal liabilities for their code despite the inclusion of the GPL." His argument was that from a legal perspective, _any_ restriction placed on the user of the software automatically conferred liability for the product to the user. The restriction placed on the user of GPL software is that they have to leave it open. Which this person felt was enough to win the liability argument in court.
  • The Federal government gets its money
    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.
  • by / ( 33804 )
    The Federal government is not any less prone to stupidity and bias than any state government (Bowers v. Hardwick comes to mind). Moreover, if one state screws up then you have the option of moving to another state, whereas if the Federal government screws up, then you pretty much have to flee the government. Gun laws and religion laws are unconstitutional no matter how you slice it, so simply go ahead and use your Federally constructed Supreme Court to nullify them. Please don't destroy our constitutional way of life simply as a matter of expediency.
  • It is not also the case that Federal supercession can be argued here, as in those instances where Federal law has been intrepreted by the Supremes? I have in mind those Second Amendment cases where the several states have decided not to enforce what Congress has decided is 'best' for us all.

    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.



    ...sans most of the usual caffiene load....
  • I am a lawyer, and enough remarks have been made that it appears worthwhile to summarize why this case came before the Supreme Court.

    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.
  • > By a straightforward application of the Seminole Tribe opinion, the States would lose.

    Sorry -- this is a typo. The straightforward application of Seminole Tribe to the Florida Prepaid Credit patent case would have the states winning.
  • Not a bad word, particularly since the Patent Act expressly provides that patent owners can sue states. However, its not the last word. You need more words.

    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.
  • As some previous posts have intimated, this is about where you can sue states for patent infringement, not whether you can. Even if the defendants win here, you will still be able to sue states for patent infringement under federal law in state court in most circumstances.

    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.

Never buy from a rich salesman. -- Goldenstern