Because if We Can't Lie About a Plane Crash, We Won't Be Able to Subvert the Patent Process

United States vs. Reynolds, the 1953 Supreme Court case that codified Executive Branch authority to exert unreviewable power in the name of National Security, is not only based on a stack of crude government lies, it's now apparently being used to screw an inventor out of his royalties. And no, Reynolds didn't come up once during John Roberts' confirmation hearings. (Link via Slashdot.)

Comments

[Kid Handsome]

Isn't it about time that we have an elected commission that oversees whether government claims of national security are even remotely valid. We would elect them (not appoint them)and provided they can get the necessary clearance they could oversee these types of actions. It may not be our best option but at least it isn't a slam dunk for the government.

[Dave W.]

Regular readers of this blog, will know that I am no fan of state secrecy, especially in regards of mysterious air crashes.

I was less troubled by this new case because there is at least some kind of nexus with bona fide secret military information (as opposed to info that is kept secret for political purposes on a security pretext).

However: it does seem like some kind of in camera review and maybe even security clearances for selected opposing counsel could be used to address the secrecy concerns here. Not sure why the Fed. Cir. avoided an attempt to fashion some kind of in camera procedure.

IMO, an in camera proceding is *less* leaky than Rove's office, not more. So what is the Fed. Cir. concern here? Judicial costs? Avoiding balance of respective power issues?

In related news: I have been blogging new Fed. Cir. patent cases for about a month now. The blog is not yet up on line, but maybe I will put it up tonight and get a link on this thread in case anybody is interested in the last couple months of Fed. Cir. patent cases.

[Dave W.]

Oh, and the patent process doesn't need any help being subverted -- the patent process became subverted when the Fed. Cir. gave up on trying to craft any decent standards for obviousness.

Since nothing is obvious, the only way to cabin in undeserving patentees is with collateral attacks on enablement, written description or (most usually) claim interpretation. Although these doctrines do provide a way to take down patents, these doctrines are not meant to and do not distinguish good patents (in the technology sense) from bad, the way obviousness is supposed to.

As a result, the patent system provides some pretty questionable incentives -- incentives to subvert the system by being an "obvious" inventor with a great knack for legalese. Definitely not what they meant when they said "promote progress in the ***useful*** arts!"

[isildur]

My favorite part of that article: government apologist uses the word 'adversaries'.

What adversaries are those, precisely?

Keeping in mind we're talking about couplers for underwater fiberoptics here: is Al Qaeda operating deep-water submarines now? Are there Saudi Arabian deep sea divers who might learn how to bust open a coupling?

I don't even think China has much of a submarine Navy.

I feel like we've entered the post-adversarial age, where no-one is willing to state the obvious: we aren't in a war, cold or otherwise, with a techologically sophisticated power like the Soviet Union. Such a war becomes less and less likely each year. Our 'adversaries' are desperate, low-tech fanatics. They aren't snooping on signals intelligence; they aren't running brute force attacks on 1024-bit key encrypted communication.

The truth, that no-one seems to want to face, is that 'adversaries' is a fig leaf for the real objective: hiding information from the American public. I feel like we'll always have some 'adversary' against which secrets must be carefully kept, no matter how implausible that adversary might be. If we somehow 'won' the war on terror tomorrow, North Korea and Cuba collapsed, and China decided to spontaneously become a liberal democracy... does anyone doubt that a new 'adversary' would be found? Perhaps South American drug kingpins could be the new 'adversary'.

[Hakluyt]

And no, Reynolds didn't come up once during John Roberts' confirmation hearings.

I read the case, the investigatory efforts that followed, etc. a few years ago. Because of that experience I would have thought that it would have been one of the more obvious things to discuss if you are going to discuss the parameters of the national security state.

[Sarnath]

The government's reasoning is disgusting, but considering states get to claim sovereign immunity when infringing on patents, it's not too odd that the feds found a way to do it, too.

[Number 6]

Isildur- The Government Agency Which Shall Not be Named (almost certainly the NSA, given the nature of the operation) isn't afraid that someone will tamper with the cable. They're afraid that people will know that their international calls placed over fiber optic cables are being monitored. Of course, they do now anyway.

And yes, the government's actions here are reprehensible.

[isildur]

Ok, memo to all would-be bad guys:

If your data is not encrypted with a pretty large key, it's being intercepted and read.

If your data is encrypted with a pretty large key, it's being intercepted but not being read.

This is true of any electronic medium through which you're moving data.

Now that they know, can we move past the bullshit secrecy state?

[Peter Tisserand]

I still think patent holders are at risk because of the Kelo decision. We ARE talking about intellectual PROPERTY

[One Unnamed Attorney General]

isildur,

You are hereby ordered to report to Guantanamo Bay immediately. You have been identified as an enemy combatant for providing information to our adversaries.

Please be prepared to select a holy book for us to place in your shit bucket.

[Tom Arnett]

Peter Tisserand,

Patents are monopolies granted by the federal government; they have no natural existence. Application of eminent domain principles to patent law would represent decreased federal authority. Some city planning commission might try it, but ultimately the Supreme Court would side with Congress and the USPTO.

[Dave W.]

"Application of eminent domain principles to patent law would represent decreased federal authority."

The position that patents-bind-everybody-but-our-suppliers is a position of diminished authority, not decreased. It means not only that you write the law, but furthermore that those laws don't apply to you ("you" being the fed gov't here).

I think Peter's parallel to ed law is insightful, whether or not the 5th amendment applies directly to patents.

[Dave W.]

should be: --increased authority, not diminished--