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A related concern, framed most prominently by Andy Coan, is that courts have difficulty crafting rules that can be applied cleanly and reliably.312 Any lack of clarity, or the choice to employ standards rather than rules, risks overwhelming the courts’ dockets with litigation by parties who are confused, motivated by strategic considerations, or both.313 The Supreme Court’s jurisprudence on patentable subject matter may be an example of this failing. While the Court has set out three concise categories of exceptions to patentable inventions—laws of nature, natural phenomena, and abstract ideas314—those rubrics have defied easy explication. The Court has had to return repeatedly to each category in an effort to provide definitional rigor to them and has thus far failed to craft clear tests for what is in or out of bounds in terms of subject matter. Thus, even if the federal courts possessed the expertise for detailed decision making about patent and copyright policy —and perhaps the Federal Circuit might—they lack the capacity to do so at the necessary scale.315 Only the more political branches possess the personnel to process these problems.

Second, why are there judicially-created exceptions in the first place? If the United States Government decides not to issue patents to certain types of creations that would otherwise fall within the four statutory categories, such as diagnostic techniques, it is up to Congress to consider, debate, and decide what those exclusions are. Courts are not well-suited to consider what are fundamentally major policy issues. The Constitution binds the Judiciary to hearing cases and controversies.30 As such, courts must take cases as they come, and decisions must be limited to the facts and issues at-hand. This is not conducive to crafting broad patent policy and providing certainty to industry. In addition, decisions in one case as to whether an invention falls in or out of a judicial exception leaves future applicants, litigants, and courts to guess how the exception might apply to their inventions, which are often very different from the precedent.

This leads to the third part of the problem: The judicially-created exemptions are confusing. The guessing game of how to apply these decisions to other inventions leads to distorted legal outcomes and significant uncertainty. For example, in Athena Diagnostics v. Mayo Collaborative Services, the panel majority held that medical diagnostic methods for “diagnosing neurological disorders” are not patent eligible because they “are directed to a natural law and lack an inventive concept.”31 The panel majority reached this holding despite acknowledging that “Congress intended statutory subject matter to include anything under the sun that is made by man.”32 This is because the panel majority felt bound by the Supreme Court’s exception analysis of an entirely different invention in Mayo Collaborative Services v. Prometheus Laboratories33 (referred to as the Mayo/Alice framework by practitioners), stating: “[W]hether or not we as individual judges might agree or not that these claims only recite a natural law, the Supreme Court has effectively told us in Mayo that correlations between the presence of a biological material and a disease are laws of nature.”34 Various judges in four dissents to a denial of rehearing en banc voiced dismay over the confusing nature of the judge-made exceptions. The common theme amongst the dissents was the idea that one Supreme court decision—in this case, Mayo—could not be read so “broadly” to preclude any and all types of diagnostic methods that the Supreme Court inherently could not have considered in merely one case and controversy involving a separate patent.35 As Chief Judge Moore observed, however, the fact is that, “[s]ince Mayo, we have held every single diagnostic claim in every case before us ineligible.”36 Indeed, the Chief Judge said, “[w]e have turned Mayo into a per se rule that diagnostic kits and techniques are ineligible.”37

There’s long been a debate about the relationship between the Supreme Court and change within the legal academy. During the heady days of the Warren Court, law professors touted Brown v. Board of Education as the paradigm of the productive role that the court could play in effecting change. It was precisely because judges stood above politics, many thought, that they could serve as the nation’s conscience. The conventional wisdom has shifted dramatically. Scholars have questioned the efficacy, even the wisdom of the court’s intervention in Brown. They began to notice that much of the work of integration was done by organizers, not lawyers, and pushed through Congress, not the courts. The much-maligned Roe v. Wade eventually displaced Brown as the paradigm of judicial intervention, and worries about a political “backlash” to judicial decisions came to the fore. We’ve thus reached a point where the conventional wisdom against judicial intervention has become as powerful as the opinion once favoring it. The truth, of course, is somewhere in the middle. The court can’t effect social change top-down, but it can’t sit on the sidelines, either. That’s because social movements are almost always rights-oriented. Supporters cast their claims in rights-based terms, and movement leaders inevitably look to the courts for validation. The best way to understand the relationship between politics and law, then, is as interlocking gears moving us forward. Advocates push for change in the political and social sphere, which in turn creates space (and pressure) for the courts to effect change in the legal sphere. Rights are invoked by advocates before they have been recognized by judges. Think about the same-sex marriage movement. While much of the work was done on the democratic and social front, it rested on appeals to constitutional values, which all but inevitably morphed into appeals to the courts. Indeed, courts served as important sites of politicking for the same-sex marriage movement precisely because they are thought to be above politics. Perhaps, then, our paradigmatic case for thinking about the relationship between change and the court shouldn’t be Brown or Roe but Windsor, Obergefell’s precursor, which invalidated the federal refusal to recognize same-sex marriages. While Obergefell puts the court at the center of the debate, Windsor emphasized the crucial role that the people themselves played in creating the constitutional right to marry. As I’ve written elsewhere, Justice Kennedy specifically acknowledged in Windsor that advocates of same-sex marriage had changed what liberty and equality mean in this country. Throughout this debate, the courts haven’t been in the lead in effecting change, but they have been an integral part of the process of change. That complex reality doesn’t lead to easy claims about whether we need a Supreme Court or not, but it has the virtue of being true.

I have two methodological worries about the book. First, in his view, causation can only be demonstrated when an event (a court case) revs up massive social transformation from a dead stop, with nothing else around that could pos- sibly account for the change. He finds little court influence, because (1) the world was changing before the court decision and the trend simply continued afterward, or (2) the change that occurred after the court decision was argu- ably caused by the same social movement that produced the court challenge in the first place and so the unique contribution of the court's decision cannot be determined, or (3) there was little immediate change (though there was later change), and so the causal chain is broken by the intervening years and intervening events. Given Rosenberg's strict picture of what would count as causation, it's not surprising that he finds little influence of the court in any area of social policy; causation probably doesn't hap- pen that way in the social world. For one thing, the cases that he discusses were accompanied by social movements that were trying to push all the levers of power at once. Under circum- stances like that, it's always hard to disentangle causes. For another thing, large-scale social change often happens because many forces per- colate through a complicated social order and are altered in the process of achieving change. The relatively blunt measures Rosenberg uses are not well suited to picking up these influ- ences, although he makes a major effort to as- sess influence in a number of different ways. From the evidence he presents, Rosenberg can convince us that there is not enough for us to believe that there is causation in any rigorous sense (and this is a very important contribution to the debate over judicial impact), but he can't convince us that there is no causation going on here at all. Unfortunately, he tries to argue the latter case. Second, Rosenberg never considers counter- factuals. How is it possible to assess the influ- ence of the court on anything without consid- ering what would have happened if the decisions he studied had gone the other way? Since Rosen- berg considers only liberal successes, we can't tell. Of course, studying counterfactuals empir- ically is a chancy matter in investigating singu- lar real-world events, so the best social scien- tists can do is to sample cases to study that present variation in outcomes. But Rosenberg doesn't do this. If he had also studied cases where liberal causes were not victorious (e.g., in Bowers v. Hardwick, where gay rights groups were dealt a setback) and then looked to see what happened when the social movements didn't have the court decision on their side, his argument would have been more convincing. But the final conclusion that he draws, that lib- erals have wasted their time by trying to win court cases, is simply not sustainable on the evidence he presents.

Accordingly, in deciding who should be the authoritative interpreter of the Constitution, the answer is the branch of government that can best enforce the Constitution's limits against the desires of political majorities. By this criterion, the federal judiciary is the obvious choice. It is the institution most insulated from political pressures.2 Article III of the Constitution provides that federal court judges have life tenure unless impeached and that their salary may not be decreased during their terms of office.28 Unlike legislators or the President, they never face reelection.

29 Furthermore, the method of federal judicial selection reinforces its antimajoritarian character. Unlike the House of Representatives, whose members are elected at the same time, or the Senate, where one-third of the members are chosen in each election, the President appoints the Court's members one at a time, as vacancies arise. 30 “Generally, no single administration is able to appoint a majority of the Court or the federal judiciary. The result is that the Court reflects many political views, not just the one that dominates at a particular time.

But these opinions, viewed favorably by a majority of Americans, according to polls, do more than protect the court from excessive partisan backlash. They also provide cover to members of Congress, who might otherwise have been faced with defending their ideological positions on these matters in a general election year.

The public’s support for LGBTQ rights and DACA is at an all-time high, so it’s not surprising that numerous Republican senators were quick to comment on these decisions, stating that they accepted the court’s decisions as final. Even President Trump, when remarking on equal employment rights for LGBTQ individuals, said that the justices had ruled and he will “live with their decision,” referring to Justice Gorsuch’s opinion as “very powerful.” A week later, the Trump administration was handed a victory regarding its preferred asylum procedure when Justices Ruth Bader Ginsburg and Stephen Breyer concurred with the court’s traditionally conservative bloc.

Absent, too, in the modern Congress is any real sense that the Supreme Court can be brought to heel: say, by constitutional amendment, by stripping the Court of funding, by hauling in members of the Court to justify their rulings before congressional investigatory committees, by appointing special counsels to review and report back on what the Court does, by impeaching the Justices (or locking them up), or by simply ignoring or defying judicial rulings. Perhaps the Court does not rule in ways that offend enough members of Congress (or their constituents) for them to invest the energy—and political capital—required to generate these sorts of measures. Perhaps, instead, members of Congress do not consider such measures appropriate in our constitutional system. In either case, modesty on the part of Congress is the result, even in an era when a single party controls both the Congress and the White House. The lesson for the Court is that so long as it continues doing—more or less—what is has done in recent years, it has very little to fear from the Congress.

CONCLUSION

An unexpected feature of this year’s gubernatorial race is the revival of certain political notions identified with early American history. Republican candidate Debra Medina in particular has made nullification a major aspect of her campaign, both in her two debates with U.S. Sen. Kay Bailey Hutchison and Gov. Rick Perry and on her Web site, which includes, under the label “Restore Sovereignty,” the message that the U.S. Constitution “divides power between the federal and state governments and ultimately reserves final authority for the people themselves. Texas must stop the over reaching federal government and nullify federal mandates in agriculture, energy, education, healthcare, industry, and any other areas D.C. is not granted authority by the Constitution.”

She does not specify the mechanism by which nullification would take place, but, obviously, she appears to believe that the legal authority to nullify is unquestionable, making it only a question of political will.

The contemporary revival of globalist utopianism is distinctive from its 1940s precedessor in a crucial respect: it post-dates the U.S. Supreme Court's Brown v. Board of Education (1954) decision and the judge-led "rights revolution" it inaugurated. This revolution was closely followed, and proved highly influential around the world, inspiring many countries to accept the radical empowerment of their judiciaries at the expense of democratically elected legislatures. Whereas the traditional, post-war study of comparative constitutionalism was aimed at scholars and constitutional drafters, today comparative constitutionalists are speaking chiefly to lawyers and judges. Brown, the proliferation of litigation advocacy groups it inspired, and the rise of public law litigation, reversed the traditional progressive suspicion of judges as the (anti-democratic) handmaiden of economic elites and helped create the modern identification of judicial power with progress, civil liberties, and civil rights. The rise of Kantian legal theory, in turn, which envisaged the judge as the heroic tribune of universal morality, reinforced the moral authority - and, hence, political power - of the judge, and inflated his governing pretensions worldwide. For various reasons, foreign judges, post-1989, found the judicialized American politics increasingly attractive as a model. The U.S. Supreme Court, the European Court of Justice ("ECJ") duly noted, had helped to nationalize American politics by gradually negotiating away key aspects of the sovereignty of the American states. Nations newly emerging from dictatorships, and countries paralyzed by legislative and executive sclerosis knew that the Warren Court (1953-1969) had broken the southern stranglehold on Congress in the name of unimpeachable national goals. Cognizant of this American success story, they turned optimistically to courts to break their own policy deadlocks and advance the causes of civil liberties and human rights. Unlike their American counterparts, however, these judges were not able to defend their assertiveness by appealing to a centuries-old tradition anchoring judicial review in constitutional popular sovereignty. Instead — and crucially — they anchored their claims to political power in their participation, as fellow professionals, in a global project involving the identification and protection of human rights, the stewardship of the "new" international law, and the technical improvement of the quality of constitutional reasoning generally through transnational professional consultation. For judges in nations that were not so long ago living in isolation and tyranny, drawing a demonstrable connection to a worldwide project involving a movement toward "global governance" became a key source of judicial legitimacy. For them, put otherwise, the process of "judicial globalization" was itself the sine qua non of the construction of judicial legitimacy. A feedback loop soon developed. After decades of sustained battering at home, which included major intellectual assaults on [End Page 18] their use of the doctrines of substantive due process and substantive equal protection to justify their assertiveness, American judges - and a wide array of political activists and legal academics interested in the aggrandizement of American judicial power - began to see the opportunities in connecting themselves to this worldwide movement by tapping in to its freshened wellsprings of legitimacy. The currently intense interest of scholars in the doings of judges worldwide is a direct outgrowth of this process.

We’ve been down this road before with President Richard Nixon’s . But there’s no precedent for what should happen if a president defies the Supreme Court. Only a few historical episodes even come close. The most commonly cited case is Worcester v. Georgia (1832), in which the court sided with Native Americans in Georgia against white settlers who sought to remove them from their lands. President Andrew Jackson is often quoted as defiantly saying to colleagues, “[Chief Justice John] Marshall has made his ruling, now let him enforce it!”

Except, as best as historians can tell, Jackson made no such remark. And regardless of whether or not he said anything similar, no such defiance actually took place. Jeffrey Rosen, a George Washington University law professor, the misconception last year:

Judge Posner undoubtedly was correct in noting that the question of whether judges should consider caseload when deciding cases is of some moment" because of the high caseload levels in the federal courts.00 In arguing that the "floodgates of litigation" argument has few valid uses, I have not ignored the fact that the federal courts are quite busy. Nonetheless, I have tried to create a compelling case against using the fear of the floodgates of litigation in judicial opinions as a remedy for the caseload problem. The argument is too flawed to continue to be used in the judicial opinions of the federal courts. The pragmatic uncertainties and inconsistencies,3 0 0 separation of powers problems,30 ' and shaky (and in most cases, absent) statutory basiss° ' combine to outweigh any beneficial effect the argument might have.

One of the most easily identifiable problems with the floodgates argument is that it is rarely, if ever, followed by a true analysis of the potential litigation of which it speaks. That is, one response to a floodgates argument might be, "Are you sure that a contrary position would yield a flood of litigation?" 82 This criticism is frequently leveled against the floodgates argument, especially in the realm of tort litigation. For example, as one commentator has argued: The "floodgates of litigation" argument has proven wrong time and again. The lifting of the "impact" rule in rewarding damages for mental anguish, allowing third parties to recover under contracts, and the recognition of the right to privacy, were all prophesied to overwhelm the courts with frivolous claims. They have not. This argument, one should think, is relatively strong. While the floodgates argument is generally based on policy considerations,8 5 policy arguments are rarely so indeterminate. While moral arguments are certainly not precise--one cannot quantify, say, "fairness" or 'justice"-they are simply used differently. That is, when a judge says that a decision "promote [s] justice,"8 6 he or she [they] is not speaking about a tangible, actual result. In contrast, when a judge expresses that a decision will open the floodgates of litigation, he or she [they] is saying that there will be actual, cognizable caseload results from the decision. Given how often the floodgates do not open when we are warned that they will,"' making the argument without a proper foundation is dangerous. While there certainly are situations in which a judge should consider the implications of a decision on his or her [their] caseload, 8 doing so without considering the factual bases of those implications is problematic.'8 9 And while uncertainty is an unavoidable part of the law,' 90 the language with which the floodgates argument is regularly employed expresses anything but conjecture and uncertainty. The arguments are forceful; they are intended to conjure "[i] mages of a destructive, elemental force."'9' After all, as Judge Posner notes, "So irregular has been the growth of the caseloads of each of the three tiers of the federal judiciary in the past, and so many and poorly understood are the causes of changes in judicial caseloads, that it is impossible to make responsible predictions about future changes.' 92 The failure of judges to recognize this limitation of the argument reduces the weight afforded thereto.

T he above inventory, whil e signifi cant, merely scratches the surfa ce of possibl e congressio nal responses to Supreme Co urt decisio ns. Congress, for example, may enact legislation that seeks to limit the reach of Supreme Court rulings. After the Supreme Cou rt upheld abo rti on rights in Roe v. Wade, 4 10 U.S. 11 3 ( 1973), Congress blocked the use of Medica id and orher federal funds to pay for abortions. Congress also o ffe red reli gious orga nizations federal funds to promote sexual abstinence as a method of birth control. T he Supreme COUIT ap proved both of these sta[Utes and , in so doing, val idated Congress's use of its appropriation powers to respond to Supreme Court rulings (Harris 1). ae, 448 U.S. 297 [1980]). T he Supreme Court also uph eld a 2003 federal statute prohibiting intact dilations and ex tractions, enacted in response to a 2000 Court ruling that a state ban on socalled partial birth abortions was unconstitutionally vague (Gonzales v. Cmhart, 550 U.S. _ (2007 1). Co ngress may also respond to a Supreme Court decision by reenacting a statute that the Court struck down. Fo r example, Congress strongly d isagreed with the Court's 1918 ruling thar the commerce powe r could not be used to regulate child labo r (Hammer v. Dagenhart, 247 U. S. 25 1 [19 18]). The very nex t year, Congress sought to make use of an alternative power (the taxing power) to enact child labor legislation . Again, the Supreme Court struck the statute down (Child Labor Tax Case, 259 U.S. 20 [1922]). In 1938, afte r the Court's composition had changed, Congress aga in based child labor legislation o n commerce clause legislation that a unanimo us Court upheld (United States v. Darby, 312 U.S. 100 [1941]). Congress has also taken aim at Court decisions through its powers to enfo rce the Fourteenth (equal prorection) and Fifteenth (voting rights) Amendments. Rejecting a 1980 Supreme Court decision requiring civil rights plaintiffs to prove intentional discrimination in vote d ilution cases (Mo bile v. Bolden, 446 U.S. 55 [1980]), Congress amended the Voting Rights Act to allow for impact-based proof.~ of vote dilution. Congress likewise disapproved of the 1990 Supreme Coun decision in Employment Division v. Smith, 494 U.S. 872 ( 1990) that limired rhe abiliry of plaintiffs to succeed in religious liberty lawsuits, and enacted legislatio n thar required governmental actors to have a "compelling governmental interest" whenever religious libeny was " burdened. " This legislation , the Religious Freedom Restoration Act (RFRA), was subsequently invalidated by the Supreme Court in City of Boerne 1). Flores, 521 U.S. 507 (1997). Unwilling to accept defeat, Congress enacted a scaled down version of the RFRA, rhe Religious Land Use and lnsrirlltionalized Persons Act (RLUIPA), a statute thar the Supreme Court upheld (against a preliminalY challenge) in 2005 (Cutter v. Willeinson, 544 U.S. 709 [2005]). The RLU1PA statute highlights Congress's willingness to respond to a Court ruling by advancing its policy agenda in ways thar it thinks the Court will approve. When enacting RLUIPA, lawmakers paid close arrention to the Supreme Court decision invalidating the RFRA with Boerne v. Flores, 52 1 U.S. 507 (997), seeking to advance their policy agenda while not calling into question the Court's handiwork. Likewise, afrer the Supreme Court invalidated a stature banning guns within 1,000 fee l' of a school (as an impermissible exercise of Congress's commerce power) in United States v. Lopez, 5 14 U.S. 548 (1995), Congress amended the G un-Free School Zones Act to require the federal government to prove th at th e firea rm had either moved in inrersrate commerce or otherwise afFecred interstate commerce. Another way that Congress expresses its disagreement wirh the Supreme Court is to protecr rights rhat the Court says it need not protecr. Following a 1986 Supreme Court decision upholding an Air Force regulatio n that had prohibited an observant Jew fro m wearing a yarmulke in Golden v. Weinburger, 475 U.S. 503, Congress enacted legislation allowing service members to express their faith by wearing neat and conservarive religiOUS apparel. In 1999, Congress responded to concerns that independenr counsels were overzealous when investigating high-ranking 402 EN CYC L. O PED IA 0 1' THE SUPREME COU RT 0 1' T H E UN ITED ST ATES executive branch officials. Specifically, notwithstanding the Supreme Court's lopsided seven-to-one approval of this statute with the decision of Morrison v. Olson, 487 U.S. 654, in 1988, Congress concluded that the statute was fundamentally flawed and ought not to be reauthorized with the Ethics in Government Act. Congressional responses to Supreme Court decisions are not always hostile. Sometimes the Court invites Congress to enact legislation that would effectively negate a Court ruling. For example, when upholding state power to issue search warrants of newspapers, the Court invited a legislative response noting that its decision " does nor prevent or advise against legislative or executive efforts to establish nonconsititutional protections against possible abuses of the search warrant procedure" (Zurcher v. Stanford Daily, 436 U.S. 547 [1978]). Congress accepted the invitation, passing the Privacy Protection Act of 1980 to prohibit third-party searches of newspapers. On other occasions, Congress affirmatively assists in the implementation of a Court decision . In response to resistance in the South to school desegregation, Congress took bold steps to make Brown v. Board of Education, 347 U.S. 483 (1954), a reality. In 1964, it prohibited segregated school systems from receiving federal aid and authorized the Department of] ustice to file desegregation lawsuits. These federal efforrs proved critical to ending dual school systems. More desegregation took place the year after these legislative programs took effect than in the decade following Brown. As the above discussion makes clear, the Supreme Court does not speak the last word on the meaning of federal statutes or the Constitution. Congress can nullifY Supreme Court interpretations of federal statutes by enacting a new statute or amending an existing law. On constitutional issues, the dynamic is more complex. Congress can respond to Supreme Court constitutional rulings through a variety of techniques, r3.nging from the enactment of the very same statute to the confirmation of Supreme Court justices who are likely to distinguish or overturn disfavored rulings. Through these varied responses to Supreme Court rulings, Congress plays a critical role in shaping constitutional values.

Participants in politics and even students of politics sometimes take positive responses for granted, assuming that when the Supreme Court acts, other people follow its lead. In contrast, scholars who study the consequences of the Court's decisions frequently emphasize limits on the Court's power to change government and society. Those limits sometimes are depicted as the result of courts' attributes as policy makers, especially the weaknesses that Alexander Hamilton depicted in Federalist 78. The limitations on the Court's power are both substantial and consequential, but it is unclear to what extent these limitations distinguish the Court from other policy makers. Arguably, an emphasis on the Court's weaknesses obscures some important realities about its role.

Changing Government

Property rights are a legal platform for commercial activity in the production and exchange of products and services in growing economies and flourishing societies. 72 This well-established economic principle is applicable to all property rights, including intellectual property rights such as patents. 73 Property rights in all assets, including patents, foster commercial activities in innovation markets, as market participants engage in specialization and division of labor in maximizing value creation all along the production and distribution value chain. 74 This key economic insight was first formulated by Adam Smith in 1776 in The Wealth of Nations.75 Property rights can achieve this economic function only when property owners have reliable and effective control over their property. If anyone can violate a property right by trespassing, and the only consequence they suffer is that they must pay the property owner some form of monetary compensation set by a government official following a legal or regulatory process, then property owners can no longer determine how best to use their property in the marketplace. Contracts are replaced by "efficient infringement" in which putative licensees can exploit costly judicial or regulatory processes to depress licensing rates, which reduces the willingness of innovators to create new inventions and invest in new commercial mechanisms for deploying these inventions in the marketplace. 76 This is the legal and economic function of injunctions. Continuing wrongs-ongoing violations of property rights-harm owners (and ultimately society) in ways that are not compensable merely by an award of damages for the trespass. When a trespasser wantonly crosses a farmer's field, the harm to the landowner is not fungible with the one dollar in compensatory damages for the trodden grass. 77 The value to the farmer of the private property is not one dollar. If the trespasser wished to access and use the land, this person should have negotiated with the farmer and paid the market price of this access right based on what he was willing to pay and what the farmer was willing to accept, assuming they could agree on an amount that was mutually acceptable. The injunction secures this capacity of the farmer to require this negotiation by the would-be trespasser. This economic principle-injunctions facilitate market transactions by securing a property owner's right to decide how she will use her assets and sell her products and services in the marketplace-is well recognized by courts in tangible property cases. In Continental Airlines v. Intra Brokers,78 for example, Continental successfully enjoined Intra Brokers' unauthorized resale of Continental's discount airfare coupons, which Continental expressly prohibited in the coupons. 79 In appealing the injunction, Intra Brokers argued that, even if it was liable for its resale of the coupons, the value of the coupons was easily measured by the face value of each coupon; thus, Intra Brokers concluded that Continental failed to prove that it suffered an irreparable injury that could not be remedied by a legal remedy (damages). The Ninth Circuit decisively rejected Intra Brokers' argument, stating that "Continental was entitled to control whether its coupons were transferred." 80 The court held that Continental had proven irreparable injury because the harm to Continental was to its power, not its purse. [Regardless w]hether Continental is right or wrong about the effect of coupon brokering on its profits ... it is entitled to make its own decisions about whether to give out discount coupons, and whether to make them transferrable or nontransferable. Neither Intra nor the courts are entitled to substitute their business judgment for Continental's .... 81 In Pardee v. Camden Lumber Co., the West Virginia Supreme Court similarly held that a trespasser who cut down the trees of a landowner could not simply elect to pay the landowner damages representing the fair market value of the trees.82 As in Continental Airlines, the defendant in Pardee argued that it was possible to precisely measure the monetary value of the trees and to pay this amount in damages to the plaintiff landowner. The Pardee court soundly rejected this argument, observing that this economic fact was insufficient to remedy the legal injury suffered by the landowner. 83 The property owner's harm was to its power of dominion, not merely to its purse. The court recognized that the fundamental policy function for "all forms of property either real or personal" is that courts "guarantee to the owner of property the right, not only to possession thereof and dominion over it, but also its immunity from injury." 84 The court further recognized that real estate is truly unique because "no two pieces of land are alike in all respects," and thus courts cannot assume as a default rule that fair market value (damages) is fungible with the full value of the real estate to its owner. 8 5 In securing control rights over property, courts protect fully not only the commercial decisions that make possible private-ordering decisions in business models and market exchanges, but they also secure the liberty interest in how people may choose to live their lives,8 6 to secure their privacy rights,87 and to create their own business models and develop corporate goodwill with a reputation as innovative companies. 88 As the Wisconsin Supreme Court recognized in another famous trespass case: "[T] he actual harm is not in the damage done to the land . . . but in the loss of the individual's right to exclude others from his or her property." 89

Chief Judge (Retired), U.S. Court of Appeals for the Federal Circuit.; † Founding Partner, Dowd PLLC.; Understanding the Errors of eBay; The Criterion Journal on Innovation; vol 2;

During the past ten years, eBay has caused significant mischief and damage to the patent system. Not surprisingly, the grant rate for injunctions has fallen significantly, with injunctions being denied in about one-third of cases.32 Patent values, as measured by public sales, plummeted during the last ten years compared to the ten-year period preceding eBay. This result decreases the value of intellectual property because it undermines the enforceability of the exclusive right and it makes it more expensive to obtain a remedy for adjudged infringement. eBay has also led to trial courts needing to address scenarios where the infringer continues its infringing activity after the finding of infringement. Absent an injunction, the infringer will generally have little incentive to cease infringing activity.33 Future law suits may need to be filed, requiring a patent owner to, again, carry the burden of proof and spend significant sums to vindicate his rights as if the earlier judgment never occurred.34 The Federal Circuit’s “general rule” also recognized the awkward, untenable position of setting royalties for the future without, of course, any expertise or data about future market forces and competitive circumstances. As one commentator observed, eBay “has placed courts in the license-drafting and license-administration businesses, a result they would probably eschew if they had foreseen the problems associated with it.”35 It is one thing to ask trial courts to ascertain past damages, but quite another to require trial courts to speculate about the future cost of infringement.36 Although some courts have issued awards for ongoing royalties for continuing infringement,37 “a comprehensive methodology for determining ongoing royalties has yet to emerge.”38 Indeed, is not every infringer who continues infringement after judgment a “willful” infringer? Importantly, eBay fails to recognize the uniqueness of patents as a property right and the role injunctions play in protecting that right. The Constitution itself defines the patent grant as a right to exclude. “Exclusivity is closely related to the fundamental nature of patents as property rights.”39 The uniqueness of the patent grant has been recognized in other contexts as well, including disputes over the ownership of patents.40 Perhaps the most ironic result of eBay is the creation of categorical rules—the very rules the Court cautioned against. The recent study by Christopher Seaman demonstrated that “district courts have applied eBay in a manner that awards permanent injunctions to operating companies who compete with the infringer in the vast majority of cases, while simultaneously denying them to most PAEs and non-competitors.”41 Indeed, according to his study, injunctions were granted in 84 percent of cases involving competitors, compared to only 21 percent of cases involving non-competitors.42 The grant rate was similarly dismal for so-called patent assertion entities: PAEs obtained in an injunction in only 16 percent of cases.43 This confirms other reports of disparate issuance of injunctions.44 This disparate result is incongruent with the patent right, however. The exclusive right granted by the patent is not conditioned on its owner practicing the patent to make a product.45 Patent law has long confirmed that a patent owner need not “practice the invention” in order to enjoy the benefits of the patent grant.46 Therefore, one’s status as a non-practicing patent owner (whether an NPE, a PAE, or a research university) should have no effect on enjoinability. eBay has had a profoundly negative effect on the enforceability of U.S. patents, including patents whose validity is beyond doubt. With the likelihood of an injunction severely diminished, patent infringers appear less willing to cease infringing activity. In contrast to U.S. practice, injunctions are routine in Germany and other European countries and becoming so in Asian nations, particularly China, for all technologies and all types of owners. Investment money is mobile and flows toward the high-value assets. eBay has crimped patent rights and thereby diminished investment incentives in the United States. The result: reduced research and development, less job creation, lower economic growth, and diminished American global competitiveness. This cannot be what the Supreme Court intended, but it is how the Kennedy concurrence is being implemented by most district courts that ignore the less forceful Roberts concurrence. The time has come for the Court, or at least the Federal Circuit, to rescue America from this folly.

5-1-2009. https://academic.oup.com/chicago-scholarship-online/book/17136/chapter/174495140

Even if industry-specific patent legislation is legal, we are not persuaded that it is a good idea, for several reasons. First, while economics can make useful policy suggestions as to how patents work in different industries, we are skeptical of the ability of a statute to translate those suggestions into detailed patent rules for each industry. Many of the predictions of economic theory are fact-specific—they suggest different factors that should bear on the outcome of particular cases, but that require case-by-case application that cannot easily be captured in a statute. Economic theory is more useful in making general suggestions about how the patent system can be adapted to particular factual contexts than it is dictating hard and fast statutory rules.

Intellectual Property rights play a pivotal role in the business world, shaping strategic planning and competitive strategies. These rights, encompassing areas such as patents, trademarks, and copyrights, safeguard a company’s intellectual assets and prevent unauthorized use or reproduction. This legal protection promotes innovation and creativity, enabling businesses to maintain a competitive edge by securing exclusive rights to their inventions or distinct brand elements. Furthermore, intellectual property rights can significantly enhance a business’s commercial value, acting as key factors in investment decisions or acquisition discussions. Thus, understanding and effectively leveraging IP rights is integral to a company’s economic growth and success in the digital economy.

Importance of IP Law Precedent

A. Proposed Reforms of Existing Law While Copyfraud anticipates that the legislative system will deal with copyright abuse, I suggest that the judicial system may prove a more effective venue for some reforms that Mazzone recommends. Copyfraud proposes, for instance, that Congress revise U.S. copyright statutory damage rules so that legitimate fair users will feel freer to engage in lawful (if edgy) uses of copyrighted works (pp. 201–03).82 Under current law, a successful copyright claimant can opt for an award of statutory damages instead of actual damages.83 The normal range for statutory damage awards is between $750 and $150,000 per infringed work.84 Mazzone believes that the risk of substantial statutory damage liability has undue chilling effects on users (pp. 202–03). Imagine, for instance, a town historical society that owned a set of 100 historically significant photographs by an unknown photographer from the 1960s, which it wanted to post on its website. Even if the society firmly believed doing so would be fair use, it might well refrain from posting the photographs online because of its potential exposure to a statutory damage award that could send it into bankruptcy.85 Mazzone would have Congress limit statutory damages for noncommercial infringements (p. 203). Reform of copyright’s statutory damages provision would be a very good idea.86 However, Congress seems unlikely to reform it as Mazzone recommends, given that copyright industry groups favor statuto-ry damages awards precisely because of their deterrent (that is, in terrorem) effects.87 A more feasible way to reform statutory damages would be to persuade judges to adopt guidelines to ensure that statutory damages awards are “just,” as the statute says they should be.88 In many cases, this approach would mean awarding an amount that approximates actual damages, and in some cases, courts have done just that.89 Another reform recommended in Copyfraud concerns contractual and technical measures aimed at overriding lawful uses of public domain or copyrighted works.90 The book recommends that Congress enact legislation to forbid contractual overrides to fair use (for example, anti–reverse engineering clauses in software licenses) so that such restrictions would be null and void (pp. 114–15). Mazzone would similarly have Congress amend laws outlawing circumvention of technical protection measures (TPMs), which are used to protect copyrighted works, so that circumvention for fair use purposes or for purposes of accessing public domain materials would be lawful (p. 93). Given the failure of previous legislative efforts to limit contractual overrides to fair use and to enable circumvention for fair use purposes,91 Copyfraud’s proposals are admirably idealistic, yet unrealistic. As with statutory damages reform, a more viable way to accomplish these objectives would be to persuade courts to treat contractual restrictions on fair use and other privileged uses as unenforceable on public policy grounds.92 Mazzone might also find comfort in plausible interpretations of the anticircumvention rules under which circumvention for fair use and other public interest purposes is already lawful.93 A complete ban on contractual or technical overrides to privileged uses may be overbroad.94 Copyfraud also recommends that Congress amend fair use to make it lawful to take samples from existing sound recordings to make new recordings (p. 65),95 but if Congress truly cared about creative sampling of sound recordings as fair use, it would probably have already taken action, given how well known the problem is. The book further recommends that initial purchasers of digital copies of or access rights to copyrighted works should have the right to transfer that copy or access right (p. 135), which would allow purchasers to resell these copies, give them away to friends, or donate them to nonprofit libraries. Congress has, however, had a chance to be receptive to a similar recommendation but declined the opportunity.96 Courts are a more likely venue than is Congress for achieving these two reforms. Courts could become more receptive to sampling as fair use and could draw upon common law exhaustion of rights principles to allow resales of digital copies.97 Nor is Congress likely to amend the Digital Millennium Copyright Act98 (DMCA) so that users would have considerably more due process rights with respect to materials they have stored on ISP sites that copyright owners claim are infringing, as Copyfraud recommends (pp. 92–93).99 Under Mazzone’s regime, a user would first have the chance to oppose a takedown notice, whereupon the ISP would do nothing unless and until the owner filed an infringement lawsuit (p. 93). Perhaps Mazzone is right that more should be done to encourage ISPs to take fair use and free speech principles into account when they process takedown notices, but it seems inefficient to require copyright owners to file a lawsuit when sending a letter identifying infringing works and asking the ISP to take them down would resolve most disputes. Courts are more likely than is Congress to interpret the noticeand-takedown rules in a way that takes into account public interest concerns.100

As described in Part III, copyright and patent law now overlap in two significant areas: computer software and mask works may receive both forms of protection simultaneously. Overlapping protection in these areas disrupts both the patent and copyright bargains. Each of these bargains falls apart when an alternative form of protection is available for the invention or creative work. When both patent and copyright protection are available, the public will be deprived of some of the benefits that would otherwise flow from the grant of a patent. If a patented invention is also protected by copyright law the inventor will still be required to disclose the invention fully as required under patent law, 200 but copyright law may prevent later inventors from developing and profiting from improvements. 20 1 Copyright law will stymie the right to make improvements on a patented article because even if patent law would permit the improvement, under copyright law the improved version likely would be considered substantially similar and therefore infringing.20 2 Thus, while the patentee continues to receive all of the benefits of patent protection when she obtains a copyright as well, the public does not receive all of the benefits of patent law when overlapping protection is available. Prohibiting improvements to patentable items affects another of the goals of intellectual property policy: furthering a competitive economy.203 In the patent context, the rules concerning blocking patents and the reverse doctrine of equivalents permit others to make and patent improvements on previously-patented inventions.20 4 The ability to patent improvements is considered "socially desirable" because, in the patent context, incremental improvements may result in enormous efficiency gains.20 5 Improvability permits greater competition, reduces barriers to entry, and therefore ameliorates some of the harm caused by granting patent rights. Using copyright law to limit the ability to make improvements to patented articles thus disrupts and distorts the intellectual property balance. By securing both forms of protection, the programmer or software engineer (or her employer) also gets the benefits of copyright law: an extended period of medium-strength copyright rights and the right to prevent others from making substantially similar copies, even if those include novel and nonobvious improvements that would otherwise be patentable. 20 6 The public may get increased production of software, but it is deprived of a variety of the rights that generally flow to it from the grant of copyright rights. Even if another programmer independently creates a substantially similar program-something that copyright law does not condemn-the patent rights would prohibit such activity. 20 7 In addition, as long as the patent is in effect, no one may make fair use of the program, even though such use would be permitted under copyright law.208 Finally, the availability of multiple forms of protection in the patent/copyright context (or within any other area of overlap) makes it impossible to evaluate the incentive that has been provided. If both patent and copyright protection are available, Congress will not be able to determine whether the copyright incentives or the patent incentives spurred the new creation. 209 It may be, for example, that copyright protection whatever defects it may suffer-provides sufficient incentive for the creation of new software. 210 If that is true, the addition of patent protection for software was not only unnecessary but socially harmful; unnecessary because enough software may be created without the benefit of patent law and harmful because to provide greater rights to the inventor deprives the public of some of the rights it otherwise would receive. This is problematic from a utilitarian perspective. The utilitarian theory of intellectual property protection prescribes that rights are to be granted at the lowest cost to society. Overlapping protection raises a significant risk of overprotection by granting more rights and imposing greater costs than necessary to encourage the production and dissemination of inventive and creative works.