Congress follows on to court action---patent law is replete with examples of codification.

Second, in addition to this wide-ranging "common law" creation of patent doctrines, courts have created substantive doctrines in interpreting and applying statutory provisions in the Patent Act. These judicially-created doctrines become "the law" that is subsequently applied by courts. Patent law is replete with them. For example, the "all elements rule" in comparing a patent to a product or process in finding either literal or equivalents infringement is found nowhere in § 271; it is derived from a judicial construction of the phrase "patented invention" in this statutory provision.'12 Once liability has been determined in an infringement action, courts have similarly construed § 284's mandate that a "reasonable royalty" be paid to patent owners, creating the competing legal rules of full market value" or the smallest saleable patent practicing unit."4 Neither of these phrases is in the statute. Additionally, there is the Georgia-Pacific test,"s the infamous fourteen-factor test for assessing a reasonable royalty that Judge Richard Posner has characterized as "baloney."" 6 In court opinions for the past four decades, the Georgia-Pacific test reigns supreme as the substantive doctrine for awarding a reasonable royalty under § 284-"7 Yet one will search in vain for any multi-factor tests set forth in the otherwise generalized language in § 284. These are but a few examples of what is an otherwise ubiquitous legal fact in U.S. patent law-it is judicial opinions, not statutory provisions, that are the reference point for judges, lawyers and scholars in identifying and applying "patent law."

Another well-known example is the four-factor test created by the Supreme Court in 2oo6 in eBay Inc v. MercExchange, L.L.C. for determining the propriety of issuing an injunction under § 28318 Similar to the multifactor test derived from the judicial "interpretation" of § 284 in awarding a reasonable royalty, one will search in vain for any multi-factor test set forth in the otherwise generalized language in § 283, which provides that patent owners "may" obtain an injunction on a finding of infringement. Moreover, despite the eBay Court's assertion that it was only applying a well-established, "historical" four-factor test for issuing a permanent injunction,"9 remedies scholars have noted that there was no four-factor test used by equity courts in issuing permanent injunctions.-o Thus, eBay is another example of the judiciary creating a new rule in patent law entirely out of whole cloth. These are just a few highlights of untold examples in patent law of "common law"- style judicial construction of the Patent Act in the creation and application of non-statutory legal doctrines.

Congress sometimes has subsequently codified these judicially created doctrines, although these declaratory acts of legislation are unnecessary, as best evidenced by the fact that Congress often leaves many of these judicially crafted doctrines alone. One such codification of a judge-made doctrine occurred in the 1830s when Congress codified what has become known as the "on-sale statutory bar" that was first created by Justice Story in 1829 in Pennock v. Dialogue.m In the patent statutes enacted in 1836 and 1870, Congress codified the increasingly common practice of inventors drafting "claims" in their patents to identify more precisely the "principle" of their invention that is secured by the property right granted to them by the Patent Office.122 In the Patent Act of 1952, Congress codified numerous judicially created doctrines in patent law over the prior 162 years, including, nonobviousness,123 patent misuse,124 continuation application practice,12 5 and secondary liability,126 among many others.

Conversely, Congress has abrogated judicially-created legal tests or doctrines as well. The most famous example is § 103 of the 1952 Patent Act, which was enacted in part to reverse the "flash of creative genius" test created by the Supreme Court in 1941 127 for assessing whether an invention represented an inventive act worthy of being patented. 128 In the 1952 Patent Act, Congress also abrogated the judicially created, non-statutory rule prohibiting patents on "new uses"129 of inventions and the judicial doctrine prohibiting functional claiming,13o among others.

In sum, it is deeply mistaken to assert that patent rights are based solely in legislation, just as it is equally wrong to say that property rights in real estate are based solely in judicial common law decisions. Merely identifying that property rights in inventions are first born from legislation and are vested in their owners by grants of patents issued by the U.S. Patent & Trademark Office is neither necessary nor sufficient to classify these legal rights as public rights. The legislative provenance of patents does not legally differentiate these property rights from other property rights, especially private property rights in land. Legal property rights in land and in inventions are born of both legislation and judicial common law decisions.