Friday food for thought: Is eBay a gauntlet?
Did the Supreme Court throw down the gauntlet, i.e., issue a challenge, to Congress in its eBay v. MercExchange decision? Did the Court, in essence, challenge Congress to clarify its exercise of the Patent Power?
I think it did.
Consider the following —
The Constitution, in the enumerated legislative 
powers section (Article 1, Section 8), states that “The Congress shall have Power To…promote the Progress of Science and useful Arts, by securing for limited Times to…Inventors…the exclusive Right to their respective…Discoveries.” (emphasis added)
…the exclusive right…
Congress, of course, has exercised this “Patent Power” by enacting the Patent Act, which indicates that courts “may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.” (35 U.S.C § 283) (emphasis added)
The eBay Court focused on this language of the Act when it rejected the Federal Circuit’s rule that resulted in the nearly automatic issuance of an injunction:
“Nothing in the Patent Act indicates that Congress intended such a departure [from the long tradition of equity practice]. To the contrary, the Patent Act expressly provides that injunctions “may” issue “in accordance with the principles of equity.” (emphasis added)
The Constitutional grant of the Patent Power to Congress says nothing about “may” or the “principles of equity.” Nothing. The eBay Court seems to indicate that Congress, through the injunctive relief provision of the Patent Act, has chosen to exercise less than the full power granted to it by the Constitution; that Congress gave us a diluted version of an “exclusive Right;” and that Congress must indicate whether it wishes to exercise a broader version of the Patent Power.
So there’s the gauntlet. The challenge. Does Congress wish to continue with the current diluted version of its Patent Power, or does it wish to exercise a broader version of that Power?
Answering the challenge, of course, requires consideration of fundamental questions about the purpose of the patent system and its effects on our society at large. The eBay case, in my mind, strikes at the core of the patent policy issue. A responsible Congress would accept the challenge and evaluate its exercise of the Patent Power. Maybe use of the full power is warranted and desirable. Perhaps the diluted version serves us better. Maybe something in between would serve us best. Maybe there are many, many questions that need to be asked and answered (note, for example, that the Constitutional grant of the Power seems to indicate that the “exclusive Right” is reserved for Inventors).
The challenge has been made. Questions need to be asked….and answered.
(picture is cover art for the Clint Eastwood film, The Gauntlet)
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