Amicus Curiae Brief — TrafFix Devices, Inc. v. Marketing Displays, Inc.

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Supreme Court, U.S.

FILED

No. 99-1571 | CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

TRAFFIX DEVICES, INC.,

Petitioner,

MARKETING DISPLAYS, INC.

Respondent.

On Petition for Writ of Certiorari

To The United States Court of Appeals

for the Sixth Circuit

Amicus brief Supporting Petitioner, TrafFix Devices, Inc.

Requesting Reversal cs

Permission to file received from both parties.

Malla Pollack

Visiting Assoc. Prof. of Law

Northern Illinois University, College of Law

Normal Rd.

DeKalb, Illinois 60115

(tel) 815-753-1160; (fax) 815-753-9499

mallapollack@niu.edu

BEST AVAILABLE COPY

I. This Court’s Cases Recognize the

Constitutional Bargain Dedicating All Material

Involved in a Patent to the Public Domain

at the Patent’s Expiration

II. The Intellectual Property Clause Requires

the Bargain Theory of Patent Because It Vests

in the Public an Inalienable Property Right Not

To Be Excluded from the Public Domain

Table of Authorit

Cases

Bonito Boats, Inc. v. Thunder Craft Boats, Inc.,

4B9 U.S. 141 (19GH)......cccccesescessscsssonsstieunnennnianinal 5

Coats v. Merrick Thread Co., 149 U.S. 562 (1893)...........000000008 4

College Sav. Bank v. Florida Prepaid Postsecondary Edu.

Expense Bd., 119 S. Ct. 2219 (1999).....cccccsecesseecsesceeses 12

Compco v. Day-Bright Lighting, Inc., 376 U.S. 234 (1964).......6

Goldstein v. California, 412 U.S. 546 (1973)......sscssseseseesereees 5

Kellogg Co. v. National Biscuit Co.,

FOS U.S: 111 CRGGB) nccecsscsncssocvsvensieneisiniannnnian passim

Lochner v. New York, 198 U.S. 45 (1905) .........cccccsseeseeeseeeeeees 12

Midwest Indus., Inc. v. Karavan Trailers, Inc.,

175 F.3d 1356 (Fed. Cir.), cert. denied,

120 S. CR. S27 (RGBD) ..ccrresssctesvesneceennsenpemeniinane 8

Railway Labor Executives’ Ass'n v. Gibbons,

4SS U.S. 457 (1GGR). .00ccsscssvictsanintcbenieinipeananeaanaan 7

Singer Mfg. Co. v. June Mfg. Co.,

CX eOS Tt) | Cn ee 4

ii /

TrafFix Devices Inc. v. Mktg. Displays, Inc.,

200 F.3d 929 (6" Cir. 1999),

cert. granted, 120 S. Ct. 2715 (2000)..0........ccccccceeceeeeeeee 8

Vornado Air Circulation Sys., Inc. v.

Duracraft Corp., 58 F.3d 1498 (10" Cir 1995).............. 10

Wal-Mart Stores, Inc. v. Samara Bros., Inc.,

EEE ee 6

Bniefs and Legal Memoranda

Brief for Petitioner, Kellogg Co. v. National Biscuit Co.,

305 U.S. 111 (1938) (Nos. 2 & 56)... ccccceceeeeeeeeeeeee 11

Brief for Respondent, Kellogg Co. v. National Biscuit Co.,

305 U.S. 111 (1938) (Nos. 2 & 56)...........ccccccccceeeeeeeeeee 11

US. Statutes

Lanham Act, 15 U.S.C. §§ 101 ef. Sq. ......ccccccccseceeeessereeeeeseeeeees 7

US. Patents

Perkey Patent No. 548,086 ( reprinted in separately

| ae 10

U.S. Constituti

Art. I, § 8, cl. 3 (the Commerce Clause)...............:cccccecccseeeeeeees 7

Art. I, § 8, cl. 4 (the Bankruptcy Clause) .................cccccceeeeeeeees 7

Art. I, § 8, cl. 8 (the Intellectual Property Clause)............. passim

English Statutes

21 James 1, c. 3 (1623)

(The Statute of Monopolies).................ccce000 3, 17, 19

Articles and Books

William Blackstone, COMMENTARIES ON THE LAWS OF

ENGLAND (1967 Layton Press reprint of the

1772 reprint by Robert Bell of Philadelphia)............... 17

John Dunn, THE POLITICAL THOUGHT OF JOHN

LOCKE: AN HISTORICAL ACCOUNT OF

THE ARGUMENT OF THE “TWO TREATISES

OF GOVERNMENT’ (1995 Cambridge

Henry Elsing, NOTES OF THE DEBATES IN THE

HOUSE OF LORDS, OFFICIALLY TAKEN

BY HENRY ELSING, CLERK OF THE

PARLIAMENTS, A.D. 1621 (ed. Samuel Rawson

Gardiner, 1879, Camden Soc’y Pub. No. 103).............. 19

Roger Filmer, PATRIARCHIA (1681)..............:ccceecceeseeeseeeeees 19, 20

Lawrence M. Friedman, A HISTORY OF

NI II cctincintrictantarinineinmiitennensipiabingnsins 17

David Lange, Recognizing the Public Domain,

44 (no. 4) Law & Contemp.

RR a Le l

John Locke, TWO TREATISES OF GOVERNMENT

(ed. Peter Laslett, student paperback ed.

Cambridge Univ. Press 1999 reprint)...................++« 15,19

C. B. Macpherson, The Meaning of Property, in

PROPERTY: MAINSTREAM AND CRITICAL

POSITIONS (ed. C. B. Macpherson 1978)..............-. 16n.4

Charles Howard MclIlwain, CONSTITUTIONALISM

ANCIENT AND MODERN (1940).........-:0:-:eceseseseeceneeeeees 18

James Madison, Property, 29 Mar. 1792, reprinted in |

FOUNDERS’ CONSTITUTION 598-99

(Philip B. Kurland &

I 13, 14, 16

Linda Levy Peck, COURT PATRONAGE AND

CORRUPTION IN EARLY STUART

IIE ciriintentnnicsennensnennennincennenteesnnentevenninense 18

Malla Pollack, Unconstitutional Incontestability,

18 Seattle Univ. L. Rev. 259 (1995)............cccccssseeeeeees 5

Malla Pollack, Purveyance and Power,

forthcoming 30 Southwestern Univ. L.

Rev. _ (2000); currently available at

-/ www >

Sich Kel ACEI NG Se Se oe 13,17

John Tully, A DISCOURSE ON PROPERTY: JOHN

LOCKE AND HIS ADVERSARIES

(Cambridge Univ. Press 1980).................... 15, 16, 16n.4

Stephen D. White, SIR EDWARD COKE AND “THE

GRIEVANCES OF THE COMMONWEALTH,”

PIE laiidsiiillinddiibdntenciianeiairinianedasmsiianitiegeaiiainibatns 19

Gordon S. Wood, THE CREATION OF THE AMERICAN

REPUBLIC 1776-1787 (1998 paperback ed.).................. 18

Interest of the Amicus Curi

Malla Pollack (“Pollack”), amicus curiae, is an associate

professor of law. Pollack has no financial interest in the

outcome of this litigation.’ Pollack’s sole interest in this case is

to encourage the proper protection of the currently endangered

public domain. See, e.g., David Lange, Recognizing the Public ™

Domain, 44 (no. 4) Law & Contemp. Probs. 147, 176 (1981) (in

view of collective action problems, requesting courts to appoint

guardians ad litem for the public.domain in intellectual property

cases or, at the least, to welcome amicus participation). Both

parties have given permission for Pollack to file this amicus

brief. Copies of the permission letters are attached to the proof

of service submitted to the Clerk.

' Malla Pollack is the sole author of this brief.

The entire cost of this brief was paid by Malla Pollack

personally and with the help of her faculty allowances as a

visiting associate professor at Northern Illinois University,

College of Law.

Summary of Argument

This Court should reaffirm the constitutional iestien

explicated in Kellogg Co. v. National Biscuit Co., 305 U.S. 111

(1938); the Constitution requires that all matter shielded by a

patent must enter the public domain at the end of the patent

monopoly. The original, and continuing, meaning of United

States Constitution Article One, § 8, cl. 8, the Intellectual

Property Clause, requires the “Bargain Theory of Patents.” In

return for a limited patent grant, the patent holder dedicates all

later use of the patented material to the public domain. The

donation’s scope is practical; the public obtains full use of all

commercial benefits formerly shielded by the patent, including

any good will in the article as manufactured during the patent

term. The public obtains a property right not to be excluded

from full commend exploitation of the activity formerly

practiced under the patent; a right which may not be invaded by

Congress. This conclusion is embedded in this Court’s earlier

cases. The conclusion rests on (i) the language of the

Constitution, (ii) the Statute of Monopolies, the English

antecedent of the Clause, and (iii) the Lockian concept of

property accepted by the ratifying generation. The trademark

doctrine of functionality is not conterminous with the public’s

constitutional nght not to be excluded.

Argument

Dedicating All Material Involved in a P he Publi

ematn ot the Patent's Renieadl

The Intellectual Property Clause of the United States

Constitution grants Congress 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 ...’

U.S. Const. Art. I, sec. 8, cl. 8 (“the Intellectual Property

Clause”’).

The Court has always read this Clause as embodying the

Bargain Theory of Patents.

Under the Bargain Theory of Patents, by obtaining a

patent grant, the patentee forms an agreement with the public.

Once the limited time of the constitutionally allowed grant has

expired, the patentee must pay the price — all the power of the

patent belongs to the public. See Kellogg Co. v. National

Biscuit Co., 305 U.S. 111, 116 (1938) (“there passed to the

public upon expiration of the [utility] patent . . . the right to

make the article as it was made during the patent period”);

Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 185 (1896) (“It

is self-evident that on the expiration of a[n utility] patent the

monopoly created by it ceases to exist, and the right to make the

thing formerly covered by the patent becomes public

property.”); Coats v. Merrick Thread Co., 149 U.S. 562, 571

(1893) (same for design patent).

A patent is granted “upon this condition,” Singer, 163

U.S. at 185, which is constitutional — “limited times,” “to

promote the progress of science and the useful arts,” U.S. Const.

Art. I, sec. 8, cl. 8; see also Bonito Boats v. Thunder Crafi

Boats, Inc., 489 U.S. 141, 151 (1989) (“[T]he ultimate goal of

the patent system is to bring new designs and technologies into

the public domain through disclosure.”).

The same limitation is imposed on the states both by

congressional field preemption, see id. at 152 (“Where the

public has paid the congressionally mandated price for

disclosure, the States may not render the exchange fruitless by

offering patent-like protection to the subject matter of the

expired patent.) and by the dormant Intellectual Property

Clause. See Goldstein v. California, 412 U.S. 546, 558 (1973);

Malla Pollack, Unconstitutional Incontestability, 18 Seattle

Univ. L. Rev. 259, 300-326 (1995). Accord Bonito Boats, 489

U.S. at 153 (“the federal policy, found in Art. I, § 8, cl. 8, of the

Constitution and in the implementing federal statutes, of

allowing free access to copy whatever the federal patent and

Corp. v. Day-Bright Lighting, Inc., 376 U.S. 234, 237 (1964)).

In the Bargain Theory of Patents, trade dress may not be

used to extend a patent because the cost charged for a patent

includes any good will inherent in the article itself:

Kellogg Company is undoubtedly sharing in the

goodwill of the article known as “Shredded Wheat’; and

thus is sharing in a market which was created by the skill

and judgment [and investment of plaintiff.] . . . But that

is not unfair. [It] is the exercise of a right possessed by

all —and in the free exercise of which the consuming

public is deeply interested.

Kellogg, 305 U.S. at 122.

This classic holding meshes with this Court’s latest

pronouncement on trade dress. Trade dress in unregistered

product configurations requires secondary meaning, Wal-Mart

Stores, Inc. v. Samara Bros., Inc., 120 S. Ct. 1339, 1346 (2000).

“Secondary meaning” in the appearance of the article is the

“good will of the article.” This good will of the article belongs

to the public at the end of the ies term. The holder of an

expired patent may not, therefore, claim an exclusionary night to

“secondary meaning” in any aspect of the article formerly

marketed under the patent’s umbrella. Without secondary

meaning, he may not claim a trade dress.

Statutory intent is irrelevant to the Bargain Theory of

Patent. Congress is constitutionally limited from writing the

Lanham Act, 15 U.S.C. §§ 101 et. seg., to bypass constitutional

boundaries. Congress may not use the generalized grant of

power in the Commerce aren U.S. Const. Art. I, sec. 8, cl. 3,

to bypass a limitation in a more targeted power. See Railway

Labor Executives’ Ass'n v. Gibbons, 455 U.S. 457, 471 (1982)

(Congress may not bypass the “uniformity” requirement in the

Bankruptcy Clause by appealing to the Commerce Clause). The

Lanham Act itself is not unconstitutional; the circuits have

misread the effect of the statute.

The circuits have refused to allow competitors to make

products covered by expired patents without a heavy showing.

This burden on access by a member of the public to material

purchased by the public (at the price of a monopoly patent) is

unconstitutional. The only acceptable price that any member of

the public can be charged for duplicating a formerly-patented

product is a label reasonably identifying that member of the

public as the product’s current source. See Kellogg, 305 U.S. at

119 (former patentee may only require others to “use reasonable

care to inform the public of the source of [their competing]

product[s].”). Several circuits want a competitor to demonstrate

trademark-type “functionality,” i.e. inability to compete

economically without an element claimed in an expired patent.

See TrafFix Devices Inc. v. Mktg. Displays, Inc., 200 F.3d 929,

939 (6" Cir. 1999) (requiring showing of “competitive

necessity”), cert. granted, 120 S. Ct. 2715 (2000) (this case);

Midwest Indus., Inc. v. Karavan Trailers, Inc., 175 F.3d 1356,

1364-65 (Fed. Cir.), cert. denied , 120 S. Ct. 527 (1999). But

the trademark doctrine of “functionality” is irrelevant to

material which was protected by a patent; the patent bargain is

an independent, constitutionally mandated limit on former

patent holders’ rights to exclude.

This patent bargain is equitable. No one obtains a patent

without affirmatively requesting one. A patentee is not required

to show commercial value in order to obtain a patent. At any

time during the application process, if the applicant dislikes the

bargain offered by the Patent and Trademark Office, the

applicant can withdraw the pending application. The holder of a

patent, therefore, should not be allowed to begin by enjoying a

patent and end by claiming (only after consuming the full

benefit of the patent term) that the subject matter was not

sufficiently valuable to render return performance mandatory.

Beside the constitutional dimension, such behavior is

inequitable and in conflict with black letter contract principles.

The deposed patent holder, furthermore, retains the

market value of being, by many years, the first to the market.

He may still use his brand name on his version of the product.

He may still advertise “— the “original” version of the

product. He may still publicly claim the most experience with

the product. No later competitor shares these advantages.

Kellogg, indeed, correctly goes much further than the

language used in Vornado Air Circulation Sys, Inc. v. Duracraft

Corp., 58 F.3d 1498, 1510 (10" Cir. 1995) (at expiration of

patent term, material enters public domain if it is “part of a

claim in a utility patent” or a “significant inventive aspect”).

The Kellogg Court rested on Perky’s utility patent No. 548,086

(‘086 Patent) (separately bound Appendix to this amicus filing).

Kellogg, 305 U.S. at 112. The ‘086 Patent, however, does not

claim a pillow shaped food item. ‘086 at p.2, 11.20-42 (“I claim

.... "); Ap. at A2. The descriptive section of Patent ‘086 asserts

that the food product being claimed “can be shaped for baking

in various ways.” See ‘086 Patent, at p.1, 1.98, Ap. at Al. Yet

the pillow shape was held dedicated to the public because this

was how the article had been “made during the patent period.”

Kellogg, 305 U.S. at 118. “Functionality,” in the trademark

sense of affecting cost and quality, was a mere secondary reason

for non-protection. /d. at 122. A reason, furthermore, on which

the Court was handling strongly disputed facts. Compare Brief

for Petitioner at 57-66, 108-12, Kellogg Co. v. National Biscuit

Co., 305 U.S. 111 (1938)(Nos. 2 & 56) (arguing form is

functional) with Brief for Respondent at 19-32, 40-41, Kellogg,

305 U.S. 111 (arguing form is not functional).

The circuits who have refused to follow Kellogg are

presumably influenced by modern law and economics theories.

The Constitution, however, does not enact modern law and

economics anymore than it does Herbert Spencer’s formerly

> The pillow shape was covered by an earlier

invalidated design patent. The design patent seems irrelevant

to the Supreme Court decision. See Kellogg, 305 U.S.

at 119 n.4.

popular theories. Cf College Sav. Bank v. Florida Prepaid

Postsecondary Edu. Expense Bd., 119 S. Ct. 2219, 2233 (1999)

(point of Justice Holmes’ dissent in Lochner is that majority

incorrectly “sought to impose a particular economic philosophy

upon the Constitution”) (referring to Lochner v. New York, 198

U.S. 45, 75 (1905) (Holmes, J., dissenting)).

In sum, economic necessity is irrelevant. Every member

of the public has the right to use every element of every expired

patent and every commercial embodiment ever manufactured

under that patent — provided only that the product be clearly

labeled as to source. The right is granted by the Constitution.

Neither Congress nor the federal courts may deny it.

This Bargain Theory of Patent rests on the history and

original meaning of the Intellectual Property Clause. We need

to look at the language and historical background of the Clause

because the drafting and ratifying process has left us no clearer

sources. See Malla Pollack, Purveyance and Power, Section IV,

Wniting, Ratifying and Amending the Constitution, forthcoming

30 Southwestern Univ. L. Rev. _ (2000); currently available

at <http://www.fcsl.edu/purvevance.310.2000.htm>.

The Clause involves three different property interests:

Authors’ Exclusive Rights, Inventors’ Exclusive Rights, and the

Public Domain which is held in common by the public — not the

federal government. The public ownership of the Public

Domain is effectuated by the limitations placed on Congress’

ability to grant exclusive rights.

This property view of the right not to be excluded from

Useful Arts is specified in Madison’s 1792 essay on Property:

In its larger and juster meaning, [property]

embraces every thing to which a man may attach a value

and have a right; and which leaves to everyone else the

like advantage.

...aman’s land, or merchandize, or money is

called his property.

... aman has a property in his opinions and the

free communication of them.

He has an equal property in the free use of his

faculties and free choice of the objects on which to

employ them.

That is not a just government, nor is property

secure under it, where arbitrary restrictions, exemptions,

and monopolies deny to part of its citizens that free use

of their faculties, and free choice of their occupations . . .

What must be the spirit of legislation where a

manufacturer of linen cloth is forbidden to bury his own

child in a linen shroud, in order to favor his neighbor

who manufactures woolen cloth; where the manufacturer

and wearer of woolen cloth are again forbidden the

economical use of buttons of that material in favor of the

buttons of other materials! . . .

James Madison, Property, reprinted in | Founders’ Constitution

598-99 (Philip B. Kurland & Ralph Lerner eds., 1987)

(emphasis added; original emphasis deleted).

Madison’s view of the public’s entitlement to market

Useful Arts is a Lockian common. Locke saw the central aspect

of property to be the right not to be excluded. To Locke,

“property” is anything “that without a Man's own consent it

cannot be taken from him.” John Locke, TWO TREATISES OF

GOVERNMENT at 2™ Treatise § 193 at 395 (ed. Peter Laslett,

student paperback ed. Cambridge Univ. Press 1999 reprint)

(emphasis in original). Unlike 20" century lawyers, to Locke

the core property right is the right not to be excluded.

A Lockian public domain is an owned public domain.

Locke’s teleologically original state of nature in which people

held all the world in common, id. § 26 at 286, is not untouched

by human tigfae. It is a domain in which (a) no individual has a

right to exclude others, and (b) each person has a property nght

not to be excluded. See John Tully, A DISCOURSE ON

PROPERTY: JOHN LOCKE AND HIS ADVERSARIES 84-85

(Cambridge Univ. Press 1980). On this point, Locke agreed

with a long line of natural law philosophers going back at least

to St. Thomas Aquinas, but disagreed with two relative

contemporaries, Grotius and Pufendorf, who saw undivided

domains as merely unappropriated. They omitted the Lockian,

universally shared, individual right not to be excluded. See

id. at 68-77, 81-91, 112-16. This difference is crucial in the

current controversy.

Madi8on’s property essay quoted above is Lockian in

this respect.‘ The default position on commercial activity is that

every person has a right not to be excluded from practicing any

marketable skill. The Intellectual Property Clause of the

Constitution allows Congress to give inventors only a temporary

power to exclude others from marketing a useful art. Once the

time period of the patent expires, the public’s natural right not

* The importance of Locke to understanding the property

concepts assumed in the Constitution is widely accepted. See,

e.g., C. B. Macpherson, The Meaning of Property, in PROPERTY:

MAINSTREAM AND CRITICAL POSITIONS 1, 13 (ed. C. B.

Macpherson 1978). Madison’s 1792 usage of “property” to

include many concepts modernly labeled rights is also Lockian.

See, e.g., Tully, supra, at 7 (“To speak of Locke’s theory of

property is to speak of Locke’s theory of rights.”).

to be excluded returns. The public’s right, furthermore, is the

practical right to compete in the market — the holder of an

expired patent may not block use of any detail of the good as

previously marketed under the legal protection of the patent.

The historical basis of the Intellectual Property Clause is

The Statute of Monopolies, 21 James 1, c. 3 (1623), see, e.g.,

Pollack, Purveyance and Power, supra (providing detailed

discussion of relationships). The Founders’ generation met the

Statute of Monopolies through 4 William Blackstone,

COMMENTARIES ON THE LAWS OF ENGLAND 159 (1772 reprint

by Robert Bell of Philadelphia, currently available in 1967

Layton Press reprint). See e.g., Lawrence M. Friedman, A

History of American Law 88-79 (1973) (describing importance

of 1772 colonial edition of Blackstone). The Statute of

Monopolies, as Blackstone reported, limited the King’s power

to grant patents, thus His power to prevent unfavored persons

from practicing useful arts. That Statute, furthermore, was the

beginning of the road to the Glorious Revolution and Locke’s

King William — it was the first Parliamentary victory against the

Royal Prerogative. See, e.g., Charles Howard Mcllwain,

CONSTITUTIONALISM ANCIENT AND MODERN 138 (1940).

History, therefore, requires a wide definition of the

special privileges constrained by the Intellectual Property

Clause. The Founders saw themselves as continuing the Whig

fight against tyrannical monarchy and related corruption,

including “monopolies.” See, e.g., Gordon S. Wood, THE

CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 623

(1998 paperback ed.); Linda Levy Peck, COURT PATRONAGE

AND CORRUPTION IN EARLY STUART ENGLAND 220 (1990).

“Monopoly” in this heritage is not the technical, economic

doctrine involving market power which underlies modern anti-

trust statutes and the trademark functionality doctrine.

“Monopoly” is a flexible term of disapproval reaching almost

any trade practice against the public interest. During the House

of Lord’s debate on the Statute of Monopolies, for example,

Lord Haughton objected because “Monopolies, what, uncertyne.

The punishment is greate.” Henry Elsing, NOTES CF THE

DEBATES IN THE HOUSE OF LORDS, OFFICIALLY TAKEN BY

HENRY ELSING, CLERK OF THE PARLIAMENTS, A.D. 1621, at 104

(ed. Samuel Rawson Gardiner, 1879, Camden Soc’y Pub. No.

103). See also Stephen D. White, SIR EDWARD COKE AND “THE

GRIEVANCES OF THE COMMONWEALTH,” 1621-1628, at 118-19

(1979) (flexibility of term “monopoly’”).

The Lockian tie highlights the constitutional choice to

place the public domain property right in the people — as

opposed to the government. The quintessential political Locke,

TWO TREATISES OF GOVERNMENT, was written in opposition to

the monarchial absolutism of Sir Roger Filmer’s PATRIARCHIA

(1681), and in continuation of the fight over non-parliamentary

taxation which culminated in the accession of William of

Orange (to whom Locke dedicated the work). See, e.g., John

Dunn, THE POLITICAL THOUGHT OF JOHN LOCKE: AN

HISTORICAL ACCOUNT OF THE ARGUMENT OF THE “TWO

TREATISES OF GOVERNMENT’ 53 (1995 Cambridge Univ. Press

Paperback ed.) (mentioning dedication); see generally id. at 43-

76 (placing Locke’s work in historical perspective and

contrasting it to Filmer’s claim that the monarch had a

preeminent ownership right in all property, thus an unlimited

right to tax). England left the power to issue patents of

invention in the Crown and developed an unlimited legislature

as a check on the monarch. The Constitution, however, vests in

the legislature the right to grant Inventors temporary rights to

exclude, but carefully limits this legislative power in order to

provide an additional protection to the public’s nght not to be

excluded from the “useful Arts.”

The Founders’ choice of a Lockian, owned public

domain as the default status behind the Intellectual Property

Clause is an example of their basic political ideology. The

Court has no reason to cverrule its correct case law enforcing

this original decision.

Conclusion

This Court should reiterate the constitutional teachings

of Kellogg, 305 U.S. at 116. At the end of every patent grant,

all the commercial power of that grant is dedicated to the public,

including the unpatented details of the product as marketed.

The beneficiary of a patent may not renege on his bargain after

accepting the monopoly benefits of that constitutionally cabined

agreement. Whether economically efficient or not, this bargain

is mandated by the Constitution.

Respectfully submitted: August / G

WTI a

Member of the Bar of the U.S. Supreme Court