August 21, 2003  ·  Lessig

One of the most frustrating aspects of Eldred was the crudeness, in many places, of the legal anaysis by the government, and courts. Distinctions that should have been important were ignored or glossed over. Arguments making distinctions that should have been important were just glossed over.

It is therefore extraordinarily encouraging to read this by the Court of Federal Claims in the case of Figueroa v. US. Judge Futey is exceptionally careful and subtle in his analysis of the claim about patent fees. I don’t know enough about the non-Eldred parts here, but the constitutional analysis is very well done.

  • Charles

    Professor, the link has some extraneous stuff on the end and thus does not work…

  • Karl

    This should work.


  • lessig

    sorry, fixed.

  • James Day

    There are some well drawn arguments elsewhere in the decision but one of the more intersting statements for more mundane IP discussions counters the arguments of those who believe that patents and copyright monopolies are an inherent right rather than a privilege:

    “Defendant reiterates its argument that maintenance fees are a condition which plaintiff must satisfy to sustain the privilege of a patent. The court agrees with defendant.”

  • David Woycechowsky

    I wonder if the Commerce Clause has any bearing on the Patent Clause claim that has been allowed to proceed.

    It seems kind of weird if Congress had less authority with respect to patent owners than it does with respect that poor farmer in the Wickard case.

  • Patrick Ryan

    In Eldred v. Reno the Dist. Ct. summarily dismissed the extension of the public-trust doctrine by narrowly construing it as only applying to navigable waters (I disagree, the public-trust doctrine is much broader). But I’d love to know if anyone has any details as to why the public-trust argument was not pursued at the S. Ct. level (unless I missed something, I believe it was abandoned). In retrospect I think this was an excellent decision, since the S. Ct. was clearly result-bound in Eldred and it leaves the public-trust doctrine open to other applications. Does anyone have a view on this?