September 27, 2023


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Breaking the Law | Patently-O


We “break” laws, by challenging their validity. Some laws like 35 USC 101 are more difficult to break than others, but with time, 101 will be broken also.

When a law is deemed unconstitutional, it’s but one example where that particular law was busted, broken, kaputt. And all involved who helped break such unconstitutional law, collectively, are lawbreakers.

One of the early rules in frcp says ya can file whatever case ya want, provided there’s a reasonable basis. So, anyone can be a lawbreaker.

What if a group of clandestines infringe Pharma Co. Z’s patent for fentanyl manufacture, and they do it in Ohio ? Crime ? Yes, a few. Would they be “liable” for the infringement ? Indeed, but not in the usual sense.

So it is possible to infringe a patent, resulting in breaking the law.

But not all infringements are equal.

Maybe we can get Hochul, Newsome, Whitmer and others to coax the legislatures into creating new strict liability laws for patent infringement !!

Then, those jurisdictions can create new Investigative Divisions, and go out and bust those infringers !! Book ’em Dan-O

  1. 6.4.1

    You are conflating contexts.

    While perhaps amusing (to you) – such is not helpful.


      Breaking the law can mean many things Junior, the Professor may have chosen the survey question’s phraseology more carefully than might appear, to be vague. Maybe not, but I’d reckon he did.


        Delighting in vaguery is not very flattering for you, “Junior.”


          🙂 To the extent that you perceived any delight in my words, it could be the case, b/c I like his articles. But I don’t see any indicia of delight in my words, so the origin of that notion may be all in your head ! Or, you know the real me…. C. Whewell, a.k.a. “Mr. Delight”, but that would be “Sir Delight” to you. haha. Keep smilin, have a good weekend while you’re at it.

        2. 5

          If patent infringement was “breaking” any law [in its normal meaning] it would be actionable by some governmental agency. It is not.

          1. 5.1

            There is redress AT law — this view by Paul (and apparently 128 people taking the poll) is depressing (in its normal meaning — heck, in any meaning).

          2. 5.2

            link to

            Ah, you mean this?

          3. 5.3

            Exception being the wide range of modern laws with private attorney general provisions??

            For example, if someone helps a TX resident/citizen get a late term abortion in CA, are they breaking a “law.”

          4. 4

            Let me summarize the comments from our two distinguished members:

            The Prophet: Should be awarded Congressional Medal of Honor.

            Anon: Capital punishment.

            Is that about right?

            1. 4.1

              Well, no, not that, but I would move for treble damages AS a minimum.

            2. 3

              Off-topic, but today in USP Steel v. United States, the CAFC (DYK, Mayer, & Chen) upheld Pres. Trump’s 2018 “national security” steel tariffs.

              1. 3.1

                Not really surprising because (1) the standard of review is uber-deferential and (2) the actual challenge on the merits was très weak. Also, the realpolitik seems to be that, while TP initial deployed the tariffs, Biden hasn’t shown any apparent interest in modifying or discontinuing them. So there’s a sort of “bipartisan consensus” that the tariffs are “good” and why do the courts want to meddle with that?

                It is a little interesting to see a 3-judge CAFC panel reviewing a decision that was in turn rendered by a 3-judge Trade Court panel.

                1. 3.1.1

                  I agree that the outcome is not surprising in view of the (very deferential) standard of review. I mention it only because it was the most interesting thing to come out of the CAFC today.


                    Very true. I guess it’s also potentially interesting because Chen filed some “additional views” although I haven’t perused them yet.

                  2. 2

                    I’d be curious to see the responses if you put up the statute. E.g. If someone is found to violate 35 U.S. Code § 271 for infringement of a patent, have they “broken the law?”

                    1. 2.1

                      “Oh, THAT kind of infringement. I thought the question was about decorating shoe leather.”

                    2. 2.2

                      Probably. It distinguishes mere negligence wrt attorneys. And framing effects wrt non-attorneys.

                    3. 1

                      No idea what to make of the results of a Twitter poll but it is an interesting question. I’d be curious to see what the same respondents say about “trespass”. I’d also be curious to see what they say about “willful infringement of a patent that the infringer believes is valid.”

                      1. 1.1

                        I’d be curious to see what the same respondents say about “trespass”

                        Hmm, well, since some view trespass to be the same as “INSURRECTION” – Bluto may have his reactions mixed a bit.

                      2. 1.2

                        There is civil trespass and criminal trespass, so “trespass” may not be a good example to use.

                        1. 1.2.1

                          Are you saying that civil trespass is not breaking the law while criminal trespass would be?


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