their case against B&D was dismissed for “failure to state a plausible claim,” by Chief Judge Sweeny.
Sweeny cited two previous cases to make his stand; a SCOTUS case, Schillinger v. United States (1894) and a Federal Circuit case, Zoltek Corp. v. United States (2006). Both cases basically stated that patent infringement claims that are filed against the U.S. could not be recast as a violation of the Fifth Amendment’s Takings clause.
Most worrisome, however, is that Sweeny does not believe that patents are “property,” but are, rather, “public franchises” – basically, a state-sponsored monopoly. He stated in his opinion, “Since patent rights derive wholly from federal law, Congress is free to define those rights . . . as it sees fit.”
Why worrisome? Because patent rights derive from Article I § 8 Clause 8 of our U.S. Constitution, which states, “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;”
It will be noted here that in our U.S. Constitution (not including Amendments added later) the word Right is used exactly once – as above for Authors and Inventors.
Despite the fact that laws relating to Patents have been changed over two-plus centuries from the original Patent Act of 1790, it remains clear that Patent rights derive directly from, and are guaranteed by, our Supreme Law of the Land. Patent rights do not come from federal law, which changes with the political whims of various congressional sessions, such as what occurred with the AIA and the creation of the PTAB’s Patent Death Squad.