‘Patents and the Private-Versus-Public-Rights Distinction’

Are patent rights public or private rights? Generally speaking, patents are privately held, and their enforcement is limited to civil suits brought by their private holders. Hence, in some sense, the answer might seem obvious. But for purposes of addressing issues of separation of powers and the right to a jury trial, the answer is not so straightforward. For these purposes, the United States Supreme Court has made central a public-versus-private-rights distinction under which the key question is whether the rights at issue are ‘integrally related to particular government action’ because ‘the claim at issue derives from a federal regulatory scheme, or … the resolution of the claim by an expert government agency is deemed essential to a limited regulatory objective within the agency’s authority’ … (more)

[John Golden, New Private Law, 30 May]

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