What Tool Works Tells Us About Tailoring Patent Misuse Remedies

By David McGowan[*]

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Abstract 

This essay argues that the reasoning of the Supreme Court’s opinion in Illinois Tool Works, Inc. v. Independent Ink, Inc. undercuts the reasoning behind the default remedy for patent misuse, which is that the patent in question may not be enforced against any party, not merely against the victim of the alleged misuse, until the misuse ceases and its effects are dissipated. Because the remedy is not tailored to any probable harm from misuse, courts should take advantage of the Tool Works reasoning to pare back misuse remedies. 

Circuit courts now have authority to tailor misuse remedies to actual harm in cases where the misuse involves a tying arrangement that meters the use of a patented good. In cases involving other forms of misuse, reform must await further Supreme Court action. Hopefully, that action will come soon.

Is Post-Kelo Reform Bad for the Poor?

By Ilya Somin[*]

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[Editor's Note:  This piece is a response to an earlier Colloquy piece by David A. Dana, The Law and Expressive Meaning of Condemning the Poor After Kelo, 101 Nw. U. L. Rev. 365 (2007); 101 Nw. U. L. Rev. Colloquy 5 (2006), http://www.law.northwestern.edu/lawreview/colloquy/2006/2/ (link).]          

Introduction

In a recent article in the Northwestern University Law Review Colloquy,[1] Professor David Dana argues that most post-Kelo reform efforts are seriously flawed because they tend to forbid the condemnation of the property of the wealthy and the middle class for "economic development," but allow the condemnation of land on which poor people live under the guise of alleviating "blight."   This, he claims, results in reform laws that "privilege[] the stability of middle-class households relative to the stability of poor households" and "express[] the view that the interests and needs of poor households are relatively unimportant."[2]

I agree with Professor Dana that the problem of blight condemnations and its impact on the poor deserves much greater attention, and that post-Kelo reform initiatives should do more to address these concerns.   However, I disagree with his argument that post-Kelo reform efforts have systematically treated land where the poor tend to live worse than that of middle and upper class homeowners.   As of this time (March 2007), most of the states that have enacted post-Kelo reform laws have either banned both blight and economic development takings (five states, plus Utah, which enacted its reform law prior to Kelo), or defined "blight" so broadly that virtually any property can be declared "blighted" and taken (sixteen states).   Several other states have enacted reforms that provide no real protection to any property owners because of other types of shortcomings.   Only nine states are actually guilty of the sin condemned by Professor Dana of allowing only the condemnation of "blighted" areas narrowly defined.

To the extent that some states have indeed banned "economic development" condemnations in affluent neighborhoods, while permitting "blight" condemnations to go on in poor ones, I agree that this is a lamentable state of affairs.   However, it may still be a better result than simply subjecting all property to the risk of economic development takings.   A law that protects the property rights of most but not all of the population is preferable to one that protects no one.   Such a law might also benefit many poor people who live in nonblighted areas and are potentially vulnerable to economic development takings. Survey data suggests that the poor themselves overwhelmingly oppose economic development condemnations.

Furthermore, the exclusion of blighted property from some states' bans on "economic development" condemnations in some states is not necessarily explained by indifference to or contempt for the interests of the poor.   There are perfectly noninvidious (though in my view flawed) reasons for believing that condemnation is sometimes necessary to eliminate blight.   There are few or no reasons, however, to use condemnation to promote economic development through the transfer of property to private owners.