How Federal Courts Abuse Patent Holders
Patent Invalidity Before Patent Infringement

James Constantpatcases@coolissues.com        

Lets say Joe patents technology A and sues for patent infringement by Ken's technology B. Joe files his claim for patent infringement under Section 35 of the United States Code 271 (35 USC 271) and invokes the court's jurisdiction under Section 28 of the Code of Civil Procedure 1338(a) “The district courts shall have original jurisdictionof any civil action arising under any Act of Congress relating to patents. . . “.Italics added. (28 CCP 1338(a)). Thus, jurisdiction is conferred to the court by Joe's civil action. In theory, the court must now decide Joe's patent infringement claim.        

A complaint for patent infringement takes the form of Form 16 of the Rules of Civil Procedure. Ken might assert a defense to Joe's claim under Sections 35 USC 273 (prior commercial use) and 35 USC 282 (Presumption of validity; defenses). Ken's defense is not a claim and, thus, must be presented after Joe's patent claim has been decided by the court. However, in theory, if Joe wins A=B or loses AB Ken has no incentive to challenge the validity of Joe's patent. In practice, court's abuse Joe because they act without jurisdiction and deny Joe's 5thAmendment rights. They act without jurisdiction because they skip their jurisdiction which is conferred solely by Joe's civil action invoking the court's jurisdiction under 28 CCP 1338(a). They deny Joe's 5thAmendment rights because by the court summary judgment they preclude Joe from having a hearing and jury trial on his claim for patent infringement and just compensation for taking of his patent.

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