MAGNA CARTA: NO ONE EVEN THE KING IS ABOVE THE …Magna Carta •“The Great Charter” in Latin • Originally issued in 1215 •Established that no one –even the King – was

MAGNA CARTA: NO ONE – EVEN

THE KING – IS ABOVE THE LAW

– EVEN IP LAW

Team 5

Austin IP American Inn of Court

February 2015

INTRODUCTION The Magna What?

Magna Carta

• “The Great Charter” in Latin

• Originally issued in 1215

• Established that no one –even the King – was above the

law

• Basis for many of our American law principles – even in IP

law

Outline

• Events Leading to the Magna Carta

• Signing of the Magna Carta

• Implication of Magna Carta on IP Law in England

• Effect of Magna Carta in 13 Colonies

• Magna Carta and the US Constitution

• Magna Carta’s Effect on Current US Laws

WE NEED THE MAGNA

CARTA! Why exactly?

The King had upset VIPs

• The Catholic Church

• Barons

The Church

• Excommunicated King John in 1209

• Banned all church services in England in 1207

• Nobody could go to church

What happens when you don’t go to

Church in Medieval England?

(at least according to the Catholic Church at the time)

King John wanted more from the Barons

• Knights

• To fight battles after losing again in France

• $$ in the form of taxes or scutage

• To pay for war

• Make up for lost income from lands lost in France

SUMMER 1214 King John

Servant

What happened next?

• Baron’s held London

• Could exclude King after defeating him

• Controlled income

SIGNING OF THE

MAGNA CARTA

RUNNYMEDE Baron 1

Baron 2

Baron 3

King John

King’s Representative 1

King’s Representative 2

Runnymede, England

Features of the Document

• Signed on June 15, 1215 at Runnymede by King John and his Barons.

• Contained 63 separate clauses.

• Addressed to primarily to Barons, Earls, Knights, Clergymen, and Government Officials.

• Left to be enforced by the Barons.

• Contains several clause that resonate with principles in modern English law and the U.S. Constitution.

Legal Principle Magna Carta Clause(s) U.S. Constitution

Freedom of Religion 1: “First, … that the English Church

shall be free, and shall have its

rights undiminished, and its liberties

unimpaired.”

63: “Wherefore we will and firmly

decree that the English church shall

be free …”

1st Amendment

Independent Judiciary,

Circuit Courts, and

Venue

17:“Ordinary lawsuits shall not follow

the royal court around, but shall be

held in a fixed place.”

18:: “Inquests … shall be taken only

in their proper county court. We

ourselves, or in our absence abroad

our chief justice, will send two

justices to each county four times a

year …”

Article III Section 1

No Cruel and Unusual

Punishment

20: “For a trivial offence, a free man

shall be fined only in proportion to

the degree of his offence, and for a

serious offence correspondingly, but

not so heavily as to deprive him of

his livelihood.”

8th Amendment

(Proportionality Clause)

Key Clauses


Governmental Taking 28: “No constable or other bailiff of

ours shall take the corn or other

chattels of any one except he

straightway give money for them, or

can be allowed a respite in that

regard by the will of the seller.”

5th Amendment (Takings

Clause)

Search and

Seizure/Jury Trial

39: “No freeman shall be taken, or

imprisoned, or disseized, or

outlawed, or exiled, or in any way

harmed - nor will we go upon or send

upon him - save by the lawful

judgment of his peers or by the law of

the land.”

4th Amendment/5th

Amendment Due

Process

Standards of Weights

and Measures

35: “There shall be one measure of

wine throughout our whole realm, and

one measure of ale and one measure

of corn - namely, the London quart -

and one width of dyed and russet and

hauberk cloths - namely, two ells

below the selvage. And with weights,

moreover, it shall be as with

measures.”

Article I Section 8

(Enumerated Powers of

Congress)

Key Clauses (continued)

MAGNA CARTA AND

BRITISH IP LAW First Patent Grant

King John Henry III

King Henry III

• Magna Carta

• Magna Carta Reissued

• Omitted Ability of Barons to override the King through Force

• King Henry III more lenient to barons

• Emphasized Constitutional rule

• IP Law

• King Henry granted trades people protection for discoveries

• First known grant in 1236

• Confirmation of grant by Mayor of Bordeaux to Bonafusus de Sancta

Columbia

• Dyeing of textiles

Grant of Privilege of Invention to

Bonafusus

For 15 years, exclusive right to Bonafusus and his

workers to:

1) make cloths of various colors using secret

dyeing techniques; and

2) control imports of wool, dye or textile-making

equipment into Bordeaux.

Source: Bruce W. Bugbee, Genesis Of American Patent And Copyright Law 14 (1967)

PATENT GRANT TO

BONAFUSUS Bonafusus

Bonafusus’ Worker

Mayor

King Henry

TIMELINE OF MAGNA

CARTA Perspective from England

Magna Carta Timeline

Source: http://www.historytoday.com/ralph-v-turner/meaning-magna-carta-1215

1215

• First Magna Carta Signing

1217, 1225

• Reissued

1265

• King Henry renewed promise to observe MC

1297

• King Edward I acknowledged he was bound by MC

14th Century

• Parliament reconfirmed and enacted statues to reinforce.

• “No free man” was replaced with “No man”

Magna Carta Timeline (continued)


15th – 17th Century

• Carta not rallied behind, but common law relied on it.

17th Century

• Conflict between Parliament and King relied on Carta as England’s “ancient constitution”

18th Century

• Tory support for Carta.

• Whigs question its relevance. Call for Parliament reform, but kindled by French Revolution.

19th Century

• After French Revolution, Carta relied on to reform Parliament. Parliament passed statutes abrogating the Carta.

1970 and beyond

• Only 4 chapters left in tact.

Four Remaining Chapters

• Chapters 1, 13 and 39 of King John’s Charter

– Freedom for English Church

– City of London guaranteed ancient liberties and free customs

– Curbing crown’s power to pursue individuals beyond the law

• Key Provision of the Carta

• Chapter 37 of the 1225 Charter

– Clause about the liberties being in perpetuity

• But across the Atlantic….


MAGNA CARTA AND 13

COLONIES

Intellectual Property Law in Colonies •American Colonies:

• Each colony has its own body of patent law

• Patents issued by local legislatures

•Granted exclusive “to make” rights and

sometimes sale within territory

•Focus was on a new trade or industry

•Duration of the protection varied between

seven and twenty years

Source: Bracha, Oren, Owning Ideas: A History of Anglo-American Intellectual Property, Chapter 1, UT Law School

Sir Edward Coke (1552-1634)

• An English Barrister, judge, and politician

• Attorney General for England

• Chief Justice of the King’s Bench

• Revived the Magna Carta in 17th Century

• His Interpretation of Magna Carta • Magna Carta reaffirmed liberties of common law

• Even Kings must comply with the common law

Colonists’ Interpretation

•Relied on Sir Coke’s interpretation

•Colonists would have all "liberties,

franchises and immunities,” as if

they had been born in England

Plaque in Jonestown, VA

• For example, the Virginia

Charter of 1606 (largely

drafted by Sir Coke)

http://en.wikipedia.org/wiki/Virginia_Company

http://en.wikipedia.org/wiki/Virginia_Company

Conflicts between England and Colonists

the Colonies

•England:

•Stamp Act 1765 in Colonies

•Required stamp tax on all legal documents, newspapers,

pamphlets, playing cards, dice, and all other printed material

• Including issued patents

•Colonists

•MA assembly declared Stamp Act was

against the Magna Carta

•Relied on Sir Coke’s argument that common

law (codified in the Carta) superseded

Parliament

• No taxation without representation

STAMP ACT 1765 Petitioner

Colonist 1

Colonist 2

Colonist 3

Ship Captain

SIGNING OF THE

CONSTITUTION

Magna Carta and the Constitution

• Magna Carta: Superior to other acts of government

• Constitution: “the supreme law of the land”

• Magna Carta: No man is above the law

• John Adams: “A government of laws, not men”

• Magna Carta: Idea of individual rights

• The Bill of Rights


Freedom of Religion 1: “First, … that the English Church

shall be free, and shall have its

rights undiminished, and its liberties

unimpaired.”

63: “Wherefore we will and firmly

decree that the English church shall

be free …”

1st Amendment

Independent Judiciary,

Circuit Courts, and

Venue

17:“Ordinary lawsuits shall not follow

the royal court around, but shall be

held in a fixed place.”

18:: “Inquests … shall be taken only

in their proper county court. We

ourselves, or in our absence abroad

our chief justice, will send two

justices to each county four times a

year …”

Article III Section 1

No Cruel and Unusual

Punishment

20: “For a trivial offence, a free man

shall be fined only in proportion to

the degree of his offence, and for a

serious offence correspondingly, but

not so heavily as to deprive him of

his livelihood.”

8th Amendment

(Proportionality Clause)

Key Clauses


Governmental Taking 28: “No constable or other bailiff of

ours shall take the corn or other

chattels of any one except he

straightway give money for them, or

can be allowed a respite in that

regard by the will of the seller.”

5th Amendment (Takings

Clause)

Search and

Seizure/Jury Trial

39: “No freeman shall be taken, or

imprisoned, or disseized, or

outlawed, or exiled, or in any way

harmed - nor will we go upon or send

upon him - save by the lawful

judgment of his peers or by the law of

the land.”

4th Amendment/5th

Amendment Due

Process

Standards of Weights

and Measures

35: “There shall be one measure of

wine throughout our whole realm, and

one measure of ale and one measure

of corn - namely, the London quart -

and one width of dyed and russet and

hauberk cloths - namely, two ells

below the selvage. And with weights,

moreover, it shall be as with

measures.”

Article I Section 8

(Enumerated Powers of

Congress)

Key Clauses (continued)

SIGNING OF THE

CONSTITUTION James Madison

John Hancock

Benjamin Franklin

2 Forefathers

MAGNA CARTA TODAY

Jay Z’s Magna Carta Holy Grail (with Justin Timberlake)

No person shall … be deprived of life, liberty, or

property, without due process of law; nor shall

private property be taken for public use, without

just compensation.

U.S. Constitution 5th Amendment

Magna Carta Clause 39

No free man shall be seized or

imprisoned, or stripped of his

rights or possessions, or

outlawed or exiled, or deprived

of his standing in any other

way, nor will we proceed with

force against him, or send

others to do so, except by the

lawful judgment of his equals

or by the law of the land.

Are Patents 5th Amendment Property?

• Zoltek Corp. v. United States, 58 Fed.Cl. 688, 690 (Fed. Cl. 2003)

“[T]his Court holds that Plaintiff may assert in this Court a claim outside of §

1498 for a taking of its patent rights under the Fifth Amendment.”

• Zoltek Corp. v. United States, 442 F.3d 1345, 1353 (Fed.Cir.2006)

(per curiam; Gajarsa, J. concurring; Dyk, J. concurring; Plager, J.

dissenting)

“We reverse the trial court's ruling that Zoltek can allege patent

infringement as a Fifth Amendment taking under the Tucker Act.”

• Zoltek Corp. v. United States, 672 F.3d 1309, 1327 (Fed. Cir. 2012)

(en banc)

“Since the Government's potential liability under §1498(a) is established,

we need not and do not reach the issue of the Government's possible

liability under the Constitution for a taking. The trial court's determinations

on that issue are vacated.”

Constitutionality of IPRs

• MCM Portfolio LLC v. Hewlett-Packard Co., case no. 15-1091

(Fed. Cir.)

• Principal Brief for Appellant MCM Portfolio LLC filed on January 20,

2015 at 53:

• “An IPR proceeding does not involve the government acting in its

sovereign capacity in connection with the performance of the

constitutional functions of the executive such as tax collection. In

creating the IPR, Congress was not authorizing an activity which

the executive has traditionally performed in its sovereign

capacity. Instead, Congress authorized the transfer of patent

validity adjudications from Article III Courts to the USPTO,

thereby denying Patent Owners access to a jury trial in violation

of the Seventh Amendment.”

In Suits at common law, where the value in controversy

shall exceed twenty dollars, the right of trial by jury shall be

preserved, and no fact tried by a jury, shall be otherwise re-

examined in any Court of the United States, than according

to the rules of the common law.

U.S. Constitution 7th Amendment

Jury Right in IP Cases

• Feltner v. Columbia Pictures Television, Inc., 523 U.S.

340, 342 (1998)

“We hold that although the statute is silent on the point, the Seventh

Amendment provides a right to a jury trial, which includes a right to

a jury determination of the amount of statutory damages.”

• Markman v. Westview Instruments, Inc., 517 U.S. 370,

377 (1996)

“Equally familiar is the descent of today's patent infringement action

from the infringement actions tried at law in the 18th century, and

there is no dispute that infringement cases today must be tried to a

jury, as their predecessors were more than two centuries ago.”

Summary

• Basic Principle of Magna Carta

• No man –not even the King – is above the law

• US laws based on Magna Carta principles

• IP Law influenced by the Carta

Documents

MAGNA CARTA: NO ONE EVEN THE KING IS ABOVE THE …Magna Carta •“The Great Charter” in Latin • Originally issued in 1215 •Established that no one –even the King – was