
Judge Alsup Slams Patent Troll - whack
https://www.techdirt.com/articles/20190508/17291342168/judge-alsup-slams-patent-troll-basically-everything.shtml
======
munk-a
Seeing those who try to profit by breaking/abusing our legal structure smacked
down is always cathartic - this particular instance has a hilarious portion of
the judgement in refusing the ability for the filer to censor what they filed
over. Intellectual property is valuable and industrial espionage from actors
who are not held to account by US law is a real issue - but in theory that's
what patents are there for. Your IP no longer needs to be kept under lock and
key since it's registered with the government and you are given legal recourse
to seek damages if someone uses that information - this is the mechanism I
appreciate the most from our patent system and I hope we preserve it when we
revise the system to be less stupid about other things.

The fact that this troll was arguing that they couldn't reveal the way in
which their IP was infringed publicly as it would hurt their business is
hilarious as it's absolutely true and depressing at the same time - their
business is hoping that other companies accidentally trip into patent
violations, they don't want those violators to negotiate usage fees upfront
nor do they want the violators to carefully avoid violating the patent.

~~~
deogeo
Such shady tactics aren't limited to small companies - Microsoft kept its
Android patents secret for as long as possible:
[https://www.zdnet.com/article/310-microsoft-patents-used-
in-...](https://www.zdnet.com/article/310-microsoft-patents-used-in-android-
licensing-agreements-revealed-by-chinese-gov/)

~~~
Wistar
Microsoft did not try to keep their Android patents secret but did try to keep
secret the list of which of their Android patents were used in licensing
deals. This is a key difference as, unlike patents, licensing deals and the
list of patents included in those deals are not public information and keeping
them confidential does not seem to me to be "shady." The individual patents,
provided you knew which were involved, could and can be easily looked up and
read.

~~~
deogeo
> This is a key difference

It is a distinction without a difference - without knowing which patents are
'Android patents' (i.e. the ones in the licensing deals), avoiding them is
impossible.

~~~
tzs
Could you find them by looking at the patent markings on Android devices (or
in the accompanying documents) made by companies that licensed the patents?
The patent licensing deal that granted them the right to use those patents
should have included a requirement that they mark.

~~~
deogeo
From the wording of that story I assume no, or it wouldn't have required the
Chinese government to reveal them.

------
DoofusOfDeath
It seems strange to me that having prior technical knowledge in some field is
seen as an assett in a judge, but a reason to disqualify a juror.

Is it the case that lawyers don't want anyone to understand the technical
issues, but they only have the ability to get rid of potential jurors, not
judges?

~~~
rayiner
A jury trial involves a careful division between the jury's role and the role
of the court, lawyers, and experts. The jury decides a factual question based
on a carefully orchestrated presentation of evidence. The judge decides the
content and manner of presentation of that evidence, to conform to legal
requirements. The jury's job is simply to evaluate the evidence and render a
decision.

For example, say the defendant asserts that a patent is "obvious."
"Obviousness" has a precise legal definition: it means that every element of a
patent claim was disclosed in a combination of prior art references. Where
multiple references must be combined to arrive at the invention, there usually
must be a showing that one of ordinary skill in the art would be motivated to
combine the references in the necessary manner. The court will decide what
elements are required by the patent claims and what references are prior art,
and the experts will opine on what elements are disclosed in which prior art
references and whether there is any motivation to combine them. The jury takes
that information and decides the ultimate question of obviousness.

That process absolutely requires the jury to "understand the technical
issues." During trial, evidence about how the accused product works will be
shown in slides right next to the patent claim language. Jurors will be
repeatedly told that they must find that every element of the patent claim is
practiced by the accused product. If jurors don't understand the technology
well enough to map between the accused product and the patent claims, they are
not going to return a verdict for the patent owner. (You will almost never see
an appeal in a patent case where the patent required doing "X" and the accused
product simply did not do "X." The fight is always about the scope of what it
means to do "X.")

But that understanding must be based _only on the evidence presented._ The
risk with jurors who have domain knowledge in specific fields is that they
will substitute their own knowledge and preconceptions for the evidence, and
when that happens, you get a verdict that is not based on the evidence
presented--which is curated to meet legal requirements--but based on an
unknowable body of information in the juror's head.

There is also _no need_ for jurors to bring personal expertise to bear on a
case. A jury of 12 ordinary people can understand surprisingly complex subject
matter when they have Ivy-league PhDs explaining it to them, and do nothing
but focus on the subject all day for a week or two at a time. What they may
lack is _domain knowledge._ But if there is pertinent knowledge, it is the
party's job to put that knowledge in front of the jury. The jury must simply
be able to understand it once it has been presented.

As to your last point--if the judge doesn't understand your technology, she
will assume it is bullshit and find ways to throw out your case. (Most cases
don't make it to a jury trial.) Parties go to great lengths to explain the
technology to judges, for example, through lengthy tech tutorials and the
like.

~~~
bryanlarsen
Which is the complete opposite of how juried trials were originally designed.

"A jury of one's peers" originally meant people from your community, people
who knew you, thus coming in with lots of relevant knowledge.

[https://www.merriam-
webster.com/dictionary/a%20jury%20of%20o...](https://www.merriam-
webster.com/dictionary/a%20jury%20of%20one%27s%20peers)

~~~
rayiner
That’s true in a sense, but I should note that the shift to the modern
conception of the jury’s function happened long time ago:
[http://www.dentonlaw.com/newsarticles/hearsay-a-brief-
histor...](http://www.dentonlaw.com/newsarticles/hearsay-a-brief-history).

> Beginning in the later 1400s, the development of the jury trial, with
> witnesses testifying about the facts of a particular case was an important
> factor in the development of the hearsay rule. Interesting, it appears that
> prior to the later 1400s juries conducted their own investigations in civil
> cases.

> Toward the end of the Middle Ages, the function of the jury transformed from
> persons who were active investigators that had knowledge of the case to our
> present day juries who are passive triers of fact with no prior knowledge of
> the case presented.

~~~
roywiggins
The US still has a sort of investigative jury: the grand jury. Though the
actual investigation is not actually done by the people on the jury, I think
it has to be a direct descendent of those medieval juries.

------
jaimex2
He can slam all he wants, its obvously not working. Maybe the courts need to
raise the cost of sueing without merit.

~~~
pimmen
Outside the US it's very common for the losing party to pay the legal expenses
of the other party, in order to discourage stuff like this because someone
who's obviously right has theoretically nothing to lose. However, since that
could be abused by big companies, we often let governments handle common civil
matters. Eg, in Sweden you would call the Swedish Companies Registration
Office in case someone opens up a business with the same name as yours and
they would handle it rather than you dragging the offender to court.

------
phonon
Here's the case. Looks like they are appealing.

[https://www.courtlistener.com/docket/6262395/uniloc-usa-
inc-...](https://www.courtlistener.com/docket/6262395/uniloc-usa-inc-v-apple-
inc/)

------
themagician
I often wonder what life is like as a patent troll attorney. Wake up, read
emails knows, get to work on filing motions, read some hate mail, post some
scammy ads, make a few calls to other people in the racket.

Sure, maybe they get paid enough not to care… but the have industrialized
patent trolling. It’s a job like any other for most involved.

That life seems… I duhno, pretty sad.

~~~
bdowling
It's a matter of perspective. A patent troll is just a big corporation's term
for an inventor who seeks to make money by licensing his patented invention to
others. The big corporation doesn't see any value in paying license fees when
its internal R&D team come up with the same invention on its own. The inventor
can't realistically compete with the big corporation, so he is branded a "non-
practicing entity". The inventor can't get an injunction to stop the big
corporation from shipping its product because of _eBay v. MercExchange_. When
the inventor asks for too much, the big corporation will challenge the patent
in court and/or the Patent Trial and Appeal Board (PTAB) instead of paying a
license fee. The PTAB finds 40% of the patents it reviews invalid. [0]. Recent
court decisions have also rendered entire categories of inventions
unpatentable, regardless of how new and non-obvious they are. [1]. The
inventor faces tremendous odds against him making any money whatsoever. Most
patents are, in fact, worthless. [2].

So, from the patent troll attorney's perspective, he is fighting against
injustice. He is an advocate for the little guy, the downtrodden independent
inventor, who is being taken advantage of by the big evil corporation.

[0] [https://www.patentprogress.org/2018/05/01/a-little-more-
than...](https://www.patentprogress.org/2018/05/01/a-little-more-than-forty-
percent/) [1] See, e.g., _Alice v. CLS Bank_ and various post- _Alice_ Federal
Circuit decisions. [2] [http://ipassetmaximizerblog.com/the-dirty-little-
secret-of-p...](http://ipassetmaximizerblog.com/the-dirty-little-secret-of-
patents-is-that-most-are-worthless-to-their-owners-here-is-why/)

~~~
AnthonyMouse
> The inventor can't realistically compete with the big corporation, so he is
> branded a "non-practicing entity".

A characteristic of software that distinguishes it from most other industries
is that software "inventions" are implemented as a work of authorship rather
than a physical product. If you invent a new kind of battery and want to mass
produce it, you need real estate for a factory, manufacturing equipment,
factory workers, contracts with raw materials suppliers, etc.

If you invent a new kind of software, to mass produce it you distribute it
over the internet, which is very inexpensive and within the reach of most
everyone.

The result is that the small inventor generally _can_ compete, but the very
act of doing business makes it more difficult to enforce a patent against a
big corporation, because as soon as you do they turn around and counterclaim
with their own thousands of patents, many of which are invalid or not
infringed but it doesn't matter because the litigation costs would bankrupt
you.

The result is that the small inventor is hurt by software patents (the big
corporation can in practice use them against the small practicing inventor but
not vice versa), and anything that weakens or eliminates them helps the little
guy. Meanwhile the entities that do initiate software patent litigation are
commonly lawyers that have picked old software patents from the bones of dead
businesses to use them to attack the surviving ones, which is obviously not a
sympathetic business model. The attorneys doing this professionally are
presumably aware of this.

------
jdauriemma
Alsup for SCOTUS

