

How a rogue appeals court wrecked the patent system - macchina
http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appeals-court-wrecked-the-patent-system/

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rayiner
The second page is really good stuff. Particularly the part about Supreme
Court intervention and the need for a specialized patent appeals court. I
think the Supreme Court patent jurisprudence over the last several years has
been extremely good, and I think the need for a specialized patent appeals
court is questionable at best. People tend to think we need specialized patent
judges who can understand the technology, but I think this is misguided.
Judges are experts at quickly learning the 10% of any field they need to make
a decision. Technology isn't any more complicated and in need of specialized
judges than say a dispute involving complex insurance or securities
instrument. At the same time, generalist judges would be much better at
weighing the larger issues of fairness involved in a case. There is a real
lack of balance in the Federal Circuit and I think that's partly because
Federal Circuit judges don't field other kinds of cases.

~~~
macchina
The article talks about the idea of the Federal Circuit "overruling" the
Supreme Court by gradually chipping away at the principles behind SC
precedent.

Interestingly, similar charges have been made of the DC Circuit with regard to
the Supreme Court's national security jurisprudence, especially _Boumediene v.
Bush._ [1] (The US Court of Appeals for the DC Circuit has essentially become
the US terrorism court — because among other things — they are the only court
allowed to hear Guantanamo detainee appeals. But DC Circuit judges do hear
normal cases as well.)

So it seems to me the problem with CAFC is not just in its "specialist" judges
but also in allowing the law in one field to develop almost exclusively in one
court. This also makes Supreme Court supervision much more difficult.

1.<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1838402>

~~~
rayiner
That's a very interesting point. Thanks for the article.

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tzs
It seems pretty clear that something was broken with the old system, before
the creation of the CAFC. Plaintiffs were only winning 20-40% of the time.

Considering that

1\. the plaintiff is starting with a rebuttal presumption of patent validity,

2\. it is the plaintiff who makes the decision whether or not to sue, which
should weed out a lot of weak cases, and

3\. this was before software patents, back when examiners actually had a deep
understanding of the art in the fields whose patents they examined, so there
was not a flood of bad patents being issues,

I'd expect in a fair system for plaintiffs to win the majority of cases.

~~~
problemdomain
1\. That's like saying a law against speeding is valid, so the defendant is
probably guilty of speeding. That a patent is valid says absolutely _nothing_
about whether a defendant is infringing it.

2\. Sorry, all I can do is laugh. Do you actually follow the US legal system?

3\. Again, whether a patent is bad or not has _nothing_ to do with whether
it's infringed in any particular case.

~~~
tzs
1\. Read more carefully. I was not talking about infringement.

2\. Yes. I acquired a passing familiarity with the US legal system in law
school.

3\. Again, read more carefully.

~~~
problemdomain
1\. The numbers you're quoting sure are. Look at the chart and surrounding
text again. And all you said was "Plaintiffs were only winning 20-40% of the
time.". "Winning" in a patent case hinges on infringement. If you're not
talking about infringement, what could you possibly be talking about?

2\. That's not an answer to the question I asked, it's an irrelevant and
evasive appeal to authority.

3\. You're projecting.

~~~
tzs
1\. I was talking about validity. A hint to that effect was that my sentence
explicitly talked about the burden of proof of patent validity. To win a
patent case, you must have a valid patent and that patent must be infringed.
The plaintiff enters the case with an advantage by law on the validity issue,
which was the point of #1.

I dealt with why the plaintiff has an advantage on the infringement issue in
point #2.

2\. You asked: "Do you actually follow the US legal system?"

I answered: "Yes". Please explain how that is not an answer to the question
you asked.

~~~
problemdomain
You've done nothing to explain how the presumption of validity implies the
plaintiff will ultimately win, nor how my analogy to the validity of a law is
wrong.

If the answer were really just "Yes", you shouldn't have felt it necessary to
bring academic credentials into the discussion, instead of just leaving it at
"Yes".

We know from history that extremely weak cases are filed all the time, usually
hopes of attempting to force a settlement, and that there have been few
effective barriers to such tactics. There were even fewer barriers during the
era before the Federal Circuit came to be.

Your bald assertion about "weak" cases being weeded out is contradicted by
real-world observations of both the distant past and more recent history.

~~~
jeltz
In most cases I disapprove of flaunting academic credentials to strengthen an
argument, since that is just appeal to authority. But in this case I feel it
was relevant to your question.

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cletus
This is pretty interesting stuff. For example, I wasn't aware of the
"jurisdiction race" that happened when new patent were issued. It puts into
context some of the changes at least.

The most depressing, even alarming, part of this is:

> Instead, patent appeals are exclusively heard in DC by judges who live and
> breathe patent law. Unsurprisingly, this leads to insular thinking. For
> example, when we interviewed Paul Michel, who served as the Federal
> Circuit's chief judge from 2004 to 2010, he didn't seem to understand the
> problems facing small software companies. "If software is less dependent on
> patents, fine then. Let software use patents less as they choose," he said,
> seemingly oblivious to the fact that software companies don't have the
> option to opt out of patent troll lawsuits.

Seriously? The court seems to have no idea of the Pandora's Box they've opened
by loosening the "obviousness" constraints.

~~~
api
Sure they do. This Pandora's Box contains cash, for lawyers.

~~~
rayiner
The cynical answer is not always the right answer. You should hear the CAFC
judges speak. They genuinely think that the patent system is good for
innovation. Most engineers I know, outside the software bubble, feel the same
way. They think in terms of patents regulating unfair business practices in
the competition between Dow Chemical and DuPont or Lockheed and Raytheon. They
think it's a Bad Thing (TM) if they work on a new chemical for 10 years,
getting it through expensive and time-consuming testing and regulatory
approval, only to have a competitor be able to copy it the minute they release
a successful product.

They don't necessarily have insight into the dynamics of how patents function
in the software space, but that doesn't mean their actions are just a cynical
money-grab.

~~~
api
So you're saying they just don't understand the software industry? I can
believe that. I do see a lot of cynical money grabs though, so it's an easy
thing to believe.

~~~
rayiner
I think the judges are a reflection of the broader engineering community, and
there are big differences in how different parts of the engineering community
view the patent system. Look at the background of some of the judges. They're
Chem/Bio/EE and worked at places like American Cyanamid and the Naval Surface
Warfare Center. My own background is in aerospace engineering and the defense
industry, and my experience has been that engineers in these industries view
patents very positively. The first think that comes to these engineers' minds
when talking about patents isn't Amazon's double click patent, but the patents
on vulcanized rubber or HDPE.

More generally, people don't become federal judges because they want a payout.
A court of appeals judge makes about $185,000, or about what a third-year law
firm associate makes before bonus. And unlike many other civil service jobs, a
judgeship is a capstone to a career so it's not like judges use the judgeship
as a stepping-stone to a lucrative private-sector position. They are by and
large people who genuinely care about overseeing a justice system that
facilitates the orderly activity of the economy.

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ChuckMcM
Clearly a bit biased but the argument that patent law should rise up through
the circuits like any other branch of law is a good one. That is something
actionable you could ask your representative to 'fix' (note to would be
lobbiests, the best results are when you whine for something achievable, this
wins on that basis it "makes sense" (which should patent law be special now)
and its within their purview.

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brlewis
I'm glad not to be the only one saying the Federal Circuit defied Supreme
Court precedent in _State Street_. I do think we're a long way from a
Diehr/Flook/Benson standard for software patents, though. The Supreme Court is
being very careful these days to say nothing beyond answers to the questions
brought to them. You won't see any long rants against lower courts like in
Diehr.

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josephlord
Uh oh. I understand Europe is planning on introducing a specialist patent
court. That could go similarly badly as it is even more likely to be full of
patent specialists.

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enraged_camel
I know this is (re)opening a can of worms, but the interesting part about this
article is that it _very clearly_ highlights why it would have been a terrible
idea for the recent Apple vs. Samsung trial to be decided by a jury of patent
specialists instead of laymen.

~~~
modeless
It seems that the trouble in Apple vs. Samsung was that one of the jurors
thought he _was_ a patent specialist instead of a layman.

~~~
enraged_camel
Perhaps. I've heard the argument that because he was a patent holder himself,
he was able to convince a significant portion of the jury that he was an
expert in all things patent-related, and this swayed their decision in favor
of Apple. But that's just the rumor machine. We'll see what the outcome of the
appeals process is in a few years.

~~~
modeless
That part of it is not really a rumor; he gave several interviews where he
explained in detail exactly how he influenced the jury. All that remains is to
see whether or not those statements actually invalidate the verdict.

But in case it's not clear, I completely agree with you: a panel of patent
experts would have been even worse. The problem in this case was the judge
trusting this guy when he said he wouldn't let his previous experience as a
patent holder color his judgement.

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api
Yet another wonderful legacy of Ronald Reagan.

~~~
marshray
You can be sure this wasn't his idea.

~~~
lubujackson
Few things were.

