
Make legal documents subject to software patent laws - Garbage
https://plus.google.com/112752620647547057360/posts/9BMqpLS6i31
======
shawn-butler
This is not a bad idea, but I would add that I think a better idea is that
abuse of the patent system (resubmitting patents over and over with slight
modifications to gain approval [0], non-producing entities engaging in
jurisdiction-swapping [1], etc) need to be confronted immediately by judges or
individuals with the spectre of sanction and disbarment by local and state bar
associations boards of professional conduct (EDIT: I am generally against an
activist judiciary but, this is certainly an area where such activism has
sufficient merit).

This can happen right now. You don't have to wait for political reform or
constitutional amendments. Disbar the people who are responsible for abuse.
Then let the system work. Bar associations feel local pressure. They respond
to it immediately, on the the timescale of months, not years. Remove the
financial incentive to file obviously frivolous[2] suits, and the problem will
go away. If the trolls can't find anyone reputable to represent them, we all
win.

Just my $0.02.

[0] <http://www.google.com/patents/US8086604>

[1] <http://en.wikipedia.org/wiki/Forum_shopping> [2]
[http://en.wikipedia.org/wiki/Jack_Thompson_(activist)#Disbar...](http://en.wikipedia.org/wiki/Jack_Thompson_\(activist\)#Disbarment_proceedings)

~~~
grabeh
Why blame lawyers for the instructions and aims of their clients in engaging
in litigation?

It is up to the courts to judge the legitimacy of a claim on its merits, not
bar associations to determine that someone is unfit to practice purely on the
basis that they represent a client with an apparently legitimate claim.

~~~
shawn-butler
Because lawyers are allegedly trained, ethical professionals that are granted
a unique license in every jurisdiction to exclude nonprofessionals? A nearly
universal aspect of most bar associations (ABA, state, local) is a statement
of professional conduct requiring members provide competent representation.

Are you saying that these NPE patent portfolio trolls have legitimate claims
and that nearly everyone else is wrong or are you saying that patent/IP
lawyers lack the competency to recognize patents that are junk prima facia and
advise accordingly? In case you are not following recent events, most of the
activity of NPE trolls happens outside the courts because the attorneys
involved know full well their paper is worthless inside. So they target
precisely those firms who cannot afford protracted legal proceedings and avoid
those that can. This is not professional conduct and if it is, the profession
has the wrong name.

Their clients will not sue for malpractice because they are benefitting.
Judicial sanctions are not an option for activity that occurs outside of any
proceeding. Where is the control and check on such clearly unprofessional
behavior, the only defense for which is that it generates income, if not the
body responsible for policing its own conduct?

~~~
rayiner
The standard for claims is that they must have some basis in law and fact or
on some non-trivial argument for changing the law. Most troll claims are well
inside that boundary, given duly issued patents and non-spurious allegations
of technical infringement.

Just because you think the troll claims are clearly invalid under existing law
does not make them so. The law is arguably far too broad, but if there is a
duly issued patent, thats all the "basis" in the law that is necessary. If
that results in a lot of what you consider trivial cases, the fault is the
law.

~~~
shawn-butler
Let's say I have a patent for rotating the image displayed on a homepage [0].
You are trying with a straight face to tell us that there is any valid belief
that this is an enforceable patent other than the incomprehensible fact that
it was granted?

And further, if you do provide competent representation and advise me that
this patent is basically null if it gets challenged, present me with the
obvious prior art, etc then you believe (again with a straight face) that it
is ethical behavior to, on my behalf, threaten another party unless payment is
made with legal action representing what you know to be false to that party
and more importantly having no legal basis for a positive outcome in any legal
proceeding?

There is always room for improving statutes as no crafted law is a perfect
instrument. It is clear to everyone by now that the simple existence of a duly
issued patent should not be considered on its own as a valid basis for
litigation. And, for the most part abuses are taking place outside of judicial
purview or being forum shopped to certain favorable jurisdictions. I take
issue with the ethical lapses having no consequence, and am advocating for
self-correcting behavior by the very body that has that task.

[0] <http://1.usa.gov/dR6UBy>

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joshuaheard
I'm a lawyer, but not an AI engineer. It seems to me that we do not have an AI
good enough to analyze, that is apply a given set of rules to a unique
situation. As far as I know, the current state of the art of AI is merely
algorithmic pattern recognition. This would not be good enough to replace a
lawyer.

Also, some quibbles about the article. Anything one writes, such as a contract
or blog post, is automatically granted a copyright. Also, the blogger seems to
think contracts are some sort of public reference like a statute. They are
not. While you can find form books (private), contracts are drafted by lawyers
for their clients and are private property.

The author's one interesting idea is a software-type patent on contract
clauses. If you could patent, say a non-compete clause, well, that would
certainly transform the legal world. I don't think it is feasible, though, and
shows the folly of software patents.

~~~
worldsayshi
"This would not be good enough to replace a lawyer."

And proof checkers doesn't replace mathematicians. But the existence of proof
checkers puts (a subset of) mathematics into the software realm.

I feel that it is probably inevitable that at some point we will have computer
assisted legal analysis.

~~~
pmccool
Michael Kirby, formerly of the High Court of Australia, etc etc would seem to
agree with you, and he has for some time.

Here's a speech of his touching on this very topic from the '80s.

[http://www.michaelkirby.com.au/images/stories/speeches/1980s...](http://www.michaelkirby.com.au/images/stories/speeches/1980s/vol16/642-First_Aus_Artificial_Intelligence_Congress_-
_Legal_and_Ethical_Issues_in_AI.pdf)

------
Peaker
Software is not patentable because it is software.

Software is patentable by specifying the entire machine, cpu, memory and
software that is used to achieve the purpose.

~~~
worldsayshi
Put the neuroscientists on the task of specifying lawyers pronto.

------
jacques_chester
Oh man.

You know how annoying Star Trek is to physicists? Or how _Hackers_ was a riot
because of how hilariously wrong it got ... well ... everything that matters?

Yeah. So. That's what this reads like to anyone who's studied the Common law.

I used to think expert systems might be useful for legal situations.

And then ... I studied law.

You know why law is complex? Because of problem domain -- _everything humans
do_ \-- is complex. Right now a judge is being asked to give a ruling on a
particular combination of facts _that has never arisen before, ever, in the
history of the human race_.

It probably belongs to a fuzzy set of existing situations canvassed by cases
raised in the past thousand years.

But it might not.

There is always novelty in the law.

~~~
hooande
> It probably belongs to a fuzzy set of existing situations canvassed by cases
> raised in the past thousand years.

Computers own those. Don't write off expert systems because you can't see how
you would implement it right now. It would take an unprecedented effort (like
apollo mission sized), but we have the means to build legal expert systems
available to us today. It's not being done because it wouldn't be immediately
profitable, in part due to the bias you expressed.

For every judge with a truly unique case on their docket right now, there are
a thousand other judges with wholly predictable and commonplace cases. The law
is incredibly complex, but 80% cases don't require any one-of-a-kind
judgement. Humans are actually highly predicable in large numbers (just ask
Nate Silver).

The idea of using the technology behind IBM's Watson is _Hackers_ level
laughable (though I think that was chosen because it's well known). The right
tools for this job do exist, the billion dollar problem is getting the right
input.

~~~
jacques_chester
I want to believe it can be done in a single, gigantic project.

It won't happen that way. What will happen is that special purpose systems
will nibble at the core of relatively well-settled areas of law. Trusts.
Contracts. The bread-and-butter stuff.

Most such disputes never reach the court, because the particular law is so
well settled. Party A goes to their lawyer, who can confidently say whether or
not they would win in the courts against B. That's the beauty of _stare
decisis_ , in the long run it drives down the amount of court time needed for
civil disputes.

But:

1\. Some people still want their day in court. As a lawyer you are obliged to
give your client your utmost efforts, even if they are idiots without a legal
leg to stand on. I imagine a lot of them will demand human judgement be used.

2\. Hard cases still come up. All the time. More frequently than you imagine.
To the point where the Supreme and High Courts of the world turn away far more
tricky corner cases than they address.

~~~
shasta
Whether and how it will happen is a different question from whether it could
and should happen. Most legal rules could be vastly improved by reducing them
to principles that are combined in a framework of cost/benefit analysis. One
of the main reasons that hard cases frequently come up is because the law is,
in software terms, extremely buggy. Those "corner cases" are mainly a problem
because the law attempts to solve so many problems by partitioning into ad hoc
cases.

The law (meaning the courts and the legislative process, as well) is so
completely broken that it's hard to imagine a fix actually happening in the
US.

~~~
jacques_chester
> _Most legal rules could be vastly improved by reducing them to principles
> that are combined in a framework of cost/benefit analysis._

Lawyers already do this. The world is _still_ too complex to reduce to a
single, central set of uniform principles. Instead you have lots of little
pockets of temporary uniformity.

What happens is:

1\. Lots of disconnected cases.

2\. One day, a lawyer or judge notices a pattern.

3\. A new principle is expounded in a case.

4\. Other judges might pick it up and it becomes the common law. Or they
don't, and it doesn't.

5\. If it's widely accepted, the new principle begins to accrete exceptions,
odd outliers, dusty corners and so on.

6\. One day, a lawyer or judge notices a pattern ...

You need to stop thinking of law as a _product_ and think of it as a
_process_. It is not a static, manufactured good. It is a _procedure for
discovery_.

~~~
shasta
>> Most legal rules could be vastly improved by reducing them to principles
that are combined in a framework of cost/benefit analysis.

>Lawyers already do this.

I'm not really sure what you mean by this, but how lawyers think about things
is not really relevant to legal outcomes. Also, none of the lawyers I know
employ anything like the reasoning I have in mind in their work. Finally, if
your claim is that the outcomes produced by our byzantine legal system is
equivalent to the outcomes that would be produced by a principled approach,
then I think you are mistaken.

> You need to stop thinking of law as a product and think of it as a process.

You need to stop assuming that you know what I think :). I don't think it
should be static. The law acts to model aspects of the world that society
feels should relevant to legal outcomes. The world is far too complicated for
that model to be perfect, in my preferred system _or yours_. So, of course, we
will occasionally notice aspects of our world that are not modeled and deserve
to be, and there should be a procedure for doing as much.

There are many problem with the process we have in place. First, there aren't
clean principles to begin with. The courts are tasked with ruling on the
written law, which is highly imperfect. To the extent that the courts
"discover" new principles out of the written law, they are effectively writing
new law, which in theory isn't their job.

Second, the principles should come before the outcomes. In your flow chart,
the outcomes are decided first in a large body of cases and then eventually
the pattern is recognized. But the whole point of a principled approach is to
improve the quality of outcomes, not just to simplify the description of the
poor outcomes that would have been arrived at by judges thinking hard about
it.

In general, I think you greatly overestimate the number of principles that
would be necessary, in the right framework, to improve the legal system. But I
recognize that the onus is on me to back that up and I'm not really in a
position to propose a specific alternative system.

~~~
jacques_chester
> _So, of course, we will occasionally notice aspects of our world that are
> not modeled and deserve to be, and there should be a procedure for doing as
> much._

That is _exactly what the courts do_.

> _First, there aren't clean principles to begin with._

Yes, there are. The courts are forever elucidating them, combining them,
perfecting them. The legislature periodically replaces them.

> _Finally, if your claim is that the outcomes produced by our byzantine legal
> system is equivalent to the outcomes that would be produced by a principled
> approach, then I think you are mistaken._

> _In general, I think you greatly overestimate the number of principles that
> would be necessary, in the right framework, to improve the legal system. But
> I recognize that the onus is on me to back that up and I'm not really in a
> position to propose a specific alternative system._

Well good news. This has been tried, it's called a "code" or "civil" legal
system; as opposed to the byzantine "case" or "common law" system that is used
in countries descended from Britain.

And it doesn't make the _actual complexity of the real world go away_. I'm
struggling to convey this point. The law is not complex because of the way the
_law_ works. The law is complex because _the world is complex_.

That is an irreducible complexity that simply cannot be swept away by a single
rational system. Even the civil law acquires warts, dusty corners etc and is
constantly being altered, tweaked, fiddled with.

You don't realise it, but you have stumbled upon a very old strain of wishful
thinking: society seems so _irrational_ , surely we could do a better job if
we started from first principles and nutted things out from there.

It has been tried. Many times. By many of the greatest minds that have ever
lived.

And they have all failed.

~~~
shasta
>> So, of course, we will occasionally notice aspects of our world that are
not modeled and deserve to be, and there should be a procedure for doing as
much.

> That is exactly what the courts do.

Agreed, common law has this capability. I was challenging what seemed to be
your assumption that a principled system wouldn't.

>> First, there aren't clean principles to begin with. > Yes, there are.

You think the US Code of Laws is clean? The one that, according to Wikipedia,
is around 200,000 pages long?

> I'm struggling to convey this point. The law is not complex because of the
> way the law works.

You've conveyed that _opinion_ quite plainly.

> [Rational rules developed from first principles] has been tried. Many times.
> By many of the greatest minds that have ever lived.

What super rational system developed from first principles by the greatest
minds of all time did you have in mind here? I'm well aware that there are
legal systems that aren't based on common law.

Let me ask you this: do you think the staggering complexity of a modern OS is
essential complexity? Because I don't. And yet there have been many attempts
to reinvent from first principles that have failed to gain traction. Many of
them, in a quest for simplicity, were overly simplistic in some regard. This
isn't myth busters, though. A couple of examples don't translate to a proof.

Your position seems to be that we've stumbled upon a system of law here that
introduces very little accidental complexity and that handles well the
essential complexity of the real world. I don't really know how you can have
that position if you've had exposure to legal reasoning. Have you studied
constitutional law?

~~~
jacques_chester
> _What super rational system developed from first principles by the greatest
> minds of all time did you have in mind here?_

I was referring more to the presumption that all complex systems, everywhere,
can be replaced with a positively designed rational system. This is pretty
hard to refute amongst the HN crowd because our entire bread and butter is
creating positively designed rational systems. It's what we do.

As I said further down, in the limited case of laws, the civil laws have tried
to replace a historical patchwork of custom, local rules and decrees by a
single, positively designed, single rational system of law.

But this still frequently turns out to be inadequate. Injustices and oddities
pile up around a glitch, which is modified in isolation; then more small
changes occur, until a new pattern is recognised by the legislature and the
code is rewritten.

Sound familiar? It should: in practice the civil law winds up being adaptive,
just like the common law. At least the common law doesn't delude itself into
thinking the whole thing could be nutted out from the very beginning.

Software engineers should know better. Just look at the archives of the IETF
sometime. Here intelligent individuals discuss, design and promulgate the
protocols that make the modern world pulse with activity -- the technology
that makes it possible for us to retread an argument that is at least several
hundred years old.

Yet RFCs are periodically deprecated and replaced with updates. Why? Because
of unforeseen circumstances, errors, abuses and so forth. No matter how
intelligent the designers, they were simply unable to foresee all the possible
cases in advance. And the IETF, like the Common law, places intelligent,
localised-to-problem adaptation of existing principles at the centre of its
mechanism.

> _Your position seems to be that we've stumbled upon a system of law here
> that introduces very little accidental complexity and that handles well the
> essential complexity of the real world._

I'm sorry if I gave that impression. The legal system can and does sometimes
impose enormous drag. The the extent that laws become onerous and the legal
system highly unpredictable, it's necessary to petition to legislature to
reform them. Patent law is certainly one such topic.

But the complexity of legal _reasoning_ is not accidental complexity, in the
sense Brooks was talking about. It is essential complexity. It exists in the
problem domain, which is all relations between human beings.

~~~
shasta
I agree that any good legal system should have the adaptive quality of common
law. I'd agree that the major source of accidental complexity in the law is
poorly written laws, but I also think that there is significant room for
improving the framework in which laws are written, such that many rules (e.g.
the rule against Hearsay) that have lots of explicit exceptions would be
better served a simpler framework with a few principles from which the
exceptions emerge.

------
grabeh
If protection was granted for contract clauses, firstly it would be far easier
to search for existing clauses that were protected, and secondly, it would be
far easier to draft around a protected clause.

Also, in the patenting process in the first place, it would be far easier to
provide examples of prior art therefore making any attempt to patent clauses
far harder.

Finally, advancements in contract drafting take place at a much slower pace
than technological advancements in other areas, again, suggesting to me that
many supposedly novel clauses would be obvious in light of prior art.

Still, an interesting idea to think about all the same.

~~~
jacques_chester
Novelty in contract drafting is a _bad_ idea.

You want contracts to be built out of known, well-understood primitives.

So when a court case settles the exact meaning of a phrase, that phrase may
pass into common circulation amongst lawyers.

That's how "legalese" arises.

~~~
grabeh
Yes, it would be nice to work in a world where everything was standardised and
obviously there are attempts in certain areas to standardise documentation to
allow quicker negotiations and deal flow (ISDA documentation for example).

However, there will always be contracts which demand a greater degree of
specificity due to the unusual surrounding circumstances, and certain
resulting clauses could be considered to be novel.

Of course, if no one drafted novel clauses, there wouldn't be any work for the
litigation lawyers when there's a disagreement over the clause's ambiguity!

~~~
jacques_chester
If you want to know which came first -- the chicken or the egg -- expect to be
billed in 6-minute increments.

------
monochromatic
Methods that can be executed by a human, instead of requiring a machine, are
generally considered "mental processes" and unpatentable.

Yet another brilliant idea from someone who wants to fix a system he does not
understand.

------
BenoitEssiambre
To credit previous self, the idea came to me while in a discussion here on HN:
<http://news.ycombinator.com/item?id=4815628>

Seems to have gone full circle HN -> g+ -> reddit -> HN

I posted it on g+ and reddit but not here since I had already discussed it in
the comments.

my 15 minutes of fame I guess :-)

------
smogzer
Why not model laws as UML patterns ?

~~~
arethuza
I've never been convinced that UML works terribly well for modelling software
let alone something like legal concepts.

