
East Texas judge throws out 168 patent cases - teachingaway
http://arstechnica.com/tech-policy/2015/10/east-texas-judge-throws-out-168-patent-cases-in-one-fell-swoop/
======
TheMagicHorsey
Software patents are pitched as a policy choice that encourages programmers by
giving them some financial incentive to invent more software.

That's how they have been pitched to programmers and the American people.

However, after having worked in the patent industry for a few years now, I can
tell you software patents are really just a mechanism to redistribute the
wealth of engineers to lawyers. Period. That's the end result. Nothing more.

I wish this was some sort of exaggeration. But it isn't in my opinion.

~~~
throwawaykf05
Here's the thing: It's not us engineers who pay the lawyers. It's our
employers. We don't even get a say in the matter, and over time various
changes in the law have simply tipped the balance even more in favor of the
employers. Your employer can file a patent on your work whether you cooperate
or not.

And it's not like they are going to pay us more if they stop filing patents.
In fact, many firms pay a bonus if your work results in a patent (or even a
patent application.) Clearly they see some value in them, and they have
reasons to.

And this is true of all patents, btw, not just in software.

~~~
jaredhansen
>And it's not like they are going to pay us more if they stop filing patents.

This is actually not true at all. The cost here isn't in the filing of the
patents; it's in the nightmarish patent system that results in absurd
litigation and related expenses. If the patent system were reformed to avoid
this kind of expense, the company would have lower operating costs, which
would be distributed in some way. While it's _possible_ I suppose that 100% of
those savings would be collected by shareholders as profit, it's much more
likely that, like with anything else, the cost reductions would simply
contribute to the size of the total pie, which would be split among owners and
employees in proportions probably roughly similar to how it's split today.

~~~
throwawaykf05
That sounds plausible, but we all know that if there's a bigger pie, almost
always the spoils go to the owners and employees get peanuts. Google and Apple
are sitting on billions in cash and _yet_ they colluded to essentially keep
wages down.

~~~
Guvante
Short term profits are what firms live off. EBIT is sacred regardless of your
cashflow. (I am in no way supporting this mentality, just re-emphasizing it)

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saosebastiao
Is it normal in other areas of the law for the plaintiff to be able to choose
the (extremely favorable) district and judge for the case? Cause I can't
imagine this happening in any other area of law, either civil or criminal. It
just doesn't seem right, especially when the bias is so clearly observable.
IANAL though...

~~~
DannyBee
Unlike what others have said, the answer is no.

Patents are governed by a specific jurisdictional statute that made this
crazy.

The history is detailed well here:
[http://patentlyo.com/patent/2007/04/patent_jurisdic.html](http://patentlyo.com/patent/2007/04/patent_jurisdic.html)

THe TL;DR is:

It used to just be: Any civil action for patent infringement may be brought in
the judicial district where the defendant resides, or where the defendant has
committed acts of infringement and has a regular and established place of
business. 28 USC 1400

Then in 1990, Congress added: For purposes of venue under this chapter, a
defendant that is a corporation shall be deemed to reside in any judicial
district in which it is subject to personal jurisdiction at the time the
action is commenced. 28 USC 1391

This eviscerated the previous limitations.

Personal jurisdiction is a little tricky to explain in a single post, but
suffice to say, for internet companies most likely the target of trolls, they
will generally be found to be subject to personal jurisdiction everywhere in
the US.

~~~
WildUtah
Note that 28 USC §1400 is still in force; the Congress did not choose to
remove the limits on patent case jurisdiction when it expanded other
jurisdiction. It's right there in the US Code in black letters with no
ambiguity.

But the notoriously corrupt patent appeals court -- the CAFC -- in its first
decade of existence, abolished 28 USC §1400 by fiat.

The patent trolls went into business in East Texas soon after.

~~~
DannyBee
28 USC 1391 is actually very clear. As much as i don't like the CAFC, their
interpretation of it is completely and totally defensible.

~~~
WildUtah
So is 28 USC §1400. It was not repealed and plainly sets more particular
jurisdiction for patent cases. What can Congress do now to re-institute the
validity of it? It's already in the USC. Pass a new clause "and we really mean
it!"? CAFC judges have contempt for the canons of statutory construction when
entrepreneurial judging can benefit them personally.

------
bsimpson
> reformed rules would have forced trolls like eDekka to actually explain how
> their targets infringe their patents. However, that's not currently a
> requirement

How is it even possible to sue somebody for something you can't show that they
did?

~~~
throwawaykf05
You are supposed to prove it during the lawsuit, but you can get one filed
just on "belief" and vague accusations. This stays the lawyers bills running
for the defendant while the plaintiff can just wait, which is a tactic often
resulting in early settlements.

In the US there is something called rule 11 that prevents you from filing bad
faith lawsuits, but it is a pretty low bar. IMO if this is strengthened by,
say, requiring detailed claim charts up front, it can go a long way in
deterring nuisance lawsuits.

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throwawaykf05
If you look past the common rhetoric against ED Texas about bring patentee-
friendly and look at the data, this is not really surprising.

[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1597919](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1597919)

ED Texas did get a bad rap for being plaintiff-friendly early on, but that
didn't last long at all, as the data shows. These days it seems to be favored
for being a relatively fast docket and having judges with more patent-
expertise.

~~~
magicalist
> _These days it seems to be favored for being a relatively fast docket and
> having judges with more patent-expertise._

Uh, neither of those are really true, the fast docket is especially wrong.

In fact, there are a host of reasons why the Eastern District is popular (your
source is wildly out of date due to changes since 2010). There's a reason that
44% of all patent cases for the first half of 2015 were filed in the
district[1]. Juries do indeed rule for defendants there a decent amount of the
time, but the rules tend to be very plaintiff-friendly in the sense that they
make it very expensive to go to court at all, making settling seem all the
more attractive (which just so happened to be the exact business plan of the
article's subject, eDekka LLC :) Lots of sources linked in [1]

[1] [https://www.eff.org/deeplinks/2015/08/deep-dive-why-we-
need-...](https://www.eff.org/deeplinks/2015/08/deep-dive-why-we-need-venue-
reform-restore-fairness-patent-litigation)

~~~
throwawaykf05
Have the statistics changed since 2010? While the EFF goes on about
"plaintiff-friendly" rules, it presents no link to any statistics on the win
rates or settlement rates. It mentions statistics on how ED Texas rules
differently on different motions, but what matters are the outcomes compared
to other districts.

Even then the differences in statistics on rulings I believe can be explained
by the relative sophistication of the plaintiffs who file there -- mostly
patent trolls. Since trolls typically assert patents they acquire, they will
go for "better" patents, and they can simply choose different patents to
acquire when something like Alice comes along. Practicing entities have no
such luxury and are stuck with the patents they were issued.

Lemley (the author I linked previously) and others actually have studies on
these things. I'll have to dig them back up.

~~~
magicalist
> _Have the statistics changed since 2010?_

Oh yes: [http://www.houstonchronicle.com/business/article/Patent-
case...](http://www.houstonchronicle.com/business/article/Patent-cases-flood-
East-Texas-courts-6444470.php)

> _Even then the differences in statistics on rulings I believe can be
> explained by the relative sophistication of the plaintiffs who file there --
> mostly patent trolls_

Absolutely trolls love it there. No clue what that has to do with your
original point, though: the venue is absolutely advantageous to the plaintiffs
and the rocket docket is a thing of the past.

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hga
Heh. More evidence for something I've been hearing for a while, the mass
quantities of patent lawsuits in this "rocket docket" has had the side effect
of educating everyone in it about this area of law, and it's getting harder to
win a bad case.

~~~
Alex3917
All of the software patent trolls are pretty much going to be out of business
in the next 12 - 18 months. It costs millions of dollars to run these
operations, and most of them haven't been making any income for 2+ years now.
All the smart trolls have moved on to trolling PTAB, and the dumb ones are
just holding out hope that they either hit one last jackpot or else find some
other way to monetize their portfolio.

~~~
adebtlawyer
> It costs millions of dollars to run these operations

Are you sure? Litigation isn't always expensive if you're doing it in-house.

~~~
ww520
Lawyer fee is expensive. Discovery is expensive. Patent discovery can run from
weeks to months of expert time. Those can quickly add up.

~~~
adebtlawyer
I said 'in-house.' That means lawyers on staff on salaries, not fees to
outside counsel.

Work costs money, sure, but I'm skeptical of 'millions of dollars.'

------
stanleydrew
Progress is slow when it comes to patent reform. Judges have a lot of control
over how fast it happens, since they're really the only ones who can make
binding decisions.

Of course it would be great if the patent office had made better decisions in
the first place, but that ship sailed long ago.

~~~
x5n1
... and the legislature can reform all of this over night, but big money and
big business won't let it. they like the safety of patents even if they are
not going to war with them. same mentally as guns i guess.

~~~
cheepin
For most of the people I know that aren't in tech, patent reform isn't
remotely on their radar. Congress isn't going to go against the money for an
issue that doesn't have overwhelming popular support. Is there even a
consensus on what would fix the problem? Banning software patents just covers
one edge case, but there are plenty more issues in patent law.

Patents in all fields clearly slow down innovation by allowing the holder to
slow down or stop derivative works. The common counter to removing patents
altogether is big pharmacy. I don't know how much sympathy I can have for big
pharmaceuticals either with how much they get away with: even with unpatented
drugs we see anti-competitive behavior with companies like Turing. Clearly the
innovation is profitable enough that funding it publicly and then reaping the
benefit publicly shouldn't be a problem, right?

The other objection is that it promotes secrets over open innovation, but I'm
not sure that is too valid either. The current status quo gags profitable
utilization of research for 20 years. Surely there's an acceptable
alternative.

~~~
throwawaykf05
_> Patents in all fields clearly slow down innovation by allowing the holder
to slow down or stop derivative works._

This theory is not supported by empirical evidence. There is plenty of
evidence showing how industries became more innovative with the introduction
of patent protection. This theory _may_ however apply to industries where
innovation is incremental and where claim boundaries are hard to define, like
software, but evidence is hard to come by and only now are we seeing some
empirical studies on the matter.

------
daveloyall
Can't wait read the EFF article about this.

------
iraphael
> the patent describes (...) routine tasks that could be performed by a human.

Is this a good way of defining when a patent is invalid? Isn't everything
(i.e.: all computations) technically tasks that could be performed by humans
alone given enough time?

~~~
adebtlawyer
The key word is 'routine.' Patentable subject matter is supposed to be non-
obvious, in other words, innovative.

~~~
monochromatic
In a post-Alice world, anyway. Pre-Alice, patentable subject matter and
nonobviousness were separate requirements.

~~~
adebtlawyer
I'm not familiar with Alice. As far as I know, you're right, non-obviousness
is different than patentable subject matter. Sorry to elide them together like
that.

I never claimed to be patent lawyer.

~~~
monochromatic
Not a problem, you did just as well as the U.S. Supreme Court. (Alice is a
mess in my opinion, if you couldn't tell--it mixes two requirements that were
supposed to completely separate.)

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PythonicAlpha
It should be more such judges, until the politicians got some brains.

Many modern (software related) patents are bringing no advances at all, but
are simply claim-pitching of corporations like in the gold-rush times.

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rebootthesystem
Case after case we continue to see a pattern of apparent ignorance,
incompetence or indifference on the part of the patent office.

I read through the claims. This patent should not have been granted. You can
go back to the 1980's and find relevant prior art.

Are they playing "dumb" because of self preservation? In other words, if the
patent office became really strict and only a handful of patents were granted
every year they'd only need a fraction of the people, infrastructure and
organization now in place. People would lose their jobs.

And so, if you want to keep your job, you issue patents like we are in the
middle of a new scientific renaissance. More patents means more money being
pumped into the system which, in turn, means you get to keep your job, your
benefits and an amazing lifetime pension you did not pay for. You know you the
patents you are letting through are crap but all you care about is your
financial well being. You htink "Let the courts and those rich fucks sort it
out" and move on.

Is it possible that the feedback loop at the patent office is such that
volume, rather than quality, is what's remunerated? Never mind that this
destroys innovation and causes huge financial losses across all kinds of
businesses.

The fitness function might be such that optimization delivers exactly what we
do not want as a nation but what the patent office, as an isolated organism,
needs for survival.

