
Newegg trial: Crypto legend takes the stand, goes for knockout patent punch - Suraj-Sun
http://arstechnica.com/tech-policy/2013/11/newegg-trial-crypto-legend-diffie-takes-the-stand-to-knock-out-patent/
======
cperciva
Lawyers can be a pain at times, but sometimes they set up punchlines
perfectly:

 _" We've heard a good bit in this courtroom about public key encryption,"
said Albright. "Are you familiar with that?

"Yes, I am," said Diffie, in what surely qualified as the biggest
understatement of the trial.

"And how is it that you're familiar with public key encryption?"

"I invented it."_

~~~
angersock
Scummier was the attack on his credibility:

 _That 's not what Fenster did. He went on the attack.

"You never completed a master's degree, correct?" he asked Diffie.

"That's correct," said Diffie.

"Other than the honorary degree, you don't have an earned doctorate or Ph.D.
correct?"

"That is correct," said Diffie.

And even though he taught a few courses, "you never had a real professorship,
correct?" asked Fenster.

"I never had a full-time academic job, no."_

~~~
SkyMarshal
Maybe a missed opportunity, but using Bill Gates as a counter-example of the
necessity of formal education in CS could have neutralized that line of
attack.

~~~
cynwoody
And Steve Jobs. The two dominant companies in personal computing, both founded
by drop-outs!

------
moocowduckquack
I thought I'd go and have a looksee who Dr. Rhyne, the opposing expert
witness, is and I found this:

 _Dr. Rhyne, who will lead the three-day Boot Camp, is a broadly experienced
expert witness who has provided in-courtroom testimony in over three dozen
federal patent cases and ITC hearings over the past thirty years. He will be
joined by legal and technical staff members from Patent Calls, as well as
selected guest lecturers._

 _Carefully designed to be a program that will be “Conducted by Experts for
Experts,” Boot Camp participants will learn that serving as an expert witness
is a unique and productive way to use their technical knowledge. “By their
nature, patent trials are highly charged competitive environments for
companies and attorneys who have a great deal at stake,” Dr. Rhyne has
explained, “and an expert witness is often a key part of that process. I am
pleased to have this opportunity to share my experience as a witness with
others.”_

 _Patent Calls’ Patent Expert Witness Boot Camp will provide an opportunity
for individuals who have some patent expert witness experience – or who are
aspiring to become an expert witness – to benefit from both intensive
instruction and interactive training that are intended to increase their
effectiveness and appeal to potential clients. Participants will receive a
highly integrated combination of classroom instruction, team exercises, and
simulated examination and testimony that will serve to challenge them and thus
maximize their learning experiences._

[http://www.businesswire.com/news/home/20101115007716/en/Pate...](http://www.businesswire.com/news/home/20101115007716/en/Patent-
Calls-Hosts-Patent-Expert-Witness-Boot)

Which contrasts nicely with the questions put to Diffie about his status as an
expert witness:

 _Fenster noted that while Diffie was testifying in court for the first time,
he had other expert witness work lined up. His rate varies from $500 to $600
per hour, and it 's $700 for testifying in court._

 _" Your agent helps you to get expert witness jobs, is that right?"_

 _" Actually, no," said Diffie. "My agent handles the arrangements with my
clients. All of the jobs have come in directly through me."_

------
SwellJoe
Finally, we're starting to see some people stand up to trolls, and judges and
juries are beginning to understand what these people are.

I don't follow patent troll cases too closely because they make me so angry,
especially given that so many of them end up with the troll winning, or at
least going right back to doing what they were doing after losing in court in
a specific instance, but not losing the patent (or they just continue
attacking people with other patents in their portfolio in the rare event the
patent is invalidated). So, when I see a positive story...and this one looks
pretty positive to me.

I worry vaguely that the judge or jury might not recognize the _vast_
difference between Diffie and some unknown asshole who makes his living
testifying in court as an "expert witness" in patent cases.

~~~
tzs
> I worry vaguely that the judge or jury might not recognize the vast
> difference between Diffie and some unknown asshole who makes his living
> testifying in court as an "expert witness" in patent cases

The "unknown asshole" is an IEEE life fellow and former board member, with a
long successful career in research, industry, and teaching in computer
engineering, and authored a widely used award winning textbook on digital
design.

His profile is pretty typical for expert witnesses. Quite a large fraction of
them are people who are retired (Rhyne retired in 1998) after having had a
very successful and distinguished career in engineering or science, usually
including research, industry, and academia.

Expert witness gigs are a nice way to pay for a new boat or RV without a lot
of work. (One of the experts at the trial I was involved in was paying for a
Tesla from a couple expert witness jobs). Many become registered patent
agents, and then they can testify as both experts on the engineering aspects
of the patent and on the patent aspects (e.g., prior art, infringement,
interpretation of the specification, and such).

The workload is actually pretty light, compared to what their load was likely
like before they retired. Basically, they write a report that analyzes the
patent and the alleged infringement and explains why the patent is valid and
why it is indeed infringed, get deposed, and testify about the report.

~~~
SwellJoe
OK, so he's not entirely unknown, and not incompetent. Still an asshole.
Working for patent trolls is a genuinely destructive and unethical thing for
an engineer to do, even if it pays for a nice boat.

~~~
throwawaykf
That's just, like, your opinion man.

Me, I prefer to see data. Fortunately, there are a number of studies coming
out about patent trolls. Unfortunately, there is no clear consensus. Also,
things like the impact of baseless demand letters simply cannot be studied
because they cannot be tracked and there is no data. This will hopefully will
change soon.

But I'd much rather prefer analytical study over uninformed vitriol. Ars
Techica is usually good, but not when it comes to patent matters. This is the
same blog that painted CSIRO, a well known Australian research lab, as a
patent troll because they claimed to invent WiFi and sued manufacturers over
it. The comments on that article (many from posters down under, naturally)
kept calling out Ars' incorrect rewriting of history, but they would not back
down. I wouldn't want my news from somebody who won't accept the facts because
they don't agree with their biases.

~~~
yaakov34
There isn't exact data and there will never be exact data, because many of the
settlements extracted are confidential and there is no incentive for anyone to
talk about them.

If someone is ambushing people in the street, hitting them over the head with
a pipe, and robbing them, I don't need to see a double fucken' blind study to
decide that this needs to stop.

You've reminded me of a meta-study published in some medical journal,
analysing "parachute application to prevent trauma due to gravitational
challenge", i.e. if it's worth wearing a parachute when jumping out of a
plane. They found that little high-quality data exists to support parachute
use, and recommended further study.

~~~
throwawaykf
You don't need exact data, you just need enough. There's no doubt bad actors
in the system, but do they characterize all of them?

The papers I read indicate that trolls actually often have "strong" patents,
but like you said, most of those settle out of court, so you never hear about
them. The ones that go to court are the weak ones, and those are the ones you
hear about, which creates an image that all trolls assert bogus patents.

I mean even NewEgg, who've been spouting a lot of "We Never Settle" rhetoric
admitted, in this very case, that they've licensed a majority of patents that
were asserted against them. The coverage on Ars is a bit brief, but it sounds
like out of 80 assertions NewEgg has taken it to court only a handful of
times. To me, that sounds like the system is not imbalanced.

 _> If someone is ambushing people in the street, hitting them over the head
with a pipe, and robbing them, I don't need to see a double fucken' blind
study to decide that this needs to stop._

Or maybe the alleged victims claiming to be robbed are lying because they
don't want to pay money owed to the alleged assailant and they're hoping he
gets put away? Are you going to believe individual he-said/she-said cases or
data?

BTW the parachute study sounds hilarious. Link?

~~~
yaakov34
The study is here:
[http://www.bmj.com/content/327/7429/1459](http://www.bmj.com/content/327/7429/1459).
One of the authors archived it here,
[http://elucidation.free.fr/parachuteBMJ.pdf](http://elucidation.free.fr/parachuteBMJ.pdf),
since the British Medical Journal website is restriced-access. It actually is
a pretty profound comment; I recommend it highly.

The fact that many of these idiot patents are legally strong is precisely the
problem; that's why we need patent reform to kill them.

------
ChuckMcM
Awesome stuff, I really hope they nail this one dead.

That said, I'm pleased that we've finally gotten a number of jurists now who
are better able to navigate the complexity of the Internet, programming, and
'process patents' when they involve Internet programming. I also find it
remarkable that the Trolls have trained up a specific jurisdiction by over
using it and are now at a disadvantage there. No doubt they will start looking
for somewhere else to file soon but the effect will be the same as opinions
and case law flow out of the east Texas courts.

I am perhaps an optimist, but I believe we have turned the corner on stupid
patents. And more and more of them will be brought down and fewer of them will
be of use to trolls. With luck in another 10 years people will be able to talk
about the 'bad old days' of patent trolls as being behind them.

~~~
throwawaykf
I think we've turned a corner too. I see fewer and fewer ridiculous patents.
One of the reasons why, I speculate, is the advent of Google search :-)

~~~
georgemcbay
Citation needed on there being less ridiculous patents being filed, because I
doubt it.

As far as Google Search goes, standard advice for any tech company to their
employees is don't go searching for patents, just submit potentially patent-
able ideas to legal. This is because if someone has a patent on something and
you violate it and they can prove that you knew about the patent via
subpoenaed records then you owe them three times as much as you would
otherwise, so the more ignorant you are of existing patents the better.

And on the legal side of things, IP lawyers just search the USPTO records
directly, not through Google Search.

~~~
throwawaykf
I've read hundreds of patents over the past 7 years or so, so the first
citation is simply my experience. You won't find, for example, a broad patent
on something like bytecode like this one
[https://www.google.com/patents/US4667290](https://www.google.com/patents/US4667290)
these days

However, I've been researching the patent system quite a bit, and have come
across a number of studies about patent quality [1-12], including "software"
patents [1, 2, 3, finding that software patents are no worse than other
patents]. Unfortunately, there are many problems with these studies:

1) Judging patent quality is hard and time-consuming, and doing it for a
significant number of patents to get data is much more so. Hence many studies
use proxies to judge patent quality, such as back-citations [4, 5], or more
complex multi-variate models [10] . And then other articles point out flaws in
using proxies like this, or actually showing that the metrics actually show
the opposite of what they conclude [6]. And then other studies that propose
new metrics [7, 8, 9]

2) Related to 1, the other problem is looking at not enough data, looking at
different subsets of data, or using different methodologies. Studies are
usually careful to highlight these shortcomings and try to logically make an
argument for generalizing these results, but it's hard to reach a general
conclusion, especially since there is no real consensus.

Now, back to your [Citation Needed]: Few studies convincingly evaluate USPTO
(or other) patent quality over time. One study that does find an improvement
over time [10] attributes it to the KSR decision rather than Google. Another
says that EU patents are getting better over time, though not the US [11].
Another one does briefly argue that US patent quality has been increasing over
time [12] based on a bunch of other studies, but some of these use metrics
that are not fool-proof, as I mentioned in point 1).

And no, patent lawyers and examiners do absolutely use Google for search.

1\.
[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=970083](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=970083)

2\.
[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=650921](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=650921)

3\.
[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291603](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291603)

4\.
[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=426020](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=426020)

5\.
[http://www.oecd.org/newsroom/scienceandtechnologyfallingpate...](http://www.oecd.org/newsroom/scienceandtechnologyfallingpatentqualityhitsinnovationsaysoecd.htm)

6\. [http://hallingblog.com/oecd-patent-quality-
measurement-%E2%8...](http://hallingblog.com/oecd-patent-quality-
measurement-%E2%80%93-confusing-patent-quality-with-innovation/)

7\.
[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1452862](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1452862)

8\.
[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1709999](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1709999)

9\.
[http://www.columbia.edu/~mr2651/A_New_Look_at_Patent_Quality...](http://www.columbia.edu/~mr2651/A_New_Look_at_Patent_Quality.pdf)

10\. [http://www.ipo.org/wp-
content/uploads/2013/03/PatentQualityi...](http://www.ipo.org/wp-
content/uploads/2013/03/PatentQualityinCAFCprepostKSR.pdf)

11\.
[http://ec.europa.eu/internal_market/indprop/docs/patent/patq...](http://ec.europa.eu/internal_market/indprop/docs/patent/patqual02032011_en.pdf)

12\.
[http://www.brookings.edu/~/media/research/files/reports/2013...](http://www.brookings.edu/~/media/research/files/reports/2013/02/patenting%20prosperity%20rothwell/patenting%20prosperity%20rothwell.pdf)

------
Ar-Curunir
Whitfield Diffie looks a lot like Keanu Reeves.

Also weren't most of the questions that the TQP lawyer asked ad hominem? I
understand that he asked those to discredit Diffie, but they still seemed very
disrespectful. Almost anyone in the crypto field would back up Diffie's
reputation, so that was a rather stupid move on the part of the TQP lawyer
IMO.

~~~
tehwebguy
Sounds like it, but unlike HN arguments ad hominem is allowed in court. It
seems that discrediting witnesses is a pillar of our court system.

~~~
icebraining
It's not really the same. What the lawyer was trying to do wasn't disprove the
argument but the facts, which Diffie provided based on his position as an
expert. It's perfectly legitimate to do the latter, and really no different
than when someone criticizes a source linked in some HN post.

------
rurounijones
Wow, talk about strawman attacks by the lawyer "You do not have a PHd, you are
not an academic" etc.

I am surprised he was allowed to get away with it.

~~~
adam-a
A "strawman" is where you set up a flimsy counter point to your own argument
and then defeat it.
[http://en.wikipedia.org/wiki/Straw_man](http://en.wikipedia.org/wiki/Straw_man)

You might call it "ad hominem" as it is an attempt to discredit Diffie,
although that usually describes a logical fallacy - the personal attack
doesn't affect the validity of the argument. In this context the main reason
for having Diffie there is because of his status and achievements, so it's a
reasonable counter to try to discredit him.

I would say that kind of attack is not very fair, and a little bit dishonest,
but not a flaw of reasoning.

~~~
ryanjshaw
It insinuates that the witness is unqualified to make the statements he's
making, using logic of the form "if you don't have a master's degree you
likely can't be an expert in this field."

I would have loved to response to ""You never completed a master's degree,
correct?" he asked Diffie." with "Just like Bill Gates and Steve Jobs, no I
don't have a masters degree" (well apparently Bill eventually got one...). I
assume the judge would be unhappy with this, which strikes me as unfair -
surely I can defend my reputation?

~~~
DanBC
They ask a yes or no question, you answer with the truth. Later on your side
gets to ask questions.

I wouldn't use Bill Gates nor Steve Jobs as examples of experts.

~~~
protomyth
Use both, you are talking to a jury, not other computer folks.

~~~
DanBC
That's a fair point.

I'd be tempted to use the person within the organisation who's done lots of
published research even without the diploma. But you make a good point -
trials are about persuading the jury.

------
tzakrajs
Read the book "Crypto" if you haven't already and want more background on how
public key encryption got started and how it got to where it is today. It was
suggested previously on HN, and I am so glad I gave it a read.

------
pera
Does anyone knows some case where patents were used for the good of humankind?

~~~
tokenadult
A litigated court case? I'll have to think about that for a while. But the
question you ask, are patents good for humankind in general, is yes.
Transnational comparisons make it easy to see over the course of history that
people invent more in countries that have secure rights for inventors. Patents
can be overbroad (that's often what we talk about here on Hacker News) and
patents can be for "prior art" already known to other workers (and that's what
often gets litigated), but in general patents are a helpful public policy,
along with copyrights (I think current United States copyright terms are much
too long) and trademarks. Protection of legal rights in intellectual property
encourages creative people to produce more intellectual property.

AFTER EDIT TO REPLY TO A QUESTION:

I was asked for a written account of transnational comparisons of intellectual
property law and its effect on innovation. Here is one.

[http://www.cambridge.org/us/academic/subjects/law/intellectu...](http://www.cambridge.org/us/academic/subjects/law/intellectual-
property/intellectual-property-law-and-innovation)

I have to go to a conference today for work, but perhaps other participants
will join in with other comments on the international legal comparison issue.
I have lived in two countries (the United States and Taiwan), and I lived in
Taiwan before and after it developed intellectual property law enforcement,
and it is plain to me that intellectual property rights encourage innovation
(as contrasted with mere copying).

~~~
jeswin
Do you have some evidence that inventions are a direct result of patents as
opposed to socio-economic factors? I can see inventors appreciating
recognition, but our system offers no other means of appreciation than
patents. Patents are an example of degenerate capitalism, taking away your
freedom.

~~~
kbenson
Having a free market, which allows the inventor to be first to market, is an
inherent means of appreciating innovation. Compare and contrast with ideal
communism. Patents are really just a way to strengthen and extend this
inherent benefit.

~~~
jeswin
1\. We don't need to appreciate innovation by granting a monopoly. Math is
thriving, even though none of that is eligible for patents.

2\. You can be first to market by developing it secretly, perhaps
collaborating with a larger company in exchange for royalties. That may not
earn you as much money as a patent-monopoly, but that's fine.

In any case, if I independently invent something I should have full rights to
pursue it however I want. That someone else 'thought of it first' is unrelated
to my inventing it. That's the free world I wanna live in.

These inventions are built on our shared knowledge. Nobody deserves a patent
for it. Inventors will invent anyway.

~~~
kbenson
I'm mostly with you, I just wanted to point out what looked like a missed
connection in the earlier statement.

That said, I'm not _completely_ sold on whether patents are _entirely_
useless. Certain types of invention seem to fit the model better than others.

Then again, I've heard of instances where patents, or something similar, could
help innovation. One example is the business poaching I've heard of here,
where someone starts exploring an idea as a service, only to shortly
thereafter have a separate services company run with the idea, and put out a
better executed version quicker than the originator because of more capital.
At first glance that seems unfair to the originator but better for society,
but if enough people think it's not worth entering the market because they'll
be scooped, we _all_ lose out on those ideas.

I don't have a solution, and I don't think the answer is simple.

------
walid
The funny thing is that the lawyer tries to discredit Diffie by trying to
present prior art. He was trying to shift focus away from the case and into
attacking the witness by presenting prior art to the prior art. Kind of a moot
move.

~~~
georgemcbay
I was a juror on a (6 week long) product liability lawsuit this past summer,
and it came out that despite the fact that an expert witness for the plaintiff
asked to see punch biopsies to check for neuropathy in the supposedly injured
leg with a control sample from the other leg, the plaintiff's lawyers only
sent him the punch biopsy from the leg claimed to be injured. When this came
out the plaintiff's lawyers claimed they did this because they wanted it to a
be a "blind study". I almost wtfed out of my chair.

It was pretty clear to anyone with half a brain that the plaintiff had no
actual case and the issue he was suffering from was related to preexisting
degenerative arthritis and nothing to do with the product that supposedly
injured his knee, but sadly based on nothing more than emotional manipulation
by his (very good) lawyers of the jury he came very close to winning
(ultimately it was a hung jury, but the majority of votes were in plaintiff's
favor).

Sadly, people are right to doubt the fact that many of the jurors have the
context to value Diffie's testimony over the plaintiff's expert witnesses in
this case.

------
wnevets
TQP should be forced to pay back all the money they stole with this silly
patent

------
BorisMelnik
is Whitfield wearing a cape?

~~~
malaporte
Given the beard, a wizard staff would be more appropriate. Gandalf fighting
against software patents! Good tidings indeed!

