
The Supreme Court is struggling to rein in America's rogue patent court - dctoedt
http://www.vox.com/2014/6/4/5776642/the-supreme-court-is-struggling-to-rein-in-americas-rogue-patent-court
======
rayiner
Many folks in the tech community lament, on one hand, that the U.S. legal
system lacks people, particularly judges, with technical backgrounds, yet at
the same time are intensely unhappy with the decisions of the Federal Circuit,
which has a substantial number of judges with degrees in science and
engineering. The only way I can reconcile these sentiments in my head is that
when people say "judges don't understand technology" what they mean is "judges
don't see technology the way I see technology."

~~~
unreal37
I like the conclusion of the article, which is that concentrating all patent
cases into a single court has given that one court too much power. That
particular court seems heavily pro-business right now. The legal system works
better when appeals court judges across the country make decisions, and the
supreme court manages the splits.

Not sure if it's true, but it sounds like it would avoid the concentration of
decisions in one bad court. We see that in "West Texas" patent lawsuits as
well. One rogue court can affect the nation.

~~~
dctoedt
> _I like the conclusion of the article, which is that concentrating all
> patent cases into a single court has given that one court too much power.
> That particular court seems heavily pro-business right now. The legal system
> works better when appeals court judges across the country make decisions,
> and the supreme court manages the splits._

The author of the original article probably doesn't remember the days before
the Federal Circuit was created. Except for the then-rare cases when the
Supreme Court intervened, judicial interpretations _and applications_ of
patent law could vary widely among the different courts. The validity of a
patent often depended heavily on where the lawsuit was filed. Some courts were
known as graveyards for otherwise-good patents. The federal district court in
Minnesota was one such place, along with its appellate court the Eighth
Circuit.

That often led to patent owners and accused infringers racing to get their
lawsuits filed first: A patent owner would try to sue the accused infringer
first in a patent-friendly court, while the accused infringer would try to sue
the patent owner first in, say Minnesota, asking for a "declaratory judgment"
of invalidity and non-infringement. Under the procedural rules, usually
whoever won the race to the courthouse got to keep their lawsuit alive, while
the second-place filer would have their lawsuit dismissed.

That in turn led to great uncertainty in the scope, validity, and value of a
patent. Clients hate uncertainty. That's what led to the creation of the
Federal Circuit: To try to bring more uniformity to the judicial
interpretations and applications of patent law.

~~~
WildUtah
Well, that's one interpretation of the history of patent law. Another might
note that patentees became enormously more powerful when the CAFC was created,
winning a much higher proportion of cases. The metastatic growth of the patent
system was a goal of the patent bar.

"To try to bring more uniformity to the judicial interpretations and
applications of patent law"

That isn't an improvement when the decisions are consistently bad.

~~~
dctoedt
> _The metastatic growth of the patent system was a goal of the patent bar._

Back then, I was a baby lawyer in one of the largest patent-law firms in the
U.S. I don't remember metastatic growth being discussed as an explicit goal,
but there's no question that patent attorneys, on both the plaintiff- and
defense sides, welcomed the greater prestige and income that went with
litigating bet-the-product-line infringement lawsuits.

------
crazy1van
The Supreme Court's job is less about correcting bad laws than striking down
unconstitutional laws. Many terrible laws can be totally constitutional. The
best way to fix a bad law is to replace it with a better law.

~~~
ubernostrum
_The Supreme Court 's job is less about correcting bad laws than striking down
unconstitutional laws._

The judicial power in the United States extends to _far_ more than "is this
constitutional or not". It includes how to interpret and apply laws other than
the Constitution, and the Supreme Court is the final stop for that process.

Much of the debate about the Federal Circuit is that its interpretation and
application of patent law departs radically from the Supreme Court's
interpretation and application.

~~~
crazy1van
Oh I agree. But the best solution would be just to write better laws in the
first place -- laws that can't be interpreted to produce the mess of a patent
system that we have right now.

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SeanDav
The USA seems to have the most incredibly lousy "justice" system. Laws are
made by lobbyists and enforcement of those laws, sometimes involving judgments
of billions of dollars seem to rest on some good ol' boys in some dingy Texas
courtroom.

Surely it can't be as bad as it seems to this outsider - can anyone point to a
good guide on how this all works?

~~~
rayiner
The U.S. has a tradition of litigation, which forces all these issues into the
public. Do you think there's less influence-peddling in say France or Italy?
In places where the decision-makers can't get sued over every little action,
you don't even need to have a lobbyist make a law.

Take something like bribing officials in developing countries to get
contracts. European companies are far more likely to engage in such behavior
than American ones. What do you think that says about their behavior at home?

~~~
WildUtah
"Take something like bribing officials in developing countries to get
contracts. European companies are far more likely to engage in such behavior
than American ones."

It's legal for European companies to bribe foreign governments to get
contracts. The Europeans don't consider their laws to apply outside their
borders, so their companies can comply with local law.

The USA has the Foreign Corrupt Practices Act that punishes US citizens or
companies with criminal penalties on return to the USA for ordinary business
practices in foreign lands. An ambition to clean up foreign corruption keeps
US companies out of some countries.

~~~
rayiner
The fact that it's legal doesn't mean it's not morally objectionable. You can
argue that not the choice not to make it illegal is a jurisdictional one, but
that doesn't change the fact that European companies engage in the practice
when they could choose not to. I think that says a lot about European
attitudes towards corruption versus American ones.

------
WildUtah
OP Cites Judge Prost's dissent in Alice, "The majority has failed to follow
the Supreme Court’s instructions—not just in its holding, but more importantly
in its approach."

But that was about the awful judgement of the three-judge panel. The ruling
was reexamined by the whole CAFC and a 5-5 hung court could not decide weather
to keep the ruling intact. Until the Supreme Court rules, that 5-5 non-
decision is the final word. Any rational decision by the Supreme Court --
concluding that Alice's patent is invalid -- will not be considered a
reversal.

Also, it is considered unlikely the decision will reach the question of
software patent eligibility. It will probably turn on abstract idea or
business method eligibility. The patent monopolizes any use of computers in
handling escrow accounts.

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lostinpoetics
while this isn't 100% inaccurate, one major headache are vague rulings from
SCOTUS. the "reasonable certainty" test is a good example as well as their
"abstract means abstract" pseudo-standards. while SCOTUS paints with a broad
brush (rightfully so), many of their decisions are borderline meaningless
other than to say to the CAFC "no you're wrong," which results in multiple
rounds of these type of decisions (often on the same issues, or variations of
them). that being said, the closeness of the CAFC to the bar is quite
troubling and the e-mails that Rader sent to attorneys who argued in front of
him were pretty embarrassing for all involved.

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throwawaykf05
Hah, I knew who the author was going to be before I even clicked the article.
(Hi, binarybits!) Allow me to rebut some points:

1\. If anything is to be blamed for the "explosion of patent litigation in
recent years" (for certain values of "recent"), it's the following:

a) the recent AIA "joinder" rules regarding how many defendants you can sue
together, forcing trolls to file multiple suits where they would have filed
one giant suit; and

b) Genentech v Medimmune [1], which made it possible for potential licensees
to file a pre-emptive "Declaratory Judgement" lawsuit if someone even
approached them to discuss a license, which forced licensors to take sue-
first-ask-questions-later attitude to avoid ending up in a defensive position.

2\. As this patentlyo post [2] points out, the CAFC is not a single-minded
group of judges. Most of the decisions that were reverted by the Supreme Court
had CAFC judges with dissenting opinions. (As many as 5, as in the Limelight
case.) And if you need data as opposed to examples, well, there's a study [3]
finding that this court had the "second highest percentage of dissents amongst
the circuits studied".

Further, since Bilski, the SC has agreed with the CAFC 7 out of 13 times [2],
which is not too bad. But there's more: the TFA uses this link [4] to show
that the Supreme Court reversed the CAFC 10 times. Somehow TFA does not
mention that there were a total of _40 cases_ since the CAFC was formed, which
indicates that the Supreme Court affirmed the Federal Circuit decision 75% of
the time!

3\. The Supreme Court is not infallible, especially when it comes to patents,
because I'm guessing it is a relatively esoteric part of law. This patentlyo
post [5] points out one potential error in the Limelight case. The Prometheus
decision was another example where they actually conflated _patent
eligibility_ with _patentability_ [6, 7, 8]. This is such a basic mistake that
even a non-lawyers like us can understand it.

4\. Recent empirical evidence indicates that the Federal Circuit is no more
"patent friendly" than district courts [9]. In fact, if you look at the chart
2, the rate of _invalidating_ patents has been increasing steadily since 2000.
(To be fair, they theorize it's because of Supreme Court pressure.) But if you
look at chart 4, the CAFC has consistently been affirming the district courts
findings of invalidity the vast majority of the time. So no only does the
Supreme Court agree with the CAFC more often than not, so do the district
courts.

1\.
[http://en.wikipedia.org/wiki/MedImmune,_Inc._v._Genentech,_I...](http://en.wikipedia.org/wiki/MedImmune,_Inc._v._Genentech,_Inc).

2\. [http://patentlyo.com/patent/2014/06/federal-circuit-
really.h...](http://patentlyo.com/patent/2014/06/federal-circuit-really.html)

3\.
[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1598419](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1598419)

4\. [http://writtendescription.blogspot.com/p/patents-
scotus.html](http://writtendescription.blogspot.com/p/patents-scotus.html)

5\. [http://patentlyo.com/patent/2014/06/judicial-hypothetical-
li...](http://patentlyo.com/patent/2014/06/judicial-hypothetical-
limelight.html)

6\. [http://inventivestep.net/2012/03/20/supreme-court-
continues-...](http://inventivestep.net/2012/03/20/supreme-court-continues-to-
confuse-patentable-subject-matter-with-patentability/)

7\. [http://www.boulwarevaloir.com/article-Mayo-Promethus-
pub.pdf](http://www.boulwarevaloir.com/article-Mayo-Promethus-pub.pdf)

8\. [http://www.ipwatchdog.com/2014/03/31/missed-opportunities-
fo...](http://www.ipwatchdog.com/2014/03/31/missed-opportunities-for-alice-
software-at-the-supreme-court/id=48845/)

9\.
[http://www.morganlewis.com/pubs/Smyth_USPatentInvalidity_Sep...](http://www.morganlewis.com/pubs/Smyth_USPatentInvalidity_Sept12.pdf)

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mjcohen
The current Supreme Court is pretty rogue itself.

