
EFF asks appeals court to “shut down the Eastern District of Texas” - mmastrac
http://arstechnica.com/tech-policy/2015/10/eff-asks-appeals-court-to-shut-down-the-eastern-district-of-texas/
======
grendelt
Hello from the "Eastern District of Texas" (I live 27 miles from the US
Courthouse in Marshall). The lack of educated citizens with critical thinking
skills is overwhelming. This is why juries hand down absurd findings in patent
troll cases. "All this technical mumbo jumbo just makes my head spin".

I've sat on mock juries for corporate law firms before (IP/patent law is
interesting and easy money to sit for mock jury) and more than once I've
skewed their findings because of my technical/electronics background. During
the breaks the folks that are participating are total block heads that don't
understand even the most elementary explanations given.

I now often wonder if patent cases should be trial by jury or trial by subject
matter expert panels. The lack of technical literacy shows that the populace
is woefully unprepared to serve as jurors in these cases.

~~~
WildUtah
The Court of Appeals for the Federal Circuit is the specialized patent appeals
court. It was created in 1982. Before that the regular appeals courts heard
patent appeals. The idea was that subject matter experts and scientist-judges
would be better able to adjudicate complicated patent appeals.

What we got from the CAFC was the explosion of software patents, regular
messes of abusive patent rules, an overwhelming bias against small companies
accused of infringement by monster corps with patent portfolios, legalization
of patents based on abstract ideas, and regular rebukes by the Supreme Court
that has to try to rein them in with regular 9-0 decisions that the CAFC then
finds ways to ignore.

The problem is that anyone who could get appointed to such a court is probably
personally invested in the power of the patent system. His history is probably
in mega corps with thousands of patents to block innovative disruptors. Such a
judge's future prestige and professional respect is determined by how much he
supports omnipotent and unlimited patents with little review of validity.

So these judges are inevitably judging their own careers in every case. They
are as biased and corrupt as you might expect anyone to be when asked to judge
the limits of his own power and influence.

No. Cases should not be tried by juries of subject matter experts. That just
leads to more corruption. We do need better rules that make it harder to abuse
the system, but we're better off with ordinary judges and juries making the
decisions, even though they sometimes screw it up through ignorance. At least
they aren't screwing it up by malice like certain federal judges.

~~~
nitrogen
What about having juries composed of actual peers? That is, randomly selected
experts, half from industry and half from academia? The lack of prolonged
engagement and predictable assignment to cases should make it harder to end up
with another CAFC.

~~~
JupiterMoon
The point is that this leads to corruption. A jury-of-peers reflects and
represents wider society. A jury-of-some-selected-close-peers as you are
suggesting would not reflect the needs of wider society.

Other other hand the broadly selected jury won't be able to understand
technical cases.

Its 6 one half-a-dozen the other. (UK English expression that means both ways
have major flaws and neither is ideal.)

~~~
ownagefool
Scottish here. I'd say that saying actually means both are ultimatly the same,
as in they might be difference but they're both equally negative. In this
case, it would indeed be refering your assessment that both ways have major
flaws and neither is ideal. But the point is, it has a wider meaning that
could be invoked when comparing two good outcomes, for example.

------
WildUtah
28 USC §1400 (b), the patent venue statute is designed to prevent places like
East Texas from running national tech policy and to protect small companies
from predation by troll megacorps.

"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."

The CAFC (the patent appeals court) judicially abolished the statute in its VE
Holdings decision so that patent lawyers would get richer and more powerful.
That's the motive behind many CAFC decisions since patents are the root of the
judges' power and power -- as is predictable -- has corrupted. Now the new
case asks them to revise that decision and follow the law as written.

Let's see if the new Obama judges are more honest than their predecessors.
(The verdict so far: maybe.)

~~~
monochromatic
It's not anywhere near that simple. The issue is that Congress amended §1391
to _broaden_ the definition of a defendant's residence. The CAFC then
interpreted the two statutory provisions together according to their plain
wording.

Decent discussion here:
[http://patentlyo.com/patent/2007/04/patent_jurisdic.html](http://patentlyo.com/patent/2007/04/patent_jurisdic.html)

edit: I _thought_ your name looked familiar. We discussed this a couple of
months ago, and you're still spouting the same incorrect nonsense.

~~~
wtallis
Your willingness to ignore the crucial fact of how the CAFC and Eastern
District of Texas rely on the _judicially_ broadened concept of _personal
jurisdiction_ does not give you excuse to take that tone with your
accusations.

The CAFC is decidedly _not_ interpreting statute according to its plain
wording when it interprets a clause intended to limit judicial powers as
having no limiting effect. There's definitely room for reasonable disagreement
with your position.

~~~
monochromatic
Read the blog post I linked, then read VE Holdings, then get back to me.

Or maybe you've read them, and your position is that Congress just _didnt
know_ what personal jurisdiction meant when it rewrote 1391.

~~~
wtallis
Let's turn this around: are you asserting that Congress _did_ anticipate in
1990 that personal jurisdiction would extend to almost anybody with a website
without requiring specific evidence of any actual commerce with the district
or state in question? Because the case law on that was certainly a mess in the
subsequent years, and it doesn't look like it's even been taken up by the
Supreme Court.

What is necessary under Federal Circuit law for an e-commerce business, for
example, to avoid falling under the personal jurisdiction of Eastern Texas for
a software patent suit? And do you believe that such measures—if they exist—do
"not offend traditional notions of fair play and substantial justice"?

~~~
dhimes
Well, I've included in my TOS that the product is not for use there. Maybe
that will help (not released yet).

------
afarrell
I am curious how much money would it cost to run an advertising campaign in
this district and how likely it would be to influence jurors. I suspect that
the jury selection process would prevent it from having much effect.

~~~
jules
Companies spend lots of money there, so they believe it does work. Samsung
built an ice skating facility directly in front of the courthouse.
[http://mix931fm.com/yes-you-can-ice-skate-in-east-
texas/](http://mix931fm.com/yes-you-can-ice-skate-in-east-texas/)

~~~
toomuchtodo
So what you're saying is frackers need to find oil in the area, ruin the water
table, thereby driving citizens of East Texas out of the venue...

We're all one event away from being supervillains.

~~~
bitJericho
That's what's happened in western north Dakota! lol

------
chris_wot
So let me get this straight - if you do business in East Texas, you are more
likely to be sued for spurious patent violations, and more likely to lose when
this occurs. But if you don't do any business in East Texas, then you will get
sued in a less biased court.

So is it feasible to not do any business in East Texas?

~~~
WildUtah
Google and Apple won't let you block your app from app store requests in
Texas. Fixed internet connections can be traced by IPGeo databases so you can
block connections from Texas, but mobile carriers obfuscate the IP with NAT so
you can't block mobile web access.

So you can try but probably not.

~~~
cmaggard
Couldn't you simply stipulate in your ToS that if you reside in that area that
you are not allowed to use said service?

~~~
TeMPOraL
Or something along the way that's already done? When I buy software I
sometimes see a message like this: "This software costs X (+Y of some tax if
you're from Texas).".

------
jokoon
How is that possible to have that important part of patent litigation happen
only in this part of the US?

------
whyIndeed
I don't understand why this is an EFF fight.

From what I gather the line of reasoning is something like:

    
    
      > eff cares about technology, in particular 
        electronics and communication.
    
        > sometimes electronic systems, and the software these 
          systems employ, may be patented.
    
          > patents in general may foster innovation, but
            when misused, they may also stifle innovation.
    
            > technological innovation, generally speaking, is
              something the EFF cares about.
    
              > in texas, there exists a group of political  
                activists colluding together to willfully 
                stifle technological innovation through 
                the careful misuse of U.S. patent law.
    
                > although the manner in which these political 
                  malefactors operate may be subtle and 
                  convoluted, there is an obvious sense of the 
                  goals behind their actions, and those goals 
                  threaten to harm, not just a select group of 
                  actors mired in interpersonal grudge matches,
                  but every participant in the American civil 
                  justice system, by establishing dangerous 
                  precedents with long reach and odd side 
                  effects that may be weaponized to create 
                  widespread strife and conflict amongst anyone 
                  coming up against an opponent with the time, 
                  money, and the awareness of said precedents.
    
                  > how the EFF is so certain of such intent 
                    among these political actors remains 
                    unclear, but because of this, the EFF is 
                    willing to invest not-insignificant 
                    resources in confronting and disrupting
                    their malignant behaviors.
    
                    > strategically speaking, should certain
                      specific legal decisions come to pass 
                      in an American jurisdiction, it could 
                      spell disaster for technological 
                      innovation as a whole (really?), based 
                      on the implicit logical corollaries 
                      established by carefully chosen
                      legal battles won by this group.
    
                      > for this reason the EFF seeks to 
                        challenge the validity of their 
                        actions and their authority to operate
                        in general.
    

Is that about right?

~~~
wtallis
It's simpler than that, and doesn't rely on any far-fetched conspiracy
theories.

Nobody's actually trying or colluding to stifle innovation, they're just
trying to abuse patent law to _make money_ , with gross disregard for the
purposes of patent law or the broader consequences of their actions. Perverse
incentives can produce much of the same harms as a broad conspiracy, without
the impracticality and implausibility of collusion.

The Eastern District of Texas and the Federal Circuit have both undergone
regulatory capture, which can be incredibly damaging to the public interest
even when the regulators' intentions are quite innocent.

~~~
whyIndeed
Okay, but I'm trying to figure out why the EFF is getting involved. It doesn't
sound like their usual sort of kerfuffle.

Sure, greed, corruption, and low-brow abuse of power is repugnant in and of
itself, but where does this start to become a _Electronic_ issue?

How do the shenanigans of court district in Texas endanger an entire frontier
of all things electronic?

~~~
danparsonson
Software patents.

See also
[https://en.wikipedia.org/wiki/Electronic_Frontier_Foundation](https://en.wikipedia.org/wiki/Electronic_Frontier_Foundation)
\- the introductory paragraph nicely sums up their remit.

