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EFF asks appeals court to “shut down the Eastern District of Texas” (arstechnica.com)
292 points by mmastrac on Oct 30, 2015 | hide | past | web | favorite | 51 comments

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.

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.

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.

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.)

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.

Six of one, half a dozen of the other is also widely used in the US, to mean it doesn't really matter which one you pick because they're pretty much the same.

Current juries aren't meeting the needs of society, either, so there's not much loss there. We also have the counterbalance of elected representatives, and in the US, sometimes judges are elected, too. Maybe it'd be enough for them to represent society, with juries in technical cases representing accurate justice for the case at hand.

How about having half of the jury be randomly chosen individuals (as in the current system), and the other half be randomly chosen experts?

What sort of rules can make it harder to abuse the system, if you insist that the people who enforce the rules must have no understanding of how the rules work?

This is the problem with juries in general. No one understands basic probability or how to treat evidence. It might be more apparent in technical cases, but it's just as much a miscarriage of justice in most other cases, too.

It should be a jury one's peers, but for some reason we've decided that the average uninformed person is a peer to everyone.

the folks that are participating are total block heads that don't understand even the most elementary explanations given.

You could expand that to describe the entirety of the modern electorate and you would have your answer for most of the ills of society.

>The lack of educated citizens with critical thinking skills is overwhelming.

Very true, and very much a bummer. I really like that part of the state otherwise. I've spent some time out in Quitman and have considered moving out that way working remotely. I don't think I could ever get over that hump though.

What is it that you like? The countryside? Other aspects of the local population (sincerity, faith &c)? Nice to hear something positive about East Texas over in the UK.

I grew in East Texas. I think it is the same as many areas; yes there are vocal groups that paint a picture for the entire region, but individually I think you'll find some of the nicest, most honest, sincere people around. Many of whom are educated and well-read. I'm sure just like in your hometown. It's unfortunate those are not the people you see on TV or quoted in the news. As a caveat, there was a four-year public university in my hometown.

Definitely a slower pace of life. I can't go out to eat or to the grocery store in my hometown without running into someone I know, went to school with, etc.

I just replied with basically the same answer. I am from MA but have spent time in ETX. It was nice to go into Brookshire's in Quitman and be approached by people who knew I wasn't from town, and be welcomed into their homes or just have a friendly conversation. Canoeing on lake Winnesboro and chatting with the regulars at the store on the water there, etc.

The countryside is a big part of it. Like a lot of Texas, large plots of land can be had for cheap. I had a friend I would spend time with who had 20 acres with farm animals and pets, and we'd ride around his property on ATVs traversing creeks and the like. I found it beautiful and calming.

There's also lots of big lakes for fishing and boating which is a pastime of mine. Folks in the grocery store would recognize that I was an outside and approach me, introduce themselves, welcome me to their homes. There may be many a technological rube out there, but a lot of nice people outside of that

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.)

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

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

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.

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.

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"?

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

The current doctrine of "minimal contacts" had already been around for 45 years in 1990.


Yes, I think Comgress should be presumed to have known about it.

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

You say that like it's improbable.

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.

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/

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.

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

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?

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.

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

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).".

I did exactly that in software (web site) that is nearing release- so no results yet.

Your app could require GPS permissions to start, and refuse to run if it's in Texas boundaries.

I don't think Google and Apple could oppose that, as you can argue you're attempting to operate within the bounds of (patent) law.

Hm, if many people do this, it seems like this could put some pressure on the population there?

How do judges get their positions again?

Aren't the judges in question by appointment?

Blocking out the largest territory in the continental United States seems like a ham-handed solution for any app.

Might be a good business decision. Any popular game with in app purchases tends to get a "welcome package" from a popular patent troll, for example. If you are an indie starting out you might as well avoid the legal costs by just cutting out a state that isn't going to net you much gain by itself anyway.

Can you please expand on "getting a welcome package from a patent troll?" What would such a troll have patented -- the concept of in-app purchases? Is the "package" a lawsuit over the use of something which they claim is patented?

There are dozens or hundreds of patents in force on in app purchases. [0] It's impossible to write any non-trivial software without infringing hundreds of US software patents. And as long as there are software patents, it will always be that way.

[0] warning: obnoxious autoplay video http://www.x-plane.com/x-world/lawsuit/

Square miles isn't relevant to an app anyway.

In the plan they were proposing, it would be.

You can creatively degrade the user experience based on geoIP. Probably would go undetected in Cupertino.

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

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?

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.

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?

Software patents.

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

Here you go, that's just one industry, and in general the problem hasn't gotten any better.


Because it effects the entire industry and has negative effects for everybody.

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