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Apple to Close Stores in Eastern District of Texas to Fight Patent Trolls (macrumors.com)
300 points by aquabeagle 31 days ago | hide | past | web | favorite | 187 comments

It seems quite reasonable for apple to avoid the renegade court. The court is known to intentionally violate the Federal Rules of Civil Procedure to the benefit of patent holders.[1] You must seek permission from the renegade judge in order to file Summary Judgement. "A party may move for summary judgment" They may not move for summary judgement, because the judge denies this in this court. "The court should state on the record the reasons for granting or denying the motion." The court does not, because the judge will deny permission to file the motion that would have them explain why they are denying a summary judgement motion. I consider their willful breaking of the civil rules "prejudicial to the effective and expeditious administration of the business of the courts". That is to say, I consider it judicial misconduct. The court is corrupt and broken by patent greed. Apple is right to avoid this den of misconduct.

http://www.txed.uscourts.gov/cgi-bin/view_document.cgi?docum... https://www.eff.org/deeplinks/2014/07/why-do-patent-trolls-g...

Agreed. My previous company has to deal with trolls like this. They somehow managed a patent on turning 2d pictures into 3d panoramas which Google and iPhone do in the phones. We used software from Germany but since it violated the patent and we were tiny, boom lawsuit. This supreme Court ruling saved the company because we got it transferred to our state and the judge laughed them away.

It would be like suing a grocery store because Microsoft word violated you're spell check patent.

They only go after like guys who can't fight back.

Is there any reason why those judges don't also laugh them away? What do those jurisdictions have to gain? You'd think that tech companies would have stronger lobbying than patent trolls. What incentives do courts have to side with patent trolls?

Juries favor trolls because patent trolls bribe Marshall, TX (East Texas district). Maybe judges are also swayed by the bribes.


It's a local industry. They have a whole foodchain based on this and everybody stands to profit. I think in an earlier HN thread somebody also mentioned that in the early 20th century there were also towns that simply rob and kill any passer-by that would lodge in a hotel, with the sheriff etc. all complicit. In a sense this is typically American isn't it. Similar is how some towns would issue tickets for infringements such as jaywalking all the time without any oversight whatsoever.

No, this is not typically American.

URL: https://m.youtube.com/watch?v=sG9UMMq2dz4 (Austin Myers)

URL: https://m.youtube.com/watch?v=3bxcc3SM_KA (John Olivier)

Above two YouTube videos I’ve been passing around in regard to sometimes peculiar nature of patents law in US and in particular that of eastern district of TX.

You might want to double check on "your" spell check patent :)

His spellcheck works fine, the grammar check is broken. :)

The English language is broken by design and historical practice with respect to spelling (borrowing when it needed to steal) and grammar; though it may possibly not be as broken as other historical languages.

Also, before you propose something like Esperanto; that language appears to be the antithesis of what I'd prefer as a replacement. The general design goals being more:

* a 'RISC' (rather than CISC) style use of verbal pallet (pick the most common international phonetics, not a regional 'good enough' set)

* purely phonetic spelling and pronunciation (one exact way to spell or say anything and vice versa)

* never mutate words for any reason (no tenses, conjugation, etc)

* no pronouns (only use proper nouns or descriptive selections)

* eliminate filler where possible (the, a, similar non-informational words); this would be more of an accepted grammar shift. If there is a reason for that use then more distinct and/or obvious reasons for using a replacement mechanism should be apparent and taught in standard education.

As a language, English is probably as good as you are going to get. I has been simplifying for hundreds (thousands?) of years, and is fairly closely related to the languages spoken by most of the developed world, which makes it easier to learn.

The spelling is pretty bad, though. I'm guessing that even if you managed to clean up the spelling, it would be a temporary fix. Pronunciations change over time, and vary between dialects.

That is just not how human languages work. To take one example,phonetic spelling was the only spelling in "Old English" ( roughly pre 1066 ). Naturally it was all over the place due to variations in pronounciation e.g "daughter" and "knight" are spelled the way they are exactly because of that.

Maybe something like Toki Pona? https://en.wikipedia.org/wiki/Toki_Pona

It seems close to my goals, but violates one of the main ones related to lowering the entry barrier.

All the letter (and sounds) used NEED to be pronounced, the same way, for native speakers of English, French, Russian, Spanish, and also various major (eastern) Asian languages. That means that when an otherwise uneducated (in languages/reading the squiggly version of words from a dictionary) user in one of those languages tries to read one of the words it should sound like only a slight accent, not a major flub.

J should never have been used.

"14 Latin letters, a e i j k l m n o p s t u w, are used to write the language. They have the same values as in the International Phonetic Alphabet:[38] j sounds like English y, and the vowels are like those of Spanish or Italian. Capital initials are used to mark proper adjectives, while Toki Pona roots are always written with lowercase letters, even when they start a sentence.[39]"


Edit about the difference in vowels/etc: If there isn't a common ground in notation for symbols, then the writing for the language CAN'T map back to any existing phonetic symbol system either. It MAY use existing non-phonetic symbols and assign new uses for them, but it MUST NOT reuse such symbols that have conflicted mappings in existing languages.

> All the letter (and sounds) used NEED to be pronounced, the same way, for native speakers of English, French, Russian, Spanish, and also various major (eastern) Asian languages.

Do you mean all the phonemes need to be present in all of the referenced languages, or that they need to be indicated by the same letter or letter combination in each language? Because, the former doesn't leave a lot, and the latter is even worse, even if you choose the most popular current transliteration for those languages for which the Latin alphabet isn't the usual one.

> All the letter (and sounds) used NEED to be pronounced, the same way, for native speakers of English, French, Russian, Spanish, and also various major (eastern) Asian languages. That means that when an otherwise uneducated (in languages/reading the squiggly version of words from a dictionary) user in one of those languages tries to read one of the words it should sound like only a slight accent, not a major flub.

This constraint effectively removes vowels from your phonetic inventory.

And it's going to be tough to find common ground with the Russians and East Asians, whose native writing systems don't even use the Latin alphabet.

Ever look at Esperanto? Every word is pronounced how it is spelled.

-the article the OP is referring to discusses an old letter briefing requirement in the Eastern District of Texas. That requirement has not existed in patent cases in EDTX since 2016 (https://mcsmith.blogs.com/eastern_district_of_texas/2016/07/...).

-As the "mcsmith.blogs" article mentions, the letter briefing process the EDTX had used was recommended by the Federal Judicial Center as a case management strategy in patent cases.

-The suggestion that EDTX does not grant summary judgment for patent challengers is incorrect. It granted between ~10-30% of such challenges each year between 2008-2017. (source DocketNavigator - a data aggregator on patent cases).

[as an aside, part of the legal standard for summary judgment is that there is "no genuine dispute as to any material fact." This can be difficult to meet in patent cases. For example, think of all the factual questions involved in determining whether a patent is invalid (e.g., has this specific thing ever existed before or is it obvious) or infringed (e.g., does this specific thing meet the limitations of this patent)].

It isn't that they didn't grant or deny, its that they had a 3rd category: FORBIDDEN from asking for summary judgement.

This makes the 10-30% number of little meaning, because there's a whole of of summary judgements that got a forbidden marker. They're not in the set of summary judgements granted, because there was no motion. The motion never happened because they were forbidden from being filed. So what's the real percentage? Do we know how many summary judgements never got filed because the judges never let them get filed?

Maybe I'm just really dumb, but can't anyone sued in this court just appeal to a higher court that isn't run by renegade turds?

If you do not make an argument at first instance, you cannot appeal a judgement on the ground that it was not considered.

So you're fighting in the lower court because you need to fight there. Remember, it's the fight that costs money, so no matter what you're always on the hook for something.

The question ends up being are you on the hook for the cost of the fight or the cost of paying them off.

> Maybe I'm just really dumb, but can't anyone sued in this court just appeal to a higher court that isn't run by renegade turds?

Only after the expense of trial (and some people see the Federal Circuit, which hears all patent appeals, as being run by renegades, too), and the appeals process is deferential to the trial court in a number of ways, so this is time consuming, expensive, and still doesn't undo completely any tilt from the trial court.

Not a lawyer, but I'd presume the reason a defendant would file for summary judgment would be to avoid the financial burden associated with a meritless case. If summary judgment is rejected, then making an appeal would likely be more expensive than just settling with the plaintiff.

They violate the FRCP? Please explain. (Your link is broken.)

The EFF explains it well in the other link. It is the Federal Rules of Civil Procedure 56. I quoted it twice. The Eastern District of Texas requires you to ask permission to file summary judgement, which the judge then can deny without explanation or reasoning. As such, while the rule says you "may move for summary judgement", this is not permitted in this court. It also says you get to hear the reason when the judge denies it. This you also do not get, as the judge will deny your ability to ask for it and the reason out of hand, and without explanation.

So we can understand that the first line of rule 56 is a lie in the eastern district of texas.

This is a very good explanation, but it might be missing one note for lay persons.

Summary judgement is cheap (well, relative to litigation, that is), fast and occurs early in the development of the lawsuit before the most expensive steps take place.

It is a direct competitor to just paying the trolls their settlement amount to stop bothering you.

Here's something I don't quite understand, and where some of this feels a little hypocritical: Apple, the most valuable company in the world, could be working to reform patent law in order to make this a non-issue. Everyone talks about US politics as pay-to-play, it should be possible for Apple, Google, MS, Amazon, etc., to lobby for Software Patents, for example, to be reclassified as "math" and therefor not patentable. If they're actively doing that, then I'm not aware of it. If US policy can be bought and sold as we are led to believe (maybe this is actually a false premise) then you'd think the most valuable companies in the world would be able to change it.

What this implies to me, is that they want the existing patent system to work in their favor, i.e. to protect their monopolies against new competitors, but they don't want to deal with the downside of the patent troll abuse.

Don't get me wrong, I'm aware of the documented corruption of the court in Texas, and I think it's abhorrent, along with all the trolls, but this feels like a situation where Apple wants it's cake and to eat it too. Shouldn't we just do away with software patents all together and instead rely on copyright law?

1. I think your assumption of pay-to-play is too strong. It's true to some degree but it's not as simple as having the right budget. For one, there are always factions working against you. There are always multiple jurisdictions and branches to consider, with different incentives. Add currents of public opinion and how they impact electoral and business interests on top of it all... it's a complex puzzle. So even the biggest budget is no guarantee.

2. Your broader point about Apple and patents presumes that all software patents are always bad. That may be popular on HN, but I sincerely doubt it's that black and white. Yes, patent trolling trivial components or processes feels and probably is overtly 'wrong'. But there's a more nuanced debate about creating the right incentives to do difficult intellectual work that benefits everyone. There's probably a 'correct' granularity of patentable idea even in software.

1) agreed, though I would think that the combined companies could have larger sway than others.

2) I mostly disagree. Where software is so specialized and valuable, I anticipate that it would be held privately and not necessarily made public. This seems to me to be better protected by copyright and not patent law. IANAL, but copyright feels more appropriate, and while you might be right that there is some majestic software that is so unique, but yet so easily duplicated (without the source) that it deserves monopoly protection, I don't believe that exists, but if there are some pure examples that can be held up, I'd be happy to change my opinion.

A less aggressive option than getting rid of software patents entirely, might be changing the way that we apply for them. What if the source code itself was required to be submitted with the patent application, and not just the design. Part of the reason patents exist is to encourage the disclosure of the design, so that when the monopoly ends, society benefits from the advancement.

What if the patented software was always required to be open-sourced? Would this be a means for easily fending off trolls? They'd have to show a working program, for one thing (it's not clear to me that they do now), and failure to do that could be an easy way to get a summary judgement against them.

Fair points and I like your suggestions. Definitely no lawyer, but I see the theoretical value in IP broadly. Whether patents and software are the right configuration.. I hold very loose opinions there.

To bring it back to Apple, I have a hard time casting strong moral judgment on their stance when they're not patent trolling others, even if they're not leading the righteous revolution. Their Samsung lawsuit feels more along the lines of what you describe in the copyright realm -- it's a defense of their design / expression of the ideas.

For point two, I disagree, but I also suspect that this is the real reason that many of these companies aren't actively fighting for patent reform. Their definition of "right" patenting is the one that benefits them the most, and their definition of "wrong" is the one that hurts them the most (even if it would help small inventors).

See also many of Apple's patent lawsuits over the past 10 years.

They don't want to re-define how patent law works because they sometimes use it to their advantage.

I think it's more that their legal department is busy with enabling their business. Which is doing well. Typically industry lobbying is performed through industry associations, not by companies themselves.

Why would Apple shoulder the burden of the lobbying effort when all of the other tech companies would be happy to ride their coat-tails?

Additionally, the political climate re IP lobbying in the past 5 years has been non-optimal to push for changes. Apple has been involved in several very large IP disputes, which makes their involvement look self serving, the AIA was relatively new and some people wanted to wait to see if it would be effective, a new USPTO director came in only a year ago* (prior to which the previous director was very unlikely to make large changes at the end of their mandate), and the current administration is very hostile towards coastal IP-centric business.

*Oh, and he's fucking horrible: https://www.ipwatchdog.com/2018/10/19/iancu-risk-takers-pate...

all oil companies and wall street lobby for their interests. don’t think it would just be apple shouldering it

re: "What this implies to me, is that they want the existing patent system to work in their favor, i.e. to protect their monopolies against new competitors, but they don't want to deal with the downside of the patent troll abuse."

Mind if I rephrase a slight bit (for clarity)?

The existing system works in their favor. Having stores in that geographic area exposes them to unnecessary risk.

They'll keep the upside (as it stands), and mitigate the risk. That's what every biz does. While I'm not one to defend Big Inc, that hardly sounds like having their cake and eating it as well.

The challenge is that the issue is created in the courts, and direct lobbying of judges is a lot less acceptable than lobbying politicians. And even if you solved that, tech would find itself lobbying against big pharma, and they are a lot better at lobbying the government than tech has historically been.

US rules on patents are created by a combination of laws and precedents. Of the two, precedent is in practice more important because courts are bound to interpret new cases in accord with how higher courts have interpreted old ones, no matter what they think of the interpretation.

And now consider the structure of US courts. An insane fraction of patent lawsuits start in Texas. Thanks to a special legal arrangement, all patent cases from anywhere next go to a special court known as the Federal Circuit. And only after that to the Supreme Court.

It is a general rule of bureaucracy that people will consistently interpret their jobs in a way that makes their role more important. All patent cases go to the Federal Circuit. The more powerful patents are, the more important that court is. Would you guess that their precedents are generally going to increase or decrease the importance of patents?

Now the Supreme Court does overturn them occasionally. But the Supreme Court is busy and only does this so often. And when the Supreme Court overturns them, the next case relying on Supreme Court precedent inevitably goes to the Federal Circuit, which has proven very willing to engage in sophistry to issue a new binding precedent that clearly is the opposite of what the Supreme Court meant. And since there is no easy way to remove those judges, there is no consequence for them in doing so. Around the country lawyers who specialize in patents, whose livelihood also depends on patents being important, cynically applaud. And the escalator continues.

Now here is the truth. US law already says that abstract ideas (like math) are not patentable. The decision that software is more like machines than math doesn't come from Congress, it comes from the courts. Congress could pass more laws. But they would get interpreted by the same court. Would you care to wager on how that will work out?

The real solution is to recognize that creating the Federal Circuit in 1980 was a bad idea and reverse it. However remember what I said at the beginning about big pharma liking patents? Exactly...

> And when the Supreme Court overturns them, the next case relying on Supreme Court precedent inevitably goes to the Federal Circuit, which has proven very willing to engage in sophistry to issue a new binding precedent that clearly is the opposite of what the Supreme Court meant.

I get what you're trying to say, but I think your point at the end regarding the Federal Court trying to go behind the Supreme Court's back is false.

The Federal Court's decisions often propose a framework for patentability, then the Supreme Court rejects the framework without then building one of their own. When the next big patentability case comes up, the Federal Court tries again with something new, then the Supreme Court says "No, try again".

The Federal Court frameworks are often pretty mediocre, but if the Supreme Court had an actual policy direction in mind, it is fully competent to just develop and state the test and put this area to rest. They haven't because they can't. Every framework sucks, because the patentability concept is way too broad to be addressed in a single test. So then the USPTO puts out their internal instruction, and after we've had a 4 link chain of broken telephone, we hit the point where 'stupid patent x got in under the new "Case X" framework and the Supreme Court feels the need to tell everyone they're stupid, without proposing a solution.

Functionally, all this game of framework tennis does is make the field absurdly complicated, but lets not blame that on the Federal Court alone. There's plenty of other things we can blame them for.

Like how the fuck did the former chemist judges on the court not know what covalent bonds were? !@#$!#%$@#$%

Well obviously I don't agree.

First of all from https://www.americanbar.org/content/dam/aba/migrated/intelpr... you can see that a higher portion of cases escalated from the Federal Circuit get reversed than any other federal circuit.

Secondly from https://www.scotusblog.com/2018/12/empirical-scotus-the-heig... we see that over time the Supreme Court has been devoting more and more of its limited energy to overseeing the Federal Circuit.

Now my statement was the reverse, not about the Supreme Court's reaction to the Federal Court, but about the Federal Court's treatment of Supreme Court decisions. Searching for a reference on that one way or the other, the first that I found was https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?art... which includes this passage:

There have been no quantitative empirical studies comparing Federal Circuit disobedience of Supreme Court decisions to disobedience by other circuits,(177) or assessing whether the Federal Circuit is more likely to defy the Supreme Court in its attributed area of expertise (patent law) than in any of the other cases that make up its docket—both of which are predicted by this model. Nevertheless, qualitative evidence suggests that this is the case. Indeed, Chief Justice Roberts has remarked on the Federal Circuit’s unusual behavior, noting that it seemed an exception to the rule that lower courts generally follow Supreme Court precedent. (178) An analysis of Federal Circuit case law reveals a pattern of resistance to implementing Supreme Court decisions overruling Federal Circuit precedent—a pattern consistent with the model’s prediction of defiance to decisions by generalist superiors. (179)

You'll have to believe that if I had first come up with something saying that they are properly deferential, I would have been honest. But as it is I'm going to conclude that the Chief Justice of the Supreme Court knows what he is talking about, and with the analysis of decisions that that article cites was based on something real - the Federal Circuit is in fact undermining Supreme Court decisions. And the Supreme Court's reaction has been to take on an ever increasing share of cases from that court, and to overturn over 80% of them - many in unanimous decisions.

Incidentally your user name makes me curious. Would you happen to have a professional interest in the law? My status is firmly "curious geek".

Re: Last line. Yep. I do. In fact, the some of the cases your articles refer to directly refer to my amicus curiae contributions.

The Federal Circuit was created, in part, to create certainty in patents. They keep trying to make frameworks, but they've all got issues. The Supreme Court doesn't like that they have issues, and blows up their rulings, but does not put anything affirmative back in place.

So, functionally, what we get is a cycle of the Federal Court building their little sand castle on the beach, and the Supreme Court coming over to stomp on the sand castle because it has flaws.

The fact that the Supreme Court stomps more frequently, or the fact that almost all of the sand castles are destroyed has no bearing on whether or not the entire cycle of destruction is warranted.

If the Supreme Court had a better set of rules, they have plenty of judicial tools to make those rules known to the USPTO and lower courts.

But they don't.

Or perhaps to admit that the concept is trying to build a skyscraper out of raw sand and that the very concept needs to be revisited.

My own /personal/ views on the IP related matters can be summarized:

Trade Mark(s): Good, keep forever as long as the presence in commercial offerings is refreshed on an ongoing basis; limit to /commercial/ for profit enforcement.

Copyright: Public domain needs to happen, a LOT faster. Renewal should need to be active and exponentially more expensive. Automatic copyright probably needs to expire after around 10 to 20 years. (I favor rounding down to the year and using 11 years for first registration, and a multiple of 5 years for rounds there after.)

Patents: Please prove me wrong that they aren't effective and are a myth. Processes of how to do things often come down to engineering and math; if given the same goal a solution is likely to be similar at it's core as for any given problem there is probably an ideal bound and variations of effort will produce similar results or results optimized slightly to different circumstances.

> The Federal Circuit was created, in part, to create certainty in patents.

It's probably time to admit that was a bad idea and that the way every other federal legal issue gets to the certainty provided by maturity (by being handled in the various geographical circuits which either evolve a consensus view or force the Supreme Court to settle a divergence with the benefit of competing frameworks from below, is, if not ideal, at least a better thing for patents than only having one appellate circuit.

So you're an intellectual property lawyer? In this debate that gives you a fairly obvious bias. Admittedly it also makes you better informed than me on this topic. But I still feel comfortable disagreeing when my position both makes sense to me, and is supported by other people who I know to be knowledgeable.

You and the Federal Court both seem to believe that trying to make a framework should be the goal. Not everyone agrees. I already brought up https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?art... which is a peer reviewed article, written by a law professor. Her opening paragraph criticizes the Federal Court on the fact that, "It surprisingly resorts to formalistic rules in an area of the law that requires flexibility to adapt to changing technological landscapes." Not long after she notes that they, "...prefer inflexible rules of decision over flexible standards."

My understanding of both quotes is that they are about the framework making that you say the Federal Court is engaged in, and that you criticize the Supreme Court for not doing. But to the extent that the Supreme Court agrees with her opinion, they honestly should be "coming over to stomp on the sand castle" that the Federal Court is erecting, and really should not be erecting their own sand castles in turn.

Now as an external observer, I have a question. More than any other court, the Federal Court is having trouble coming up with opinions that the Supreme Court wishes to affirm. Where does blame belong? With the Federal Court? With the Supreme Court? Or with the challenges of patent law?

I find it unlikely that patent law is uniquely impossible to get right. Other courts get along with the Supreme Court without so much trouble. And therefore I am inclined to place the blame on the Federal Court.

As another data point, consider that the goal of patent law should be, To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. But practitioners widely agree that software patents do not noticeably promote the progress of science and useful arts. Agreement is even more widespread that the current legal regime has encouraged patent trolls in a way that actively hinders the progress of science and useful arts.

I am not simply talking about extreme activists like Richard Stallman. Those are my views, and I have 3 patents to my name with a 4th applied for and a 5th applied for by Amazon that I think should have had my name on it. You'll find a fairly balanced version of this view laid out by Paul Graham in http://www.paulgraham.com/softwarepatents.html where he says, among other things, "Patent trolls, it seems safe to say, are evil. I feel a bit stupid saying that, because when you're saying something that Richard Stallman and Bill Gates would both agree with, you must be perilously close to tautologies."

Back to the Federal Court. There is no real question that their pro-patent decisions and precedents have helped create the patent trolling problem. I am not surprised that a former chief justice (Randall Rader) had to step down due to his over-promotion of a pro-patent litigator. If I had to bet money, I would bet that there are still judges on that court who should step down for similar reasons, but haven't.

Which means that I think that the progress of science and the useful arts would be promoted if most software patents were invalidated. Including all that have my name on them. Admittedly it is likely to be hard to convince you and your professional colleagues of that. Because, as Upton Sinclair said, "It is difficult to get a man to understand something, when his salary depends on his not understanding it."

>So you're an intellectual property lawyer?

I think the implication you're trying to make is that I make my bread and butter litigating patents or something, so I've got the incentive to defend the system. I don't. I make my money elsewhere but I spent my entire legal academic career as an IP policy guy. Or maybe IP critic is more accurate. Anyways, let's just say WIPO staff REALLY don't like my questions after their talks.

The rant was entertaining to read, but it's a 101-level critique of the system that betrays some big gaps in knowledge. To be successful (and we're on the same side here) you need to be better than this. I won't exhaustively deal with your piece but I'll point out a few easy weaknesses.

Your first quote isn't criticizing the existence or attempt to create a consistent legal framework. It is criticizing the strategy used in creating them.

Let's say we're trying to create an anti-violence framework. "Don't punch people" and "Don't punch nice people" are two frameworks, but the second framework has a flexible element that lets you read-in self defense under the guise that aggressors are not 'nice people'. However, it also lets you justify wars of aggression as long as the targets of your violence are not 'nice people'. Oops. Flexibility isn't a uniform good - it lets laws be twisted by judges in both good and bad ways and allows courts more discretion in their application of fact to law. If we trust the courts to exercise good judgement in a specific area, then we'd be happier with giving them more opportunity to inject humanity and good sense into the law. In other areas, where we view the institution of courts as disconnected and anti-social, we'd want the opposite.

Is flexibility really what you want when your argument is that a key level of courts is faulty?

This 'certainty vs. flexibility' balance is one of the core tensions in rule-making, and is commonly discussed in rulings, academic work, etc. You actually advocate against flexibility. "No software patents" is about as inflexible as it gets, even if it's the best policy choice.

So, in the context of rule making strategies, let's turn to the Federal Circuit.

Alice exists. It is the leading case regarding patentability of software related patents, and has significantly lowered the survival of bullshit software patents (e.g. Claim 1. lets do something mundane ... but on a COMPUTER) on review. The test in Alice as espoused by the Supreme Court was largely lifted from the Federal Circuit court. This is an example of the Federal Circuit court getting it right - the framework they put together is a home run. It cuts software patent trolling down significantly, is intellectually consistent within IP, provides helpful instruction to the USPTO regarding examination of software patents, etc.

The issue at the Federal Circuit level isn't that the Federal Circuit is serially stupid, or that the Supreme Court is a bully. It's that they're trying to deal with a hard problem and the Circuit's goal is to try, while the Supreme Court's goal is to get it right. So both Courts are doing their job (trying and rejecting failures, respectively), but the problem is that the Federal Court's success rate is low.

Is it low because they're assholes? Is it low because the problem of sorting out patentability is just plain HARD? Is it because the courts are addressing a policy issue with a panoply of stakeholders, primarily through the lens of the litigants (with some token consideration of amicus submissions)? Is it because fact-based policy development is hampered by obstructions in the legislative level, which has resulted in the offloading of legislative treatment to the courts and USPTO in respect of patents? Is it because patent policy is now constrained by international-level consensus (and all of the problems attached thereto)?

I think the anger you feel in respect of the problem existing for so long leads you to want to believe the first explanation is accurate, but my argument in this thread is that it's not a rogue level of judicial review that's ruining things. The problem is more complicated, more difficult, and ultimately harder to tackle with intellectual honesty than just pointing a finger at a few judges.

I would actually be interested in taking this exchange to email. You clearly are informed on a topic that I don't understand as well as I'd like. I may not wind up agreeing with you, but I would like to challenge what I think.

First between specific decisions handed down, the fact that a chief justice had to step down due to ethics complaints, and the complaints of Supreme Court justices, I am still strongly inclined to the belief that there is something wrong with that court. There are real challenges in addition, but they are "in addition".

Second I completely agree that there are problems with international-level consensus. The biggest of which is that lobbying organizations have proven adept at using international negotiations as a ratchet to get everyone to agree to stronger rules, that then everyone is bound to because it is an international agreement. The classic example of which is the way that Disney and others have used international treaties to repeatedly increase the length and strength of copyright rules. But that said, my impression is that the US is pushing strong patent regimes on other countries, and not vice versa.

Next, you're putting words into my mouth that I didn't say. I didn't say that there should be no software patents. I said that most software patents should be considered invalid, including all that have my name on them. Those are very different statements, and there is no direct path from what I actually said to what you concluded about me. Also note that my statement is consistent with Paul Graham's essay that I linked to which said, among other things, that if you're against software patents, you should be against all patents.

Now let's move to what I actually think.

The core of my frustration is a combination of the following things. The first is that the non-obvious bar to patents is set way too low. The second is that our legal regime makes patent trolling far too easy and profitable, to the detriment of those producing real innovations. The third is that our system does not create incentives that promote the progress we are aiming for.

We can debate in an ideal world what combination of things would be used to solve this problem. However in our world they are being solved - badly - in the courts.

Still in an ideal world, how would I want my concerns addressed?

First, whether an improvement is obvious. Today we frequently get into dueling opinions of experts. Which one do we trust? Formulaic rules cannot truly grasp what is or is not obvious. And who it should be obvious to.

I would like to see non-obviousness become more of an affirmative defense. If I thought of X and never heard of you, never saw your product, and you never publicized your invention, that is direct evidence that your invention was, in fact, obvious to me. Which means that your patent should be invalid. Whether or not there was prior art. Your counter to this argument should be evidence that you publicized widely, your invention was widely distributed, or I did, in fact, have personal reason to know of your discovery.

Related, I would love it if the patent holder had to demonstrate non obviousness by demonstrating the existence of multiple people and organizations with the knowledge and incentives to have thought of it who failed to do so over a period of several years. It is frequently the case that a new technology creates a rush of patents on everything to do with that technology. Everything becomes "non obvious because nobody did it yet". I think it should be the opposite. Rather than a patent land grab, raise the barrier to patentability until the passage of time demonstrates that remaining ideas are actually not obvious.

That alone should eliminate many of the most problematic software patents. And it is particularly a problem in software because software constantly has of new technologies coming out that nobody has thought about, and therefore it is hard to tell what is or is not obvious. (Leading to dueling experts debating obviousness.)

Second, patent trolling. Alice improves things by getting rid of one class of bad patents. But there are a lot of classes of bad patents. That decision is chipping around the edges without trying to solve the problem. Instead I would like to see decisions that allow evidence of patent trolling behavior to be used as a reason to raise the bar against the would be patent enforcer. I don't so much have a concrete solution as the hope that enabling some sort of "unclean hands" argument against patent trolls would represent a significant improvement.

And third, about the incentives. The legislation said nothing about it, but the Constitution is clear. The purpose of patent law is to encourage progress. If the patent holder cannot demonstrate that they are engaged in activities that encourage progress, activities such as commercializing their invention or publicizing their discovery, then the patent should be invalidated. Congress should have no right to grant a temporary monopoly if you are not progressing science or the useful arts.

I realize that this may seem like an extreme position. But I also truly believe that it would be a significant improvement.

>I would actually be interested in taking this exchange to email.

Sure. I would like to, but only if you treat my points charitably (you haven't :(.) - the objective is to learn. If that's not an issue, though, would the btilly email address in your profile work? I can send a full reply there.

Some brief notes to think about in the meantime:

Patents have multiple social functions. Encouraging progress can be performed by achieving other related, intermediary, policy steps. For instance, if we weaken industry-peripheral patents, do we just cause firms to resort to secrecy (and is that better for society over the long run)? Are there other solutions other than 'yes patent'/'no patent' depending on the patent type? Do patent licenses required for industry-participation have better solutions than just 'no patents'? See: Standards collectives/FRAND licensing terms/etc?

Obviousness is VERY difficult to judge years later after having read a patent. Much like seeing the answer to a puzzle or math problem, it's hard to go back and feign ignorance in your analysis, and once you read a lot of patents, suddenly you see the sweep of technological development very differently.

Obviousness pt 2: What if patents are needed to secure the benefit from an R&D effort. Is it worthwhile to say 'we shouldn't research this [New Medicine] because it seems obvious'? How else could we reasonably finance that R&D work? Obviousness analysis is done in reference to a 'person having ordinary skill in the art', which is an incredibly flexible legal fiction. Again, do you have issues with flexibility being used to achieve policy goals you don't agree with? Note that the artificiality of this test is amplified because we analyze this person at the time the patent was filed. Next, since 2016, KSR is the leading case in the states regarding obviousness. The KSR test performs a series of comparisons between what the field knew and what typical improvements or techniques the field uses to determine if the improvement was obvious or not. This test is heavily criticized for making innovations in slow but consistently developed fields far harder to patent, despite the fact that patents in those fields are less controversial than those in rapidly iterating fields.

What specific elements of our legal regime make patent trolling too easy and profitable? Is it the cost of litigation? Is it how IP rights can be assigned at all (and what are the ramifications if we prevent assignment)? Is this a quantitative problem that we can fix by tweaking the numbers a bit or a categorical one which requires fundamental changes in the system? Btw, how large do you think the patent trolling problem is, dollar wise? Is it a priority as far as reforms go? What else do you think are competing legislative/regulatory priorities?

Prior art is already a bar to patentability.

Re: Unclean hands. Vexatious litigant protections exist in the court system independently of patent litigation. They aren't used much. Why do you think that is the case?

Software is not the only industry that interacts with the patent system, and other industries have different needs and are influenced by patents differently (which, btw, is a core flaw with PG's note). If you want to change core elements of the patent system, how do those modifications affect other industries?

Yes, that email address will work.

I'm sorry that you do not believe that I have treated your points charitably.

First on encouraging progress, it is a complex set of issues.

For basic research I'm in agreement with https://issues.org/perspective-is-the-bayh-dole-act-stifling... and the successful approach outlined at https://www.chronicle.com/article/Michael-Milkens-Attack-on/... that progress is maximized when we fund lots of ideas, make them share information quickly, and let them build on each other. The incentives of patents run exactly opposite from that. If we're paying for basic research, I do not want it locked away in patents. (Obviously private research is a different story, companies need an incentive to engage in that.)

Next there is the problem of pharma. The challenge here is that proving effectiveness and safety to the FDA's satisfaction is extremely expensive. Patents are their route to recouping that. The fix that I would like requires legislation, but it is to give a patent monopoly to the company that began the FDA certification process first. That would both meet the needs of medicine, and also remove the current broken incentives that make it impossible to get anyone to pay for testing of treatments that are not covered by patents. (As an example, helminthic therapy for a variety of autoimmune disorders is extremely unlikely to go anywhere because there is no patent protection under which the costs of FDA trials could be recouped.)

Now on obviousness, I agree that it is hard to judge after the fact, once you have seen the idea. Secondly what is obvious very much depends on who it is who it is obvious to. With my math background, things are often obvious to me that aren't to other programmers. But which are obvious to anyone else with a similar background. Of which many exist. What is the appropriate peer group to judge, say, a contribution that I made to an advertising system?

This is why I would prefer a system where the patenter has to supply evidence that it could have been discovered, but wasn't. Contrary to the KSR test, this should make it easier to get a patent in a field that is slow moving rather than fast moving. Which I think is appropriate. A field that is already seeing innovation doesn't need patents to encourage more, and will be hurt more by typical patent periods. This is reversed in slow moving fields, where long patent terms are not such a problem and which could probably use the incentive more.

On patent trolling, I've seen estimates of the cost of patent trolling to the tune of around $30 billion a year (see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2091210 for a citation). If you assume that there are 4 million software developers in the US with an average salary of $90k/year, that's 1/12 of the total salaries of all software developers. This is a pretty big priority. Now not all of that money would have been spent on research, but it is a pretty safe guess that patent trolling does reduce month available for research by several billion dollars a year.

Why is patent trolling too easy and profitable? Well because the bar to getting bad patents is too low, it is too easy to threaten people, and even if you think the patent has no merit, the risk of it being ruled valid after all are high enough that most companies roll over, and then there is the fact that you know you'll likely face the troll in courts that have historically been extremely friendly to patent trolls. East Texas and then the Federal Court. Though, luckily, the first court is unlikely to have the same clout going forward that it has historically.

On unclean hands, because patent trolls register a company per patent. So odds are that the company going after you has never actually has a lawsuit go through trial. And even if you go through the effort of getting them declared a vexatious litigant, the next patent troll owned by the same umbrella company and represented by the same lawyer is unimpeded. It is theoretically possible to go after the lawyers involved for barratry, but I do not know of anyone who has done so.

And as for changing core elements of the patent system and affecting other industries, I believe that the changes that I suggest would actually work out well for multiple industries. Though admittedly one of my suggestions is an entirely new type of protection to cover the needs of medical research.

>I'm sorry that you do not believe

I stopped there. Re-read your posts. An insincere half apology isn't good soil to grow a strong conversation from. Good luck in the future and thank you for your interest in the field.

> Everyone talks about US politics as pay-to-play, it should be possible

You are assuming that if "everybody talks" about something, it must be true. Unfortunately, it is not often the case.

Nobody gets to just "do away with software patents," because that'd be a legislative procedure, and an uphill battle in a snowstorm even understand the best of circumstances.

Take a quick glance at what the US legislative process is up to at the moment, and will be up to at least through 2020. There will be no progress. On anything.

Everyone talks about US politics as pay-to-play

Only people who don't know what that are talking about talk this way.

Or also, I suppose, people who are lying to you in order to sell you something.

Honestly, historically tech companies have had a very hard time lobbying in my experience, both in the US and in EU. See FOSTA-SESTA, net neutrality, rule 11 and 13 in EU, GDPR, etc.

Maybe they just don't want to stoop as low as other lobbying groups, or maybe lobbying isn't as powerful as people make it.

I grew up in Plano; the Willow Bend location was the "main" one for my area.

I think this will sting. On a map it looks like the new location is trivially close-by, but the Galleria is in "Dallas proper", as opposed to the other locations which were deep in suburbia. In other words you have to brave Dallas traffic across the urban sprawl to get to it. It's not a mall people in the suburbs go to to just hang out; it's an outing. On top of that, Plano and Frisco are both relatively wealthy areas with lots of people who really really like their Apple devices.

Hopefully this is a wake-up call.

True, the Galleria parking and 635 area are usually what turn people off (not that Stonebriar and Willow Bend don't have their own problems these days). There are no other upscale malls in the north Dallas region beyond those three, I don't see Apple ending up in the lesser Grapevine Mills or Music City (nee Vista Ridge) malls to serve the area assuming they are within the boundary.

But in general, people in the metroplex don't rock the boat and aren't very squeaky wheels. It may hurt a bit, but it won't change anything.

> I don't see Apple ending up in the lesser Grapevine Mills or Music City (nee Vista Ridge) malls to serve the area assuming they are within the boundary.

FWIW, Vista Ridge would be out because Lewisville (well, Denton County) is in the Eastern District of Texas.

Grapevine Mills is outside of the district but, upscale or not, Apple won't open a store there because it already has a store at Southlake Town Square, very nearby down highway 114.

> There are no other upscale malls in the north Dallas region beyond those three

Well, there's also NorthPark, but I believe that already has an Apple Store.

And I wouldn't really call Stonebriar "upscale". It's basically the only non-upscale mall here that isn't dead or dying.

> Well, there's also NorthPark

Not what I'd consider the north Dallas region. I mean "upscale" in mall-relative terms which is basically just not dead or dying.

Eh, anything that's north of Loop 12 and west of 75 (and east of some nebulous line west of Inwood) is "North Dallas". NorthPark barely qualifies, since it's on the northwest corner of Loop 12 and 75.

But it's all moot because I checked, and Apple already has a store at NorthPark.

I work right across the Tollway from Willow Bend, and I regularly walk to that mall for lunch. There was one time that was really convenient: sick and tired of Lyft drivers using Apple Maps consistently going to the wrong location when attempting to pick me up at home, I went into the Apple Store at lunch, hopped on an iPad, and looked up my address. Sure, enough. It was in the right place. So I submitted a change request to put it where it's supposed to be. They eventually fixed it, but it took months, and by the time they did fix it, Lyft had already banned their drivers from using Apple Maps.

Also, Willow Bend had the first Apple Store in Dallas, and for a few years, it was the only thing that mall had going for it as the original "upscale" concept of the mall flopped.

What's really going to sting, though, is losing Stonebriar. Stonebriar is really far away from Dallas... I grew up a little bit north of where the Galleria is (closer, actually, to what used to be Prestonwood), and when Stonebriar first opened, going all the way up to Frisco of all places felt like a massive journey. I've been desensitized to it since, but that's still a pretty long trek. Of course, when I was a kid, development completely ended just north of Legacy (and in parts of Plano, just north of Parker), and everything in sight of 121 was farmland, so every time I go to Stonebriar I'm going someplace that used to be a no man's land when I was little. How things have changed...

And from my personal experience going to the Galleria after work, the traffic turns into a nightmare at the drop of a hat. During rush hour, the southbound Tollway is completely clear until just before Keller Springs, and then the traffic becomes bumper-to-bumper until way past 635.

Yeah; but Frisco is really the new Plano, and Plano is becoming the new Richardson. Frisco is where all the young executives with families are moving. Stonebriar isn't out-of-the-way anymore for lots of potential Apple customers.

Well, what I meant was that if Stonebriar was out of the way for someone like me who grew up north of the Galleria, then the Galleria must be really out of the way for people in Frisco.

I grew up in Plano too! Closing the Willow Bend location could be a death knell for the mall - it brings substantial traffic to the property.

I think this will sting.

Won't that create an opportunity for an independent local business? It won't be as convenient and nice as an Apple store. However, it will reduce the sting in exchange for some profit.

Speaking as someone that's a fan of independent, local businesses and struggled with running one for 10 years: no business best described by the words "independent" and "local" can compete on all aspects of customer service with a megacorp. The resources just ain't there for it.

It will have higher prices or poorer service, if one is opened at all.

What do you mean by "all aspects"?

An mom and pop shop in a small town can have better service than a megacorp by personally knowing its customer base and adapting its policies to individuals. Megacorp customer service, by comparison, always involves some level of bureaucracy.

Since we’re talking about Apple stores, here’s an anecdote about competing on service: My iPhone was rebooting at random, in the middle of use, with some regularity. I was in an area with no Apple store, so I swung by an authorised Apple repairer/reseller. I explained my problem, and the guy around the counter, while very apologetic, explained there was no way I was having my phone swapped out. He didn’t have stock of my particular model, but even if he did, he said, if he swapped it out and Apple determined it to be non-defective, they’d make him eat the cost of the device, which he couldn’t afford.

A week later when I was back home I took it to the nearby Apple store. The lady there looked at it, shrugged, walked out back and came out with a new phone. This isn’t because she cared more, it’s because she cared less.

Apple authorized repair shops are the worst. They have so many rules imposed by Apple that they can't provide good service.

An iPhone battery swap at an authorised reseller can take a week (!).

Non-authorised repair shops can often offer better service -- often they can replace a battery in 20 minutes. That's faster than at the Apple store. (but of course, if something goes wrong, there's probably no warranty)

It will have higher prices or poorer service, if one is opened at all.

Of course. (I know someone with such a business.) However, if your only competition is no-one, it might be enough.

Doesn't Apple maintain control over what stores can sell their devices? I guess people can still go to cell-provider stores and Best Buy, but.

Good, I hope this draws the attention of voters in the district.

My employer (very large) was sued twice in this court. Both times by trolls. The lawyers basically described this judge as running a ‘cottage industry’ and were unwilling to even set foot in that courtroom.

The patents the lawsuits were based on were insane. One of them was on any image compression for medical images which was somehow granted in 2005 (that’s another problem). There was reams of prior art but of course we settled. I was very low on the totem pole of the company but it still pissed me off to no end.

> Good, I hope this draws the attention of voters in the district.

It's not an electoral district, but a judicial one, all of whose officials are Presidential appointees, not locally elected. There's a tradition (weaker in the last few decades, especially when the White House is in opposite hands from the Senate seats in the state) of consultation with the Senators of the state containing the district when appointing judges, but in large states (where judicial districts aren't the whole state, as is the case here since it's the Eastern District of Texas and not the [non-existent] plain unmodified District of Texas) that still doesn't provide a special role for “voters of the district” distinct from those of the whole containing state.

Having recently watched The Patent Scam, I wish more companies would follow suit here and exit EDOT, maybe then people would wake up and demand that these corrupt judges are removed from the bench!

edit: correction made per child comment.

Federal judges are appointed by the President and serve for life. There are possibly corruption problems in the Eastern district of Texas, but the root problems are the patent laws themselves, and its the elected members of congress who can fix that.

I'm curious about another root problem: why are corporate civil cases heard by a jury in the first place? Never mind that juries are bound to be influenced when billions of dollars are at stake[1], how about the fact that these cases are both technically and legally complex?

I'm not an expert in this stuff but as far as I can tell the USA is unique in allowing juries to hear this sort of trial, even among countries with a right to jury in a criminal trial.

1. E.g. the Samsung skating rink in front of the Marshall Texas courthouse

It's the seventh amendment to the constitution.

Amendment 7 - Rights in Civil Cases In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States than according to the rules of the common law.

(wearing my project management hat)

Fix the easy problems first, then fix the hard ones.

The only people who can vote federal judges off the bench are 67 senators.

Federal judges are nominated by the President and confirmed (majority) by the Senate. Technically judges serve during Good Behavior, Article III, but that's been interpreted as lifetime. Removal is by impeachment in the House (majority) followed by conviction (two thirds) in the Senate.

Federal judges aren't the sort that get voted out. They're appointed for life.

The degree and direction of corruption within a judge bear a striking resemblance to the president who appoints them.

Leaving the political opinions aside (especially since I don't vote in the USA), I believe that USA has one strong/clean/independent Justice system. There is transparency. I don't believe that in many other modern/western countries there is so much attention to the top judges.

I understand that people don't like either "Barack", or "Donald", and others before them, especially calling them by their first name as if they are friends or cousins. But just for fun, let's see if anyone from Belgium, UK, Greece, Spain, etc can name 5 top judges. I, for one, cannot :)

Sidenote: I'm not a US citizen, nor live in the USA.

If the chief executive of a water company or an electricity company became a household name, my first assumption would be that there was some kind of scandal. Infrastructure is supposed to be boring.

Britain has a supreme court, but I couldn't name any of the judges. They don't tend to make particularly controversial decisions, nor are they divided along partisan lines. I vaguely recall The Daily Mail describing some high court judges as "enemies of the people" due to some sort of Brexit-related shenanigans, but it all blew over within a couple of days; the overwhelming consensus was that the headline was crass and slanderous. Other than that, I don't recall the last time the judiciary were particularly newsworthy.

While this is true, also remember how powerful the US supreme court is. Due to a combination of common law (binding precedent) and an old, difficult to change, ambiguous constitution, the US Supreme Court is arguably even more powerful than the president.

> While this is true, also remember how powerful the US supreme court is. Due to a combination of common law (binding precedent) and an old, difficult to change, ambiguous constitution, the US Supreme Court is arguably even more powerful than the president.

To me, this is an amazing aspect of the American justice system. Nine individuals, chosen over a broad range of years, are the last bastion of hope in keeping the current politics du jour from running amok. Nine individuals who were most likely all not chosen by the same person, have multitudinous alignments and bring their various perspectives to the table. When they come together in agreement, it is undoubtedly just given their diversty over the decades.

Or at least in theory.

There are interesting parallels there to the House of Lords in the UK, which more often than not holds the government to account better than the Commons. It does seem that sometimes pure democracy needs tempering.

(Curiously, the House of Lords was the top court in the UK before the Supreme Court was created recently)

SCOTUS is quite restrained, meaning that a lot of the power is in the lower courts.

> But just for fun, let's see if anyone from Belgium, UK, Greece, Spain, etc can name 5 top judges. I, for one, cannot :)

I wonder how many people can name Norman Borlaug and what he did vs Adolf Hitler and what he did.

Well... They CAN be voted out... Its a vote that's not regularly held, you have to be personally nominated for being voted out, and you need a 2/3 majority of the Senate to vote against you...

Would such a move be enough to not be under the jurisdiction of the Eastern District? Google doesn't have any store there yet that doesn't stop any patent troll.

The following is an excerpt from the short article you're commenting on:

>Residency is also a factor in determining the applicable venue of a patent infringement lawsuit, but in May 2017, the Supreme Court shifted precedent by ruling that a U.S. corporation resides only in its state of incorporation. Apple is incorporated in California, not Texas, satisfying this clause.

The relevant excerpt is:

>The plans are significant, as U.S. law states that patent infringement lawsuits may be filed "where the defendant has committed acts of infringement and has a regular and established place of business." By closing its stores in Eastern Texas, Apple is ending its established place of business in the district.

Moving a store from one district of Texas to another obviously doesn't relate to the question of the state of incorporation/residency.

Having a location in that District is creating a nexus - you end up having legal residency in that location

IANAL, I can only go by what the article is saying. The article explicitly says "a U.S. corporation resides only in its state of incorporation".

"Residency" in this sense is evidently not the same as "having an established place of business". Apple is avoiding having an "established place of business" in the eastern district.

As from a page linked from within the article:

"Despite the limitations imposed by TC Heartland, § 1400(b) offers an alternative path to a desired district “where the defendant has committed acts of infringement and has a regular and established place of business.” Merely months after TC Heartland, which did not address this alternative, the Federal Circuit in In re Cray[3] rejected the Eastern District of Texas’ expansive four-factor test and set forth three requirements for determining whether a defendant has a “regular and established place of business” in the district: (1) there must be a physical place in the district; (2) it must be regular and established; and (3) it must be the place of the defendant."


I can't tell what point you imagine you're making. That quote appears to just be a definition of "established place of business".

The issue is that both of you chose to focus on one facet of a multi-faceted question and are now talking circles around each other.

As Aloha pointed out, SCOTUS has ruled that a corporation only has residency in its state of incorporation, so Texas no longer qualifies for Apple (as it could before the 2017 ruling).

You then pointed out that a case can be brought against a defendant if they have "an established place of business" in that district.

These are two facets of the same problem, and a thorough answer to OC's question requires both parts. It wouldn't make any sense for Apple to close their locations before the SCOTUS ruling, because a plaintiff could argue that they had residency there, regardless of where their physical places of business happen to be. One is the what, the other is the "why now?"

But I think Aloha's point was less "here is the entire explanation" and more "maybe if you RTFA you'd have the answer to your question". Which is what OC definitely should've done, rather than NOT reading the article and immediately going to the comments to ask a question which is answered in the article. Instead, you guys each answered half of the question and then started talking circles around one another.

Largely, yes.

The Supreme Court case (and subsequent rulings) eliminated what amounted to "someone might have conducted business in this jurisdiction" and narrowed it to, "place of incorporation" and "a place where the company has a permanent office and regularly does business"

No, you don't. Residency is not nexus. You can have nexus without having residency, but residency on its own gives rise to nexus.

As from a page linked from within the article:

"Despite the limitations imposed by TC Heartland, § 1400(b) offers an alternative path to a desired district “where the defendant has committed acts of infringement and has a regular and established place of business.” Merely months after TC Heartland, which did not address this alternative, the Federal Circuit in In re Cray[3] rejected the Eastern District of Texas’ expansive four-factor test and set forth three requirements for determining whether a defendant has a “regular and established place of business” in the district: (1) there must be a physical place in the district; (2) it must be regular and established; and (3) it must be the place of the defendant."


Google's army of lawyers and cash reserves keeps patent trolls away. Pt try to go after little and medium companies who don't have the time or resources to fight back. It's way cheaper to write a check and make the problem go away, rather than fight via expensive lawyers or getting audited before the shakedown.

One would assume this to also be the case for apple. I definitely would not call them a "medium" company.

Apple has larger cash reserves than Google. Also Google has spent years buying companies for their patent portfolios to help prevent patent trolls. But also many tech companies are joining groups like LOT Net to help stop this as well.

This is just defense in depth.

I don’t understand. Most firms that get sued in Texas for patent infringement don’t have mortar and brick shops in Eastern Texas.

If it was that easy to avoid infringement lawsuits in Eastern Texas, Eastern Texas would be completely deserted by tech companies, forcing the people there to change their policy.

Until May 2017, having a physical presence was not a requirement for being sued there. Now because of the Supreme Court ruling referenced in the article, it is. Expect to see more businesses leaving the Eastern District of Texas, and possibly avoiding incorporation in Texas as well since that would also expose you.

If you look at the map in the article, you'll see that the Eastern District wraps around to include some of the northern suburbs of Dallas, suburbs that are filled with lots of malls.

The only thing that Apple is doing is getting out of Collin County, Texas--by closing Plano and Frisco locations. If you look here: http://www.txed.uscourts.gov/?q=court-locator you'll see that Collin County is in Eastern District of Texas.

So technically speaking, moving out of Plano and Frisco and moving to Dallas County will solve their patent troll issue.

Plano and Frisco are affluent suburbs though, probably pretty heavily iPhone fans. The local community won't be happy. Traffic is pretty bad, and DFW is sprawling. If I were Apple, I'd make some effort to communicate the reasons to the locals.

Yes, definitely lots of Apple users in Collin County, and the Willow Bend store and Frisco stores were always packed. Galleria location isn't that far from Plano or Frisco, so I'm sure it won't be a problem. Most probably work in the North Dallas area anyway.

I couldn't figure out if the first part of the title had anything to do with the latter part of the title. Is Apple closing down its stores because of the recent ruling or was that completely unrelated to why Apple is closing down those stores?

Due to a recent (2017) Supreme Court decision, you can now only file patent suits in a company's home state or in a district where they have a physical presence. So now companies can simply leave the Eastern District of Texas to stop patent trolls from suing them there.

Expect to see more companies leaving the Eastern District of Texas.

This is awesome. Let us see how the economy of districts that offer environments favorable to patent trolls fare.

My inference is that if Apple does no business in that jurisdiction, with the recent ruling about patent holders not being able to choose where to file, the patent trolls will have approximately zero chance of that district being approved to weigh in on the patent trolling.

It also serves as a detriment to the city, particularly if any other companies follow suit, depending on how much the eastern district earns directly and indirectly on these lawsuits.

I wonder if they'll hang an explanatory note about why they closed in the window.

That wouldn't be smart, because then they'd still have a physical presence in the district. The sooner they can lock the door and terminate the lease, the sooner they get the benefit of not being located there.

I'm suggesting taping the note to the inside of the door on your way out. I don't think that counts as presence. The locals aren't likely to know why it closed. Seems reasonable to me that they know.

The locals will know because Apple entirely leaving your district will make the local news and people will say why.

This "flip the bird" nonsense is a terrible idea. No one will even believe it. They believe subtly hinted things better.

"flip the bird nonsense"? I didn't include any suggestion like that at all.

We've moved, where to and sometimes why, in the door of the now vacant spot is very common.

I think it's just a bad way to do it, just have your legal team summarize the information and submit it as an Op-Ed to the local newspapers.

Anyways, I'm sure the reason for their closure will become pretty obvious if other business follow suit.

It’s a leap the writer is intending people make, despite the writer not actually knowing the reason.

It's a logical assumption for anyone to make, absent evidence to the contrary. The writer is avoiding stating the cause and effect as fact since she doesn't have proof, but the information provided is relevant.

What's the incentive for Eastern District to be so conducive to patent trolls? Is it otherwise too small to support the judges and staff?

Well, IMO, it's very easy to look good in the local community. For example, http://www.personalweb.com/ opened up shop when I was attending school there. They hired (as part-time interns) a bunch of local college students and built the bare minimum. They had small parties and showed up at a lot of community events.

They came to my uni to give a presentation to scout for interns. I asked them why they chose their location next to the court house, and they replied because of the patents they had they thought they would be at the courthouse often :).

That would be my guess. Court fees pay for judge and supporting staff salaries, benefits, facilities, perks. They've found a gravy train and will ride it as long as they can.

Well they got a Samsung ice rink one year for the town. Which was nice.

Nice now the judges and their sons who got bug fat checks have to face the truth finally: that they might have all the money but they still live in Eastern District of Texas that won't have an Apple store for them to spend their cash on.

Apple are quite infamous as patent aggressors themselves, attacking others even on completely trivial issues that have prior art, so they don't look like a good fit for anti-patent troll hero.

I thought you could file in that district if you just proved there was a customer there who bought something, even online.

The Plano store was the first one in Texas and 3rd one overall.

A powerful move would be for Apple to continue renting the space, but close the store and place posters in the windows explaining exactly why they've left, and why things needs to change. Might light a fire under local politicians.

This would accomplish none of Apple's objectives, since they would remain subject to the jurisdiction of that federal district and the local politicians have no say over a federal judiciary appointment.

Starting a war against the judiciary doesn't seem like something the corporate lawyers are going to greenlight.

Congress is theoretically supposed to act as a check on the judiciary, at least to the extent they appoint the judges in the first place. It's reasonable to encourage the constituents to provide feedback to their legislators.

Im sure apple fanboys would love the "street cred" and youtube views for getting involved in supporting their favorite brand.

Well, the eastern district of texas gets their just desserts for making it so easy for patent trolls to file there... GG.

It's just as easy to file in other districts as the Eastern District. Trolls like the Eastern District because of the judges currently sitting on the Eastern District, as well as the caliber of juries in the Tyler area. They're not super educated, easy to manipulate, and have a "well, they wouldn't have filed if they didn't do something wrong" attitude.

It’s ״just deserts”. Plus your point is odd. It’s not the filing that’s easier.

This idiotic court must hate money, because I now have absolutely no reason to visit Frisco or spend money there lol.

I suspect this has more to do with the foot traffic at these two locations.

I suspect this won't actually prevent lawsuits in the Eastern district.

With internet shopping and the new store just across the district line, lawyers should be able to argue that Apple is indeed doing business in the region. It will just waste a bit of lawyer time.

It almost feels like Apple is punishing the region for it's patent troll supporting ways.

That’s not true, thanks to recent precedent:


> [T]he Federal Circuit in In re Cray rejected the Eastern District of Texas’ expansive four-factor test and set forth three requirements for determining whether a defendant has a “regular and established place of business” in the district: (1) there must be a physical place in the district; (2) it must be regular and established; and (3) it must be the place of the defendant.

Oh dang. There are a bunch of hardware companies with offices in the North Dallas area (ex Ericsson, Nokia); I wonder if they're thinking of moving west or south to get out of the district.

> With internet shopping and the new store just across the district line, lawyers should be able to argue that Apple is indeed doing business in the region.

I'm pretty sure that's not how jurisdiction works.

Up until a little while ago, it was how jurisdiction worked in the Eastern District, so it isn't (or wasn't) and unreasonable way of thinking about it. Recent Supreme Court precedent fixed this though.

There are two things going on here. One is whether someone can make an argument and rope a dope out a lesser party so they win. In that case in theory a good set of lawyers might be able to argue what you are saying at least enough to get money out of a 'typical' defendant who doesn't want to fight and that it makes sense to settle. [1] But Apple is not a typical defendant. They are a large and profitable company that has near unlimited resources to fight and drag things on. A patent troll with this type of power on the other side is much more likely to move onto a 'home with no security system' than to try and fight Apple. Most trolls are not world class firms. Easier to simply pick someone else to go after.

Separately one thing that I frequently see on HN is people interpreting things very exactly and literally by law or otherwise. As an example let's take someone who states that 'if you go 57 in a 55 mph you can get a speeding ticket'. Sure you could get a ticket and sure there are people have gotten tickets for going 2 mph over the limit but generally that is not something that happens. Or that you typically have to worry about.

[1] After all this is the basis for much of this troll action.

Should they not punish the region? The Eastern district is corrupt.

Oh man, imagine the riots and changes that would ensue is Amazon suddenly started blocking purchases from Eastern district residents...

"well we don't want to be considered as doing business there, y'all need to fix your courts..."

For maximum effect, organize. Amazon. Google. Netflix. Apple. All boycotting and IP blocking the District.

Cue cries of corporations becoming more powerful than governments.

Cue cries of corporations becoming more powerful than governments.

That is a legitimate reason for concern. US corporations have ravaged entire countries in the past. Four of the largest US tech corporations taking coordinated action to punish a part of the US judicial system is something to be concerned about. If you're concerned about corporate lobbying, you should be at least as concerned about that. Probably more.

"FANG Leaves Texas Court District In Digital Dark Age"

A fun idea, never going to happen though...

It was only a matter of time before the banana republic phenomena returned home.

That's almost certainly not the intent. I'm pretty sure most Americans don't know or care very much about patent abuse, so to make this 'punishment' even remotely effective Apple would have to accompany it with a significant amount of marketing to get the message across. Have you heard of anything even remotely like that coming out of Apple? I mean, I guess they still could, but it does seem a pretty un-Apple thing to do.

I can't see how it makes sense to punish the customers for the behavior of a Federal district judge who isn't elected by them. (The President appoints Federal judges and the Senate confirms them.)

At least it draws attention to the matter which helps in the long run. You need awareness of the issue, for it to make it into the public debate. Right now, most voting people don't understand the evils of patent trolling.

And they are opening a new store very close to the existing stores, just out of the district. So people will only have 1 store to go to, but it will be pretty close. I too think this may draw some attention from people who live there who may demand a change. I'd bet that most people would care more about a convenient Apple store over some corrupt lawyers and judges making a money grab.

The customers elect people who can influence the president.

The damage is done, though. Federal judges are appointed for life, and only a higher Court (again, whose judges are appointed for life by the President) can overturn their judgments.

There is literally nothing the customers can do to change the outcome -- even through the electoral or political process -- except by petitioning Congress to change patent law.

Right now this region enjoys a financial windfall from the business their corrupt judges bring in. As such, I'd expect the judges to well liked in the region. Could this be the root of their motivation? Most bipedal monkeys love social validation. If the tables turn and the judges start hurting the local economy, I'd expect them to become hated.

This is all very indirect, but I think it's worth a try.

Oh please. The fact that you don’t like patents doesn’t mean that judges who disagree are corrupt.

I’m aware that patent trolls bring a lot of cases there. That’s hardly the same as the judges being corrupt.

The steady influx of business has brought significant financial benefits to the area. It's not hard to suspect the correlation has a negative impact on the court's impartiality.

In the case of Gilstrap's predecessor, there's a direct connection.

> The top judge for patent cases in East Texas used to be John Ward, until he "retired" to join his son in a local law practice representing patent trolls.

From https://www.techdirt.com/articles/20151101/00440632686/court...


In between chuckles, maybe you can explain the corruption charges to me.

Dozens if not hundreds of articles have been written about corruption around patent trolling in the Eastern District of Texas.

You have everything you need to seek those articles out. Asking others to do simple tasks for you indicates a desire to waste their time. It could fairly be interpreted as... trolling.

Offhand accusations of extremely serious charges like corruption breed lazy cynicism. It's not only fair but a good idea to ask people to support their claims: a little bit of intellectual rigor could make the difference between a valuable forum and an echo chamber where _everyone knows_ that outgroup x is just _so corrupt_.

It's really not good to say "just go and google it and you'll see how right I am". Antivaxxers, for example, say the same thing.

It's self-evident. To the extent a court is biased, it's corrupt. And if they weren't biased, they wouldn't be a nationally recognized haven for patent trolls, would they?

Having local rules that expedite patent cases isn’t evidence of bias. It’s evidence of efficiency.

seems like a question for the other person, unless you're not really interested.

The Eastern District of Texas tried to use the movement of goods as a a nice test to upend TC Heartland, but In re Cray had the federal circuit actually reject their tests that would keep the gravy train rolling and further closed off the venue shopping into Marshall TX.

Now Apple recognizes that a true physical presence is required for patent trolls to be able to use the district, and they're closing that off. The wealthy suburbanites of northern Dallas will suffer to not have luxury Apple Stores near them, but that's what happens after a decade of recognized abuse from the judicial district.

The new store is really pretty close to at least one of the old ones. The risk is huge to a company like Apple so from a business POV it makes a ton of sense.

The passage below is from the short article you're commenting on:

>Residency is also a factor in determining the applicable venue of a patent infringement lawsuit, but in May 2017, the Supreme Court shifted precedent by ruling that a U.S. corporation resides only in its state of incorporation. Apple is incorporated in California, not Texas, satisfying this clause.

I don't think they expect it to prevent lawsuits, I think they're making a statement.

agreed. Further if they can convince other tech companies not to pander to this district, they may reconsider their position. This has long been a money play by that judge/lawyers in the area.

They should make a statement to Australia and block access and sales to the entire country for their anti encryption law.

I think their current statement is "this is dumb and we're ignoring it".

This looks like some heavy spin. The only reason why those stores were there was to put a positive spin on Apple in the minds of potential jurors. Same as the Samsung ice rink. The stores don't have a purpose now that reforms have been put in place to inhibit shopping for favorable courts.

> The only reason why those stores were there was to put a positive spin on Apple in the minds of potential jurors

The article may not make it clear, but the malls where the stores are closing are hours (~2h45m or ~170 mi) away from the town (Marshall) where potential jurors reside.

looks like Apple is shopping around.

I guess we are going to see more cases landing on the desk of Judge Lucy Koh in the Northern District. Koh is obviously known for her landmark decisions in Apple vs Samsung and other cases that overtly favored Apple. Samsung, for instance, despite having won a ITC case and a SCOTUS decision on limiting damage on design infringement, saw their ITC victory reversed/pardoned by Obama and Apple's hometown jury rewarding almost everything Apple had asked for.

Legal observers see it's no coincidence that the FTC filed their on-going antitrust case against Qualcomm in Koh's court, in Apple's front yard.

The litigants decide where to file suit. Apple can't shop for courts when they're the defendant, except in this case by specifically avoiding the jurisdiction of one court that's a dramatic outlier.

Actually, while it's not common, a change in legal venue is perfectly legal and Apple knows how to play the game (see Google vs Rockstar, which, once upon a time, was Apple's patent trolling operation in the Eastern District of Texas).

The rich irony of a company that patented round corners taking the high moral ground against patent "trolls" or whatever their called

Most patents filed big by corps are protective in nature.

It would be hard for Apple to sue people for 'round corners' - but it gives them a moat to protect themselves from trolls who patent 'round corners'.

But it does cause problems, because it causes hesitancy in other companies, i.e. 'swipe to unlock' patents etc..

We are not talking about "most" sane, reasonable companies like Google, Samsung, etc. Apple is historically known for being litigatious, in addition to being the most litigated today:


What is a ‘reasonable’ company? The chairman and heir of Samsung went to prison for corruption. https://www.google.co.nz/amp/s/amp.theguardian.com/world/201...

two things:

First, that's the cost of doing business in less politically developed countries like South Korea. Google withdrew from China for not wanting to stoop to the oppressive, corrupt gov't; Apple on the other hand outsourced all data collection to a domestic Chinese company to continue business there. Samsung unfortunately doesn't have the luxury to leave South Korea. You don't hear Samsung exec's getting convicted of bribery in the US, do you?

Second, lookie here, a red herring! We are discussing what to expect from most sane big "reasonable" companies with respect to their IP, not the recent political corruption scandal, or the messy ouster of President Park, in South Korea.

Being 'most litigious' does not imply they are patent trolls.

They could be pursuing legit defence of their IP.

FYI in your example - Apple in many ways has no choice but to sue.

If a company is not perceived to be defending their trademarks - they lose them.

When 'Crackberry.com' was popular, Blackberry had to 'sue' them - but funny enough, the relationship otherwise was great. Blackberry had no intention of damaging 'Crackberry' because of course they were helpful to Blackberry! But - there was always a case 'in progress'. Blackberry had to 'appear to be defending it's IP'.

>Being 'most litigious' does not imply they are patent trolls.

sure, just responding to your claim that big, 'reasonable' companies use their IP defensively or "protective[ly]."

> They could be pursuing legit defence of their IP.

that's true for most 'reasonable' companies, but not apple.

> FYI in your example - Apple in many ways has no choice but to sue.

and your logic is akin to saying patent trolls have no choice, but sue to defend their assets. And we are not talking crackberry; we are talking about a small mom-and-pop supermarket in Poland whose domain name, a.pl, doesn't even resemble anything remotely close to Apple.

They patented the design of iPad which included specifically rounded corners among many other things.

Design patents are pretty different from regular utility patents.

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