14 ms·
Patent Review System Upheld by U.S. Supreme Court
- rayiner 8y agoI don’t understand how you write an article on a case without linking to the opinion: https://www.supremecourt.gov/opinions/17pdf/16-712_87ad.pdf https://www.supremecourt.gov/opinions/17pdf/16-712_87ad.pdf The mix is interesting: Thomas wrote the majority opinion and Gorsuch and Roberts dissented. The gist of the majority is that patents are “public rights” (like entitlement to social security payments) that can be adjudicated in the first instance by agencies so long as there is the possibility of judicial review. EDIT: the link is under the word "voting." Because I'm petty, I went to the wayback machine version to confirm it was not there originally: https://web.archive.org/web/20180424150011/https://www.bloomberg.com/news/articles/2018-04-24/patent-death-squad-system-upheld-by-u-s-supreme-court https://web.archive.org/web/20180424150011/https://www.bloom....
- dexterdog 8y agoNews sites don't want you to leave. The case is mentioned clearly at the bottom of the article so you have to go the extra step of copying the text and pasting it into your search.
- justherefortart 8y agoThis is one of those rare times I actually agree with Thomas. It's been so long, I can't even remember the last time!
- rayiner 8y agoIn this case both sides have an originalist basis to the argument. The opinions aren’t results-oriented, but look to whether patent rights would’ve necessarily been adjudicated in courts in 18th century England. The majority points out that the Privy Council (advisory body to the king) not just courts, had the power to cancel patents. The dissent points out that during the 17th and 18th centuries, there was a shift from viewing patents as privileges granted by the king to seeing them as private property, and the Constitution was adopted after that transition happened.
- hshehehjdjdjd 8y agoIt saddens me that the basis for such important decisions today is what people were doing more than two centuries ago. Not even what they thought was a good idea, just their actual practices! It was a different world back then. I understand the benefits of some amount of inertia in the rate of change of laws, but this seems like far too much.
- zlynx 8y agoBut you have to go back to what people were doing when the law was written. The law was written using the commonly understood meanings of that time. The meaning of a law shouldn't change just because people start using words differently. If the meaning of the law should change with the times then get the law-makers to update it.
- burkaman 8y agoAre you sure? Do you think, for example, that Brown v. Board of Education was the wrong decision, since the lawmakers and courts at the time the 14th Amendment was passed clearly did not intend "equal protection" to mean "forced integration"? Should the court have waited until the Civil Rights Act of 1964 passed before reinterpreting the amendment in this way?
- marcoperaza 8y agoBrown itself is not so controversial as the decisions that came after and elaborated on it. They have been criticized from both sides of the political spectrum. The prohibition of forced desegregation has given way to actual forced integration, as you note. When vigorously enforced, it means that minorities who once controlled their schools, dominated the PTA, and could exercise control over their kids' education, are now doomed to forever be minorities in all institutions, and therefore can only hope to seek redress in court when their rights are violated, instead of exercising affirmative power. I do agree with Brown, to be clear, but some of the excesses of subsequent decisions and their application are great examples of the dangers of judicial activism.
- Bartweiss 8y ago7-2 is striking for a Supreme Court decision - I usually read that as "the legal situation of this case is blatantly obvious, nice try". The Roberts/Gorsuch dissent isn't exactly shocking, either; it's a nice display of the move from Republicans appointing originalists to appointing semi-activist corporatists.
- adrianmonk 8y agoThe traditional media (newspapers, TV news, etc.) seems to have the idea that they shouldn't provide links. Linking would be the natural thing to do, so it seems like they are going out of their way not to do it. I'm not exactly sure why this happens, but I have two theories: 1. Their mindset is to see their web site as a sort of port of their existing media product to a different platform. And not a native port. (A newspaper sees an online article as an electronic copy of a print article. TV news sees an online article as a replay of a video segment.) Since they wouldn't put a link in the original non-web media, they don't have one in the web version. 2. They are used to controlling the flow of information. The relationship they expect is that you come to them first for your news, and you keep coming back regularly. They don't want to encourage you to go directly to the other sources because then they wouldn't be involved.
- neves 8y agoI've talked to a couple of editors and the 2. is the correct answer. It is really annoying when the article is about something that happens in the web, like a web site, and they don't link it. I believe they think their value is to "explain" things to the mindless reader, but it also perverse that they use it to impose their point of view.
- dv_dt 8y agoThe lack of links makes me less likely to go to a newspaper article the next time. I think newspapers are missing out when compared to models like Reddit. They don't have to go full Reddit, but there is a gap in journalistic form between newspapers old-school self contained writing and a newer approach that could use an article as coverage as well as an introduction of context, then optionally leads to richer more-detailed authoritative sources. I'm much more likely to pay for the latter as a subscriber.
- _jal 8y agoDitto - lack of primary sourcing has led me to seek out new outlets in a couple instances, and I haven't looked back. Don't know how long they've been doing this, but I noticed recently that the Washington Post is linking to primary sources, and the NYT seems to do it sometimes but not others. So at least some of the big ones are doing better.
- mtgx 8y agoOff-topic, but is this the first case in which we're already seeing Gorsuch side with large corporations, just as we expected him to? Technically, this ruling helps Google (in certain instances), and Google is a big corporation, too, but I think we can agree that the vast majority of large corporations are very much pro-bogus patents (IBM, Microsoft, Oracle, Big Pharma, etc). I like the idea of a "patent death squad" (seems like a pejorative term, but I dig it). However, I still believe it should have been the USPTO first job to reject the vast majority of patents based on strong criteria for what actually is a proper invention. And if that criteria would have been set early on, it wouldn't have to reject most of them, because those that now file for bogus patents wouldn't afford to keep getting their bogus ideas rejected for too long.
- hermitdev 8y agoA friend of mine was a former USPTO reviewer, and he told me something to the effect that as the law stands, they are pretty limited in their reviews and what they can do to investigate prior art. Basically, they assume the patent should be granted and then have to kick to the courts to decide if it is valid or not. I know there was more to the conversation, but was years who and dont recall much more.
- pnw_hazor 8y agoOkay. That's the opposite of the world I live in.
- dctoedt 8y ago> Basically, they assume the patent should be granted and then have to kick to the courts to decide if it is valid or not. That's pretty much how the statute works (unfortunately, IMO): The default mode is that you're entitled to a patent unless the USPTO's patent examiner can show that you're not eligible. See 35 USC 102(a): "(a) NOVELTY; PRIOR ART.—A person shall be entitled to a patent unless— [list of various disqualifications]" (Emphasis mine.) [0] I've groused here before that this is akin to requiring a dissertation committee to grant a Ph.D. degree unless the advisor can show that the research had already been done before, instead of requiring the candidate to conduct and document a thorough literature survey. Of course, the consequences of an improvidently-granted patent can be far more serious than for an improvidently-granted Ph.D. degree. [0] https://www.bitlaw.com/source/35usc/102.html https://www.bitlaw.com/source/35usc/102.html
- harikb 8y agoDid they just add it? a link on the 'vote'?
- mrybczyn 8y agoThanks for the direct link! hacker news is the best. Also, I was very partial to Gorsuch's dissenting opinion, even though I believe patents in general to be a problem.
- king07828 8y agoWhat is the problem? Patents allowed Google (page rank) to get a toehold in its respective market that was dominated by other players. This is a 'throwing the baby out with the bathwater' issue. Change the patent system too much, and inventors will not be able use their ideas to compete against the big money of established players.
- majewsky 8y agoCan someone explain in simple words what this is about? I've read the article, but I think I'm missing some context about these review boards and stuff.
- laveur 8y agoIn simple terms before the new law you had to go to court to get a patent reviewed. Now you can file a request with the patent office and skip court. Which makes it cheaper and easier to fight bad patents.
- perpetualpatzer 8y agoThat's a fair summary of the finding (and I would contend, the major issue in this case). The counter-argument that might lead one to disagree with this decision is that the Patent Office reports to the President, so it is subject to the political motives of that branch. For example, let's say, a major democratic donor receives a software patent on a novel ML algorithm useful for predicting voting behavior. Under inter partes review, the President (or his subordinates) could invalidate that person's patent if challenged regardless of the evidence. If inter partes review were found unconstitutional, they would need to convince a jury that the algorithm was, in fact, inappropriately granted.
- tptacek 8y agoDecisions of the PTAB are reviewable by the CAFC.
- Scott_Sanderson 8y agoGood point, the courts still hold ultimate review of patents. The new law just moved the point when review switches over from the executive branch to the judicial branch.
- _delirium 8y ago
- laveur 8y agoI would like to note Bloombergs choice of words for the title. I find it interesting they went with that nickname instead of its formal name. To me they only want to strengthen the opinion of the general public that the new patent review process is bad.
- csours 8y agoAnd what a title it is. Trying to parse it before reading the article, I thought someone had patented Death Squads, and I was trying to figure out if that was a technical system or a mercenary system. Edit: Try Dr. Moriarty's Patent Death Squad System Today!
- Bartweiss 8y agoYeah, I very much had to reread the headline to see if it was a death squad for patents or a patent on death squads. I'm a bit surprised at Bloomberg, because they had as much space as they wanted. Normally this happens with things like the BBC app, where full headlines are truncated down to a few words. That's how we get winners like "New powers over death considered".
- Hupriene 8y agoI was imagining a decision centering on whether criminal conduct can be patented. Imagine: suing drug cartels for infringing on your contraband distribution business process.
- craftyguy 8y agoEdit: I am wrong, need more coffee Well, the highest court in the land just said "this is bad"
- opportune 8y agoNo they didn't, they upheld it
- Severian 8y agoI misread this as Patient Death Squad, like health insurance claims or something similar.
- jimrandomh 8y agoGorsuch's dissent is the first opinion of his that I've read, and I'm extremely unimpressed. It reads more like a newspaper editorial than an opinion of the Supreme Court; it's overtly political; and it doesn't mention the facts of the case at all, even as background. This does not bode well.
- metalliqaz 8y agoHis primary job qualification was his politics. He is there specifically to subvert the will of every American who voted for President Obama.
- garmaine 8y agoWas that really necessary?
- sameyolo 8y agoI think it's a valid point of discussion given the circumstances surrounding his nomination and subsequent appointment.
- billbrown 8y agoJustice Gorsuch's qualification was not primarily his politics. He was eminently qualified for the Court, so I disagree that it's a valid point of discussion. (That he came from a Federalist Society background and was generally regarded as a conservative was certainly a factor, but that's how presidents pick justices.)
- sameyolo 8y agoI am not critiquing his ability to perform the job but the process of his selection.
- dang 8y agoPlease don't take HN threads further into political flamewar.
- bsbechtel 8y agoWho holds the review board accountable for making bad decisions vs the accountability of the courts? I think this question is just as important. Aside from that, I imagine it's far easier for a lobbyist to get someone who is industry friendly appointed to the review board vs appointed as a judge, which is concerning.
- billbrown 8y agoThat's one of the reasons for Gorsuch's dissent. I suggest you read it: it's quite clear and principled. I think the Court's opinion is that the remedy to the courts is still available even after the board's decision, so it's fine. (I think this is good but an unfavorable board decision reversed by the courts later is going to have very bad effects on the businesses affected. Property rights need to be secure and uncertain property rights are _punished_ mightily by the market.)
- microtherion 8y agoI agree that an unfavorable board decision can hurt a non-practicing entity. On the other hand, an improperly granted patent can hurt a business that is bringing actual products to market. I would argue that if these scenarios have to be balanced, one should err on the side of allowing products to be shipped.
- mtgx 8y agoIntellectual "Property" is an intentional misnomer used by IP holders as propaganda to support the idea that IP is "just like property." It's not, because unlike property you can't establish that 100% of a project were your ideas and your ideas only. Every new project is a recombination of ideas. It's not 100% original. If copyright and patents would be enforced perfectly and automatically, there would no longer be any new inventions. More on this here: https://www.theguardian.com/technology/2008/feb/21/intellectual.property https://www.theguardian.com/technology/2008/feb/21/intellect... https://mises.org/library/intellectual-property-not-true-property https://mises.org/library/intellectual-property-not-true-pro... https://www.everythingisaremix.info/watch-the-series/ https://www.everythingisaremix.info/watch-the-series/
- deleted 8y ago
- rossdavidh 8y agoFrom the end of the opinion: "THOMAS,J.,delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, ALITO, SOTOMAYOR, and KAGAN,JJ.,joined. BREYER,J.,filed a concurring opinion, in which GINSBURG and SOTOMAYOR,JJ.,joined. GORSUCH,J.,filed a dissenting opinion, in which ROBERTS,C. J., joined." If you lost with Thomas, Kennedy, and Sotomayor, you lost left, right, and center. You are not one new Supreme Court Justice away from winning. You lost by a lot.
- okreallywtf 8y agoEven though Sotomayor was appointed by Obama, she's a lifelong independent. She probably aligns closest with the left, but from her bio I did not get the impression that she is a ideologue.
- oh_sigh 8y agoWho exactly are you referring to with "you"?
- sah2ed 8y agoI think what the parent said essentially was that: "there is not much variety in the opinions held by SCOTUS justices so don't count on the appointment of a new justice to inject (much needed?) variety into the range of existing opinions that could lead to a policy shift."
- shozab 8y agohttps://thatssoft.com/mirillis-action-crack/ https://thatssoft.com/mirillis-action-crack/
- pascalxus 8y agoWell, I'm glad to see that we're heading in the right direction on patents for once. Finally, all that consolidated tech monopoly power is being used as a force for good. Hopefully this sets a precedent for dismantling other frivolous patents as well.
- grellas 8y agoWith this case, the Supreme Court continues its trend of gradually scaling back on the idea that patents can be freely and loosely granted to such a bilious degree that the very idea of what a legitimate patent is supposed to do (promote the progress of science and useful arts) is undercut. This one does not involve the question of patentable subject matter but instead a question of process: in layman's terms, if Congress has set up a relatively quick and painless process by which junk patents can be sent packing without the pain, turmoil, and delays of going to court, can this process be shot down as being unconstitutional because patent validity, "from its nature," must be decided by a court? In answering this question no, the Court upheld the power of Congress to better police junk patents and rid the world of them with dispatch. In short, this decision upholds the lawfulness of the process known as inter partes review, by which the PTO can reconsider and reverse the validity of dubious patents that it previously had granted. Score this as a victory for those who support patents but who do not want the currency cheapened, so to speak, by junky ones that only serve to undercut what a legitimate patent even means. The legal reasoning here (both in the majority and the dissent) is refined, principled, and arcane, dealing with the nature of a patent right, how it evolved under English law through the 18th century, and what this meant for the definition of the judicial power under Article III of the U.S. Constitution when it was adopted in 1789 (https://www.supremecourt.gov/opinions/17pdf/16-712_87ad.pdf https://www.supremecourt.gov/opinions/17pdf/16-712_87ad.pdf). All justices agreed (as the Constitution says) that the federal judicial power vests exclusively in the Supreme Court and the federal courts as established by Congress and that, if inter partes review is an exercise of such federal judicial power, it is unconstitutional. In deciding that this sort of review is not an exercise of federal judicial power, the majority held that the grant of a patent is a "public franchise" that essentially can be determined in the reasonable discretion of the granting authority (the government) without need of a judicial determination. So, just as Congress (legislative) set up the PTO (executive) to grant or deny patents based on criteria defined by Congress via statutes (legislative), Congress could also set up procedures (inter partes review) based on criteria that it defined (invalidity if patent failed novelty and non-obviousness tests in light of prior art) by which the same executive branch (PTO) can reconsider and invalidate the previously granted patent. Yes, Article III vests the exclusive judicial power of the United States in the Supreme Court and in the inferior courts established by Congress but inter partes review is not a judicial power given that a patent is a public franchise that can be shaped and altered by the government without regard to the courts. In dissent, Gorsuch argued that a patent grant is not a public franchise but a vested private property interest that could be abrogated under the U.S. Constitution only by an exercise of judicial power and not by the PTO acting extra-judicially. Both the majority and the dissent are basically originalist justices and so the disagreement between them is, I think, not as large as may appear. For the majority, Justice Thomas went out of his way to emphasize how exceedingly narrow his holding was (ruling does not involve infringement claim, is tied to the idea that there is ultimate judicial review after the process is complete, does not address any constitutional challenge such as retroactive application not raised by the party filing the appeal). Based on this, I would suspect that, in other contexts, these justices would all agree that patents do involve significant elements of private-property protection. But, for this case, and in upholding a hugely helpful procedure for ridding the world of junk patents, the majority was willing to say, in effect, "nothing at all wrong with that, have at it." The decision is a correct one and continues a welcome trend toward reestablishing sanity in the patent world.
- blackrock 8y agoPatents have reached the level of stupidity. For example, the recent patent granted to Samsung, to use an emoji-like representation of your face. https://www.androidauthority.com/samsung-ar-emoji-video-call-858303/ https://www.androidauthority.com/samsung-ar-emoji-video-call... I had the exact same idea for this, but I thought it was just a cute little feature. I didn't think to patent this. And I'm sure thousands of other people had the same idea too. But since Samsung was the first to patent it, now, if you make a little program that uses this same idea too, then you are liable for patent infringement. And you will be sued by Samsung. Patents were originally devised as a means to protect the small players, from being dominated by the larger and richer players. In the 1700s to 1900s, the American patent system may have had the original idea to protect their small inventors, against the richer inventors in Europe. This was to help give them a fighting chance. But today, with all the patents being filed by the large and dominant Fortune 500 companies, the purpose of the patent protections to help the smaller players, are now largely irrelevant. Nowadays, the purpose of patents is for nationalism, to protect against other countries. The other egregious patent that was granted, was the Swipe Left and Swipe Right, that was granted to Tinder.
- ggggtez 8y agoIn this particular case, I can assure you that there also is prior art in the research community going back at least 10 years. I wonder what aspect of it they are patenting (the bandwidth savings perhaps)?
- s73v3r_ 8y agoDid you actually implement it?
- gohbgl 8y agoHaving an implementation is not a requirement for getting a patent.
- s73v3r_ 8y agoMaybe not, but coming into a thread complaining that you "thought of the idea first" when talking about something fairly new, it's a reasonable question to ask. I "thought of" eBay before they started up, too.
- claytongulick 8y agoWhile I agree with the decision, I developed a whole new respect for Gorsuch after reading his dissent. It was brilliantly written, clear, plain english and was an amazingly principled approach - i.e. he agreed that inter partes review was effective and convenient, but argues that convenience isn't a measure of constitutionality. I also appreciated his arguments about the non-independence of the review board and the ability of the director to apply political bias/policy to decisions (which has already been done multiple times). If it weren't for the ability to appeal the board's decision to a real court, even though I like the inter partes review process, I think I'd have to agree with Gorsuch on this one.
- wahern 8y agoIt's not principled, it's purely based on a vein of economic and patent scholarship that seeks to strengthen patents by equivocating them with property rights in land and thus subject to the most stringent demands of due process. This scholarship presupposes that patents are a necessary and efficient mechanism for capital allocation, almost completely discounts the economic and social costs of granting a monopoly franchise that restrains liberty, and ignores the practicality of accurately assessing novelty, non-obviousness, etc--ironic given that in almost every other aspect of regulation it's almost a given that government bureaucrats suck at divining these things. And as a general matter this scholarship is a form of ideological reductionism, and fundamentally radical. All the handwaving about the change of perspective regarding utility patents in the latter part of the 18th century is an attempt to support his policy-based argument. You know it doesn't clearly reflect the law because he uses weasel words like "virtually", and spends much of the time explaining away the actual precedent. He says that the very existence and wording of the Patent Clause is evidence of this change in perspective regarding the legal framework of patents. But the Patent Clause exists first and foremost because without it--long before modern Commerce Clause powers existed--the Federal government would have lacked the power to establish and regulate patents altogether. In other words, it exists primarily for the purposes of national consistency. The wording about the promoting progress merely evidences that the Founders believed the powers for granting particular public franchises to the Federal government were given because national policies might best promote social welfare, as opposed to a patchwork of state-granted patents. It's a huge stretch to argue it reflects a change in the law regarding whether patents were a species of public franchise. For a man who claims to hew closely to the original intent and original meaning of the Constitution, and who believes in judicial restraint, his argument is remarkably unprincipled. Absent clear and unequivocal language either in the Constitution or contemporary laws regarding the nature of the patent right, in light of the clear and concise grant of power to Congress, lacking any solid legal precedent for this argument, and without even a clear injustice suffered at the hands of a capricious government in the instant case, he should give way to legislative and executive prerogative. But he doesn't. And he doesn't because he very clearly subscribes to the scholarship I mentioned above. It is well written, I'll grant you that. But like Scalia before him, principled it is not. Principles should lead to consistency and predictability in the substance of decisions, not the form. Looking at his opinions as a whole, Scalia's were neither consistent nor predictable in substance (relative to other justices), and Gorsuch's appear to be going down the same road, notwithstanding that both are excellent lawyers who play the persuasion game well. Their opinions are consistent and predictable only in form, in that they attempt to reduce every problem to a small handful of preferred talking points and policies. Thus, for Gorsuch this case isn't about the exceedingly complex realities of patent monopolies and administrative processes that attempt to balance costs and benefits, but about politically appointed hacks having power to arbitrarily take away your private property. To get from point A to point B he has to take you along for a ride, hoping you don't realize that he changes the premises along the way. By contrast, the majority opinion is squarely rooted in the law and in judicial restraint. I'm not one who believes SCOTUS should be shy about crafting new law--in substance if not in name. I actually appreciate Gorsuch's concern with safe-guarding property rights. I just think 1) they're misguided and wrong from a policy perspective (among other restraints, the law making powers of courts should be based on clear, consistent, public policy, and one of the most clear is the common law rule that disfavors monopolies), and 2) a great example of how a judge can go about making new law all the while claiming to hew closely to precedent and history. Moreover, I can't fault a court for not seizing the opportunity to craft law.
- johnhenry 8y agoLeaving out the "Death Squad" part made me think that this was going to be the opposite of what it was about.
- peter_retief 8y agoThe patent system was designed to protect small inventors but it has transformed into a system that protects large monopolies and law firms. For me the big question is, how to get a system that does protect small innovators and inventors? Possibly open source or creative commons? Its really difficult to find the right balance and patents are becoming less relevant to small inventors (Like me)
- prbuckley 8y agoI very much agree. The ptab is not a bad idea in principle but unfortunately it operates in a way that favors large companies who can use IPR to out spend small inventors instead of paying a fair license. I am experiencing this first hand with a company that approched me to license a patent that I had. I also had a small company making and selling products with our patented technology. Our company was ~1/100th the size of company licensing our patent. A year into our contract the big company decide it wanted out of the license and has been using the IPR process as a threat and leverage point to try and not pay the agreed royalty. It could cost me 300 to 500k to defend my patents through the IPR process, money I don't have but large company does. One big problem that never seems to be discussed when talking about the PTAB and IPRs is the collateral damage it causes for small business and small inventors. The big tech companies lobbied to set the rules in their favor. "Patent Trolls" are not the problem they are a symptom of a different more fundamental problem. If you are a small business owner or small inventor the patent system is to expensive for you to use on an even footing with large companies, so you can be put into a situation where you have to work with a "patent troll" just to have the legal resources to play the game. By the way my company built it's own factory to build our products in the USA. We have since had to close our factory down and let all our employees go becuase we have been unable to protect the unique IP of our product, I know of at least 100 companies using the IP we created, and have 3 patents coveeing. As a small business entrepreneur the patent system and the IPR/ptab system has utterly failed me so far. Edited for spelling.
- cryptonector 8y agoMaybe you can't protect "small" inventors without also protecting "big" ones as well. My take is that patent law should be strong BUT that patent lifetimes should be commensurate with typical dev costs / recoup times for each industry. It's one thing to have 17 or 20 year lifetimes for pharmaceuticals, but for software 17 or 20 years is just nuts. For software a patent lifetime somewhere in the range of 5 to 8 years should be plenty.
- nkkollaw 8y agoMight be slightly unrelates, but does this help with stopping companies from patenting living organisms? That's my main worry regarding patents: that a patented crop will disperse its seeds and mix with non-patented crops and all of a sudden people can't grow wheat without paying a fee.
- nojvek 8y agoThat's already being done by Monsanto seeds right? The U.S patent system, like the S&P 500 rating agencies let almost everything pass through with an AAA rating, because they make a ton of money if people keep on filing patents. $5k-$15k on a single patent. It's a billion dollar revenue business. "You can't make someone understand something, when their livelihood is based on not understanding it"