6 ms·

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 sol

by btilly 8y ago

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...

ABCLAW 8y ago
> 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? !@#$!#%$@#$%
- btilly 8y ago
  Well obviously I don't agree. First of all from https://www.americanbar.org/content/dam/aba/migrated/intelprop/magazine/LandslideJan2010_Hofer.authcheckdam.pdf 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-heightened-importance-of-the-federal-circuit/ 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?article=2054&context=btlj 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".
  - 8y ago

by btilly 8y ago

ABCLAW 8y ago

> 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? !@#$!#%$@#$%

btilly 8y ago
Well obviously I don't agree. First of all from https://www.americanbar.org/content/dam/aba/migrated/intelprop/magazine/LandslideJan2010_Hofer.authcheckdam.pdf 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-heightened-importance-of-the-federal-circuit/ 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?article=2054&context=btlj 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".
- 8y ago