6 ms·

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 crea

by ABCLAW 8y ago

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.

dragonwriter 8y ago
> 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.
mjevans 8y ago
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.
btilly 8y ago
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?article=2054&context=btlj 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 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."

by ABCLAW 8y ago

dragonwriter 8y ago

> 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.

mjevans 8y ago

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.

btilly 8y ago

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?article=2054&context=btlj 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 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."