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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 t

by 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."

ABCLAW 8y ago
>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.

by btilly 8y ago

ABCLAW 8y ago

>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.