4 ms·

>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, s

by 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.

btilly 8y ago
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.

by ABCLAW 8y ago

btilly 8y ago

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.