4 ms·

> My understanding is that patents are pretty much awarded without any kind of real validation step and it's up to future litigation to decide what's valid and

by maratd 14y ago

> My understanding is that patents are pretty much awarded without any kind of real validation step and it's up to future litigation to decide what's valid and what isn't. Your understanding is correct. This doesn't mean squat. It just means they filed their application correctly and it passed the most minimal levels required. If this stands up in court, that would be a different and truly unfortunate matter.

malandrew 14y ago
The problem with letting things in this easily is that humans unfamiliar with the patent system fallacious assumed that since a patent was granted then there must be some merit to a patent infringement lawsuit. If the average American began with the axiom "patents are merely forms that have been filed correctly" instead of "patents are something only granted when someone has invented something truly novel and reduced it to practice" then patents wouldn't be nearly as dangerous. The problem is typically trial by jury in an east Texas courtroom where the jurors assume that patents are granted by a clerk with expertise in the area the patent was filed. Patents are one area where a trial by jury fails badly because the average person is far more likely than practitioners to think a patent is non-obvious. Instead we should have trials by qualified juries, where the jurors are peers in the area in which the patent was filed. i.e. a software patent should be reviewed by a jury composed of software developers since they are the only ones competent enough to rule on obviousness.
- click170 14y ago
  While I wholeheartedly agree that the current system is awful and needs improvement, and I do think this would be an improvement, I also think one of the problems with having a trial by qualified juries as you suggested is hindsight bias. The problem is, merely presenting the patent and asking "Is this obvious" will lead to many affirmatives due to hindsight bias. It could be done differently though. Before presenting the jury with the patent itself, ask them to imagine ways of solving the problem. If many come up with the same answer, then it's very likely the obvious solution.
- tptacek 14y ago
  Well, hold on. The problem is/was E.D./TX but not because jurors in EDTX have reverence for patents; rather: * EDTX judges move cases faster than most other districts, which makes legal threats by NPEs (small companies for which presumably all revenues come from judgements and settlements) more credible. * EDTX judges have well-defined rules for handling patent cases, unlike venues that see far fewer patent cases, which again makes filing there easier. * EDTX is among the more plaintiff-friendly districts in the country; across the board in all cases, plaintiffs tend to win there. * EDTX judges grant fewer injunctions, dismiss fewer cases, and issue fewer summary judgements, which are again things you might want if you were a huge company trying to stomp an NPE's frivolous patent claim. * And, sure, there aren't any big companies there and patent troll defendants are often unsympathetic to residents (although one voir dire consultancy I found wrote a blog post about finding an unexpectedly high number of IT pros in panels in the district.) Also, before we point the finger at EDTX as the root of the problem, know: * The America Invents Act made forum shopping to EDTX harder; plaintiffs can no longer join a whole bunch of different defendants in different locales into a single venue, but rather have to go defendant-by-defendant doing small cases, each time making an argument for why the proper venue is EDTX. * Appeals Courts have apparently taken to reversing EDTX denials of venue change, so when EDTX judges refuse to allow defendants to have their case heard in SFBA or Seattle, there's apparently a decent shot at getting that overturned. I think it's possible that to enforce your "qualified jury" standard, you'd have to amend the US Constitution. In any case, that standard doesn't make much sense, because patents are transferrable; the party "harmed" by willful infringement could very well be (in fact, almost certainly is) not a "peer" to a panel of technologists. And think it through some more: sure, as technologists, we'd sure like our biggest hot-button legal issue to be determined solely by our direct peers, but should that really be the rule in general? What happens in complex technical cases in the extractive industries like oil & gas? It would make more sense to simply say that software can't be patented. There's no Constitutional can of worms there: Congress has the power to pass a law saying exactly that.

by maratd 14y ago

malandrew 14y ago

The problem with letting things in this easily is that humans unfamiliar with the patent system fallacious assumed that since a patent was granted then there must be some merit to a patent infringement lawsuit. If the average American began with the axiom "patents are merely forms that have been filed correctly" instead of "patents are something only granted when someone has invented something truly novel and reduced it to practice" then patents wouldn't be nearly as dangerous. The problem is typically trial by jury in an east Texas courtroom where the jurors assume that patents are granted by a clerk with expertise in the area the patent was filed. Patents are one area where a trial by jury fails badly because the average person is far more likely than practitioners to think a patent is non-obvious. Instead we should have trials by qualified juries, where the jurors are peers in the area in which the patent was filed. i.e. a software patent should be reviewed by a jury composed of software developers since they are the only ones competent enough to rule on obviousness.

click170 14y ago
While I wholeheartedly agree that the current system is awful and needs improvement, and I do think this would be an improvement, I also think one of the problems with having a trial by qualified juries as you suggested is hindsight bias. The problem is, merely presenting the patent and asking "Is this obvious" will lead to many affirmatives due to hindsight bias. It could be done differently though. Before presenting the jury with the patent itself, ask them to imagine ways of solving the problem. If many come up with the same answer, then it's very likely the obvious solution.
tptacek 14y ago
Well, hold on. The problem is/was E.D./TX but not because jurors in EDTX have reverence for patents; rather: * EDTX judges move cases faster than most other districts, which makes legal threats by NPEs (small companies for which presumably all revenues come from judgements and settlements) more credible. * EDTX judges have well-defined rules for handling patent cases, unlike venues that see far fewer patent cases, which again makes filing there easier. * EDTX is among the more plaintiff-friendly districts in the country; across the board in all cases, plaintiffs tend to win there. * EDTX judges grant fewer injunctions, dismiss fewer cases, and issue fewer summary judgements, which are again things you might want if you were a huge company trying to stomp an NPE's frivolous patent claim. * And, sure, there aren't any big companies there and patent troll defendants are often unsympathetic to residents (although one voir dire consultancy I found wrote a blog post about finding an unexpectedly high number of IT pros in panels in the district.) Also, before we point the finger at EDTX as the root of the problem, know: * The America Invents Act made forum shopping to EDTX harder; plaintiffs can no longer join a whole bunch of different defendants in different locales into a single venue, but rather have to go defendant-by-defendant doing small cases, each time making an argument for why the proper venue is EDTX. * Appeals Courts have apparently taken to reversing EDTX denials of venue change, so when EDTX judges refuse to allow defendants to have their case heard in SFBA or Seattle, there's apparently a decent shot at getting that overturned. I think it's possible that to enforce your "qualified jury" standard, you'd have to amend the US Constitution. In any case, that standard doesn't make much sense, because patents are transferrable; the party "harmed" by willful infringement could very well be (in fact, almost certainly is) not a "peer" to a panel of technologists. And think it through some more: sure, as technologists, we'd sure like our biggest hot-button legal issue to be determined solely by our direct peers, but should that really be the rule in general? What happens in complex technical cases in the extractive industries like oil & gas? It would make more sense to simply say that software can't be patented. There's no Constitutional can of worms there: Congress has the power to pass a law saying exactly that.