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How a rogue appeals court wrecked the patent system

163 points by macchina 14y ago

rayiner 14y ago
The second page is really good stuff. Particularly the part about Supreme Court intervention and the need for a specialized patent appeals court. I think the Supreme Court patent jurisprudence over the last several years has been extremely good, and I think the need for a specialized patent appeals court is questionable at best. People tend to think we need specialized patent judges who can understand the technology, but I think this is misguided. Judges are experts at quickly learning the 10% of any field they need to make a decision. Technology isn't any more complicated and in need of specialized judges than say a dispute involving complex insurance or securities instrument. At the same time, generalist judges would be much better at weighing the larger issues of fairness involved in a case. There is a real lack of balance in the Federal Circuit and I think that's partly because Federal Circuit judges don't field other kinds of cases.
- macchina 14y ago
  The article talks about the idea of the Federal Circuit "overruling" the Supreme Court by gradually chipping away at the principles behind SC precedent. Interestingly, similar charges have been made of the DC Circuit with regard to the Supreme Court's national security jurisprudence, especially Boumediene v. Bush.[1] (The US Court of Appeals for the DC Circuit has essentially become the US terrorism court — because among other things — they are the only court allowed to hear Guantanamo detainee appeals. But DC Circuit judges do hear normal cases as well.) So it seems to me the problem with CAFC is not just in its "specialist" judges but also in allowing the law in one field to develop almost exclusively in one court. This also makes Supreme Court supervision much more difficult. 1.http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1838402 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1838402
  - rayiner 14y ago
    That's a very interesting point. Thanks for the article.
ChuckMcM 14y ago
Clearly a bit biased but the argument that patent law should rise up through the circuits like any other branch of law is a good one. That is something actionable you could ask your representative to 'fix' (note to would be lobbiests, the best results are when you whine for something achievable, this wins on that basis it "makes sense" (which should patent law be special now) and its within their purview.
tzs 14y ago
It seems pretty clear that something was broken with the old system, before the creation of the CAFC. Plaintiffs were only winning 20-40% of the time. Considering that 1. the plaintiff is starting with a rebuttal presumption of patent validity, 2. it is the plaintiff who makes the decision whether or not to sue, which should weed out a lot of weak cases, and 3. this was before software patents, back when examiners actually had a deep understanding of the art in the fields whose patents they examined, so there was not a flood of bad patents being issues, I'd expect in a fair system for plaintiffs to win the majority of cases.
- codeka 14y ago
  > Plaintiffs were only winning 20-40% of the time. They were winning 20-40% of appeals, it doesn't say how often they won overall. It's hard to say whether 20-40% of appeals is a good number in an absolute sense (percentage of successful appeals is a more useful number) but in this case, it's only to compare with the 50-80% figure that came after the change, and I'd think that is pretty significant.
  - tzs 14y ago
    Good point. I missed that this was just appeals.
- problemdomain 14y ago
  1. That's like saying a law against speeding is valid, so the defendant is probably guilty of speeding. That a patent is valid says absolutely nothing about whether a defendant is infringing it. 2. Sorry, all I can do is laugh. Do you actually follow the US legal system? 3. Again, whether a patent is bad or not has nothing to do with whether it's infringed in any particular case.
  - rayiner 14y ago
    > 2. Sorry, all I can do is laugh. Do you actually follow the US legal system? Do you follow it deeper than the propaganda about frivolous lawsuits? > 3. Again, whether a patent is bad or not has nothing to do with whether it's infringed in any particular case. He's not talking about particular cases, he's talking about aggregate statistics. A system with a lot of weak patents, where people might independently come up with the same design because it's obvious, is going to have a lot more infringement than a system with only strong patents, where infringement is likely to come from only purposefully copying a design.
josephlord 14y ago
Uh oh. I understand Europe is planning on introducing a specialist patent court. That could go similarly badly as it is even more likely to be full of patent specialists.
cletus 14y ago
This is pretty interesting stuff. For example, I wasn't aware of the "jurisdiction race" that happened when new patent were issued. It puts into context some of the changes at least. The most depressing, even alarming, part of this is: > Instead, patent appeals are exclusively heard in DC by judges who live and breathe patent law. Unsurprisingly, this leads to insular thinking. For example, when we interviewed Paul Michel, who served as the Federal Circuit's chief judge from 2004 to 2010, he didn't seem to understand the problems facing small software companies. "If software is less dependent on patents, fine then. Let software use patents less as they choose," he said, seemingly oblivious to the fact that software companies don't have the option to opt out of patent troll lawsuits. Seriously? The court seems to have no idea of the Pandora's Box they've opened by loosening the "obviousness" constraints.
- api 14y ago
  Sure they do. This Pandora's Box contains cash, for lawyers.
  - rayiner 14y ago
    The cynical answer is not always the right answer. You should hear the CAFC judges speak. They genuinely think that the patent system is good for innovation. Most engineers I know, outside the software bubble, feel the same way. They think in terms of patents regulating unfair business practices in the competition between Dow Chemical and DuPont or Lockheed and Raytheon. They think it's a Bad Thing (TM) if they work on a new chemical for 10 years, getting it through expensive and time-consuming testing and regulatory approval, only to have a competitor be able to copy it the minute they release a successful product. They don't necessarily have insight into the dynamics of how patents function in the software space, but that doesn't mean their actions are just a cynical money-grab.
    - api 14y ago
      So you're saying they just don't understand the software industry? I can believe that. I do see a lot of cynical money grabs though, so it's an easy thing to believe.
enraged_camel 14y ago
I know this is (re)opening a can of worms, but the interesting part about this article is that it very clearly highlights why it would have been a terrible idea for the recent Apple vs. Samsung trial to be decided by a jury of patent specialists instead of laymen.
- modeless 14y ago
  It seems that the trouble in Apple vs. Samsung was that one of the jurors thought he was a patent specialist instead of a layman.
  - enraged_camel 14y ago
    Perhaps. I've heard the argument that because he was a patent holder himself, he was able to convince a significant portion of the jury that he was an expert in all things patent-related, and this swayed their decision in favor of Apple. But that's just the rumor machine. We'll see what the outcome of the appeals process is in a few years.
    - modeless 14y ago
      That part of it is not really a rumor; he gave several interviews where he explained in detail exactly how he influenced the jury. All that remains is to see whether or not those statements actually invalidate the verdict. But in case it's not clear, I completely agree with you: a panel of patent experts would have been even worse. The problem in this case was the judge trusting this guy when he said he wouldn't let his previous experience as a patent holder color his judgement.
- problemdomain 14y ago
  I wouldn't want a jury of "patent specialists", I want an inquisitorial panel including professional judges, laypersons, and technical (not "patent") specialists with the power to actively seek truth out in the open, and I want it for all cases. The adversarial system has overstayed its welcome.
- 14y ago
api 14y ago
Yet another wonderful legacy of Ronald Reagan.
- marshray 14y ago
  You can be sure this wasn't his idea.
  - lubujackson 14y ago
    Few things were.
- bmnbug 14y ago
  May I suggest a remedial civics course? Your ire should be directed at Tip O'Neill and Bob Byrd. All laws originate in the Legislative branch. "And so Congress combined the CCPA with the Court of Claims (which handled lawsuits against the federal government) to create this new court, the United States Court of Appeals for the Federal Circuit."
brlewis 14y ago
I'm glad not to be the only one saying the Federal Circuit defied Supreme Court precedent in State Street. I do think we're a long way from a Diehr/Flook/Benson standard for software patents, though. The Supreme Court is being very careful these days to say nothing beyond answers to the questions brought to them. You won't see any long rants against lower courts like in Diehr.

163 points by macchina 14y ago

The second page is really good stuff. Particularly the part about Supreme Court intervention and the need for a specialized patent appeals court. I think the Supreme Court patent jurisprudence over the last several years has been extremely good, and I think the need for a specialized patent appeals court is questionable at best. People tend to think we need specialized patent judges who can understand the technology, but I think this is misguided. Judges are experts at quickly learning the 10% of any field they need to make a decision. Technology isn't any more complicated and in need of specialized judges than say a dispute involving complex insurance or securities instrument. At the same time, generalist judges would be much better at weighing the larger issues of fairness involved in a case. There is a real lack of balance in the Federal Circuit and I think that's partly because Federal Circuit judges don't field other kinds of cases.

macchina 14y ago
The article talks about the idea of the Federal Circuit "overruling" the Supreme Court by gradually chipping away at the principles behind SC precedent. Interestingly, similar charges have been made of the DC Circuit with regard to the Supreme Court's national security jurisprudence, especially Boumediene v. Bush.[1] (The US Court of Appeals for the DC Circuit has essentially become the US terrorism court — because among other things — they are the only court allowed to hear Guantanamo detainee appeals. But DC Circuit judges do hear normal cases as well.) So it seems to me the problem with CAFC is not just in its "specialist" judges but also in allowing the law in one field to develop almost exclusively in one court. This also makes Supreme Court supervision much more difficult. 1.http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1838402 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1838402
- rayiner 14y ago
  That's a very interesting point. Thanks for the article.

ChuckMcM 14y ago

Clearly a bit biased but the argument that patent law should rise up through the circuits like any other branch of law is a good one. That is something actionable you could ask your representative to 'fix' (note to would be lobbiests, the best results are when you whine for something achievable, this wins on that basis it "makes sense" (which should patent law be special now) and its within their purview.

tzs 14y ago

It seems pretty clear that something was broken with the old system, before the creation of the CAFC. Plaintiffs were only winning 20-40% of the time. Considering that 1. the plaintiff is starting with a rebuttal presumption of patent validity, 2. it is the plaintiff who makes the decision whether or not to sue, which should weed out a lot of weak cases, and 3. this was before software patents, back when examiners actually had a deep understanding of the art in the fields whose patents they examined, so there was not a flood of bad patents being issues, I'd expect in a fair system for plaintiffs to win the majority of cases.

codeka 14y ago
> Plaintiffs were only winning 20-40% of the time. They were winning 20-40% of appeals, it doesn't say how often they won overall. It's hard to say whether 20-40% of appeals is a good number in an absolute sense (percentage of successful appeals is a more useful number) but in this case, it's only to compare with the 50-80% figure that came after the change, and I'd think that is pretty significant.
- tzs 14y ago
  Good point. I missed that this was just appeals.
problemdomain 14y ago
1. That's like saying a law against speeding is valid, so the defendant is probably guilty of speeding. That a patent is valid says absolutely nothing about whether a defendant is infringing it. 2. Sorry, all I can do is laugh. Do you actually follow the US legal system? 3. Again, whether a patent is bad or not has nothing to do with whether it's infringed in any particular case.
- rayiner 14y ago
  > 2. Sorry, all I can do is laugh. Do you actually follow the US legal system? Do you follow it deeper than the propaganda about frivolous lawsuits? > 3. Again, whether a patent is bad or not has nothing to do with whether it's infringed in any particular case. He's not talking about particular cases, he's talking about aggregate statistics. A system with a lot of weak patents, where people might independently come up with the same design because it's obvious, is going to have a lot more infringement than a system with only strong patents, where infringement is likely to come from only purposefully copying a design.

josephlord 14y ago

Uh oh. I understand Europe is planning on introducing a specialist patent court. That could go similarly badly as it is even more likely to be full of patent specialists.

cletus 14y ago

This is pretty interesting stuff. For example, I wasn't aware of the "jurisdiction race" that happened when new patent were issued. It puts into context some of the changes at least. The most depressing, even alarming, part of this is: > Instead, patent appeals are exclusively heard in DC by judges who live and breathe patent law. Unsurprisingly, this leads to insular thinking. For example, when we interviewed Paul Michel, who served as the Federal Circuit's chief judge from 2004 to 2010, he didn't seem to understand the problems facing small software companies. "If software is less dependent on patents, fine then. Let software use patents less as they choose," he said, seemingly oblivious to the fact that software companies don't have the option to opt out of patent troll lawsuits. Seriously? The court seems to have no idea of the Pandora's Box they've opened by loosening the "obviousness" constraints.

api 14y ago
Sure they do. This Pandora's Box contains cash, for lawyers.
- rayiner 14y ago
  The cynical answer is not always the right answer. You should hear the CAFC judges speak. They genuinely think that the patent system is good for innovation. Most engineers I know, outside the software bubble, feel the same way. They think in terms of patents regulating unfair business practices in the competition between Dow Chemical and DuPont or Lockheed and Raytheon. They think it's a Bad Thing (TM) if they work on a new chemical for 10 years, getting it through expensive and time-consuming testing and regulatory approval, only to have a competitor be able to copy it the minute they release a successful product. They don't necessarily have insight into the dynamics of how patents function in the software space, but that doesn't mean their actions are just a cynical money-grab.
  - api 14y ago
    So you're saying they just don't understand the software industry? I can believe that. I do see a lot of cynical money grabs though, so it's an easy thing to believe.

enraged_camel 14y ago

I know this is (re)opening a can of worms, but the interesting part about this article is that it very clearly highlights why it would have been a terrible idea for the recent Apple vs. Samsung trial to be decided by a jury of patent specialists instead of laymen.

modeless 14y ago
It seems that the trouble in Apple vs. Samsung was that one of the jurors thought he was a patent specialist instead of a layman.
- enraged_camel 14y ago
  Perhaps. I've heard the argument that because he was a patent holder himself, he was able to convince a significant portion of the jury that he was an expert in all things patent-related, and this swayed their decision in favor of Apple. But that's just the rumor machine. We'll see what the outcome of the appeals process is in a few years.
  - modeless 14y ago
    That part of it is not really a rumor; he gave several interviews where he explained in detail exactly how he influenced the jury. All that remains is to see whether or not those statements actually invalidate the verdict. But in case it's not clear, I completely agree with you: a panel of patent experts would have been even worse. The problem in this case was the judge trusting this guy when he said he wouldn't let his previous experience as a patent holder color his judgement.
problemdomain 14y ago
I wouldn't want a jury of "patent specialists", I want an inquisitorial panel including professional judges, laypersons, and technical (not "patent") specialists with the power to actively seek truth out in the open, and I want it for all cases. The adversarial system has overstayed its welcome.
14y ago

api 14y ago

Yet another wonderful legacy of Ronald Reagan.

marshray 14y ago
You can be sure this wasn't his idea.
- lubujackson 14y ago
  Few things were.
bmnbug 14y ago
May I suggest a remedial civics course? Your ire should be directed at Tip O'Neill and Bob Byrd. All laws originate in the Legislative branch. "And so Congress combined the CCPA with the Court of Claims (which handled lawsuits against the federal government) to create this new court, the United States Court of Appeals for the Federal Circuit."

brlewis 14y ago

I'm glad not to be the only one saying the Federal Circuit defied Supreme Court precedent in State Street. I do think we're a long way from a Diehr/Flook/Benson standard for software patents, though. The Supreme Court is being very careful these days to say nothing beyond answers to the questions brought to them. You won't see any long rants against lower courts like in Diehr.