8 ms·

Make legal documents subject to software patent laws

64 points by Garbage 14y ago

shawn-butler 14y ago
This is not a bad idea, but I would add that I think a better idea is that abuse of the patent system (resubmitting patents over and over with slight modifications to gain approval [0], non-producing entities engaging in jurisdiction-swapping [1], etc) need to be confronted immediately by judges or individuals with the spectre of sanction and disbarment by local and state bar associations boards of professional conduct (EDIT: I am generally against an activist judiciary but, this is certainly an area where such activism has sufficient merit). This can happen right now. You don't have to wait for political reform or constitutional amendments. Disbar the people who are responsible for abuse. Then let the system work. Bar associations feel local pressure. They respond to it immediately, on the the timescale of months, not years. Remove the financial incentive to file obviously frivolous[2] suits, and the problem will go away. If the trolls can't find anyone reputable to represent them, we all win. Just my $0.02. [0] http://www.google.com/patents/US8086604 http://www.google.com/patents/US8086604 [1] http://en.wikipedia.org/wiki/Forum_shopping http://en.wikipedia.org/wiki/Forum_shopping [2] http://en.wikipedia.org/wiki/Jack_Thompson_(activist)#Disbarment_proceedings http://en.wikipedia.org/wiki/Jack_Thompson_(activist)#Disbar...
- grabeh 14y ago
  Why blame lawyers for the instructions and aims of their clients in engaging in litigation? It is up to the courts to judge the legitimacy of a claim on its merits, not bar associations to determine that someone is unfit to practice purely on the basis that they represent a client with an apparently legitimate claim.
  - shawn-butler 14y ago
    Because lawyers are allegedly trained, ethical professionals that are granted a unique license in every jurisdiction to exclude nonprofessionals? A nearly universal aspect of most bar associations (ABA, state, local) is a statement of professional conduct requiring members provide competent representation. Are you saying that these NPE patent portfolio trolls have legitimate claims and that nearly everyone else is wrong or are you saying that patent/IP lawyers lack the competency to recognize patents that are junk prima facia and advise accordingly? In case you are not following recent events, most of the activity of NPE trolls happens outside the courts because the attorneys involved know full well their paper is worthless inside. So they target precisely those firms who cannot afford protracted legal proceedings and avoid those that can. This is not professional conduct and if it is, the profession has the wrong name. Their clients will not sue for malpractice because they are benefitting. Judicial sanctions are not an option for activity that occurs outside of any proceeding. Where is the control and check on such clearly unprofessional behavior, the only defense for which is that it generates income, if not the body responsible for policing its own conduct?
    - rayiner 14y ago
      The standard for claims is that they must have some basis in law and fact or on some non-trivial argument for changing the law. Most troll claims are well inside that boundary, given duly issued patents and non-spurious allegations of technical infringement. Just because you think the troll claims are clearly invalid under existing law does not make them so. The law is arguably far too broad, but if there is a duly issued patent, thats all the "basis" in the law that is necessary. If that results in a lot of what you consider trivial cases, the fault is the law.
      - shawn-butler 14y ago
        Let's say I have a patent for rotating the image displayed on a homepage [0]. You are trying with a straight face to tell us that there is any valid belief that this is an enforceable patent other than the incomprehensible fact that it was granted? And further, if you do provide competent representation and advise me that this patent is basically null if it gets challenged, present me with the obvious prior art, etc then you believe (again with a straight face) that it is ethical behavior to, on my behalf, threaten another party unless payment is made with legal action representing what you know to be false to that party and more importantly having no legal basis for a positive outcome in any legal proceeding? There is always room for improving statutes as no crafted law is a perfect instrument. It is clear to everyone by now that the simple existence of a duly issued patent should not be considered on its own as a valid basis for litigation. And, for the most part abuses are taking place outside of judicial purview or being forum shopped to certain favorable jurisdictions. I take issue with the ethical lapses having no consequence, and am advocating for self-correcting behavior by the very body that has that task. [0] http://1.usa.gov/dR6UBy http://1.usa.gov/dR6UBy
- monochromatic 14y ago
  Disbar people for acting within the laws and regulations? Yeah, lemme know how that goes... Also, I'm not sure what you're trying to show with [0].
  - shawn-butler 14y ago
    They are not providing competent representation which is the very basis on which bar associations are founded. I understand your cynicism but can not share it and also have any hope of a reasonable outcome to this game being played. If the rules cannot change and they want to continue to milk the cow without killing it, they need to reel in the bad actors. They have the authority and moral imperative to do so. The patent cited in [0] was filed in 2000, rejected and resubmitted multiple times with minor modifications over the course of 5 years until they found an examiner to accept it. It was a not insignificant patent and has been used recently in a very important case every reader of hn followed. This application was a continuation of U.S. application Ser. No. 11/000,413, filed on Dec. 1, 2004, which was a continuation of U.S. application Ser. No. 09/478,009, filed on Jan. 5, 2000, now U.S. Pat. No. 6,847,959, issued Jan. 25, 2005. Sorry it wasn't clear, there is no good way I know to "diff" or show you the history provided by the uspto interface. There may be better secondary sources, I know at least one nytimes journalist was asking questions about it.
    - monochromatic 14y ago
      What's incompetent about that representation? And also, there's nothing at all unusual about filing continuations. I'm not gonna try to dig into the file history on my phone, but I'd be surprised if there's anything at all remarkable about this case--amendments, continuations, and (presumably) RCEs are absolutely par for the course.
joshuaheard 14y ago
I'm a lawyer, but not an AI engineer. It seems to me that we do not have an AI good enough to analyze, that is apply a given set of rules to a unique situation. As far as I know, the current state of the art of AI is merely algorithmic pattern recognition. This would not be good enough to replace a lawyer. Also, some quibbles about the article. Anything one writes, such as a contract or blog post, is automatically granted a copyright. Also, the blogger seems to think contracts are some sort of public reference like a statute. They are not. While you can find form books (private), contracts are drafted by lawyers for their clients and are private property. The author's one interesting idea is a software-type patent on contract clauses. If you could patent, say a non-compete clause, well, that would certainly transform the legal world. I don't think it is feasible, though, and shows the folly of software patents.
- worldsayshi 14y ago
  "This would not be good enough to replace a lawyer." And proof checkers doesn't replace mathematicians. But the existence of proof checkers puts (a subset of) mathematics into the software realm. I feel that it is probably inevitable that at some point we will have computer assisted legal analysis.
  - pmccool 14y ago
    Michael Kirby, formerly of the High Court of Australia, etc etc would seem to agree with you, and he has for some time. Here's a speech of his touching on this very topic from the '80s. http://www.michaelkirby.com.au/images/stories/speeches/1980s/vol16/642-First_Aus_Artificial_Intelligence_Congress_-_Legal_and_Ethical_Issues_in_AI.pdf http://www.michaelkirby.com.au/images/stories/speeches/1980s...
  - igurari 14y ago
    These are very good points. Computer assisted legal analysis would be a big win in terms of cost, efficiency and accuracy. And it would allow lawyers to spend more of their time being productive in highly creative and impactful ways. For example, if a lawyer knows which arguments have the highest probability of success, she can focus on framing the facts of her case in the way that best supports those arguments. A system that does this would not replace lawyers - but would assist them in some very important tasks - and would be a big step forward. I also believe these technologies are inevitable, and (plug) at http://www.judicata.com http://www.judicata.com we are working to make that vision a reality.
Peaker 14y ago
Software is not patentable because it is software. Software is patentable by specifying the entire machine, cpu, memory and software that is used to achieve the purpose.
- worldsayshi 14y ago
  Put the neuroscientists on the task of specifying lawyers pronto.
grabeh 14y ago
If protection was granted for contract clauses, firstly it would be far easier to search for existing clauses that were protected, and secondly, it would be far easier to draft around a protected clause. Also, in the patenting process in the first place, it would be far easier to provide examples of prior art therefore making any attempt to patent clauses far harder. Finally, advancements in contract drafting take place at a much slower pace than technological advancements in other areas, again, suggesting to me that many supposedly novel clauses would be obvious in light of prior art. Still, an interesting idea to think about all the same.
- jacques_chester 14y ago
  Novelty in contract drafting is a bad idea. You want contracts to be built out of known, well-understood primitives. So when a court case settles the exact meaning of a phrase, that phrase may pass into common circulation amongst lawyers. That's how "legalese" arises.
  - grabeh 14y ago
    Yes, it would be nice to work in a world where everything was standardised and obviously there are attempts in certain areas to standardise documentation to allow quicker negotiations and deal flow (ISDA documentation for example). However, there will always be contracts which demand a greater degree of specificity due to the unusual surrounding circumstances, and certain resulting clauses could be considered to be novel. Of course, if no one drafted novel clauses, there wouldn't be any work for the litigation lawyers when there's a disagreement over the clause's ambiguity!
    - jacques_chester 14y ago
      If you want to know which came first -- the chicken or the egg -- expect to be billed in 6-minute increments.
smogzer 14y ago
Why not model laws as UML patterns ?
- jacques_chester 14y ago
  Law students can usually find flowcharts to explain the common caes. But the world is sufficiently complex that there is always a corner case that hasn't been found yet. You still need humans.
- arethuza 14y ago
  I've never been convinced that UML works terribly well for modelling software let alone something like legal concepts.
jacques_chester 14y ago
Oh man. You know how annoying Star Trek is to physicists? Or how Hackers was a riot because of how hilariously wrong it got ... well ... everything that matters? Yeah. So. That's what this reads like to anyone who's studied the Common law. I used to think expert systems might be useful for legal situations. And then ... I studied law. You know why law is complex? Because of problem domain -- everything humans do -- is complex. Right now a judge is being asked to give a ruling on a particular combination of facts that has never arisen before, ever, in the history of the human race. It probably belongs to a fuzzy set of existing situations canvassed by cases raised in the past thousand years. But it might not. There is always novelty in the law.
- rmc 14y ago
  Or how Hackers was a riot because of how hilariously wrong it got ... well ... everything that matters? Compared to some TV shows, Hackers is accurate. I give you 2 people typing on the same keyboard to try to fight off a hacker. http://www.youtube.com/watch?v=u8qgehH3kEQ http://www.youtube.com/watch?v=u8qgehH3kEQ
  - jacques_chester 14y ago
    Though there was a lot of "who can type fastest" when, at the climax of Hackers, they... (big breath) HACKED THE GIBSON
- hooande 14y ago
  > It probably belongs to a fuzzy set of existing situations canvassed by cases raised in the past thousand years. Computers own those. Don't write off expert systems because you can't see how you would implement it right now. It would take an unprecedented effort (like apollo mission sized), but we have the means to build legal expert systems available to us today. It's not being done because it wouldn't be immediately profitable, in part due to the bias you expressed. For every judge with a truly unique case on their docket right now, there are a thousand other judges with wholly predictable and commonplace cases. The law is incredibly complex, but 80% cases don't require any one-of-a-kind judgement. Humans are actually highly predicable in large numbers (just ask Nate Silver). The idea of using the technology behind IBM's Watson is Hackers level laughable (though I think that was chosen because it's well known). The right tools for this job do exist, the billion dollar problem is getting the right input.
monochromatic 14y ago
Methods that can be executed by a human, instead of requiring a machine, are generally considered "mental processes" and unpatentable. Yet another brilliant idea from someone who wants to fix a system he does not understand.
BenoitEssiambre 14y ago
To credit previous self, the idea came to me while in a discussion here on HN: http://news.ycombinator.com/item?id=4815628 http://news.ycombinator.com/item?id=4815628 Seems to have gone full circle HN -> g+ -> reddit -> HN I posted it on g+ and reddit but not here since I had already discussed it in the comments. my 15 minutes of fame I guess :-)

64 points by Garbage 14y ago

This is not a bad idea, but I would add that I think a better idea is that abuse of the patent system (resubmitting patents over and over with slight modifications to gain approval [0], non-producing entities engaging in jurisdiction-swapping [1], etc) need to be confronted immediately by judges or individuals with the spectre of sanction and disbarment by local and state bar associations boards of professional conduct (EDIT: I am generally against an activist judiciary but, this is certainly an area where such activism has sufficient merit). This can happen right now. You don't have to wait for political reform or constitutional amendments. Disbar the people who are responsible for abuse. Then let the system work. Bar associations feel local pressure. They respond to it immediately, on the the timescale of months, not years. Remove the financial incentive to file obviously frivolous[2] suits, and the problem will go away. If the trolls can't find anyone reputable to represent them, we all win. Just my $0.02. [0] http://www.google.com/patents/US8086604 http://www.google.com/patents/US8086604 [1] http://en.wikipedia.org/wiki/Forum_shopping http://en.wikipedia.org/wiki/Forum_shopping [2] http://en.wikipedia.org/wiki/Jack_Thompson_(activist)#Disbarment_proceedings http://en.wikipedia.org/wiki/Jack_Thompson_(activist)#Disbar...

grabeh 14y ago
Why blame lawyers for the instructions and aims of their clients in engaging in litigation? It is up to the courts to judge the legitimacy of a claim on its merits, not bar associations to determine that someone is unfit to practice purely on the basis that they represent a client with an apparently legitimate claim.
- shawn-butler 14y ago
  Because lawyers are allegedly trained, ethical professionals that are granted a unique license in every jurisdiction to exclude nonprofessionals? A nearly universal aspect of most bar associations (ABA, state, local) is a statement of professional conduct requiring members provide competent representation. Are you saying that these NPE patent portfolio trolls have legitimate claims and that nearly everyone else is wrong or are you saying that patent/IP lawyers lack the competency to recognize patents that are junk prima facia and advise accordingly? In case you are not following recent events, most of the activity of NPE trolls happens outside the courts because the attorneys involved know full well their paper is worthless inside. So they target precisely those firms who cannot afford protracted legal proceedings and avoid those that can. This is not professional conduct and if it is, the profession has the wrong name. Their clients will not sue for malpractice because they are benefitting. Judicial sanctions are not an option for activity that occurs outside of any proceeding. Where is the control and check on such clearly unprofessional behavior, the only defense for which is that it generates income, if not the body responsible for policing its own conduct?
  - rayiner 14y ago
    The standard for claims is that they must have some basis in law and fact or on some non-trivial argument for changing the law. Most troll claims are well inside that boundary, given duly issued patents and non-spurious allegations of technical infringement. Just because you think the troll claims are clearly invalid under existing law does not make them so. The law is arguably far too broad, but if there is a duly issued patent, thats all the "basis" in the law that is necessary. If that results in a lot of what you consider trivial cases, the fault is the law.
    - shawn-butler 14y ago
      Let's say I have a patent for rotating the image displayed on a homepage [0]. You are trying with a straight face to tell us that there is any valid belief that this is an enforceable patent other than the incomprehensible fact that it was granted? And further, if you do provide competent representation and advise me that this patent is basically null if it gets challenged, present me with the obvious prior art, etc then you believe (again with a straight face) that it is ethical behavior to, on my behalf, threaten another party unless payment is made with legal action representing what you know to be false to that party and more importantly having no legal basis for a positive outcome in any legal proceeding? There is always room for improving statutes as no crafted law is a perfect instrument. It is clear to everyone by now that the simple existence of a duly issued patent should not be considered on its own as a valid basis for litigation. And, for the most part abuses are taking place outside of judicial purview or being forum shopped to certain favorable jurisdictions. I take issue with the ethical lapses having no consequence, and am advocating for self-correcting behavior by the very body that has that task. [0] http://1.usa.gov/dR6UBy http://1.usa.gov/dR6UBy
monochromatic 14y ago
Disbar people for acting within the laws and regulations? Yeah, lemme know how that goes... Also, I'm not sure what you're trying to show with [0].
- shawn-butler 14y ago
  They are not providing competent representation which is the very basis on which bar associations are founded. I understand your cynicism but can not share it and also have any hope of a reasonable outcome to this game being played. If the rules cannot change and they want to continue to milk the cow without killing it, they need to reel in the bad actors. They have the authority and moral imperative to do so. The patent cited in [0] was filed in 2000, rejected and resubmitted multiple times with minor modifications over the course of 5 years until they found an examiner to accept it. It was a not insignificant patent and has been used recently in a very important case every reader of hn followed. This application was a continuation of U.S. application Ser. No. 11/000,413, filed on Dec. 1, 2004, which was a continuation of U.S. application Ser. No. 09/478,009, filed on Jan. 5, 2000, now U.S. Pat. No. 6,847,959, issued Jan. 25, 2005. Sorry it wasn't clear, there is no good way I know to "diff" or show you the history provided by the uspto interface. There may be better secondary sources, I know at least one nytimes journalist was asking questions about it.
  - monochromatic 14y ago
    What's incompetent about that representation? And also, there's nothing at all unusual about filing continuations. I'm not gonna try to dig into the file history on my phone, but I'd be surprised if there's anything at all remarkable about this case--amendments, continuations, and (presumably) RCEs are absolutely par for the course.

joshuaheard 14y ago

I'm a lawyer, but not an AI engineer. It seems to me that we do not have an AI good enough to analyze, that is apply a given set of rules to a unique situation. As far as I know, the current state of the art of AI is merely algorithmic pattern recognition. This would not be good enough to replace a lawyer. Also, some quibbles about the article. Anything one writes, such as a contract or blog post, is automatically granted a copyright. Also, the blogger seems to think contracts are some sort of public reference like a statute. They are not. While you can find form books (private), contracts are drafted by lawyers for their clients and are private property. The author's one interesting idea is a software-type patent on contract clauses. If you could patent, say a non-compete clause, well, that would certainly transform the legal world. I don't think it is feasible, though, and shows the folly of software patents.

worldsayshi 14y ago
"This would not be good enough to replace a lawyer." And proof checkers doesn't replace mathematicians. But the existence of proof checkers puts (a subset of) mathematics into the software realm. I feel that it is probably inevitable that at some point we will have computer assisted legal analysis.
- pmccool 14y ago
  Michael Kirby, formerly of the High Court of Australia, etc etc would seem to agree with you, and he has for some time. Here's a speech of his touching on this very topic from the '80s. http://www.michaelkirby.com.au/images/stories/speeches/1980s/vol16/642-First_Aus_Artificial_Intelligence_Congress_-_Legal_and_Ethical_Issues_in_AI.pdf http://www.michaelkirby.com.au/images/stories/speeches/1980s...
- igurari 14y ago
  These are very good points. Computer assisted legal analysis would be a big win in terms of cost, efficiency and accuracy. And it would allow lawyers to spend more of their time being productive in highly creative and impactful ways. For example, if a lawyer knows which arguments have the highest probability of success, she can focus on framing the facts of her case in the way that best supports those arguments. A system that does this would not replace lawyers - but would assist them in some very important tasks - and would be a big step forward. I also believe these technologies are inevitable, and (plug) at http://www.judicata.com http://www.judicata.com we are working to make that vision a reality.

Peaker 14y ago

Software is not patentable because it is software. Software is patentable by specifying the entire machine, cpu, memory and software that is used to achieve the purpose.

worldsayshi 14y ago
Put the neuroscientists on the task of specifying lawyers pronto.

grabeh 14y ago

If protection was granted for contract clauses, firstly it would be far easier to search for existing clauses that were protected, and secondly, it would be far easier to draft around a protected clause. Also, in the patenting process in the first place, it would be far easier to provide examples of prior art therefore making any attempt to patent clauses far harder. Finally, advancements in contract drafting take place at a much slower pace than technological advancements in other areas, again, suggesting to me that many supposedly novel clauses would be obvious in light of prior art. Still, an interesting idea to think about all the same.

jacques_chester 14y ago
Novelty in contract drafting is a bad idea. You want contracts to be built out of known, well-understood primitives. So when a court case settles the exact meaning of a phrase, that phrase may pass into common circulation amongst lawyers. That's how "legalese" arises.
- grabeh 14y ago
  Yes, it would be nice to work in a world where everything was standardised and obviously there are attempts in certain areas to standardise documentation to allow quicker negotiations and deal flow (ISDA documentation for example). However, there will always be contracts which demand a greater degree of specificity due to the unusual surrounding circumstances, and certain resulting clauses could be considered to be novel. Of course, if no one drafted novel clauses, there wouldn't be any work for the litigation lawyers when there's a disagreement over the clause's ambiguity!
  - jacques_chester 14y ago
    If you want to know which came first -- the chicken or the egg -- expect to be billed in 6-minute increments.

smogzer 14y ago

Why not model laws as UML patterns ?

jacques_chester 14y ago
Law students can usually find flowcharts to explain the common caes. But the world is sufficiently complex that there is always a corner case that hasn't been found yet. You still need humans.
arethuza 14y ago
I've never been convinced that UML works terribly well for modelling software let alone something like legal concepts.

jacques_chester 14y ago

Oh man. You know how annoying Star Trek is to physicists? Or how Hackers was a riot because of how hilariously wrong it got ... well ... everything that matters? Yeah. So. That's what this reads like to anyone who's studied the Common law. I used to think expert systems might be useful for legal situations. And then ... I studied law. You know why law is complex? Because of problem domain -- everything humans do -- is complex. Right now a judge is being asked to give a ruling on a particular combination of facts that has never arisen before, ever, in the history of the human race. It probably belongs to a fuzzy set of existing situations canvassed by cases raised in the past thousand years. But it might not. There is always novelty in the law.

rmc 14y ago
Or how Hackers was a riot because of how hilariously wrong it got ... well ... everything that matters? Compared to some TV shows, Hackers is accurate. I give you 2 people typing on the same keyboard to try to fight off a hacker. http://www.youtube.com/watch?v=u8qgehH3kEQ http://www.youtube.com/watch?v=u8qgehH3kEQ
- jacques_chester 14y ago
  Though there was a lot of "who can type fastest" when, at the climax of Hackers, they... (big breath) HACKED THE GIBSON
hooande 14y ago
> It probably belongs to a fuzzy set of existing situations canvassed by cases raised in the past thousand years. Computers own those. Don't write off expert systems because you can't see how you would implement it right now. It would take an unprecedented effort (like apollo mission sized), but we have the means to build legal expert systems available to us today. It's not being done because it wouldn't be immediately profitable, in part due to the bias you expressed. For every judge with a truly unique case on their docket right now, there are a thousand other judges with wholly predictable and commonplace cases. The law is incredibly complex, but 80% cases don't require any one-of-a-kind judgement. Humans are actually highly predicable in large numbers (just ask Nate Silver). The idea of using the technology behind IBM's Watson is Hackers level laughable (though I think that was chosen because it's well known). The right tools for this job do exist, the billion dollar problem is getting the right input.

monochromatic 14y ago

Methods that can be executed by a human, instead of requiring a machine, are generally considered "mental processes" and unpatentable. Yet another brilliant idea from someone who wants to fix a system he does not understand.

BenoitEssiambre 14y ago

To credit previous self, the idea came to me while in a discussion here on HN: http://news.ycombinator.com/item?id=4815628 http://news.ycombinator.com/item?id=4815628 Seems to have gone full circle HN -> g+ -> reddit -> HN I posted it on g+ and reddit but not here since I had already discussed it in the comments. my 15 minutes of fame I guess :-)