Newegg trial: Crypto legend takes the stand, goes for knockout patent punch

http://arstechnica.com/tech-policy/2013/11/newegg-trial-crypto-legend-diffie-takes-the-stand-to-knock-out-patent/

by Suraj-Sun • 13 years ago

290 87 13 years ago

arstechnica.com

cperciva• 13 years ago

Lawyers can be a pain at times, but sometimes they set up punchlines perfectly:

"We've heard a good bit in this courtroom about public key encryption," said Albright. "Are you familiar with that?

"Yes, I am," said Diffie, in what surely qualified as the biggest understatement of the trial.

"And how is it that you're familiar with public key encryption?"

"I invented it."

qubitsam• 13 years ago

Reminds me of this: https://news.ycombinator.com/item?id=35083

RyanMcGreal• 13 years ago

Which reminds me of this: http://www.rogerebert.com/reviews/deuce-bigalow-european-gig...

brudgers• 13 years ago

"How many years of experience do you have with public key cryptography?"

"All of them."

protomyth2• 13 years ago

Its one of those moments like the Korn Shell Story http://c2.com/cgi/wiki?KornShellStory

Natsu4• 13 years ago

Newegg's lawyer is supurb. Even factoring Marshall, TX into account, I'd give them decent odds.

hga6• 13 years ago

I've been reading lately that the East Texas "Rocket Docket" now has so much experience with patent lawsuits that it's no longer easy for undeserving plaintiffs to win.

angersock• 13 years ago

Scummier was the attack on his credibility:

That's not what Fenster did. He went on the attack.

"You never completed a master's degree, correct?" he asked Diffie.

"That's correct," said Diffie.

"Other than the honorary degree, you don't have an earned doctorate or Ph.D. correct?"

"That is correct," said Diffie.

And even though he taught a few courses, "you never had a real professorship, correct?" asked Fenster.

"I never had a full-time academic job, no."

ryansan• 13 years ago

Make sure you read the discussions below on the validity of using ad hominem arguments to undermine witness credibility. Hard to watch/read when the witness in question is an idol of yours, but still a valid approach in the court room.

surge• 13 years ago

What's sad is, and maybe lost on the jury, is it actually increases his credibility, he's so accomplished in his field those with the earned degrees said "we view you as a peer or recognize you as a pioneer of our field, just take the degree". He is so smart or dedicated he reached that status without going to a class. Usually that means you've gone above and beyond what a traditional student has accomplished.

SkyMarshal• 13 years ago

Maybe a missed opportunity, but using Bill Gates as a counter-example of the necessity of formal education in CS could have neutralized that line of attack.

tomrod• 13 years ago

Just out of curiosity, how much trouble would he be in if he'd answered:

"I never had a full-time academic job, no, but have consulted with a number of PhD students as a knowledge resource in cryptography."

Is overanswering a bad thing in a court setting? It seems like lawyers always fish for information they can slant; full disclosure on a topic would seem to correct that failing?

Ar-Curunir• 13 years ago

Whitfield Diffie looks a lot like Keanu Reeves.

Also weren't most of the questions that the TQP lawyer asked ad hominem? I understand that he asked those to discredit Diffie, but they still seemed very disrespectful. Almost anyone in the crypto field would back up Diffie's reputation, so that was a rather stupid move on the part of the TQP lawyer IMO.

tehwebguy• 13 years ago

Sounds like it, but unlike HN arguments ad hominem is allowed in court. It seems that discrediting witnesses is a pillar of our court system.

icebraining• 13 years ago

It's not really the same. What the lawyer was trying to do wasn't disprove the argument but the facts, which Diffie provided based on his position as an expert. It's perfectly legitimate to do the latter, and really no different than when someone criticizes a source linked in some HN post.

throwawaykf7• 13 years ago

I thought more like Donald Sutherland.

Unfortunately, the jury is very much not in the crypto field. As far as they know, he's just some guy who claimed to invent something, and the plaintiffs are making the most of it.

Similarly, aside from the ad homs about educational pedigree, the line about not being the "real" inventor is pretty critical. The point is "secret" (i.e. unpublished) inventions don't count as prior art in invalidity arguments. So even if you accept that GCHQ invented public key crypto, Diffie's patent is still valid. I imagine IP Nav wants to argue that private demos of Lotus Notes don't count as prior art.

rayiner2• 13 years ago

Also weren't most of the questions that the TQP lawyer asked ad hominem?

Ad hominem is when you attack a logical argument based on the characteristics of the person making it. It's a logical fallacy because the logical argument is something that can be evaluated itself using logical reasoning.

But an expert witness does not present a logical argument that the jury can evaluate on its own merits. An expert witness presents an opinion and explains the evidence on which he relied to form that opinion. Facts that credit or discredit the witness help the jury determine whether to believe the opinion.

Incidentally, this is why the Federal Rules of Evidence are a better basis for internet arguments than the logical fallacies. These are rarely a matter of reasoning, but rather a matter of assessing the credibility of opinions. When you argue with someone about global warming, you're not presenting logical arguments that can be evaluated standing alone. You're arguing over which experts have more credible opinions and which sets of evidence you believe.

redthrowaway• 13 years ago

weren't most of the questions that the TQP lawyer asked ad hominem?

Attacking the credentials of a supposed expert witness is a perfectly legitimate strategy in court. He wouldn't really be representing his client well if he didn't try to discredit Diffie.

pera• 13 years ago

Does anyone knows some case where patents were used for the good of humankind?

tokenadult2• 13 years ago

A litigated court case? I'll have to think about that for a while. But the question you ask, are patents good for humankind in general, is yes. Transnational comparisons make it easy to see over the course of history that people invent more in countries that have secure rights for inventors. Patents can be overbroad (that's often what we talk about here on Hacker News) and patents can be for "prior art" already known to other workers (and that's what often gets litigated), but in general patents are a helpful public policy, along with copyrights (I think current United States copyright terms are much too long) and trademarks. Protection of legal rights in intellectual property encourages creative people to produce more intellectual property.

AFTER EDIT TO REPLY TO A QUESTION:

I was asked for a written account of transnational comparisons of intellectual property law and its effect on innovation. Here is one.

http://www.cambridge.org/us/academic/subjects/law/intellectu...

I have to go to a conference today for work, but perhaps other participants will join in with other comments on the international legal comparison issue. I have lived in two countries (the United States and Taiwan), and I lived in Taiwan before and after it developed intellectual property law enforcement, and it is plain to me that intellectual property rights encourage innovation (as contrasted with mere copying).

jeswin2• 13 years ago

Do you have some evidence that inventions are a direct result of patents as opposed to socio-economic factors? I can see inventors appreciating recognition, but our system offers no other means of appreciation than patents. Patents are an example of degenerate capitalism, taking away your freedom.

queeerkopf• 13 years ago

I'd like to read more in depth about these transnational comparisons on the effects of patent systems. Can you please point me towards a source which serves as a good starting point for further reading?

chx• 13 years ago

One data point is not much but my uncle actually invented a new kind of sprinkler and patented it -- without patenting he couldn't seek a buyer cos anyone who got the plans could just go and manufacture it but this way he could enter into discussions without fear. So yes, patent law as it was originally intended is very useful.

There is a "little" difference, however, between these patent trolls and the guy tinkering sprinklers in his basement.

DavidWanjiru• 13 years ago

The car safety belt was invented by Volvo, but either they didn't patent it, or patented it but allowed other car makers to use it at little or no cost. I don't have a source, but I've read something along those lines online.

qbrass• 13 years ago

While Volvo didn't invent the first car safety belt, they invented the 3 point safety belt that everybody uses today. Lap belts would help keep you in the car, but the addition of a sash belt kept your face off the 50's era steel dash, and made seatbelts worth using.

Volvo patented it in the 50's and made it freely available for use.

lmm2• 13 years ago

That's like saying "does anyone know a case where trespassing laws were used for the good of humankind"; lawsuits are necessarily the bad outcome, we can't be sure how many times the law caused a good thing. There are certainly valuable things for the good of humankind that were patented, and that were produced by corporate (or even university) labs where obtaining patents was certainly a factor in the company's decision to fund that lab (taking computer industry examples I think of the nokia 3G tech, or RSA or LZW).

dreamdu5t2• 13 years ago

It goes both ways. We can't determine how many good things never happened because of patents.

hga6• 13 years ago

It's important to remember that this is not a question of patents or nothing; if you can't protect your inventions with patents, that require a thorough disclosure of how it works, then you might use other methods, such as trade secret law, which lasts quasi-forever and by definition has no disclosure.

Obviously you can't trade secret law in a variety of contexts, but if you're making something physical and can hide the secret details inside a factory....

(Of course, I'm not talking about software patents, which are entirely bogus ... although many encryption patents seem to have a lot stronger basis for validity. In particular think of RSA, which seems so obvious in retrospect ... but Diffie, Hellman and Merkle didn't think of it, and used a system they knew was weak so that they could demonstrate a proof of concept.)

dreamdu5t2• 13 years ago

Who determines what is good for humankind? Ugh.

I am so sick of every political argument in the US being reduced to some kind of technocratic majoritarianism.

moocowduckquack5• 13 years ago

Me. I've been making a list. I've got as far as 'kittens'.

moocowduckquack5• 13 years ago

Because it forces the inventor to publish, they are a lot better for society than the previous protectionist default, which was relying on keeping trade secrets.

Part of what is interesting to me about open source is that it provides a system of development that is pretty competitive with the established protectionist models, so I am watching the open source hardware scene very closely.

To me the question isn't whether patents are good or bad in some absolute term, it is more whether they are becoming obsolete for many situations.

walid2• 13 years ago

Patents were not allowed to exist for the good of humankind. They were supposed to be ways to expose smart ideas and then we may use them all much later. More importantly if patents were to help mankind, they should be public domain.

moocowduckquack5• 13 years ago

I thought I'd go and have a looksee who Dr. Rhyne, the opposing expert witness, is and I found this:

Dr. Rhyne, who will lead the three-day Boot Camp, is a broadly experienced expert witness who has provided in-courtroom testimony in over three dozen federal patent cases and ITC hearings over the past thirty years. He will be joined by legal and technical staff members from Patent Calls, as well as selected guest lecturers.

Carefully designed to be a program that will be “Conducted by Experts for Experts,” Boot Camp participants will learn that serving as an expert witness is a unique and productive way to use their technical knowledge. “By their nature, patent trials are highly charged competitive environments for companies and attorneys who have a great deal at stake,” Dr. Rhyne has explained, “and an expert witness is often a key part of that process. I am pleased to have this opportunity to share my experience as a witness with others.”

Patent Calls’ Patent Expert Witness Boot Camp will provide an opportunity for individuals who have some patent expert witness experience – or who are aspiring to become an expert witness – to benefit from both intensive instruction and interactive training that are intended to increase their effectiveness and appeal to potential clients. Participants will receive a highly integrated combination of classroom instruction, team exercises, and simulated examination and testimony that will serve to challenge them and thus maximize their learning experiences.

http://www.businesswire.com/news/home/20101115007716/en/Pate...

Which contrasts nicely with the questions put to Diffie about his status as an expert witness:

Fenster noted that while Diffie was testifying in court for the first time, he had other expert witness work lined up. His rate varies from $500 to $600 per hour, and it's $700 for testifying in court.

"Your agent helps you to get expert witness jobs, is that right?"

"Actually, no," said Diffie. "My agent handles the arrangements with my clients. All of the jobs have come in directly through me."

rurounijones• 13 years ago

Wow, talk about strawman attacks by the lawyer "You do not have a PHd, you are not an academic" etc.

I am surprised he was allowed to get away with it.

tokenadult2• 13 years ago

As a comment posted to another participant before my comment here to you pointed out, attacking a witness's statements on the basis that the witness may be biased, or may not have a basis of knowledge for what the witness said, is all standard procedure in a court case. The rules of trials allow the finder of fact to be informed of why not to believe everything that is said during the trial. It's up to each side in the litigation to follow the rules of evidence (a THICK book, interpreted by thousands of court cases) to suggest why some evidence presented at trial is better than other evidence and more useful for truth-seeking.

adam-a• 13 years ago

A "strawman" is where you set up a flimsy counter point to your own argument and then defeat it. http://en.wikipedia.org/wiki/Straw_man

You might call it "ad hominem" as it is an attempt to discredit Diffie, although that usually describes a logical fallacy - the personal attack doesn't affect the validity of the argument. In this context the main reason for having Diffie there is because of his status and achievements, so it's a reasonable counter to try to discredit him.

I would say that kind of attack is not very fair, and a little bit dishonest, but not a flaw of reasoning.

ryanjshaw• 13 years ago

It insinuates that the witness is unqualified to make the statements he's making, using logic of the form "if you don't have a master's degree you likely can't be an expert in this field."

I would have loved to response to ""You never completed a master's degree, correct?" he asked Diffie." with "Just like Bill Gates and Steve Jobs, no I don't have a masters degree" (well apparently Bill eventually got one...). I assume the judge would be unhappy with this, which strikes me as unfair - surely I can defend my reputation?

DanBC3• 13 years ago

The adversarial system is designed to allow these kind of attacks.

"You don't know what you're talking about" is easily countered by "I invented these crypto systems; these have had no serious challenges in the X years since invented; I've defeated these crypto systems; I've published these papers in these peer reviewed journals; I have these honorary awards from these universities." etc etc.

It's a lot more troubling in other cases.

Tyrannosaurs• 13 years ago

Goes to the credibility of the witness your honour...

Reality is that the jury are only going to have a relatively limited understanding of the detail of these things so they're relying on expert witnesses. Part of that is whether that person has any right to call themselves an expert in the first place.

moocowduckquack5• 13 years ago

Logic is not required of argument in court. In fact certain types of logic, like bayesian reasoning, are sometimes explicitly excluded. http://understandinguncertainty.org/court-appeal-bans-bayesi...

SwellJoe3• 13 years ago

Finally, we're starting to see some people stand up to trolls, and judges and juries are beginning to understand what these people are.

I don't follow patent troll cases too closely because they make me so angry, especially given that so many of them end up with the troll winning, or at least going right back to doing what they were doing after losing in court in a specific instance, but not losing the patent (or they just continue attacking people with other patents in their portfolio in the rare event the patent is invalidated). So, when I see a positive story...and this one looks pretty positive to me.

I worry vaguely that the judge or jury might not recognize the vast difference between Diffie and some unknown asshole who makes his living testifying in court as an "expert witness" in patent cases.

tzs• 13 years ago

I worry vaguely that the judge or jury might not recognize the vast difference between Diffie and some unknown asshole who makes his living testifying in court as an "expert witness" in patent cases

The "unknown asshole" is an IEEE life fellow and former board member, with a long successful career in research, industry, and teaching in computer engineering, and authored a widely used award winning textbook on digital design.

His profile is pretty typical for expert witnesses. Quite a large fraction of them are people who are retired (Rhyne retired in 1998) after having had a very successful and distinguished career in engineering or science, usually including research, industry, and academia.

Expert witness gigs are a nice way to pay for a new boat or RV without a lot of work. (One of the experts at the trial I was involved in was paying for a Tesla from a couple expert witness jobs). Many become registered patent agents, and then they can testify as both experts on the engineering aspects of the patent and on the patent aspects (e.g., prior art, infringement, interpretation of the specification, and such).

The workload is actually pretty light, compared to what their load was likely like before they retired. Basically, they write a report that analyzes the patent and the alleged infringement and explains why the patent is valid and why it is indeed infringed, get deposed, and testify about the report.

SwellJoe3• 13 years ago

OK, so he's not entirely unknown, and not incompetent. Still an asshole. Working for patent trolls is a genuinely destructive and unethical thing for an engineer to do, even if it pays for a nice boat.

moocowduckquack5• 13 years ago

He's now an expert at being an expert witness and chairs an expert witness boot camp to train people to be expert witnesses specifically for patent trials.

meritt• 13 years ago

TL;DR - He's not unknown but he's definitely an asshole.

Natsu4• 13 years ago

I used to belong to the IEEE, I've not been overly impressed with them of late, especially some of their pro-patent nonsense, like when they were saying that software isn't math. They then went on to describe what is essentially the successor function while claiming it's only meaningful in programming and not math... Anyhow, as you point out, expert witnesses are valued largely by their credentials, so at least that guy has done something worthwhile in tech, which is more than I can say for the plaintiff in this case.

tzakrajs• 13 years ago

Read the book "Crypto" if you haven't already and want more background on how public key encryption got started and how it got to where it is today. It was suggested previously on HN, and I am so glad I gave it a read.

BorisMelnik• 13 years ago

is Whitfield wearing a cape?

malaporte• 13 years ago

Given the beard, a wizard staff would be more appropriate. Gandalf fighting against software patents! Good tidings indeed!

wnevets• 13 years ago

TQP should be forced to pay back all the money they stole with this silly patent

ChuckMcM• 13 years ago

Awesome stuff, I really hope they nail this one dead.

That said, I'm pleased that we've finally gotten a number of jurists now who are better able to navigate the complexity of the Internet, programming, and 'process patents' when they involve Internet programming. I also find it remarkable that the Trolls have trained up a specific jurisdiction by over using it and are now at a disadvantage there. No doubt they will start looking for somewhere else to file soon but the effect will be the same as opinions and case law flow out of the east Texas courts.

I am perhaps an optimist, but I believe we have turned the corner on stupid patents. And more and more of them will be brought down and fewer of them will be of use to trolls. With luck in another 10 years people will be able to talk about the 'bad old days' of patent trolls as being behind them.

throwawaykf7• 13 years ago

I think we've turned a corner too. I see fewer and fewer ridiculous patents. One of the reasons why, I speculate, is the advent of Google search :-)

georgemcbay3• 13 years ago

Citation needed on there being less ridiculous patents being filed, because I doubt it.

As far as Google Search goes, standard advice for any tech company to their employees is don't go searching for patents, just submit potentially patent-able ideas to legal. This is because if someone has a patent on something and you violate it and they can prove that you knew about the patent via subpoenaed records then you owe them three times as much as you would otherwise, so the more ignorant you are of existing patents the better.

And on the legal side of things, IP lawyers just search the USPTO records directly, not through Google Search.

walid2• 13 years ago

The funny thing is that the lawyer tries to discredit Diffie by trying to present prior art. He was trying to shift focus away from the case and into attacking the witness by presenting prior art to the prior art. Kind of a moot move.

georgemcbay3• 13 years ago

I was a juror on a (6 week long) product liability lawsuit this past summer, and it came out that despite the fact that an expert witness for the plaintiff asked to see punch biopsies to check for neuropathy in the supposedly injured leg with a control sample from the other leg, the plaintiff's lawyers only sent him the punch biopsy from the leg claimed to be injured. When this came out the plaintiff's lawyers claimed they did this because they wanted it to a be a "blind study". I almost wtfed out of my chair.

It was pretty clear to anyone with half a brain that the plaintiff had no actual case and the issue he was suffering from was related to preexisting degenerative arthritis and nothing to do with the product that supposedly injured his knee, but sadly based on nothing more than emotional manipulation by his (very good) lawyers of the jury he came very close to winning (ultimately it was a hung jury, but the majority of votes were in plaintiff's favor).

Sadly, people are right to doubt the fact that many of the jurors have the context to value Diffie's testimony over the plaintiff's expert witnesses in this case.

Newegg trial: Crypto legend takes the stand, goes for knockout patent punch

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