Patent Trolls Are Mortally Wounded

http://www.slate.com/articles/technology/future_tense/2014/06/alice_v_cls_bank_supreme_court_gets_software_patent_ruling_right.html

by pron • 12 years ago

76 32 12 years ago

slate.com

higherpurpose• 12 years ago

It seems to me that in almost all cases, the "specialty" Courts tend to rule on the side of what they were meant to "judge". If it's a "patent Court", then they will almost always rule in favor of the patents. If it's a spying Court (FISC), then they will rule in favor of the spying, and become a rubberstamp Court for surveillance requests.

So maybe we should get rid of specialty Courts, no?

nickff• 12 years ago

It is rather unfair to lump the "FISC" system in with all the courts, because it is more of a board, panel, committee, in camera hearing, or administrative proceeding. "FISC" lacks the essential qualities of a court, as the defendant has no right to appear, they are not represented by counsel, charges are not presented, evidence is not disclosed, and there is no right to trial by a jury of the accused's peers.[1]

[1] https://www.aclu.org/files/assets/order_granting_governments...

jessaustin• 12 years ago

Yes it's dreadfully unfair. Little children are crying. And yet GP's observation that "specialty" Courts tend to rule on the side of what they were meant to "judge" is true, without consideration for particular procedural differences.

tzs• 12 years ago

Part of this is due to the fact the courts like CAFC are appeals courts.

By the time CAFC sees a patent, a lot of experts have already looked at it and said it is good. These include:

1. The patent attorney or agent who advised the inventor during the application process.

2. One or more examiners at the patent office.

3. When the patent owner was considering his lawsuit, he would have hired patent attorneys, non-attorney patent experts, and subject matter experts to evaluate the patent and the alleged infringing product, in order to determine if it was worth going through with a lawsuit.

It would be surprising if patents that get through this gauntlet did not tend to be approved by the CAFC.

throwawaykf052• 12 years ago

Actually, the meme that CAFC tends to rule too much on the side of patent owners is more of an urban legend based on grumblings of some patent lawyers, which was then picked up and spread by certain "journalists" (hi, binarybits!) and regularly parroted by others, like TFA. But this is belied by the actual data -- see this older post of mine: https://news.ycombinator.com/item?id=7849386 It cites a number of empirical studies and statistics that shows that the Supreme Court and the District Courts agree with the Federal Circuit way more often than not.

Further, if you look at the EU, patent cases there AFAIK are handled by specialty courts, and they tend to result in much cheaper, faster and more consistent resolutions. This seems to be because they are decided entirely by the judges, who not only are already intimately knowledgeable about the laws they are dealing with, but most of whom seem to have technical backgrounds. This means no messing around with juries and expert witnesses. (More knowledgeable people, please correct me.)

Based on the evidence from the EU, I actually think the solution to the litigation problem is the opposite of what you propose: move the role of the CAFC much lower down the patent litigation chain, i.e. all patent cases go directly to the Federal Circuit or some equivalent thereof. Not only could this have the same benefits as the EU system, it would neutralize the whole game of forum-shopping.

rbehrends2• 12 years ago

Further, if you look at the EU, patent cases there AFAIK are handled by specialty courts, and they tend to result in much cheaper, faster and more consistent resolutions.

The "cheaper and faster" aspect is more likely to be an artifact of civil law systems vs. adversarial systems (especially the absence of a jury in civil cases), since it is not specific to patent cases. And it's very much debatable whether they are more consistent.

Also, European specialty courts are just as prone to regulatory capture. See, e.g., the fascinating holding of the EPO Board in "Auction Method/Hitachi": "The Board is aware that its comparatively broad interpretation of the term 'invention' in Article 52(1) EPC will include activities which are so familiar that their technical character tends to be overlooked, such as the act of writing using pen and paper." A holding that flew in the face of decades of European patent jurisprudence and was a fairly blatant end run around the requirements of article 52 of the EPC.

WildUtah2• 12 years ago

I know the author didn't write the headline, but trolls are not "mortally wounded;" they're barely scratched. This ruling will have little effect. The Supreme court declined to offer any guidance about what "abstract" means, so courts will go on making it up according to the feelings of the presiding judge.

Legislation like the Innovation Act that could be brought back next year would be much more important.

stcredzero• 12 years ago

so courts will go on making it up according to the feelings of the presiding judge

Keep in mind: a lawyer tried to attack the crypto credibility of Whit Diffie!

http://arstechnica.com/tech-policy/2013/11/newegg-trial-cryp...

For some reason patent attorneys wonder why so many of us programmers regard the legalese surreality around patents as a Kafkaesque morass.

WildUtah2• 12 years ago

Keep in mind: a lawyer tried to attack the crypto credibility of Whit Diffie!

Remember, that lawyer who attacked Diffie won the case! The jury decided that the Patent Office knew better than Whitfield Diffie about encryption and awarded millions to the guy who claimed to invent asymmetric transport cryptography in the 1990s.

radley• 12 years ago

Most of the worst software patents do exactly what the court said they couldn’t: present an idea (like hedging risk, one-click shopping, etc.) and say that, because it’s executed on a computer, or a generic piece of hardware, it is not just an idea anymore.

Does this mean Amazon will lose their one-click patent?

chris_wot6• 12 years ago

Hopefully. And refund all the money people lost due to being unable to implement the idea and fight it in court.

zmmmmm3• 12 years ago

I'm still scratching my head trying to understand what principle drives the distinction between an abstract idea and a non-abstract one. It seems to me that the very definition of a computer program is the description of an idea - in pedantic detail, yes, but it will always come back to an idea. If that is true, and if, as many say, it is only a matter of time before "software eats the world", is there anything left that will be patentable?

The court decision this week seems to entangle two things; the fact that the abstract idea was not novel, and the fact that it was abstract. It is not clear to me: had the abstract idea itself been truly novel - would that have changed the outcome? A lot of people are saying this ruling is against patenting abstract ideas but it seems to me that it is mostly about the fact that directly transcribing an idea to a computer doesn't ADD concreteness (or novelty?), NOT a judgement about the veracity of the original idea. Would love to hear any insight about this.

chris_wot6• 12 years ago

Well, that's the fundamental problem of patents. They restrict the free dissemination of ideas. In a free market, the idea of a patent is fundamentally flawed. Soft patents are the reductio ad absurdum of the whole concept.

tadfisher2• 12 years ago

You have it completely backward. Patents were introduced because it is in society's interest to disseminate ideas as widely as possible. This is why patented IP reverts to the public domain after a certain period.

Were it not for patents, inventors would resort to the only tool at their disposal to limit free implementation of their ideas: the trade secret.

raverbashing• 12 years ago

I think it's something like this:

Abstract idea: something to clean your windshields in case of rain/snow

Non-abstract (concrete) idea: a device composed by a wipe, mechanically connected to a motor that cleans the windshield with an oscillating motion

zmmmmm3• 12 years ago

Thanks, that does help.

It almost seems then that written into the definition of non-abstractness is that the idea could be implemented multiple ways. In other words, If there was no possible other way to make a windscreen wiper then the abstract idea itself would be sufficient to specify the actual implementation (or the implementation can be derived as an inevitable logical consequence of the abstract idea). But if we can postulate a different way (perhaps less optimal) then we can say there is an abstractness about the original idea.

I still have trouble with this though because the point where you define the abstractness seems a bit arbitrary. There are many ways to make a wiper blade, a rotating mechanism, a motor, etc. So aren't those abstract too? If the patent specifies it exactly then it is truly concrete, but then it's too specific - competitor can just use a slightly different material.

And then at some point we invent a generically programmable army of nanobots that swarm to accomplish any physical task using a goal oriented AI type language ... and now merely specifying the idea IS the implementation for ANY task.

svachalek• 12 years ago

I am not a lawyer but the way I understand it is, in the old days you could get a patent for a machine that separates cotton fibers (a complete and specific design for creating something that does this), but not for "a machine that separates cotton fibers" (the very concept of such a thing, and all possible implementations of said concept, accompanied by a crude description of what such a thing might look like, given a sufficiently smart compiler).

What it sounds like to me is that the court is leaving open the possibility of software patents that are more like the former case, although the vast majority are more like the latter.

x0054• 12 years ago

I think the distinction would be practical implementation. For instance:

Abstract: A way of making video files smaller by compressing it using various mathematical procedures. Patentable: A way of making a video file smaller by braking it down to keyframes and than ......... {detailed description of one specific way of doing it}....

I think that's the line the supreme court is drawing.

rbehrends2• 12 years ago

My (non-expert) impression is that this ties back into the machine-or-transformation test [1], especially given how Diamond v. Diehr was cited as an example of a patent-eligible invention, notwithstanding its software elements.

The point of Alice Corp. would then be to remove the loophole of merely writing up an abstract process as a computer program running on a generic computer; the process would have to be linked to specific hardware characteristics to pass the test (obvious examples would be an MRI scanner, anti-lock brakes, or device drivers).

[1] http://en.wikipedia.org/wiki/Machine-or-transformation_test

pistle• 12 years ago

I'm disappointed that the post's title was not literal. Don't DO that.

Patent Trolls Are Mortally Wounded

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