East Texas judge throws out 168 patent cases
arstechnica.com
arstechnica.com
That's how they have been pitched to programmers and the American people.
However, after having worked in the patent industry for a few years now, I can tell you software patents are really just a mechanism to redistribute the wealth of engineers to lawyers. Period. That's the end result. Nothing more.
I wish this was some sort of exaggeration. But it isn't in my opinion.
And it's not like they are going to pay us more if they stop filing patents. In fact, many firms pay a bonus if your work results in a patent (or even a patent application.) Clearly they see some value in them, and they have reasons to.
And this is true of all patents, btw, not just in software.
This is actually not true at all. The cost here isn't in the filing of the patents; it's in the nightmarish patent system that results in absurd litigation and related expenses. If the patent system were reformed to avoid this kind of expense, the company would have lower operating costs, which would be distributed in some way. While it's possible I suppose that 100% of those savings would be collected by shareholders as profit, it's much more likely that, like with anything else, the cost reductions would simply contribute to the size of the total pie, which would be split among owners and employees in proportions probably roughly similar to how it's split today.
And after all that PR and propaganda from the patent bar programmers are firmly and solidly against the existence of any patents that read on software. Too many are able to think logically about the consequences to be scammed.
Congress, on the other hand, is not so hard to fool. Neither is the Supreme Court. That's why the dirge of lies continues. The patent bar is still going on about how patents will eventually stop harming and start promoting innovation in software.
Meanwhile patent lawyers are the highest earners in the profession, don't have to deal with criminals and the indigent, and expand in numbers every year by exponential parasitism while the software industry lives in fear and hides innovative techniques out of fear.
That's why most music artists make little money. It has nothing to do with what % of a production the music artist is responsible for. After production there's also marketing and distribution. The same is for many engineered products.
In some cases, probably true. But when big companies are duking it out, it's not the "wealth of engineers" that's getting fought over. It's wealth that would have been passed on to shareholders, directors, officers, etc.
Normally, you pick the one that you live in, so that you don't have to travel. But for patents, many people pick East Texas, since they're more likely to get the verdict they want there.
Or perhaps better actually where your attorneys are located?
No. What you describe in the first sentence is basically what the old rule was, pre-1990 (28 USC 1400). The current rule is much worse (28 USC 1391).
Basically, you have the effect right, but the description of the pre-reqs wrong :)
The key difference is in whether or not you must have an established place of business for a suit to be brought against you in a jurisdiction.
Basically, the federal circuit's view of 28 USC 1391 is very different than 28 USC 1400.
If you look at cases prior to VE Holdings, they view 28 USC 1400, and in particular, the definition of "resides", very narrowly (to principal place of business/corp hq).
If you look at VE Holdings, and their view on 28 USC 1391, you can see it greatly expands the definition of "resides" to include essentially everywhere.
Patents are governed by a specific jurisdictional statute that made this crazy.
The history is detailed well here: http://patentlyo.com/patent/2007/04/patent_jurisdic.html
THe TL;DR is:
It used to just be: Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business. 28 USC 1400
Then in 1990, Congress added: For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. 28 USC 1391
This eviscerated the previous limitations.
Personal jurisdiction is a little tricky to explain in a single post, but suffice to say, for internet companies most likely the target of trolls, they will generally be found to be subject to personal jurisdiction everywhere in the US.
For example a lawyer looking to file a class action lawsuit often factors the venue that they will wind up in into their choice of a lead plaintiff.
But the notoriously corrupt patent appeals court -- the CAFC -- in its first decade of existence, abolished 28 USC §1400 by fiat.
The patent trolls went into business in East Texas soon after.
How is it even possible to sue somebody for something you can't show that they did?
In the US there is something called rule 11 that prevents you from filing bad faith lawsuits, but it is a pretty low bar. IMO if this is strengthened by, say, requiring detailed claim charts up front, it can go a long way in deterring nuisance lawsuits.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1597919
ED Texas did get a bad rap for being plaintiff-friendly early on, but that didn't last long at all, as the data shows. These days it seems to be favored for being a relatively fast docket and having judges with more patent-expertise.
Uh, neither of those are really true, the fast docket is especially wrong.
In fact, there are a host of reasons why the Eastern District is popular (your source is wildly out of date due to changes since 2010). There's a reason that 44% of all patent cases for the first half of 2015 were filed in the district[1]. Juries do indeed rule for defendants there a decent amount of the time, but the rules tend to be very plaintiff-friendly in the sense that they make it very expensive to go to court at all, making settling seem all the more attractive (which just so happened to be the exact business plan of the article's subject, eDekka LLC :) Lots of sources linked in [1]
[1] https://www.eff.org/deeplinks/2015/08/deep-dive-why-we-need-...
Even then the differences in statistics on rulings I believe can be explained by the relative sophistication of the plaintiffs who file there -- mostly patent trolls. Since trolls typically assert patents they acquire, they will go for "better" patents, and they can simply choose different patents to acquire when something like Alice comes along. Practicing entities have no such luxury and are stuck with the patents they were issued.
Lemley (the author I linked previously) and others actually have studies on these things. I'll have to dig them back up.
Oh yes: http://www.houstonchronicle.com/business/article/Patent-case...
> Even then the differences in statistics on rulings I believe can be explained by the relative sophistication of the plaintiffs who file there -- mostly patent trolls
Absolutely trolls love it there. No clue what that has to do with your original point, though: the venue is absolutely advantageous to the plaintiffs and the rocket docket is a thing of the past.
[1]http://www.ipnav.com/blog/ptab-trolls-going-after-patent-own...
The legal system still seem to be broken, because it should offer a large reward to the "PTAB troll" to be paid by the patent owner so that instead of settling they would go through and invalidate the patent, while still getting money from the patent owner, who would also lose the money from the (non-)infringer.
Sounds like an opportunity to me. They might have existing licensing revenue and they are going to be wondering what to do if patent trolling ain't the name of their game anymore.
Are you sure? Litigation isn't always expensive if you're doing it in-house.
Work costs money, sure, but I'm skeptical of 'millions of dollars.'
It costs millions on the defense side. The plaintiffs don't have any documents to discover and the attorneys are usually the partners in the scam, so it's almost free to them. That's the whole point of trolling in East Texas: the court rules make it even more expensive to be a defendant and cheaper to be a plaintiff.
Which is kind of the point of the "educating everyone" statement, as I understand it.
What's so difficult to believe about people being able to learn through experience? If any of these EDTX judges got reversed on appeal, that would have been a learning experience ^_^.
And dragonwriter's understanding is correct.
Enough fast ones get pulled and they start catching on. That's who's being educated: the courts and legal community.
Of course it would be great if the patent office had made better decisions in the first place, but that ship sailed long ago.
Let's call it what it is
Patents in all fields clearly slow down innovation by allowing the holder to slow down or stop derivative works. The common counter to removing patents altogether is big pharmacy. I don't know how much sympathy I can have for big pharmaceuticals either with how much they get away with: even with unpatented drugs we see anti-competitive behavior with companies like Turing. Clearly the innovation is profitable enough that funding it publicly and then reaping the benefit publicly shouldn't be a problem, right?
The other objection is that it promotes secrets over open innovation, but I'm not sure that is too valid either. The current status quo gags profitable utilization of research for 20 years. Surely there's an acceptable alternative.
This theory is not supported by empirical evidence. There is plenty of evidence showing how industries became more innovative with the introduction of patent protection. This theory may however apply to industries where innovation is incremental and where claim boundaries are hard to define, like software, but evidence is hard to come by and only now are we seeing some empirical studies on the matter.
Is it really the same? I struggled over this a bit and I think I agree that the mentality is the same, but disagree on the nature of that mentality.
Moneyed interests want patents because it is easy for moneyed interests to acquire patents and more difficult for others. Such interests do not need to go to war. They only need speak softly and show their patents. Their hegemony is not threatened, even if they must fight amongst themselves.
Likewise, guns. Make it impossible for people to acquire guns and those with the guns remain in control. There is no need to go to war when those who would disagree with you are under your control because they cannot defend themselves.
Is this a good way of defining when a patent is invalid? Isn't everything (i.e.: all computations) technically tasks that could be performed by humans alone given enough time?
I never claimed to be patent lawyer.
Only Judge Scalia noticed the idiocy in time to stop those specific examples from being binding precedent, though the principle still is. [1]
That's the level of understanding you can expect from the courts.
0 http://www.supremecourt.gov/opinions/09pdf/08-964.pdf
1 http://boingboing.net/2015/07/08/tom-the-dancing-bug-judge-s...
Many modern (software related) patents are bringing no advances at all, but are simply claim-pitching of corporations like in the gold-rush times.
I read through the claims. This patent should not have been granted. You can go back to the 1980's and find relevant prior art.
Are they playing "dumb" because of self preservation? In other words, if the patent office became really strict and only a handful of patents were granted every year they'd only need a fraction of the people, infrastructure and organization now in place. People would lose their jobs.
And so, if you want to keep your job, you issue patents like we are in the middle of a new scientific renaissance. More patents means more money being pumped into the system which, in turn, means you get to keep your job, your benefits and an amazing lifetime pension you did not pay for. You know you the patents you are letting through are crap but all you care about is your financial well being. You htink "Let the courts and those rich fucks sort it out" and move on.
Is it possible that the feedback loop at the patent office is such that volume, rather than quality, is what's remunerated? Never mind that this destroys innovation and causes huge financial losses across all kinds of businesses.
The fitness function might be such that optimization delivers exactly what we do not want as a nation but what the patent office, as an isolated organism, needs for survival.