First, we kill all the patent lawyers | Hacker News Reader

First, we kill all the patent lawyers

computerworlduk.com

37 pointsdreemteem11 comments

A bit drastic, but it's a start ;)

Seriously, even the author wrote that only as 'bait', but there is a subtle point to it, which is that at a gut level these people must know that they are acting against our common best interest by exploiting legal loopholes. As long as we commend lawyers on exploiting the letter of the law while raping its spirit there will be no end to this.

In the end it boils down to the fact that words are inadequate vehicles to express concepts in, we can do all we want, thoughts and concepts are fluid entities, they can not be expressed in words without losing something. It's like digitization always is a 'lossy' process.

So by using piles of words ('legalese') we can try to limit the number of gaps and the size of the gaps between the intention and the description of the intention, given enough time there will always be new holes found.

It's the basis of biblical interpretation and it is the basis of the enormous increase in legislation and jurisprudence, and why we need things like a supreme court.

The patent system is old by technological standards, it has become a liability and it stifles innovation more than that it promotes it.

If we have to go back to a world without disclosure and of trade secrets then so be it, I predict that that in the longer term will also be found 'wanting' as loopholes in those constructs will be discovered, but in the short to mid term (say another century?) we're better off without them.

The title is a Shakespeare quote/paraphrase which, amusingly, many lawyers interpret as being a resounding endorsment of the role of lawyers in society:

http://www.spectacle.org/797/finkel.html

The supreme court recently had to have emails vs text messages explained to them (and then they still didn't get it).

http://lawyersusaonline.com/dcdicta/2010/04/19/technical-dif...

When it comes to technology, we're pretty much not going to get an intelligent ruling.

I've said it before and I'll say it again: I see nothing wrong with the questions the judges asked. Something wasn't clear to them, so they asked for an explanation. That seems perfectly fine to me. It certainly doesn't mean they're necessarily going to make a bad ruling.

Actually I find it beautiful in a philosophical way. That the Supreme Court of Justice tries to find the difference between email and text messages by simple questions is in essence, the direct application of the Socratic method. It seems odd that a 55 year old person does not know what texting is and how it works despite a thousand "My BFF Jill" ads. However, if you think justice should be blind and uninfluenced by external factors, lack of intimate knowledge or rather attachment to particular fields or experiences is a good thing.

I don't know about that. If a justice is to make judgements that make sense the participants in a society then it would help if they themselves are aware of the status quo of that society. Otherwise their judgments may be right in some philosophical sense but will alienate people from the law in a way that does tremendous damage.

Judgments should not only be 'right' they should make 'sense', and some of the language in the decisions indicates that not all of them are in touch with the world as we know it to the extent that they should be.

Having clerked for a federal judge and spent my career appearing before them at various levels, I would say it is inaccurate to portray Supreme Court justices in particular as being out of touch even if they did grow up in an era where all the modern gadgetry did not exist.

The justices have astonishingly strong powers of analytical ability, as any attorney who has ever argued a case before them will attest (just imagine what it would be like if you had to prepare to field questions that might come at you from thousands of different angles from some of the smartest people around on a very complex set of legal questions such as those touching the fundamentals of the patent system, its history, its potential application to a huge range of inventions, etc. - "daunting" is a good word to describe the prospect of the challenge you would face).

Each justice is supported by law clerks drawn from the ranks of the best schools and who are easily within the top 1% of the law graduates in the nation (e.g., of the Harvard Law Review caliber of graduate). Much of the legwork of sorting through the myriad briefs filed in a complex case such as Bilski is done by the clerks. The average age of these clerks is probably something like 25, meaning that they themselves grew up with all the modern technology and are quite familiar with all the normal user experiences associated with it. As part of deciding a case, the justices not only have their clerks sort through the briefs and summarize their import in memos but also talk extensively with them about the key issues involved - all of this long before oral argument.

In a case such as Bilski, you also get the most impressive range of legal briefs imaginable. For a sampling, see this listing, with links to the briefs themselves (http://www.patentlyo.com/patent/2009/08/briefs-in-bilski.htm...). These are submitted not only by the parties themselves but by dozens of industry participants, trade groups, and other interested "friend-of-the-court" parties (such as EFF) - the piece I link to above lists 44 of them and that is not a complete list.

The Supreme Court also has the benefit of being able to wait until a case matures to the point where it feels the time is right to address certain important issues. It does this by having the discretionary authority to grant what is known as a writ of certiorari in deciding whether or not to hear a case. This means that an issue can kick around in the federal courts for years or even decades, with decisions going all over the board on it, and only when the Court decides it is ready for some definitive determination does it grant this writ and take up the issue at the highest level. This is what happened with the question of "what is the legitimate scope of patentable subject matter" in the Bilski case.

Thus, you have a tremendous wind-up leading to this sort of decision, with some very smart people prepping the issues along the way for submission to justices whose analytical strengths are sometimes even legendary (e.g., Scalia). Whatever result they come up with, I'm pretty sure it won't be some naive one based on failure to understand what an email is or some such thing. We may disagree with it on substance but I'm confident it will be something that is carefully through and fully up to speed concerning whatever counts in technology as well as law.

Good point.

One of the major issues with patent law is that it is stuck into the U.S. legal system and ultimately governed at the highest level by the Supreme Court who are technologically incapable. They do not have a scientific background, they are not even other patent attorneys, they are often people who have no idea what is going on and ruling on these issues.

It is the same with the legislature, where they are making laws related to technology without understanding the implications (e.g. net neutrality).

What we really need is some system whereby those who are technically capable of making good legal decisions about the subject matter in question are the ones doing so instead of those who cannot (or choose not) to grasp it.

Until we reach some reasonable way of doing so, we are going to be stuck with things like patent law in its current incarnation which shouldn't really have any applicability in most cases when it comes to software.

The only way to change the state of the patent system is by legislation; the system operates in the only way it can given the current laws. Judges do their best to interpret these law. Lawyers execute the will of their clients. "Inventors" seek to protect their inventions. Patent inspectors attempt the impossible task of evaluating the uniqueness of claims.

It is possible that the Court will change its opinion on the patentability of the ideas that concern us, but it is unlikely that they will not just rock but overturn the software patent boat. Even if we as individuals dislike software patents, wealthy companies clearly see them as an investment worth protecting. If you care, you need to speak out, and in a way that says it is in not your's, but society's best interest for the status quo to change.

I don't think that the patent system is bad by itself. There was a time when it did bring value to the innovator. It served as a series of rules to describe a relatively simple system. The negative thing is that it doesn't scale well. It's in need of a serious overhaul or things will only get worse.

So it bring values to the innovators, or maybe a specific group of innovators.

Does it bring values to the rest of us? What if the concept is wrong in the first place?

Well, two contarian economists doesn't think the system was that great in the first place:

It is common to argue that intellectual property in the form of copyright and patent is necessary for the innovation and creation of ideas and inventions such as machines, drugs, computer software, books, music, literature and movies. In fact intellectual property is a government grant of a costly and dangerous private monopoly over ideas. We show through theory and example that intellectual monopoly is not necessary for innovation and as a practical matter is damaging to growth, prosperity and liberty. -- Michelle Boldrin and David K. Levine in Against Intellectual Monopoly http://levine.sscnet.ucla.edu/general/intellectual/againstfi...

I think it is a bit presumptious to assume that patents benefit does outweigh the loss at some point in their history. People needs to dig a little deeper than that.

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