Many patent holders stop looking to East Texas following Supreme Court ruling
arstechnica.com
arstechnica.com
Just eyeballing it, it does look like new filings have fallen off a cliff. Good.
It's also remarkably easy to spot the trolls, e.g. "Spider Search Analytics LLC v. The Home Depot, Inc." and "Spider Search Analytics LLC v. Adidas America, Inc."; the pattern appears to be "Company you've never heard of because they're in the business of patent lawsuits vs. Company you've heard of because they're big enough to sue".
Data-mining this to build a real-time list of patent trolls could be fun.
One of them probably holds a patent on that though and would sue you for doing it.
(1) Patents are not copyrights. They are distinct. You can patent a business process, which covers a ton of algorithms.
(1) Copyrights can cover the expression of facts. eg. ESPN can't copyright baseball statistics, but they can copyright the {webpages, spreadsheets, books, magazines} they publish which contain nothing more than factual scores / play statistics.
SCotUS ruled in Feist Publications Inc., v. Rural Telephone Service Co. [0] that, "Many compilations consist of nothing but raw data — i.e. wholly factual information not accompanied by any original expression. On what basis may one claim a copyright upon such work? Common sense tells us that 100 uncopyrightable facts do not magically change their status when gathered together in one place. … The key to resolving the tension lies in understanding why facts are not copyrightable: The sine qua non of copyright is originality."
This is the source of what I've heard called the "phone book doctrine" of copyright (though I'm not finding any hits on that phrase in a cursory search, so it may not be a widely used phrasing).
Publications "which contain nothing more than factual scores / play statistics" per se contain no originality, and are consequently not copyrightable.
(IANAL)
[0] https://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._R....
You woefully underestimate the amount of work required to do that, and the cost of acquiring those documents.
fixed this for you, but not really, because usually it's the small firms that may break under the pressure of suits.
Both are fine. Human language is like that.
Suggesting edits to others' comments on HN is tricky though because it will usually at best be off-topic for the conversation, and at worst lead to several off-topic comments, as in this case. For that reason they tend to get downvoted.
In this case your suggestion certainly is clearer than the original, but the original isn't wrong, and HN isn't a law court or a writing circle and you're not our sub-editor, so if you didn't understand something or want to clarify something for other readers, go ahead and do that graciously, rather than "correcting" with a brusque "fixed that for you".
> fixed this for you
Your fix is incorrect. Both infinitives are correct. One is passive and the other is active.
You are right insofar reading it as containing a zero grade would give to sue (them). I can only guess the mind of the poster was already firing up a few neurons about "them" suing in return or sumsuch. Or I'm just really miserable with analytic languages.
Company you've never heard of because they're in the business of patent lawsuits
vs.
Company you've heard of because they're big enough to sue
"Big enough to sue" refers to company B being sued, not company A (the patent troll).
Delaware is popular with companies because of its tax laws. The Delaware tax laws are deliberately to attract companies. Delaware knows what side it's bread is buttered.
I would expect Delaware courts to will be very defendant-friendly.
If you want investment, there are only two states to consider when incorporating: your home state or Delaware. Any other state will give investors and their legal counsel pause.
No wonder the USA is the best in the world at being a tax haven.
The US could hardly be any less of a tax haven.
Here's one recent report from just the past few weeks: "Report Says US Is World's Second Biggest Tax Haven": https://www.bloomberg.com/news/articles/2018-01-30/u-s-seen-...
There are many, many more such things written over decades. Here's a 2009 article from The Economist on the same subject of America's status as one of the world's premiere tax havens: http://www.economist.com/node/13382279
Most countries around the world have higher effective tax rates than the US, and this was true even before the tax cuts. (People who claim otherwise are citing flawed political studies that ignore how tax deductions and credits are actually used by companies, and the ultimate average corporate tax burden. Even in industries subject to high effective rates, like retail, they still pay lower effective tax rates than their Euro counterparts. If they're not, they need to hire better accountants.)
The US is also the premiere information disclosure haven in the world...as long as you're comfortable sharing your info with the US government. We require most other countries to share financial information with us but we don't return the favor.
But the fact of the matter is that the US is not an actual tax haven. We impose taxes and enforce tax collections. There are real tax havens, like the Isle of Man or the Cayman Islands, which don't have taxes and which have legal entity laws that promote tax-shelter holding companies.
The main person dealing with patents as a whole there used to be Judge McElvie, https://en.wikipedia.org/wiki/Roderick_R._McKelvie
(he's retired now). He wrote the model jury instructions for patents, etc
I talked with him a number of times, and he seemed quite reasonable (he pushed folks towards settlement, tried to make sure patent cases had the expertise, in the form of special masters or whatever, that it requires for judges to understand them, etc)
By statistics, Delaware was not "defendant friendly" in patent cases (There are some papers with the numbers i'm too lazy to look up, but google can find them for you)
Can't say how it is now though.
https://www.bna.com/rural-texas-judge-n57982086954/
If it was defendant friendly, they'd grant more summary judgement motions than most courts. They don't. They grant less.
The graph difference is that they split the summmary judgement outcome more on both the positive and negative side (IE they grant in part, deny in part).
It's hard to say more than that (because people who file in each court may file more types of claims, etc. So outside of the two extremes, which is grant in full or deny in full, it's hard to say whether the outcomes were "right")
However, you can see ED Tx is plaintiff friendly by far.
You acquire the rights and land to build a oil well. You dig one, and everything's great. It's all legit. Then someone comes along and says that because your dump truck looks an awful lot like his (which was stolen), all your oil belongs to him.
More like: your dump truck looks an awful lot like a drawing he has.
Plaintiff-friendly, whether or not the plaintiff was a troll.
And even that has noticeably been changing in the last couple years.
> Delaware is popular with companies because of its tax laws.
No, it popular because it is perceived as having both very well settled and very well understood corporate governance law, so that investors are secure.
> Delaware knows what side it's bread is buttered.
Delaware has only limited influence over the composition, court rules, and judgments of the US District Court for the District of Delaware, which the State of Delaware does not control. So, even to the extent that Delaware wants the court to rule a particular way, its ability to influence it is quite limited.
> I would expect Delaware courts to will be very defendant-friendly.
Not really a given when you're talking about companies suing companies. In fact the article even mentions a defendant's motion to dismiss was rejected. This suggests the company would have preferred to defend in a different court, perhaps California.
I'm not sure how the rules are established, but I assume it's something along the lines of the Senate rules (ie the filabuster) -- changes are subject to majority consent by vote.
"The following, although neither controlling nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers".
And, in any case, the last possible reason reads:
"(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court [...]"
As I understand it, it's _very_ rare to grant cert 'because it's important we do so.' The court accepts something like 1 in 70 petitioned, and a very small number within there are granted under Rule 10(c).
There is definitely going to be a shift away from east Texas but it's not happening as quickly or precipitously as we (in the industry) thought it would be.
Thanks for chiming in. There are a lot of "Go Delaware!" comments here, but it is easier to trust ones based on some experience/expertise like this.
Update: my source is this mind blowing documentary called Patent Scam (on amazon prime) which mentioned this conflict of interest. It’s way too unbelievable, but I believe it is true because otherwise the movie maker would be sued like crazy if it was a lie.
I would have upvoted this post, but for the extensive complaint about downvotes; from the guidelines: "Please don't comment about the voting on comments. It never does any good, and it makes boring reading."
In cases of what appear to be extremely abnormal voting behavior (asking a very simple, legitimate question and getting thrashed by downvotes), I regard it as a reasonable issue to raise.
It can be interesting to watch it play out.
A year ago, I rarely to never saw that kind of pattern, now every other thing I post is instantly downvoted, usually aggressively (even simple questions). I don't know what to make of it, except it drives me to not want to participate in discussions here.
The biggest downvote parade I think I've ever received on this site, was for defending gay rights a few months back. I upset a bunch of downvoters by discussing the facts of inequality globally around gay marriage (emphasis on that I was relying on facts, not emotional argumentation). How do you deal with that kind of intellectual mob mentality however? Do you ask for an explanation from the downvoters, or do you just leave the voting unchallenged? Sometimes it seems so bizarre, I can't help but ask.
...except it drives me to not want to participate in discussions here.
Sounds like the purpose of the behavior you’re describing.
1. Make sure I am actually being respectful and not an asshole.
2. Walk the fuck away and shut up sometimes.
3. I left for 18 months, to work on my issues and to give someone breathing room that I had friction with whom I felt saw me as personally threatening. I didn't have specific plans to return. I did return in part because posting something one day went better than I expected.
4. Drop it from my end when there is personal friction. This gets vastly better results when I point out someone is behaving poorly towards me. Sometimes they listen. If they don't, the mods (and community as a whole) are much more likely to be sympathetic if I am not putting out the fire with gasoline.
I routinely comment on hot button topics. I have extremely controversial views on some things. But I go out of my way to not piss on people to the best of my ability.
This has included changing my handle after hitting the leaderboard because I concluded that it didn't matter that it wasn't chosen as a feminist handle. What matters is that it is an overwhelmingly male forum and I want no appearance of impropriety as the first woman on the leaderboard. The perception of disrespect became apparent to me and was not something I wanted. So I started over.
I am vastly more satisfied with posting under this handle. Lots of people recognize me as also being Mz. So the difference is not due to being anonymous.
(This comment is not comprehensive. Just a nutshell version of 8.5 years of navigating an overwhelmingly male forum while posting as openly female.)
#3 is probably to specific to the specific circumstances to work as any kind of general guideine)
I can think of some folks who would be better off taking a break and sorting their personal problems rather than continuing to piss and moan about what meanies the mods are or whatever. I am far from the only person here whose personal issues are sometimes a significant part of the problem.
Oh, I certainly agree; what I meant would perhaps be more clearly expressed as "#3 probably has more need of rewriting into a more general form before being included as a general guideline"; recognizing and, where appropriate, taking an extended break to address personal issues is something that makes a good bit of general advice, the other three were just more in a form that worked as general advice without rewriting from the account of what had worked for you than that one was, IMO.
I struggle with that one. It's very useful sometimes though, agreed. It can be easy to fall into a discussion spiral that just goes negative all the way down, ending in frustration all around.
> 3. I left for 18 months
It's probably a good idea, broadly speaking, to take breaks from communities. If nothing else to just reassess time allocation to sites (whether HN or Reddit or whatever it may be). It surely helps with commenting perspective as well to step away. I too frequently find myself getting into low value political discussions on here, and that's my fault; I suspect it considerably lowers my enjoyment of HN.
I appreciate your reply, it was very thoughtful.
Based on that documentary, every case if filed on behalf of a shell company, many of which lead to the same bunch of attorneys. So, its not me saying, but the movie says so.
In that documentary, you can see the frustrations on many of those entrepreneurs and medium sized companies who have been screwed over by these scumbags.
Why dont most people hear about this? Because settlement includes NDA that prevents those who have been screwed over, to talk about how they have been screwed.
Probably not; even if such a conflict has grown up during the EDTX dominance (and the risk of such a scheme being discovered is quite high -- litigants with lots at stake do, in fact, actively investigate for potential conflicts on the part of the judge -- and in addition to being likely to get everyone involved disbarred is one of the things that would be likely to get a US federal judge impeached, so it would take amazing gall to try it), the most famous judge in the district for handling large volumes of patent cases came to the bench in the district after it's dominance from being known as the "rocket docket" with short time from filing to resolution became known, and the various procedural rules that make the district (which has 7 district and 9 magistrate judges, its not a one-judge shop) plaintiff friendly are well-known.
Its much more likely that the Supreme Court case mentioned in the Ars article which sharply limits which districts a patent case can be filed in by clarifying that a corporation is "resident", for purposes of venue, only in that state in which it is actually incorporated is, in fact, what is altering venue selection for patent cases.
[3] gives a lot more information about the origin of the rules that made East Texas initially attractive, as well as how "there are signs [Gilstrap] is starting to crack down on patent trolls." It's a much more nuanced story, with a clear narrative of how judges acting in good faith might design rules like this to speed up litigation... and I'm unsure how much a judiciary can or should take into account e.g. parties' abilities to pay for discovery, one of the main contributors to the environment here [4], when deciding on those rules. Federal legislative reform would be the clearest path here, but that's hard to come by these days.
(I am not a lawyer.)
[0] https://arstechnica.com/tech-policy/2015/04/east-texas-judge...
[1] http://mcsmith.blogs.com/eastern_district_of_texas/2011/05/j...
[2] https://www.velaw.com/Who-We-Are/Find-a-Lawyer/Gilstrap--Ste...
[3] https://motherboard.vice.com/en_us/article/aek3pp/the-small-...
[4] http://www.patentprogress.org/2014/05/21/popular-patent-judg...
In addition to the burden of discovery that you have mentioned, the fact that US allows an idea to be patented, is the root cause of this pain. Once that is addressed, innovation can thrive.
That's a truly terrible standard of evidence. The fact that a documentary maker hasn't been sued isn't evidence of anything.
The judges and other professionals working in the district are just that--professionals. There is no secret cabal of lawyers conspiring to screw tech companies there. The judges and courts are not biased against defendants and trying to screw them.
There may be a tendency of to protect the district (e.g., avoid transfers of cases out), since the judges see themselves as stewards of the community in which they serve. But that has no bearing on the merits of the case or who wins. And recent changes in the law have significantly mitigated this. The judges are very knowledgeable at patent law, being very experienced in the domain.
Source: Am a lawyer that has practiced over a decade there, represented both sides of the "v.", also appears in numerous other courts around the country, and has obtained multiple decisions from different EDTX judges forcing patent trolls to pay my clients' attorneys' fees for frivolous lawsuits.
I think I read somewhere, though I cannot recall where (maybe Ars), that some companies where investing in community projects, events, and recreational facilities to improve their brands (essentially bribes) in anticipation of patent cases coming to the district.
Anyone know where I got that idea from, and if there might be an economic impact to the region?
[1] https://motherboard.vice.com/en_us/article/aek3pp/the-small-...
As for any of those projects? Likely just a facade for what's really been going on which is essentially good ol' boy politics to keep the money flowing and people in power. The place you want to look at is Marshall, TX. It's not really that exciting of a town but you can find economic reports of that community so see that it's not really a hotbed of economic growth outside of the oil field business.
My opinion comes from many years of maintaining gas stations from DFW to Shreveport off I20 and all through ETX.
As a native Tylerite, it's not that far
That seems crazy. Poor Cray guy....company is pulled into his backyard in a bad way because he worked from home.
https://motherboard.vice.com/en_us/article/aek3pp/the-small-...
https://boingboing.net/2017/09/26/judge-rodney-gilstrap-2.ht...
https://www.dallasnews.com/business/technology/2017/05/24/ea...
Basically, its a nexus between the judge and attorneys who have shell companies filing lawsuits against legit entrepreneurs and medium sized companies.
The East Texas circuit is so remote that just going there is a pain.
Laws are such that burden of proof is on the company/person being accused in the lawsuit. That combined with the remoteness of this court, compels the accused to settle, along with an NDA that prevents them from sharing any details about the settlement.
Sure the movie borders on conspiracy / fact . But it certainly is believable for me, who has no idea how patent system or the litigation machinery works in the US.
You mean other than the people of the community that sit on juries and elect the judges?