Patent Review System Upheld by U.S. Supreme Court | Hacker News Reader

Patent Review System Upheld by U.S. Supreme Court

bloomberg.com

313 pointsjackfoxy173 comments

With this case, the Supreme Court continues its trend of gradually scaling back on the idea that patents can be freely and loosely granted to such a bilious degree that the very idea of what a legitimate patent is supposed to do (promote the progress of science and useful arts) is undercut.

This one does not involve the question of patentable subject matter but instead a question of process: in layman's terms, if Congress has set up a relatively quick and painless process by which junk patents can be sent packing without the pain, turmoil, and delays of going to court, can this process be shot down as being unconstitutional because patent validity, "from its nature," must be decided by a court? In answering this question no, the Court upheld the power of Congress to better police junk patents and rid the world of them with dispatch.

In short, this decision upholds the lawfulness of the process known as inter partes review, by which the PTO can reconsider and reverse the validity of dubious patents that it previously had granted.

Score this as a victory for those who support patents but who do not want the currency cheapened, so to speak, by junky ones that only serve to undercut what a legitimate patent even means.

The legal reasoning here (both in the majority and the dissent) is refined, principled, and arcane, dealing with the nature of a patent right, how it evolved under English law through the 18th century, and what this meant for the definition of the judicial power under Article III of the U.S. Constitution when it was adopted in 1789 (https://www.supremecourt.gov/opinions/17pdf/16-712_87ad.pdf).

All justices agreed (as the Constitution says) that the federal judicial power vests exclusively in the Supreme Court and the federal courts as established by Congress and that, if inter partes review is an exercise of such federal judicial power, it is unconstitutional.

In deciding that this sort of review is not an exercise of federal judicial power, the majority held that the grant of a patent is a "public franchise" that essentially can be determined in the reasonable discretion of the granting authority (the government) without need of a judicial determination. So, just as Congress (legislative) set up the PTO (executive) to grant or deny patents based on criteria defined by Congress via statutes (legislative), Congress could also set up procedures (inter partes review) based on criteria that it defined (invalidity if patent failed novelty and non-obviousness tests in light of prior art) by which the same executive branch (PTO) can reconsider and invalidate the previously granted patent. Yes, Article III vests the exclusive judicial power of the United States in the Supreme Court and in the inferior courts established by Congress but inter partes review is not a judicial power given that a patent is a public franchise that can be shaped and altered by the government without regard to the courts. In dissent, Gorsuch argued that a patent grant is not a public franchise but a vested private property interest that could be abrogated under the U.S. Constitution only by an exercise of judicial power and not by the PTO acting extra-judicially.

Both the majority and the dissent are basically originalist justices and so the disagreement between them is, I think, not as large as may appear. For the majority, Justice Thomas went out of his way to emphasize how exceedingly narrow his holding was (ruling does not involve infringement claim, is tied to the idea that there is ultimate judicial review after the process is complete, does not address any constitutional challenge such as retroactive application not raised by the party filing the appeal). Based on this, I would suspect that, in other contexts, these justices would all agree that patents do involve significant elements of private-property protection. But, for this case, and in upholding a hugely helpful procedure for ridding the world of junk patents, the majority was willing to say, in effect, "nothing at all wrong with that, have at it." The decision is a correct one and continues a welcome trend toward reestablishing sanity in the patent world.

This is amazingly well written, opinionated by reasonable commentary! Thank you for putting in the effort.

grellas, I'm going to jump on the bandwagon and say you should set up a blog and post these comments there. Even if all you did was copy-paste your comments from HN to the blog, I think it would have value because more people would see your excellent summations, and it may get more credit back to you.

edit: Checked your webpage, I see that you're now tweeting out your HN posts. Excellent!

I don’t understand how you write an article on a case without linking to the opinion: https://www.supremecourt.gov/opinions/17pdf/16-712_87ad.pdf

The mix is interesting: Thomas wrote the majority opinion and Gorsuch and Roberts dissented. The gist of the majority is that patents are “public rights” (like entitlement to social security payments) that can be adjudicated in the first instance by agencies so long as there is the possibility of judicial review.

EDIT: the link is under the word "voting." Because I'm petty, I went to the wayback machine version to confirm it was not there originally: https://web.archive.org/web/20180424150011/https://www.bloom....

News sites don't want you to leave. The case is mentioned clearly at the bottom of the article so you have to go the extra step of copying the text and pasting it into your search.

This is one of those rare times I actually agree with Thomas.

It's been so long, I can't even remember the last time!

In this case both sides have an originalist basis to the argument. The opinions aren’t results-oriented, but look to whether patent rights would’ve necessarily been adjudicated in courts in 18th century England. The majority points out that the Privy Council (advisory body to the king) not just courts, had the power to cancel patents. The dissent points out that during the 17th and 18th centuries, there was a shift from viewing patents as privileges granted by the king to seeing them as private property, and the Constitution was adopted after that transition happened.

It saddens me that the basis for such important decisions today is what people were doing more than two centuries ago. Not even what they thought was a good idea, just their actual practices! It was a different world back then. I understand the benefits of some amount of inertia in the rate of change of laws, but this seems like far too much.

But you have to go back to what people were doing when the law was written. The law was written using the commonly understood meanings of that time. The meaning of a law shouldn't change just because people start using words differently.

If the meaning of the law should change with the times then get the law-makers to update it.

Are you sure? Do you think, for example, that Brown v. Board of Education was the wrong decision, since the lawmakers and courts at the time the 14th Amendment was passed clearly did not intend "equal protection" to mean "forced integration"? Should the court have waited until the Civil Rights Act of 1964 passed before reinterpreting the amendment in this way?

Brown itself is not so controversial as the decisions that came after and elaborated on it. They have been criticized from both sides of the political spectrum. The prohibition of forced desegregation has given way to actual forced integration, as you note. When vigorously enforced, it means that minorities who once controlled their schools, dominated the PTA, and could exercise control over their kids' education, are now doomed to forever be minorities in all institutions, and therefore can only hope to seek redress in court when their rights are violated, instead of exercising affirmative power.

I do agree with Brown, to be clear, but some of the excesses of subsequent decisions and their application are great examples of the dangers of judicial activism.

Why do you agree with Brown, if original intent is what matters? At the time the amendment was passed, the legislature and courts were clearly happy with a separate but equal doctrine. The Morrill Act of 1890, for example, specifically allows separate but equal universities as an alternative to integrated schools. The Supreme Court also upheld segregated schools in cases like Berea College v. Kentucky.

If you think that everyone before 1954 was interpreting the amendment incorrectly, that's equivalent to saying that the generally accepted meaning of the text changed, and therefore the law changed without any legislative action.

It's also possible everyone was interpreting what it legally required right but interpreting the material facts differently than the Brown court, and that the mistake prior to Brown was one of fact, not law. “Separate is inherently unequal”—in the specific context of public education—in Brown was a statement of an important factual conclusion underlying the decision.

Possible, but there are other cases where the fact of inequality was not in question and the court still ruled (unanimously) in favor of segregation. Look at Cumming v. Richmond County Board of Education: https://en.wikipedia.org/wiki/Cumming_v._Richmond_County_Boa...

I think it's very important for people to understand how fluid the Supreme Court can be and how much it responds to public opinion, in choosing which cases to accept and deciding them. Look for example at the unanimous 180 between Pace v. Alabama and Loving v. Virginia. In Loving, the court declares

"To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

None of this is in the text, this interpretation of "the principle of equality" isn't really supported by an originalist analysis, and it doesn't turn on the particular facts presented to the court.

> Possible, but there are other cases where the fact of inequality was not in question and the court still ruled (unanimously) in favor of segregation.

Your example isn't one of them, though, and in fact the decision in it expressly holds out that the issues would have been different had the plaintiffs had challenged the unequal service rather than the tax. (Largely the same Court had only just before that handed down the “separate but equal” rule in Plessy v. Ferguson, forget original intent, Cumming has an incredibly strained handwave to get out from dealing with Plessy.

> None of this is in the text, this interpretation of "the principle of equality" isn't really supported by an originalist analysis

I disagree; it's perhaps hard to support by a textualist analysis (but not that hard, even there), but it's not hard at all to support with an originalist one. The fact that the national political climate rather swiftly abandoned the intent of the brief moment of radical Republican triumphalism when the 14th Amendment was passed and imposed on the South by force and that subsequent decisions reflect that change in the mood is, of course, important to note.

I don't believe the 14th Amendment was interpreted faithfully by the courts in the years after its passage. The result that we're still dealing with today is a totally toothless jurisprudence of the amendment's Privileges and Immunities Clause, and more recently, logically strained attempts to remedy that by an expansive reading of the Equal Protection Clause.

Originalism, at least as most jurists use it now, means textual-originalism. You don't look to what Congress intended the law to mean, but what the text on the page says in light of meanings prevailing at the time the text was written. Whatever the framers of the 14th amendment meant, they used the phrase "equal protection" and not "equivalent protection" or "similar protection."

A pure originalist might look to what the framers of the 14th amendment thought they were doing, but most people we would call originalists today would look to what the text of the 14th amendment meant at the time it was written.

> If you think that everyone before 1954 was interpreting the amendment incorrectly, that's equivalent to saying that the generally accepted meaning of the text changed

People often write things that mean something different than what the text says. (I'll point to FOSTA/SESTA as a contemporary example. 98% of the people who voted for it are thinking that its directed at sites actively promoting sex trafficking, but by its plain terms it applies to anyone "facilitating" sex trafficking, which is a much broader word.)

That makes sense, but I don't think it explains why Supreme Court decisions can change so drastically. What changed between Cumming v. Richmond County Board of Education and Brown v. Board of Education? What changed between Pace v. Alabama and Loving v. Virginia?

I can think of a few possibilities:

1. Pre-1950s courts were consistently incompetent and didn't understand the meaning of the 14th amendment.

2. Pre-1950s courts were consistently malicious and deliberately ignored the meaning of the 14th amendment.

3. Pre-1950s courts were correct about the meaning, and post-1950s courts have universally abandoned originalism and now apply their own invented meaning of the 14th amendment.

4. The meaning of the 14th amendment changed.

My current conclusion is 2 and bit of 1 via overly deferent stare decisis.

In fact, there was a short span of time immediately post civil war where civil rights were effectively enforced in the South. Reconstruction ended too soon.

I think the standard originalist response to this is—if you want to change the law, change the law. There’s an entire branch of government for that. Courts should focus on interpreting and applying the law that’s already in force, and if no one has changed the relevant aspects of patent law since 18th century England, we’re going back to 18th century England.

And it’s a reasonable position when not taken to illogical extremes to be honest.

The judiciary is not supposed to create law, but interpret it. It can create precedent based on interpretation of existing law but not create something new out of what they want the law to say.

I don't find this line of argument to be at all plausible.

The purpose of the Courts is to dispense Justice. This will invariably involve making new law. If you insist upon saying this is just "interpretation" when you do it, but is some sort of over-reach when other people do it, I feel the same way as when I see a sports star insist they were "within the spirit of the game" despite cheating while their opponents aren't... (e.g. ball tampering in cricket is very bad for this)

The thing that's special about the courts compared to say, a legislature or executive government is that they deal only in Specifics. They must consider _actual_ things that happened and judge those. All those named cases like Brown v Board of Education are about real people, to whom real things happened. That's what the judges are for. It will be necessary, from time to time, in the process of achieving Justice for the people those real things happened to for the court to make up from whole cloth entirely new law, and a good judge should not shy away from this practice where it is necessary.

Sure enough "Originalist" judges do not, in fact, shy away from making up new rules to achieve justice. They use their "originalism" instead to defend situations which presumably _they_ think are just but which seem wholly unjust to their fellow judges, and they deserve nothing but scorn for that. Say what you mean, and mean what you say.

There are areas where the courts do legitimately exercise broad lawmaking authority, e.g. contracts and torts. But even there, legislatures are ultimately supreme and can pass statutes directing the courts (comparative negligence is one example of legislative incursions into those areas). And under the US Constitution, the legislature and courts are both subordinate to the Constitution, the supreme law.

The words in the Constitution meant something to the people who wrote and ratified it. The Constitution protects you from having your property taken without due process of law. By itself that means nothing. What process is due? A vote of the legislature? The diktat of the President? A ruling by a court? Do you get an appeal? And what is required for patents, which operate very differently from more typical kinds of property? The people who ratified the Constitution didn't vote on meaningless phrases. We must look to what people meant by due process of law when the Constitution was passed.

"But where there is a statute, or higher law like the Constitution, the courts must defer to what those statutes meant at the time of passage. After all, it is on that understanding that they were drafted and voted on."

Ha. As if. Consider Medicaid expansion. A party line vote determines that somehow, even though the Congress who drafted and voted on this law meant one thing so recently everybody involved is on TV saying so, it actually means something else because well now we have all these Republicans and they want to tear it to pieces.

Or, let us not be partisan, take US v Windsor. I think this was terrible law. All four opinions are like crap I'd see covered in red pen after a law professor is done marking homework, Scalia's is maybe _funniest_ and he gets a zinger in where he predicts what happens next correctly - but it's still bad law, and the majority basically blunders about looking for any excuse to reach their preferred conclusion. Neither is really interested in what was meant by the people who voted on the Act, nor on what the US Constitution means about due process, they're just scrabbling to defend their positions, the two smaller dissents are also garbage.

The _result_ in Windsor feels like Justice to me, but these decisions (and dissents) are not good law. Posner's decision (in the Seventh Circuit later on for another gay marriage case) is much better law, and I am hopeful that future decisions are modelled more on his line of thinking than the muddle in Windsor.

>Ha. As if. Consider Medicaid expansion. A party line vote determines that somehow, even though the Congress who drafted and voted on this law meant one thing so recently everybody involved is on TV saying so, it actually means something else because well now we have all these Republicans and they want to tear it to pieces.

What matters to originalists is the original public meaning of the text of the law. Interviews with political pundits are not law.

The logical conclusion of this line of argument is that we are nominally ruled by elected representatives, but in fact ruled by a nine-member panel of philosopher-kings.

> logical conclusion

That's the theoretical extreme; it's always dramatic, but doesn't apply in reality which is far more complex, where logic is uncommon, and where rules are tempered by judgment, justice, and compassion.

>> The purpose of the Courts is to dispense Justice.

We can agree here.

>> This will invariably involve making new law.

Talk about your all-time leaps of logic, sheesh.

> The purpose of the Courts is to dispense Justice

Yes.

> This will invariably involve making new law.

Categorically not.

> If you insist upon saying this is just "interpretation" when you do it, but is some sort of over-reach when other people do it...

Which no-one has done. There is a very clear difference between setting legal precedent vs creating a new law. If you don't know the difference then you don't know enough to have a fully informed opinion on this topic.

> The thing that's special about the courts compared to say, a legislature or executive government is that they deal only in Specifics.

Kind of. Interpretation of laws is more about working out how the vagueness of life applies to the specifics of law. So.. it's only specifics on one side of the equation.

> It will be necessary, from time to time, in the process of achieving Justice for the people those real things happened to for the court to make up from whole cloth entirely new law

Nope. Fundamentally not true in the slightest. In fact we have specific legal opinions from the Supreme Court that state this. There have been numerous times that the SCOTUS has said that they agree with the objection to the law but that said law is still legal and to change it is not the purpose of the court but the legislature.

This point appears to be your core thing and it's fundamentally wrong in every first world judiciary.

This isn't about originalism at this point - it's about you not understanding the basics of our legal system.

To those who voted this down simply because of the opinion that judges shouldn't make law, please read up on common law [1]. The US is a mix of common law (judge made law) and civil law (statute based law) [2].

[1] https://en.wikipedia.org/wiki/Common_law

[2] https://en.wikipedia.org/wiki/Law_of_the_United_States

Indeed. Many Supreme Court upholdings are of the form "This isn't for us to decide, per separation of powers. Go bother Congress if you want this changed."

And I think that can be very problematic, especially when the SCOTUS makes incorrect assumptions about what laws are on the books, or that Congress will actually be able to act. In the Citizens United decision, a few justices believed that the disclosure requirements that would be needed were already in place, hence voting the way they did. In another, there was a Fair Debt Collection Practices Act case that found that debt collectors who purchase debt (arguably the very people the act was meant to regulate) were not covered under the act, and if Congress intended it, they should act to do it. This was in the last couple of years, so the amount of ignorance about how unwilling Congress is to act was astounding.

So what would you have instead? Less separation of powers? Laws decreed by a panel of nine, unelected justices to make up for what Congress "meant" but failed, or were too lazy, to do? If Congress won't do their damn jobs it's not for the Supreme Court to take up the slack; empowering them to do so will bring us down a dangerous road.

And Citizens United was about the right of corporations to issue private communications about candidates, not campaign finance. The Supremes couldn't have ruled except how they did without running afoul of the First Amendment. Given how easily hate speech proliferates, a strong right to free speech certainly warrants question. But changing things requires changing the Constitution -- much like the case with sensible gun regulations and the Second Amendment. I'm not sure what further public disclosure requirements you think would be necessary, but if Congress didn't pass them, it's not for the Court to slip them in as a rider on a decision.

It is true that that's the standard originalist response.

The problem is that originalism attempts to make lawyers into historians, and they're bad at it. In honest, well-meaning attempts to be 'originalist', judges make mistakes[1]. In degenerate cases, originalism is simply an argument from authority to excuse cherry-picking.

[1] One paper examining this theme: http://www.law.virginia.edu/pdf/f14_jurisprudence_symposium/...

Because lawyers are bad at history you'd like to just remove the whole separation of powers and have the court write laws?

You're making at least three reasoning leaps that are supported by nothing I wrote in order to come to a bizarre conclusion about my preferences.

That's exactly it, by using very old precedents you essentially make the law random due to a range of conflicting cases none of which map 1:1. Often 'is X legal' is only decidable by a court case, that's not the rule of law that's effectively amending the rules after the fact.

This is pretty much the basis of the common law system. We write laws defining general principles, and then let the courts sort out the specifics. We don't really know what the law is until we have some court cases about it. The court cases use precedent to keep things consistent.

The alternative is to have really, really detailed laws, like in civil law systems that don't use stare decisis.

> The problem is that originalism attempts to make lawyers into historians

So does textualism, and while lots of people accuse judges of having different philosophies, most (in the US; there are other judicial Philosophy that exist) of them (at least, in terms of how they justify decisions) are originalist, textualist, or somewhere in between.

Most of the complaints really are not about originalism vs. other philosophies, it's about people with a particular ideological bias (primarily, right-wing) in how they tend to see original intent accusing people who see the intent differently of not being originalist (left-leaning observers do also complain about right-leaning “originalist” judges acting in bad faith, but don't tend to frame it as being about originalism as a virtue and deviation as a vice.) I mean, none of the people on the right praising originalism and raging against judges for not being sufficiently originalist were upset at Scalia, who explicitly and firmly rejected originalism in favor of strict textualism.

It's probably good to notice that, in this case, Congress did change the law. They set up the review system in question in 2011. The issue is that, in order to avoid the kind of 200-year-old principles complaint of the post you're replying to, Congress would not only need to change the law, but also amend the Constitution. That's much more difficult, but it's something we should be doing a lot more.

You would think that the further we are removed from the revolutionary war period, the more hindsight we would have and the more wisdom we could bring to the founding principles of our government. But we've seen the exact opposite. Amendments to the Constitution have become less frequent, not more to the point where it's been decades since we've had one and, discounting amendments that focus on the mechanics of government (voting, term limits, government salaries, etc) the most recent one of any consequence just reversed the previous one of that sort.

It’s hard to amend the constitution, and there are lots of failed attempts for each amendment that eventually passes. Part of that is by design, so we don’t end up with something dumb like a vague counterterrorism amendment passed in late 2001 that repeals half of the Bill of Rights. But I think if there were more originalist judicial decisions, that would apply political backpressure towards the amendment process instead. Of course, that would slow down the rate of changes, which is almost a definitional part of conservatism.

But, the entire reason this case was brought is because Congress changed the law.

You mention the key bit; for lack of additional legislation, the court's job is to interpret the existing body of law to determine what, if any, affect it has on new situations.

Whether the court should use an 'originalist' interpretation is debatable, but the fix, regardless, is to draft new law. Unfortunately, we have a bunch of old, mostly techno-ignorant people in office, so here we are (this is not to comment upon the original link, and whether the decision is a good one or not, just that the basis of such decisions even at the legislative level is clearly founded on a poor basis).

It should not sadden you. The alternative (civil law) is that your rights are subject to the whims of the revolutionaries of the time, whoever they might be and whatever they might believe. The common law system at least provides a sensible default rooted in the wisdom of past decisions.

It’s a great thing. Legal tradition creates stability and predictability. There aren’t too many people investing in companies in countries where legal precedent has a short shelf life. You won’t make investments if your investment is threatened by whims or interpretations of the fashions of the day.

However laws can be easily changed assuming you have a majority of representatives that agree they should be changed.

The genius of the American system is precisely because it can’t move fast and it doesn’t generally change at the whims of the latest political fad. If a bill is written, a president can sign it. If people think the law unconstitutional, they can sue and then the courts review. If a bill is passed and the president vetos it, the veto can be overridden. If the wrong laws are getting passed or ignored, don’t worry, an election is every two years for the House, 6 years for the Senate and 4 years for the President.

It’s a genius system because, unlike Communism, it accounts for human nature. It provides for a balance of power. However, I feel that the direct election of senators was a huge mistake as an amendment. The Senate was designed to represent the sovereign states and the House designed to represent the people in those states. By allowing for direct election, the Senate is no different than the House. Basically a House representative with a much bigger district — leaving the state governments with no actual representation. But, that’s another discussion!

So... Could you explain this a bit more?

I know the Senate was intended to be a "braking" force on the House, but I have trouble making the mental leap whereby direct election of Senators is a bad thing?

As a representative of the State, the Senator is therefore also a representative of the people, no?

Historically speaking, I understand that the State level Senate selecting a representative would basically guarantee that you got a sort of "Man of the State" who one would assume would have a high degree of familiarity with the interests of the State as a whole, but is it a foregone conclusion that direct election doesn't achieve the same goal?

It seems somewhat worrisome to consolidate that power in a small group. Then again, I can see the argument that acting representatives would probably have the best feel for who could most fully represent the State as a whole.

Both senators and representatives represent their state, not the country as a whole. Senators are allocated 2 per state; Representatives are allocated to states based upon population. The "braking effect" was put in place to protect low populace rates from being steam rolled by the more populated. So the likes of California and New York can't inherrintly bully states like Alaska or Montana (for example). This creates conflict as more rural areas tend to have different values/needs/desires than states with a high urban population.

So you're saying that allowing direct election of Senators in a State shifts the likelihood of getting a National Representative for a State that is unduly favored toward the State's urban population centers rather than looking out for both the low and high density centers equally?

Whereas if the State Senate was still responsible for nominating Senators, equal representation across the State would be achieved?

Or am I still being dense?

The House of Representatives in Congress was always and clearly meant to be a force that directly represents the interests of people directly. It is the popular body in Congress (same sense of "popular" as in "popular vote").

There is more dispute about the role of the Senate: is it to represent the views of the people, weighted on a per-state basis, or is it representative of the states? If a state has different views than the population, then whose interests should the senator be concerned with?

The question isn't entirely theoretical: if you have a state that was majority Democratic but gerrymandered to a degree that the Republicans controlled the state government [1], a popular vote would elect a Democrat, but a state selection would appoint a Republican.

One would note, if one were cynical, that the advocates for state appointment of senators tends to correlate with a party that is more often in control of state governments without being able to win majority votes in a popular election of a senator.

[1] This basically describes Virginia, which has generally consistently tilted Democratic in statewide contests since ~2006 (although a good Republican candidate can still win). Nevertheless, it was a shock in 2017 that Democrats came within a few votes of electing a Democratic majority in its house--to the degree that literally no one thought it was possible, despite the potential for a large Democratic victory in the governor's race, for the Democrats to actually control the legislature in Virginia.

The court's job is not to change laws, it's to interpret them. The legislature is more than welcome to change them to whatever they'd like (within the protections of the Constitution).

Imagine you're married, and you agree with your wife about certain basic rules of the relationship, procedures for resolving disputes, etc. Should those basic rules be up for debate when, years later, you're having a heated argument about something? And if so, who gets to decide how to change those rules?

The Constitution is the same way. It's a check on democracy, but it's also democratic: "we agreed to do it this way, and if we want to change a rule we have to reach a new agreement through a cool-headed process."

In this case, the Constitution creates limits on what kinds of things may be resolved by the executive branch, and what must be done by the courts. That allocation of power between branches is not something we want to leave to whatever people think is a good idea on any given day. As to why we look to 18th century England: the founders thought that English courts worked pretty well, so they basically forked English common law. So sometimes, to understand our own law we look to what the English courts were doing before we made our own fork.

Sometimes you like the end result, sometimes you don't. Sometimes originalism means that a terrorist who is a U.S. citizen has to get a jury trial in an Article III court, even if the prevailing public opinion is that those people should be tried in military tribunals.

Except in this case it’s like being forced to resolve disputes according to your uncle’s inexpert and biased reading of how your great-great-great-great-grandparents settles their marital spats.

If you disagree with the majority opinions of the Justices, who were nominated under Reagan, Bush Sr. and Jr., Clinton, and Obama, you are free to vote for a president who will appoint differently-minded justices (like Justice Gorsuch, who was nominated by Trump).

I agree with the decision actually, I just disagree with the originalist viewpoint.

It is not. The Privy Council example rebuts one of Greene Energy's arguments. The foundation of the decision is orthogonal to that rebuttal; it's simply that issuance of a patent franchise doesn't turn a public right into private property, and thus what the USPTO giveth, the USPTO can taketh away.

I’m not disagreeing with the majority decision, just the argument for originalism.

The argument against anything else is that they all turn the court into a policy making body in various forms, instead of trying to stay as objective about interpretation as they can.

Whether that's good or bad depends on your view.

Objective and originalist are different things, and the constitution has never been immutable, hence the large number of amendments.

I think this was a tactic by the defenders of IPR, rather than some deeply-held belief. We have at least four self-styled originalists (but see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1422048) on the Court, and they want to hear arguments about what 18th Century politicians thought about patent rights.

That's not a fair characterization. Thomas for example, while i don't always agree with him, does try to do real research on the history of these issues/subjects. He's also not exactly "inexpert". It's not bullshit attempts to rationalize an ideology (like say, Gorusch, AFAICT :P).

If he's wrong about history, and you can show it, he's generally been willing to change his view.

As mentioned, they also definitely rely on experts for this (and are often experts themselves), and cite the expert historical analysis they rely upon.

> Imagine you're married, and you agree with your wife about certain basic rules of the relationship, procedures for resolving disputes, etc. Should those basic rules be up for debate when, years later, you're having a heated argument about something? And if so, who gets to decide how to change those rules?

I don't think we're talking about patents granted by the crown in 17th-18th century, so if you wanted to make this analogy it'd have to go like this:

Imagine you're gay, and you want to get married. Should basic rules of marriage be up for debate when, thousands years ago, society agreed that gay people should be killed instead?

So you’ll be totally content if 20 years from now society decides that gay people should not be allowed to marry?

some 30 years ago i could ask you: so you'll be totally content if 20 years from now society decides that gay people should be allowed to marry?

i'm not really sure what your point is. are you arguing that societal changes should be prohibited? well then: is the recent change towards equalization of gay people's rights ok? why? because you like it?

so, let's say we base our reasoning about our present-day society on the culture of 17xx AD England, because change is bad. well, we will have to roll back women's vote to right, not to mention all the modern nonsense that "negroes" are allowed today. but why stop at 17xx AD England: that society was the result of many changes from 10xx AD England. lots of change, and we've established that change is bad. but don't stop there: even 10xx AD England was a product of changes, and changes are bad...

btw, the answer to that non-sequitur of yours is "no i wouldn't." but i have to accept the bad with the good. democracy helped Hitler to the Chancellor title. i don't think we should get rid of democracy to prevent another Hitler.

I guess I’m saying that societal views on the acceptability of homosexuality have waxed and waned quite a bit, but everyone knows the history. My larger point was that mobs can be quite fickle and for that reason we’ve seen fit to base our jurisprudence on more immutable principals. This I’d argue is an improvement worthy of recognition and protection.

7-2 is striking for a Supreme Court decision - I usually read that as "the legal situation of this case is blatantly obvious, nice try".

The Roberts/Gorsuch dissent isn't exactly shocking, either; it's a nice display of the move from Republicans appointing originalists to appointing semi-activist corporatists.

The traditional media (newspapers, TV news, etc.) seems to have the idea that they shouldn't provide links. Linking would be the natural thing to do, so it seems like they are going out of their way not to do it.

I'm not exactly sure why this happens, but I have two theories:

1. Their mindset is to see their web site as a sort of port of their existing media product to a different platform. And not a native port. (A newspaper sees an online article as an electronic copy of a print article. TV news sees an online article as a replay of a video segment.) Since they wouldn't put a link in the original non-web media, they don't have one in the web version.

2. They are used to controlling the flow of information. The relationship they expect is that you come to them first for your news, and you keep coming back regularly. They don't want to encourage you to go directly to the other sources because then they wouldn't be involved.

I've talked to a couple of editors and the 2. is the correct answer. It is really annoying when the article is about something that happens in the web, like a web site, and they don't link it.

I believe they think their value is to "explain" things to the mindless reader, but it also perverse that they use it to impose their point of view.

The lack of links makes me less likely to go to a newspaper article the next time. I think newspapers are missing out when compared to models like Reddit. They don't have to go full Reddit, but there is a gap in journalistic form between newspapers old-school self contained writing and a newer approach that could use an article as coverage as well as an introduction of context, then optionally leads to richer more-detailed authoritative sources. I'm much more likely to pay for the latter as a subscriber.

Ditto - lack of primary sourcing has led me to seek out new outlets in a couple instances, and I haven't looked back.

Don't know how long they've been doing this, but I noticed recently that the Washington Post is linking to primary sources, and the NYT seems to do it sometimes but not others. So at least some of the big ones are doing better.

I agree, things are getting better. Links to sources has been a feature of high-quality science journalism for a while. It is good to see this spreading, and while it may have taken longer than it should have, I don't see it as a reason to give up on journalism.

> The lack of links makes me less likely to go to a newspaper article the next time.

My least favorite case for this is "a new poll shows people think X", with no link to the actual poll with the actual questions.

Given the many, many demonstrations of how a wording change can completely reverse poll answers, I'm inclined to view non-quoted, non-sourced poll results as essentially dishonest. It's the sort of thing that will make me think twice about going back to that source for anything I can't cross-reference easily.

> My least favorite case for this is "a new poll shows people think X", with no link to the actual poll with the actual questions.

They usually announce the source of the poll. Many polls don't have a freely-available link to the details, though you can sometines spend lots of money to buy that access.

> Many polls don't have a freely-available link to the details, though you can sometines spend lots of money to buy that access.

I have never understood the business model behind releasing key figures from your poll (generally the crux of it) but gating the rest of it (including polling methods) behind a pricey paywall. Is it to deter the casual lookie-loo while gaining the attention of companies in the industries impacted by the poll results?

The ones I hate most are freely available legal rulings, government documents, and scientific papers that are open access (or at least link me to an abstract).

It's not like having sources available makes the story worse for others.

That’s a cynical interpretation.

The logic is that a newspaper article is an atomic unit. You can pick up a digitized NY Times article from 1890 and have the same facts (albeit without the same context) as a contemporary reader.

Linking to sources, even primary sources, encourages laziness on the part of the writer and an implicit expectation that the reader has that knowledge. As a layperson, I want a story, I don’t somebody directing me to read Supreme Court opinions.

Most internet focused reporting is sort of a hybrid of news magazine and TV. 99% of links are dead in five years. It’s one of the many ways that the disruption and destruction of newspapers is an objectively bad thing for society.

A good hybrid approach would be to write as if there will be no links, but add them at the end.

If you read science stories, you're going to need the link, very often. The chances that the writer has it exactly right are slim.

But I'm off - to read the Supreme Court's view of early patent history.

The New York Times is in fact a counter-example; all their online articles link extensively to sources they refer to.

In the old paper world this makes sense, and anyways, printing links wouldn't be all that useful. It was "easy enough" in the olden days to just go to the local library and search for whatever was referenced.

In the digital world, if it's link-rot you're worried about, then the paper could just, you know, _archive_ the linked documents and provide links to both, the original and the archived copies.

Yes, there's a bit of a copyright law issue there, but it's manageable, and certainly legal opinions from U.S. courts are freely republishable.

It’s better for their seo.

It's because if you're anywhere but on their site, they can't make ad revenue from you. So they try to limit the number of links that will take you anywhere outside their own domain.

So embed the document in a PDF viewer?

I believe this is what TechDirt already does for court decisions, and a few other sites I've seen. It's not the cleanest look for a webpage, but I appreciate having primary sources available right alongside the article.

e.g. https://www.techdirt.com/articles/20140122/11374325957/supre...

Too bad everyone uses DocumentCloud these days, which has an absolutely atrocious experience on mobile: you can’t pinch zoom, and the text is tiny and blurry (not taking advantage of HiDPI). Normally the DocumentCloud viewer has a sidebar with a direct link to the PDF, but it’s hidden on mobile for some godforsaken reason, even in landscape, even with “request desktop site”. At least it’s been displacing Scribd, which often won’t let you download the PDF unless you pay.

It reminds me of a husband who says, "My wife might not stay true to me, so I'd better forbid her from speaking to other men." That's one way, but another is just to continue to provide something of value in the relationship.

Anyway, it's not like I want to do further research on every article. My time is limited, and I appreciate a good, professionally-written summary and analysis. If a news site can provide that, I have a reason to keep engaging with the site.

Bloomberg are actually pretty good about this, and have in fact added the link: https://www.supremecourt.gov/opinions/17pdf/16-712_87ad.pdf

I've specifically noted the LA Times and even the Grey Lady herself doing this, so there's hope yet.

So they're worried that instead of going to their web site for news on patents next time I'll ... what? Go tho the PDF of this opinion as a source of news instead? If it was an actual web site then sure, maybe they could see it as a potential rival to their web site. But for documents like this (2) appears to be irrelevant. Not that this isn't their reasoning for not linking in general, but no wonder traditional media are having so much trouble operating on the web.

Off-topic, but is this the first case in which we're already seeing Gorsuch side with large corporations, just as we expected him to?

Technically, this ruling helps Google (in certain instances), and Google is a big corporation, too, but I think we can agree that the vast majority of large corporations are very much pro-bogus patents (IBM, Microsoft, Oracle, Big Pharma, etc).

I like the idea of a "patent death squad" (seems like a pejorative term, but I dig it). However, I still believe it should have been the USPTO first job to reject the vast majority of patents based on strong criteria for what actually is a proper invention.

And if that criteria would have been set early on, it wouldn't have to reject most of them, because those that now file for bogus patents wouldn't afford to keep getting their bogus ideas rejected for too long.

A friend of mine was a former USPTO reviewer, and he told me something to the effect that as the law stands, they are pretty limited in their reviews and what they can do to investigate prior art. Basically, they assume the patent should be granted and then have to kick to the courts to decide if it is valid or not. I know there was more to the conversation, but was years who and dont recall much more.

Okay. That's the opposite of the world I live in.

> Basically, they assume the patent should be granted and then have to kick to the courts to decide if it is valid or not.

That's pretty much how the statute works (unfortunately, IMO): The default mode is that you're entitled to a patent unless the USPTO's patent examiner can show that you're not eligible. See 35 USC 102(a): "(a) NOVELTY; PRIOR ART.—A person shall be entitled to a patent unless— [list of various disqualifications]" (Emphasis mine.) [0]

I've groused here before that this is akin to requiring a dissertation committee to grant a Ph.D. degree unless the advisor can show that the research had already been done before, instead of requiring the candidate to conduct and document a thorough literature survey. Of course, the consequences of an improvidently-granted patent can be far more serious than for an improvidently-granted Ph.D. degree.

[0] https://www.bitlaw.com/source/35usc/102.html

Did they just add it? a link on the 'vote'?

Thanks for the direct link! hacker news is the best.

Also, I was very partial to Gorsuch's dissenting opinion, even though I believe patents in general to be a problem.

What is the problem? Patents allowed Google (page rank) to get a toehold in its respective market that was dominated by other players.

This is a 'throwing the baby out with the bathwater' issue. Change the patent system too much, and inventors will not be able use their ideas to compete against the big money of established players.

Patents have reached the level of stupidity.

For example, the recent patent granted to Samsung, to use an emoji-like representation of your face.

https://www.androidauthority.com/samsung-ar-emoji-video-call...

I had the exact same idea for this, but I thought it was just a cute little feature. I didn't think to patent this. And I'm sure thousands of other people had the same idea too.

But since Samsung was the first to patent it, now, if you make a little program that uses this same idea too, then you are liable for patent infringement. And you will be sued by Samsung.

Patents were originally devised as a means to protect the small players, from being dominated by the larger and richer players. In the 1700s to 1900s, the American patent system may have had the original idea to protect their small inventors, against the richer inventors in Europe. This was to help give them a fighting chance.

But today, with all the patents being filed by the large and dominant Fortune 500 companies, the purpose of the patent protections to help the smaller players, are now largely irrelevant.

Nowadays, the purpose of patents is for nationalism, to protect against other countries.

The other egregious patent that was granted, was the Swipe Left and Swipe Right, that was granted to Tinder.

In this particular case, I can assure you that there also is prior art in the research community going back at least 10 years. I wonder what aspect of it they are patenting (the bandwidth savings perhaps)?

Did you actually implement it?

Having an implementation is not a requirement for getting a patent.

Maybe not, but coming into a thread complaining that you "thought of the idea first" when talking about something fairly new, it's a reasonable question to ask. I "thought of" eBay before they started up, too.

Since the 5th grade, I and others have turned fellow students and teachers into cartoon characters on paper. Automating it shouldn't make the very act of cartoon-ifying a person itself patent-able. Slapping "via computer" or "via the web" on a process should NOT be a means for legitimate patents on acts, but this does keep happening in various forms. Patent a SPECIFIC algorithm, okay, but not the mere act of achieving something.

The question is still interesting.

In general, the way patents are supposed to work is that you can't patent doing a thing, but you can patent the means by which something is done. So, for instance you can patent a new kind of shovel, but you can't patent the act of digging a hole. That's kind of an important fine point that is usually glossed over by the technology press and in Internet discussions.

That isn't to say that there aren't a lot of dumb patents granted (and I don't care to investigate the video emoji patent sufficiently to venture an opinion one way or the other), but I think the problem isn't quite as bad as it seems, since many patents are actually quite a bit narrower than they appear and that their owners would like everyone to believe.

Got a link to that patent? The article and its source don’t bother to include one.

Can someone explain in simple words what this is about? I've read the article, but I think I'm missing some context about these review boards and stuff.

In simple terms before the new law you had to go to court to get a patent reviewed. Now you can file a request with the patent office and skip court. Which makes it cheaper and easier to fight bad patents.

That's a fair summary of the finding (and I would contend, the major issue in this case).

The counter-argument that might lead one to disagree with this decision is that the Patent Office reports to the President, so it is subject to the political motives of that branch.

For example, let's say, a major democratic donor receives a software patent on a novel ML algorithm useful for predicting voting behavior. Under inter partes review, the President (or his subordinates) could invalidate that person's patent if challenged regardless of the evidence. If inter partes review were found unconstitutional, they would need to convince a jury that the algorithm was, in fact, inappropriately granted.

Decisions of the PTAB are reviewable by the CAFC.

Good point, the courts still hold ultimate review of patents. The new law just moved the point when review switches over from the executive branch to the judicial branch.

The majority opinion relies on that in part too, briefly suggesting (in III-E) that it might not necessarily have reached the same decision if Patent Office invalidations weren't appealable in the courts. They don't specifically say that appealability is required, but they leave open the question of whether this review system could be upheld without it.

The counter-argument that might lead one to disagree with this decision is that the Patent Office reports to the President, so it is subject to the political motives of that branch.

No, because this decision wasn't about whether the process was good or bad, but whether patents are private property, which was the point made by Oil States International.

A party that has requested a review can take the USPTO to court over its review decision.

Hi. This is legally incorrect.

All inter partes review decisions are subject to judicial review by the Federal Circuit. The standard applied by the Courts is called "substantial evidence." To dumb down the standard (it is only slightly higher than this): The board cannot simply make shit up on the way to its decision.

Your hypothetical would probably fail under even more deferential standards of review. God fucking knows it would not survive the Federal Circuit--I'm happy to link plenty of cases where they told the board that its invalidity decision was not supported by substantial evidence.

Yes, sorry. My goal was to lay out the parade of horribles on the other side of the case to illustrate why the question was being asked at all.

You're right that IPR is judicially reviewable and I'd agree that my example would probably not hold up to review if clearly politically motivated and contrary to evidence.

Someone who's worried about this might argue with you that to have a patent invalidated, then the invalidation subsequently overturned is not the same thing as not having a patent invalidated in the first place, if only in the eyes of the market. I don't think it's a meritless argument, though it's not one that sways me personally.

Fair enough. You'd be surprised how well this stuff is priced in on the merits. Plenty of ex IP attorneys like me working in and for financial institutions evaluating these petitions. Not all patents are good. Not all are bad. But do this long enough you can decently handicap arguments, especially in IPRs where all the petitioners' evidence theoretically on the table from the start.

In simpler terms, things stay exactly the way they are today and this decision--by itself--has no impact on anyone. It was a hail Mary pass to overturn something, denying that radical change is not itself a change. I appreciate the legal certainty and philosophical questions raised, but for just about every HN reader: this isn't really newsworthy. Go about your day.

SCOTUS upheld the legality of inter partes review, which in simplified terms is sort of a fast-track way to invalidate bogus patents. Patent trolls hate IPR because it has been used extensively in recent years to toss out their crap; they tried to kill it here, and fortunately (no matter what Bloomberg thinks) they failed.

Someone gets a patent on something trivial (which didn't deserve a patent at all, because it's trivial). They sell the patent to a patent troll. The patent troll uses the patent to sue a bunch of people for a lot of money.

The review board is a way for those being sued to go back to the patent office and say, wait a minute, that didn't deserve a patent, without the expense of a court fight. Patent trolls don't like it because a whole bunch of their garbage patents have been thrown out this way. I assert that the world is better of for it, but the patent trolls don't see it that way. So they sued to shut down that process. The Supreme Court has allowed it to continue, which is good for almost everyone but patent trolls.

Here's a less dumbed-down article from a bit earlier in the process: https://www.law.com/dailyreportonline/sites/dailyreportonlin...

A 2012 law created an administrative review system for challenging patents, meant to reduce the expense of challenging patents by keeping the process out of court. That law was challenged as being an illegal taking happening outside a court of law. The Supreme Court disagreed, considering it just a corrective action of the patent office's discretionary granting abilities. More or less.

So IP lawyers (and their accounts receivable ledgers) are quite unhappy about this ruling, I'm sure.

Rather, companies are happy they can use their patent lawyers to gum up the system and prevent judgments.

It's mixed. These proceedings (along with other reforms, like limiting venue) have been very bad for litigation billing, as disputes are fewer and disposed of faster. But I think the consensus is that we're better off taking this hit than losing even more support from the public for patents and facing something more severe.

The IP lawyers who prepare post-grant patent petitions are happy with this ruling. Wouldn't you rather represent Google at the PTAB than represent the troll in court?

The 2012 America Invents Act set up a system for interested parties to challenge patents after they have been granted (post-grant review). Challengers must bring forward new evidence not previously considered by the Office. A special team of expert examiners within the Office reviews the challenges, and has the power to invalidate the patent if it was granted in error. This allows interesting patents to be reviewed again, with all of the resources that any interested person in the public might bring to bear in searching. The expert patent examiners reviewing these challenges are more likely than a judge to have background knowledge of the technology.

https://www.uspto.gov/patents-application-process/appealing-...

Bloomberg put a strongly negative slant on this. This additional review is good for anyone who appreciates strong, valid patents, but is frustrated by some of the low quality stupid patents that should never have been granted.

Is this a way for the EFF or something, to attack patent-trolls effectively? It seems too good to be true from the descriptions in this thread.

While I agree with the decision, I developed a whole new respect for Gorsuch after reading his dissent. It was brilliantly written, clear, plain english and was an amazingly principled approach - i.e. he agreed that inter partes review was effective and convenient, but argues that convenience isn't a measure of constitutionality. I also appreciated his arguments about the non-independence of the review board and the ability of the director to apply political bias/policy to decisions (which has already been done multiple times). If it weren't for the ability to appeal the board's decision to a real court, even though I like the inter partes review process, I think I'd have to agree with Gorsuch on this one.

It's not principled, it's purely based on a vein of economic and patent scholarship that seeks to strengthen patents by equivocating them with property rights in land and thus subject to the most stringent demands of due process. This scholarship presupposes that patents are a necessary and efficient mechanism for capital allocation, almost completely discounts the economic and social costs of granting a monopoly franchise that restrains liberty, and ignores the practicality of accurately assessing novelty, non-obviousness, etc--ironic given that in almost every other aspect of regulation it's almost a given that government bureaucrats suck at divining these things. And as a general matter this scholarship is a form of ideological reductionism, and fundamentally radical.

All the handwaving about the change of perspective regarding utility patents in the latter part of the 18th century is an attempt to support his policy-based argument. You know it doesn't clearly reflect the law because he uses weasel words like "virtually", and spends much of the time explaining away the actual precedent.

He says that the very existence and wording of the Patent Clause is evidence of this change in perspective regarding the legal framework of patents. But the Patent Clause exists first and foremost because without it--long before modern Commerce Clause powers existed--the Federal government would have lacked the power to establish and regulate patents altogether. In other words, it exists primarily for the purposes of national consistency. The wording about the promoting progress merely evidences that the Founders believed the powers for granting particular public franchises to the Federal government were given because national policies might best promote social welfare, as opposed to a patchwork of state-granted patents. It's a huge stretch to argue it reflects a change in the law regarding whether patents were a species of public franchise.

For a man who claims to hew closely to the original intent and original meaning of the Constitution, and who believes in judicial restraint, his argument is remarkably unprincipled. Absent clear and unequivocal language either in the Constitution or contemporary laws regarding the nature of the patent right, in light of the clear and concise grant of power to Congress, lacking any solid legal precedent for this argument, and without even a clear injustice suffered at the hands of a capricious government in the instant case, he should give way to legislative and executive prerogative. But he doesn't. And he doesn't because he very clearly subscribes to the scholarship I mentioned above.

It is well written, I'll grant you that. But like Scalia before him, principled it is not. Principles should lead to consistency and predictability in the substance of decisions, not the form. Looking at his opinions as a whole, Scalia's were neither consistent nor predictable in substance (relative to other justices), and Gorsuch's appear to be going down the same road, notwithstanding that both are excellent lawyers who play the persuasion game well. Their opinions are consistent and predictable only in form, in that they attempt to reduce every problem to a small handful of preferred talking points and policies. Thus, for Gorsuch this case isn't about the exceedingly complex realities of patent monopolies and administrative processes that attempt to balance costs and benefits, but about politically appointed hacks having power to arbitrarily take away your private property. To get from point A to point B he has to take you along for a ride, hoping you don't realize that he changes the premises along the way.

By contrast, the majority opinion is squarely rooted in the law and in judicial restraint. I'm not one who believes SCOTUS should be shy about crafting new law--in substance if not in name. I actually appreciate Gorsuch's concern with safe-guarding property rights. I just think 1) they're misguided and wrong from a policy perspective (among other restraints, the law making powers of courts should be based on clear, consistent, public policy, and one of the most clear is the common law rule that disfavors monopolies), and 2) a great example of how a judge can go about making new law all the while claiming to hew closely to precedent and history. Moreover, I can't fault a court for not seizing the opportunity to craft law.

Can you explain either a) what you mean by principled or b) how Gorsuch's arguments aren't principled, please? My definition of "principled" is akin to integrity but for words rather than actions: applying your beliefs consistently and consciously. (It says nothing about whether you agree with his principles.)

You say that it follows from previous scholarship, which doesn't make it unprincipled. (You also suggest that that previous scholarship proceeds from a utilitarian foundation, which Gorsuch explicitly rejects.)

For that matter, you say he "handwaves" because he says "virtually" once when dismissing consideration of the three cases decided by the King's Privy Council that seem germane but aren't. He then discusses the actual relevant Privy Council revocations, the last of which was in 1746. (After 1753, it shared revocation power with the courts and only acted on it in 1779 because the patentee twice refused to use the courts.) It's a great point and exemplary use of the history that would've been contemporaneous with the Founders.)

Regarding his unwillingness to yield Article III powers, this is exactly what his past judgements would suggest he'd do. Wasn't he billed as the guy who would go against chevron deference? This seems like the height of principle. And that's something you can say even if you disagree with everything he believes.

I think you don't like the way the modern patent system operates and see Gorsuch as a defender of that system. There's no need to smear him as unprincipled because of that, though.

Thank you for bothering to explain this.

Honestly, your rebuttal is equally very well written that it could have been posted as a top level comment by itself.

I now fully understand why there was a need for an originalist basis.

The majority thinks that intangible property (IP) rights are similar but not equivalent to tangible property rights, but the dissenting opinion believes there is no such distinction -- the two are equivalent.

This is the basis for the difference; the difference can thus be attributed to the economic lens through which IP rights is viewed, which is also the same lens they used to revisit and interpret history, so thank you for writing it.

Well, I'm glad to see that we're heading in the right direction on patents for once. Finally, all that consolidated tech monopoly power is being used as a force for good. Hopefully this sets a precedent for dismantling other frivolous patents as well.

The patent system was designed to protect small inventors but it has transformed into a system that protects large monopolies and law firms. For me the big question is, how to get a system that does protect small innovators and inventors? Possibly open source or creative commons? Its really difficult to find the right balance and patents are becoming less relevant to small inventors (Like me)

I very much agree. The ptab is not a bad idea in principle but unfortunately it operates in a way that favors large companies who can use IPR to out spend small inventors instead of paying a fair license. I am experiencing this first hand with a company that approched me to license a patent that I had. I also had a small company making and selling products with our patented technology. Our company was ~1/100th the size of company licensing our patent. A year into our contract the big company decide it wanted out of the license and has been using the IPR process as a threat and leverage point to try and not pay the agreed royalty. It could cost me 300 to 500k to defend my patents through the IPR process, money I don't have but large company does.

One big problem that never seems to be discussed when talking about the PTAB and IPRs is the collateral damage it causes for small business and small inventors. The big tech companies lobbied to set the rules in their favor. "Patent Trolls" are not the problem they are a symptom of a different more fundamental problem. If you are a small business owner or small inventor the patent system is to expensive for you to use on an even footing with large companies, so you can be put into a situation where you have to work with a "patent troll" just to have the legal resources to play the game. By the way my company built it's own factory to build our products in the USA. We have since had to close our factory down and let all our employees go becuase we have been unable to protect the unique IP of our product, I know of at least 100 companies using the IP we created, and have 3 patents coveeing. As a small business entrepreneur the patent system and the IPR/ptab system has utterly failed me so far.

Edited for spelling.

Maybe you can't protect "small" inventors without also protecting "big" ones as well.

My take is that patent law should be strong BUT that patent lifetimes should be commensurate with typical dev costs / recoup times for each industry. It's one thing to have 17 or 20 year lifetimes for pharmaceuticals, but for software 17 or 20 years is just nuts. For software a patent lifetime somewhere in the range of 5 to 8 years should be plenty.

Who holds the review board accountable for making bad decisions vs the accountability of the courts? I think this question is just as important. Aside from that, I imagine it's far easier for a lobbyist to get someone who is industry friendly appointed to the review board vs appointed as a judge, which is concerning.

That's one of the reasons for Gorsuch's dissent. I suggest you read it: it's quite clear and principled.

I think the Court's opinion is that the remedy to the courts is still available even after the board's decision, so it's fine. (I think this is good but an unfavorable board decision reversed by the courts later is going to have very bad effects on the businesses affected. Property rights need to be secure and uncertain property rights are _punished_ mightily by the market.)

I agree that an unfavorable board decision can hurt a non-practicing entity. On the other hand, an improperly granted patent can hurt a business that is bringing actual products to market. I would argue that if these scenarios have to be balanced, one should err on the side of allowing products to be shipped.

Intellectual "Property" is an intentional misnomer used by IP holders as propaganda to support the idea that IP is "just like property."

It's not, because unlike property you can't establish that 100% of a project were your ideas and your ideas only. Every new project is a recombination of ideas. It's not 100% original.

If copyright and patents would be enforced perfectly and automatically, there would no longer be any new inventions.