Famous judge spikes Apple-Google case, calls patent system “dysfunctional”
gigaom.com
gigaom.com
The judge entered a tentative ruling saying that he was inclined to dismiss the entire case on the merits with prejudice (meaning, to kill all the claims in the case definitively so they could not be brought again by either party) on grounds that (a) neither party could prove actual damages on their claims, and (b) no good ground existed for the grant of an injunction.
These conclusions are well supported on technical grounds by existing law. A damage case can be tossed, once and for all, if a party is conclusively shown not to be able to prove damages, as happened here. And a judge can decline to impose an injunction where the costs of doing so would be far out of proportion to the benefit it gives to the harmed party, where the wrongdoing party is not gaining great benefit from the wrong committed, and where the public would be more damaged than helped by such a remedy.
What this really amounts to is a victory for common sense. Where patents involve essentially trivial rights (as often is the case with software patents especially), judges do not like to be used as tools to be manipulated in a broader commercial fight between litigants. In essence, this judge, looking at these facts, said "OK, kids, time to stop squabbling in the sandbox and go home." The lesson: pick your fights carefully and don't push claims that are essentially trivial.
Judges, good as they are, can only do so much in a system that is defined by constitutional authorization, congressional implementation, and a specialized court set up by Congress that has become cozy with the patent bar. That said, Judge Posner can hardly be accused of being a judge who doesn't respect property rights or IP rights generally and his voice will carry far more impact than most. It will be necessary to have respected voices in the legal community say, "enough is enough" many times over before Congress will listen. This act may not be enough but it is a great push in the right direction.
The problem is that these kids have weekly allowances in the hundreds of thousands. And most lawyers do not discriminate among potential clients by maturity level, they discriminate by net worth. They are happy to become instruments of a sandbox squabble, for a price. The kids don't do the squabbling. They pay lawyers to do it for them.
I could say the same for our judicial system up until now. Slam them all day if you'd like (referring to the judge), but all the patent troll rulings up to this point has precipitated this state of affairs.
Posner is the author of the 4th most cited Law Review article in the field of intellectual property law[1]. Most telling of all is this statistic: "As of 2000, Judge Posner was the most often-cited legal scholar of all time with 7,981 citations, nearly 50 percent more than anyone else" [2]. He retains that position in 2012.
[1] - William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal Stud. 325 (1989). [2] Fred Schapiro & Michelle Pearse, The Most Cited Law Review Articles of All Time, Michigan Law Review 2012.
(relevant jargon ref: "public good" -- http://en.wikipedia.org/wiki/Public_good)
"The institutional structure of the United States is under stress. We might be in dangerous economic straits if the dollar were not the principal international reserve currency and the eurozone in deep fiscal trouble. We have a huge public debt, dangerously neglected infrastructure, a greatly overextended system of criminal punishment, a seeming inability to come to grips with grave environmental problems such as global warming, a very costly but inadequate educational system, unsound immigration policies, an embarrassing obesity epidemic, an excessively costly health care system, a possible rise in structural unemployment, fiscal crises in state and local governments, a screwed-up tax system, a dysfunctional patent system, and growing economic inequality that may soon create serious social tensions. Our capitalist system needs a lot of work to achieve proper capitalist goals." [1]
[1] http://www.becker-posner-blog.com/2012/06/capitalismposner.h...
Unfortunately, the electorate is mostly interested in Lindsay Lohan's latest car wreck and Miley Cyrus's engagement.
How many dollars can you pack into foreign FOREX reserve accounts?
To me, it's strange/sad how as a society we elect politicians that couldn't even understand that blog much less resonate with the ideas in there or (FSM forbid) author that level of scholarship.
Instead, we get endless class warfare demagoguery and debates on gay marriage. We pay so much for our government and are so poorly served.
Wouldn't it be great if they went after the patent trolls next?
Remember such detestations as the Child Online Protection Act? Which, after being struck down, and the Supreme Court agreeing with the ruling, a John Ashcroft led Department of Justice continued to use tax payer money to push back through the courts?
I suspect that the differences between functional and dysfunctional governments, elected or not, lie largely in their legal and court systems.
But for the judiciary, many of the liberties we take for granted wouldn't exist. It's easy to sneer at "activist judges" when you don't like how the rule, but never forget how brilliant the multi-branch system of government is.
True. Then again, a lot of evil has been done by the judiciary. Particularly with the supreme court, you have a small number of unelected decision makers who wield an enormous amount of power.
> It's easy to sneer at "activist judges" when you don't like how the rule,
Let's not throw out the baby with the bathwater, though. "activist judges" is a loaded pejorative, but in the right context it labels a real corruption of our system that we should be wary of.
A true "activist judge" is one who gives the government new powers not explicitly granted by the US Constitution -- whether by allowing a new law to stand that doesn't pass Constitutional muster, or by creating new concepts out of thin air.
The Legislative body is where we want our laws to be constructed, since those guys are the easiest to control through democracy. We don't want that law making function to leak all over the system like into the judiciary and the bureaucracy of the executive branch where we don't have good mechanisms to track and control.
They certainly play a role in governing, but where Contress is active (in theory), the Courts are reactive, waiting for a case to be brought to them. Where Congress is reaching for power and often places limitations on citizens, the Courts (in principle) ensure Congress does not claim too much power and limits Congress.
It worked for Jefferson/Madison/Hamilton 222 years ago. This could be exactly what we need.
Seriously though, you want 3 privileged, white men to decide the fate of your entire country? I'm all for smart people coming up with solutions, and I know your comment wasn't mean't to be taken too seriously, but this is just ridiculous. Technocracy is not the answer, no matter how much technologists would love it to be.
I think that he has a point in saying that if you have an heterogeneous society, it's not wise to put all the power in an homogeneous group.
I like affirmative action, but I don't think it is a viable principle for determining political rights, which should be universal and colorblind rather than being denied or granted based on race or a distaste for homogeneity.
The idea that white people should not have power because of their inherent moral depravity is definitely a racist idea.
You explicitly mentioned race. It's racist.
Pointing out the unbalanced composition of a group meant to solve society's problems is not in any way racist. It's a specific application of the general rule that humans have hard time understanding the experiences of people different than themselves, especially when there's privilege involved.
"attack" might be a strong word, but it was definitely a racist comment. Whenever you generalize or predict behavior or outcomes based upon race, you've made a racist comment. Maybe you liked the sound of it. Doesn't really matter, though, does it?
Substitute "black" for "white" and how does your original statement sound?
You're decrying the solutions that those three guys could come up with in part because they're white. Maybe you wanted to say, "ethnically homogenous"?
They were also described as men. Does that make it sexist?
They were also described as privileged. Does that make it class warfare?
The point is obviously that they come from the same, very particular place at the very top of the same hierarchy that's created the world we now live in. Simply because the media has chosen to glamorize those people more than others doesn't mean we should do the same.
Why not throw some equally intelligent and qualified people as Elinor Ostrom or Amartya Sen in there? Aside from the fact that they're probably a bit more left-leaning/sympathetic to the little guy than the three mentioned.
It notes the sex of the decision-makers and implies the quality of results as part of a generalization, so I guess it is sexist.
> They were also described as privileged. Does that make it class warfare?
Warfare? That has a lot of extra meaning. "Classist" would be more clinical.
Words like "racist", "sexist", and "classist" have real definitions and you don't get to apply them only when they support portions of an argument that you happen to agree with.
Why not? Democracy doesn't seem to be so great.
Another problem is getting your technocracy to be accepted. Installing it only to have it quickly overthrown is another scenario for getting a dictator.
Remember that 222 years ago the entire country of America didn't even have the population of New Jersey and a budget smaller than most school boards.
Keep in mind that whatever dream team you assemble has to have experience solving real world problems. Not sure exactly of the connection between the individuals you choose and the particular problems that need to be solved but forgetting that for a second and assuming they are qualified there are also politics to consider. It's not as if the citizens are going to authorize binding arbitration by a group of arbitrarily chosen "smart" guys.
Thomas Jefferson's head would explode if he witnessed the dictatorial authority with which Bloomberg is attempting to control the most minute aspects of citizens' lives.
Madison and Jefferson did everything they could to allow people to be free from the control of government. They would both be tremendously saddened by how our individual liberties that they worked so hard to protect have been given away to politicians and a government bureaucracy that is lunging headlong toward mediocrity and undeniable unsustainability.
When Alexis de Tocqueville toured the US in the early 1800's and wrote "Democracy in America", he noted the rugged individualism and lack of trust in anything from the government and the elite. He wrote that only in America could the culture and nature of the citizenry insulate itself from the inevitable erosion of democracy, "But one also finds in the human heart a depraved taste for equality, which impels the weak to want to bring the strong down to their level, and which reduces men to preferring equality in servitude to inequality in freedom".
That America no longer exists. The slow march of government toward tyranny that Jefferson tried to warn us about passed a point of no return a long time ago.
Since you mention tyranny and a point of no return, I suppose your solution will be to start killing people who you find to be complicit with the government? Watering the tree of liberty, etc. etc.?
It is very much worth remembering that the judicial branch invented software patents in the first place. And that the Federal Circuit (which has jurisdiction for most patent-related appeals) seems to be a big fan of patents of all stripes and has been actively fanning the software patent flames. Fortunately, the Supreme Court has been correcting them recently on patents, but that is a slow, painful and potentially fallible process (see: Eldred v Ashcroft, IMO).
So very true though! Even if nothing comes of the lawsuit, the amount of time, effort and money that is wasted in defending these must be colossal!
"The institutional structure of the United States is under stress. We might be in dangerous economic straits if the dollar were not the principal international reserve currency and the eurozone in deep fiscal trouble. We have a huge public debt, dangerously neglected infrastructure, a greatly overextended system of criminal punishment, a seeming inability to come to grips with grave environmental problems such as global warming, a very costly but inadequate educational system, unsound immigration policies, an embarrassing obesity epidemic, an excessively costly health care system, a possible rise in structural unemployment, fiscal crises in state and local governments, a screwed-up tax system, a dysfunctional patent system, and growing economic inequality that may soon create serious social tensions. Our capitalist system needs a lot of work to achieve proper capitalist goals."
Not mincing words indeed.
http://www.becker-posner-blog.com/2012/06/capitalismposner.h...
The reverse is also true: It's not uncommon for district (trial) judges to volunteer for temporary duty as a circuit (appellate) judge. They do this to get a first-hand perspective of how the appeals court will evaluate their work.
Personally I think that's fantastic.
But a point is a zero-length line.
A zero-length line segment is a point.
Edit: not even this is true if your definition of a line segment explicitly states that the endpoints must be distinct, as does PlanetMath's definition, as Aethaeryn points out below.
> A zero-length line segment is a point.
L = {a + tb | t in [0, 1]}
Now, since b can't be 0, and 0 != 1, you're not going to get the endpoints of the range 0 and 1 to equal each other no matter how you scale them with b or shift them with a.[4] In other words, line segments will always have length.
Because you cannot get the endpoints to equal each other, a point cannot be thought of as a line segment under what appears to be the common definition.
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[1] https://en.wikipedia.org/wiki/Line_segment
[2] http://planetmath.org/encyclopedia/LineSegment.html
[3] Open is the exact same thing, except with (0, 1) instead of [0, 1] and it doesn't include the points 0 and 1.
[4] Of course, if b = 0 was allowed, you could just say that points are where b = 0 for all a.
-----
[1] http://mathworld.wolfram.com/LineSegment.html
[2] Just saying 'two distinct endpoints' instead of 'two endpoints' would work, so it's literally just one word that makes a big difference!
In my interpretation, to be considered a line in any number of dimensions, it must be specified by no fewer than two points. This puts a lower bound on the amount of information to specify "lines", a bound strictly greater than specifying a "point" in a space of similar dimensions. Otherwise, is point also a polygon consisting entirely of zero-length sides?
But anyway, I think it was only meant to highlight the Judge's opinion of the absurdity of some claims.
edit: so glad this tiny portion was the subject of the most discussion
For instance, You could also say a point is also something with 132 dimensions of data - all but one or two of which are set to 0. Does that mean if we patent ways of working with 132-dimensional data that our patents should apply to anything with fewer dimensions? Of course that would be silly....
It seems to me that the "lenght" of a point, if such a concept is to be allowed, is infinitely small but not zero. Thus, a point has length of lim(x->0) x.
To me, a zero length line segment would be nothingness.
But putting the math aside, in the context of patent law, it is important to follow the commonly accepted definitions. A person should not be able to change the meaning of his claims by suggesting new definitions. And it seems obvious that, as others have pointed out, the accepted definition of a line segment is something with finite length, and the accepted definition of a swipe is something that (obviously) results from swiping, i.e. some movement of the finger.
This pedantry really frustrates me, and it extends beyond Hacker News. It's pervasive in conversations I've been having recently as well, as if we're all looking for the slightest thing wrong with what someone has said so that we can achieve some kind of acclaim by pointing it out. I made a point recently about how people need to work together and cited a Star Trek film as a joke, and some jackass in the group decided to go to the mat with me on the fact that I had cited the wrong Star Trek film (my quote was in III, not II).
There is nothing more frustrating than a pedant. It seems like it's tech people that do it most, too, which makes sense, but still.
> This pedantry really frustrates me
People are well aware that they are nit picking, but they enjoy the resulting discussion! Intellectually inclined people enjoy discussing minutia with other like minded people. They are perfectly aware that it makes no difference, and they don't care - it's just something interesting to talk about. It's no longer nit picking about the original (i.e. the practical use is settled), at that point it becomes a discussion for its own sake.
Do you never learn or do anything just for the sake of doing it, rather than in order to accomplish something useful?
> and some jackass in the group decided to go to the mat with me on the fact that I had cited the wrong Star Trek film
He was showing off. If you don't wish to participate in the Star Trek memorization culture just ignore him - his comment was geared to other members of his group who do like doing that. Or simply acknowledge that he was right and move on. Clearly you don't care about that topic, so that acknowledgement shouldn't cost you too much ego.
That's also the point of threads: You can ignore an entire thread that is off topic - but it also gives people who found something interesting a place to talk about it without disturbing the rest of the conversation.
Also, I like to think of myself as intellectually inclined, and I simply hate discussing and arguing minutia like this. It just doesn't matter, and my time is limited. I don't want to argue with you on what Dickens meant by a certain character's dialogue in David Copperfield, I'd just like to enjoy it as a great novel. (That is fairly specific, and there are instances where it's fun to think about, but in general it isn't.)
> Clearly you don't care about that topic, so that acknowledgement shouldn't cost you too much ego.
Not about my ego, oddly (most everything else is, but this isn't). It undermines the opinion or discussion at hand from everybody else's perspective, however subtly. It's an annoying opportunity to show off, as you say, like those people that get up at conferences and ask a question that shows off at the expense of everyone listening. Both are distractions from the topic and are a detriment to the conversation, regardless of their original purpose.
I really don't think they are doing that. They understand that for the normal purpose he's right, they are just talking about mathematics, or general cases. At this point it's removed from the original, they are no longer talking about him (the Judge) they are talking about the concept in general.
> I like to think of myself as intellectually inclined
and
> and there are instances where it's fun to think about
There you go. There is no rule that says you have to enjoy talking about the same things as someone else. Each person likes their own stuff.
I would guess that people who are in certain professions which require precision would be more likely to act this way. Because lack of precision would cause the plane to crash or the bridge to fail or the code to croak. Medicine (drugs) for example is not really super precise when you think about it. Dosing isn't so critical that if you take a little more or a little less you end up dead or sick. You have latitude. (Of course someone who knows more than I about this would point out that coumadin (Warfarin) dosing is quite critical and correct me.)
Have you found that to be the case in your IRL conversations?
Pedantry like that indicates that the person may be suffering from OCD, not that they have a high IQ. There is a correlation between intelligence and anxiety-spectrum disorders but there are, ofcourse, many anxious people who have low IQ's too.
It's so much easier to do this as a result of information so readily available at your finger tip. So any statement anyone makes can be quickly verified and corrected with pretty good precision. Wondering if the people who corrected you in conversations looked up the fact on their iphone (or whatever) while you weren't looking.
Did you ever read the Becker-Posner blog?
I haven't read their blog – should I?
I've also read that Posner was deemed too old by either Clinton or Bush. Presidents want to have a lasting influence on the Court.
It's obvious that most HNers feel the patent system won't change any time soon or they wouldn't be filling this thread with a discussion on the definition of a line segment.
Edit: I'm not saying he should do more. I was asking if he could do more from his position. I recognize that he's bringing needed attention to the subject and setting an example that will probably be followed by others in the judiciary.
Speaking this clearly from the bench - a position of impartial authority - is probably the best he can do.
If we could clone Posner and put him in every state, this type of ridiculous patent litigation from IT companies would not be such a viable course of action.
Maybe it's not a question of what one justice can do, but a question of people taking a greater interest in their local and federal court systems. Are the courts in your state giving the go-ahead to frivolous patent proceedings from IT companies? Do you think that is a good thing? Is the time and expense for the courts to hear these cases warranted? Take an interest, as you did with SOPA. Imagine if there was a calling campaign to state bar associations instead of state politicians. Believe me, it would get noticed. Most people just do not care about this stuff enough to take an interest.
That said, there are a lot of people who support this patent trolling nonsense. It doesn't fly in Chicago, but it's par for the course in Washington and California. Good luck rallying the troops in those places. Many of them are part of patent trolling machine. It's what their employers and clients do.
"Motorola is hereby ordered to propose a claim construction of the term 'predetermined number of channel resources' in patent '898 at tomorrow's Markman hearing. Motorola's contention that the term has a 'plain and ordinary meaning' is ridiculous; Motorola seems to have forgotten that this is a jury trial. The term 'predetermined' means 'determined prior to some other event,' and what that 'other event' is is not obvious in context and certainly will not be obvious to a jury. If Motorola does not want Apple's proposal to be accepted, it must propose some alternative."
http://www.fosspatents.com/2012/03/judge-posner-praises-appl...
His blog (http://www.becker-posner-blog.com/) is well worth a read.
If you're an economic-utilitarian you'll love it, otherwise you'll probably think he's a monster, albeit a very rational one.
Now I smile whenever I see Judge Posner's name.
Look who's talking.
Why we let circuit judges sit by designation on cases that are literally outside their jurisdiction escapes me.
Puke.