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Comment by sytelus | Hacker News Reader

Article starts with the most important two words:

MARSHALL, TX

From Wikipedia:

Marshall has a reputation for plaintiff-friendly juries for the 5% of patent lawsuits that reach trial, resulting in 78% plaintiff wins.

I've stopped myself getting surprised for any patent suits where troll gloriously wins and that decision comes from a court in Marshall. This town's economy probably runs on lawsuits that trolls bring in and jury members from the town seem to have special incentive to favor plaintiffs almost 4 out of 5 times!

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It would be interesting to see some of the cases where the plaintiffs have not won in Marshall.

As this place in Texas has over the last 10 years built an industry around the IP cases going to trial there (with e.g. short-term office rental rates as high as in NYC) - maybe those are cases that are not "supporting" their continuing gold rush.

None of that of course touches on the fundamental flaw in the system that IP cases are so exorbitantly expensive that most have to pay those modern "highwaymen" even when knowing that their demands are most of the time completely without base and are solely a legalized form of extortion.

Just consider how you feel, when you worked for years and developed / invented a large scale real-world solution and those crooks with IP / patents originally being provided to protect their work on bicycles and abacuses are lining up outside your office all claiming that they would have done all the work.

So the first step to cure this must be a protection of business that have invested substantial time and money into their products, are bona fide and actually running a business based on their work, to be able to defend themselves against such frivolous law abuses.

...all claiming that they would have done all the work.

Its worse than that. They claim that the speculative idea was all of the work, and you're nothing but a thief who stole it and did the easy part of, you know, actually doing stuff.

Those are my favorite too - I normally call them Jules Verne patents - dreamt up something, written a fictional essay aka patent on it, then claiming money from the first one who actually built it and actually invented it.

If this continues, soon someone might claim that Gerdt von Bassewitz invented space travel (Peter and Anneli's Journey to the Moon - the German title is actually nicer - translated: Little Peter's travel to the Moon -http://en.wikipedia.org/wiki/Peter_and_Anneli%27s_Journey_to... )

Ideas come in thousands and if not executed are not worth a dime. Doing it is the hard part and that's why companies building things generally get paid / make more money than science fiction book writers.

Look on the bright side. Soon sci-fi will be considered prior art! If I'm not mistaken, this has already happened with regards to "design" patents.

It has indeed. See the case of Charles Hall, who invented the modern waterbed in the 1970's, and was denied a patent on his invention because Robert Heinlein had already described the waterbed in novels as early as 1942: http://www.techrepublic.com/article/geek-trivia-strange-wate...

Ideas _are_ the patentable work though. The system is designed to get people to share their ideas. The problem is that most patents should never have been granted in the first place, because they are obvious or non-novel.

If you had to manufacture something before you could patent it, then your idea could be stolen by any potential investor. And some solutions you can't manufacture without help from entrenched businesses. Robert Kearns shopped around an idea to GM and Ford for a new wiper system. They stole it without paying him. If patents couldn't be held by NPEs, then the law would always be on GM and Ford's side, because Kearns didn't happen to own a massive automobile production line.

Why should owning a massive car factory be the only thing that qualifies you as an inventor?

Also, anyone who can beat you to market has a defense against your patent claim. The biggest, richest, fastest manufacturers win the right to produce everything they never invented.

Don't get me wrong, the patent system is definitely broken. The way it's broken happens to get exploited by certain non-practicing entities. But the problem isn't NPEs, it's _some_ NPEs, and really, it's just the features of the system those NPEs are exploiting.

The problem with our patent system is that no one actually seems to care about novelty or obviousness, even though they are supposed to.

Consider "a method for thermal refreshment of bread" (patent number 6080436). It's a toaster patented in the year 2000. David Martin, a patent quality assessor, claims that about 30% of the patents his firm reviews are for things that have already been invented.[1]

Software has it's own special version of this problem. Juries can't code, so they don't have any clue what's obvious, what's just an incremental improvement that anyone could produce if they knew the language. Juries can't tell the difference between design tweaks and brand new methods.

The problem is not that the system rewards intellectual effort, the problem is that the system rewards things that are effortless.

[1] http://www.thisamericanlife.org/radio-archives/episode/441/t...

What about an evaluation mechanism that doesn't depend on patent clerks, but more like peer reviewed science papers in academia?

E.g., a test for novelty and obviousness is that a skilled practitioner of the arts is shown the "result" of the patent (or a description of the result), but not the actual patent (which details how to achieve said result). If the practitioner can infer how the result is achieved, then the patent is not novel enough.

Planet Money has a story on one such case: http://www.npr.org/blogs/money/2013/06/07/188370495/when-pat...

In that particular case, which was regarding a ridiculously broad patent for offsite network-backups, the plaintiff lost on a technicality; there was proof of a co-inventor who hadn't been included in the patent-filing. If it wasn't for that oversight they would almost certainly have won the case.

I posted something similar in the previous HN thread where claims were made about how these jurors are the best jurors in IP cases because they're so "experienced" and this was a slam dunk victory for Newegg. Afterall, Diffie spoke, so that seals the deal, right? My skepticism of those claims didn't go over too well.

Well, I was right. I really wish people better appreciated how corrupt and broken the patent process is and how appealing to ultra-conservative districts isn't some solution. Its part of the problem.

If anything, this verdict should prove that we are farther from a solution than ever. Maybe we'll have better luck with the next congress.

This particular town was exposed as being well, corrupt, when it comes to patent suits. This American Life: they did a great job on this topic.

http://www.thisamericanlife.org/radio-archives/episode/441/t...

Not probably. The economy does run on the lawsuits.

I remember reading a while back that the hotel closest to the courthouse was owned by the son of one of the judges. Can't find the source right now, though.

Without knowing the percentage of cases that result in plaintiff wins in other cities, you can't draw any meaningful conclusions from that stat.

Patent holders win 78 percent of the time [In Marshall], compared with an average of 59 percent nationwide, according to LegalMetric, a company that tracks patent litigation.

What is the variance? skewness?

How are you wanting to measure those for a Bernoulli variable?

In any given case, the plaintiff either wins or loses. Assuming different cases are independent (which is probably at least a decent assumption), there's no more to say about the distribution than the win probability.

You could of course ask about the variance, skewness, kurtosis, 17th moment, etc., of the distribution of damages awarded or length of trial or total lawyers' fees or something. But for the actual win-or-lose figures, the question doesn't make sense.

Well, it kinda makes sense. Define the outcome to be 0 if the plaintiff loses and 1 if the plaintiff wins. Then with a win probability of 0.78 the variance is 0.17, the skewness is -1.35, the excess kurtosis is -0.17, etc., but there's no more information in any of these numbers than was already provided when we learned that the probability was 0.78.

I don't understand what you don't understand, given that you are yourself taking each county/town (not sure what is the atomic unit of judicial division here) as one RV to which you associate a winning rate. There are surely enough of them to get them in bins of winning rate.

Anyway, my point was to highlight that the mean alone is not very informative.

Ah! You were asking about the distribution of win rates across counties or towns or whatever. I completely misunderstood and thought you were asking for more information about the distribution of wins and losses within Marshall.

My apologies.

I am disturbed to see that the great-grandparent of this comment (the one saying "that doesn't make sense for a Bernoulli variable) has attracted 5 new upvotes since the parent of this comment (the one saying "oops, that was a mistake") was posted.

Everybody: Please stop upvoting my wrong comment. It was wrong. At best it may suggest a lack of clarity in the comment it was replying to, but that doesn't deserve 10 upvotes.

Thank you.

(Not that I mind being upvoted as such, but I do wish I saw more correlation between the quality of my comments and the votes they attract.)

I understood differently, that the parent was asking for the distribution of win rates per town.

Deleted comment

Not sure if your whole reply is sarcastic. See my reply to gjm11 if what you need is an explanation of what I wrote.

Well, he is actually right that the town is essentially funded by patent lawsuits. http://www.nytimes.com/2006/09/24/business/24ward.html?_r=0

Doesn't that make the trial unfair? Isn't "no associated interest" a basic marker of a fair trial?

It's very hard to show actual jury bias.

Though i bet if the anti-patent groups got together and bought marshall a new football stadium, the win rates would go down ....

Well, are the claimants buying them a new football stadium? The Lemley paper I posted below certainly seems to indicate no great preference for plaintiffs over defendants.

Thats a tough one for an appeal though, showing the jury was unfair.

Here's a much more detailed analysis with a lot more data and nuance:

Mark Lemley, "Where to file your patent case"

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1597919

EDT is not actually at the top for claimant win rates.

Honest question from an ignoramus, would companies be able to avoid fighting patent battles in this district by refusing to do business there (thus preventing any claim of jurisdiction)? If so, what's the size of the market they would have to avoid?

The United States of America. These cases are in federal courts.

I understand they're in federal courts, but can every district court in the U.S. claim jurisdiction over any alleged claim/crime, regardless of where that claim/crime took place within the U.S.?

Here's the technical answer: the federal courts have jurisdiction over (among other things) claims arising as a result of federal statutes, e.g., the patent laws. Suing in a particular US District Court is a matter of venue and venue is proper wherever the defendant does business. If New Egg ever sold an item or offered to sell an item anywhere in the Eastern District of Texas (and if you've got a website, then the answer is yes), then venue is proper in E.D. Tex.

> If New Egg ever sold an item or offered to sell an item anywhere in the Eastern District of Texas (and if you've got a website, then the answer is yes), then venue is proper in E.D. Tex.

Right, this is exactly what I'm asking. But why is the answer automatically "yes"? Why can't websites have a disclaimer saying "this company does not sell or ship to entities in the Eastern District of Texas"?

So, in theory, Newegg could blacklist the entire Eastern District of Texas from ordering things from Newegg, and nobody could sue them from there.

I think if more companies actually did that, maybe those IP cases would work differently. This is actually great idea.

Newegg doesn't want to do this. They deliberately fight patent trolls and exhaust all avenues of appeal in an attempt to overturn bad patents. The fact that they lost in the trial court is a formality; they will win on appeal.

TigerDirect would keep selling there. This does nothing to stop the tide.

Actually it's not (edit: only / mainly) a question of venue, it's a question of personal jurisdiction as defined by Rule 4(k) of the Federal Rules of Civil Procedure.

The general rule is that a federal court only has personal jurisdiction where a state court of general jurisdiction would have it. So both the constitutional due process requirements (International Shoe, et. al.) and the state long arm statute come into play. (This assumes the patent statutes don't have unique PJ rules, they might.)

All that said, without having actually looked into the case law, I'd imagine you couldn't defeat jurisdiction by not doing business in the forum because the Calder effects test would be construed to apply to infringing a patent owned by an entity in the forum.

I wonder if running an anti-patent troll marketing campaign in Marshall would help fix this. Educate the population about the problem.

They call that quaint there... These aren't stupid hicks. If you think for a second that these folks don't see this as an awesome way to give a big Texas flying finger to Silicon Valley types with their skinny jeans, silly beards, and smugnaciousness... you've merely increased their will to continue this process.

Eschewing justice in favor of giving "a big Texas flying finger to Silicon Valley types with their skinny jeans, silly beards, and smugnaciousness" pretty much makes them stupid hicks, sorry.

If true, it would make them jerks, but it would be foolish to dismiss them as stupid.

There's a difference between "clever" and "not stupid." One can be a stupid "clever" person. These people are "clever," because they know what butters their bread. That doesn't mean they aren't also dumb hicks.

"Shortsighted" and "ignorant of justice" come to mind as synonyms for "stupid".

I'm from that area. "Stupid hicks" isn't entirely inaccurate. As in other areas ranging from religion to economics, these salt-of-the-Earth folks are culturally conditioned to adopt the views of whoever gets to speak first.

I doubt it. They are not stupid. They know what they are doing. They are attracting more patent cases. They are acting rationally in their own best interest.

Crunching the numbers, though, there are around 171,000 people in the counties that make up the juries. If national ratios of under 18 and felon populations hold that is a 115,000 member jury pool. If a jury is 8 to 12 people it would only take an influx of 11,000 to 17,000 software patent unfriendly people to average one juror on that side per case.

In short: Perhaps it is time to create a techie colony in the Marshall area. Remote working for the win!

It looks like the population of Marshall is ~23K as of 2010. I wonder if it would be possible to pay a sizable number of people to move to Marshall to alter the average patent sentiment.

Someone who was paid to move to a town so they could be on a jury could never get onto a jury.

Can you appeal these cases? I mean 2 million dollars is no pocket change and instead you can afford some good lawyers for that much money.

I mean to appeal the case judgement in another state...

What if everyone decided to put a tech embargo on this town? Refusing to do business with the inhabitants.

That ignores the way wholesale channels work, and I'm pretty sure a judge's son would setup shop by acquiring said embargoed products elsewhere. It would have less than 1% of an impact on the average juror's life.

Still, it would be pretty inconvenient if newegg, amazon, other online stores wouldn't ship to your home address. Netflix, other services could block them based on billing address. Yes there are ways around this, and the real issue is patent law in the first place. Just a thought experiment.

Pretty sure Amazon is pro-patent (see "one click")

You hit on a more important point: the real issue is the patent law. In East Texas there's a certain ideological slant, and it sucks for legitimate companies. But in the end, they're merely implementing the law. Pretty sure punishing a municipality because of verdicts in a federal court there would result in a fist in the mouth from the FTC. Marshall, Texas, or Boston, or San Francisco, or wherever, results in zero change - the real effort needs to take place in Washington DC.

Which wont happen for a while. This kind of crap has been going on even when Henry Ford was trying to sell his Model T.

Can you just pick any court you want? And the appeal would be held where?

Assuming that this is a conservatively minded region (correct me if I'm wrong), aren't frivolous lawsuits one of the things that they campaign against?

Texas is conservative -- with a small c. Lots of suspicion towards outsiders generally, and towards large corporations in particular, have resulted in many outsized jury verdicts (in non-IP or patent cases) from Texas, as well as other red states like Mississippi, Alabama, Florida panhandle, etc. It certainly isn't the 17 story cash register that LA Superior Court, Downtown Civil Division is, but the smaller counties in Texas aren't bad at all from a plaintiffs' perspective. Just be sure the lead lawyer on the trial team is from around there and speaks with something of a twang.

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