The Supreme Court is struggling to rein in America's rogue patent court | Hacker News Reader

The Supreme Court is struggling to rein in America's rogue patent court

vox.com

60 pointsdctoedt49 comments

Many folks in the tech community lament, on one hand, that the U.S. legal system lacks people, particularly judges, with technical backgrounds, yet at the same time are intensely unhappy with the decisions of the Federal Circuit, which has a substantial number of judges with degrees in science and engineering. The only way I can reconcile these sentiments in my head is that when people say "judges don't understand technology" what they mean is "judges don't see technology the way I see technology."

I like the conclusion of the article, which is that concentrating all patent cases into a single court has given that one court too much power. That particular court seems heavily pro-business right now. The legal system works better when appeals court judges across the country make decisions, and the supreme court manages the splits.

Not sure if it's true, but it sounds like it would avoid the concentration of decisions in one bad court. We see that in "West Texas" patent lawsuits as well. One rogue court can affect the nation.

> I like the conclusion of the article, which is that concentrating all patent cases into a single court has given that one court too much power. That particular court seems heavily pro-business right now. The legal system works better when appeals court judges across the country make decisions, and the supreme court manages the splits.

The author of the original article probably doesn't remember the days before the Federal Circuit was created. Except for the then-rare cases when the Supreme Court intervened, judicial interpretations and applications of patent law could vary widely among the different courts. The validity of a patent often depended heavily on where the lawsuit was filed. Some courts were known as graveyards for otherwise-good patents. The federal district court in Minnesota was one such place, along with its appellate court the Eighth Circuit.

That often led to patent owners and accused infringers racing to get their lawsuits filed first: A patent owner would try to sue the accused infringer first in a patent-friendly court, while the accused infringer would try to sue the patent owner first in, say Minnesota, asking for a "declaratory judgment" of invalidity and non-infringement. Under the procedural rules, usually whoever won the race to the courthouse got to keep their lawsuit alive, while the second-place filer would have their lawsuit dismissed.

That in turn led to great uncertainty in the scope, validity, and value of a patent. Clients hate uncertainty. That's what led to the creation of the Federal Circuit: To try to bring more uniformity to the judicial interpretations and applications of patent law.

Well, that's one interpretation of the history of patent law. Another might note that patentees became enormously more powerful when the CAFC was created, winning a much higher proportion of cases. The metastatic growth of the patent system was a goal of the patent bar.

"To try to bring more uniformity to the judicial interpretations and applications of patent law"

That isn't an improvement when the decisions are consistently bad.

> The metastatic growth of the patent system was a goal of the patent bar.

Back then, I was a baby lawyer in one of the largest patent-law firms in the U.S. I don't remember metastatic growth being discussed as an explicit goal, but there's no question that patent attorneys, on both the plaintiff- and defense sides, welcomed the greater prestige and income that went with litigating bet-the-product-line infringement lawsuits.

I think you mean "East Texas": http://en.wikipedia.org/wiki/United_States_District_Court_fo...

Thanks, I probably do. :)

>which has a substantial number of judges with degrees in science and engineering.

Do you have any numbers to support that assertion? I'm interested in what you consider to be "a substantial number"

At least 6 of 18 current Fed. Cir. judges have a STEM degree (not counting some of the unspecified B.S. degrees). All or almost all will hire one or several law clerks with an science or engineering degree.

How many of them come from software?

Not a single one. Mostly chemistry and electrical engineering.

It seems that the attitudes toward patents of engineers in the traditional engineering disciplines may be expected to differ from software engineers. Thus, I don't see it as being inconsistent to want more software engineers to make patent decisions.

You can look it up. There are 12 seats for judges, all currently filled. Six retired judges are on active senior status and can take as many or as few cases as they would like. They all have Wikipedia biographies.

Notice that patent lawyers gain status and power through the cancerous growth of an irrational, unpredictable, totalitarian patent system shoving its filthy tentacles far beyond the law into areas like software where it does not belong. Therefore the most scientifically literate patent judges are the worst judges on the court, advocating for their own personal interest and dispensing with the law at the cost of innovation and science.

Chief Judge Prost and Judge Dyk are the leaders of the rational restraint faction on the Court, pro-patent but not biased or irrational. They have no extensive science background but often appear to understand science and engineering issues far better than the judges that do because they are unbiased.

http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_...

Not that this is what you were saying, but that criticism applies to almost everyone in almost every legal system.

"If only Legal System X had more People Similar To Me That Agree With My Values, The World would be a better place."

It's arguably the driving sentiment behind representative democracy.

I don't think the issue is that judges don't understand technology. I think the issue is that judges in the Federal Circuit don't understand patents. They've drunk the patent kool-aid, and they aren't listening when the Supreme Court repeatedly informs them that their view of patents is faulty.

"the U.S. legal system lacks people, particularly judges, with technical backgrounds, yet at the same time are intensely unhappy with the decisions of the Federal Circuit"

Agreed that what we need are smart generalist judges who care, not technology specialists. Tech specialists are as likely to become corrupt as any other specialists that set and expand the limits of their own power. The CAFC is bad because abuse of its power is in the interest of the judges, not because of ignorance. The result is the worst technology decisions we could fear.

Sometimes technical illiteracy seems to shine out as a problem as in the recent EU decision on "forgetting," but the problems there are obvious to any educated layman. It's not tech ignorance that leads to bad decisions but plain old ignorance and corruption by personal interest.

I find the self interest argument silly. A federal court of appeals appointment is a lifetime appointment, and the last step of a career. There's no revolving door, consulting gigs, etc. Almost all judges serve until they retire entirely, and a COA judge is more likely to die in office than take another job after their service.

Your line of reasoning is an instance of a common strain of intellectual laziness: "I don't agree with you, therefore your motives and intentions must be bad or self-serving."

There are major ideological issues at play. Many people with no personal interest believe in patent maximalism, just as many people believe in maximization of other property rights. A lot of people think we should privitize water--do you find it so hard to believe that many think we should privatize ideas?

My own background is in aerospace engineering. I never imagined until I got into software that anyone would be opposed to patents. When everyone around you wants to work for Pratt and Whitney or Boeing, its easy to dismiss troll lawsuits as: "some minor thing that just affects those startups and their software stuff. Real engineering companies like DuPont and Boeing and Pfizer need patents because those Chinese companies will rip you off and copy your designs down to the English silk screening."

I think that's not an unfair characterization of how many engineers think about patents. And the views of the broader engineering community are what inform judges and legislators. I think that's a lot simpler of an explanation for the state of patent law than self-aggrandizing judges.

The two explanations don't contradict each other. In fact, it's clear that self-interest and a "filter bubble" à la déformation professionnelle would reinforce each other. Why take such pains to differentiate between the two?

Because the "self-interest" angle is intellectually lazy and in this case very attenuated. There's only so much self-interest you can ascribe to someone with a Constitutionally-guaranteed salary fixed by statute.

Clicking through the wikipedia link provided below, I find that six of the twelve non-senior members of the court are described as having worked as patent lawyers, taught patent law, or worked for the USPTO. Several others are described as having worked for firms that do patent law, although their specific duties while there are not described.

The point is that after self-interest affects one's thinking during the first several decades of one's career, one is unlikely to have a contrarian epiphany after appointment to this court.

I think this is basically right, though I want to point out that this is not the same as self interest or corruption -- it's an instance of institutional bias. If I'm understanding you correctly, your argument (which I agree with) is that judges from the backgrounds that you list have spent years steeping in a certain intellectual environment where, simplistically, everyone is a patent maximalist (or, similarly, where nobody questions the fundamentals of the patent regime). They won't immediately (if ever) lose this mindset once they're appointed to the bench. The only reason this distinction matters, I suppose, is that it is fairer to the judges themselves than calling them "corrupt" or "self-interested." It's not the judges' fault if they have worked at patent firms for 30 years before they're appointed. It's the fault of the people appointing them for not selecting from a more intellectually diverse set of candidates.

I only count two who worked in private practice as patent lawyers. Working in-house or teaching results in a very different set of incentives. What does my criminal law professor or my securities law professor think about criminal or securities laws? That we should have them? Probably. That they should always be stronger? Quite often the opposite.

Working in-house or teaching results in a very different set of incentives.

Working in-house does not result in different incentives, any more than slip-and-fall defense lawyers want to see tort reform happen, which is not at all.

In-house patent counsel doesn't defend patent litigations. That is done by outside counsel. They mostly deal with licensing and the like. They have a general interest in patents continuing to exist, obviously, but, especially at large companies, not any particular interest in seeing more or less litigation.

Patent defense counsel definitely does have an interest in more patent litigation, but the Fed. Cir.'s decisions don't exactly serve that interest. As a litigator, you prefer fuzzy rights to clearer stronger ones. The Fed. Cir. has been making patent rights stronger, but has also been trying to draw more bright-line rules. The Supreme Court has tended to want finer distinctions to be made, which lead to more litigation, not less.

Patents for physical objects behave much more sensibly than software or business model patents, though. You're much less likely to infringe them accidentally. The network effects are not as strong. Although it's ironic that you mention Boeing: the early aircraft industry was held up by patent licensing fights ( http://en.wikipedia.org/wiki/Wright_brothers_patent_war ) which were only resolved by government action. It's still a very unnaturally structured industry shaped by nationalist interventions in each country.

> Your line of reasoning is an instance of a common strain of intellectual laziness: "I don't agree with you, therefore your motives and intentions must be bad or self-serving."

That's not really intellectual laziness. If two people disagree on an issue that's not purely subjective, then the disagreement must ultimately stem from at least one of three things: (1) the parties are working from different facts; (2) the parties are working toward different goals with different motives and intentions; (3) at least one of the parties' reasoning is flawed. When appellate judges so clearly spend a lot of time gathering information and thinking through their reasoning, it makes (2) seem relatively more likely.

The issue with the Federal Circuit is that it has effectively become incestuous with the industry whose cases it hears, not that the judges don't understand science or technology. As such it is less a court and more a rubber stamp.

This seems pretty facile. What about the very many cases where both parties in a patent dispute come from "the industry whose cases [the Federal Circuit] hears"? I would think that, in many cases, the defendant in a patent suit would come from the same "industry" as the plaintiff. That's why they're using the same or similar technologies, no?

Remember, also, that when these judges were in private practice, they probably did about as much defense work as plaintiff-side work.

The "industry" in this case is not companies which hold patents, but rather attorneys who handle patent cases.

What makes you think that judges, at the apex of their careers, appointed by the President of the United States, and with guaranteed life tenure would, instead of attempting to do their jobs in good faith, think to themselves "hurr, screw my professional reputation, let's help some other lawyers make a bunch of money?" Isn't it more likely that they just have a different view than you do on a very complicated legal topic?

Sure, they have been on a bit of a losing streak at the Supreme Court, but care to wager what percentage of the Federal Circuit's docket actually gets reversed? Hint: it is less than 0.2%. There may also be other factors at play: the federal circuit, being a specialized court, tends to be used as highly persuasive authority on IP issues in circuits throughout the country. Given this structure, there is rarely any need for the Supreme Court to resolve a split between the circuits in an IP issue, which is one of the reasons that they commonly review lower-court decisions. Given this fact, why would the Supreme Court bother to hear a correct decision of the Federal Circuit? Might it not be the case that the Supreme Court usually has little reason to review Federal Circuit decisions unless they are wrong?

The Supreme Court's job is less about correcting bad laws than striking down unconstitutional laws. Many terrible laws can be totally constitutional. The best way to fix a bad law is to replace it with a better law.

I'd say that the Supreme Court isn't so much correcting bad laws as correcting bad Federal Circuit interpretations of the law.

The Supreme Court's job is less about correcting bad laws than striking down unconstitutional laws.

The judicial power in the United States extends to far more than "is this constitutional or not". It includes how to interpret and apply laws other than the Constitution, and the Supreme Court is the final stop for that process.

Much of the debate about the Federal Circuit is that its interpretation and application of patent law departs radically from the Supreme Court's interpretation and application.

Oh I agree. But the best solution would be just to write better laws in the first place -- laws that can't be interpreted to produce the mess of a patent system that we have right now.

The USA seems to have the most incredibly lousy "justice" system. Laws are made by lobbyists and enforcement of those laws, sometimes involving judgments of billions of dollars seem to rest on some good ol' boys in some dingy Texas courtroom.

Surely it can't be as bad as it seems to this outsider - can anyone point to a good guide on how this all works?

> Laws are made by lobbyists and enforcement of those laws, sometimes involving judgments of billions of dollars seem to rest on some good ol' boys in some dingy Texas courtroom.

It's not nearly as bad as you make it sound, but there's certainly a kernel of truth to it -- not just in patent law, but in law generally. For example, look at Tesla Motors having to contend with state laws protecting car dealers, and Uber and Lyft with taxicab laws, and AirBnB with hotel laws, and craft brewers with alcohol-distribution laws. All those laws have at least some "rational basis," but it's no secret who pushed to get them enacted and who pushes to keep them in force.

In law school, I had a hard time getting my mind around that brute fact: Power matters, even in the legal system; no matter where you go, people push to get the government to (i) help them do what they like and (ii) stop others from doing what they (the pushers) don't like. I tell my students not to be disillusioned or discouraged about that, but to accept it for what it is; plan around it; and get on with their business. [EDIT: I agree with the sibling commenters who say that in this regard the U.S. is way better than a lot of places.]

By far the worst part of our legal system is the massive of proliferation of laws over the past few decades that govern every single aspect of our lives -- by far more laws that any one person can understand and remember.

The result is that some of the most honest, ethical members of our society are being charged with felony offenses for "crimes" that 10 years ago might have resulted in an oral reprimand from a boss at work.

The U.S. has a tradition of litigation, which forces all these issues into the public. Do you think there's less influence-peddling in say France or Italy? In places where the decision-makers can't get sued over every little action, you don't even need to have a lobbyist make a law.

Take something like bribing officials in developing countries to get contracts. European companies are far more likely to engage in such behavior than American ones. What do you think that says about their behavior at home?

"Take something like bribing officials in developing countries to get contracts. European companies are far more likely to engage in such behavior than American ones."

It's legal for European companies to bribe foreign governments to get contracts. The Europeans don't consider their laws to apply outside their borders, so their companies can comply with local law.

The USA has the Foreign Corrupt Practices Act that punishes US citizens or companies with criminal penalties on return to the USA for ordinary business practices in foreign lands. An ambition to clean up foreign corruption keeps US companies out of some countries.

The fact that it's legal doesn't mean it's not morally objectionable. You can argue that not the choice not to make it illegal is a jurisdictional one, but that doesn't change the fact that European companies engage in the practice when they could choose not to. I think that says a lot about European attitudes towards corruption versus American ones.

The U.K. also has the UK Bribery Act which is appears to be more expansive than the Foreign Corrupt Practices Act (the U.S. counter-part). Like the FCPA, it applies to acts globally for companies with part of their business within the U.K..

It's a very messy system, no doubt. It sometimes works, sometimes doesn't. But it's remarkably public, and there's usually a clear challenge path.

I'll put it this way, if I was suspected of a crime, I'd rather be tried in the U.S. system than just about anywhere else.

I'd rather not--consider how few cases make it to trial.

There is a massive amount of douchebaggery that goes on to keep you from ending up in court, and at that point, they'll nail you to the wall for being uppity. At least, that seems to be the consensus these days.

Plea bargaining is more like a gambling buy out. Plea "guilty" and we'll guarantee you a lighter sentence, plea "not guilty" and be prepared for a long and expensive trial, but you might get out of it.

Actually, the trial judges in the U.S. have a pretty good reputation as far as fairness and incorruptibility (sure it happens, but it's not really common).

It's better than say Italy, which is considered pretty suspect or Japan, where you know the conviction rate is like 90%.

Here's one historical explanation of common law that might provide some insight:

http://faculty.msb.edu/hasnasj/GTWebSite/nyufinal.pdf

...and not directly applicable for this discussion, I also like "The Myth of the Rule of Law":

http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm

OP Cites Judge Prost's dissent in Alice, "The majority has failed to follow the Supreme Court’s instructions—not just in its holding, but more importantly in its approach."

But that was about the awful judgement of the three-judge panel. The ruling was reexamined by the whole CAFC and a 5-5 hung court could not decide weather to keep the ruling intact. Until the Supreme Court rules, that 5-5 non-decision is the final word. Any rational decision by the Supreme Court -- concluding that Alice's patent is invalid -- will not be considered a reversal.

Also, it is considered unlikely the decision will reach the question of software patent eligibility. It will probably turn on abstract idea or business method eligibility. The patent monopolizes any use of computers in handling escrow accounts.

while this isn't 100% inaccurate, one major headache are vague rulings from SCOTUS. the "reasonable certainty" test is a good example as well as their "abstract means abstract" pseudo-standards. while SCOTUS paints with a broad brush (rightfully so), many of their decisions are borderline meaningless other than to say to the CAFC "no you're wrong," which results in multiple rounds of these type of decisions (often on the same issues, or variations of them). that being said, the closeness of the CAFC to the bar is quite troubling and the e-mails that Rader sent to attorneys who argued in front of him were pretty embarrassing for all involved.

Hah, I knew who the author was going to be before I even clicked the article. (Hi, binarybits!) Allow me to rebut some points:

1. If anything is to be blamed for the "explosion of patent litigation in recent years" (for certain values of "recent"), it's the following:

a) the recent AIA "joinder" rules regarding how many defendants you can sue together, forcing trolls to file multiple suits where they would have filed one giant suit; and

b) Genentech v Medimmune [1], which made it possible for potential licensees to file a pre-emptive "Declaratory Judgement" lawsuit if someone even approached them to discuss a license, which forced licensors to take sue-first-ask-questions-later attitude to avoid ending up in a defensive position.

2. As this patentlyo post [2] points out, the CAFC is not a single-minded group of judges. Most of the decisions that were reverted by the Supreme Court had CAFC judges with dissenting opinions. (As many as 5, as in the Limelight case.) And if you need data as opposed to examples, well, there's a study [3] finding that this court had the "second highest percentage of dissents amongst the circuits studied".

Further, since Bilski, the SC has agreed with the CAFC 7 out of 13 times [2], which is not too bad. But there's more: the TFA uses this link [4] to show that the Supreme Court reversed the CAFC 10 times. Somehow TFA does not mention that there were a total of 40 cases since the CAFC was formed, which indicates that the Supreme Court affirmed the Federal Circuit decision 75% of the time!

3. The Supreme Court is not infallible, especially when it comes to patents, because I'm guessing it is a relatively esoteric part of law. This patentlyo post [5] points out one potential error in the Limelight case. The Prometheus decision was another example where they actually conflated patent eligibility with patentability [6, 7, 8]. This is such a basic mistake that even a non-lawyers like us can understand it.

4. Recent empirical evidence indicates that the Federal Circuit is no more "patent friendly" than district courts [9]. In fact, if you look at the chart 2, the rate of invalidating patents has been increasing steadily since 2000. (To be fair, they theorize it's because of Supreme Court pressure.) But if you look at chart 4, the CAFC has consistently been affirming the district courts findings of invalidity the vast majority of the time. So no only does the Supreme Court agree with the CAFC more often than not, so do the district courts.

1. http://en.wikipedia.org/wiki/MedImmune,_Inc._v._Genentech,_I....

2. http://patentlyo.com/patent/2014/06/federal-circuit-really.h...

3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1598419

4. http://writtendescription.blogspot.com/p/patents-scotus.html

5. http://patentlyo.com/patent/2014/06/judicial-hypothetical-li...

6. http://inventivestep.net/2012/03/20/supreme-court-continues-...

7. http://www.boulwarevaloir.com/article-Mayo-Promethus-pub.pdf

8. http://www.ipwatchdog.com/2014/03/31/missed-opportunities-fo...

9. http://www.morganlewis.com/pubs/Smyth_USPatentInvalidity_Sep...

The current Supreme Court is pretty rogue itself.

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