Software patents are pitched as a policy choice that encourages programmers by giving them some financial incentive to invent more software.
That's how they have been pitched to programmers and the American people.
However, after having worked in the patent industry for a few years now, I can tell you software patents are really just a mechanism to redistribute the wealth of engineers to lawyers. Period. That's the end result. Nothing more.
I wish this was some sort of exaggeration. But it isn't in my opinion.
"Software patents are pitched as a policy choice that encourages programmers by giving them some financial incentive to invent more software.
That's how they have been pitched to programmers and the American people."
And after all that PR and propaganda from the patent bar programmers are firmly and solidly against the existence of any patents that read on software. Too many are able to think logically about the consequences to be scammed.
Congress, on the other hand, is not so hard to fool. Neither is the Supreme Court. That's why the dirge of lies continues. The patent bar is still going on about how patents will eventually stop harming and start promoting innovation in software.
Meanwhile patent lawyers are the highest earners in the profession, don't have to deal with criminals and the indigent, and expand in numbers every year by exponential parasitism while the software industry lives in fear and hides innovative techniques out of fear.
Here's the thing: It's not us engineers who pay the lawyers. It's our employers. We don't even get a say in the matter, and over time various changes in the law have simply tipped the balance even more in favor of the employers. Your employer can file a patent on your work whether you cooperate or not.
And it's not like they are going to pay us more if they stop filing patents. In fact, many firms pay a bonus if your work results in a patent (or even a patent application.) Clearly they see some value in them, and they have reasons to.
And this is true of all patents, btw, not just in software.
>And it's not like they are going to pay us more if they stop filing patents.
This is actually not true at all. The cost here isn't in the filing of the patents; it's in the nightmarish patent system that results in absurd litigation and related expenses. If the patent system were reformed to avoid this kind of expense, the company would have lower operating costs, which would be distributed in some way. While it's possible I suppose that 100% of those savings would be collected by shareholders as profit, it's much more likely that, like with anything else, the cost reductions would simply contribute to the size of the total pie, which would be split among owners and employees in proportions probably roughly similar to how it's split today.
That sounds plausible, but we all know that if there's a bigger pie, almost always the spoils go to the owners and employees get peanuts. Google and Apple are sitting on billions in cash and yet they colluded to essentially keep wages down.
Short term profits are what firms live off. EBIT is sacred regardless of your cashflow. (I am in no way supporting this mentality, just re-emphasizing it)
Google is far from the highest paid per employees in the US.
New York-based law firm Skadden Arps, rakes in over $180,00 a year. But Netflix, Mozilla, and VMware are are all well known tech companies that top the list.
> software patents are really just a mechanism to redistribute the wealth of engineers to lawyers
In some cases, probably true. But when big companies are duking it out, it's not the "wealth of engineers" that's getting fought over. It's wealth that would have been passed on to shareholders, directors, officers, etc.
Patent or patent, I don't see how engineers are going to get a bigger slice of the pie, no more than I can see how an artist should get a bigger slice of their pie. Those with leverage get a bigger piece of the pie, like the leverage you get when you control distribution or infrastructure of some kind.
That's why most music artists make little money. It has nothing to do with what % of a production the music artist is responsible for. After production there's also marketing and distribution. The same is for many engineered products.
Sometimes, there's a comment that just so tersely and poignantly coalescences my objection to a public policy of enormous import but minuscule attention. This is one of those.
I read an article by the Economist a few years ago supporting a more general notion that the legal system is subject to a natural increase in the quantity of superfluous fees that are tacked on like pork due to the fact that the legal system is run by lawyers, who naturally like policies and systems that help lawyers make money.
Is it normal in other areas of the law for the plaintiff to be able to choose the (extremely favorable) district and judge for the case? Cause I can't imagine this happening in any other area of law, either civil or criminal. It just doesn't seem right, especially when the bias is so clearly observable. IANAL though...
Nearly all aesbestos class action litigation is filed in Oakland --- it is perceived to have a favorable jury pool and you can always find a dockworker in Oakland who may have had contact. Forum shopping is so popular that it has a name: "forum shopping."
It used to just be:
Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business. 28 USC 1400
Then in 1990, Congress added:
For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. 28 USC 1391
This eviscerated the previous limitations.
Personal jurisdiction is a little tricky to explain in a single post, but suffice to say, for internet companies most likely the target of trolls, they will generally be found to be subject to personal jurisdiction everywhere in the US.
I'd quibble with that. In most areas of law, you are not able to freely choose the venue. However patent law is not the only case where venue choice both is possible and popular.
For example a lawyer looking to file a class action lawsuit often factors the venue that they will wind up in into their choice of a lead plaintiff.
Note that 28 USC §1400 is still in force; the Congress did not choose to remove the limits on patent case jurisdiction when it expanded other jurisdiction. It's right there in the US Code in black letters with no ambiguity.
But the notoriously corrupt patent appeals court -- the CAFC -- in its first decade of existence, abolished 28 USC §1400 by fiat.
The patent trolls went into business in East Texas soon after.
So is 28 USC §1400. It was not repealed and plainly sets more particular jurisdiction for patent cases. What can Congress do now to re-institute the validity of it? It's already in the USC. Pass a new clause "and we really mean it!"? CAFC judges have contempt for the canons of statutory construction when entrepreneurial judging can benefit them personally.
Oh yes - and not just plaintiffs. Next time you are presented with a contract or user agreement, browse through it looking for the section about 'choice of law', and you'll notice that often you are asked to accept that the rules of a particular jurisdiction will apply in the event of any dispute.
Yes although 9 times in 10 it's wherever the corporation is headquartered. That's usually their home turf, not yours, so it may help them, but mostly it's that they don't want to be bothered associating local counsel 100 times a year. It's rare for someone to insist on contractual choice of venue that's some arbitrary other location (like East Texas usually is).
You can file in any jurisdiction in which you have legal standing to file, which means any jurisdiction in which harm has been done to you. If you patent something, and someone infringes on it, and sells the infringing device nation-wide, this means that you can pick any jurisdiction nation-wide to sue them in.
Normally, you pick the one that you live in, so that you don't have to travel. But for patents, many people pick East Texas, since they're more likely to get the verdict they want there.
Basically, the federal circuit's view of 28 USC 1391 is very different than 28 USC 1400.
If you look at cases prior to VE Holdings, they view 28 USC 1400, and in particular, the definition of "resides", very narrowly (to principal place of business/corp hq).
If you look at VE Holdings, and their view on 28 USC 1391, you can see it greatly expands the definition of "resides" to include essentially everywhere.
The old language of the law had a requirement for "regular and established place of business" before suit could be filed. The new language requires "personal jurisdiction at the time the action is commenced".
The key difference is in whether or not you must have an established place of business for a suit to be brought against you in a jurisdiction.
Typically your main attorneys are located where you are. If you're going to be in a lawsuit somewhere else, you probably want to hire an attorney (or more) there as well.
It certainly can happen in certain other areas of the law. Recent example: the NFL filed in new York to prevent Tom Brady from filing in MN on the whole deflategate punishment case to try and avoid Brady getting a judge who consistently rules for the player in such cases.
Just speaking in general here, I can't think of any specific examples. Are there civil (not criminal) cases that have a heavy racial component where it would be favorable to file in an area with a particular demographic mix?
I think you'd be surprised at how low of an overhead some shipping companies run. I've visited the US headquarters of a publicly traded Greek dry bulk shipping company with a market cap in the hundreds of millions of dollars...it was in a strip mall in Richmond CA, and it looked like a small local accounting office with a staff of maybe 10 people.
> reformed rules would have forced trolls like eDekka to actually explain how their targets infringe their patents. However, that's not currently a requirement
How is it even possible to sue somebody for something you can't show that they did?
You are supposed to prove it during the lawsuit, but you can get one filed just on "belief" and vague accusations. This stays the lawyers bills running for the defendant while the plaintiff can just wait, which is a tactic often resulting in early settlements.
In the US there is something called rule 11 that prevents you from filing bad faith lawsuits, but it is a pretty low bar. IMO if this is strengthened by, say, requiring detailed claim charts up front, it can go a long way in deterring nuisance lawsuits.
It's a question of how much specificity you need when you're first starting the suit. Discovery is the process in a civil lawsuit that lets you figure out exactly what happened.
ED Texas did get a bad rap for being plaintiff-friendly early on, but that didn't last long at all, as the data shows. These days it seems to be favored for being a relatively fast docket and having judges with more patent-expertise.
> These days it seems to be favored for being a relatively fast docket and having judges with more patent-expertise.
Uh, neither of those are really true, the fast docket is especially wrong.
In fact, there are a host of reasons why the Eastern District is popular (your source is wildly out of date due to changes since 2010). There's a reason that 44% of all patent cases for the first half of 2015 were filed in the district[1]. Juries do indeed rule for defendants there a decent amount of the time, but the rules tend to be very plaintiff-friendly in the sense that they make it very expensive to go to court at all, making settling seem all the more attractive (which just so happened to be the exact business plan of the article's subject, eDekka LLC :) Lots of sources linked in [1]
Have the statistics changed since 2010? While the EFF goes on about "plaintiff-friendly" rules, it presents no link to any statistics on the win rates or settlement rates. It mentions statistics on how ED Texas rules differently on different motions, but what matters are the outcomes compared to other districts.
Even then the differences in statistics on rulings I believe can be explained by the relative sophistication of the plaintiffs who file there -- mostly patent trolls. Since trolls typically assert patents they acquire, they will go for "better" patents, and they can simply choose different patents to acquire when something like Alice comes along. Practicing entities have no such luxury and are stuck with the patents they were issued.
Lemley (the author I linked previously) and others actually have studies on these things. I'll have to dig them back up.
> Even then the differences in statistics on rulings I believe can be explained by the relative sophistication of the plaintiffs who file there -- mostly patent trolls
Absolutely trolls love it there. No clue what that has to do with your original point, though: the venue is absolutely advantageous to the plaintiffs and the rocket docket is a thing of the past.
But there aren't especially patent-savvy judges there when compared to many other districts, like the District of Delaware or the Eastern District of Virginia, both also very experienced as patent-litigating districts of choice.
Heh. More evidence for something I've been hearing for a while, the mass quantities of patent lawsuits in this "rocket docket" has had the side effect of educating everyone in it about this area of law, and it's getting harder to win a bad case.
All of the software patent trolls are pretty much going to be out of business in the next 12 - 18 months. It costs millions of dollars to run these operations, and most of them haven't been making any income for 2+ years now. All the smart trolls have moved on to trolling PTAB, and the dumb ones are just holding out hope that they either hit one last jackpot or else find some other way to monetize their portfolio.
"It costs millions of dollars to run these operations"
It costs millions on the defense side. The plaintiffs don't have any documents to discover and the attorneys are usually the partners in the scam, so it's almost free to them. That's the whole point of trolling in East Texas: the court rules make it even more expensive to be a defendant and cheaper to be a plaintiff.
>Scott McKeown has identified what he believes are some instances of parties not involved in a case of patent litigation using the inter partes review (IPR) procedure to squeeze money out of patent owners who’ve won court cases but haven’t yet received a check. Since IPRs are conducted by the Patent Trial and Appeal Board (PTAB) you could call these operators “PTAB Trolls.”
If patent trolls are moving to this, it seems to be a great development for society, since it makes patent trolling itself by both NPEs and PEs less profitable or unprofitable.
The legal system still seem to be broken, because it should offer a large reward to the "PTAB troll" to be paid by the patent owner so that instead of settling they would go through and invalidate the patent, while still getting money from the patent owner, who would also lose the money from the (non-)infringer.
Or even on contingency. That is, lawyers will do this for free and take cut of the payout, if any. The good thing about this model is that nobody wants to waste resources on a fruitless lawsuit, so they will only go ahead with cars that have more merit relatively.
> All of the software patent trolls are pretty much going to be out of business in the next 12 - 18 months
Sounds like an opportunity to me. They might have existing licensing revenue and they are going to be wondering what to do if patent trolling ain't the name of their game anymore.
Seems Microsoft made the patent "deal" with Google just in time. Soon they wouldn't have had any leverage to "threaten" companies with patent lawsuits.
Federal judges are not created with deep and intimate practical knowledge born of experience of the ins and outs of every area of federal law; they get educated by experience like anyone else.
Its EDTX, where the judges (and everyone else, including the local jury pool) have over time gotten more patent savvy, because of the propensity to file patent cases in that district.
Which is kind of the point of the "educating everyone" statement, as I understand it.
I guess. I dunno, I just always see lots of comments about how the EDTX judges are awful/pro-patent/getting kickbacks/whatever. So the idea that, hey, they just needed to be educated by presiding over a few cases... it's odd.
A lot of the comments I've seen to that effect are rank bigotry (I suppose I should disclaim I myself am from flyover country, extreme SW Missouri, which is culturally part of the South, and for that matter my mother is Cajun).
What's so difficult to believe about people being able to learn through experience? If any of these EDTX judges got reversed on appeal, that would have been a learning experience ^_^.
The community of attorneys and jusges handling patent cases didn't have the technical know-how to understand the breadth and depth of fuckery-duckery going on in the realm of obvious software patents, allowing trolls to pull a bankable fast one.
Enough fast ones get pulled and they start catching on. That's who's being educated: the courts and legal community.
The attorneys handling patent cases damn well better have the technical know-how to understand the subject matter they're litigating. As for the judges, this is the Eastern District of Texas.
Progress is slow when it comes to patent reform. Judges have a lot of control over how fast it happens, since they're really the only ones who can make binding decisions.
Of course it would be great if the patent office had made better decisions in the first place, but that ship sailed long ago.
... and the legislature can reform all of this over night, but big money and big business won't let it. they like the safety of patents even if they are not going to war with them. same mentally as guns i guess.
For most of the people I know that aren't in tech, patent reform isn't remotely on their radar. Congress isn't going to go against the money for an issue that doesn't have overwhelming popular support. Is there even a consensus on what would fix the problem? Banning software patents just covers one edge case, but there are plenty more issues in patent law.
Patents in all fields clearly slow down innovation by allowing the holder to slow down or stop derivative works. The common counter to removing patents altogether is big pharmacy. I don't know how much sympathy I can have for big pharmaceuticals either with how much they get away with: even with unpatented drugs we see anti-competitive behavior with companies like Turing. Clearly the innovation is profitable enough that funding it publicly and then reaping the benefit publicly shouldn't be a problem, right?
The other objection is that it promotes secrets over open innovation, but I'm not sure that is too valid either. The current status quo gags profitable utilization of research for 20 years. Surely there's an acceptable alternative.
>Patents in all fields clearly slow down innovation by allowing the holder to slow down or stop derivative works.
This theory is not supported by empirical evidence. There is plenty of evidence showing how industries became more innovative with the introduction of patent protection. This theory may however apply to industries where innovation is incremental and where claim boundaries are hard to define, like software, but evidence is hard to come by and only now are we seeing some empirical studies on the matter.
Is it really the same? I struggled over this a bit and I think I agree that the mentality is the same, but disagree on the nature of that mentality.
Moneyed interests want patents because it is easy for moneyed interests to acquire patents and more difficult for others. Such interests do not need to go to war. They only need speak softly and show their patents. Their hegemony is not threatened, even if they must fight amongst themselves.
Likewise, guns. Make it impossible for people to acquire guns and those with the guns remain in control. There is no need to go to war when those who would disagree with you are under your control because they cannot defend themselves.
> the patent describes (...) routine tasks that could be performed by a human.
Is this a good way of defining when a patent is invalid? Isn't everything (i.e.: all computations) technically tasks that could be performed by humans alone given enough time?
I'm not familiar with Alice. As far as I know, you're right, non-obviousness is different than patentable subject matter. Sorry to elide them together like that.
Not a problem, you did just as well as the U.S. Supreme Court. (Alice is a mess in my opinion, if you couldn't tell--it mixes two requirements that were supposed to completely separate.)
In the Bilski decision the Supreme Court drew a distinction between routine logical and mathematical operations that have existed for thousands of years and complicated technical operations like linear programming, encryption, and compression that truly change the operation of hardware and go far beyond mere logic and math. [0]
Only Judge Scalia noticed the idiocy in time to stop those specific examples from being binding precedent, though the principle still is. [1]
That's the level of understanding you can expect from the courts.
you missed the second part: 'eDekka said its patent claims to "improve the functioning of technology," but Gilstrap ruled the claimed improvements simply weren't present. None of the eDekka claims met the standard for patenting, Gilstrap found.'
Case after case we continue to see a pattern of apparent ignorance, incompetence or indifference on the part of the patent office.
I read through the claims. This patent should not have been granted. You can go back to the 1980's and find relevant prior art.
Are they playing "dumb" because of self preservation? In other words, if the patent office became really strict and only a handful of patents were granted every year they'd only need a fraction of the people, infrastructure and organization now in place. People would lose their jobs.
And so, if you want to keep your job, you issue patents like we are in the middle of a new scientific renaissance. More patents means more money being pumped into the system which, in turn, means you get to keep your job, your benefits and an amazing lifetime pension you did not pay for. You know you the patents you are letting through are crap but all you care about is your financial well being. You htink "Let the courts and those rich fucks sort it out" and move on.
Is it possible that the feedback loop at the patent office is such that volume, rather than quality, is what's remunerated? Never mind that this destroys innovation and causes huge financial losses across all kinds of businesses.
The fitness function might be such that optimization delivers exactly what we do not want as a nation but what the patent office, as an isolated organism, needs for survival.
That's how they have been pitched to programmers and the American people.
However, after having worked in the patent industry for a few years now, I can tell you software patents are really just a mechanism to redistribute the wealth of engineers to lawyers. Period. That's the end result. Nothing more.
I wish this was some sort of exaggeration. But it isn't in my opinion.