Free the Amazon One-Click! Long Live Open Source Genes!
May 7, 2008 10:36 AM   Subscribe

“I actually ran it by a number of colleagues who teach administrative law and constitutional law,” Professor Duffy said, recalling his own surprise at finding such a fundamental and important flaw. He thought he must have been missing something. Law prof notices that every US patent approved since 2000 was approved unconstitutionally and thus are all probably invalid. Looks like he may be right.

Professor Duffy's journal article on his discovery.
posted by Toekneesan (49 comments total) 4 users marked this as a favorite
 
This is the Bush Administration, dude, there's no constitutional irregularity that can't be ignored.
posted by tommasz at 10:41 AM on May 7, 2008 [4 favorites]


deep rolling of the eyes...SER-prise, SER-prise, Ser-PRIZE! (in my best Jim Nabors voice)
posted by valentinepig at 10:44 AM on May 7, 2008


This predates Bush. But thanks for your insightful commentary, tommasz.
posted by resurrexit at 10:44 AM on May 7, 2008 [1 favorite]


I practice in the appeals court that handles these cases. I might have to reinvent myself as a patent attorney if this turns into a big mess.
posted by Ironmouth at 10:48 AM on May 7, 2008


You mean my steam powered penis pump design :::sniff:::sniff::: could be pilfered by someone else? OUTRAEG!!
posted by KevinSkomsvold at 10:49 AM on May 7, 2008


Sorry, Hardy Boys. Doing this is still patent infringing behavior. (Patent date: October 10, 1989)
posted by felix betachat at 10:51 AM on May 7, 2008


Not to nitpick, but he found a flaw in the appointment of judges for the Board of Patent Appeals and Interferences, not the issuance of patents themselves.

The DOJ is apparently working on a "legislative solution" to the problem, but it is potentially huge: 46 of 74 judges were unconstitutionally appointed and just about every three-judge panel has at least one of those judges on it.
posted by AgentRocket at 10:52 AM on May 7, 2008


Does this mean we get to do SCO again?
posted by enn at 10:54 AM on May 7, 2008 [1 favorite]


This is the Bush Administration, dude, there's no constitutional irregularity that can't be ignored.

This predates Bush. But thanks for your insightful commentary, tommasz.

Ok, let's try to rephrase tommasz's statement . . .

Given the precedents the Bush Administration has set, the law is increasingly selectively interpreted and/or applied so that it benefits the wealthy and/or the Administration's own interests. For this reason among others, this discovery is probably going to have little or no impact.
posted by treepour at 10:58 AM on May 7, 2008 [7 favorites]


I doubt it will really change anything. This country has a long history of ignoring "technicalities" that result in unconstitutionality.

There's still a fair bit of argument over whether the 16th Amendment (authorizing the Federal income tax) was properly ratified, but nobody -- outside some fringe groups -- thinks that it will ever really be repealed or lead to an elimination of the income tax. Earlier than that, I believe there was a similar argument over the 11th Amendment, which the USSC ended up settling.

Although my memory is a bit hazy on the details, there was also a discussion back in the late 90s that the final House vote on the Clinton impeachment violated the 20th Amendment, although I never really understood the grounds for it, and there was never a real chance of it being taken seriously in any event.

For better or worse, the courts are generally unwilling to take action that's going to rock the boat over what are perceived to be legal technicalities or nuances. Personally I wish they'd take a harder line more often, and force people to do things the right way the first time around, but that doesn't seem to be the way things go in practice very often.

I find this kind of stuff fascinating, but it's easy to get lulled into thinking that it's more important than it is. The courts are more than capable of ignoring anything they find too inconvenient, and do so with a fair bit of regularity.
posted by Kadin2048 at 11:01 AM on May 7, 2008 [2 favorites]


AgentRocket: "Not to nitpick..."

Nit picking is two posts below this on the front page.
posted by Toekneesan at 11:02 AM on May 7, 2008 [2 favorites]


Legal technicality harming big corporations found: Well, we don't want to take down the entire economy over some nitpicky detail.

Legal technicality helping big corporations found: The law is the law! Sorry, our hands are tied!
posted by DU at 11:02 AM on May 7, 2008 [3 favorites]


Ok, let's try to rephrase tommasz's statement . . .

Let's instead try to rephrase the government's argument:

The Patent Office if one of the few government agencies that generates a net profit every year. Hence, we never mess with it.
posted by Pastabagel at 11:05 AM on May 7, 2008


AgentRocket is right. The vast majority of patent issued since 2000 will still be valid. Only those patents that went up to the BPAI may be affected.
posted by gyc at 11:07 AM on May 7, 2008


Legal technicality harming big corporations found

of course, you have no idea whether the sum of rulings by the judges helped or harmed big corporations, do you?
posted by pyramid termite at 11:07 AM on May 7, 2008


Law prof notices that every US patent approved since 2000 was approved unconstitutionally and thus are all probably invalid.

Also, this isn't the case. Most patents are not appealed before the Board of Appeals and are never seen by a judge. The are simply reviewed and granted by examiners. These would all still be valid.
posted by Pastabagel at 11:07 AM on May 7, 2008


OK, enough comments on the meaning of the article. Now I can complain about the article itself. Why do we have to read past endless statements (and overstatements) about How Momentous This Thing Is and What a Bad Thing It Could Turn Out To Be, before we actually find out what the hell the Thing actually is?

Writers: quit being coy.
posted by Kirth Gerson at 11:16 AM on May 7, 2008 [1 favorite]


This has nothing to do with the Bush Administration in any sense nor do other actions of the Bush Administration have anything to do with this issue.

Essentially, this is like finding out in the 7th inning that the foul lines were drawn incorrectly. This isn't good or bad for big corporations as it has affected all parties equally in a way that's not quite bias but is merely against the rules.

Sure, had the foul lines been drawn in a ludicrous manner it'd be another story, but there has been no complaints until now and this is more of a technicality than anything else. Now I need to get back to studying for my Patents final, damnit.
posted by allen.spaulding at 11:24 AM on May 7, 2008 [3 favorites]


There's still a fair bit of argument over whether the 16th Amendment (authorizing the Federal income tax) was properly ratified, but nobody -- outside some fringe groups -- thinks that it will ever really be repealed or lead to an elimination of the income tax.
If you can show me non-wackball arguments over whether the 16th Amendment was properly ratified, I'd be amazed. Please do so.

The arguments that I am aware of are things like "The Sixteenth Amendment used the word 'States' with a capital S, but the thing that was ratified by the legislature of such-and-such a state used the word 'states' with a lower case s, so that thing that was ratified by the legislature of such-and-such a state was not the Sixteenth Amendment."

Or "Ohio wasn't actually a state until 1953, and President Taft was born in Ohio, and therefore Taft was not actually a citizen of the United States, and therefore he wasn't actually president, and since the ratification of the Sixteenth Amendment happened during his term in office, it wasn't actually ratified." Seriously, I'm not making this up, this is what people "argue".

Can you point to any non-wackball arguments over this, please? Thanks.
posted by Flunkie at 11:28 AM on May 7, 2008 [4 favorites]


Yeah, this is a small issue that has big ramifications but it's still a small issue. It's not a question that these patent judges are unqualified or that they gave bad decisions - the issue is that they were appointed by the wrong person. Had the same judges been appointed by the Secretary of Commerce everything would be peachy.

For a founding document, the Constitution sure has a lot of niggly details.
posted by GuyZero at 11:34 AM on May 7, 2008


of course, you have no idea whether the sum of rulings by the judges helped or harmed big corporations, do you?

Which is roughly how this will be decided - are there more powerful interests benefiting from these decisions and patents standing or benefiting from them being challenged.
posted by TheOnlyCoolTim at 11:59 AM on May 7, 2008


Which is roughly how this will be decided - are there more powerful interests benefiting from these decisions and patents standing or benefiting from them being challenged.

Do you really believe this? Wow.
posted by naju at 12:15 PM on May 7, 2008


Which is roughly how this will be decided - are there more powerful interests benefiting from these decisions and patents standing or benefiting from them being challenged.

Do you honestly believe this? Do you think that the Supreme Court, or whatever court does wind up deciding this, will compile some sort of Chart of Powerful Interests, a giant pro-con list to decide which side will win? Never mind that such a list would be impossible to make, never mind that the majority of patent contests are between two different "powerful interests," I just need to know if you honestly believe that nonsense, or if you're being deliberately obtuse.

Too frequently, political or economic power translates into power in the courts, but a knee jerk response that this WILL be the case before a decision has been reached by any court? That just makes it harder to oppose real injustice.
posted by Bulgaroktonos at 12:16 PM on May 7, 2008 [2 favorites]


Do you honestly believe this?

If all these patents were held by Joe Inventors who made things in their garage and were getting licensing terms or selling product like hotcake, the law would be a lot more likely to get strictly interpreted.

If all these patents were held by Big Corporation, Amazon's one-click patents and the patents on the latest lifestyle drugs, the law would be a lot more likely to get interpreted in a common sense "let's smooth this technicality over" fashion.

In reality it's not so clear cut so who knows how it will go, and I certainly don't think the courts sit down in a room and work out The Conspiracy. We just have systems set up that function to about the same ends as people sitting down and working out a Conspiracy. For example, Joe Inventor isn't going to have a legal team filing an amicus brief for his side.
posted by TheOnlyCoolTim at 12:22 PM on May 7, 2008 [3 favorites]


It's about burden to the court system, not business interests. The patents will just be appealed again. It won't really solve anything, it'll just add a nightmare backlog of 8 years to a court that's already in kind of a clusterfuck.

We're forgetting the real enemy here - meddlesome law professors. Why do you hate America so, Prof. Duffy?
posted by naju at 2:05 PM on May 7, 2008 [1 favorite]


TheOnlyCoolTim,

The problem with your argument is that there's no way for you to be proved wrong. Essentially, you've said that the legal system is set up so that the decision made in this case will be whatever benefits Big Corporations. Now you've predicted, based on this idea, what would happen if all the patents involved were held by Big Corporations or were all held by Joe Inventor. Obviously, however, neither one of this situations resembles reality, some of the patents are held by large corporations, some are held by small inventors, and I'd imagine a lot are held by medium sized or small corporations, which are somehow absent from your story. Now, given your predictions, and the complex nature of the factual situation, you can point to almost any fact and claim to be right.

If these decision are upheld, you can say "Aha! It's all to protect Amazon's One Click Patent." If they are struck down, you can find Joe Inventor who holds a random patent and say it was all to hurt him. Because your argument can't be proven right or wrong, it's not particularly helpful.
posted by Bulgaroktonos at 2:13 PM on May 7, 2008


The DOJ is apparently working on a "legislative solution" to the problem. . .

Given that it's a Constitutional problem I found that a particularly amusing statement. When this DOJ doesn't like the Constitution it legislates around it, which is sort of exactly the opposite of how the Constitution works and speaks volumes about this Administration.

Which is roughly how this will be decided - are there more powerful interests benefiting from these decisions and patents standing or benefiting from them being challenged.

Actually, as someone who practices in this area, I'll tell you that I had a similar view of the game until very recently. But if you look at the Amicus briefing in the MercExchange case (which has been discussed at length here on MeFi--it's the one about whether patent holders should get injunctions against infringers even if the patent holders are "trolls"), you see something pretty interesting: there are absolutely staggering amounts of corporate money on both sides of the issue, and the money isn't where you would expect it. Companies like Microsoft, for example, often argue for weaker patent protection -- and spend a lot of money doing it. So the money calculus is so complex that the Court seems to be throwing up its hands and actually trying to decide on the law -- which by the way has been an unmitigated disaster, but don't get me started.
posted by The Bellman at 2:20 PM on May 7, 2008 [2 favorites]


Because your argument can't be proven right or wrong, it's not particularly helpful.

If this is were to actually become an issue of concern (more likely they call it a wash and just say the patents stand since that's easier and doesn't rock the boat) look for those amicus briefs to be filed and lobbyists activated, etc.
posted by TheOnlyCoolTim at 2:21 PM on May 7, 2008


The article annoyed me because it spent a half-dozen paragraphs wailing about how this technicality could invalidate every patent law case since 2000 before telling us exactly WHAT is possibly wrong.
posted by KirkJobSluder at 2:27 PM on May 7, 2008


Law prof notices that every US patent approved since 2000 was approved unconstitutionally and thus are all probably invalid.

Good Lord, did you even read the article prior to posting it? That's not just some minor mistake you made there.
posted by caddis at 3:31 PM on May 7, 2008


KirkJobSluder,

You know what's also annoying?

I've got a patent law exam tomorrow--the last of my law school career. It's a fascinating, tricky, and (many would say) difficult area of the law, one that most law students who don't have a technical background avoid. It's an area in which Congress and the courts have struggled mightily to strike a fair balance between the extremes of discouraging innovation by toughening patentability standards and weakening patent rights too much and discouraging innovation by weakening patentability standards patentability and strengthening patent rights too much. In fact, I'd go so far as to say it's one of the most technocratic and least ideological areas of the law. Don't believe me? Just look at some of the Supreme Court's biggest patent decisions in recent years:

KSR v. Teleflex, 127 S. Ct. 1727 (2007) - unanimous
eBay v. MercExchange, 547 U.S. 388 (2006) - unanimous
Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co, 535 U.S. 722 (2002) - unanimous
Markman v. Westview Instruments, 517 U.S. 330 (1997) - unanimous
Warner-Jenkinson Company, Inc. v. Hilton Davis Chemical Co., 520 U.S. 17 (1997) - unanimous

What's annoying is when people inject ideology into an area of law that has been and that should be largely free of it. I've already gotten inured to uninformed lay commentary in areas like constitutional law and tort law--areas of law in which the major political parties have long taken sides and have drummed the appropriate buzzwords into their supporters' heads. But to see snarky lay commentary about patent trolls or biased judges protecting the big, evil corporation and its patents is just, well, annoying and depressing. What's next--partisanship in wills, trusts, and estates? Payment systems? Secured transactions? Water law?

Of course, there are policy disagreements in every area of the law, and patent law is no exception. People vigorously disagree about what should be patentable subject matter and how strong we should make patent rights. These are tough, largely empirical questions and not easily reducible to bogeymen like the evil patent troll or the evil corporation. (Certainly not a bogeyman like the evil, biased judge, which seems to rear its ugly head in any legal discussion. Really, people, the most judges haven't sold their souls to corporate interests and are honest people who try their best to reach the right result, even though you may not disagree with the decisions they make. Hell, I haven't become so cynical that I'll even say that the same is true for politicians.) To see the level of discourse about patent law be reduced to the level of a bad morality play is just sad.

I now understand how biology Ph.D.s must feel when they hear creationists or intelligent design attack evolution. You've spent years toiling away at low pay, chasing grant money, and gaining a deep understanding of difficult subject matter only to have some demagogue tell you--to cheering adherents--that you're wrong and have been corrupting America's youth.

I now understand how MDs must feel when their patients ignore their advice in favor of the latest alternative medicine fad. Four years of med school, years plugging away at a residency, only to be told that you're not sufficiently open minded to recognize the efficacy of the newest herbal supplement.

Instead, for the JD, it's apparently three years of law school only to see lay people carp on about how law--apparently even patent law!--is all just politics in the service of evil corporations or lining your own greedy plaintiff lawyer's pockets. (Or some crazy tax protester trying to explain to you that the 16th Amendment and the tax code really don't require you to pay income tax.)

Anyway, if you're a nonlawyer who really wants to learn something about patent law, I highly recommend this book.
posted by saslett at 4:06 PM on May 7, 2008 [6 favorites]


No area of the law is immune from ideology. Have they taught you nothing in law school? ;)
posted by caddis at 4:28 PM on May 7, 2008


Why do two MeFites have patent law exams on the same day?
posted by GuyZero at 4:31 PM on May 7, 2008


I think the effort being spent defending patent law would be better spent hunting down the idiots who let patents through for perpetual motion machines and common-sense things like swinging sideways on a swing.
posted by Mitrovarr at 7:49 PM on May 7, 2008


Why do two MeFites have patent law exams on the same day?

Mine's not until Saturday, but I study nonetheless. My casebook was coauthored by Duffy incidentally.
posted by allen.spaulding at 8:05 PM on May 7, 2008


Instead, for the JD, it's apparently three years of law school only to see lay people carp on about how law--apparently even patent law!--is all just politics in the service of evil corporations or lining your own greedy plaintiff lawyer's pockets.

i understand your point and your frustration, but your knowledge of the law and the judicial system and how they work is only as valuable to the general public as their belief in the legitimacy of the law and the system allows it to be - and as you can tell, an increasing amount of people are regarding some of that as illegitimate

that guy arguing about the 16th amendment is making an argument about legitimacy, NOT a legal argument - he is attempting to convince people that the income tax is a matter of crooked politics, not law

as for me, i'm not sure of the benefit of the patent system, especially one so badly run as ours seems to be - but that's an argument for political philosophy, not something i should try to disguise as a legal argument, or a cynical statement that, "HURF DURF RICH PEOPLE WIN" - ideology can be a part of this discussion, but it ought to be expressed a lot better and a lot more honestly than some people have been doing

the issue at hand simply illustrates that our legislators aren't as smart as people think they are - they screwed it up and i'm not smart enough to know how it should be fixed

don't expect the congresscritters on the committee that has to rewrite this botched law to admit THAT, though
posted by pyramid termite at 8:45 PM on May 7, 2008


What's annoying is when people inject ideology into an area of law that has been and that should be largely free of it.

To see the level of discourse about patent law be reduced to the level of a bad morality play is just sad.


saslett, I understand where you're coming from and mostly agree, but it seems to me strange and dangerous that the words you use implies a separation between ideology and law, and morality and law. You compare biology with law, as if you think there's a positivist rationality underlying law, and morality or ideology 'intervenes' on this, and I find this problemtatic..
posted by suedehead at 8:53 PM on May 7, 2008 [2 favorites]


'that the words you use imply...'
posted by suedehead at 8:54 PM on May 7, 2008


"Sit down, my son. We don't read most of the bills." -- John Conyers, Fahrenheit 9/11
posted by dhartung at 10:10 PM on May 7, 2008


I have two patents to my name, and I'm really sorry, saslett, but the system's a pile of junk, at least as it pertains to my area (computer science).

It's supposed to be the case that you cannot patent things that are obvious to any skilled practitioner of the art, and that you cannot patent things where there is only one solution to the problem.

It's supposed to be if you have a clear patent you should be able to defend your rights, with some work. And a patent is supposed to be clear and unambiguous.

None of this is true. Robert Kearns had a complete watertight case for his patents and he spent most of his life fighting to get what he deserved, finally winning completely after basically destroying his life.

Amazon's "One Click" patent, as well as those other bogus patents that cover things like "a mechanism to deliver content on request through an IP connection", show that the patent office has no trouble approving a patent that would be obvious even to a slightly bright high school student.

And the SCO patent fight has gone on for five years, and yet SCO has never been forced to explicate exactly what their claims are.


So if you're somehow claiming that the patent system has anything whatsoever to do with justice, I believe that the burden of proof is on you to exhibit at least some cases where people managed to get justice without spending millions of dollars.
posted by lupus_yonderboy at 10:11 PM on May 7, 2008 [1 favorite]


("Winning completely" as in "proving that his patents were knowingly infringed by every major car company." Clearly, reading the story of his life, Kearns lost overall.)
posted by lupus_yonderboy at 10:17 PM on May 7, 2008


Do you think that the Supreme Court, or whatever court does wind up deciding this, will compile some sort of Chart of Powerful Interests, a giant pro-con list to decide which side will win? Never mind that such a list would be impossible to make, never mind that the majority of patent contests are between two different "powerful interests," I just need to know if you honestly believe that nonsense, or if you're being deliberately obtuse.


I think that chart would take milliseconds to complete: "Powerful people generally want existing patents upheld."

As it stands today, the patent system is largely used as a weapon against smaller companies who don't have a patent portfolio to cross-license (or to use in retaliatory litigation). While big companies sometimes tussle with each other over one thing or another, the primary effect of the patent system is that large companies (those who can afford to patent every one of their employee's ideas) generally end up with a strong legal advantage.

The patent system is so deeply flawed, it's hard to imagine somebody who cannot immediately see that nearly all the gain from the system as it stands goes to existing powerful interests. Are you purposefully being obtuse, or do you really believe that there is some sort of difficult question as to who it is that would benefit or be hurt by the destruction of the last decade of patents?
posted by Project F at 10:25 PM on May 7, 2008


Project F - your comment is no more complicated than "there exists a status quo" and it's woefully uncomplicated. Yes, powerful people generally want existing patents upheld and they would also benefit the most if they were all overturned. Guess what, that's what makes them powerful. Believe me, Microsoft and GE would just love it if they could pillage the intellectual property of much worse-off inventors and entrepreneurs.

There would be no tech start-ups if they didn't have tools to protect against the wholesale appropriation by the powerful and patent law (like trade secrets, etc.) is one of these tools. What VC or angel funder would pump money into any new company if they knew that as soon as the product became viable, the industry leaders would appropriate it?

Simply pointing out that the interests of the powerful are aligned with the current system is neither an argument against it, nor much of an observation at all. Patent Law is far more complicated than the critics in this thread are letting on and if nothing else, it would be a good starting point to notice that different sectors have different opinions on the need for strong patent protection. Clearly pharmaceutical companies, given their lengthy and expensive development process, will argue for greater protection while software companies, coming from a background of quicker turnaround and greater openness, will have different interests.

Speaking about monolithic "powerful people" and "powerful intersts" is just stupid. Any reasonable criticism of late American-style capitalism needs to start with a nuance that you're just lacking. And there are plenty of good criticisms out there that need to be made but omg the mighty love patents!!!1!! is not it.
posted by allen.spaulding at 11:25 PM on May 7, 2008 [2 favorites]


it's hard to imagine somebody who cannot immediately see that nearly all the gain from the system as it stands goes to existing powerful interests.

Huh. Nope. Not seeing it.

Every cell phone manufacturer - and I mean every single one - would have stopped RIM form putting a mobile phone in the Blackberry if they could have. RIM has not always been as big as they are now. But RIM negotiated patent licenses and built up their own patent base for cross-licensing purposes. The alternative would have basically benn them getting to steal millions of dolalrs of research and development from Nokia, Motorola, Qualcomm, etc.

Oh, then they got successfully sued by a "troll" who was, in fact, someone who represented an inventor who patented the idea of mobile email before RIM got to it.

You should really go and read as much as you can about the RIM patent trial - it's very illuminating and there was a LOT of posturing on both sides to try to sway public opinion and/or possible changes to patent law. But in the end a big company lost and a little guy prevailed. It happens. But like anything involving courts, it didn't happen quickly.

As for companies forcing other companies to license patents, what the hell do you think patents are for? It's like saying courts force divorced non-custodial parents to pay child care. Patents are how companies protect their intellectual property. It's no more bullying than only being able to buy Exxon gas at Exxon stations.

Overall patents may not be perfect but what are the alternatives? All trade secrets all the time? Let me be the first to say: that would suck.
posted by GuyZero at 12:13 AM on May 8, 2008


It's not really about the interests of the powerful versus the interests of the weak. Too many people conflate the issues surrounding copyright and big media and the issues surrounding patents. There is a fight on between the infringer lobby (Intel and other electronics companies) and and the innovators who rely on patents to profit from their innovations (like pharmaceutical and medical device companies). They are the money interests. The little guys who profit from patents are caught in the crossfire.

Because most of the prior art in the electronics area was non-patent art and hard for the examiners to find, there are a lot of patents in this area that never should have issued. In that industry the people who don't want patents are the big guys. They are tired of one suit after another on these bad patents. Usually they win, it's terribly expensive and sometimes they lose, and often enough they settle just to limit the risk. The people with the patents are typically little guys, small companies and some patent trolls who buy their patents.

In this battle between the infringer lobby and the patent holders, guess who turned the tide in the Senate on patent reform (code words for weaken patents)? It was the unions. They like patents because products with value from patents that are made in the US represent jobs. Commodity products without patent protection represent jobs flowing across the border.

It's all very messy who are the interests here, big guys, little guys etc. One thing, at least in terms of obtaining a patent, the US rules, which differ substantially from the rest of the world, strongly favor the interest of solo inventors, small underfunded folks. They are a strong lobby on this issue. On the enforcement side, not so much, but that has less to do with patent statutes than it does with the general rules of litigation etc. in the US and how complicated proving a patent case can be. Anyway, in this area, the rich and poor can be found on both sides of the issues.
posted by caddis at 12:16 AM on May 8, 2008


I do agree with the idea of patents, please don't get me wrong.

Patents, copyrights, intellectual property, I'm all for these in moderation. I even think patents should be more sharply enforced than they are now; I think the Patent Office needs to upgrade its competence dramatically in the technical areas.

Frankly, I think it should cost more to file a patent, but the quality of the results should be much higher (and I'm not only talking as someone who had a company pay to file patents but as someone who hopes to patent some ideas himself one day). I understand that it might not be easy to defend a patent but I feel it should be doable for "a couple of hundred thousand dollars" in most cases.

My band won a trademark dispute against a major label (Columbia) for $600, because we had completely ironed down the trademark to our name, for a few hundred dollars and no lawyer. It was annoying to hand a lawyer $600 to defend our name, but we still have credit with him, and the record company had to completely back down.

In contrast, if you have a patent dispute it costs you $100K before you even get into the courtroom. There is literally no incentive for the larger company to back down (in the case of our dispute, because Columbia actually continued to use the name for a time after we'd informed them, they were forced to pick a name much further away from the the original than they would have been if they'd tried to make good immediately; we could have started to collect damages from them for each record sold after that point, and possible punitive damages too!)

And frankly, I think software patents are total bullshit. You can't patent mathematical ideas; how can you patent software algorithms? It's a dreadful practice (and note that my patents are software patents) because in software more than anything else, the ideas are mostly trivial (and the non-trivial ideas mostly come out of academia initially) and the implementation is the overwhelming bulk of the work and are protected by copyright already.

In summary, "idea of patents good" but "today's patent office broken".
posted by lupus_yonderboy at 8:46 AM on May 8, 2008


I think that chart would take milliseconds to complete: "Powerful people generally want existing patents upheld."

Powerful people want their own patents upheld. They want their competitors' patents overturned.

Very often, the competitors of powerful people are other powerful people.
posted by DevilsAdvocate at 11:02 AM on May 8, 2008


Wow. This thread just got a whole lot better. Hats off to lupus_yonderboy, caddis, and GuyZero.

Considering how tired and cranky I was when I posted my last comment (as evidenced by the misspellings and extraneous words), let me clarify some things.

@suedehead: In one sense, I agree with you. You can't fully separate ideology and law. There are often tough legal questions, especially constitutional questions, that will be answered based on the judge's ideology. That's not because all legal questions ultimately boil down to policy, but when there are good arguments on both sides, the arguments that will persuade the judge will most likely be the ones that align with the judge's personal beliefs (hopefully, his beliefs on statutory or constitutional interpretation, which should be at least a step removed from his political beliefs). But many legal questions aren't that close. In many (most?) cases the arguments on one side are going to be objectively stronger: there's only a handful plausible ways to read the relevant cases or relevant statutes and regulations and they point in favor of one side regardless of ideology. In these cases, judges (at least the ones who act in good faith) are constrained to rule in favor of one side, even though they don't personally like the result. It's these cases, not the tough cases, that show that law is separate from ideology.

In another sense, though, I have to disagree with you. There's no question that law is just legally enforceable policy. And there's no question that a lot of law, especially criminal law, sets forth binding moral rules. But once a law is passed, judges have to give effect to the legislature's policy preferences, not their own. Plenty of judges don't like harsh mandatory minimum sentences for some crimes, don't like sentencing people for simple possession of drugs, and don't like sentencing prostitutes. But they enforce these laws anyway. Why? Because the judge has to enforce the law even if he disagrees with it or thinks it's immoral. Again, this shows that law is separate from ideology.

I will give you one area, though, where ideology is paramount: criminal sentencing. There, the judge's political preferences will make all the difference in the world as to whether a criminal gets a high or low sentence (especially for drug crimes).

I guess, to summarize, a judge's ideology does matter, but law (or legal norms, if you want to be more descriptive) still greatly constrain the degree to which a judge can impose his ideological preferences on the rest of us. In criminal sentencing and close cases, where the judge has the most discretion, it matters the most. But in more run of the mill cases where judges are more clearly constrained by precedent and statutes (the policy judgments of the legislature and, if you will, of past courts), it matters far less. So, law isn't completely separable from ideology, but it's not all power grabs all the time, as some people would like to think.

@lupus_yonderboy: I wouldn't describe the patent system as "broken," but I agree with you that it's in serious need of repair. At the very least, the PTO needs better funding so it can hire more patent examiners, train them better, and pay them better. But fixing the PTO is something only Congress can do, not the courts.

As for the courts, they've been doing what they can to fix the system rule-wise. Many of the problems you describe will hopefully be ameliorated by some of the rulings that have come down in recent years. KSR, which made clear that the Federal Circuit's teaching, suggestion, and motivation test is not the exclusive test for obviousness, makes it much easier to bounce patents on obviousness grounds. Until that case came down last year, it was much harder. As another example, prosecution history estoppel is now more robust than it used to be, making it harder to argue infringement via doctrine of equivalents in a lot of cases. And today, the Federal Circuit is hearing arguments in In re Bilski, a case that is going to clarify the standards for process patents and may get rid of the patentability of business method patents entirely.

Apart from legal rulings, though, with the internet and better search technology, it's much easier to find prior art than it was ten or fifteen years ago.

Also, think about it this. If I correctly remember the statistics my patent law professor gave, more than 50% of all patents are economically worthless. Something like 10% or less of all patents ever go the full 20 year term because most patentees don't bother to pay maintenance fees for the full 20 years. An astoundingly small number of patents are ever litigated, something on the order of 1%. So, in a system where most patents are worthless and the vast majority aren't litigated, does it make sense to spend a ton of money and heavily scrutinize patents on the front end (the PTO) rather than on the back end (the courts)? Probably not. I'll grant you that we should spend more than we're spending now at the PTO, but you also don't want to have so much scrutiny at the PTO that it becomes economically wasteful.

I can't say I can give you an example of a case where someone "won" without spending "millions of dollars." It's true that the average cost of patent litigation is something like $2 million. The cases where someone "wins" without spending lots of money are cases where the parties settle and the case doesn't result in a reported opinion, so it never comes to anyone's attention but the parties; after all, if the patent is clearly very strong, the party that's going to lose in court is probably just going to settle quietly. But if the patent is at all iffy, or if the patent is strong but so valuable that it's worth dragging it out by making bad arguments in front of courts, then, yes, it's going to cost the patentee some money. But they're only going to spend millions of dollars if one or both of the parties think that it's worth it to spend that amount of money rather than execute a license agreement. It should come as no surprise that only the most valuable patents get litigated and the most valuable patents are worth spending millions of dollars in litigation costs on.
posted by saslett at 12:44 PM on May 8, 2008


@saslett: Because the judge has to enforce the law even if he disagrees with it or thinks it's immoral. Again, this shows that law is separate from ideology.

No, it doesn't. There's a meta-ideology that governs our law system by definition -- the ideology of saying "laws must be enforced". Within this ideology, there are laws created on the basis of 'lower-level' ideologies -- thou shalt not murder, property is a personal possession, etc.

Your example is of a clash of private and public ideology, which is (by definition) inherent in any society. Underlying the existence of a judicial system is the ideological presence of a social contract -- the agreement that, if the society creates rules, they're applicable to everyone in the society (this is in a democratic society).
posted by suedehead at 6:32 PM on May 8, 2008


« Older Construction Paper Feelings   |   "They don't call the vampire with math fetish... Newer »


This thread has been archived and is closed to new comments