[btilly]

Ah, this decision is from the U.S. Court of Appeals for the Federal Circuit. Totally expected, and we need to get rid of that court.

For those unfamiliar with the history, that is the court that all patent cases go to. They've been co-opted by patent lawyers, and decide very much in favor of patent holders. Every so often the Supreme Court takes the time to review one of their decisions, and inevitably overrules them. So in their next ruling they find a way to pay lip service to the Supreme Court while ignoring what that court said.

So the rhythm goes like this. You go to your local court, and win or lose based on the jury. Then if the patent holder does not like the decision, you go to the U.S. Court of Appeals for the Federal Circuit. And pretty much inevitably will win. If the challenger is very, very lucky, the Supreme Court will have time to hear the case. And you'll get a balanced decision for the challenger. (I mean that literally. The Supreme Court does not have time to hear many of these, so they just pick the most egregious, and issue a balanced decision. But since they picked egregious cases, the patent holder always loses.)

If we could just replace the one court in the middle with one that actually listened to the Supreme Court, then patent trolling would be dealt a fatal blow. I shudder to think of how much its existence costs legitimate business in this country every single year.

[masklinn]

> They've been co-opted by patent lawyers, and decide very much in favor of patent holders.

Co-opted? It's been run by patent lawyers pretty much from the start. See http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appea... for a history of the place.

[ajb]

That isn't what the article says, though: 'As patent scholar Mark Lemley put it on Twitter, “we’ve got two Federal Circuits on this issue, and it seems to depend on the luck of the draw"'. Mark Lemley is a high profile (sceptical) patent scholar. If he is correct, then there are some voices of sanity on the Federal Circuit. The question is, is the influence of the voice of sanity increasing or decreasing?

[DannyBee]

It's about the same. At least one of the newly appointed (in the past 3 years) judges is rabidly pro-patent

In this case, the decision is by chief judge radar, who believes the court's goal should be to strengthen intellectual property protections.

How do i know this?

He told me (and the rest of the class) this, when I took his class on the federal circuit in law school many years ago.

Silly me, of course, always thought courts were there to decide law, not have policy goals.

In any case, this is one of a long line of the federal circuit giving the middle finger to the supreme court. Judge radar and others basically believe the supreme court is not helpful to them when they are trying to create rules practitioners can follow, so he tries to ignore them when possible.

He also cites his completely ridiculous reasoning from CLS Bank:

  At bottom, with a claim tied to a computer in a specific 
  way, such that the computer plays a meaningful role in the 
  performance of the claimed invention, it is as a matter of
  fact not likely to pre-empt virtually all uses of an   
  underlying abstract idea, leaving the invention patent  
  eligible

I'm not even sure how he can say this with a straight face.

[rayiner]

Preempting virtually all uses of the underlying abstract idea is a rationale for not making abstract ideas non-patentable, not the test for what is a non-patentable abstract idea.

[DannyBee]

I don't disagree, but Radar in fact, cites it as one good test for whether something is a non-patentable abstract idea. Repeatedly.

[fpgeek]

If I'm understanding you correctly, he's using it as a necessary test for being an non-patentable abstract idea rather than as a sufficient one?

[inafield]

Couldn't such words as what he said in your class be evidence that he is in some form of contempt of court for not ruling unbiasedly?

[rayiner]

There is nothing unbiased about having a judicial philosophy. "Bias" means you unfairly favor one party in a particular case over the other. Lack of bias does not require that you approach each case as a tabula rasa.

For example, I imagine lots of people on this website would be happy if a judge took an expansive view of the 4th amendment and asserted that was important for courts to strengthen 4th amendment protections. And that would be totally okay.

[DannyBee]

In the theoretical world where ethics is as it is on the bar exam: Maybe? Hard to say, you'd probably need a bit more facts. i'm sure with enough data from speeches he has given, yes.

However, In the real world, where manufacturing evidence against people gets you nothing, or repeatedly encouraging clients to lie under oath, and helping them, gets you suspended for 9 months (http://overlawyered.com/2013/05/n-y-p-i-lawyers-are-suspende...), no, it would not make any difference.

(I agree, btw, that maryland would have disbarred those guys. I'm licensed there, and it's one of the few states that takes ethical obligations seriously)

[btilly]

I am sure he knows better than I. However from my point of view, those two positions are likely to be "extreme" and "very extreme".

(My point of view is that we would be better off without software patents. It would be hard to find a US patent lawyer or court who would agree.)

Also a random note in case anyone gets confused. There is only one such court, but cases are often heard by a subset of the justices. So what result you get can depend on which justices hear the case. Mark Lemley's claim is that there is a sharp divide between the justices.

[rayiner]

> There is only one such court, but cases are often heard by a subset of the justices.

To be specific, like all U.S. Courts of Appeal, the Federal Circuit hears cases in panels of three judges, drawn from the overall pool. In certain circumstances (notably, anything that requires a prior panel opinion to be overruled), a majority of the judges on the court may vote to rehear a matter en banc, in which case all the judges on the court vote on the outcome.

If I recall correctly, the panels are assigned randomly as the cases come in, so if there is a marked division in opinions within the court, the outcome can depend heavily on the luck of the draw.

[WildUtah]

(My point of view is that we would be better off without software patents. It would be hard to find a US patent lawyer or court who would agree.)

Justice Stevens wrangled four votes on the Supreme Court for that proposition as recently as 2010. If we could replace some of the pro-software patent majority (Roberts, Scalia, Kennedy, Thomas, Alito) in the Bilsky decision, maybe Breyer could wrangle five votes someday.

Of course, the CAFC might just overrule the Supreme Court if that ever happens.

(You say the CAFC can't overrule the Supreme Court? Wrong-o! [0] Don't read the link unless you're in a profanity-safe environment; not because it contains profanity, but because you're likely to shout some.)

[0] http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-pr...

[fpgeek]

Sadly, since 2010 the mountain has gotten a bit higher: the "no software patents" side has lost Stevens' vote and his replacement Kagan's position is unclear.

[btilly]

Patent lawyers tend to be significantly more in favor of patents than Justice Stevens.

As for courts, given currently binding precedent for software patents, barring changes in legislation, no court other than the Supreme Court should decide that software patents should not be allowed. Given that the Supreme Court failed to come to that conclusion, it is hard to find a court that would say that. :-(

[WildUtah]

The CAFC handles more than patent cases. It also deals with federal employee disputes and some international trade law.

The judges are appointed not just from the patent bar but all the areas of jurisdictional experience.

Today there are six patent lawyers and four others on the CAFC with one of each awaiting confirmation. There is a rumor that Obama's patent lawyer appointment is actually better than average, but we won't know for a while; the Senate isn't approving new judges much anymore and vacancies continue to accumulate throughout the system.

The CLS bank v. Alice decision this spring came down 5-5. The Alice patent was one of those egregiously bad, transparently fraudulent, and obviously invalid ones we hear about so often. It claimed a monopoly over most any kind of traditional escrow process organized by a third party over a computer network. The CAFC found it valid initially and then threw it out -- barely and over the technicalities of a tie vote.

The final decision was five patent lawyers in favor of validity and four non-patent lawyers joined by one patent lawyer finding invalidity. The dissenting opinions were particularly virulent and nasty in defending the patentability of everything you can imagine and wanting every bad and destructive monopoly to be found valid and granted repeatedly forever.

It's a funny thing; I once thought the way to clean up medical malpractice litigation would be a board of expert judges or advisors who knew when the science was real or just made up for the case. In fact, now I see that system would be even worse. There might be fewer decision made by juries on the basis of gross scientific illiteracy, but the new judges would become throughly corrupt and abuse the system mercilessly. In fact, every kind of special purpose court is probably worse than the cost of ignorance and random wrong decisions that generalist courts make.

[btilly]

I am fully aware that they handle a lot more than patent cases. However most of the decisions that they make which I have an opinion on do involve patents. So I tend to focus on what they do there.

My inclination is to assume that they are likely to be as bad on other areas as they specifically are for patents. However I don't pay attention to that, so I really don't know.

[bobwaycott]

The CoA for Federal Circuit operates very much like the FISC for patents.

[rayiner]

Except that's not remotely the case, at all. The Court of Appeals for the Federal Circuit issues precedent binding on all the lower federal courts in the country, to the exclusion of any of the other Courts of Appeal. The FISC issues precedent binding on... no one (other than itself).

[bobwaycott]

Apologies for not being excessively explicit--I was referring only to the fact that given their caseload and decisions, the CAFC often appears as a rubber stamp court for patent litigation.

I was not speaking about establishing binding precedent. However, even on that note, your argument rings hollow--the FISC has established precedent that has very much become the prevailing understanding of "legal" where its cases are concerned. That's why we've arrived at the mess we're in. Whether the precedent is binding or not is debatable, as nobody I've yet heard of is quoting FISC decisions in other law enforcement actions/cases. But when we have every official from the President onward declaring that everything is "legal" because it has been reviewed and decided upon repeatedly over the last few decades by "the courts", I think trying to make a technical argument on the binding nature of the precedents established is misguided.

[rayiner]

FISC precedent is not binding on any federal court but FISC itself. I have never seen a FISC opinion cited to support some point of law (and only one FISA Review Court opinion so cited: 310 F.3d 717), so I think it's ridiculous to say that "the FISC has established binding precedent that has very much become the prevailing understanding of 'legal' where its cases are concerned."

FISC precedent is important in the sense that it guides FISC itself, and it guides grants of foreign intelligence warrants, but at the end of the day, if the government wants to use information collected pursuant to a FISC warrant to prosecute you, it has to do so in a regular U.S. District Court, and that court is not bound in any way by the FISC's interpretations of the law. In contrast, in a patent litigation, all the U.S. District Courts are absolutely bound by the Federal Circuit's precedent.

[bobwaycott]

Are we talking past each other here, or are you just imagining a disagreement here and continuing to press a completely unrelated point?

You've said nothing materially different from me on the point that I made. You are pinpointing and continuing to dispute an off-hand comment about rubber-stamping with drawing upon the establishment of precedent and its binding nature on other courts, and again, I wasn't saying anything about that issue at all.

If I was to hazard a guess, I'd say you misunderstood the intent of my jab and are carrying forward an inconsistent comparison, cherry picking one minor detail to dispute the jab, and creating a bit of a straw man here that is completely pointless.

Here, I will say it again:

I was referring only to the fact that given their caseload and decisions, the CAFC often appears as a rubber stamp court for patent litigation. I was not speaking about establishing binding precedent [on any other courts].

Sheesh, friend. You're barking up the wrong tree here.

[rayiner]

First, you did say something about the precedent issue, because you claimed in your second paragraph that the FISC was creating binding precedent that shaped the law in its area. That's true for the Fed. Cir., but not for FISC.

Second, and this is more pointing out an implication of your point rather than a disagreement, FISC being a rubber stamp is much less of a problem than Fed. Cir. being a rubber stamp. FISC being a rubber stamp only affects warrant requests that come in front of FISC itself. Fed. Cir. being a rubber stamp has ripple effects throughout the entire court system because it creates precedent binding on every district court and appellate court in the country.

[WildUtah]

That isn't really what gp was talking about, but your point ignores the ways decisions propagate other than hierarchical appeals.

Since the Supreme Court has created large good faith effort holes in the exclusionary rule for law enforcement, any source of reliable warrants creates an unlimited opportunity for mischief. Other courts will have to admit evidence first suspected because of information obtained through any apparently valid FISA warrant.

And since FISC is a no-work sinecure for ultra-right judges to draw a salary and benefits for occasionally showing up to rubber stamp secret warrants, it blows a hole in any restrictions on search and seizure for anyone in any court with access to FISC.