[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.

[bobwaycott]

Are you just here for trolling?

I've tried to be very polite, but we're getting nowhere because we're talking past each other (most charitable reading I have).

My original statement, to which you replied with particulars about binding precedence, said absolutely zero about establishing precedents that bind other courts. Who cares if one court's rubber stamp affects a wider court radius than the others if they are both operating as rubber stamps for a particular kind of case and that is all that was being said?

If you want to have an exchange and dispute whether or not the CAFC operates as a patent litigator's rubber stamp in much the same way that the FISC operates as a spy agency's rubber stamp, then please do so. If not, then by the universe, stop changing the subject to something that is not of primary concern when evaluating whether or not the CAFC is a rubber-stamp patent troll's court. We have nothing to discuss on the precedent issue because I sincerely do not disagree or care to dispute the ways in which the FISC "shaped law in its area", as it is not at all related to the current thread.

[edit: removed strongly-worded-out-of-exasperation language. my apologies.]

[btilly]

I see both sides of this somewhat pointless argument.

The core issue is this. You are probably not a lawyer. Thus "rubber stamp for a vested interest" is enough to qualify two courts as being very much like each other.

By contrast rayiner IS a lawyer. (And one who is well-known on this site.) To a lawyer the key characteristics of a court are what it has jurisdiction over, and who its precedence binds. Because that is what matters in litigation. On these measures, the two courts are about as unlike as it is possible to be. FISC binds itself only. By contrast CAFC binds every court in the country that can hear a patent case except the Supreme Court.

I believe that this whole argument could have been avoided if you had realized that he was fundamentally right about the precedence issue (which he is), and limited yourself to the similarity of both being rubber stamps.

[bobwaycott]

Ah, but what is frustrating is that I DID limit myself to the similarity of both being rubber stamps only (albeit, sadly, in my followup, not original, comment where I tried to be explicit about my intended meaning). I even attempted to give a passing remark on that precedent issue, but only insofar as it was precedent within FISC, not any other courts (by mentioning in my first remark on the precedence issue that nobody I know of has cited FISC decisions in non-FISC cases/actions). I reiterated that limitation how many times?

The core issue is not that I am not a lawyer (although I am not; academics were political theory; ditched law/grad school route for programming). It is, rather, that I used "operates very much like" in a way that would spur a lawyer to step in and want to quibble over words, without pausing to reflect on the context in which the "operates very much like" was made. The primary fault is mine for being vague and leaving such a wide-ranging statement open to too much misinterpretation.

That rayiner made his first statement was understandable, and is why I offered the followup explanation. That we continued to further spiral around issues of precedence, which I understand, and with which I was not disagreeing, left me wondering what was going on. Had I suggested that FISC decisions bind other courts, I could completely understand. But I did not. Because it was rayiner commenting, who I know well from his otherwise very sensible comments here, left me wondering if he was trolling me for fun or something.

Anyway, this has hit the level of absurd for me. I'll back out because I respect and upvote all three of your guys' statements on the regular (you, rayiner, & tptacek), and I had zero expectation and no remaining interest in arguing over a stupid jab I shouldn't have made in a thread about a court decision.

Thanks for feedback.

[tptacek]

All of the 'rayiner comments on this thread confine themselves to the ideas on the thread itself. It's your comments that assault the people writing the comments, first by inventing a motive their authorship, and now by calling the author a troll.

[bobwaycott]

I typically respect and appreciate your comments, so thanks for interjecting.

I am not assaulting people writing comments. Of course, perhaps in your opinion using strong language equates with assaulting the eyes of the readers. I don't hold that view, but I'm happy to apologize if you've been offended.

I have not invented motives for rayiner's authorship. I have repeatedly asked what rayiner's motivation is because I am trying to understand why we're talking past each other when we don't have material disagreement on the precedent issue (while repeatedly calling attention to the fact that is not what I was referring to).

Just the other day, I read through a very lengthy exchange between you and other commenters doing the same thing--you asked a question that deserved answering, and everyone else changed the subject, diverted attention, attempted to get into your personal opinions and how that had fuck-all to do with your original question. You went what seemed like a dozen rounds continually asking people talking about different things why that had anything at all to do with what you were asking, and reiterating your question. I don't have the interest in going a dozen rounds with the same person to keep saying, "That is not what I was talking about. We do not disagree."

I made a jab at the CAFC, and have now wasted several comment rounds on trying to repeatedly explain to the same person exactly what I meant, that rayiner and I are not in material disagreement on the issue of precedents (though perhaps on our interpretation of precedent existing in FISC decisions, irrespective of their reach to other courts), that the issue of precedents is not at all related to the act of being a rubber-stamp, and apparently we can't get away from continually making pointless comments about precedents.

As for calling the author a troll? No, sorry. You're incorrect there. I asked if the author was here for trolling. It was an honest question, not an accusation. By the time we'd gone into the third round of saying the same things, I was seriously wondering if I was just being trolled for pedantic quibbles over how a particular word or set of words was interpreted.

[rayiner]

> My original statement, to which you replied with particulars about binding precedence, said absolutely zero about establishing precedents that bind other courts.

Your original statement also said absolutely zero about rubber stamping. Your second statement had two paragraphs: one about rubber stamping, one about binding precedent. It's not "changing the subject" if I fail to read your mind about what the subject happens to be.

[bobwaycott]

If you fail to read my mind? Certainly not.

If you fail to read my comment, in which I explicitly state, "Here is what I meant and my intention", and then continue to argue something on which we are not in disagreement? Absolutely.

I made it ridiculously clear what my statement meant.