2. Your broader point about Apple and patents presumes that all software patents are always bad. That may be popular on HN, but I sincerely doubt it's that black and white. Yes, patent trolling trivial components or processes feels and probably is overtly 'wrong'. But there's a more nuanced debate about creating the right incentives to do difficult intellectual work that benefits everyone. There's probably a 'correct' granularity of patentable idea even in software.

2) I mostly disagree. Where software is so specialized and valuable, I anticipate that it would be held privately and not necessarily made public. This seems to me to be better protected by copyright and not patent law. IANAL, but copyright feels more appropriate, and while you might be right that there is some majestic software that is so unique, but yet so easily duplicated (without the source) that it deserves monopoly protection, I don't believe that exists, but if there are some pure examples that can be held up, I'd be happy to change my opinion.

A less aggressive option than getting rid of software patents entirely, might be changing the way that we apply for them. What if the source code itself was required to be submitted with the patent application, and not just the design. Part of the reason patents exist is to encourage the disclosure of the design, so that when the monopoly ends, society benefits from the advancement.

What if the patented software was always required to be open-sourced? Would this be a means for easily fending off trolls? They'd have to show a working program, for one thing (it's not clear to me that they do now), and failure to do that could be an easy way to get a summary judgement against them.

To bring it back to Apple, I have a hard time casting strong moral judgment on their stance when they're not patent trolling others, even if they're not leading the righteous revolution. Their Samsung lawsuit feels more along the lines of what you describe in the copyright realm -- it's a defense of their design / expression of the ideas.

See also many of Apple's patent lawsuits over the past 10 years.

Why would Apple shoulder the burden of the lobbying effort when all of the other tech companies would be happy to ride their coat-tails?

Additionally, the political climate re IP lobbying in the past 5 years has been non-optimal to push for changes. Apple has been involved in several very large IP disputes, which makes their involvement look self serving, the AIA was relatively new and some people wanted to wait to see if it would be effective, a new USPTO director came in only a year ago* (prior to which the previous director was very unlikely to make large changes at the end of their mandate), and the current administration is very hostile towards coastal IP-centric business.

*Oh, and he's fucking horrible: https://www.ipwatchdog.com/2018/10/19/iancu-risk-takers-pate...

Mind if I rephrase a slight bit (for clarity)?

The existing system works in their favor. Having stores in that geographic area exposes them to unnecessary risk.

They'll keep the upside (as it stands), and mitigate the risk. That's what every biz does. While I'm not one to defend Big Inc, that hardly sounds like having their cake and eating it as well.

US rules on patents are created by a combination of laws and precedents. Of the two, precedent is in practice more important because courts are bound to interpret new cases in accord with how higher courts have interpreted old ones, no matter what they think of the interpretation.

And now consider the structure of US courts. An insane fraction of patent lawsuits start in Texas. Thanks to a special legal arrangement, all patent cases from anywhere next go to a special court known as the Federal Circuit. And only after that to the Supreme Court.

It is a general rule of bureaucracy that people will consistently interpret their jobs in a way that makes their role more important. All patent cases go to the Federal Circuit. The more powerful patents are, the more important that court is. Would you guess that their precedents are generally going to increase or decrease the importance of patents?

Now the Supreme Court does overturn them occasionally. But the Supreme Court is busy and only does this so often. And when the Supreme Court overturns them, the next case relying on Supreme Court precedent inevitably goes to the Federal Circuit, which has proven very willing to engage in sophistry to issue a new binding precedent that clearly is the opposite of what the Supreme Court meant. And since there is no easy way to remove those judges, there is no consequence for them in doing so. Around the country lawyers who specialize in patents, whose livelihood also depends on patents being important, cynically applaud. And the escalator continues.

Now here is the truth. US law already says that abstract ideas (like math) are not patentable. The decision that software is more like machines than math doesn't come from Congress, it comes from the courts. Congress could pass more laws. But they would get interpreted by the same court. Would you care to wager on how that will work out?

The real solution is to recognize that creating the Federal Circuit in 1980 was a bad idea and reverse it. However remember what I said at the beginning about big pharma liking patents? Exactly...

I get what you're trying to say, but I think your point at the end regarding the Federal Court trying to go behind the Supreme Court's back is false.

The Federal Court's decisions often propose a framework for patentability, then the Supreme Court rejects the framework without then building one of their own. When the next big patentability case comes up, the Federal Court tries again with something new, then the Supreme Court says "No, try again".

The Federal Court frameworks are often pretty mediocre, but if the Supreme Court had an actual policy direction in mind, it is fully competent to just develop and state the test and put this area to rest. They haven't because they can't. Every framework sucks, because the patentability concept is way too broad to be addressed in a single test. So then the USPTO puts out their internal instruction, and after we've had a 4 link chain of broken telephone, we hit the point where 'stupid patent x got in under the new "Case X" framework and the Supreme Court feels the need to tell everyone they're stupid, without proposing a solution.

Functionally, all this game of framework tennis does is make the field absurdly complicated, but lets not blame that on the Federal Court alone. There's plenty of other things we can blame them for.

Like how the fuck did the former chemist judges on the court not know what covalent bonds were? !@#$!#%$@#$%

First of all from https://www.americanbar.org/content/dam/aba/migrated/intelpr... you can see that a higher portion of cases escalated from the Federal Circuit get reversed than any other federal circuit.

Secondly from https://www.scotusblog.com/2018/12/empirical-scotus-the-heig... we see that over time the Supreme Court has been devoting more and more of its limited energy to overseeing the Federal Circuit.

Now my statement was the reverse, not about the Supreme Court's reaction to the Federal Court, but about the Federal Court's treatment of Supreme Court decisions. Searching for a reference on that one way or the other, the first that I found was https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?art... which includes this passage:

There have been no quantitative empirical studies comparing Federal Circuit disobedience of Supreme Court decisions to disobedience by other circuits,(177) or assessing whether the Federal Circuit is more likely to defy the Supreme Court in its attributed area of expertise (patent law) than in any of the other cases that make up its docket—both of which are predicted by this model. Nevertheless, qualitative evidence suggests that this is the case. Indeed, Chief Justice Roberts has remarked on the Federal Circuit’s unusual behavior, noting that it seemed an exception to the rule that lower courts generally follow Supreme Court precedent. (178) An analysis of Federal Circuit case law reveals a pattern of resistance to implementing Supreme Court decisions overruling Federal Circuit precedent—a pattern consistent with the model’s prediction of defiance to decisions by generalist superiors. (179)

You'll have to believe that if I had first come up with something saying that they are properly deferential, I would have been honest. But as it is I'm going to conclude that the Chief Justice of the Supreme Court knows what he is talking about, and with the analysis of decisions that that article cites was based on something real - the Federal Circuit is in fact undermining Supreme Court decisions. And the Supreme Court's reaction has been to take on an ever increasing share of cases from that court, and to overturn over 80% of them - many in unanimous decisions.

Incidentally your user name makes me curious. Would you happen to have a professional interest in the law? My status is firmly "curious geek".

The Federal Circuit was created, in part, to create certainty in patents. They keep trying to make frameworks, but they've all got issues. The Supreme Court doesn't like that they have issues, and blows up their rulings, but does not put anything affirmative back in place.

So, functionally, what we get is a cycle of the Federal Court building their little sand castle on the beach, and the Supreme Court coming over to stomp on the sand castle because it has flaws.

The fact that the Supreme Court stomps more frequently, or the fact that almost all of the sand castles are destroyed has no bearing on whether or not the entire cycle of destruction is warranted.

If the Supreme Court had a better set of rules, they have plenty of judicial tools to make those rules known to the USPTO and lower courts.

But they don't.

My own /personal/ views on the IP related matters can be summarized:

Trade Mark(s): Good, keep forever as long as the presence in commercial offerings is refreshed on an ongoing basis; limit to /commercial/ for profit enforcement.

Copyright: Public domain needs to happen, a LOT faster. Renewal should need to be active and exponentially more expensive. Automatic copyright probably needs to expire after around 10 to 20 years. (I favor rounding down to the year and using 11 years for first registration, and a multiple of 5 years for rounds there after.)

Patents: Please prove me wrong that they aren't effective and are a myth. Processes of how to do things often come down to engineering and math; if given the same goal a solution is likely to be similar at it's core as for any given problem there is probably an ideal bound and variations of effort will produce similar results or results optimized slightly to different circumstances.

It's probably time to admit that was a bad idea and that the way every other federal legal issue gets to the certainty provided by maturity (by being handled in the various geographical circuits which either evolve a consensus view or force the Supreme Court to settle a divergence with the benefit of competing frameworks from below, is, if not ideal, at least a better thing for patents than only having one appellate circuit.

You and the Federal Court both seem to believe that trying to make a framework should be the goal. Not everyone agrees. I already brought up https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?art... which is a peer reviewed article, written by a law professor. Her opening paragraph criticizes the Federal Court on the fact that, "It surprisingly resorts to formalistic rules in an area of the law that requires flexibility to adapt to changing technological landscapes." Not long after she notes that they, "...prefer inflexible rules of decision over flexible standards."

My understanding of both quotes is that they are about the framework making that you say the Federal Court is engaged in, and that you criticize the Supreme Court for not doing. But to the extent that the Supreme Court agrees with her opinion, they honestly should be "coming over to stomp on the sand castle" that the Federal Court is erecting, and really should not be erecting their own sand castles in turn.

Now as an external observer, I have a question. More than any other court, the Federal Court is having trouble coming up with opinions that the Supreme Court wishes to affirm. Where does blame belong? With the Federal Court? With the Supreme Court? Or with the challenges of patent law?

I find it unlikely that patent law is uniquely impossible to get right. Other courts get along with the Supreme Court without so much trouble. And therefore I am inclined to place the blame on the Federal Court.

As another data point, consider that the goal of patent law should be, To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. But practitioners widely agree that software patents do not noticeably promote the progress of science and useful arts. Agreement is even more widespread that the current legal regime has encouraged patent trolls in a way that actively hinders the progress of science and useful arts.

I am not simply talking about extreme activists like Richard Stallman. Those are my views, and I have 3 patents to my name with a 4th applied for and a 5th applied for by Amazon that I think should have had my name on it. You'll find a fairly balanced version of this view laid out by Paul Graham in http://www.paulgraham.com/softwarepatents.html where he says, among other things, "Patent trolls, it seems safe to say, are evil. I feel a bit stupid saying that, because when you're saying something that Richard Stallman and Bill Gates would both agree with, you must be perilously close to tautologies."

Back to the Federal Court. There is no real question that their pro-patent decisions and precedents have helped create the patent trolling problem. I am not surprised that a former chief justice (Randall Rader) had to step down due to his over-promotion of a pro-patent litigator. If I had to bet money, I would bet that there are still judges on that court who should step down for similar reasons, but haven't.

Which means that I think that the progress of science and the useful arts would be promoted if most software patents were invalidated. Including all that have my name on them. Admittedly it is likely to be hard to convince you and your professional colleagues of that. Because, as Upton Sinclair said, "It is difficult to get a man to understand something, when his salary depends on his not understanding it."

I think the implication you're trying to make is that I make my bread and butter litigating patents or something, so I've got the incentive to defend the system. I don't. I make my money elsewhere but I spent my entire legal academic career as an IP policy guy. Or maybe IP critic is more accurate. Anyways, let's just say WIPO staff REALLY don't like my questions after their talks.

The rant was entertaining to read, but it's a 101-level critique of the system that betrays some big gaps in knowledge. To be successful (and we're on the same side here) you need to be better than this. I won't exhaustively deal with your piece but I'll point out a few easy weaknesses.

Your first quote isn't criticizing the existence or attempt to create a consistent legal framework. It is criticizing the strategy used in creating them.

Let's say we're trying to create an anti-violence framework. "Don't punch people" and "Don't punch nice people" are two frameworks, but the second framework has a flexible element that lets you read-in self defense under the guise that aggressors are not 'nice people'. However, it also lets you justify wars of aggression as long as the targets of your violence are not 'nice people'. Oops. Flexibility isn't a uniform good - it lets laws be twisted by judges in both good and bad ways and allows courts more discretion in their application of fact to law. If we trust the courts to exercise good judgement in a specific area, then we'd be happier with giving them more opportunity to inject humanity and good sense into the law. In other areas, where we view the institution of courts as disconnected and anti-social, we'd want the opposite.

Is flexibility really what you want when your argument is that a key level of courts is faulty?

This 'certainty vs. flexibility' balance is one of the core tensions in rule-making, and is commonly discussed in rulings, academic work, etc. You actually advocate against flexibility. "No software patents" is about as inflexible as it gets, even if it's the best policy choice.

So, in the context of rule making strategies, let's turn to the Federal Circuit.

Alice exists. It is the leading case regarding patentability of software related patents, and has significantly lowered the survival of bullshit software patents (e.g. Claim 1. lets do something mundane ... but on a COMPUTER) on review. The test in Alice as espoused by the Supreme Court was largely lifted from the Federal Circuit court. This is an example of the Federal Circuit court getting it right - the framework they put together is a home run. It cuts software patent trolling down significantly, is intellectually consistent within IP, provides helpful instruction to the USPTO regarding examination of software patents, etc.

The issue at the Federal Circuit level isn't that the Federal Circuit is serially stupid, or that the Supreme Court is a bully. It's that they're trying to deal with a hard problem and the Circuit's goal is to try, while the Supreme Court's goal is to get it right. So both Courts are doing their job (trying and rejecting failures, respectively), but the problem is that the Federal Court's success rate is low.

Is it low because they're assholes? Is it low because the problem of sorting out patentability is just plain HARD? Is it because the courts are addressing a policy issue with a panoply of stakeholders, primarily through the lens of the litigants (with some token consideration of amicus submissions)? Is it because fact-based policy development is hampered by obstructions in the legislative level, which has resulted in the offloading of legislative treatment to the courts and USPTO in respect of patents? Is it because patent policy is now constrained by international-level consensus (and all of the problems attached thereto)?

I think the anger you feel in respect of the problem existing for so long leads you to want to believe the first explanation is accurate, but my argument in this thread is that it's not a rogue level of judicial review that's ruining things. The problem is more complicated, more difficult, and ultimately harder to tackle with intellectual honesty than just pointing a finger at a few judges.

First between specific decisions handed down, the fact that a chief justice had to step down due to ethics complaints, and the complaints of Supreme Court justices, I am still strongly inclined to the belief that there is something wrong with that court. There are real challenges in addition, but they are "in addition".

Second I completely agree that there are problems with international-level consensus. The biggest of which is that lobbying organizations have proven adept at using international negotiations as a ratchet to get everyone to agree to stronger rules, that then everyone is bound to because it is an international agreement. The classic example of which is the way that Disney and others have used international treaties to repeatedly increase the length and strength of copyright rules. But that said, my impression is that the US is pushing strong patent regimes on other countries, and not vice versa.

Next, you're putting words into my mouth that I didn't say. I didn't say that there should be no software patents. I said that most software patents should be considered invalid, including all that have my name on them. Those are very different statements, and there is no direct path from what I actually said to what you concluded about me. Also note that my statement is consistent with Paul Graham's essay that I linked to which said, among other things, that if you're against software patents, you should be against all patents.

Now let's move to what I actually think.

The core of my frustration is a combination of the following things. The first is that the non-obvious bar to patents is set way too low. The second is that our legal regime makes patent trolling far too easy and profitable, to the detriment of those producing real innovations. The third is that our system does not create incentives that promote the progress we are aiming for.

We can debate in an ideal world what combination of things would be used to solve this problem. However in our world they are being solved - badly - in the courts.

Still in an ideal world, how would I want my concerns addressed?

First, whether an improvement is obvious. Today we frequently get into dueling opinions of experts. Which one do we trust? Formulaic rules cannot truly grasp what is or is not obvious. And who it should be obvious to.

I would like to see non-obviousness become more of an affirmative defense. If I thought of X and never heard of you, never saw your product, and you never publicized your invention, that is direct evidence that your invention was, in fact, obvious to me. Which means that your patent should be invalid. Whether or not there was prior art. Your counter to this argument should be evidence that you publicized widely, your invention was widely distributed, or I did, in fact, have personal reason to know of your discovery.

Related, I would love it if the patent holder had to demonstrate non obviousness by demonstrating the existence of multiple people and organizations with the knowledge and incentives to have thought of it who failed to do so over a period of several years. It is frequently the case that a new technology creates a rush of patents on everything to do with that technology. Everything becomes "non obvious because nobody did it yet". I think it should be the opposite. Rather than a patent land grab, raise the barrier to patentability until the passage of time demonstrates that remaining ideas are actually not obvious.

That alone should eliminate many of the most problematic software patents. And it is particularly a problem in software because software constantly has of new technologies coming out that nobody has thought about, and therefore it is hard to tell what is or is not obvious. (Leading to dueling experts debating obviousness.)

Second, patent trolling. Alice improves things by getting rid of one class of bad patents. But there are a lot of classes of bad patents. That decision is chipping around the edges without trying to solve the problem. Instead I would like to see decisions that allow evidence of patent trolling behavior to be used as a reason to raise the bar against the would be patent enforcer. I don't so much have a concrete solution as the hope that enabling some sort of "unclean hands" argument against patent trolls would represent a significant improvement.

And third, about the incentives. The legislation said nothing about it, but the Constitution is clear. The purpose of patent law is to encourage progress. If the patent holder cannot demonstrate that they are engaged in activities that encourage progress, activities such as commercializing their invention or publicizing their discovery, then the patent should be invalidated. Congress should have no right to grant a temporary monopoly if you are not progressing science or the useful arts.

I realize that this may seem like an extreme position. But I also truly believe that it would be a significant improvement.

Sure. I would like to, but only if you treat my points charitably (you haven't :(.) - the objective is to learn. If that's not an issue, though, would the btilly email address in your profile work? I can send a full reply there.

Some brief notes to think about in the meantime:

Patents have multiple social functions. Encouraging progress can be performed by achieving other related, intermediary, policy steps. For instance, if we weaken industry-peripheral patents, do we just cause firms to resort to secrecy (and is that better for society over the long run)? Are there other solutions other than 'yes patent'/'no patent' depending on the patent type? Do patent licenses required for industry-participation have better solutions than just 'no patents'? See: Standards collectives/FRAND licensing terms/etc?

Obviousness is VERY difficult to judge years later after having read a patent. Much like seeing the answer to a puzzle or math problem, it's hard to go back and feign ignorance in your analysis, and once you read a lot of patents, suddenly you see the sweep of technological development very differently.

Obviousness pt 2: What if patents are needed to secure the benefit from an R&D effort. Is it worthwhile to say 'we shouldn't research this [New Medicine] because it seems obvious'? How else could we reasonably finance that R&D work? Obviousness analysis is done in reference to a 'person having ordinary skill in the art', which is an incredibly flexible legal fiction. Again, do you have issues with flexibility being used to achieve policy goals you don't agree with? Note that the artificiality of this test is amplified because we analyze this person at the time the patent was filed. Next, since 2016, KSR is the leading case in the states regarding obviousness. The KSR test performs a series of comparisons between what the field knew and what typical improvements or techniques the field uses to determine if the improvement was obvious or not. This test is heavily criticized for making innovations in slow but consistently developed fields far harder to patent, despite the fact that patents in those fields are less controversial than those in rapidly iterating fields.

What specific elements of our legal regime make patent trolling too easy and profitable? Is it the cost of litigation? Is it how IP rights can be assigned at all (and what are the ramifications if we prevent assignment)? Is this a quantitative problem that we can fix by tweaking the numbers a bit or a categorical one which requires fundamental changes in the system? Btw, how large do you think the patent trolling problem is, dollar wise? Is it a priority as far as reforms go? What else do you think are competing legislative/regulatory priorities?

Prior art is already a bar to patentability.

Re: Unclean hands. Vexatious litigant protections exist in the court system independently of patent litigation. They aren't used much. Why do you think that is the case?

Software is not the only industry that interacts with the patent system, and other industries have different needs and are influenced by patents differently (which, btw, is a core flaw with PG's note). If you want to change core elements of the patent system, how do those modifications affect other industries?

I'm sorry that you do not believe that I have treated your points charitably.

First on encouraging progress, it is a complex set of issues.

For basic research I'm in agreement with https://issues.org/perspective-is-the-bayh-dole-act-stifling... and the successful approach outlined at https://www.chronicle.com/article/Michael-Milkens-Attack-on/... that progress is maximized when we fund lots of ideas, make them share information quickly, and let them build on each other. The incentives of patents run exactly opposite from that. If we're paying for basic research, I do not want it locked away in patents. (Obviously private research is a different story, companies need an incentive to engage in that.)

Next there is the problem of pharma. The challenge here is that proving effectiveness and safety to the FDA's satisfaction is extremely expensive. Patents are their route to recouping that. The fix that I would like requires legislation, but it is to give a patent monopoly to the company that began the FDA certification process first. That would both meet the needs of medicine, and also remove the current broken incentives that make it impossible to get anyone to pay for testing of treatments that are not covered by patents. (As an example, helminthic therapy for a variety of autoimmune disorders is extremely unlikely to go anywhere because there is no patent protection under which the costs of FDA trials could be recouped.)

Now on obviousness, I agree that it is hard to judge after the fact, once you have seen the idea. Secondly what is obvious very much depends on who it is who it is obvious to. With my math background, things are often obvious to me that aren't to other programmers. But which are obvious to anyone else with a similar background. Of which many exist. What is the appropriate peer group to judge, say, a contribution that I made to an advertising system?

This is why I would prefer a system where the patenter has to supply evidence that it could have been discovered, but wasn't. Contrary to the KSR test, this should make it easier to get a patent in a field that is slow moving rather than fast moving. Which I think is appropriate. A field that is already seeing innovation doesn't need patents to encourage more, and will be hurt more by typical patent periods. This is reversed in slow moving fields, where long patent terms are not such a problem and which could probably use the incentive more.

On patent trolling, I've seen estimates of the cost of patent trolling to the tune of around $30 billion a year (see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2091210 for a citation). If you assume that there are 4 million software developers in the US with an average salary of $90k/year, that's 1/12 of the total salaries of all software developers. This is a pretty big priority. Now not all of that money would have been spent on research, but it is a pretty safe guess that patent trolling does reduce month available for research by several billion dollars a year.

Why is patent trolling too easy and profitable? Well because the bar to getting bad patents is too low, it is too easy to threaten people, and even if you think the patent has no merit, the risk of it being ruled valid after all are high enough that most companies roll over, and then there is the fact that you know you'll likely face the troll in courts that have historically been extremely friendly to patent trolls. East Texas and then the Federal Court. Though, luckily, the first court is unlikely to have the same clout going forward that it has historically.

On unclean hands, because patent trolls register a company per patent. So odds are that the company going after you has never actually has a lawsuit go through trial. And even if you go through the effort of getting them declared a vexatious litigant, the next patent troll owned by the same umbrella company and represented by the same lawyer is unimpeded. It is theoretically possible to go after the lawyers involved for barratry, but I do not know of anyone who has done so.

And as for changing core elements of the patent system and affecting other industries, I believe that the changes that I suggest would actually work out well for multiple industries. Though admittedly one of my suggestions is an entirely new type of protection to cover the needs of medical research.

I stopped there. Re-read your posts. An insincere half apology isn't good soil to grow a strong conversation from. Good luck in the future and thank you for your interest in the field.

You are assuming that if "everybody talks" about something, it must be true. Unfortunately, it is not often the case.

Take a quick glance at what the US legislative process is up to at the moment, and will be up to at least through 2020. There will be no progress. On anything.

Only people who don't know what that are talking about talk this way.

Or also, I suppose, people who are lying to you in order to sell you something.

Maybe they just don't want to stoop as low as other lobbying groups, or maybe lobbying isn't as powerful as people make it.