It seems pretty clear that something was broken with the old system, before the creation of the CAFC. Plaintiffs were only winning 20-40% of the time.
Considering that
1. the plaintiff is starting with a rebuttal presumption of patent validity,
2. it is the plaintiff who makes the decision whether or not to sue, which should weed out a lot of weak cases, and
3. this was before software patents, back when examiners actually had a deep understanding of the art in the fields whose patents they examined, so there was not a flood of bad patents being issues,
I'd expect in a fair system for plaintiffs to win the majority of cases.
According to the article, a significant fraction of patent lawsuits were being deliberately filed by competitors to challenge the validity of patents that had just been issued. The reason to do this was so that you could choose a venue that was patent unfriendly and therefore gave you better odds of overturning the patent.
Consider the fact that these lawsuits were filed preemptively (they had to be filed before the patent was used to sue you, else you would not get to choose venue), and that they would be filed on the weakest possible patents. One would expect the patent holder to lose a very large portion of these.
I would suspect that a lot of the 80% of wins right after CAFC was due to these cases reaching the CAFC, and it asserting its power over lower courts.
The long-term slide since then is undoubtably due to people pushing the envelope as fast and hard as they can on how bad patents can be, and how broadly patent law can be filed in novel areas (ie ones that Congress never meant it to be applied in).
There were obvious issues in the pre-CAFC era, but I'd prefer those issues over the current status quo.
> Plaintiffs were only winning 20-40% of the time.
They were winning 20-40% of appeals, it doesn't say how often they won overall.
It's hard to say whether 20-40% of appeals is a good number in an absolute sense (percentage of successful appeals is a more useful number) but in this case, it's only to compare with the 50-80% figure that came after the change, and I'd think that is pretty significant.
I expect exactly the opposite. The cost of litigation gives plaintiffs an unfair advantage over defendants. If a plaintiff wins it's all upside, while if a defendant wins they still lose because they had to pay millions in legal fees (plus the intangible costs of years of litigation).
Given this advantage, and the fact that defendants can always avoid court by licensing if a patent really is valid, I would expect defendants to win the majority of cases that actually make it to court (calling the plaintiff's bluff).
1. That's like saying a law against speeding is valid, so the defendant is probably guilty of speeding. That a patent is valid says absolutely nothing about whether a defendant is infringing it.
2. Sorry, all I can do is laugh. Do you actually follow the US legal system?
3. Again, whether a patent is bad or not has nothing to do with whether it's infringed in any particular case.
1. The numbers you're quoting sure are. Look at the chart and surrounding text again. And all you said was "Plaintiffs were only winning 20-40% of the time.". "Winning" in a patent case hinges on infringement. If you're not talking about infringement, what could you possibly be talking about?
2. That's not an answer to the question I asked, it's an irrelevant and evasive appeal to authority.
1. I was talking about validity. A hint to that effect was that my sentence explicitly talked about the burden of proof of patent validity. To win a patent case, you must have a valid patent and that patent must be infringed. The plaintiff enters the case with an advantage by law on the validity issue, which was the point of #1.
I dealt with why the plaintiff has an advantage on the infringement issue in point #2.
2. You asked: "Do you actually follow the US legal system?"
I answered: "Yes". Please explain how that is not an answer to the question you asked.
You've done nothing to explain how the presumption of validity implies the plaintiff will ultimately win, nor how my analogy to the validity of a law is wrong.
If the answer were really just "Yes", you shouldn't have felt it necessary to bring academic credentials into the discussion, instead of just leaving it at "Yes".
We know from history that extremely weak cases are filed all the time, usually hopes of attempting to force a settlement, and that there have been few effective barriers to such tactics. There were even fewer barriers during the era before the Federal Circuit came to be.
Your bald assertion about "weak" cases being weeded out is contradicted by real-world observations of both the distant past and more recent history.
In most cases I disapprove of flaunting academic credentials to strengthen an argument, since that is just appeal to authority. But in this case I feel it was relevant to your question.
In this case he wasn't arguing that people should give more weight to his answer because he went to law school. Rather, he was responding to someone that asked if he knew anything about the law. As a response to that specific question, giving a context for how much he understands based on his background seems valid.
You never know when the person you're bitching at on HN has a law degree. But now that it's clear that you don't: your objection is silly and the person you are objecting to knows more about this issue than you do.
> 2. Sorry, all I can do is laugh. Do you actually follow the US legal system?
Do you follow it deeper than the propaganda about frivolous lawsuits?
> 3. Again, whether a patent is bad or not has nothing to do with whether it's infringed in any particular case.
He's not talking about particular cases, he's talking about aggregate statistics. A system with a lot of weak patents, where people might independently come up with the same design because it's obvious, is going to have a lot more infringement than a system with only strong patents, where infringement is likely to come from only purposefully copying a design.
Oh please. This isn't about ambulance chasers, I'm not some right-wing nut who thinks corporations need to be protected from the unwashed masses. This is about things like patent and copyright trolls.
> He's not talking about particular cases, he's talking about aggregate statistics.
Justice is not decided based on aggregate statistics.
Comments
It seems pretty clear that something was broken with the old system, before the creation of the CAFC. Plaintiffs were only winning 20-40% of the time.
Considering that
1. the plaintiff is starting with a rebuttal presumption of patent validity,
2. it is the plaintiff who makes the decision whether or not to sue, which should weed out a lot of weak cases, and
3. this was before software patents, back when examiners actually had a deep understanding of the art in the fields whose patents they examined, so there was not a flood of bad patents being issues,
I'd expect in a fair system for plaintiffs to win the majority of cases.
Your assumption #2 is false.
According to the article, a significant fraction of patent lawsuits were being deliberately filed by competitors to challenge the validity of patents that had just been issued. The reason to do this was so that you could choose a venue that was patent unfriendly and therefore gave you better odds of overturning the patent.
Consider the fact that these lawsuits were filed preemptively (they had to be filed before the patent was used to sue you, else you would not get to choose venue), and that they would be filed on the weakest possible patents. One would expect the patent holder to lose a very large portion of these.
I would suspect that a lot of the 80% of wins right after CAFC was due to these cases reaching the CAFC, and it asserting its power over lower courts.
The long-term slide since then is undoubtably due to people pushing the envelope as fast and hard as they can on how bad patents can be, and how broadly patent law can be filed in novel areas (ie ones that Congress never meant it to be applied in).
There were obvious issues in the pre-CAFC era, but I'd prefer those issues over the current status quo.
> Plaintiffs were only winning 20-40% of the time.
They were winning 20-40% of appeals, it doesn't say how often they won overall.
It's hard to say whether 20-40% of appeals is a good number in an absolute sense (percentage of successful appeals is a more useful number) but in this case, it's only to compare with the 50-80% figure that came after the change, and I'd think that is pretty significant.
Good point. I missed that this was just appeals.
I expect exactly the opposite. The cost of litigation gives plaintiffs an unfair advantage over defendants. If a plaintiff wins it's all upside, while if a defendant wins they still lose because they had to pay millions in legal fees (plus the intangible costs of years of litigation).
Given this advantage, and the fact that defendants can always avoid court by licensing if a patent really is valid, I would expect defendants to win the majority of cases that actually make it to court (calling the plaintiff's bluff).
1. That's like saying a law against speeding is valid, so the defendant is probably guilty of speeding. That a patent is valid says absolutely nothing about whether a defendant is infringing it.
2. Sorry, all I can do is laugh. Do you actually follow the US legal system?
3. Again, whether a patent is bad or not has nothing to do with whether it's infringed in any particular case.
1. Read more carefully. I was not talking about infringement.
2. Yes. I acquired a passing familiarity with the US legal system in law school.
3. Again, read more carefully.
1. The numbers you're quoting sure are. Look at the chart and surrounding text again. And all you said was "Plaintiffs were only winning 20-40% of the time.". "Winning" in a patent case hinges on infringement. If you're not talking about infringement, what could you possibly be talking about?
2. That's not an answer to the question I asked, it's an irrelevant and evasive appeal to authority.
3. You're projecting.
1. I was talking about validity. A hint to that effect was that my sentence explicitly talked about the burden of proof of patent validity. To win a patent case, you must have a valid patent and that patent must be infringed. The plaintiff enters the case with an advantage by law on the validity issue, which was the point of #1.
I dealt with why the plaintiff has an advantage on the infringement issue in point #2.
2. You asked: "Do you actually follow the US legal system?"
I answered: "Yes". Please explain how that is not an answer to the question you asked.
You've done nothing to explain how the presumption of validity implies the plaintiff will ultimately win, nor how my analogy to the validity of a law is wrong.
If the answer were really just "Yes", you shouldn't have felt it necessary to bring academic credentials into the discussion, instead of just leaving it at "Yes".
We know from history that extremely weak cases are filed all the time, usually hopes of attempting to force a settlement, and that there have been few effective barriers to such tactics. There were even fewer barriers during the era before the Federal Circuit came to be.
Your bald assertion about "weak" cases being weeded out is contradicted by real-world observations of both the distant past and more recent history.
In most cases I disapprove of flaunting academic credentials to strengthen an argument, since that is just appeal to authority. But in this case I feel it was relevant to your question.
2. Yes. I acquired a passing familiarity with the US legal system in law school.
2. That's not an answer to the question I asked, it's an irrelevant and evasive appeal to authority.
Please stop.
In this case he wasn't arguing that people should give more weight to his answer because he went to law school. Rather, he was responding to someone that asked if he knew anything about the law. As a response to that specific question, giving a context for how much he understands based on his background seems valid.
You never know when the person you're bitching at on HN has a law degree. But now that it's clear that you don't: your objection is silly and the person you are objecting to knows more about this issue than you do.
> 2. Sorry, all I can do is laugh. Do you actually follow the US legal system?
Do you follow it deeper than the propaganda about frivolous lawsuits?
> 3. Again, whether a patent is bad or not has nothing to do with whether it's infringed in any particular case.
He's not talking about particular cases, he's talking about aggregate statistics. A system with a lot of weak patents, where people might independently come up with the same design because it's obvious, is going to have a lot more infringement than a system with only strong patents, where infringement is likely to come from only purposefully copying a design.
> propaganda about frivolous lawsuits?
Oh please. This isn't about ambulance chasers, I'm not some right-wing nut who thinks corporations need to be protected from the unwashed masses. This is about things like patent and copyright trolls.
> He's not talking about particular cases, he's talking about aggregate statistics.
Justice is not decided based on aggregate statistics.
> Justice is not decided based on aggregate statistics.
This is a total non-sequitor. He was talking about the mechanics of lawsuits, not "justice."