This is pretty interesting stuff. For example, I wasn't aware of the "jurisdiction race" that happened when new patent were issued. It puts into context some of the changes at least.
The most depressing, even alarming, part of this is:
> Instead, patent appeals are exclusively heard in DC by judges who live and breathe patent law. Unsurprisingly, this leads to insular thinking. For example, when we interviewed Paul Michel, who served as the Federal Circuit's chief judge from 2004 to 2010, he didn't seem to understand the problems facing small software companies. "If software is less dependent on patents, fine then. Let software use patents less as they choose," he said, seemingly oblivious to the fact that software companies don't have the option to opt out of patent troll lawsuits.
Seriously? The court seems to have no idea of the Pandora's Box they've opened by loosening the "obviousness" constraints.
> This is pretty interesting stuff. For example, I wasn't aware of the "jurisdiction race" that happened when new patent were issued. It puts into context some of the changes at least.
There's still plenty of drama. For example, a few years back, there was quite a fuss over a simple change to the filing date of something on the docket in East Texas:
The cynical answer is not always the right answer. You should hear the CAFC judges speak. They genuinely think that the patent system is good for innovation. Most engineers I know, outside the software bubble, feel the same way. They think in terms of patents regulating unfair business practices in the competition between Dow Chemical and DuPont or Lockheed and Raytheon. They think it's a Bad Thing (TM) if they work on a new chemical for 10 years, getting it through expensive and time-consuming testing and regulatory approval, only to have a competitor be able to copy it the minute they release a successful product.
They don't necessarily have insight into the dynamics of how patents function in the software space, but that doesn't mean their actions are just a cynical money-grab.
So you're saying they just don't understand the software industry? I can believe that. I do see a lot of cynical money grabs though, so it's an easy thing to believe.
I think the judges are a reflection of the broader engineering community, and there are big differences in how different parts of the engineering community view the patent system. Look at the background of some of the judges. They're Chem/Bio/EE and worked at places like American Cyanamid and the Naval Surface Warfare Center. My own background is in aerospace engineering and the defense industry, and my experience has been that engineers in these industries view patents very positively. The first think that comes to these engineers' minds when talking about patents isn't Amazon's double click patent, but the patents on vulcanized rubber or HDPE.
More generally, people don't become federal judges because they want a payout. A court of appeals judge makes about $185,000, or about what a third-year law firm associate makes before bonus. And unlike many other civil service jobs, a judgeship is a capstone to a career so it's not like judges use the judgeship as a stepping-stone to a lucrative private-sector position. They are by and large people who genuinely care about overseeing a justice system that facilitates the orderly activity of the economy.
I think most engineers just don't understand how filing for a patent works. They only think in terms of "the company's lawyers are helping protect my work". That's all they know and all they care about. I don't think they are aware that the patents filed sound very silly and probably unrecognizable even to them, when it comes to describing their invention.
Doubtful. It's quite sufficient that their past careers got them into the habit of thinking of strong patents as good, and their friends (who have opinions on the matter) all feel the same way.
Comments
This is pretty interesting stuff. For example, I wasn't aware of the "jurisdiction race" that happened when new patent were issued. It puts into context some of the changes at least.
The most depressing, even alarming, part of this is:
> Instead, patent appeals are exclusively heard in DC by judges who live and breathe patent law. Unsurprisingly, this leads to insular thinking. For example, when we interviewed Paul Michel, who served as the Federal Circuit's chief judge from 2004 to 2010, he didn't seem to understand the problems facing small software companies. "If software is less dependent on patents, fine then. Let software use patents less as they choose," he said, seemingly oblivious to the fact that software companies don't have the option to opt out of patent troll lawsuits.
Seriously? The court seems to have no idea of the Pandora's Box they've opened by loosening the "obviousness" constraints.
> This is pretty interesting stuff. For example, I wasn't aware of the "jurisdiction race" that happened when new patent were issued. It puts into context some of the changes at least.
There's still plenty of drama. For example, a few years back, there was quite a fuss over a simple change to the filing date of something on the docket in East Texas:
http://thepriorart.typepad.com/the_prior_art/2009/09/troll-t...
That inventor behind all that mess was quite an interesting fellow, too:
http://thepriorart.typepad.com/the_prior_art/patent_troll_tr...
Sure they do. This Pandora's Box contains cash, for lawyers.
The cynical answer is not always the right answer. You should hear the CAFC judges speak. They genuinely think that the patent system is good for innovation. Most engineers I know, outside the software bubble, feel the same way. They think in terms of patents regulating unfair business practices in the competition between Dow Chemical and DuPont or Lockheed and Raytheon. They think it's a Bad Thing (TM) if they work on a new chemical for 10 years, getting it through expensive and time-consuming testing and regulatory approval, only to have a competitor be able to copy it the minute they release a successful product.
They don't necessarily have insight into the dynamics of how patents function in the software space, but that doesn't mean their actions are just a cynical money-grab.
So you're saying they just don't understand the software industry? I can believe that. I do see a lot of cynical money grabs though, so it's an easy thing to believe.
I think the judges are a reflection of the broader engineering community, and there are big differences in how different parts of the engineering community view the patent system. Look at the background of some of the judges. They're Chem/Bio/EE and worked at places like American Cyanamid and the Naval Surface Warfare Center. My own background is in aerospace engineering and the defense industry, and my experience has been that engineers in these industries view patents very positively. The first think that comes to these engineers' minds when talking about patents isn't Amazon's double click patent, but the patents on vulcanized rubber or HDPE.
More generally, people don't become federal judges because they want a payout. A court of appeals judge makes about $185,000, or about what a third-year law firm associate makes before bonus. And unlike many other civil service jobs, a judgeship is a capstone to a career so it's not like judges use the judgeship as a stepping-stone to a lucrative private-sector position. They are by and large people who genuinely care about overseeing a justice system that facilitates the orderly activity of the economy.
I think most engineers just don't understand how filing for a patent works. They only think in terms of "the company's lawyers are helping protect my work". That's all they know and all they care about. I don't think they are aware that the patents filed sound very silly and probably unrecognizable even to them, when it comes to describing their invention.
Doubtful. It's quite sufficient that their past careers got them into the habit of thinking of strong patents as good, and their friends (who have opinions on the matter) all feel the same way.