Justice Antonin Scalia Said What From The SCOTUS Bench??

“Patent trolls”, that’s what he said.

Scalia Patent Troll

 

Saw this blurb the other day via a post from a colleague on LinkedIn, which is sadly where I get some of my news when I’m in a hurry.  In Commil USA LLC v. Cisco, Justice Scalia had this to say, right there on page 20 in his dissenting opinion:

I may add, however, that if the desirability of the rule we adopt were a proper consideration, it is by no means clear that the Court’s holding, which increases the in terrorem power of patent trolls, is preferable. The Court seemingly acknowledges that consequence in Part III of its opinion.

 

(Emphasis mine.) It’s a two-fer, folks!  Not only did Scalia acknowledge such a beast as a patent troll, but threw in my second-most favorite Latin phrase of all time, in terrorem which means “into or about fear”.

Spot on.  Fear is what patent trolls are all about.  They willfully, intentionally, and on purpose induce fear in demand letter recipients by requiring a payout in the form of a license or else they’ll sue you.  But it’s also about the trolls themselves being afraid…I’m involved behind the scenes right now in a bit of a situation with a company that is going after competitors with patents out of fear that their product isn’t quite as good as they think it is.  Don’t feel like competing on the open market?  Worried your invention might not actually be all that and a bag of chips?  Sue people for patent infringement and hope they go away!  It’s frightening and infuriating, especially if you’re the target.

I’m sorry I missed the Twittersphere back and forth on this one because seriously, I AM?  You’re going with the tired “…but did he define what ‘patent troll’ means? Did he?  Huh, huh??  Did he??” line?  There are not enough eye rolls for that stupid, tired line.

meryl streep

Give it a rest on that, folks.  Patent trolls are real.  You know it, I know it, and at least one of the Supreme Court Justices of the United States knows it.  #legitimacy

Finally, I thought this (from the dissenting opinion) was pretty funny:

Next, the Court says that “invalidity is not a defense to infringement, it is a defense to liability.” Ante, at 11. That is an assertion, not an argument. Again, to infringe a patent is to invade the patentee’s right of exclusivity. An invalid patent confers no such right. How is it possible to interfere with rights that do not exist?

If a patent is invalid, you can’t infringe, proving that even the US Supreme Court has its own “Well, duh!” moments.

It also led me down an entire evening’s worth of study on argument vs. assertion and I missed 1/2 of America’s Got Talent with that little time suck, so thanks for that, Justice Scalia.

JustSayin_small_New

IPTT

{Awesome Scalia image found here.  Meryl Streep eyeroll found here.}

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Should IBM’s Watson Be Patent Eligible: An Essay By An Idealogue Without A Clue

Just in case the subtitle isn’t clear, I’ll invite you to review the twitter conversation where Gene said I was not worth arguing with, then proceeded to engage in the conversation with five more tweets.  I’m not sure if he can’t count, or if he just can’t help himself?  The point was, he asked me if I wanted to debate whether IBM’s Watson should be patent eligible and I told him that I was far too wordy to do that on Twitter but that I’d be happy to respond on the blog.

And here we are.

I’m coming at this issue of patentability of Watson and of software in general not as an attorney, not as an engineer, not as a patent agent, nor as a government official.  In fact, other than making good on a Twitter promise, I don’t have a dog in this fight.  I’m just a girl, standing in front of a boy, asking him to love her.  Wait, what?

Notting-H-Julia-Roberts_l

I look exactly like Julia Roberts, only with brown hair,
blue eyes, and much less height.
True story.
(Hint: not really)

I see this issue from a business standpoint, and as someone who has a background in computer programming/software development.  I’ve been doing it for over 20 years now so I think I have more than a passing understanding of what computer software is and does, and how it’s created.  I spent the better part of my 20’s in little hidey holes banging out line after line of code.  It isn’t as if I’m coming completely out of left field here, is my point.

The question of should Watson be patent eligible is moo…IBM does in fact own several patents for the technology behind the service.  So the question is more rhetorical in nature.  Scholars at every level have been tackling this question for in excess of two decades so the idea that I can work this out in a blog post or twitter conversation is hugely unlikely.

Nevertheless, you asked (and so nicely, too!) and I will proffer my answer.

Lines of code or algorithms are not, in and of themselves, useful.  From the US Constitution, Patents are issued:

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.

To promote the “useful arts”, not to promote “really cool code” or “computers that can win Jeopardy”.  No, the intent as I read it was to protect those who spend their time and money developing something new, non-obvious, and useful.  Yet how useful is Microsoft Word if no one ever creates a document with it?  See where I’m going with this?

Using patented technology, IBM is promoting the useful arts.  They’re giving away some of the information that Watson’s powerful computing has generated from an article here :

In a demonstration of its power, Watson has 4.7 million patents and 11 million scientific journals published between 1976 and 2000.  In each article Watson carefully identified any previously unseen chemical compounds (in pictures or text), grabbed any related diagrams, grabbed relevant keywords, and lastly scooped up the author and company names.

The result was a database of 2.5 million compounds, which are thought by Watson to be unique.  For each of these compounds Watson discovered the earliest patentee.  IBM donated its superbot’s work — the “open chemistry” database — to the U.S. National Institute of Health (NIH), allowing scientists all over the world to dig into it.

But again, it isn’t the lines of code or the circuitry or the machine itself that makes Watson useful.  It’s what comes out of it.  This is why I don’t like patent trolls, incidentally.  They don’t make anything, they just buy patents and extort money from people by threatening to sue for infringement even, and especially, when there’s no true evidence that any such infringement took place.  But I digress.

I’ve spent the better part of a week reading all about Alice Corp vs. CLS Bank and the numerous briefs (brilliantly curated here by Dennis Crouch) surrounding it.  I’ve read countless articles about Watson itself (himself?) and this one is the best.  And in all my reading and Googling do you know what I discovered?  This is a multi-layered and complicated question with no clear answer.  Hell, if this statement via Wikipedia is any indication:

The fractured panel of ten judges issued seven different opinions, with no opinion supported by a majority. Seven of the ten judges upheld the district court’s decision that Alice’s method claims and computer-readable-medium claims were not patent-eligible, but they did so for conflicting and incompatible reasons. Five of the ten judges upheld the district court’s decision that Alice’s computer-systems claims were not patent-eligible. The panel did not agree on a standard to determine whether a computer-implemented invention is a patent-ineligible, abstract idea.

then there is not much hope that I can add thoughtfully to the discourse except to say this:  I think figuring out what is patentable and what is not has become so unbelievably complicated because complications mean lawyers who are necessary to decipher what’s going on and we all know that in any dispute, patent or otherwise, the real and clear winner is always the attorney.  They didn’t do it on purpose.  I think complication is a natural offshoot of people who are, by nature of their vocation, extremely risk averse and also?  Happen to bill by the hour.  They spend all their time looking for any loophole to any given statement (either on the loophole creation side or the loophole avoidance side) so they dream up crazy tests and rules and talk their clients into suing each other over them.

suits_charactergallery_harvey_09

Lawyerus billalotus.

But just as an aside, regarding Alice Corp v. CLS Bank, what kind of crazy-making is this, anyway?  Alice Corp creates “a computer-implemented, electronic escrow service for facilitating financial transactions”.  From their own website:

An Alice Market enables end-users and investors to create flexible contracts that meet their hedging and investment needs in a real-time, secure and anonymous electronic market. It also ensures that participants are not exposed to the possible failure of the parties with whom they contract.

Is it possible to “ensure that participants are not exposed to the possible failure of the parties with whom they contract” without an Alice Market?  If what CLS Bank was doing uses the exact same methodology and code that your patented software does, then I suppose you’ve got them on infringement.  It doesn’t seem that hard to me to figure out…CLS is either using your software methodologies and code and algorithms or they aren’t.  As a coder, it’s pretty easy to figure that out so honestly, I don’t get what all the fuss is about in terms of whether or not they’re infringing.  Or maybe I’m stupid and am missing something really obvious, in which case I have zero doubt that Gene someone will let me know.

Either way, this isn’t really what the case is about anymore, it’s about can you patent software?  Nee’, is IBM’s Watson patent-elibible?

My answer?  Like I said on Twitter…code that simply replicates business rules should not be patentable.  But for the broader question of all software in general, I don’t honestly know.

You can bet, though, that I’ll be waiting on the Supreme Court’s answer to the question like some people wait for a shoe sale at Nordstrom’s.

JustSayin_small_New

IPTT

{Image of Julia Roberts’ front and Hugh Grant’s back from Notting Hill found here. Image of Harvey Specter found here.}

Something’s Fishy Here, Must Be The Red Herring

Remember a hundred years ago (give or take) when the Supreme Court was trying to define “obscenity” and this was before The Internet really took off so we couldn’t just look up a picture of a woman wearing white shoes before Memorial Day and be done with it?  I believe the official definition went something like this:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Methinks we’ve been snookered here re: the debate about what is and is not a patent troll.  I am way too lazy to go look up all the blog posts about how to properly define a troll, which would help demonstrate how much back and forth there is about the topic, but rest assured the debate abounds.  And truth be told, I think it’s fair and good and right to try and define the terms used in the patent litigation industry because they’re helpful to people who are just starting to be affected by it (re: targets who’ve received their first demand letter).  I’ve even written about it myself.

But here’s the problem:  there are so many definitions and too many cases where any given definition only fits some of the time.  As soon as you define what trolling is, narrowly or broadly, a troll is going to come back and say “But we don’t do that all the time, that was just that one time and it’s not our core business” or “that is just a very small part of our business and we had to do it because everyone else is” or  “look at all the ways that we don’t fit that definition!” or my personal favorite “We didn’t go after anyone for that patent, we just sold it to someone else…how do we know what they’re going to do with it?!”   It’s becoming a huge red herring, something the trolls can watch us dicker over while they continue their assault on innovation right there in plain site.

ARedHerring_edit

This is why Rachael Lamkin’s point in her dialog with IP Watchdog is so important:  “we know a troll when we see it”, just like Justice Potter Stewart said from the SCOTUS bench lo those many years ago.  I think this is very true, and I think the trolls count on people jumping on the label bandwagon trying to figure out how to fit each and every bad guy into a column on a spreadsheet, all the while they’re out there shape-shifting and changing their business model to fit their ultimate goal:  extortion of fees for patents.  (Which, incidentally, is why I think the government’s new law proposals and Presidential edicts aren’t going to matter in the end:  the trolls will always find a way around the legalities of it, the same way they find ways to avoid being labelled as one of the synonyms for “Patent Troll”.)

What’s going on is, as the issue of patent trolling attracts more and more attention in the mainstream media, the message is getting diluted and the waters are getting muddied.  Good thing that herring is red or we might’ve missed him.  The way you determine whether a company is a patent troll is not by a single definition, it’s by a pattern of behavior over time, by looking at the results of that behavior and ascertaining “Is this behavior that is good for American businesses or is this behavior that gets in the way of progress?”  In a lawsuit it’s the stage where you “prove up” your case.

So how do we do that with trolls?  I’ll tell you how: we enter demand letter data and over time, the question of what is a troll, never mind who is a troll, will all but answer itself.  We build a community around how these guys behave…what they ask for in settlements, what they demand in their initial leaflet drop from their G-5’s, how they handle their claims construction when things get to litigation, the list goes on.  By looking at behavior over time we will be able to tell which companies are the real villains, and which are just victims of circumstance.

Rachael makes a great point in her discussion with Gene:

we know that these Trolls work in waves with these cease and desist letters and most people who get these cease and desist letters figure they’ll just keep quiet. The problem with that is they’re giving up key advantages like forum choice so they can all talk with each other without talk — speaking publically you might be able to figure out how to pull funds and go have one company step forward or find the best DJ Jurisdiction and have that company step forward and bate the Troll into giving him another correspondence to trigger DJ Jurisdiction, right? That’s one way where you might really start to push back on these 8 Symmetries, but there’s no way, there’s no forum, there’s no secret forum for the recipients of these letters to even speak with each other.

This is my field of dreams, what That Patent Tool is trying to become.  That place where people can enter in the demand letter data and build a community around it.  It’s not perfect yet, some of the features are still being built out, but it’s coming.

This is where we should be focusing efforts right now.  I love me a good debate about the terms and conditions that warrant the use of the term Patent Troll, I can’t deny that.  But let’s not get so hooked into the school of fish that will lead us straight out into an ocean of meaningless banter that we aren’t able to do some fishing of our own.

Just sayin’,

IPTT

{image found here: http://dickstrawser.blogspot.com/2010/04/lost-chord-red-herrings-in-verdi-square.html}