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back to article SCOTUS asked to overturn patent-troll's charter

The tech world – and plenty of others, The Register suspects – is waiting with a little trepidation to hear the outcome of a patent battle between Akamai and Limelight Networks that's currently occupying the brainspace of the US Supreme Court. Arguments have been heard in the case, which combines some of the most entertaining …

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Patent Trolls....

Meh.... nuke 'em all and let the remaining lawyers sort 'em out. Then nuke the lawyers.

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Re: Patent Trolls....

It's the only way to be sure, eh?

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Mushroom

Re: Patent Trolls....

We are talking lawyers, so chopping the remains up and them stomping on them will also be required.

If you want to be really sure, sprinkling a mix of weed killer, napalm, and holy water on the squished remnants would probably be a good idea.

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Re: Patent Trolls....

@Ian Emery

". . . so chopping the remains up and them stomping on them will also be required."

Until you get blisters or can think of something even more unpleasant to do?

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Anonymous Coward

Re: Patent Trolls....

If you get blisters sue them for the pain and distress caused by having to stomp them.

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Re: Patent Trolls....

NEVER, NEVER, EVER chop up a troll into lots of pieces. Each piece is capable of regenerating into a full grown troll. Proper process is to beat it until it stops moving, beat on it for another 10 minutes. Then you leave one party member to continue stabbing the only mostly dead troll while the rest of the party builds a funeral pyre. Place the troll body on top of the pyre. Cover it with oil. Light the oil. Watch very, very carefully to make sure no bits scuttle away from the fire while it is burning. Only THEN can you be sure the troll is truly dead.

Or expose it to full noon sunlight. Whichever works best for you.

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Yikes!

I can't imagine what a shambles the patent situation will be if you can be sued for violating a single claim of a patent. Many patents have dozens or even hundreds of claims, and the ones at the start are so basic they make the ones Apple and Samsung are fighting over look like formulas for cancer cures and FTL travel.

Pretty much look for everyone to sue everyone over every product if Akamai wins. Hmmm, maybe that would be a good thing, the courts would be so clogged up that by the time the cases are heard instead of smartphones we'll have brain implants that give us terabit telepathic access to the superintelligent AI that runs the world.

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Re: Yikes!

Existing patents operate much like mines (the bang-where-did-my-legs-go sort, not the useful mineral extraction sort). Chopped into separate claims they'll be cluster bombs.

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The core problem is the Federal Circuit.

How many patent cases in recent years, having reached the Supreme Court, have been overturned after being mangled by the patent-friendly Federal Circuit?

An interesting list includes KSR vs Teleflex (obvious + obvious != non-obvious), Quanta vs LG (exhaustion) and Association for Molecular Pathology v. Myriad Genetics (DNA patentability).

In all three cases, the defendant won in the district court, had the decision overturned (in favour of the patent holders) by the Federal Circuit and then overturned again by the Supreme Court. In all three cases, the Federal Circuit was found to be ignoring Supreme Court precedents.

Likewise in the recently-delivered decisions in ICON vs Octane and Highmark vs Allcare.

In these two cases the Supreme Court ruled that the Federal Circuit had been too restrictive in their judgment of what constituted 'exceptional' so far as justification for awarding fees and in applying a burden of proof to the defendant. The Federal Circuit had applied additional tests and restrictions that were not present in either statute or precedent and in doing so had significantly narrowed the focus, making it harder to be awarded attorney fees.

What all these five cases share in common is that the Federal Circuit had ignored our outright contradicted the Supreme Court. Myriad Genetics is particularly noteworthy as the Supreme Court first vacated the decision, ordering the Federal Circuit to re-hear the case in light of the recent Mayo decision. The Federal Circuit did so but more-or-less ignored the Supreme Court precedent in question, after which the Supreme Court heard the appeal and reversed the Federal Circuit.

The other thing they have in common is that the Supreme Court decisions were unanimous, except in the Myriad Genetics case, where Scalia wrote a concurring opinion alongside the majority opinion (of the other 8 judges).

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The point I am getting at is that the Federal Circuit seems to be on a pro-patent mission that is at odds with both the lower and higher courts.

As the Supreme court only heard a fraction (about 0.1) of the cases filed with it each year, it is with important decisions like those above that the Supreme Court is able to reign in and, in some cases rebuke the Federal Circuit and attempt to stem this chaos.

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Can we therefore infer that it is easier to corrupt a Federal Circuit judge than a Supreme court judge ?

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@Khaptain

Not necessarily.

The story of the creation of the Federal Circuit shows some clues as to how we have gotten where we are now. It was specifically created for the purpose of patent cases. Prior to its inception, patent cases were initially heard by district courts, just as they are now. HOWEVER, appeals were heard by the various federal appellate courts.

There was another body called the CCPA which had specific jurisdiction limited to hearing appeals from the US Patent Office and thus was not involved in the appeals process of normal patent cases.

In 1982, the CCPA was merged with the Federal Court of Claims to become the Court of Appeals for the Federal Circuit and given jurisdiction over all patent appeals, not just those involving the Patent Office.

In concert with a hands-off approach to patent cases by the Supreme Court (and its limited ability to hear cases), the result was that a single body became largely responsible for deciding patent cases.

Now, it is well known that certain district courts are more friendly to either patent holders or to patent defendants and this is reflected by where the cases are filed, with E.Texas and Delaware being the perennial favourites. It's even got to the point where some 'patent trolls' have their offices registered in these districts so as to make the case for being heard in those districts all the stronger.

The CAFC has, just like Delaware and East Texas, proven itself to be noticeably pro-patent.

The CAFC was created to bring consistency to patent rulings and it has done so. But this is also a problem because it has, to an extent, concealed the problems. Rulings by the other federal appellate courts can be at odds with each other, which highlights that the Supreme Court might need to take a look into the issue to see why statutes and precedents are being interpreted differently and make some clearer rulings.

With a single court, there is less discrepancy. This was by design but that design then reveals the flaw that while the CAFC is more-or-less consistent, it is consistently bias!

One explanation I have read suggests that that is simply a side-effect of them always dealing with patent cases. Also of note is that almost half (8/18) of the current justices come from a patent law background.

Are they corrupt? No, I don't think so - they just, as a court, have a particular bias and that appears to be quite strongly pro-patent. This is evident in the way they have all-but reversed - or at least watered-down - precedents set by the Supreme Court.

It has been cynically (though truthfully for all I know!) suggested that the importance of the CAFC is directly proportional to the number of patent cases that are brought and this in turn is directly proportional to the likelihood of a patent case being decided in favour of the patent holder. Thus, the more patent-friendly the CAFC is, the more cases they have and the more prominent they will be.

Unfortunately for them, this prominence has fairly forced the Supreme Court to take a stronger interest in patent cases and re-assert their findings where they feel the CAFC has been in error.

Like I said, that's a cynical view but may be true for all I know!

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And all of this is funded by whom, the taxpayer or the Patent Holder ?

It appears that Judicial systems are become so complicated that they are themselves removing the justification for their own existance. It's apperars to be getting to the stage whereby it will be cheaper and quicker just to pay a hitman rather than go through the courts and the legal fees..

Thumbs up for your reply, very detailed and quite interesting.

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The 'problem' is that humans are complex and so human interactions are also complex. That means that the laws that govern those interaction must also be somewhat complex.

One might wish for a clear-cut, black-and-white legal code, removing any possibility of judicial bias and thereby promoting perfect consistency.

Unfortunately, there are two problems: first, it is impossible to cover all the possibilities and any code that tried would be mind-bendingly (not to mention unworkably) complex. Second, laws cannot, however well-written, determine intentions and states of mind. They might be able to direct a judge/jury as to what actions to take in certain circumstances but we still need humans to access human behaviour.

Ultimately, you can't write a law ahead of time to rule unambiguously if a certain patent is 'obvious' or not. That's why this whole process is important, with precedent essentially forming a supplement to legislation, improving the legal system by tempering it with first-hand knowledge of the law in practice.

That process is not always faultless as bad precedents can arise and this is what has happened, with the CAFC setting its own precedents which the Supreme Court now appears to be attempting to correct.

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One bit missing

Although generally correct, I think you'll find that the perceived bias comes from the presumption that a patent is legally valid in the first place leading to :-

Rule 1 The patent is valid

Rule 2 If the patent is not valid see rule 1.

Once the USPTO started handing out patents like M&Ms the valid presumption should have been removed.

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Re: One bit missing

@banalyzer

Well, I think that's more of the effect of the bias, rather than the cause of it but yes, rule 1 does appear largely to be the assumption that is taken.

That said, I am not sure your closing sentence is necessarily the salient factor. It may well be true but based on the data I have, and my imperfect reading of it, it seems that, while patent approval has been steadily rising, long term, it is not without ups and down. In 1987 it was 47% approval and in 2003, also 47%.

Anyways, that isn't necessarily the issue.

Prior to the establishment of the Court of Appeals for the Federal Circuit, patents were invalidated rather frequently; after that, the CAFC sided with the patent holders much more often. This resulted in an increase in patent filing because the stance of the CAFC suddenly turned weaker patents into stronger ones and thus prompted an increased rate of patent filing.

The point is that patents are more likely to be upheld, rather than that patents are more likely to be granted. (Again, all from imperfect information.)

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I thought

the agreed nomenclature for El Reg was the Supremes. It would be a shame to see that go.

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Anonymous Coward

Re: I thought

The Supremes, or as full title "The Supreme Court of the UNITED STATES only and not the world so stick your extra-territorial **** "?

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Re: I thought

@AC

Well, they did reverse the Federal Circuit's decision in Microsoft vs AT&T.

In that case there were a number of important issues, but the biggest one is really around how far US patent law extends and the Supreme Court said - 'not that far'.

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Re: I thought

Agreed, not least because SCOTUS is rather cryptic as to what it stands for particularly when the abbreviation isn't actually defined or the words used in that order!

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In the particulars for this case

I would have to say that Limelight is guilty of infringement. By placing the software on the end users's PCs they effectively made the end user pcs part of their distribution network.

You'll note this does protect legitimate uses of single steps of a protected process on a user's pc so long as it wasn't part of the rest of the infringement.

Frankly, if you've taken part in an infringement because you thought you'd found a rules lawyer way around the law, I don't have a lot of sympathy for you.

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