Just eyeballing it, it does look like new filings have fallen off a cliff. Good.
It's also remarkably easy to spot the trolls, e.g. "Spider Search Analytics LLC v. The Home Depot, Inc." and "Spider Search Analytics LLC v. Adidas America, Inc."; the pattern appears to be "Company you've never heard of because they're in the business of patent lawsuits vs. Company you've heard of because they're big enough to sue".
Data-mining this to build a real-time list of patent trolls could be fun.
One of them probably holds a patent on that though and would sue you for doing it.
The reason you are getting downvoted is probably twofold.
(1) Patents are not copyrights. They are distinct. You can patent a business process, which covers a ton of algorithms.
(1) Copyrights can cover the expression of facts. eg. ESPN can't copyright baseball statistics, but they can copyright the {webpages, spreadsheets, books, magazines} they publish which contain nothing more than factual scores / play statistics.
Your second point, as specifically phrased, is probably factually false.
SCotUS ruled in Feist Publications Inc., v. Rural Telephone Service Co. [0] that, "Many compilations consist of nothing but raw data — i.e. wholly factual information not accompanied by any original expression. On what basis may one claim a copyright upon such work? Common sense tells us that 100 uncopyrightable facts do not magically change their status when gathered together in one place. … The key to resolving the tension lies in understanding why facts are not copyrightable: The sine qua non of copyright is originality."
This is the source of what I've heard called the "phone book doctrine" of copyright (though I'm not finding any hits on that phrase in a cursory search, so it may not be a widely used phrasing).
Publications "which contain nothing more than factual scores / play statistics" per se contain no originality, and are consequently not copyrightable.
Court proceedings are public records and so who is filing suit is just a short parse away. Not sure what patents would be infringed there, but I'm willing to be educated.
Big companies sue small ones to break them. (For reasons, like nipping potential competition in the bud for instance.) Patent trolls sue large ones because there is meat on their bones.
What is "that", or rather how? "broken"? Language is inherently underspecific, yes, but that's the opposite of "fine". The passive is well understood, therefore it should be used. It just baffles me how coders could glance over this. I probably would't have said anything if the topic wasn't a legal matter where precise language is paramount. Suddenly you are framed for cannibalistic tendencies.
FWIW I agree that your version is more readable, and since I'd like my writing to not suck someday, I appreciate the edit.
Suggesting edits to others' comments on HN is tricky though because it will usually at best be off-topic for the conversation, and at worst lead to several off-topic comments, as in this case. For that reason they tend to get downvoted.
"Fine" as in the syntax of English allows both. "Like that" in that yes, human language is incessantly, pervasively ambiguous. Most utterances are technically ambiguous.
In this case your suggestion certainly is clearer than the original, but the original isn't wrong, and HN isn't a law court or a writing circle and you're not our sub-editor, so if you didn't understand something or want to clarify something for other readers, go ahead and do that graciously, rather than "correcting" with a brusque "fixed that for you".
You are right insofar reading it as containing a zero grade would give to sue (them). I can only guess the mind of the poster was already firing up a few neurons about "them" suing in return or sumsuch. Or I'm just really miserable with analytic languages.
This looks like a monad. The first sentence binds the subject and so on. I think translating that to monadic predicate logic is a skill, so my criticism still stands. But now I'm just arguing for arguments sake, so don't mind me.
East Texas was popular with plaintiffs because it was very troll-friendly. East Texas knew what side it's bread was buttered.
Delaware is popular with companies because of its tax laws. The Delaware tax laws are deliberately to attract companies. Delaware knows what side it's bread is buttered.
I would expect Delaware courts to will be very defendant-friendly.
I'm a jury consultant who regularly works on patent cases in both east Texas and Delaware. The judges in Delaware are definitely more friendly to defendants than in East Texas but that doesn't say much. From what I've observed, they're fine. They're actually not any worse on average than judges in notoriously defense friendly venues like Northern California San Jose division. On the jury side, I'd say Delaware is fine for either a plaintiff of defendant. They're pretty even-keeled juries. You might expect Delaware to have fewer defense jurors than some venues because of the area demographics, but most Delaware jurors who would prove to be really bad for a defendant will be dismissed during hardship qualification and never make it onto the jury.
There is definitely going to be a shift away from east Texas but it's not happening as quickly or precipitously as we (in the industry) thought it would be.
There are plenty of other states with more favorable tax laws than Delaware. Delaware is popular because of it's well developed corporate caselaw and unmatched judicial experience, which is particularly attractive to investors (i.e. potential plaintiffs) because it minimizes legal risk.
If you want investment, there are only two states to consider when incorporating: your home state or Delaware. Any other state will give investors and their legal counsel pause.
That's not quite true. States do specialize, for example Nevada is known for those seeking beneficial living trusts, Montana is known for holding companies for expensive motor vehicles, and so on.
There is a large body of research and a wide variety of actors across the political spectrum who are all in agreement that the US is one the largest tax havens in the world. I can only assume that you've never been exposed to any of that and are simply making a knee-jerk reaction comment.
There are many, many more such things written over decades. Here's a 2009 article from The Economist on the same subject of America's status as one of the world's premiere tax havens: http://www.economist.com/node/13382279
You're technically correct, the best kind of correct.
Most countries around the world have higher effective tax rates than the US, and this was true even before the tax cuts. (People who claim otherwise are citing flawed political studies that ignore how tax deductions and credits are actually used by companies, and the ultimate average corporate tax burden. Even in industries subject to high effective rates, like retail, they still pay lower effective tax rates than their Euro counterparts. If they're not, they need to hire better accountants.)
The US is also the premiere information disclosure haven in the world...as long as you're comfortable sharing your info with the US government. We require most other countries to share financial information with us but we don't return the favor.
But the fact of the matter is that the US is not an actual tax haven. We impose taxes and enforce tax collections. There are real tax havens, like the Isle of Man or the Cayman Islands, which don't have taxes and which have legal entity laws that promote tax-shelter holding companies.
(he's retired now). He wrote the model jury instructions for patents, etc
I talked with him a number of times, and he seemed quite reasonable (he pushed folks towards settlement, tried to make sure patent cases had the expertise, in the form of special masters or whatever, that it requires for judges to understand them, etc)
By statistics, Delaware was not "defendant friendly" in patent cases (There are some papers with the numbers i'm too lazy to look up, but google can find them for you)
If it was defendant friendly, they'd grant more summary judgement motions than most courts. They don't. They grant less.
The graph difference is that they split the summmary judgement outcome more on both the positive and negative side (IE they grant in part, deny in part).
It's hard to say more than that (because people who file in each court may file more types of claims, etc. So outside of the two extremes, which is grant in full or deny in full, it's hard to say whether the outcomes were "right")
However, you can see ED Tx is plaintiff friendly by far.
> East Texas was popular with plaintiffs because it was very troll-friendly.
Plaintiff-friendly, whether or not the plaintiff was a troll.
And even that has noticeably been changing in the last couple years.
> Delaware is popular with companies because of its tax laws.
No, it popular because it is perceived as having both very well settled and very well understood corporate governance law, so that investors are secure.
> Delaware knows what side it's bread is buttered.
Delaware has only limited influence over the composition, court rules, and judgments of the US District Court for the District of Delaware, which the State of Delaware does not control. So, even to the extent that Delaware wants the court to rule a particular way, its ability to influence it is quite limited.
... and given that many companies are incorporated in Delaware, it's not unlikely that the defendant and plaintiff in a suit would often both be Delaware companies. So it's unclear that favoring one or the other would be better for Delaware from the perspective of maintaining their status as the go-to destination for incorporation.
Delaware is still somewhat plaintiff friendly because the judges rarely grant summary judgement. Once you get to a jury, all bets are off as a defendant. If you think judge's are bad at technology, you should see how juries deal with it.
We might be seeing a gradual end to the oil well/rights to patent analogy. Except a patent troll doesn't work like that. Those work like this (keeping the oil idea):
You acquire the rights and land to build a oil well. You dig one, and everything's great. It's all legit. Then someone comes along and says that because your dump truck looks an awful lot like his (which was stolen), all your oil belongs to him.
One of the side effects of this dynamic is that there's less chance for a circuit split if the vast majority are filed in one specific circuit. Which is generally a precondition for Supreme Court cases, and leaves them somewhat helpless to grant cert on cases they'd otherwise prefer to overturn.
> I would expect Delaware courts to will be very defendant-friendly.
Not really a given when you're talking about companies suing companies. In fact the article even mentions a defendant's motion to dismiss was rejected. This suggests the company would have preferred to defend in a different court, perhaps California.
I'm not sure how the rules are established, but I assume it's something along the lines of the Senate rules (ie the filabuster) -- changes are subject to majority consent by vote.
That rule seems to be basically non-binding commentary.
"The following, although neither controlling nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers".
And, in any case, the last possible reason reads:
"(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court [...]"
What the court considers important is described later on. While the court can't establish any rules it cant later undo, it is a statement from the court and gives us an idea of when and why the accept the petitions they do.
As I understand it, it's _very_ rare to grant cert 'because it's important we do so.' The court accepts something like 1 in 70 petitioned, and a very small number within there are granted under Rule 10(c).
Could this also be because the judge in that district court is about to retire and most of the patent lawsuits were filed by his sons who are attorneys in the same district court holding several shell companies?
Update: my source is this mind blowing documentary called Patent Scam (on amazon prime) which mentioned this conflict of interest. It’s way too unbelievable, but I believe it is true because otherwise the movie maker would be sued like crazy if it was a lie.
> Could this also be because the judge in that district court is about to retire and most of the patent lawsuits were filed by his sons who are attorneys in the same district court holding several shell companies?
Probably not; even if such a conflict has grown up during the EDTX dominance (and the risk of such a scheme being discovered is quite high -- litigants with lots at stake do, in fact, actively investigate for potential conflicts on the part of the judge -- and in addition to being likely to get everyone involved disbarred is one of the things that would be likely to get a US federal judge impeached, so it would take amazing gall to try it), the most famous judge in the district for handling large volumes of patent cases came to the bench in the district after it's dominance from being known as the "rocket docket" with short time from filing to resolution became known, and the various procedural rules that make the district (which has 7 district and 9 magistrate judges, its not a one-judge shop) plaintiff friendly are well-known.
Its much more likely that the Supreme Court case mentioned in the Ars article which sharply limits which districts a patent case can be filed in by clarifying that a corporation is "resident", for purposes of venue, only in that state in which it is actually incorporated is, in fact, what is altering venue selection for patent cases.
There's some outdated information here: Davis and Ward are former judges for the district, and both "have sons who are attorneys with patent-focused legal practices" in the district. However, both have now retired [0]. The current judge in Marshall, Rodney Gilstrap, does have a son, but one who does not practice patent litigation [1] [2].
[3] gives a lot more information about the origin of the rules that made East Texas initially attractive, as well as how "there are signs [Gilstrap] is starting to crack down on patent trolls." It's a much more nuanced story, with a clear narrative of how judges acting in good faith might design rules like this to speed up litigation... and I'm unsure how much a judiciary can or should take into account e.g. parties' abilities to pay for discovery, one of the main contributors to the environment here [4], when deciding on those rules. Federal legislative reform would be the clearest path here, but that's hard to come by these days.
Thanks for that reply! My understanding of this issue is solely based on the Patent Scam movie. Its actually made by the person who got sued because he sold an app on Google Play store! (basically anyone selling on Play Store could be sued this way).
In addition to the burden of discovery that you have mentioned, the fact that US allows an idea to be patented, is the root cause of this pain. Once that is addressed, innovation can thrive.
And I bet his only evidence that the maker of the film hasn't been sued is that he was able to watch the movie, making his standard basically that anything you see in a documentary must be true.
Not disagreeing with you. It may be a ‘truly terrible standard of evidence’, but there’s no evidence to prove the contrary for me to consider the other side’s arguments.
This "documentary" is a defamatory hit job by someone who (rightfully or wrongfully) was on the receiving end of a patent infringement suit. It needs to go away. There is much more serious discussions that need be had about the patent system than the theories and falsities raised by this guy.
The judges and other professionals working in the district are just that--professionals. There is no secret cabal of lawyers conspiring to screw tech companies there. The judges and courts are not biased against defendants and trying to screw them.
There may be a tendency of to protect the district (e.g., avoid transfers of cases out), since the judges see themselves as stewards of the community in which they serve. But that has no bearing on the merits of the case or who wins. And recent changes in the law have significantly mitigated this. The judges are very knowledgeable at patent law, being very experienced in the domain.
Source: Am a lawyer that has practiced over a decade there, represented both sides of the "v.", also appears in numerous other courts around the country, and has obtained multiple decisions from different EDTX judges forcing patent trolls to pay my clients' attorneys' fees for frivolous lawsuits.
I've read the collusion articles about that, that have been published in the last few years. It's obviously pretty terrible. Do you have specific data on the claim you're making? Around 10,000 patent lawsuits were filed over ten years in the Eastern District, you're saying over 5,000 were filed just by the sons?
Based on that documentary, every case if filed on behalf of a shell company, many of which lead to the same bunch of attorneys. So, its not me saying, but the movie says so.
In that documentary, you can see the frustrations on many of those entrepreneurs and medium sized companies who have been screwed over by these scumbags.
Why dont most people hear about this? Because settlement includes NDA that prevents those who have been screwed over, to talk about how they have been screwed.
Commenting in lieu of voting, because of conflicting factors:
I would have upvoted this post, but for the extensive complaint about downvotes; from the guidelines: "Please don't comment about the voting on comments. It never does any good, and it makes boring reading."
I'm aware of the guideline about commenting on voting. I broadly agree with it.
In cases of what appear to be extremely abnormal voting behavior (asking a very simple, legitimate question and getting thrashed by downvotes), I regard it as a reasonable issue to raise.
It's an interesting pattern. Frankly I think I may have rubbed enough people the wrong way over time across a thousand discussions that I've got a following of persistent downvoters. My simple reply one level above you is currently enjoying the downvote parade.
A year ago, I rarely to never saw that kind of pattern, now every other thing I post is instantly downvoted, usually aggressively (even simple questions). I don't know what to make of it, except it drives me to not want to participate in discussions here.
The biggest downvote parade I think I've ever received on this site, was for defending gay rights a few months back. I upset a bunch of downvoters by discussing the facts of inequality globally around gay marriage (emphasis on that I was relying on facts, not emotional argumentation). How do you deal with that kind of intellectual mob mentality however? Do you ask for an explanation from the downvoters, or do you just leave the voting unchallenged? Sometimes it seems so bizarre, I can't help but ask.
I appear to be the only woman to have ever made the leaderboard (under a different handle). I absolutely get downvotes that I suspect boil down to "shut up, bitch." I have handled it by doing some of the following things:
1. Make sure I am actually being respectful and not an asshole.
2. Walk the fuck away and shut up sometimes.
3. I left for 18 months, to work on my issues and to give someone breathing room that I had friction with whom I felt saw me as personally threatening. I didn't have specific plans to return. I did return in part because posting something one day went better than I expected.
4. Drop it from my end when there is personal friction. This gets vastly better results when I point out someone is behaving poorly towards me. Sometimes they listen. If they don't, the mods (and community as a whole) are much more likely to be sympathetic if I am not putting out the fire with gasoline.
I routinely comment on hot button topics. I have extremely controversial views on some things. But I go out of my way to not piss on people to the best of my ability.
This has included changing my handle after hitting the leaderboard because I concluded that it didn't matter that it wasn't chosen as a feminist handle. What matters is that it is an overwhelmingly male forum and I want no appearance of impropriety as the first woman on the leaderboard. The perception of disrespect became apparent to me and was not something I wanted. So I started over.
I am vastly more satisfied with posting under this handle. Lots of people recognize me as also being Mz. So the difference is not due to being anonymous.
(This comment is not comprehensive. Just a nutshell version of 8.5 years of navigating an overwhelmingly male forum while posting as openly female.)
I'd normally leave something that is already this meta alone with just an upvote, but even though I've often clashed with you on this board, I had to comment to say this is the best advice on handling downvotes I have ever seen posted on HN and I kind of wish it (well, at least the #1, #2, and #4; #3 is probably to specific to the specific circumstances to work as any kind of general guideine) would be attached to the commenting guidelines.
#3 is probably to specific to the specific circumstances to work as any kind of general guideine)
I can think of some folks who would be better off taking a break and sorting their personal problems rather than continuing to piss and moan about what meanies the mods are or whatever. I am far from the only person here whose personal issues are sometimes a significant part of the problem.
> I can think of some folks who would be better off taking a break and sorting their personal problems rather than continuing to piss and moan about what meanies the mods are or whatever. I am far from the only person here whose personal issues are sometimes a significant part of the problem.
Oh, I certainly agree; what I meant would perhaps be more clearly expressed as "#3 probably has more need of rewriting into a more general form before being included as a general guideline"; recognizing and, where appropriate, taking an extended break to address personal issues is something that makes a good bit of general advice, the other three were just more in a form that worked as general advice without rewriting from the account of what had worked for you than that one was, IMO.
Yeah, I agree that I would not want official guidelines to sound like "The problem is you and we wish you would go the fuck away and stop bothering us." Which number 3 could easily sound like if not stated very carefully.
I struggle with that one. It's very useful sometimes though, agreed. It can be easy to fall into a discussion spiral that just goes negative all the way down, ending in frustration all around.
> 3. I left for 18 months
It's probably a good idea, broadly speaking, to take breaks from communities. If nothing else to just reassess time allocation to sites (whether HN or Reddit or whatever it may be). It surely helps with commenting perspective as well to step away. I too frequently find myself getting into low value political discussions on here, and that's my fault; I suspect it considerably lowers my enjoyment of HN.
I wonder if this will have an economic impact on the communities of East Texas.
I think I read somewhere, though I cannot recall where (maybe Ars), that some companies where investing in community projects, events, and recreational facilities to improve their brands (essentially bribes) in anticipation of patent cases coming to the district.
Anyone know where I got that idea from, and if there might be an economic impact to the region?
If there was I never saw it, for years I have driven though ETX and its still nothing but podunk towns. Even the town square around the courthouse in Marshall was nothing special. It's simply a drive from Dallas you can make in a few hours. They have a airport but I hardly think that attorneys would do that over the drive.
As for any of those projects? Likely just a facade for what's really been going on which is essentially good ol' boy politics to keep the money flowing and people in power. The place you want to look at is Marshall, TX. It's not really that exciting of a town but you can find economic reports of that community so see that it's not really a hotbed of economic growth outside of the oil field business.
My opinion comes from many years of maintaining gas stations from DFW to Shreveport off I20 and all through ETX.
I'm guessing you got it from this article [1] or a similar one on the EFF site. You're correct about the investments, the major example cited is Samsung's sponsorship of an ice skating rink.
"a federal judge ruled that a case against supercomputer manufacturer Cray could be kept in East Texas because the company employed a single work-from-home employee in the district."
That seems crazy. Poor Cray guy....company is pulled into his backyard in a bad way because he worked from home.
Watch Patent Scam on Amazon Prime (or on iTunes I guess). Then you'll wonder how is this scam even tolerated!
Basically, its a nexus between the judge and attorneys who have shell companies filing lawsuits against legit entrepreneurs and medium sized companies.
The East Texas circuit is so remote that just going there is a pain.
Laws are such that burden of proof is on the company/person being accused in the lawsuit. That combined with the remoteness of this court, compels the accused to settle, along with an NDA that prevents them from sharing any details about the settlement.
This is somewhere between incomplete and inaccurate. The collusion aspect is far overstated, see other comments in this thread. And the idea that defendants settle because EDTX is too far away may account for some small litigants, but large companies can buy plane tickets. The real reason was a set of local rules that promoted expediency (to the point of being biased some may say), a docket not as inundated with drug cases as some other districts, a judge who was very pro patent owner, and a local jury pool comprised of people who were statistically ‘dumber’ than average and really liked patent owners. And a local cottage industry of sorts set up to support this type of litigation (shell corporation headquarters, local counsel, jury consultants, etc,) I’m not defending any of it, but it’s inaccurate to just say it was all a conspiracy
They don’t the sue the bigger than certain size company exactly for that reason! Hence the lawsuit is never against Google, but against makers of successful paid apps on Google Play Store.
Sure the movie borders on conspiracy / fact . But it certainly is believable for me, who has no idea how patent system or the litigation machinery works in the US.
Based on several articles that got published over the years, investigating the district's patent practices, it was overwhelmingly plaintiff friendly. There was a judge there that was particularly infamous (at the peak he was handling 1/4 of all patent cases in the US).
This is absolutely insane, especially in USA. Courts here are supposed to be impartial and just. If you increase your chances by x in a certain court--and you can file there--what justice is it? Shocked that this travesty lasted this long.
Its actually very much unlike that. While the communities in the Eastern District of Texas did benefit from the popularity of the venue because frequent patent litigants -- one either side -- spend lots of money in those communities essentially trying to buy sympathy in the jury pool, those communities have essentially no control over the court rules that drive the popularity of the venue; its not a race-to-the-bottom competition like the Amazon HQ2 competition, and similar (usually less formalized) efforts to attract other big companies with tax abatements.
Federal courts, including EDTX, have judges appointed by the President of the United States and confirmed by the U.S. Senate; the judges aren't elected by the district served by the court.
Just eyeballing it, it does look like new filings have fallen off a cliff. Good.
It's also remarkably easy to spot the trolls, e.g. "Spider Search Analytics LLC v. The Home Depot, Inc." and "Spider Search Analytics LLC v. Adidas America, Inc."; the pattern appears to be "Company you've never heard of because they're in the business of patent lawsuits vs. Company you've heard of because they're big enough to sue".
Data-mining this to build a real-time list of patent trolls could be fun.
One of them probably holds a patent on that though and would sue you for doing it.