Pilot Program To Educate Judges On Patent Issues Really Depends On Who's Doing The Educating...

from the pros-and-cons dept

It looks like attempts at patent reform this year may come in small pieces, rather than a big comprehensive plan. For example, Rep. Adam Schiff and Rep. Darrell Issa have reintroduced some new legislation that would create a pilot program to enroll certain judges in a program to educate them on patent issues. On the face of it, this sounds good. After all, more education on issues related to patents seems like it should help avoid some of the more ridiculous outcomes we've seen in patent courts in the past. So, it's no surprise that some are excited about this proposed program.

However, just as when similar legislation was introduced in the past, I'm worried about unintended consequences. Specifically, there's a big question in terms of who is going to be doing this "educating" and what the "curriculum" will entail. After all, when a specialized patent court, the CAFC, was first created, even though not all judges involved were patent lawyers, those who had less experience simply deferred on many issues to those who came from that world -- and, as we've seen too often, patent attorneys view the world differently than many technologists -- and seem to think that patents are the answer to many questions. So, if the "education" program simply comes from patent attorneys, then the end result could be much, much worse, because judges will have been taught only one side of the issue. That would be very troubling.


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  1.  
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    Vidiot (profile), Jan 26th, 2009 @ 2:55pm

    In patent cases, both sides get a crack at education

    About 15 years ago, the so-called Markman ruling acknowledged that patent judges couldn't possibly understand all the technologies presented before them, and required both sides to educate the judge, each from their own unique viewpoint. (Our video production company got a lot of work... 40-minute-long animations and such.) But educating an IP judge about the tenets of the law itself... that seems somehow different... I think it's called "law school".

     

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  2.  
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    Anonymous Coward, Jan 26th, 2009 @ 3:02pm

    Damn Patents!

    Yet another stupid case: IP3 went under today due to the lawsuit Nomadix brought against it involving a patent on browser redirect pages.

    They didn't go after big guys, they went after the up and comers.

    Details of the patent? Well, if you have a network that displays a screen that requires users to sign on (through a browser) then you violate it. Several Open Source products do this too so weeeeee.

     

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    Joe Smith, Jan 26th, 2009 @ 3:49pm

    Good idea

    I think this is a fabulous idea - so long as I get to set the content of the course ;-)

    More seriously - who picks which judges get sent to dumb judges school?

     

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  4.  
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    Vincent McBurney, Jan 26th, 2009 @ 6:25pm

    patent cases are dispersing

    We've seen a lot of patent cases go Texas where plaintiffs felt they had a better chance of winning. The judges there were used to patent cases and didn't need extra education. Recent common sense rulings have seen cases removed from Texas to a location that is more beneficial geographically to the parties involved so we will see more patent cases in front of judges that are not used to patent cases. If you study patent law at University it's not much help if your first patent litigation arrives 40 years later!

    This education is timely but it needs to be saved for judges who need it and it's going to take away their time from court duty.

     

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  5.  
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    IANAL, Jan 26th, 2009 @ 7:03pm

    Re: In patent cases, both sides get a crack at education

    Vidiot -> "acknowledged that patent judges couldn't possibly understand all the technologies presented before them"

    How is "a program to educate them on patent issues" the same as educating the judge about the technology in dispute ?
    I would think them to be different and separate.

     

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  6.  
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    Gene Quinn, Jan 26th, 2009 @ 7:20pm

    Patent attorneys can't teach patent law?

    So what exactly do you think that judges should be taught? Of course patent attorneys need to be the ones teaching them. Judges are not supposed to legislate from the bench, so teaching them anti-patent and anti-software propoganda is not helpful. They need to learn patent law and how to apply it, not an anti-patent agenda or that patents are anti-competitive. Those things are for Congress, not the courts who are to interpret the law.

     

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  7.  
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    I see said the blind man to his deaf horse as he p, Jan 26th, 2009 @ 8:02pm

    Re: Patent attorneys can't teach patent law?

    Lets see here ...

    1) Patent Attorneys would not have a conflict of interest.
    2) Patent Attorneys would only teach patent law and to apply it.
    3) Those who are not Patent Attorneys would teach anti-patent and anti-software propoganda.
    4) Those who are not Patent Attorneys would teach an anti-patent agenda or that patents are anti-competitive.

    Well, ok then - I guess that sums it up.

     

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  8.  
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    Willton, Jan 26th, 2009 @ 9:31pm

    Re: Patent attorneys can't teach patent law?

    I agree with Mr. Quinn. The legal issues surrounding patent law should be taught by those who understand the law the best, and those people are typically patent attorneys. Teaching judges that patent law is bad and should be dispatched is not helpful for anyone, as judges are still left in the dark regarding the issues and the anti-IP activists achieve nothing from their efforts because judges do not have the power to do away with the law. Judges should learn about patent issues from those who understand the law, not those who want to do away with it.

     

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    Mike (profile), Jan 26th, 2009 @ 10:45pm

    Re: Patent attorneys can't teach patent law?

    So what exactly do you think that judges should be taught?

    They should be taught to apply the law properly, as put forth in the Constitution: for the promotion of progress in the useful arts and sciences.

    Of course patent attorneys need to be the ones teaching them.

    To date, I have seen an awful lot of patent attorneys who prefer not to focus on what patent law actually is about, but how to make the most money from it.

    Judges are not supposed to legislate from the bench, so teaching them anti-patent and anti-software propoganda is not helpful.

    Who said anything about teaching them anti-patent propaganda? My goodness. And what the hell is anti-software propaganda? Who's against software?!?

    Nice strawman!

    They need to learn patent law and how to apply it

    Wait. Aren't they judges? If they don't understand the law, how did they become judges? The very problem appears to be not that they don't know the law, but that they've done a piss poor job interpreting the law for ages... in large part due to patent attorneys who have worked quite hard to push the interpretation of patent law WAY beyond any level ever intended by the system's creators, and certainly significantly beyond the boundaries of the constitution.

    not an anti-patent agenda or that patents are anti-competitive.

    But patents are, by definition, anti-competitive. In fact, that's one of the big worries that the framers had about them, so I think it's *quite* relevant for a judge to understand the significant harm that he or she may be causing. Indeed, part of the way the system was designed was to make sure that any result was promoting the progress. How can a judge properly determine that if they don't understand or are not taught the potential downsides?

     

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  10.  
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    :Lobo Santo, Jan 27th, 2009 @ 6:11am

    Government:

    If you think you have problems now, just wait till you see our solutions.

     

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  11.  
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    dinnerbell, Jan 27th, 2009 @ 7:23am

    stop the shilling!!!

    “patent attorneys view the world differently than many technologists -- and seem to think that patents are the answer to many questions”

    they are the answer unless the question is how does a big company protect its market dominance without innovation

     

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  12.  
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    Anonymous Coward, Jan 27th, 2009 @ 8:24am

    I have yet to meet a patent attorney who is not a "technologist", with a large number having worked in technical fields prior to law school, and a large number having Masters and PhDs. Unfortunately, very few lawyers in other fields, and this includes judges, have such a background.

    Do you need to be a "technologist" to serve as a judge in patent litigation? No. Competent counsel serve the very useful purpose of explaining the technology so that the judge can understand it and how it pertains to the issues at hand.

    I was fortunate when I first began practicing in the IP field to be taught as my very first lesson that patent applications should be prepared and the claims presented in such a manner that they would be comprehended by a non-technologist judge. It is unfortunate that this lesson is not uniformly applied in the training of all of engage in the preparation and prosecution of patent applications. If this practice was followed, as well as a thorough search of the prior art before and application is even considered for filing, life would be so much easier and a good deal of litigation contentiousness would not rear its ugly head.

    By the way, if an application is prepared as noted above, it far, far exceeds the disclosure requirements set forth in 35 USC 112, which states an application be directed to those of ordinary skill in the relevant art. Scrupulously following the lesson I was given would result in an application directed to persons with no skill in the relevant art, a standard far stricter than the statutory minimum.

     

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  13.  
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    Gene Cavanaugh, Jan 27th, 2009 @ 3:55pm

    Patent Education for Judges

    Well, as a patent attorney I largely agree; but there is the problem that the Supreme Court decided some time ago that only judges can interpret patent claims, and the claims "are the patent" (probably good, since they are less likely to be swayed by a seasoned attorney).
    I would like to see obtuse, muddled patents invalidated for lack of clarity, rather than being "interpreted" by "experts" in the employ of the parties. That would defeat the purpose of many patents - making litigation expensive!
    Some patents are abstract and hard to understand (take PCS, for example), but an independent expert (paid for by both parties?) can fairly quickly figure out if this applies.
    I suspect the EFF, etc., would supply experts, for that matter.

     

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