Judge In FTD Copyright Case Worked For Movie Studio's Lawyer On The Side?

from the bias?-ethics? dept

A few folks have sent this one in. Last week, we wrote about a really troubling ruling in the Netherlands against usenet community FTD. While we had originally described it as saying that links to infringing files were illegal, it actually went even further, saying that mentioning file names of infringing files was infringing. But, perhaps even more ridiculous is the news that the judge in the case also happened to teach classes on intellectual property where his boss was the lawyer representing the movie studios. Under just about any normal system, you would think that this would reason enough for a judge to recuse himself from the case. Apparently not here.


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  1.  
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    fake tpam, Jun 8th, 2010 @ 7:15pm

    there must be more silly pirate logic to this sotry,,, the masnick

     

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    Anonymous Coward, Jun 8th, 2010 @ 7:24pm

    oh no, lets recuse any judge who has a past, or might have worked as a lawyer. yeah, good idea. then we can just hire newborn infants to work as judges.

     

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    Anonymous Coward, Jun 8th, 2010 @ 7:40pm

    Re:

    Wow you're one stupid troll.

     

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    Anonymous Coward, Jun 8th, 2010 @ 7:45pm

    Re:

    Or, you know, who recently worked directly under the lawyer representing the plaintiffs.

    But why let the facts and circumstances get in the way of your trolling, right TAM?

     

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    Anonymous Coward, Jun 8th, 2010 @ 7:56pm

    Re:

    Judges should be impartial? That's unpossible!

     

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    Anonymous Coward, Jun 8th, 2010 @ 8:05pm

    Re:

    Did you miss the allegation of corruption because the judge and the lawyer work together?

    Oh, sorry, you were being dense on purpose.

     

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  7.  
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    Jay (profile), Jun 8th, 2010 @ 8:16pm

    Re: Funniest part

    It never dawns on people to think about "conflict of interest" when making these cases.

     

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    NAMELESS.ONE, Jun 8th, 2010 @ 8:24pm

    Welcome to the dark side?

    Darth Vader: This will be a day long remembered. It has seen the end of Karoke, it will soon see the end of the Rebellion.

    Darth Vader: Don't be too proud of this technological terror you've constructed; the ability to destroy a MUSIC INDUSTRY is insignificant next to the power of the US AIR Force.

    The Emperor: As you can see, my young apprentice, your friends have failed. Now witness the firepower of this fully ARMED and OPERATIONAL MUSIC station!

     

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  9.  
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    Anonymous Coward, Jun 8th, 2010 @ 8:32pm

    Re: Welcome to the dark side?

    Sadly, I believe that was somehow your most coherent post yet.

     

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    Anonymous Coward, Jun 8th, 2010 @ 9:00pm

    It is indeed quite disappointing that an article is presented based upon incomplete and unexplored information so as to arrive at an informed opinion. The article reads more as partisan advocacy that honest broker reporting.

     

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    Anonymous Coward, Jun 8th, 2010 @ 9:10pm

    Re:

    You might have had a relevant point if you had actually detailed any "incomplete and unexplored information" instead of just vague whining.

     

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    Mike Masnick (profile), Jun 8th, 2010 @ 9:11pm

    Re:

    It is indeed quite disappointing that an article is presented based upon incomplete and unexplored information so as to arrive at an informed opinion. The article reads more as partisan advocacy that honest broker reporting.

    Wait, you're honestly suggesting that the *reporting* bias is the problem here, rather than the judge's bias?

    You want to think that one over a couple times?

     

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    Rob, Jun 8th, 2010 @ 9:23pm

    Again, what's your point?

    I've read and appreciated the information on this web site but some of these posts are getting pretty thin on evidence and explanations. I am not a lawyer so when I read posts by a lawyer I expect to hear the legal ramifications.

    So I agree with you that the ruling is pretty outrageous on the face of it. However, the little bit of info in this post is more like gossip than anything else. If I want to read gossip I'll pick up a tabloid at the supermarket.

    Was the judge a judge on this case at the same time his boss represented someone in the movie industry? How can a judge have a boss who is working as a lawyer?

    In the absence of any more explanation, I'm going to assume that at some time in the past when the judge wasn't a judge he and a boss that was a lawyer who had a movie studio as a client. If that's not correct then please add some more information to clarify his position and the timeline.

    Or are you saying that any judge who has had a boss at any time in his past must recuse himself on any case that involves the industry in which his previous boss has ever represented? Is that what you're saying?

    Come on! I've admired this blog for a long time. These last few posts have lowered my opinion of it. Don't publish items like this if you're not going to back them up.

    Peace,

    Rob:-]

     

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  14.  
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    Anonymous Coward, Jun 8th, 2010 @ 9:36pm

    Re: Again, what's your point?

    Read the linked article.

    The Lawyer and the Judge were both running a business together, outside of their jobs with the law.

    The business involved teaching Anti-Piracy classes.

    The brochure that was found listed the dates of May 20-27, 2010, which is within the time frame of the court case.

    While my Dutch is almost non-existent, it appears that the Lawyer owned the business, and the Judge was one of four teachers.

    In other words, the brochure EXPLICITLY states that: the Judge and Lawyer work together for an Anti-Piracy business while the court case was underway.

     

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    Lisae Boucher (profile), Jun 9th, 2010 @ 12:04am

    Re: Re: Again, what's your point?

    Close enough. I do understand Dutch though, since it's my primary language. The lawyer doesn't own this business. It's an educational institute for legal representatives who owns the business. The lawyer is just the leader of a bunch of lawyers and judges who all give lectures about copyright, patents and, above all, Intellectual Property.
    Information about the case itself can be found here: http://jure.nl/bm6729
    Arnoud Engelfriet who helps FTD in this legal case has a few blog items about this case at http://blog.iusmentis.com/
    Unfortunately, both sites are in Dutch but Jure can provide translations in any language. Google Translate can deal reasonable well with the other site.

    And to make things clear: the judge and lawyer don't run an anti-privacy business together. They provide lectires about Intellectual Property together. Since the Netherlands doesn't have many IP-related lawyers and judges, so it's no surprise that they meet each other during an IP case.

     

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    Anonymous Coward, Jun 9th, 2010 @ 12:06am

    Dutchman here, #14 is right! The leaflet clearly states the judge is one of the teachers, and the lawyer is his course leader. so technicly the lawyer ownes the judge, and in the courtroom (just few days after!) the judge had to give an impartial judgement, which is impossible in my opinion.. The verdict is also full of gems, such as: "the accused makes it easier for the people to download illegal material. however this material can still be accessed by manual search.however by making this easier they have an active role in this, even though they do not host the content themselves" btw, today is election day!

     

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    abc gum, Jun 9th, 2010 @ 5:36am

    Re: Again, what's your point?

    "I've read and appreciated the information on this web site "

    - Apparently not.

    "If I want to read gossip I'll pick up a tabloid at the supermarket."

    - Will you then tell the tabloid they need to provide more gossip and less facts ?

    "are you saying that any judge who has had a boss at any time in his past must recuse himself on any case that involves the industry in which his previous boss has ever represented?"

    - Stop being childish and research the term "conflict of interest". Definitions may vary from one country to the next.

     

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    Anonymous Coward, Jun 9th, 2010 @ 6:56am

    Re: Re:

    Wow you're one stupid troll.

    He's just your typical copyright supporter.

     

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    TtfnJohn (profile), Jun 9th, 2010 @ 9:25am

    Re:

    You don't know much about legal systems, do you?

    It's expected, not a good idea, but expected that in most places which inherited British common law such as the US, Australia, Canada and so on, that a judge would recuse as a matter of course in such a situation.

    Expected. It's part of the job. It's part of what you take on when you become a judge. You're supposed to recuse from any case where there is the slightest potential of conflict of interest. Most judges will do this automatically.

    Not in The Netherlands, it seems. I wonder how this will do on the inevitable appeal?

     

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  20.  
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    Anonymous Coward, Jun 9th, 2010 @ 10:16am

    Re: Re:

    I did think about this before commenting. The content of the linked article and what was presented here do nothing lending credence to the assertion that the judge in this case was in fact biased.

     

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  21.  
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    Robert, Jun 9th, 2010 @ 10:35am

    This relationship was known before the case went to court.

    While I do agree that a judge should be as unbiased as he/she can be, if FTD didn't think this was severe enough to call for a different judge why such noise about it afterwards?

    There's enough wrong with the ruling as it is, the supposedly biased judge is actually the least troubling about the whole thing.

     

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  22.  
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    Anonymous Coward, Jun 9th, 2010 @ 10:37am

    Re: Re: Re:

    They're, like, best friends!

     

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  23.  
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    Mike Masnick (profile), Jun 9th, 2010 @ 10:45am

    Re: Re: Re:

    I did think about this before commenting. The content of the linked article and what was presented here do nothing lending credence to the assertion that the judge in this case was in fact biased.

    I'm curious how you can say that, when it clearly shows the two of them working together to teach a class, around the same time as the trial. That's a clear conflict of interest.

    How can you not see that?

     

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  24.  
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    RobShaver, Jun 9th, 2010 @ 11:25am

    Thanks for those who offered clarification.

    The Lawyer and the Judge were both running a business together, outside of their jobs with the law.

    That's all I wanted in the original article. If I have to read every linked article to get the gist of the issue then this blog loses much of its appeal. Most of Mike's posts are quite detailed. This one and another I read yesterday just give me what I needed to understand the issue. Peace, Rob:-]

     

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    Anonymous Coward, Jun 9th, 2010 @ 11:30am

    Re: Re: Re: Re:

    Perhpas I do not "see it" because I do not look for conspiracies under every rock as some (and I am not saying or suggesting your are one of the "some") seem want to do every time they disagree with a court's decision.

    BTW, here in the US it is not at all uncommon for CLE and the like panels to include practicing attorneys, academics, industry reps, and judges...including on the panel persons who might at one time or another represent clients before the judge.

     

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  26.  
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    Mike Masnick (profile), Jun 9th, 2010 @ 12:33pm

    Re: Re: Re: Re: Re:

    BTW, here in the US it is not at all uncommon for CLE and the like panels to include practicing attorneys, academics, industry reps, and judges...including on the panel persons who might at one time or another represent clients before the judge.

    During the same time that the case is going on? Where the attorney for one side is the person in charge of the program, and the judge is one of the participants?

     

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  27.  
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    Lisae Boucher (profile), Jun 9th, 2010 @ 12:41pm

    Re: Re:

    The Netherlands has about 17 million people, most of them non-judges. The number of judges is therefore reasonable small and they tend to know each other. The same is true about lawyers, although we do have a bit more of them, though. In this case, both lawyer and Judge have specialized in Intellectual Property. This is a very uncommon topic in the Dutch courts, since most tend to deal with petty crimes up to some larger issues. Thus, with an already low number of judges and lawyers here, the IP specialization tends to make this group even smaller. Chances of lawyers and judges having worked together in some way or another is therefor quite large.
    The appeal will attract a new judge, but it's very likely that this new judge and the Eyeworks legal team will know each other quite well too.

     

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  28.  
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    Mike Masnick (profile), Jun 9th, 2010 @ 12:47pm

    Re: Re: Re:

    The Netherlands has about 17 million people, most of them non-judges. The number of judges is therefore reasonable small and they tend to know each other. The same is true about lawyers, although we do have a bit more of them, though. In this case, both lawyer and Judge have specialized in Intellectual Property. This is a very uncommon topic in the Dutch courts, since most tend to deal with petty crimes up to some larger issues. Thus, with an already low number of judges and lawyers here, the IP specialization tends to make this group even smaller. Chances of lawyers and judges having worked together in some way or another is therefor quite large.

    That's a serious problem. It's also why it's a mistake to have such cases go to judges who are seen as having "specialized in IP." As we've seen in the US with the failed CAFC experiment, when you put "IP experts" on the bench, they inevitably side with more and more draconian IP laws, rather than what's actually in the law.

     

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    Anonymous Coward, Jun 9th, 2010 @ 1:34pm

    Re: Re: Re: Re:

    That's a serious problem. It's also why it's a mistake to have such cases go to judges who are seen as having "specialized in IP." As we've seen in the US with the failed CAFC experiment, when you put "IP experts" on the bench, they inevitably side with more and more draconian IP laws, rather than what's actually in the law.

    This is wrong on so many levels I scarcely know where to begin.

    First, the CAFC was formed in 1982 by the merger of the the appellate division of the USCC and the CCPA. Virtually none of the USCC judges had "IP" expertise. As for the CCPA, at the time only a small minority had such expertise. Importantly, at no time during the tenure of the CCPA (which was formed in 1910) and the CAFC have "IP" experts ever comprised more than a small minority.

    Criticisms constantly leveled here against the CAFC almost certainly leave people with the impression that it is a "patent court". This is plainly wrong. The court's jurisdiction covers a wide area of subject matter, and even a cursory readings of its issued opinions quickly demonstrates that patent law is relatively evenly interspersed with the other law over which the court holds appellate jurisdiction.

    What are the "draconian IP laws" to which you are referring. I see here "draconian" used almost exclusively in the context of copyright law, and yet the CAFC exercises no jurisdiction in this area because it has none. If you have a complaint with respect to the interpretation and application of Title 17, the members of the judiciary to which you should register your complaint are located in the various federal district courts, the various US Circuit Courts of Appeal, and the Supreme Court.

     

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  30.  
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    Mike Masnick (profile), Jun 9th, 2010 @ 1:53pm

    Re: Re: Re: Re: Re:

    This is wrong on so many levels I scarcely know where to begin.

    Touched a nerve, eh? It's not wrong. It's quite accurate and you know it. Though, since you've already admitted to being an abuser of the patent system, it does not surprise me that you can't bring yourself to admit it.

    First, the CAFC was formed in 1982 by the merger of the the appellate division of the USCC and the CCPA. Virtually none of the USCC judges had "IP" expertise. As for the CCPA, at the time only a small minority had such expertise. Importantly, at no time during the tenure of the CCPA (which was formed in 1910) and the CAFC have "IP" experts ever comprised more than a small minority.

    Indeed. But when it came to patent cases, it's well known and well documented that the other judges deferred to folks like Judge Rich, who did have strong patent lawyer backgrounds.

    What are the "draconian IP laws" to which you are referring. I see here "draconian" used almost exclusively in the context of copyright law, and yet the CAFC exercises no jurisdiction in this area because it has none. If you have a complaint with respect to the interpretation and application of Title 17, the members of the judiciary to which you should register your complaint are located in the various federal district courts, the various US Circuit Courts of Appeal, and the Supreme Court.

    I don't need to register a complaint. Just a review of the Supreme Court's rulings on patent laws over the past five or so years shows that it agrees with me that CAFC rulings clearly exceeded the boundaries of what the law said -- and you would have to be blind, deaf or dumb to not have realized why this happened. Non-patent lawyers on the court deferred to those who were former patent attorneys. As such, they tended to favor greater expansion of what was patentable, and through a fair bit of judicial activism, clearly overstepped their bounds, for which the Supreme Court has only begun smacking them back down.

    This is the problem I referred to. When it comes to IP attorneys (and, fair game, you should admit that's what you are), they more often than not, tend to favor greater expansion of the laws. There are a few smart lawyers who have seen the light, and realize that expansion, while good for lawyers, is not good for progress or the economy as a whole.

    So when you have IP court decisions dominated by "IP experts" the results are pretty clear. And it's not good for the public. It's not good for knowledge. And it's not good for innovation or progress.

    It may be good for folks who abuse the system for their own benefit. Which is why they so vehemently defend it.

    The only thing I'm not sure of is whether they realize that they're just defending their own way of life, or if they really believe comments like the ones you make. I get the feeling you really believe it, despite all the evidence to the contrary. It's a fascinating case of cognitive dissonance, and fits very much with the famous Upton Sinclair quote.

     

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  31.  
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    Anonymous Coward, Jun 9th, 2010 @ 2:13pm

    Re: Re: Re: Re: Re: Re:

    "There has grown in the minds of certain groups in this country the idea that just because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with guaranteeing such a profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is supported by neither statute or common law. Neither corporations or individuals have the right to come into court and ask that the clock of history be stopped, or turned back." - Robert A. Heinlein, Life-Line, 1939

     

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    Anonymous Coward, Jun 9th, 2010 @ 4:05pm

    Re: Re: Re: Re: Re: Re:

    The only nerve that was touched was reading yet another inaccurate and highly misleading portrayal of the role served by the CAFC within our judicial system. The members of the court are highly respected jurists, and to even suggest that they surrender independent judgment to those few on the court you refer to as "IP" experts is unwarranted and without foundation.

     

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  33.  
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    Mike Masnick (profile), Jun 9th, 2010 @ 4:18pm

    Re: Re: Re: Re: Re: Re: Re:

    The only nerve that was touched was reading yet another inaccurate and highly misleading portrayal of the role served by the CAFC within our judicial system. The members of the court are highly respected jurists, and to even suggest that they surrender independent judgment to those few on the court you refer to as "IP" experts is unwarranted and without foundation.

    Yes, they are highly respected -- especially by folks like yourself who profit from the system. That doesn't make them right.

    I note that you did not dispute any of the factual points I raised. Not surprising.

     

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    Anonymous Coward, Jun 9th, 2010 @ 5:54pm

    Re: Re: Re: Re: Re:

    Corruption and/or conflicts of interest do not require a conspiracy, you know.

     

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    Anonymous Coward, Jun 9th, 2010 @ 6:57pm

    Judges on the former Court of Customs and Patent Appeals:

    http://en.wikipedia.org/wiki/United_States_Court_of_Customs_and_Patent_Appeals

    Past and current judges on the Court of Appeals for the Federal Circuit:

    http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Federal_Circuit

    A t each of the above locations you can read the bios for each of the former and current judges associated with what is now the CAFC. The paucity of "IP" experts is readily apparent, even within one of the CAFC's predecessor courts, the CCPA.

    It makes for interesting reading if you are inclined to do so, and should lay to rest the mistaken notion that somehow "IP" experts dominate the CAFC and dominated its predecessor, the CCPA. This has never been the case and almost certainly never will.

    There are some who make the assumption that because jurisdiction for patent matters more often than not is vested in the CAFC, then it must be an "IP" court and little else. This would be a mistake. "Patent" cases represent only about 30% of the court's docket.

     

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  36.  
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    Lisae Boucher (profile), Jun 10th, 2010 @ 4:04am

    Re: Re: Re: Re: Re: Re:

    I fear that even if the judge and lawyer hadn't specialized in IP, the chance would still be very likely that they would still meat each other in court, even though they work together outside the court giving lectures. I did a quick check on Google and there are about 1700 judges in the Netherlands, divided over 19 districts. So a single district would have less than 100 judges. And although every judge will have some specializations, it's still required for them to be able to handle any case. Though when things could become complex, an expert on the topic would always be most welcome.
    It's not an IP court per se, it's just that the judge and lawyer have both specialized in this matter, up to a point where they work together to share their knowledge with other lawyers and judges. The judge in the appeal case, which will follow next, could well be a former student of this judge or lawyer. Or he might have worked with them in some other educational program.

    Btw, on the site of Arnoud Engelfriet I've read an interesting suggestion. Apparently, the movie had been leaked to the Usenet before it was available in the shops and before people could rent it. It had been online for a week already, from the moment the distributors have received the DVD's to distribute amongst all shops until a week later when it became officially published for the generic public. Someone suggests that this could mean that a distributor has leaked the movie online. This could have been part of his distribution plan, and therefor the upload could have been legal. The funny part of this case is that Eyeworks never proved that the original upload was uploaded without their consent. They just assumed it was illegal, and so did the FTD team. This might add an interesting twist to the case, though. But I don't think FTD will use this in their defence...

     

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  37.  
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    Mike Masnick (profile), Jun 10th, 2010 @ 9:22am

    Re:

    It makes for interesting reading if you are inclined to do so, and should lay to rest the mistaken notion that somehow "IP" experts dominate the CAFC and dominated its predecessor, the CCPA. This has never been the case and almost certainly never will.

    It's like you don't even read. I already agreed that we weren't talking about the *numbers* of judges, but their influence when it came to the patent cases that CAFC handles.

    But you ignore that because it doesn't fit your world view.

    There are some who make the assumption that because jurisdiction for patent matters more often than not is vested in the CAFC, then it must be an "IP" court and little else. This would be a mistake. "Patent" cases represent only about 30% of the court's docket.

    That has nothing to do with what we were saying and we didn't make that assumption.

     

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    Anonymous Coward, Jun 10th, 2010 @ 10:01am

    Re: Re:

    Since cases before the CAFC are heard by panels of 3 judges (except for the unusual situtation where an en banc hearing is ordered), it should be obvious that only on rare occasions would a panel consist of a majority of your so-called "IP" experts, and even when this does happen the resulting opinions do not exhibit the bias you continually suggest, if not outright state, is the case.

    Your constantly stating that such "IP" experts exert "undue influence" is simply not borne out by the court's decisions and terribly misleading.

     

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  39.  
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    Lisae Boucher (profile), Jun 10th, 2010 @ 2:22pm

    Re: Re:

    In the Netherlands, I think it's likelier to be even less than 30%... The Dutch court doesn't give much in compensation when IP's get violated. Even in the FTD case, the judge ordered a compensation of slightly more than €10.000 from FTS, to compensate the legal costs of Eyeworks. (And Eyeworks has to prove those costs!)

     

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  40.  
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    Mike Masnick (profile), Jun 10th, 2010 @ 4:12pm

    Re: Re: Re:

    Since cases before the CAFC are heard by panels of 3 judges (except for the unusual situtation where an en banc hearing is ordered), it should be obvious that only on rare occasions would a panel consist of a majority of your so-called "IP" experts, and even when this does happen the resulting opinions do not exhibit the bias you continually suggest, if not outright state, is the case.

    You REALLY do not read EVER do you. You have a huge mental block. It's almost stunning. I SAID it had nothing to do with the majority NUMBER of judges. But the fact (and, yes it is a fact) that in such cases, the non-patent judges *defer* to those with patent experience.

    Despite your claim that the opinions do not exhibit the bias, you are wrong. I mean, laughably wrong. It's like you're not even remotely familiar with CAFC decisions. Either that or you are being willfully misleading.

     

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  41.  
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    Anonymous Coward, Jun 10th, 2010 @ 7:48pm

    Re: Re: Re: Re:

    If your goal is to perpetuate "myths" about the CAFC, please be advised you are succeeding splendily.

    If, however, your goal is to thoroughly understand and accurately portray CAFC jurisprudence and the inner workings of the court, that goal has not as yet been achieved. Perhaps as good a start as any is reviewing the Zoltek panel opinions (all 4 of them from a 3 judge panel), as well as the en banc decision with its associated dissents. You might also want to peruse the Neuman and Rader dissents in Bilski.

     

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    Mike Masnick (profile), Jun 10th, 2010 @ 8:11pm

    Re: Re: Re: Re: Re:

    If your goal is to perpetuate "myths" about the CAFC, please be advised you are succeeding splendily.

    I am not perpetuating a single myth about CAFC. The facts are on my side.


    If, however, your goal is to thoroughly understand and accurately portray CAFC jurisprudence and the inner workings of the court, that goal has not as yet been achieved. Perhaps as good a start as any is reviewing the Zoltek panel opinions (all 4 of them from a 3 judge panel), as well as the en banc decision with its associated dissents. You might also want to peruse the Neuman and Rader dissents in Bilski.


    You really make me shake my head sometimes. No one said that they *always* rule one way, but on the whole throughout the history of CAFC they have MASSIVELY sided with patent holders and expanded patentable material. You cannot deny that, though I can't wait to see you try.

    Also, you point to *recent* decisions. Those are besides the point. The only reason the recent decisions have been better is because the Supreme Court smacked down a whole series of CAFC decisions, and the CAFC judges finally realized they had to rethink their positions.

     

    reply to this | link to this | view in thread ]

  43.  
    identicon
    Anonymous Coward, Jun 10th, 2010 @ 9:58pm

    Re: Re: Re: Re: Re: Re:

    My reference to "myth" was not with respect to CAFC jurisprudence as a whole, but to an earlier comment that "IP" experts exert undue influence over patent matters. All I have been attempting to point out is that this is simply not supported by the opinions routinely issued by the court.

    What you raise for the first time here (with regard to this series of posts and not posts at other locations on your site) is that the CAFC tends to side with patent holders. It is easy to see how one can have such a perception in light of some high visibility cases wherein the patent holder ultimately prevailed. NTP v. RIM comes to mind as one such case. However, before excoriating the CAFC it is important to reflect on the fact that RIM's cert petition to the US Supreme Court was denied, thus affirming the decision below.

    In contrast is AT&T v. Microsoft wherein the Supreme Court reversed the CAFC on a technical issue pertaining to the interpretation of a section in the patent law dealing with exports of "components" for assembly abroad. Now, many people might conclude from this (and perhaps other cases) that the CAFC was given a "dressing down", and yet a review of the majority opinion, the two concurring opinions, and the one dissenting opinion (by Justice Stevens no less) in my view demonstrate this would be inaccurate. Many people who peruse judicial opinions at all levels of our judicial system tend to focus on the "affirmed" or "denied" conclusions at the end of the opinions. If only it was so simple a lawyer's life would be so much easier and likely outcomes so much more predictable. How nice it would be to tell a client "You have a sure-fire winner" or "Your position is a sure loser", instead of what many consider as a mealy-mouth answer "It depends."

    Merc Exchange v. eBay also comes to mind. For many years the general rule had been that upon a patent being found infringed a permanent injunction was a virtual certainty (the same was true, and still is, of decisions that copyrights have been deemed infringed. Supreme Court assent with this state of affairs was only too clear from its acqiescence over a period of many years. Here both the CAFC were following the rules established by the Supreme Court in patent matters, as have been the regional circuit courts of appeal in copyright matters. Now we find that the Supreme Court has shifted gears. Of course the CAFC will immediately be reversed because by law it is the only court with appellate jurisdiction to hear appeals involving substantial questions of patent law. A regional appellate court, however, generally gets a "bye" until such time as another regional court takes a contrary position. Of course, one of the regional courts is going to be affirmed and the other reversed. Thus, it is naturally to be expected that patent cases from the CAFC will appear more often on the Supreme Court docket than copyright cases.

    One of the nice things about technology is that you can design a circuit, and at the end of the day it works or it does not. The "light bulb" illuminates or it stays "dark". In stark contrast are legal matters where you can design a "legal" circuit...and a damn good one...but at the end of the day you haven't a clue if it is properly designed because it is not governed by the laws of physics but by the laws of human strengths and frailties.

    Such is the nature of the practice of law. E=m*c*c..."maybe".

     

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  44.  
    icon
    Mike Masnick (profile), Jun 10th, 2010 @ 10:44pm

    Re: Re: Re: Re: Re: Re: Re:

    Clearly, you are going to interpret things to make yourself feel better. It doesn't change that you are wrong. Judge Rader himself has admitted that the Supreme Court regularly has dressed down CAFC.

    You can say all you want, but it does not change the *fact* of the situation, which is that in the two decades following CAFC's creation, patent decisions at CAFC were notoriously plaintiff friendly, and those rulings had a massive impact on patentable material and the value of patents themselves. You also cannot change the fact that in many, many cases, the non-IP "experts" on the court deferred to those, like Judge Rich, who came from that field.

    You, obviously, have a big stake in this game, having spent your life around the system. I recognize that when you do that, it may be impossible to separate yourself enough to see the facts.

    But it is amusing to watch you twist.

     

    reply to this | link to this | view in thread ]

  45.  
    identicon
    Anonymous Coward, Jun 11th, 2010 @ 9:41am

    Re: Re: Re: Re: Re: Re: Re: Re:

    I would truly appreciate your refraining from your continuing gratuitous suggestions/statements that because I was many years ago associated with practicing, among others areas of law, the gamut of patent law that I am somehow invested in the system and it colors my opinion and judgment. This is simply untrue, as would be readily apparent were you to sit down with me and engage in a face to face conversation(s). Communications over the internet simply do not admit to comprehensive discussions and nuances associated with points made during such discussions.

    Do I regularly disagree with broad brush strokes that an issued patent is blatantly obvious? Yes. Do I believe that such patents should have been issued because they are manifestly new, useful and non-obvious? Of course not. The issuance of a patent enjoys a presumption of validity under law, but like any presumption it can be rebutted by the presentation of evidence to the contrary, with the key word being evidence and not ethereal opinion. A validity analysis, even in cases where a patent causes one to scratch their head wondering "how did this issue" involves much more than simply reading a patent as issued and using only it to draw an invalidity conclusion. Except in very highly unusual and exceedingly rare circustances, ending any inquiry there would almost certainly constitute malpractice. You need to read the patent, you need to read the file wrapper, you need to read the applied references, etc. The same is generally true of an infringement analysis.

    As for your reliance on a comment attributed to Judge Rader, it should be noted it was a jocular comment made before an assembly of attorneys. This is not at all uncommon in casual, informal settings. But once outside such a setting comments are much more carefully offered and explained, and in the many cases upon which you seem to rely a close reading of all the opinions reveals that stated reversals are not all that a layman might think them to be.

    KSR has been described as a landmark, and yet in the final analysis it is in my view largely a minor bump in the road of little meaningful effect (though I do have colleagues who hold contrary views). "Common knowledge" has always been available as one of the bases upon which a pending claim can be rejected. However, it is incumbent upon a patent examiner to demonstrate why it is common knowledge and present supporting evidence for entry into the evidentiary record. This is entirely consistent with what you demand when one proclaims that patent law is a necessary part of our economic system. You want documentary proof, and not unsubstantiated statements. Practice before agencies and courts in no different.

    eBay is seen by some as lecturing the CAFC regarding the grant of permanent injunctions. Even this is misleading as is only too apparent from reading the concurring opinion by Chief Justice Roberts. If this is a slap down of the CAFC, then the same will certainly be said when and as Medimmune is applied to copyright cases moving through the legal system via courts other than the CAFC where the same general rule applied pre-eBay concerning patents is currently being almost uniformly applied when copyright infringement is found.

    Medimmune was a reversal of the CAFC, and yet the CAFC is associated with that "honor" only because it was the first appellate court where the issue was sufficiently set for presentation to the Supreme Court. It could just as easily have arisen from a decision by a regional circuit court in a case having nothing to do with patent law.

    Finally, with regard to your reference to "wind" the only comment I have is to ask "What wind? The air is still."

     

    reply to this | link to this | view in thread ]

  46.  
    identicon
    Anonymous Coward, Jun 11th, 2010 @ 10:33am

    Re: Re: Re: Re: Re: Re: Re: Re:

    BTW, and for whatever it may be worth, at an international symposium in Sweden in 2007 Judge Rader spoke to the then recently issued KSR decision by the Supreme Court. Reports about what he said (which are hearsay so they are necessarily the "Gospel Truth") appear in large measure to track my "bump in the road" theme.

    Obviously, this was only his opinion as he did not speak on behalf of the entire court. However, subsequent cases presented to the CAFC have largely mirrored his reported comments.

     

    reply to this | link to this | view in thread ]

  47.  
    identicon
    Anonymous Coward, Jun 11th, 2010 @ 11:26am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    "Not" should appear before "necessarily". My oversight.

     

    reply to this | link to this | view in thread ]

  48.  
    identicon
    Anonymous Coward, Jun 13th, 2010 @ 9:14am

    It is frustrating to take the time to present a rebuttal to a post, and to then be met with total silence.

     

    reply to this | link to this | view in thread ]


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