Seeing those who try to profit by breaking/abusing our legal structure smacked down is always cathartic - this particular instance has a hilarious portion of the judgement in refusing the ability for the filer to censor what they filed over. Intellectual property is valuable and industrial espionage from actors who are not held to account by US law is a real issue - but in theory that's what patents are there for. Your IP no longer needs to be kept under lock and key since it's registered with the government and you are given legal recourse to seek damages if someone uses that information - this is the mechanism I appreciate the most from our patent system and I hope we preserve it when we revise the system to be less stupid about other things.
The fact that this troll was arguing that they couldn't reveal the way in which their IP was infringed publicly as it would hurt their business is hilarious as it's absolutely true and depressing at the same time - their business is hoping that other companies accidentally trip into patent violations, they don't want those violators to negotiate usage fees upfront nor do they want the violators to carefully avoid violating the patent.
The article isn't about infringement, but standing. Uniloc is arguing that it cannot disclose the business arrangements by which it purchased the right to assert the patents at issue.
Microsoft did not try to keep their Android patents secret but did try to keep secret the list of which of their Android patents were used in licensing deals. This is a key difference as, unlike patents, licensing deals and the list of patents included in those deals are not public information and keeping them confidential does not seem to me to be "shady." The individual patents, provided you knew which were involved, could and can be easily looked up and read.
It is a distinction without a difference - without knowing which patents are 'Android patents' (i.e. the ones in the licensing deals), avoiding them is impossible.
Could you find them by looking at the patent markings on Android devices (or in the accompanying documents) made by companies that licensed the patents? The patent licensing deal that granted them the right to use those patents should have included a requirement that they mark.
It seems strange to me that having prior technical knowledge in some field is seen as an assett in a judge, but a reason to disqualify a juror.
Is it the case that lawyers don't want anyone to understand the technical issues, but they only have the ability to get rid of potential jurors, not judges?
The plaintiff needs a unanimous decision by the jury to win, and has a limited amount of time to present arguments and to counter defense arguments. The Court actually keeps track of time used, and will cut them when they hit the limit.
The more uniform your audience is, the better chance you have to craft an argument that will work with all of them.
Suppose the trial involves some specialized field, and you have a jury with a wide range of knowledge about that field. Both plaintiff and defendant are going to include in their cases an explanation of the relevant field, pitched for the backgrounds of the jurors with the least prior knowledge.
If the jury also has people who are experts in that field, there are at least three potential problems.
1. They are going to be bored during the part where you are explaining the field to the rest of the jury, and might let their minds wander, and might miss something important.
2. Your primer on their field necessarily simplifies things, and if you simplify in a different way than they would, it could prejudice them against your case.
3. The other jurors may turn to them for guidance on the evidence relating to that field. That's problematical for two reasons.
3a. If the evidence relating to the field is in an area where experts in that field disagree, the other jurors will get the position of the expert juror, and will probably give that more weight than the testimony of exports at trial who take a different position.
In effect, the expert juror ends up also as a de facto expert witness in the trial--but an expert witness not subject to examination or cross examination.
3b. There is a danger that if the jury turns to the expert juror for help on the technical evidence, they will also tend to give more weight to that juror's opinion on the rest of evidence.
That unfortunately applies to other areas as well, like critical thinkers.
It makes me curious-- suppose the judge asks a potential juror if there is any reason they cannot remain impartial. What happens if that potential juror responds yes, pointing out that the plantiff's lawyer had clearly been systematically dismissing the independent thinkers from the jury for the past four hours?
Mostly likely, that person won't be picked for jury then. That being said, when I served on a jury for a lawsuit earlier this year, we were informed about whether we were selected outside of the room where the remaining potential jurors were still sitting, meaning the people still in the room had no idea which of us were picked, since from their perspective, we would leave either way. Interestingly, there also wasn't a judge present for this selection, only the lawyers; apparently in my jurisdiction (New York City), judges are only present for the selection of jurors for criminal trials, not civil.
Incentive structures for lawyers are based on winning. Its easier to convince someone ignorant that youre correct when you can supply (again, winning-incentivized) expert testimony that proves youre correct, instead of hoping the jury sees it your way.
Yeah, the "peers" part of a jury of your peers has been diluted many times over in the interests of guaranteeing a malleable audience. Winning vs. justice.
A jury trial involves a careful division between the jury's role and the role of the court, lawyers, and experts. The jury decides a factual question based on a carefully orchestrated presentation of evidence. The judge decides the content and manner of presentation of that evidence, to conform to legal requirements. The jury's job is simply to evaluate the evidence and render a decision.
For example, say the defendant asserts that a patent is "obvious." "Obviousness" has a precise legal definition: it means that every element of a patent claim was disclosed in a combination of prior art references. Where multiple references must be combined to arrive at the invention, there usually must be a showing that one of ordinary skill in the art would be motivated to combine the references in the necessary manner. The court will decide what elements are required by the patent claims and what references are prior art, and the experts will opine on what elements are disclosed in which prior art references and whether there is any motivation to combine them. The jury takes that information and decides the ultimate question of obviousness.
That process absolutely requires the jury to "understand the technical issues." During trial, evidence about how the accused product works will be shown in slides right next to the patent claim language. Jurors will be repeatedly told that they must find that every element of the patent claim is practiced by the accused product. If jurors don't understand the technology well enough to map between the accused product and the patent claims, they are not going to return a verdict for the patent owner. (You will almost never see an appeal in a patent case where the patent required doing "X" and the accused product simply did not do "X." The fight is always about the scope of what it means to do "X.")
But that understanding must be based only on the evidence presented. The risk with jurors who have domain knowledge in specific fields is that they will substitute their own knowledge and preconceptions for the evidence, and when that happens, you get a verdict that is not based on the evidence presented--which is curated to meet legal requirements--but based on an unknowable body of information in the juror's head.
There is also no need for jurors to bring personal expertise to bear on a case. A jury of 12 ordinary people can understand surprisingly complex subject matter when they have Ivy-league PhDs explaining it to them, and do nothing but focus on the subject all day for a week or two at a time. What they may lack is domain knowledge. But if there is pertinent knowledge, it is the party's job to put that knowledge in front of the jury. The jury must simply be able to understand it once it has been presented.
As to your last point--if the judge doesn't understand your technology, she will assume it is bullshit and find ways to throw out your case. (Most cases don't make it to a jury trial.) Parties go to great lengths to explain the technology to judges, for example, through lengthy tech tutorials and the like.
> Beginning in the later 1400s, the development of the jury trial, with witnesses testifying about the facts of a particular case was an important factor in the development of the hearsay rule. Interesting, it appears that prior to the later 1400s juries conducted their own investigations in civil cases.
> Toward the end of the Middle Ages, the function of the jury transformed from persons who were active investigators that had knowledge of the case to our present day juries who are passive triers of fact with no prior knowledge of the case presented.
The US still has a sort of investigative jury: the grand jury. Though the actual investigation is not actually done by the people on the jury, I think it has to be a direct descendent of those medieval juries.
True, but there's a reason the "if 12 men of good standing trust their friend is a good man, he surely can't be guilty" approach to selecting jurors based on their claimed knowledge of the facts went the way of trial by combat and seeing whether witches float...
This is a good explanation, but I'm not sure it's entirely a good thing that jurors only know what they've been told in court? Both sides may have reasons why they don't want to present certain evidence to the jury.
That's the entire point of the legal system. Which is why some lawyers are better than others. The legal system is a "game" in the sense that you want to eek out every advantage you can in the scope of what is allowed in the rules.
Well, it's possible that the adversarial system, while it has its benefits, could stand some improvement? Suppose there were some way to agree on an independent investigator to look for more evidence? Or to appoint some jurors?
Norway has always had a combination of juries and panels of judges that are made up of a mix of legally trained professional judges and 'lay judges'.
Now it is that system only. The lay judges are people who are appointed the same way as jurors used to be, but the difference is that deliberations happens with professional judges present.
The lay judges have a majority, but the professional judges can under certain circumstances overrule if they find the lay judges are ignoring the instructions or otherwise rendering a sentence clearly not supported by the law.
On one side it means jury nullification is generally out, but on the other hand we regularly both see cases where the professional judges call out clearly faulty logic, as well as cases where the lay judges overrule the professional judges and the judgement stands (meaning the professional judges disagreed but accepts that the decision followed the legal requirements).
To me, seeing the decisions of the professional judges when they override makes jury trials terrifying. And this is with professional judges present in the room and participating in the deliberations. Even that is insufficient to deter flawed decisions.
That process happens to a degree in the US too, though the jury is treated more deferentially. After the verdict but before judgment is entered, there is a process of post-trial motions where the judge (who was present at the trial) looks at the record and decides if a reasonable jury could have reached that result.
The big difference, though, is that they are not able to refer to the jury deliberations, or influence them (they participate in the deliberations as equal partners). There are a lot of cases where a reasonable jury could have reached a given result, but where there may be reason to doubt if they're doing so for the right reasons.
What we've seen in Norway when the professional judges set aside decisions is exactly that their dissenting opinions often reveal that even when professional judges are participating in the discussions the lay judges still occasionally insist on decisions that are obviously logically invalid.
Also given how blatantly ridiculous some jury decisions can be - the last ever jury decision in a Norwegian court was a combination of two yes/no answers where the jury entered the only combination that was a logical impossibility based on their instructions as a guilty finding on the first charge was a pre-requisite to make the second charge applicable; people were quite relieved that the last jury decision basically helped validate the decision to get rid of them by failing to follow even those basic instructions.
It makes me wonder how many jury decisions have been based on invalid reasoning but where the outcome is just plausible enough to allow the judgement to stand.
Personally I think juries will be looked back on as a dark chapter.
It's possible for public experts to voice their opinion in an brief amici curiae. They don't need to be unbiased, but they're supposed to be independent from the parties.
There are some stats that 80% of such statements are accepted, although it's up to the courts discretion how and if they make it into discovery. It certainly helps for a "both sides try to hide some aspect from judge and jury" situation though.
It's incumbent on each side to properly present evidence as needed to support their case - if both sides fail to present a piece of evidence then:
1. It isn't actually relevant to the case or for the purpose of rendering judgement on the case.
2. Someone didn't do their job.
I think (2) is sort of the leap of faith required for our legal system, lawyers are required to advocate solely for their charge and empowered to do what is required to earn them an optimal outcome. There are many times this doesn't happen (see overburdened court appointed lawyers) but I think that's a flaw in our current implementation of the system rather than the system itself - it actually all falls together pretty well as a logical solution.
The definition of obviousness that you give is precise but not much different than the lay person's definition of obvious. I find it hard to believe that having 12 random people, some who may not have completed high school is better than having a body of experts who you explain the legal meaning of obviousness to.
I've seen brilliant people struggle to understand certain technologies. So really, we're relying on both sides bringing in experts who sound convincing (perhaps because they have fancy degrees) and then having them fight to convince a jury with zero expertise.
Seems silly to me, compared to the alternative of just having judges what specialize in these things make the decisions.
Imagine a vim v. emacs trial. Do you think a jury pool recruited from the tech community would be able to set aside any pre-existing opinions on the topic, and use just their general knowledge to fairly adjudicate the case that is actually presented in court?
Yes, that requires a lot of "teaching" of the non-expert jury during the trial. But that's perfectly fine, because the purpose of a jury trial is not so much getting a verdict that is "better" in some objective sense than whatever an expert panel would come up with, but to create a process where the public at large feels represented and is able to follow the proceedings and trust the results.
Of course, and as a die-hard nano user I say "Hang both the blaggards!"
(that is a good analogy though - and you hit the core point, the lawyers need to endow the judge or jurors with an expertise or understanding of any matter that is core to the judgement being decided)
> Is it the case that lawyers don't want anyone to understand the technical issues, but they only have the ability to get rid of potential jurors, not judges?
Pretty sure this accurately describes the situation.
I'm sure many times lawyers don't have expertise in the matter of the trial, but part of their job involves gaining expertise in the subject matter in order to properly pose a stance regarding the potential judgement. A lawyer without a firm grasp of the subject matter is just a bad lawyer... but we don't have that expectation of judges, the assumption is that the judge should push back on assumptions of general knowledge that the judge lacks and force the sides to present a logical argument that the judge can actually comprehend through their own knowledge of the subject matter... This is where I think things have broken down too often recently, lazy judges let lawyers get away with establishing unfounded statements that they accept without full comprehension - then the lawyers build arguments based off of those bad assumptions.
It may well change the lawyer's approach. And it's probably helpful in protecting against deposition bombing. But at the end of the day, they still have to present evidence and defend it's inclusion if needed, so their role doesn't change fundamentally.
Outside the US it's very common for the losing party to pay the legal expenses of the other party, in order to discourage stuff like this because someone who's obviously right has theoretically nothing to lose. However, since that could be abused by big companies, we often let governments handle common civil matters. Eg, in Sweden you would call the Swedish Companies Registration Office in case someone opens up a business with the same name as yours and they would handle it rather than you dragging the offender to court.
I often wonder what life is like as a patent troll attorney. Wake up, read emails knows, get to work on filing motions, read some hate mail, post some scammy ads, make a few calls to other people in the racket.
Sure, maybe they get paid enough not to care… but the have industrialized patent trolling. It’s a job like any other for most involved.
It's a matter of perspective. A patent troll is just a big corporation's term for an inventor who seeks to make money by licensing his patented invention to others. The big corporation doesn't see any value in paying license fees when its internal R&D team come up with the same invention on its own. The inventor can't realistically compete with the big corporation, so he is branded a "non-practicing entity". The inventor can't get an injunction to stop the big corporation from shipping its product because of eBay v. MercExchange. When the inventor asks for too much, the big corporation will challenge the patent in court and/or the Patent Trial and Appeal Board (PTAB) instead of paying a license fee. The PTAB finds 40% of the patents it reviews invalid. [0]. Recent court decisions have also rendered entire categories of inventions unpatentable, regardless of how new and non-obvious they are. [1]. The inventor faces tremendous odds against him making any money whatsoever. Most patents are, in fact, worthless. [2].
So, from the patent troll attorney's perspective, he is fighting against injustice. He is an advocate for the little guy, the downtrodden independent inventor, who is being taken advantage of by the big evil corporation.
> The inventor can't realistically compete with the big corporation, so he is branded a "non-practicing entity".
A characteristic of software that distinguishes it from most other industries is that software "inventions" are implemented as a work of authorship rather than a physical product. If you invent a new kind of battery and want to mass produce it, you need real estate for a factory, manufacturing equipment, factory workers, contracts with raw materials suppliers, etc.
If you invent a new kind of software, to mass produce it you distribute it over the internet, which is very inexpensive and within the reach of most everyone.
The result is that the small inventor generally can compete, but the very act of doing business makes it more difficult to enforce a patent against a big corporation, because as soon as you do they turn around and counterclaim with their own thousands of patents, many of which are invalid or not infringed but it doesn't matter because the litigation costs would bankrupt you.
The result is that the small inventor is hurt by software patents (the big corporation can in practice use them against the small practicing inventor but not vice versa), and anything that weakens or eliminates them helps the little guy. Meanwhile the entities that do initiate software patent litigation are commonly lawyers that have picked old software patents from the bones of dead businesses to use them to attack the surviving ones, which is obviously not a sympathetic business model. The attorneys doing this professionally are presumably aware of this.
The fact that this troll was arguing that they couldn't reveal the way in which their IP was infringed publicly as it would hurt their business is hilarious as it's absolutely true and depressing at the same time - their business is hoping that other companies accidentally trip into patent violations, they don't want those violators to negotiate usage fees upfront nor do they want the violators to carefully avoid violating the patent.