Archive for the ‘Clarity’ Category

Alicide. The IP crime of the century.

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When it comes to clarity in court-made law, I don’t expect much. And, after scratching my head for a few months over the Supreme Court decision in the Alice case, I think my low expectation has been justified.

Can you blame me?

The Court built its Alice decision on an old legal rubric—the so-called “abstract idea”. They seem to view it as a wicked thing, if it’s what you’re trying to patent. That nasty phrase first got slipped into the court decisions way back in the twentieth century. Or was it earlier? Ever since then, whenever this “abstract idea” nonsense gets channeled into a court opinion, you can count on the patent being turned into dead meat. And recently the slaughter of patents by lower courts, armed with Alice, is at a fever pitch.

This wholesale killing of patents needs a moniker.

I propose “Alicide”.

Alicide follows a simple formula: 1. Abstract idea? 2. Cadaverous patent flesh! You can just about bank on it.

But why should patents on good technology-advancing ideas get turned into moribund animal muscle over such a meaningless  catchphrase? The question begs an answer. Yet we are far from getting one. In spite of (or maybe because of) today’s furious rate of patent bashing.

In the opinions, there is the obligatory hand waving, of course, and nods are made to earlier decisions. Yet those prior pronouncements on the “abstract idea” mantra were just as hard to decipher.

I don’t get it. Why is there so little insightful guidance in the opinions on this “abstract idea” incantation that is the “ready, aim, and fire” of Alicide? Is the answer that killing these patents is a goal too compelling to let the quaint need for a enlightening explanation get in the way? Is setting out a workable definition of “abstract idea” too tedious? Too hard? Too dangerous?

This cart-before-the-horse facet of Alicide reminds me of the gloss on justice offered by the Queen in Through the Looking Glass:

‘No, no!’ said the Queen. ‘Sentence first—verdict afterwards.’

‘Stuff and nonsense!’ said Alice loudly. ‘The idea of having the sentence first!’ … ‘I never heard of such a thing!’

‘—but there’s one great advantage in it, that one’s memory works both ways.’

… ‘What sort of things do YOU remember best?’ Alice ventured to ask.

‘Oh, things that happened the week after next,’ the Queen replied in a careless tone … ‘For instance … there’s the King’s Messenger. He’s in prison now, being punished: and the trial doesn’t even begin till next Wednesday: and of course the crime comes last of all.’

Like jailing the King’s Messenger, writing opinions may be easier when the author’s mind has fixed on the outcome first. Then the task of clearly explaining the result can be treated as no more than an annoying detail. That tactic had been worked out long ago by Justice Stewart in the punch line of the 1964 Jacobellis pornography case: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.”

However amusing his clever comment may have been in the context of a pornography case, we should resist accepting it when the topic is patents. Especially patents that matter to the vitality of early stage ventures. Let’s not forget that these start-ups mill the grist for an important seat at the American economic dinner table.

If no one else will breathe clarity into this mess, the patent office should. It has been presented squarely with a chance to bring sanity to Alicide. And it has taken the first step in its recent “2014 Interim Guidance on Patent Subject Matter Eligibility.” That document is a start, but we need much more. And soon.

To move more decisively, the patent office should host a formal public rule making proceeding that gets down and dirty, specific, and clear on what “abstract idea” means. And ends with written principles that have the legal force of an agency rule. The patent office has the power to proceed this way. And it ought to.

Then we can get on with the work that the patent system was meant to do. In a rational way.

And make Alicide history.

Just my two cents.

Written by thinker

January 31st, 2015 at 3:09 pm

Alice in wonderland

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The Supreme Court opinion in the Alice case?

I don’t like it.

At all.

It’s not that I don’t like the outcome. Okay, it is true that I don’t like the outcome. But what pains me more is the way it tortures two icons of court-made law that my Constitutional law professor (Paul Freund) seemed to conjure for us many times as he stood before us in Langdell Hall four decades ago. In my student mind, those two icons were: absolute clarity; and reversibility.

Clarity meant that for a decision to be worth much, it needed to lay out an important legal principle and do that clearly. Very clearly. Never mind that the opinion also took a leisurely stroll in the woods for 82 pages and 67 footnotes. As long as it found its way to that big unambiguous legal concept at the end of the trail. And finished the trek without miring itself in a mish-mash of undecipherable muck.

Clarity mattered, because it assured that what would be legally controlling going forward was an understandable, easy to apply rule. Not the varied mercurial politics and prejudices of the lower courts who would apply it.

The rule of law, man. Not the rule of men. That was the idea, by some accounts fundamental to the health of the republic.

Reversibility, the second icon, was the Court’s power to correct things after having lost its way in the forest. Occasionally that could happen if the Court had issued a line of misguided opinions that followed some dumb theory. To fix that, the Court had the right to abandon the mistaken route. Reverse course. Trudge the long way back to the fork in the trail where the wrong turn had been made. And then head briskly off in the better direction.

This was an important power, because there was no higher authority ensconced in another grand Greek-revival temple across the Potomac to set the Court back on the right path. The Court had to do that course reversal for itself. And in grand style sometimes did. To make things better. At least in the old days.

When it comes to these two talismanic tests for useful Court opinions, Alice fails. Both.

I know this because last Thursday on the 7:02 train into Boston, I wasted a few drowsy minutes trying to skim the opinion. It was tough sledding. Hard to follow. Didn’t hang together.

Then I noticed that I was holding the pages upside down.

So I turned the sheets right-side up and skimmed them again. No better.

For a moment, I wondered if rotating the pages sidewise would do the trick. Okay. I didn’t wonder that. Because I knew the words strung across the pages in whatever direction would still be impenetrable, defying me to make sense of them. I declined the challenge.

What I did manage to glean from my failed attempts were three puzzling concepts that hung in the fog as we rounded the turn into Somerville: “abstract idea”; “preemption”; “substantially more”. Almost meaningless individually, these three were strung together in an odd-ball elusive chain that was even less decipherable: You can’t get a patent for an abstract idea if your claim preempts its use, unless what you claim is substantially more than the abstract idea. (If the writer had understood patent claims, he would have written “substantially less”, of course, but now we are stuck with the wrong phrase it seems.)

Has Alice made the rule of law clear? No. The Court invites each of the courts below to follow its own whim, or its own dogmatic leanings, or worse.

Has Alice demonstrated the Court’s wisdom in sometimes reversing course? Hardly. Instead they chose to continue hacking through the underbrush of 150 years of vague doctrine looking for the light.

As we slid into North Station, I woke up from my snooze. But not from the nightmare.

Written by thinker

September 30th, 2014 at 11:17 am