[HN Gopher] Supreme Court says over 200 patent judges were impro...
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Supreme Court says over 200 patent judges were improperly appointed
Author : pseudolus
Score : 214 points
Date : 2021-06-22 02:42 UTC (20 hours ago)
(HTM) web link (www.nytimes.com)
(TXT) w3m dump (www.nytimes.com)
| JumpCrisscross wrote:
| The Opinion [1] is quite well and entertainingly written, if you
| have a few minutes. (The dissents, too.)
|
| [1] https://www.supremecourt.gov/opinions/20pdf/19-1434_ancf.pdf
| RcouF1uZ4gsC wrote:
| One of the things I would encourage people to do, even if they
| are not lawyers is to actually read the supreme court opinions
| for yourself.
|
| Anybody, no matter if you agree or disagree with their
| political leanings, who actually makes it to the US Supreme
| Court is crazy smart, and in general a good writer. In
| addition, they are assisted by really smart clerks. Because of
| this, their opinions tend to be quite readable and and many
| times quite entertaining (regardless of your political
| persuasion, the late Antonin Scalia wrote some memorable
| opinions).
|
| Democracy really does work best if the average person takes
| time to learn about their government and the issues. Reading
| through Supreme Court judgements, concurrences, and dissents,
| is actually quite accessible and is a very nice summary of the
| arguments for and against a position, as well as how the judges
| are intepreting the hundreds of years of jurisprudence and
| precedents.
| simonh wrote:
| I agree completely, and I'm not even a US citizen.
| Nevertheless a lot of decisions made in the US have global
| reach and I find it useful to have a working knowledge of the
| US political and legal system. Some of it is bonkers, I have
| to say, but it has reasons (both good and bad) for being so
| and often these reasons bubble up to the top in SCOTUS
| decisions.
| tialaramex wrote:
| > Because of this, their opinions tend to be quite readable
| and and many times quite entertaining (regardless of your
| political persuasion, the late Antonin Scalia wrote some
| memorable opinions).
|
| However they're too often terrible law, because they do
| mental backflips to support their desired political outcome.
|
| Compare _all_ of the "United States v. Windsor" opinions
| (both Kennedy's majority decision and the dissents from
| Scalia, Roberts and Alito) with Posner's decision in Baskin v
| Bogan + Wolf v Walker a year later.
|
| The former are bad law. Windsor isn't in front of the court
| because Edith Windsor's injury hasn't been cured in the lower
| courts, or because the US government is seriously trying to
| undo that cure. It's politics. She got her money, that was
| all settled in a lower court much earlier. The US Supreme
| Court granted certiorari and then a majority cobbled together
| this vague, murky document solely for a political end. They
| even pretend not to really notice that the US government's
| side of the argument is conspicuously not being represented
| by said government.
|
| But the dissents don't stop at pointing at this ridiculous
| charade, or even foreshadowing (Scalia talks about "waiting
| for the other shoe" to drop and sure enough the Obergefell
| was before that same court only a couple of years later) they
| offer equally ridiculous rationales for the opposing point of
| view. Scalia in particular seems ready to bend over backwards
| to imagine Congress has legitimate purpose in doing things
| its members explicitly tell the public are for an
| illegitimate purpose.
|
| In contrast Posner's decision is wonderfully clear. For
| example, at one point he imagines a hypothetical tax on women
| (but not men), of just $2, and he says a government ought to
| show a "compelling reason" for such a tax or else it is
| discriminatory and must be struck even though $2 is hardly a
| grave injury - because the discrimination is the problem, not
| the weight of the tax, and it is the _discrimination_ which
| must be assessed against any benefit of that discrimination.
| He explains his intent to examine the cases before him (which
| both basically go like this: "Gay marriage is illegal in our
| state because of children") on that basis, and of course on
| that basis they come up very short indeed.
|
| Like Windsor the cases are on appeal, but the success of
| state attorneys here would actually have had a material
| impact, since the decisions they were appealing actually
| strike state laws that try to exclude gay marriage. Whether
| you could actually get married in those states depended (to
| some extent) on Posner's decision.
| alistairSH wrote:
| I'd add to this - if you're ever in DC and doing the tourist
| thing (or just have a free day), attending a hearing at the
| Court can be quite entertaining.
|
| As noted, the justices are wicked smart. The back and forth
| with the lawyers is great. And the language used is usually
| comprehendible by non-lawyers.
|
| Same comment applies to Congress, but most hearings aren't
| nearly as entertaining. But, it's worth it just to see how
| the sausage is made. And catch a ride on the Senate's private
| subway.
| jan_Inkepa wrote:
| The legibility of American supreme court rulings is really
| wonderful and a US national treasure - the democratic value
| of having judgements be scrutable to citizens probably
| shouldn't be underestimated. Scalia was in particular an
| amazing stylist. I remember deciding to check out supreme
| court proceedings for the UK and finding them absolutely
| impenetrable in comparison. I wonder if countries with very
| different legal systems (e.g. France, which doesn't have such
| an emphasis on common law / legal precedent to my
| understanding) have more readable/accessible-to-non-
| professionals judgements/proceedings still.
| RcouF1uZ4gsC wrote:
| I think relatively weak Constitutional power of the Supreme
| Court led to this. The President has control of Military
| and Law Enforcement. Congress has the power of the purse.
| The Supreme Court, on the other hand, was relatively weak,
| until John Marshall and subsequent Justices basically
| persuaded everyone that it was the final arbiter of what
| the Constitution said. The Supreme Court's power ultimately
| rests on its ability to persuade and thus I think it has
| developed a culture of trying to to give good reasons for
| its decisions to the general public.
| JackFr wrote:
| In an interview with Scalia asked which was his favorite
| opinion to have written apart from the legal issues at hand,
| he brought up Community Nutrition Institute v. Block for its
| clever opening:
|
| "This case, involving legal requirements for the content and
| labeling of meat products such as frankfurters, affords a
| rare opportunity to explore simultaneously both parts of
| Bismarck's aphorism that 'No man should see how laws or
| sausages are made.'"
| h2odragon wrote:
| See also the Annotated Constitution [1]; which gathers the
| decisions together with the parts of the constitution the
| interpret. Immense resource for understanding how our country
| runs.
|
| [1] https://constitution.congress.gov/
| xenadu02 wrote:
| Based on the actual opinion the title seems completely wrong.
| The ruling simply makes the decisions of the Patent Trial and
| Appeal Board (PTAB) reviewable by the agency director. The law
| was originally written to make the decisions by the PTAB non-
| reviewable unless the PTAB itself granted review. The Director
| of the Patent Office could not review and/or reject the
| decision, only nominate members of the PTAB. Now Smith & Nephew
| can appeal the decision of the PTAB to the Director of the
| Patent Office. Then if they don't like that ruling they can
| appeal to the courts again. In practice it seems unlikely that
| the director will actually overrule the board but in theory
| they could.
|
| The principle being that someone must take accountability
| politically for executive decisions - either the President or a
| Principal Officer confirmed by the Senate. Anyone else is
| serving (at some level) under the Principle Officer who can
| review and/or override the decision. The President can then
| review the decision of the Principle Officer and/or fire the
| Principal Officer if necessary. The ultimate check on that
| power being voters electing the President. There are some
| nuances but the theory is you don't want the Executive Branch
| to be issuing unaccountable unreviewable decisions. In practice
| you might not get a review but there needs to be some kind of
| process that isn't completely impossible. It also means if
| there is a major screw up or scandal someone needs to own the
| ultimate decision. That doesn't always happen but it stops
| Congress from converting every government department into an
| opaque unaccountable "board" that continuously makes bad
| decisions yet there is no one who can be blamed.
| dnadler wrote:
| Are you sure?
|
| This is my first time really reading a legal opinion, but
| this line at the end of the first paragraph seems pretty
| clear cut:
|
| "...the Federal Circuit invalidated the APJs' tenure
| protections, making them removable at will by the Secretary."
|
| Followed immediately by:
|
| "Held: The judgment is vacated, and the case is remanded."
|
| The 'judgment' here is referring to the original judgment
| that was issued and challenged in the Federal Circuit.
|
| It's totally possible that I'm reading this incorrectly,
| though
| JumpCrisscross wrote:
| Skip the Syllabus. It is at the beginning and is legally
| dense. Start at the section labelled Opinion of the Court.
| [deleted]
| xenadu02 wrote:
| flyingfences covered this but yes I am sure. The decision
| is narrowly tailored: the board and the judges'
| appointments to it are fine, so is the process to make the
| appointments. That makes the literal headline on the story
| nonsense.
| flyingfences wrote:
| In short, the holding by SCOTUS is that the appointment of
| the "judges" was correct, but the legal provision shielding
| their decisions from review by the Director of the PTO (or
| any other Principal Officer confirmed by the Senate) is
| unconstitutional.
|
| The Constitutional issue is that the Patent Trial and
| Appeal Board was established without any oversight of their
| key task: invalidating patents. Their decisions are not
| subject to review, and they cannot be removed from their
| appointments as a consequence of any decision that they
| deliver. They are wielding the power of Principal Officers
| regarding the rights of the people, but they are appointed
| through a procedure for Inferior Officers, without
| confirmation by the Senate. If the IOs were answerable to a
| PO (i.e., PTO Director or Secretary of Commerce), who is
| answerable in turn to the President, this exercise would be
| fine, but they answer to nobody; there is no arrangement
| for anybody in the Executive Branch to review this Board's
| decisions.
|
| The Government and another concerned party had argued that
| the Director had the power to choose which judges sat on
| any panel, thereby effectively removing "wrong" judges from
| making decisions, thereby effectively exercising control
| over the Board. The Federal Circuit held that this
| arrangement was insufficient, but could be remedied by
| allowing the Director to formally and completely remove
| judges from the Board if he took issue with their
| decisions. The Supreme Court agreed with the Circuit that
| the arrangement, as specified by law, is unconstitutional,
| but disagreed with the proposed remedy, preferring instead
| to merely invalidate the one provision of the law that
| shields the Board's decisions from review by the Director.
| SCOTUS vacated the Federal Circuit's decision (the decision
| that had been appealed to them) and remanded the case
| (i.e., the actual patent dispute, not the Constitutional
| issue surrounding it, which they have just resolved) down
| to the Director of the PTO, whom they have just decided has
| the authority to review the dispute.
| belter wrote:
| Interesting. But the whole concept of dissent at this level,
| makes for less respect for the law.
|
| I am thinking in general, not only on this case.
|
| How is it possible to have the best judges of the land, hear
| the same case, the same well exposed arguments, challenge
| counsels on the same points, look at the same base law...AND
| then come to different conclusions !
|
| What does that say about the system, the laws and most
| importantly, about the judges and the court ?
| bdowling wrote:
| > But the whole concept of dissent at this level, makes for
| less respect for the law.
|
| Sometimes the majority is wrong. Two important examples are
| _Dred Scott v. Sandford_ (1857), in which the court held that
| black Americans could not be U.S. citizens, and _Plessey v.
| Fergusson_ (1896), which held that laws requiring segregation
| of white and non-white races were constitutional. Both of
| those decisions are now considered wrongly-decided at the
| time. Justice Taney, who wrote the opinion in Dred Scott,
| will go down in history as a villain. Justice Harlan, who
| wrote the dissent in Plessy is a hero.
| scoopertrooper wrote:
| No descent on rulings within Venezuela's Supreme Tribunal of
| Justice, so I guess that must be a model of jurisprudence /s
|
| I'm assuming you don't know much about the mechanics of
| common law. But these cases are not mathematical problems,
| they involve different theories of legal interpretation,
| which stray into the philosophical and political sphere of
| reasoning.
| belter wrote:
| You used both a "False Analogy" in the comparison to
| Venezuela supreme court, and also a "Courtier's reply" in
| the second part of your comment. I see no arguments that
| address my points.
|
| I got downvoted to oblivion, but looked at both your reply,
| and the previous ones all I see is a failure to argue my
| underlying point.
|
| So I will try again...
|
| That laws and legal scenarios can be ambiguous,
| contradictory, and imperfect it is only normal. These are
| written by humans. But in that case, it should be to the
| Supreme Court to clarify the ambiguity, contradiction and
| imperfection of the law itself in a consistent way.
|
| Otherwise its more of a Political Council than a Supreme
| Court using the word Court to shield political bias under
| the disguise of interpretation of the Law.
|
| It looks like instead, some of the dissenting opinions are
| used push the biased agendas. These after all, we should
| not forget, politically appointed judges, ( you know
| ...like in Venezuela... )
|
| Most the arguments in this thread talked about different
| analysis, and you mention different philosophical and
| political views without, it seems, realizing that is after
| all, at the core of my concerns. The last thing we want to
| see in a court is judges expanding on their philosophical
| and political views. Most commentators in this thread seem
| to indulge the court on taking those liberties under the
| excuse their are doing "error handling" or interpreting
| differently the law. They should not be interpreting
| differently the law, they should be clarifying the
| ambiguities, identifying the contradictions and referring
| them back to the legislative branches that can correct
| them. That is my core point.
|
| It seem to have been missed by many of the commentators
| here that in many legal jurisdictions dissenting opinions
| do not exist. This has NOTHING to do with lack of legal
| argumentation or discussion internally withing the courts.
|
| Just to give another example and from a different legal
| perspective:
| =========================================================
| "Susan Kiefel, Chief Justice of Australia, has expressed
| concern at the frequency of judicial dissents and the
| attention given to them by law students and legal
| commentators. She believes that they should be reserved for
| only the most important cases, and has described judges who
| frequently dissent as "somewhat self-indulgent". She
| further observed that "humorous dissent may provide the
| author with fleeting popularity, but it may harm the image
| the public has of the court and its judges".
| ==========================================================
|
| I also find interesting some of the comments ( I presume
| from legal scholars ) in this thread, praising the
| smartness and clairvoyance of the court. This is after all
| the court that historically:
|
| 1) Defined the tomato should be classified as a vegetable
| not as a fruit. ( Its a fruit by the way...) Nix v. Hedden,
| 149 U.S. 304 (1893)
|
| 2) BOWERS v. HARDWICK(1986) No. 85-140 Upheld a
| discriminatory Georgia sodomy statute that criminalized
| sexually active gay and lesbian relationships.
|
| 3) Did Bush vs Gore in a completely partisan split 531 U.
| S. ____ (2000) 1(2000)
|
| 4) Opened the gates to all SuperPacs.... CITIZENS UNITED v.
| FEDERAL ELECTION COMMISSION(2010) No. 08-205
| kube-system wrote:
| Think of the Supreme Court as an error handling routine.
| Sometimes the program wasn't written for the type of input it
| is now getting. Sometimes the code has a mistake in it.
| Sometimes the rules weren't defined specifically enough.
| Sometimes there are pieces of code that interfere with
| another piece of code. etc.
|
| We don't put error-handlers in our code because we intended
| to write bad code. We do it because humans make mistakes and
| it is helpful to have a way to resolve them. Anyone who says
| their code doesn't need error-handling because they write
| perfect code is likely overconfident in their ability.
| luma wrote:
| It's not surprising if you understand the purpose of the
| Supreme Court in the US. The SC exists to decide areas of law
| that are ambiguous or poorly tested. As a result, the only
| cases that make it to the SC are ones where there isn't a
| clear decision to be made, because if it were more clear-cut,
| the decision would have already been made in a lower court.
|
| This is the system working as intended.
| alistairSH wrote:
| Exactly, there's almost 100% selection bias in the cases
| heard by the Court. By definition, the case has already
| been interpreted differently by different lower courts OR
| there's a matter of some urgency on the national stage
| (election challenges being a recent example) OR something
| else of extreme interest.
|
| The Court is asked to review somewhere around 7000 cases
| every year. Of those, they hear maybe 150.
| MikeUt wrote:
| > The appeals court agreed, ruling that the judges performed
| important work without supervision and so were "principal
| officers" under the Constitution, meaning that they had to be
| appointed by the president and confirmed by the Senate.
|
| What bothers me is that granting a patent is easy, but
| invalidating one requires a "principal officer" and is treated as
| a huge infringement on property rights. What about the rights of
| everyone else, who are forbidden from using a technology by the
| patent-holder? Isn't that a _much_ greater infringement upon
| liberty or property, than invalidating a patent?
| flyingfences wrote:
| Grants of patents are done under the auspices and oversight of
| a principal officer as well, and most invalidations are done by
| inferior officers. (In fact, appeals in the patent application
| process are handled by the same Patent Trial and Appeal Board
| that handles patent challenges at issue in this case.) This
| case doesn't concern who usually makes the decision; the case
| concerns who has the final, authoritative say in the decision
| -- the inferior officers have to actually be under the
| direction of a principal officer.
| cratermoon wrote:
| Replace "patent" with "parcel of land". Now how does it sound?
|
| What bothers me is that _selling a parcel of land_ is easy, but
| invalidating _the sale_ requires a "principal officer" and is
| treated as a huge infringement on property rights. What about
| the rights of everyone else, who are forbidden from using a
| _parcel of land_ by the _land owner_? Isn 't that a much
| greater infringement upon liberty or property, than
| invalidating _the sale of a parcel of land_?
| MikeUt wrote:
| Parcel of _public_ land. An overworked bureaucrat probably
| shouldn 't be selling those off cheaply, should they? Some
| private land is even subject to the right to roam*, so the
| public can still access it.
|
| *https://en.wikipedia.org/wiki/Freedom_to_roam
| JumpCrisscross wrote:
| > _Parcel of public land_
|
| America bootstrapped its private property market. (No. Bad
| elephant.) All of her land was "first" public land (or
| royal land) and then granted to private persons.
| MikeUt wrote:
| That distinction is only relevant if talking about
| selling a patent from one patent holder to another.
| Instead we're talking about creating a patent.
|
| There's a big difference between a parcel of private land
| changing hands, and a parcel of public land becoming
| private.
| cratermoon wrote:
| All of it was home to people already here, who didn't
| claim ownership the way we think of private, or even
| public, property. Perhaps "stolen land" would be apt.
| ajhurliman wrote:
| Maybe "generating space trash" would be a more apt analogy,
| since you're going from nothing to something as you generate
| it (unlike parcel of land which there's a fixed amount of),
| and the more of it that's generated, the worse off the public
| is (space trash leads to more danger while orbiting, more
| patents leads to more legal danger while doing business).
| cyb_ wrote:
| https://archive.is/CYQeM
| BuyMyBitcoins wrote:
| I know that most patent lawsuits end up being filed in some East
| Texas District Court. Is this ruling going to change this
| convention, or invalidate those rulings?
|
| Edit: More detail about the East Texas thing. Apple decided to
| close its retail stores in that region so they can hopefully
| avoid patent troll suits there.
| https://www.macrumors.com/2019/02/22/apple-closing-stores-in...
| rudyfink wrote:
| Generally speaking, this decision should not alter decisions in
| the district courts. Today's decision concerns filings in a
| specific agency court (the Patent Trial and Appeal Board,
| https://en.wikipedia.org/wiki/Patent_Trial_and_Appeal_Board)
| created in 2012 as part of the American Invents Act.
|
| Also, the Western District of Texas and Delaware have more
| filings these days than the Eastern District of Texas. The
| case-filing numbers for 2020/2021 collectively are WDTX (~30%),
| DDE (~26%), and EDTX (~14%). There are a few things behind that
| change, but the biggest is probably a Supreme Court decision in
| 2017 (https://en.wikipedia.org/wiki/TC_Heartland_LLC_v._Kraft_F
| ood...).
| josaka wrote:
| Probably unrelated, but the ruling in TC Heartland LLC v. Kraft
| Foods Group Brands LLC made it somewhat harder to sue in EDTX.
| nceqs3 wrote:
| Only somewhat. Any company that has locations there or a tech
| company that has its services available and used there can
| still be sued in the eastern district. See the recent VLSI
| Technology v Intel ruling.
| henvic wrote:
| If you want to learn more about how patent system works and how
| the troll lawyers take advantage of society by using it to
| terrorize inventors, I recommend you watch the documentary by
| X-Plane's creator Austin Mayer, The Patent Scam.
|
| https://www.thepatentscam.com/
| Ballas wrote:
| I watched it, but the way it is presented makes it really
| difficult to consume. That is unfortunate, because I think the
| message is really important.
| vmception wrote:
| I would like to see more judicial review of Administrative Law
| Judges and similar creatures
|
| This one was just okay, glad they looked into it
| seibelj wrote:
| > _Supporters of the procedure, called inter partes review, which
| is Latin for "between the parties," say it helps combat patent
| "trolls," or companies that obtain patents not to use them but to
| demand royalties and sue for damages. Opponents say the procedure
| is skewed toward the cancellation of valid patents._
|
| > _The decision on Monday means the challenges will largely
| proceed as before, without changes to how the judges are
| appointed. The court's narrow fix, subjecting the judges to
| additional supervision, fell well short of upending the current
| system._
|
| This does not help patent holders. The invalidation of patents
| will continue. There used to be a contingent on HN who profited
| off this system and would defend themselves in comments, but I
| haven't heard from them lately. Are any patent holders on HN
| still making a living doing the patent shakedowns? Genuinely
| curious.
| Animats wrote:
| > Are any patent holders on HN still making a living doing the
| patent shakedowns? Genuinely curious.
|
| No. I've retired from inventing.
|
| Now that we've had a weak patent system for over a decade,
| trade secrets have become so powerful that nobody knows how
| anything new works inside. With patents, you have to disclose.
| seibelj wrote:
| Just wrap your invention in an API - if it truly is novel, no
| one will be able to replicate it.
| nybble41 wrote:
| > if it truly is novel, no one will be able to replicate
| it.
|
| Novel _and non-obvious_. Many novel concepts are easily
| replicated from first principles given sufficient
| incentive. Only in rare cases is the solution non-obvious.
| Patents are most valuable to the inventor when reverse
| engineering or reinvention is more-or-less inevitable; to
| the public, whom the patent office is supposed to
| represent, they serve a purpose only in cases where the
| invention would otherwise be likely to remain a trade
| secret indefinitely. And that 's only if the patent clearly
| describes the key elements of the invention such that it
| could actually be recreated, and doesn't last so long that
| the invention is thoroughly obsolete by the time the patent
| expires.
| breck wrote:
| No one knows how anything works because of copyrights, the
| other half of intellectual slavery laws. Anyone with money
| (such as myself) can get access to the worlds info, everyone
| else is SOL.
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