Apple to Close Stores in Eastern District of Texas to Fight Patent Trolls

So you're an intellectual property lawyer? In this debate that gives you a fairly obvious bias. Admittedly it also makes you better informed than me on this topic. But I still feel comfortable disagreeing when my position both makes sense to me, and is supported by other people who I know to be knowledgeable.

You and the Federal Court both seem to believe that trying to make a framework should be the goal. Not everyone agrees. I already brought up https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?art... which is a peer reviewed article, written by a law professor. Her opening paragraph criticizes the Federal Court on the fact that, "It surprisingly resorts to formalistic rules in an area of the law that requires flexibility to adapt to changing technological landscapes." Not long after she notes that they, "...prefer inflexible rules of decision over flexible standards."

My understanding of both quotes is that they are about the framework making that you say the Federal Court is engaged in, and that you criticize the Supreme Court for not doing. But to the extent that the Supreme Court agrees with her opinion, they honestly should be "coming over to stomp on the sand castle" that the Federal Court is erecting, and really should not be erecting their own sand castles in turn.

Now as an external observer, I have a question. More than any other court, the Federal Court is having trouble coming up with opinions that the Supreme Court wishes to affirm. Where does blame belong? With the Federal Court? With the Supreme Court? Or with the challenges of patent law?

I find it unlikely that patent law is uniquely impossible to get right. Other courts get along with the Supreme Court without so much trouble. And therefore I am inclined to place the blame on the Federal Court.

As another data point, consider that the goal of patent law should be, To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. But practitioners widely agree that software patents do not noticeably promote the progress of science and useful arts. Agreement is even more widespread that the current legal regime has encouraged patent trolls in a way that actively hinders the progress of science and useful arts.

I am not simply talking about extreme activists like Richard Stallman. Those are my views, and I have 3 patents to my name with a 4th applied for and a 5th applied for by Amazon that I think should have had my name on it. You'll find a fairly balanced version of this view laid out by Paul Graham in http://www.paulgraham.com/softwarepatents.html where he says, among other things, "Patent trolls, it seems safe to say, are evil. I feel a bit stupid saying that, because when you're saying something that Richard Stallman and Bill Gates would both agree with, you must be perilously close to tautologies."

Back to the Federal Court. There is no real question that their pro-patent decisions and precedents have helped create the patent trolling problem. I am not surprised that a former chief justice (Randall Rader) had to step down due to his over-promotion of a pro-patent litigator. If I had to bet money, I would bet that there are still judges on that court who should step down for similar reasons, but haven't.

Which means that I think that the progress of science and the useful arts would be promoted if most software patents were invalidated. Including all that have my name on them. Admittedly it is likely to be hard to convince you and your professional colleagues of that. Because, as Upton Sinclair said, "It is difficult to get a man to understand something, when his salary depends on his not understanding it."

SCOTUS is quite restrained, meaning that a lot of the power is in the lower courts.

Plano and Frisco are affluent suburbs though, probably pretty heavily iPhone fans. The local community won't be happy. Traffic is pretty bad, and DFW is sprawling. If I were Apple, I'd make some effort to communicate the reasons to the locals.

"flip the bird nonsense"? I didn't include any suggestion like that at all.

We've moved, where to and sometimes why, in the door of the now vacant spot is very common.

I'm curious about another root problem: why are corporate civil cases heard by a jury in the first place? Never mind that juries are bound to be influenced when billions of dollars are at stake[1], how about the fact that these cases are both technically and legally complex?

I'm not an expert in this stuff but as far as I can tell the USA is unique in allowing juries to hear this sort of trial, even among countries with a right to jury in a criminal trial.

1. E.g. the Samsung skating rink in front of the Marshall Texas courthouse