For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Friday, 24 May 2013

Dreaming (Literally) about Patent Litigation and the "Right" Result

The IPKat is usually a gentle creature, but when he chooses to dig his IP claws into something, it can leave long-lasting marks. Something like that has been going lately in connection with patent litigation activity. Fellow Kats Jeremy, here, Darren, here, Jeff John, here, and former Kat, Norman, here, have all offered trenchant criticism about patent judgments and the patent litigation environment, ranging from the U.S. to India. The collective impression is that courts have a tendency to muck up decisions in the patent infringement area. Whether ruling on patentability or inventive step, infringement or non-infringement, the argument seems to be is that "the courts too often just do not seem to get it". Moreover, too many patents of dubious quantity are being granted, replete with claims that are too broad, being mother's milk for patent trolls seeking to leverage such patents against entire industries.

This Kat has (perhaps an oversized) sympathy with the difficulties that confront a court in ruling on a patent infringement matter. As such, this Kat is increasingly trying to place his instinctive response to be a loyal and honest critic (after all, weren't we all first taught in law school how to criticize a court decision) within the context of the challenges of patent litigation. The subject-matter of a patent infringement case is devilishly difficult. Patent claims are by their nature the product of wordsmiths, with all the attendant uncertainty that comes with using language to describe inventions. Often, the invention describes technology of varying complexity. Even if the court is added by a phalanx of experts to help it, the ability of any court to understand the technology in full is limited. Moreover, this Kat's decade-long involvement in rendering UDRP panel decisions has given him a new perspective on the adversarial process and the challenges of rendering a decision, even within the stripped-down context of the UDRP dispute resolution framework. Sometimes, there really can be more than one reasonable way to render a decision.

Pondering these issues, this Kat dosed off and was soon deep into another IP-inspired dream. I dreamt that I was a judge in some future time, charged with ruling on patent litigation matters. I was in my chambers, writing (well, not really writing, since paper and pencil had long been consigned to the British Museum and the Smithsonian Institute) a new opinion. The way it worked is that I would orally compose the judgment, paragraph by paragraph. At the end of each sentence, the computer would, based on an algorithm that had been developed by the Council of Computer Elders, evaluate my contents. The algorithm was proprietary and secret, and it was maintained under the most fastidious conditions of multi-level security. None of the Council of Computer Elders had access to the entire algorithm, which itself was compiled on the basis of another algorithm, which consolidated the collective work of each of the Council of Computer Elders.

With respect to my discussion of the factual aspects, the algorithm would match my contents with the courtroom record, including an objective weight that was given for the testimony of each witness. Relying on the algorithm, a red light would shine on those portions of the draft opinion that were not consistent with the record, inviting me to recompose until I got it right (in years past, a slight electric charge had been applied, but its use had been discontinued.) With respect to my legal arguments, the algorithm would compare my proposed contents with the entire corpus of judgments and legislation and produce from one to three possible conclusions. Here, as well, the red light would light up until I reached the "correct" conclusion.

There was no default—I had to compose and compose until I got the decision "right" (in fact, advancement up the judicial ladder was based largely on the average amount of time taken to reach the "right" result, weighted for differences in the scope and complexity of the cases.) The end result was that here, as always, I would ultimately reach the "right" result. I remember going through five iterations of the judgment before me, still struggling to avoid those annoying red lights ("only three paragraphs to go"). And then—Mrs Kat woke me up for my morning constitutional.

This Kat's dream offers a future (utopian or dystopian, as each Kat reader prefers) view of how we can achieve a "better" jurisprudence for patent litigation. What we should be doing in the here and now, however, remains very much an open question.

7 comments:

MaxDrei said...

Knee jerk comment here, for what it's worth.

Especially in chem/bio, infringement Y/N is much easier than validity Y/N. Which infringement court in the world can "do" obviousness competently?

In our imperfect world, where do we find judges of infringement that are in touch with the real world that litigants operate in AND are competent to understand the technology being litigated? Only in England. So, the best of a bad job is bifurcation. What I mean is, let the EPO have the final word on validity. Then the infringement courts can cope.

I know it is what they have in the USA and we shouldn't copy that system, but even so, we need something that works and, today, not much does.

Anonymous said...

Ah, but then you would never extend the law, or overrule a previous bad decision. It reminds me my blogging software, where I can choose a keyword and it will give me green, yellow or red lights on my SEO. But it's quite stupid, which means either I write stupidly too or ignore it.

MaxDrei said...

Thanks for the comment, anon, but I don't understand your first sentence.

Are you telling us that giving EPO-DG3 the final word on validity would have the result that the law would never develop and that bad decisions would be binding?

That can't be right, can it? Just think as an example on novelty under the EPC. The former positions of the supreme courts of both DE and GB have been totally flushed away. And if it wants, the EBA can re-write Europe's novelty law all over again, any time it chooses.

Anonymous said...

Max: Anon at 13:40 was replying to the article, and the judicial fantasy, rather than your comment.

But let the EPO have the final word on validity? Not a good idea. The British courts recognise that EPO procedures are relatively blunt instruments, not least due to unwillingness to hear witness evidence, and reticence to rely on it when they do. Further, they are unsubtle when it comes to added matter and invetive step, and uninterested in prior public use unless proved "up to the hilt". Seems like a bad deal for the public, to make the EPO sole harbiter of validity.

MaxDrei said...

Well anon, I grant you that the EPO lacks the fact-finding tools that are, for the English courts indispensible. But where else in the 38 Country EPC is fact-finding any better than at the EPO? Would you rather the German Courts have the final word on validity, with no cross-examination, no discovery and a court-appointed expert telling the court what was or was not obvious?

As to prior use, while the EPO might not very often feel comfortable enough about it to base its written Decision on that ground, just think for a minute how often it happens that the claim is found invalid on the prior publications precisely because the tribunal could plainly see that there very probably was indeed a novelty-destroying prior use.

I agree with you to some extent though, about it being a "bad deal". DG3 is big-headed and complacent enough as it is. Making it the final arbiter of validity would likely render it even more complacent and arrogant: an insufferable outcome.

Anonymous said...

Is this the real life? Is this just fantasy?
Is courtroom software my escape from reality?
Open your eyes, computerise, and see
I’m just a poor judge, I don’t need no sympathy
Because they’re easy come, easy go
Some are yes, some are no
Anyway the chips glow, doesn’t really matter to me
To me

M’Lord, just killed a case
Punched in just a few words key
And decision’s made, you see
Goodbye to cogitations long
With my algorithm it’s all gone away
Justices, ooh ooh ooh oooooh
Didn’t mean to make you cry
But otherwise I’d still be here tomorrow
Carrying on, carrying on, as if nothing really matters

Too late, my time has come
Program’s loaded, really fine
With about a billion lines
Statutes, precedents and learned texts
Hit the button and emerging is the truth
Justices, oooh ooh ooh ooooooh
We won’t need you e’er again
We sometimes wish you’d never been there at all




I see a little IP courtroom, deathly quiet
Save for tap, save for tap, save for tapping on keyboard
Decisions come like lightning, very very frightening me
Microsofto, Microsofto, go figure oh, oh, oh, oh
I’m just a poor judge, nobody wants me
He’s just a poor judge versed in law of IP
Spare his career from this monstrosity!
Easy come, easy go, judges gotta go
Job killer no, we will not let him go
Let him go!
Job killer no, we will not let him go
Let him go!
Will not let him go, will not let him go
No no no no
Microsofto, Microsofto, Microsofto makes him go
He’s had enough, had a devil of a time and flees, and flees and fleeeeeeees

So you think you can dump us and spit in our eye
That your gadget will trump us and send us awry?
No, baby, can’t do this to me, baby
You gotta get out – just gotta get right out of here

Ooh yeah, ooh yeah
Nothing really matters
Anyone can see
Nothing really matters - nothing really matters to me

Anyway the chips glow...

Anonymous said...

Surely that last response must be comment of the year!

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