KOL134 | This Week in Law 267: Eleemosynary, My Dear Watson

Kinsella on Liberty Podcast, Episode 134. [Update: Transcript is here, and appended below.] This is my appearance as a Guest panelist on This Week in Law, Episode 267 (July 18, 2014).  Brief description: “Are patent trolls losing ground? Dish Anywhere in the Aereo aftermath, FCC gets 1 million comments on U.S. net neutrality debate and more!" Once again, the hosts and the other guest were congenial to my radical anti-IP views, and the other guest, law professor Harry Surden, basically acknowledged that there is no clear empirical evidence in favor of the patent system. (BTW the title of the show stemmed from my use of the fancy SAT word eleemosynary—it's used in Louisiana law on occasion, which is how I know, but it is obscure, but a fun word, so I had to drop it in the conversation... Some of my previous posts related to some of the topics discussed: Net Neutrality Developments Against Net Neutrality A Libertarian Take on Net Neutrality Costs of the Patent System Revisited Yet Another Study Finds Patents Do Not Encourage Innovation Patent trolls as mafioso (and that’s a compliment) My previous two appearances on TWiL were: KOL104 | This Week in Law 97: God Creates. We Patent. IP, Net Neutrality, etc (2011) and KOL103 | This Week in Law 133: Beyonce, Bad Laws, and Breastaurants (2011). Transcript THIS WEEK IN LAW 267 (TRANSCRIPT) Aug 11th 2014 This Week in Law Episode 267 - Jul 18 2014 Google, Dropbox, Canon and other c… Denise Howell: Next up on This Week in Law, Stefan Kinsella and Harry Surden join Evan Brown and me. We’ll talk about the FCC getting the soppa treatment, piloting a Nautilus through SCOTUS’ patent wonderland. We’re going to have some other strange boats, too. And talk about the law’s role regarding kids’ cruelty on social media. Much more too on This Week in Law. Netcasts You Love, From People You Trust. This is TWiT! (TWiT logo) Bandwidth for This Week in Law is provided by CacheFly at CacheFly.com (CacheFly logo) Advertisement: This is TWiL, This Week in Law, with Denise Howell and Evan Brown, Episode 267 recorded July 18, 2014 Eleemosynary, My Dear Watson Denise: (bagandbaggage.com - @dhowell) Hi folks, I’m Denise Howell. And you’re joining us for This Week in Law, thank you so much for joining us.  We are thrilled to have you and we hope you will be thrilled to be here. We have an awesome panel for you today. We haven’t done too much on the Supreme Court’s recent patent decisions and we’re definitely going to get to that today, plus a whole bunch of other great stuff at the intersection of law and technology. And to help us understand it all, we’ve got Stephan Kinsella joining us once again here on the show. Hello Stephan. Stephan Kinsella: (stephankinsella.com - @nskinsella) Hello. Denise glad to be here. Denise: Great to have you back. What’s going on with you these days? Stephan: Well, trying to stay out of the Houston see in the summer, but having a good summer and following all these patent cases and IP developments. It’s interesting to watch, but so far everything is going very well. The good thing about being on your show, I save time I listen to it anyway, so I can save the podcast for a walk. Denise: That’s wonderful; great, we could save you some time. And make room for somebody else in your podcast lineup. Also joining us a return visitor to TWiL is Harry Surden from University of Colorado law school at Boulder. Harry Surden: (harrysurden.com - @HarrySurden) Hey, Denise. How are you? Denise: I’m doing well, thank you so much for joining us. Great to have you back. Harry: It’s really great to be back. Denise: So, tell us about Boulder in the summertime; make us all jealous. Harry: Boulder in the summer is outstanding. I mean, I can’t say enough about it. There’s millions of hikes just within the city’s borders and it’s beautiful. This has been a particularly mild summer. And it’s sunny almost every day and it’s quite lovely, I must say. Denise: (laughter) I knew that was going to be the case. Just, you know, hoping for. Maybe random thunderstorm shaking things up for you but. Actually, no, we wish you a wonderfully beautiful summer. And also enjoy the lovely summer weather in Chicago, Illinois is Evan Brown. Hello Evan. Evan Brown: (infolawgroup.com -@internetcases). Hi, Denise. Yes, I am thrilled to be here and as nice as it would be to be in Boulder, I guess the second best place is to be sitting in front of a computer somewhere else on TWiL. Talking with the three of you. This ought to be a lot of fun, so it’s great to be here. Denise: The weather’s always good on TWiL. Evan: That’s right, it’s always sunny here. Denise: Good climate control. All right, well, let’s check out the patent on, the patent climate recently in the wake of a couple important Supreme Court decisions. And some other good patent news. So let’s go there first. (Advertisement: music playing, black background; white wording: it’s patent time) Denise: Let’s head into wonderland via Nautilus if we can. The couple of big cases out of the Supreme Court this year. One called Alice, one called Nautilus. And really need to have a better understanding of these because they are already being applied by other courts. So let’s start with Stephan. Stephan can you tell us the significance of each of these cases, and sort of your take on them. Stephan: Well, I think generally, the significance is a few things. The courts have been pretty much unanimous with its most of its patent rulings. They pretty much reversed the federal court, the Court of Appeals of the Federal Circuit in most of the recent holdings. And it seems like they’re basically, trying to clarify the law. Have it be more certain, which was one of the goals of the Federal Circuit in the first place, which it seems to have not done too good a job of, in recent years. And also to sort of push the rules slowly in a direction towards clamping down on frivolous patents, frivolous patent claims, patent troll assertions, things like that. I don’t think we want to give too much into the boring patent lawyer weeds but, you know, there are different aspects of patent law. One of them is the requirement to have an enabling disclosure another is to have enough   specificity your claims. And The Nautilus case, I thought was pretty good, because it’s really going to affect patent trolls a lot in companies that assert patents that have vague claims. It’s basically an attempt to impose certainty on the law. One of the justifications for patent law, is that it’s similar to property law and that the claims sets out the metes and bounds of property. And usually in the case of land, say, you can see the bounds pretty easily, or at least its determinable. And in a patent, you have to use words to describe the metes and bounds of the patent claim. If you don’t clearly defined it, then you have just created a lot of in certainty and this can be used in legal bullying by or even extortion as some call it by the patent owner because the target of the patent assertion is not sure they are not sure if they will win or not, because it’s not clear what is claimed. To be honest, I think patent lawyers and take advantage of this, sometimes they will throw in extra claims which have an intentionally broad, I’m sorry they aspect because they figure they may be can get this past the examiner. And it doesn’t really hurt your client to have a paid claim. The patentee does not suffer any cost what so ever from having a vague claim in the patent as long as some of the other ones are clear. Because you can always theoretically use that vague claim in defense or for offensive reasons. And so, patent attorneys will take advantage of the system and patentee’s will as well. So I think it is good, what the court did was basically they clamped down on the standards that you can use to overturn a claim for being too indefinite, okay? They made it easier to do that, so I think that is a good move. And, some of the other cases they are also ratcheting back on the scope of patentable subject matter. But probably the most import thing is that the fact that most of these rulings are unanimous, and so there is at least a fairly clear ruling. I can’t say the same thing about their copyright rulings, like in the Aereo case, but it’s at least in the patent fields, I think they are basically doing the CAFC job for them. So the idea of whether we need the CAFC is becoming scrutinized. If everything is going too appealed to the Supreme Court anyway. Why do we need a federal appellate court that is effectively the junior Supreme Court for patents? Why not have a diverse multi-circuit system like we have in other federal appellate litigation, where different circuits can approach each other and we can learn? The Supreme Court can decide conflicts if they have to. So, that’s a summary of some of the trends that are going on now in these patent cases. Denise: Right, and for anyone not to on their lawyerly acronyms; CAFC would be the Court of Appeal for the Federal Circuit. The court that hears patent cases and has jurisdiction over them. Harry how is the Federal Circuit Court of Appeal faring these days? Harry: Well, let me just, before I answer that. Let me just, comment that I really agree that the single biggest force driving patent law at the Supreme Court for the last 10 years or so has been patent trolls and most of your viewers may know what patent trolls are. But for those who don’t. These are folks who are variously called nonpracticing entities or patent assertion entities, but basically companies that tend not to make actual physical products, but just tend to buy patents and make the money by suing on patents usually against companies that actually make things like technology companies or provide goods and services. So they are,