09 June 2011

Grading the Papers

It's that time of year again: The Supreme Court is in its annual rush to get all the papers graded so it can go on summer break. (Hey, I've spent summers in DC; nobody can really get any work done there anyway, so why not?)

  • But first, this important commercial message. There's a flip side to authors going all indy-press: pushing marketing considerations too far toward the writing process. After all, how many times have authors heard "I love it! But I have no idea how to market it." as the basis for a rejection from commercial publishers? Let's leave aside for the moment the lack of imagination and constrained definitions implicit in that rationale (for example, that a successful marketing effort necessarily results in the same temporal distribution of sales as everything else in that category). The key problem is this: If authors start thinking about marketability before they write, there won't be new Harry Potters.
  • If you don't want to be classed as an armed career criminal (and thereby subject to a minimum fifteen-year sentence for a later federal conviction), don't use a car as part of a getaway in Indiana. After going through some amazingly bizarre verbal contortions, the Court (6–3) decided that using a car to flee from the police is a violent crime in and of itself. Sykes v. United States, No. 09–11311 (09 Jun 2011) (PDF). Meanwhile, the IMF gets off scot-free for raping and looting two and a half continents, even if its leader has finally been at least slowed down a little bit by a hotel maid with the guts to complain. (Note: That latter story doesn't come from a bastion of the left wing press — rather the opposite.)
  • The big (economic) news of the day, though, is that the Supreme Court actually affirmed the Federal Circuit. Contrary to the whinging from doctrinaire conservatives, the federal circuit with the highest reversal rate this century is not the Ninth Circuit, with its purported liberal bias, but the Federal Circuit. This time, though, the Federal Circuit appears to have gotten it right... and even did so with a judge-made doctrine. Poor Bill Gates!

    Under the Patent Act, a patent is presumed valid unless challenged with sufficient evidence. The question that the Act does not answer, though, is fairly important: How much evidence is sufficient to invalidate a patent that has been granted? The Federal Circuit decided some time back that § 282 requires a challenger to present "clear and convincing" evidence of invalidity, not just a "preponderence" (the normal civil standard of proof, "more probable than not"). Micro$oft got sued for a conceptually ridiculous patent that had nonetheless been granted for

    an improved method for editing computer documents, which stores a document’s content separately from the metacodes asso ciated with the document’s structure

    Microsoft Corp. v. i4i LP, No. 10–290 (09 Jun 2011), slip op. at 4 — that is, a patent that covers editing XML files. The Supreme Court held that the Federal Circuit's importation of a century of judge-made doctrine regarding the proper standard of proof necessary to invalidate an issued patent was correct.

    Of course, this does not go to the propriety of the patent in the first place... but that issue was not before the Court. This is an excellent example of why most software patents are conceptually inappropriate. Micro$oft's alternative argument (that the evidence it presented that was not made available to the Patent and Trademark Office when the patent was issued should have been used at a lower standard of proof) does not quite grapple with that problem. Then, Micro$oft holds more than a few software patents itself, and winning this particular lawsuit at the cost of invalidating its own patent portfolio would have been a Pyrrhic victory at best.

  • In contrast to my griping of a couple days ago about the GBS panel, the IPKat has announced a panel with a broad spectrum of views and constituencies to debate Do We Come to Bury Copyright or to Praise It? Unfortunately, that presentation will be taking place across the Pond at a time that I'm tied up even if I was willing (and able) to travel, so we'll have to rely upon feline reports.