Newegg trial: Crypto legend takes the stand, goes for knockout patent punch(arstechnica.com)
arstechnica.com
Newegg trial: Crypto legend takes the stand, goes for knockout patent punch
http://arstechnica.com/tech-policy/2013/11/newegg-trial-crypto-legend-diffie-takes-the-stand-to-knock-out-patent/
12 comments
"How many years of experience do you have with public key cryptography?"
"All of them."
"All of them."
Scummier was the attack on his credibility:
That's not what Fenster did. He went on the attack.
"You never completed a master's degree, correct?" he asked Diffie.
"That's correct," said Diffie.
"Other than the honorary degree, you don't have an earned doctorate or Ph.D. correct?"
"That is correct," said Diffie.
And even though he taught a few courses, "you never had a real professorship, correct?" asked Fenster.
"I never had a full-time academic job, no."
That's not what Fenster did. He went on the attack.
"You never completed a master's degree, correct?" he asked Diffie.
"That's correct," said Diffie.
"Other than the honorary degree, you don't have an earned doctorate or Ph.D. correct?"
"That is correct," said Diffie.
And even though he taught a few courses, "you never had a real professorship, correct?" asked Fenster.
"I never had a full-time academic job, no."
What's sad is, and maybe lost on the jury, is it actually increases his credibility, he's so accomplished in his field those with the earned degrees said "we view you as a peer or recognize you as a pioneer of our field, just take the degree". He is so smart or dedicated he reached that status without going to a class. Usually that means you've gone above and beyond what a traditional student has accomplished.
Maybe a missed opportunity, but using Bill Gates as a counter-example of the necessity of formal education in CS could have neutralized that line of attack.
And Steve Jobs. The two dominant companies in personal computing, both founded by drop-outs!
Just out of curiosity, how much trouble would he be in if he'd answered:
"I never had a full-time academic job, no, but have consulted with a number of PhD students as a knowledge resource in cryptography."
Is overanswering a bad thing in a court setting? It seems like lawyers always fish for information they can slant; full disclosure on a topic would seem to correct that failing?
"I never had a full-time academic job, no, but have consulted with a number of PhD students as a knowledge resource in cryptography."
Is overanswering a bad thing in a court setting? It seems like lawyers always fish for information they can slant; full disclosure on a topic would seem to correct that failing?
Make sure you read the discussions below on the validity of using ad hominem arguments to undermine witness credibility. Hard to watch/read when the witness in question is an idol of yours, but still a valid approach in the court room.
Reminds me of this: https://news.ycombinator.com/item?id=35083
Which reminds me of this: http://www.rogerebert.com/reviews/deuce-bigalow-european-gig...
Its one of those moments like the Korn Shell Story http://c2.com/cgi/wiki?KornShellStory
Newegg's lawyer is supurb. Even factoring Marshall, TX into account, I'd give them decent odds.
I've been reading lately that the East Texas "Rocket Docket" now has so much experience with patent lawsuits that it's no longer easy for undeserving plaintiffs to win.
This isn't about experience, but ideology. Conservative districts look very favorable on plantiffs in IP trials as they equate IP with real property and are largely non-technological.
Rather obviously if you believe, correct or not, that someone is stealing your properly, you're not going to seek out districts infested with liberals who believe that property is theft. They're also more likely to respect the rule of law embodied in our Constitution, which of course has an intellectual property clause.
As for "largely non-technological", at this level I think pretty much every district is going to be the same, especially after each side rejects any domain experts or thereabouts that might be in the pool.
As for "largely non-technological", at this level I think pretty much every district is going to be the same, especially after each side rejects any domain experts or thereabouts that might be in the pool.
I think that assuming most liberals believe "Property is theft" is a little extreme.
That is a statement/sentiment I have only heard from people who self identify as anarchists.
That is a statement/sentiment I have only heard from people who self identify as anarchists.
It's a little extreme indeed---I mean, it was a rhetorical flourish, something hopefully signaled with the weighted "infested"---but I've heard it from non-anarchists and not extremely radical friends in times past. And look at how many on this site deny the legitimacy of intellectual property.
But perhaps my wording wasn't clear: I meant to limit it to "liberals" who are of the "property is theft" persuasion, or at least fairly strong in that direction.
But perhaps my wording wasn't clear: I meant to limit it to "liberals" who are of the "property is theft" persuasion, or at least fairly strong in that direction.
[deleted]
I think this article (in which mainstream economists prove themselves the most "disruptive" of all) also makes that point very well
'supporters of free market like private property, and patents and copyright are intellectual “property”. Hence, strengthening them is ideologically and politically consistent with the general principle that “private property is good for growth” ... [But patents are] not a “property” right but rather a “monopoly” right'
http://research.stlouisfed.org/wp/2012/2012-035.pdf
'supporters of free market like private property, and patents and copyright are intellectual “property”. Hence, strengthening them is ideologically and politically consistent with the general principle that “private property is good for growth” ... [But patents are] not a “property” right but rather a “monopoly” right'
http://research.stlouisfed.org/wp/2012/2012-035.pdf
I haven't heard of anything that made it sound defense-friendly to me, what were your sources on that? The closest I can come were some win rate statistics where the settlement rate was not factored in, making the figures potentially misleading.
Sorry, I don't follow this field closely and it was some time ago. Could be entirely wrong, I don't recall whatever I read as citing statistics.
Damn, was hoping for more reading material :)
Well, the net is your friend, e.g. this search: https://www.google.com/search?q=%22east+texas%22+or+%22rocke...
Lead to this first article: http://arstechnica.com/tech-policy/2013/01/east-texas-courts... from the beginning of the year that adds a lot of details and nuance to the story. E.g. it's not a Rocket Docket anymore, not defense friendly in that summary judgement is seldom granted, trials are quick which can present difficulties in multi-defendant cases, but plenty of plaintiffs are losing big, like in the Eolas case. 4 day trial, found invalid, game over.
Lead to this first article: http://arstechnica.com/tech-policy/2013/01/east-texas-courts... from the beginning of the year that adds a lot of details and nuance to the story. E.g. it's not a Rocket Docket anymore, not defense friendly in that summary judgement is seldom granted, trials are quick which can present difficulties in multi-defendant cases, but plenty of plaintiffs are losing big, like in the Eolas case. 4 day trial, found invalid, game over.
Also see "Where to file your patent case" by Mark Lemley.
[deleted]
I thought I'd go and have a looksee who Dr. Rhyne, the opposing expert witness, is and I found this:
Dr. Rhyne, who will lead the three-day Boot Camp, is a broadly experienced expert witness who has provided in-courtroom testimony in over three dozen federal patent cases and ITC hearings over the past thirty years. He will be joined by legal and technical staff members from Patent Calls, as well as selected guest lecturers.
Carefully designed to be a program that will be “Conducted by Experts for Experts,” Boot Camp participants will learn that serving as an expert witness is a unique and productive way to use their technical knowledge. “By their nature, patent trials are highly charged competitive environments for companies and attorneys who have a great deal at stake,” Dr. Rhyne has explained, “and an expert witness is often a key part of that process. I am pleased to have this opportunity to share my experience as a witness with others.”
Patent Calls’ Patent Expert Witness Boot Camp will provide an opportunity for individuals who have some patent expert witness experience – or who are aspiring to become an expert witness – to benefit from both intensive instruction and interactive training that are intended to increase their effectiveness and appeal to potential clients. Participants will receive a highly integrated combination of classroom instruction, team exercises, and simulated examination and testimony that will serve to challenge them and thus maximize their learning experiences.
http://www.businesswire.com/news/home/20101115007716/en/Pate...
Which contrasts nicely with the questions put to Diffie about his status as an expert witness:
Fenster noted that while Diffie was testifying in court for the first time, he had other expert witness work lined up. His rate varies from $500 to $600 per hour, and it's $700 for testifying in court.
"Your agent helps you to get expert witness jobs, is that right?"
"Actually, no," said Diffie. "My agent handles the arrangements with my clients. All of the jobs have come in directly through me."
Dr. Rhyne, who will lead the three-day Boot Camp, is a broadly experienced expert witness who has provided in-courtroom testimony in over three dozen federal patent cases and ITC hearings over the past thirty years. He will be joined by legal and technical staff members from Patent Calls, as well as selected guest lecturers.
Carefully designed to be a program that will be “Conducted by Experts for Experts,” Boot Camp participants will learn that serving as an expert witness is a unique and productive way to use their technical knowledge. “By their nature, patent trials are highly charged competitive environments for companies and attorneys who have a great deal at stake,” Dr. Rhyne has explained, “and an expert witness is often a key part of that process. I am pleased to have this opportunity to share my experience as a witness with others.”
Patent Calls’ Patent Expert Witness Boot Camp will provide an opportunity for individuals who have some patent expert witness experience – or who are aspiring to become an expert witness – to benefit from both intensive instruction and interactive training that are intended to increase their effectiveness and appeal to potential clients. Participants will receive a highly integrated combination of classroom instruction, team exercises, and simulated examination and testimony that will serve to challenge them and thus maximize their learning experiences.
http://www.businesswire.com/news/home/20101115007716/en/Pate...
Which contrasts nicely with the questions put to Diffie about his status as an expert witness:
Fenster noted that while Diffie was testifying in court for the first time, he had other expert witness work lined up. His rate varies from $500 to $600 per hour, and it's $700 for testifying in court.
"Your agent helps you to get expert witness jobs, is that right?"
"Actually, no," said Diffie. "My agent handles the arrangements with my clients. All of the jobs have come in directly through me."
Finally, we're starting to see some people stand up to trolls, and judges and juries are beginning to understand what these people are.
I don't follow patent troll cases too closely because they make me so angry, especially given that so many of them end up with the troll winning, or at least going right back to doing what they were doing after losing in court in a specific instance, but not losing the patent (or they just continue attacking people with other patents in their portfolio in the rare event the patent is invalidated). So, when I see a positive story...and this one looks pretty positive to me.
I worry vaguely that the judge or jury might not recognize the vast difference between Diffie and some unknown asshole who makes his living testifying in court as an "expert witness" in patent cases.
I don't follow patent troll cases too closely because they make me so angry, especially given that so many of them end up with the troll winning, or at least going right back to doing what they were doing after losing in court in a specific instance, but not losing the patent (or they just continue attacking people with other patents in their portfolio in the rare event the patent is invalidated). So, when I see a positive story...and this one looks pretty positive to me.
I worry vaguely that the judge or jury might not recognize the vast difference between Diffie and some unknown asshole who makes his living testifying in court as an "expert witness" in patent cases.
> I worry vaguely that the judge or jury might not recognize the vast difference between Diffie and some unknown asshole who makes his living testifying in court as an "expert witness" in patent cases
The "unknown asshole" is an IEEE life fellow and former board member, with a long successful career in research, industry, and teaching in computer engineering, and authored a widely used award winning textbook on digital design.
His profile is pretty typical for expert witnesses. Quite a large fraction of them are people who are retired (Rhyne retired in 1998) after having had a very successful and distinguished career in engineering or science, usually including research, industry, and academia.
Expert witness gigs are a nice way to pay for a new boat or RV without a lot of work. (One of the experts at the trial I was involved in was paying for a Tesla from a couple expert witness jobs). Many become registered patent agents, and then they can testify as both experts on the engineering aspects of the patent and on the patent aspects (e.g., prior art, infringement, interpretation of the specification, and such).
The workload is actually pretty light, compared to what their load was likely like before they retired. Basically, they write a report that analyzes the patent and the alleged infringement and explains why the patent is valid and why it is indeed infringed, get deposed, and testify about the report.
The "unknown asshole" is an IEEE life fellow and former board member, with a long successful career in research, industry, and teaching in computer engineering, and authored a widely used award winning textbook on digital design.
His profile is pretty typical for expert witnesses. Quite a large fraction of them are people who are retired (Rhyne retired in 1998) after having had a very successful and distinguished career in engineering or science, usually including research, industry, and academia.
Expert witness gigs are a nice way to pay for a new boat or RV without a lot of work. (One of the experts at the trial I was involved in was paying for a Tesla from a couple expert witness jobs). Many become registered patent agents, and then they can testify as both experts on the engineering aspects of the patent and on the patent aspects (e.g., prior art, infringement, interpretation of the specification, and such).
The workload is actually pretty light, compared to what their load was likely like before they retired. Basically, they write a report that analyzes the patent and the alleged infringement and explains why the patent is valid and why it is indeed infringed, get deposed, and testify about the report.
OK, so he's not entirely unknown, and not incompetent. Still an asshole. Working for patent trolls is a genuinely destructive and unethical thing for an engineer to do, even if it pays for a nice boat.
That's just, like, your opinion man.
Me, I prefer to see data. Fortunately, there are a number of studies coming out about patent trolls. Unfortunately, there is no clear consensus. Also, things like the impact of baseless demand letters simply cannot be studied because they cannot be tracked and there is no data. This will hopefully will change soon.
But I'd much rather prefer analytical study over uninformed vitriol. Ars Techica is usually good, but not when it comes to patent matters. This is the same blog that painted CSIRO, a well known Australian research lab, as a patent troll because they claimed to invent WiFi and sued manufacturers over it. The comments on that article (many from posters down under, naturally) kept calling out Ars' incorrect rewriting of history, but they would not back down. I wouldn't want my news from somebody who won't accept the facts because they don't agree with their biases.
Me, I prefer to see data. Fortunately, there are a number of studies coming out about patent trolls. Unfortunately, there is no clear consensus. Also, things like the impact of baseless demand letters simply cannot be studied because they cannot be tracked and there is no data. This will hopefully will change soon.
But I'd much rather prefer analytical study over uninformed vitriol. Ars Techica is usually good, but not when it comes to patent matters. This is the same blog that painted CSIRO, a well known Australian research lab, as a patent troll because they claimed to invent WiFi and sued manufacturers over it. The comments on that article (many from posters down under, naturally) kept calling out Ars' incorrect rewriting of history, but they would not back down. I wouldn't want my news from somebody who won't accept the facts because they don't agree with their biases.
There isn't exact data and there will never be exact data, because many of the settlements extracted are confidential and there is no incentive for anyone to talk about them.
If someone is ambushing people in the street, hitting them over the head with a pipe, and robbing them, I don't need to see a double fucken' blind study to decide that this needs to stop.
You've reminded me of a meta-study published in some medical journal, analysing "parachute application to prevent trauma due to gravitational challenge", i.e. if it's worth wearing a parachute when jumping out of a plane. They found that little high-quality data exists to support parachute use, and recommended further study.
If someone is ambushing people in the street, hitting them over the head with a pipe, and robbing them, I don't need to see a double fucken' blind study to decide that this needs to stop.
You've reminded me of a meta-study published in some medical journal, analysing "parachute application to prevent trauma due to gravitational challenge", i.e. if it's worth wearing a parachute when jumping out of a plane. They found that little high-quality data exists to support parachute use, and recommended further study.
You don't need exact data, you just need enough. There's no doubt bad actors in the system, but do they characterize all of them?
The papers I read indicate that trolls actually often have "strong" patents, but like you said, most of those settle out of court, so you never hear about them. The ones that go to court are the weak ones, and those are the ones you hear about, which creates an image that all trolls assert bogus patents.
I mean even NewEgg, who've been spouting a lot of "We Never Settle" rhetoric admitted, in this very case, that they've licensed a majority of patents that were asserted against them. The coverage on Ars is a bit brief, but it sounds like out of 80 assertions NewEgg has taken it to court only a handful of times. To me, that sounds like the system is not imbalanced.
> If someone is ambushing people in the street, hitting them over the head with a pipe, and robbing them, I don't need to see a double fucken' blind study to decide that this needs to stop.
Or maybe the alleged victims claiming to be robbed are lying because they don't want to pay money owed to the alleged assailant and they're hoping he gets put away? Are you going to believe individual he-said/she-said cases or data?
BTW the parachute study sounds hilarious. Link?
The papers I read indicate that trolls actually often have "strong" patents, but like you said, most of those settle out of court, so you never hear about them. The ones that go to court are the weak ones, and those are the ones you hear about, which creates an image that all trolls assert bogus patents.
I mean even NewEgg, who've been spouting a lot of "We Never Settle" rhetoric admitted, in this very case, that they've licensed a majority of patents that were asserted against them. The coverage on Ars is a bit brief, but it sounds like out of 80 assertions NewEgg has taken it to court only a handful of times. To me, that sounds like the system is not imbalanced.
> If someone is ambushing people in the street, hitting them over the head with a pipe, and robbing them, I don't need to see a double fucken' blind study to decide that this needs to stop.
Or maybe the alleged victims claiming to be robbed are lying because they don't want to pay money owed to the alleged assailant and they're hoping he gets put away? Are you going to believe individual he-said/she-said cases or data?
BTW the parachute study sounds hilarious. Link?
The study is here: http://www.bmj.com/content/327/7429/1459. One of the authors archived it here, http://elucidation.free.fr/parachuteBMJ.pdf, since the British Medical Journal website is restriced-access. It actually is a pretty profound comment; I recommend it highly.
The fact that many of these idiot patents are legally strong is precisely the problem; that's why we need patent reform to kill them.
The fact that many of these idiot patents are legally strong is precisely the problem; that's why we need patent reform to kill them.
Wow, thanks for pointing out that paper.
> We think that everyone might benefit if the most radical protagonists of evidence based medicine organised and participated in a double blind, randomised, placebo controlled, crossover trial of the parachute.
> We think that everyone might benefit if the most radical protagonists of evidence based medicine organised and participated in a double blind, randomised, placebo controlled, crossover trial of the parachute.
When jumping out of a plane, parachutes are optional. Just make sure you put one on before you hit the ground:
http://www.youtube.com/watch?v=lDBrdl2sZWs
http://www.youtube.com/watch?v=lDBrdl2sZWs
There have been studies. Here's one of them:
http://www.bu.edu/law/faculty/scholarship/workingpapers/Bess...
As for consensus...I don't need consensus to know what's ethical. I've been working in software all of my professional life. Software patents are a disaster for innovation.
http://www.bu.edu/law/faculty/scholarship/workingpapers/Bess...
As for consensus...I don't need consensus to know what's ethical. I've been working in software all of my professional life. Software patents are a disaster for innovation.
I used to belong to the IEEE, I've not been overly impressed with them of late, especially some of their pro-patent nonsense, like when they were saying that software isn't math. They then went on to describe what is essentially the successor function while claiming it's only meaningful in programming and not math... Anyhow, as you point out, expert witnesses are valued largely by their credentials, so at least that guy has done something worthwhile in tech, which is more than I can say for the plaintiff in this case.
In my opinion professional organizations attract people who are by nature inclined towards rent-seeking. That is the primary reason I oppose professionalization in our field. I would even be willing to give up the title "engineer" if it came down to it.
He's now an expert at being an expert witness and chairs an expert witness boot camp to train people to be expert witnesses specifically for patent trials.
Awesome stuff, I really hope they nail this one dead.
That said, I'm pleased that we've finally gotten a number of jurists now who are better able to navigate the complexity of the Internet, programming, and 'process patents' when they involve Internet programming. I also find it remarkable that the Trolls have trained up a specific jurisdiction by over using it and are now at a disadvantage there. No doubt they will start looking for somewhere else to file soon but the effect will be the same as opinions and case law flow out of the east Texas courts.
I am perhaps an optimist, but I believe we have turned the corner on stupid patents. And more and more of them will be brought down and fewer of them will be of use to trolls. With luck in another 10 years people will be able to talk about the 'bad old days' of patent trolls as being behind them.
That said, I'm pleased that we've finally gotten a number of jurists now who are better able to navigate the complexity of the Internet, programming, and 'process patents' when they involve Internet programming. I also find it remarkable that the Trolls have trained up a specific jurisdiction by over using it and are now at a disadvantage there. No doubt they will start looking for somewhere else to file soon but the effect will be the same as opinions and case law flow out of the east Texas courts.
I am perhaps an optimist, but I believe we have turned the corner on stupid patents. And more and more of them will be brought down and fewer of them will be of use to trolls. With luck in another 10 years people will be able to talk about the 'bad old days' of patent trolls as being behind them.
I think we've turned a corner too. I see fewer and fewer ridiculous patents. One of the reasons why, I speculate, is the advent of Google search :-)
Citation needed on there being less ridiculous patents being filed, because I doubt it.
As far as Google Search goes, standard advice for any tech company to their employees is don't go searching for patents, just submit potentially patent-able ideas to legal. This is because if someone has a patent on something and you violate it and they can prove that you knew about the patent via subpoenaed records then you owe them three times as much as you would otherwise, so the more ignorant you are of existing patents the better.
And on the legal side of things, IP lawyers just search the USPTO records directly, not through Google Search.
As far as Google Search goes, standard advice for any tech company to their employees is don't go searching for patents, just submit potentially patent-able ideas to legal. This is because if someone has a patent on something and you violate it and they can prove that you knew about the patent via subpoenaed records then you owe them three times as much as you would otherwise, so the more ignorant you are of existing patents the better.
And on the legal side of things, IP lawyers just search the USPTO records directly, not through Google Search.
I've read hundreds of patents over the past 7 years or so, so the first citation is simply my experience. You won't find, for example, a broad patent on something like bytecode like this one https://www.google.com/patents/US4667290 these days
However, I've been researching the patent system quite a bit, and have come across a number of studies about patent quality [1-12], including "software" patents [1, 2, 3, finding that software patents are no worse than other patents]. Unfortunately, there are many problems with these studies:
1) Judging patent quality is hard and time-consuming, and doing it for a significant number of patents to get data is much more so. Hence many studies use proxies to judge patent quality, such as back-citations [4, 5], or more complex multi-variate models [10] . And then other articles point out flaws in using proxies like this, or actually showing that the metrics actually show the opposite of what they conclude [6]. And then other studies that propose new metrics [7, 8, 9]
2) Related to 1, the other problem is looking at not enough data, looking at different subsets of data, or using different methodologies. Studies are usually careful to highlight these shortcomings and try to logically make an argument for generalizing these results, but it's hard to reach a general conclusion, especially since there is no real consensus.
Now, back to your [Citation Needed]: Few studies convincingly evaluate USPTO (or other) patent quality over time. One study that does find an improvement over time [10] attributes it to the KSR decision rather than Google. Another says that EU patents are getting better over time, though not the US [11]. Another one does briefly argue that US patent quality has been increasing over time [12] based on a bunch of other studies, but some of these use metrics that are not fool-proof, as I mentioned in point 1).
And no, patent lawyers and examiners do absolutely use Google for search.
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=970083
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=650921
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291603
4. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=426020
5. http://www.oecd.org/newsroom/scienceandtechnologyfallingpate...
6. http://hallingblog.com/oecd-patent-quality-measurement-%E2%8...
7. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1452862
8. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1709999
9. http://www.columbia.edu/~mr2651/A_New_Look_at_Patent_Quality...
10. http://www.ipo.org/wp-content/uploads/2013/03/PatentQualityi...
11. http://ec.europa.eu/internal_market/indprop/docs/patent/patq...
12. http://www.brookings.edu/~/media/research/files/reports/2013...
However, I've been researching the patent system quite a bit, and have come across a number of studies about patent quality [1-12], including "software" patents [1, 2, 3, finding that software patents are no worse than other patents]. Unfortunately, there are many problems with these studies:
1) Judging patent quality is hard and time-consuming, and doing it for a significant number of patents to get data is much more so. Hence many studies use proxies to judge patent quality, such as back-citations [4, 5], or more complex multi-variate models [10] . And then other articles point out flaws in using proxies like this, or actually showing that the metrics actually show the opposite of what they conclude [6]. And then other studies that propose new metrics [7, 8, 9]
2) Related to 1, the other problem is looking at not enough data, looking at different subsets of data, or using different methodologies. Studies are usually careful to highlight these shortcomings and try to logically make an argument for generalizing these results, but it's hard to reach a general conclusion, especially since there is no real consensus.
Now, back to your [Citation Needed]: Few studies convincingly evaluate USPTO (or other) patent quality over time. One study that does find an improvement over time [10] attributes it to the KSR decision rather than Google. Another says that EU patents are getting better over time, though not the US [11]. Another one does briefly argue that US patent quality has been increasing over time [12] based on a bunch of other studies, but some of these use metrics that are not fool-proof, as I mentioned in point 1).
And no, patent lawyers and examiners do absolutely use Google for search.
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=970083
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=650921
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291603
4. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=426020
5. http://www.oecd.org/newsroom/scienceandtechnologyfallingpate...
6. http://hallingblog.com/oecd-patent-quality-measurement-%E2%8...
7. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1452862
8. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1709999
9. http://www.columbia.edu/~mr2651/A_New_Look_at_Patent_Quality...
10. http://www.ipo.org/wp-content/uploads/2013/03/PatentQualityi...
11. http://ec.europa.eu/internal_market/indprop/docs/patent/patq...
12. http://www.brookings.edu/~/media/research/files/reports/2013...
Whitfield Diffie looks a lot like Keanu Reeves.
Also weren't most of the questions that the TQP lawyer asked ad hominem? I understand that he asked those to discredit Diffie, but they still seemed very disrespectful. Almost anyone in the crypto field would back up Diffie's reputation, so that was a rather stupid move on the part of the TQP lawyer IMO.
Also weren't most of the questions that the TQP lawyer asked ad hominem? I understand that he asked those to discredit Diffie, but they still seemed very disrespectful. Almost anyone in the crypto field would back up Diffie's reputation, so that was a rather stupid move on the part of the TQP lawyer IMO.
Sounds like it, but unlike HN arguments ad hominem is allowed in court. It seems that discrediting witnesses is a pillar of our court system.
It's not really the same. What the lawyer was trying to do wasn't disprove the argument but the facts, which Diffie provided based on his position as an expert. It's perfectly legitimate to do the latter, and really no different than when someone criticizes a source linked in some HN post.
I thought more like Donald Sutherland.
Unfortunately, the jury is very much not in the crypto field. As far as they know, he's just some guy who claimed to invent something, and the plaintiffs are making the most of it.
Similarly, aside from the ad homs about educational pedigree, the line about not being the "real" inventor is pretty critical. The point is "secret" (i.e. unpublished) inventions don't count as prior art in invalidity arguments. So even if you accept that GCHQ invented public key crypto, Diffie's patent is still valid. I imagine IP Nav wants to argue that private demos of Lotus Notes don't count as prior art.
Unfortunately, the jury is very much not in the crypto field. As far as they know, he's just some guy who claimed to invent something, and the plaintiffs are making the most of it.
Similarly, aside from the ad homs about educational pedigree, the line about not being the "real" inventor is pretty critical. The point is "secret" (i.e. unpublished) inventions don't count as prior art in invalidity arguments. So even if you accept that GCHQ invented public key crypto, Diffie's patent is still valid. I imagine IP Nav wants to argue that private demos of Lotus Notes don't count as prior art.
> Also weren't most of the questions that the TQP lawyer asked ad hominem?
Ad hominem is when you attack a logical argument based on the characteristics of the person making it. It's a logical fallacy because the logical argument is something that can be evaluated itself using logical reasoning.
But an expert witness does not present a logical argument that the jury can evaluate on its own merits. An expert witness presents an opinion and explains the evidence on which he relied to form that opinion. Facts that credit or discredit the witness help the jury determine whether to believe the opinion.
Incidentally, this is why the Federal Rules of Evidence are a better basis for internet arguments than the logical fallacies. These are rarely a matter of reasoning, but rather a matter of assessing the credibility of opinions. When you argue with someone about global warming, you're not presenting logical arguments that can be evaluated standing alone. You're arguing over which experts have more credible opinions and which sets of evidence you believe.
Ad hominem is when you attack a logical argument based on the characteristics of the person making it. It's a logical fallacy because the logical argument is something that can be evaluated itself using logical reasoning.
But an expert witness does not present a logical argument that the jury can evaluate on its own merits. An expert witness presents an opinion and explains the evidence on which he relied to form that opinion. Facts that credit or discredit the witness help the jury determine whether to believe the opinion.
Incidentally, this is why the Federal Rules of Evidence are a better basis for internet arguments than the logical fallacies. These are rarely a matter of reasoning, but rather a matter of assessing the credibility of opinions. When you argue with someone about global warming, you're not presenting logical arguments that can be evaluated standing alone. You're arguing over which experts have more credible opinions and which sets of evidence you believe.
>weren't most of the questions that the TQP lawyer asked ad hominem?
Attacking the credentials of a supposed expert witness is a perfectly legitimate strategy in court. He wouldn't really be representing his client well if he didn't try to discredit Diffie.
Attacking the credentials of a supposed expert witness is a perfectly legitimate strategy in court. He wouldn't really be representing his client well if he didn't try to discredit Diffie.
Wow, talk about strawman attacks by the lawyer "You do not have a PHd, you are not an academic" etc.
I am surprised he was allowed to get away with it.
I am surprised he was allowed to get away with it.
As a comment posted to another participant before my comment here to you pointed out, attacking a witness's statements on the basis that the witness may be biased, or may not have a basis of knowledge for what the witness said, is all standard procedure in a court case. The rules of trials allow the finder of fact to be informed of why not to believe everything that is said during the trial. It's up to each side in the litigation to follow the rules of evidence (a THICK book, interpreted by thousands of court cases) to suggest why some evidence presented at trial is better than other evidence and more useful for truth-seeking.
A "strawman" is where you set up a flimsy counter point to your own argument and then defeat it. http://en.wikipedia.org/wiki/Straw_man
You might call it "ad hominem" as it is an attempt to discredit Diffie, although that usually describes a logical fallacy - the personal attack doesn't affect the validity of the argument. In this context the main reason for having Diffie there is because of his status and achievements, so it's a reasonable counter to try to discredit him.
I would say that kind of attack is not very fair, and a little bit dishonest, but not a flaw of reasoning.
You might call it "ad hominem" as it is an attempt to discredit Diffie, although that usually describes a logical fallacy - the personal attack doesn't affect the validity of the argument. In this context the main reason for having Diffie there is because of his status and achievements, so it's a reasonable counter to try to discredit him.
I would say that kind of attack is not very fair, and a little bit dishonest, but not a flaw of reasoning.
It insinuates that the witness is unqualified to make the statements he's making, using logic of the form "if you don't have a master's degree you likely can't be an expert in this field."
I would have loved to response to ""You never completed a master's degree, correct?" he asked Diffie." with "Just like Bill Gates and Steve Jobs, no I don't have a masters degree" (well apparently Bill eventually got one...). I assume the judge would be unhappy with this, which strikes me as unfair - surely I can defend my reputation?
I would have loved to response to ""You never completed a master's degree, correct?" he asked Diffie." with "Just like Bill Gates and Steve Jobs, no I don't have a masters degree" (well apparently Bill eventually got one...). I assume the judge would be unhappy with this, which strikes me as unfair - surely I can defend my reputation?
Note the very important difference between presenting a logical argument and serving as a witness for trial. When you present a logical argument, it stands on its own. But a witness isn't presenting reasoning for the jury to follow. His testimony doesn't stand on its own. A witness expresses an opinion or recollection of events for the jury to believe. The jury's job is to determine which witness they find more credible.
Facts that are ad hominem in the world of logical argument are vital determinants of credibility in the world of witness testimony. They help juries figure out who to believe. Thus the logic isn't "if you don't have a master's degree you likely can't be an expert in this field" but rather "the guy with the PhD is more likely to be a credible expert in this field." Which is a reasonable presumption. It's the job of the side presenting an expert with unique experience who doesn't have marks of academic qualification to convince the jury of the person's expertise regardless of the traditional indicators.
Facts that are ad hominem in the world of logical argument are vital determinants of credibility in the world of witness testimony. They help juries figure out who to believe. Thus the logic isn't "if you don't have a master's degree you likely can't be an expert in this field" but rather "the guy with the PhD is more likely to be a credible expert in this field." Which is a reasonable presumption. It's the job of the side presenting an expert with unique experience who doesn't have marks of academic qualification to convince the jury of the person's expertise regardless of the traditional indicators.
>> ...using logic of the form "if you don't have a master's degree you likely can't be an expert in this field."
Which in this case, is a bit like discrediting Einstein for not having studied relativity in school.
Which in this case, is a bit like discrediting Einstein for not having studied relativity in school.
They ask a yes or no question, you answer with the truth. Later on your side gets to ask questions.
I wouldn't use Bill Gates nor Steve Jobs as examples of experts.
I wouldn't use Bill Gates nor Steve Jobs as examples of experts.
It is that lawyers job to paint him as "unqualified" to the jury.
The adversarial system is designed to allow these kind of attacks.
"You don't know what you're talking about" is easily countered by "I invented these crypto systems; these have had no serious challenges in the X years since invented; I've defeated these crypto systems; I've published these papers in these peer reviewed journals; I have these honorary awards from these universities." etc etc.
It's a lot more troubling in other cases.
"You don't know what you're talking about" is easily countered by "I invented these crypto systems; these have had no serious challenges in the X years since invented; I've defeated these crypto systems; I've published these papers in these peer reviewed journals; I have these honorary awards from these universities." etc etc.
It's a lot more troubling in other cases.
Goes to the credibility of the witness your honour...
Reality is that the jury are only going to have a relatively limited understanding of the detail of these things so they're relying on expert witnesses. Part of that is whether that person has any right to call themselves an expert in the first place.
Reality is that the jury are only going to have a relatively limited understanding of the detail of these things so they're relying on expert witnesses. Part of that is whether that person has any right to call themselves an expert in the first place.
Logic is not required of argument in court. In fact certain types of logic, like bayesian reasoning, are sometimes explicitly excluded. http://understandinguncertainty.org/court-appeal-bans-bayesi...
Read the book "Crypto" if you haven't already and want more background on how public key encryption got started and how it got to where it is today. It was suggested previously on HN, and I am so glad I gave it a read.
Does anyone knows some case where patents were used for the good of humankind?
Patents were not allowed to exist for the good of humankind. They were supposed to be ways to expose smart ideas and then we may use them all much later. More importantly if patents were to help mankind, they should be public domain.
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The car safety belt was invented by Volvo, but either they didn't patent it, or patented it but allowed other car makers to use it at little or no cost. I don't have a source, but I've read something along those lines online.
While Volvo didn't invent the first car safety belt, they invented the 3 point safety belt that everybody uses today. Lap belts would help keep you in the car, but the addition of a sash belt kept your face off the 50's era steel dash, and made seatbelts worth using.
Volvo patented it in the 50's and made it freely available for use.
Volvo patented it in the 50's and made it freely available for use.
That's like saying "does anyone know a case where trespassing laws were used for the good of humankind"; lawsuits are necessarily the bad outcome, we can't be sure how many times the law caused a good thing. There are certainly valuable things for the good of humankind that were patented, and that were produced by corporate (or even university) labs where obtaining patents was certainly a factor in the company's decision to fund that lab (taking computer industry examples I think of the nokia 3G tech, or RSA or LZW).
It goes both ways. We can't determine how many good things never happened because of patents.
There are things we don't know, sure. But if we just look at court cases we're going to see a very biased picture, because the bad effects of patents are much more likely to cause court cases than the good effects.
It's important to remember that this is not a question of patents or nothing; if you can't protect your inventions with patents, that require a thorough disclosure of how it works, then you might use other methods, such as trade secret law, which lasts quasi-forever and by definition has no disclosure.
Obviously you can't trade secret law in a variety of contexts, but if you're making something physical and can hide the secret details inside a factory....
(Of course, I'm not talking about software patents, which are entirely bogus ... although many encryption patents seem to have a lot stronger basis for validity. In particular think of RSA, which seems so obvious in retrospect ... but Diffie, Hellman and Merkle didn't think of it, and used a system they knew was weak so that they could demonstrate a proof of concept.)
Obviously you can't trade secret law in a variety of contexts, but if you're making something physical and can hide the secret details inside a factory....
(Of course, I'm not talking about software patents, which are entirely bogus ... although many encryption patents seem to have a lot stronger basis for validity. In particular think of RSA, which seems so obvious in retrospect ... but Diffie, Hellman and Merkle didn't think of it, and used a system they knew was weak so that they could demonstrate a proof of concept.)
Who determines what is good for humankind? Ugh.
I am so sick of every political argument in the US being reduced to some kind of technocratic majoritarianism.
I am so sick of every political argument in the US being reduced to some kind of technocratic majoritarianism.
Me. I've been making a list. I've got as far as 'kittens'.
Because it forces the inventor to publish, they are a lot better for society than the previous protectionist default, which was relying on keeping trade secrets.
Part of what is interesting to me about open source is that it provides a system of development that is pretty competitive with the established protectionist models, so I am watching the open source hardware scene very closely.
To me the question isn't whether patents are good or bad in some absolute term, it is more whether they are becoming obsolete for many situations.
Part of what is interesting to me about open source is that it provides a system of development that is pretty competitive with the established protectionist models, so I am watching the open source hardware scene very closely.
To me the question isn't whether patents are good or bad in some absolute term, it is more whether they are becoming obsolete for many situations.
The funny thing is that the lawyer tries to discredit Diffie by trying to present prior art. He was trying to shift focus away from the case and into attacking the witness by presenting prior art to the prior art. Kind of a moot move.
I was a juror on a (6 week long) product liability lawsuit this past summer, and it came out that despite the fact that an expert witness for the plaintiff asked to see punch biopsies to check for neuropathy in the supposedly injured leg with a control sample from the other leg, the plaintiff's lawyers only sent him the punch biopsy from the leg claimed to be injured. When this came out the plaintiff's lawyers claimed they did this because they wanted it to a be a "blind study". I almost wtfed out of my chair.
It was pretty clear to anyone with half a brain that the plaintiff had no actual case and the issue he was suffering from was related to preexisting degenerative arthritis and nothing to do with the product that supposedly injured his knee, but sadly based on nothing more than emotional manipulation by his (very good) lawyers of the jury he came very close to winning (ultimately it was a hung jury, but the majority of votes were in plaintiff's favor).
Sadly, people are right to doubt the fact that many of the jurors have the context to value Diffie's testimony over the plaintiff's expert witnesses in this case.
It was pretty clear to anyone with half a brain that the plaintiff had no actual case and the issue he was suffering from was related to preexisting degenerative arthritis and nothing to do with the product that supposedly injured his knee, but sadly based on nothing more than emotional manipulation by his (very good) lawyers of the jury he came very close to winning (ultimately it was a hung jury, but the majority of votes were in plaintiff's favor).
Sadly, people are right to doubt the fact that many of the jurors have the context to value Diffie's testimony over the plaintiff's expert witnesses in this case.
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TQP should be forced to pay back all the money they stole with this silly patent
is Whitfield wearing a cape?
Given the beard, a wizard staff would be more appropriate. Gandalf fighting against software patents! Good tidings indeed!
"We've heard a good bit in this courtroom about public key encryption," said Albright. "Are you familiar with that?
"Yes, I am," said Diffie, in what surely qualified as the biggest understatement of the trial.
"And how is it that you're familiar with public key encryption?"
"I invented it."