Kevin Drum

After Supreme Court Decision, Patent Trolls Getting Cold Feet?

| Wed Oct. 29, 2014 1:13 PM EDT

A few months ago, in Alice v. CLS Bank, the Supreme Court struck a modest blow against patent trolls. The court ruled that merely programming a computer to carry out a well-known process isn't enough to qualify for a patent. There has to be more to it.

So how has that affected the patent troll business? Joff Wild reports on a new analysis of third-quarter patent litigation activity:

According to the research, which covers the third quarter of this year (June to September), there was a 23% drop in the number of suits filed compared to the second quarter, and a 27% year-on-year reduction.

The findings come just weeks after data released by Lex Machina showed that there had been a 40% fall in patent suits in September 2014 as compared to the same month in the previous year....The data shows that [the decline] can be almost completely explained by a drop-off in NPE suits in the high-tech sector. Litigation initiated by operating companies fell by just 19 quarter on quarter, but actions launched by NPEs dropped by 301, from 885 in Q2 to 554 — a fall of 35%.

An NPE is a "non-practicing entity"—that is, a company that doesn't actually make use of a patent in a product of its own, but has merely purchased it for the purpose of strong-arming payments out of other users. In other words, a patent troll. So what these numbers show is that generic patent litigation fell a bit in Q3, but that patent troll litigation fell by a lot.

It's too early to jump to conclusions about this, but it seems reasonable that this decline is at least partly related to Alice. This is good news, though Alex Tabarrok sensibly warns that before long there will probably be an uptick in patent suits as people learn the new system. So hold off on the cheering.

Still, we'll take good news where we can get it, and this is a step in the right direction. It will be even better if Alice is a sign that the Supreme Court plans to rein in the federal circuit court that handles patents, which in recent years seems to have been far more friendly toward software patents than the Supreme Court ever intended. Stay tuned.

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In NSA Bills, the Devil Is in the Details

| Wed Oct. 29, 2014 10:35 AM EDT

Sen. Patrick Leahy says that his USA FREEDOM bill will stop the NSA's bulk collection of phone data. H.L. Pohlman says it's not quite that easy:

In Presidential Policy Directive (PPD-28) issued in January 2014, the Obama administration defined “bulk collection” as the acquisition “of large quantities of signals intelligence data which . . . is acquired without the use of discriminants (e.g., specific identifiers, selection terms, etc.).” Thus, as long as the government uses a “discriminant,” a selection term, no matter how broad that term might be, the government is not engaged in a “bulk collection” program.

....The USA FREEDOM Act does not guarantee, then, that the government’s database of telephone metadata will be smaller than it is now. It all depends on the generality of the selection terms that the government will use to obtain metadata from the telephone companies. And we don’t know what those terms will be.

This is a longstanding issue that's been brought up by lots of people lots of times. It's not some minor subtlety. If the government decides to look for "all calls from the 213 area code," that's not necessarily bulk collection even though it would amass millions of records. It would be up to a judge to decide.

If and when we get close to Congress actually considering bills to rein in the NSA—about which I'm only modestly optimistic in the first place—this is going to be a key thing to keep an eye on. As the ACLU and the EFF and others keep reminding us, reining in the NSA isn't a simple matter of "ending" their bulk collection program. The devil is truly in the details, and tiny changes in wording can literally mean the difference between something that works and something that's useless. Or maybe even worse than useless. As Pohlman points out, if you choose the right words, the NSA could end up having a freer hand than they do today. This is something to pay close attention to.

Benjamin Netanyahu, "Chickenshit"

| Wed Oct. 29, 2014 12:10 AM EDT

Jeffrey Goldberg has an, um, unique new perspective on the steadily deteriorating relationship between President Obama and Israeli prime minister Bibi Netanyahu:

Over the years, Obama administration officials have described Netanyahu to me as recalcitrant, myopic, reactionary, obtuse, blustering, pompous, and “Aspergery.”....But I had not previously heard Netanyahu described as a “chickenshit.” I thought I appreciated the implication of this description, but it turns out I didn’t have a full understanding.

....“The good thing about Netanyahu is that he’s scared to launch wars,” the official said, expanding the definition of what a chickenshit Israeli prime minister looks like. “The bad thing about him is that he won’t do anything to reach an accommodation with the Palestinians or with the Sunni Arab states.”

....I ran this notion by another senior official who deals with the Israel file regularly. This official agreed that Netanyahu is a “chickenshit” on matters related to the comatose peace process, but added that he’s also a “coward” on the issue of Iran’s nuclear threat. The official said the Obama administration no longer believes that Netanyahu would launch a preemptive strike on Iran’s nuclear facilities in order to keep the regime in Tehran from building an atomic arsenal.

....Another manifestation of his chicken-shittedness, in the view of Obama administration officials, is his near-pathological desire for career-preservation. Netanyahu’s government has in recent days gone out of its way to a) let the world know that it will quicken the pace of apartment-building in disputed areas of East Jerusalem; and b) let everyone know of its contempt for the Obama administration and its understanding of the Middle East.

Netanyahu has always been a petty, small-minded pol, endlessly maneuvering to hold together his fragile and equally small-minded band of parochial coalition partners. As one of Goldberg's sources puts it, "The only thing he's interested in is protecting himself from political defeat. He's not Rabin, he's not Sharon, he's certainly no Begin. He's got no guts."

Goldberg believes that the American-Israeli relationship is finally at a crossroads, largely driven by the personal loathing Obama and Netanyahu have for each other. We've heard this before, of course, so take it with a grain of salt. Still, Netanyahu's open contempt for Obama, along with his obvious unwillingness to show even a pretense of interest in a peace process, might really be taking things to a breaking point. The whole thing is worth a read.

Why Do Republicans Hate the Beatles?

| Tue Oct. 28, 2014 5:17 PM EDT

Over at the Facebook Data Science blog, Winter Mason shows us how personal likes and dislikes line up with political ideology. Democrats like Maya Angelou, The Color Purple, and The Colbert Report. Republicans like Ben Carson, Atlas Shrugged, and Duck Dynasty. It's all good fun, though I'm a little mystified about why the Empire State Building is such a Democratic-leaning tourist destination. Maybe Republicans just dislike anything related to New York City.

But it's music that I want some help on. I get that country tends to be right-leaning and Springsteen is left-leaning. But what's up with the Beatles being so distinctively associated with liberals? It's no secret that I know squat about music, so help me out here. No snark. I thought the Beatles had long since ascended into a sort of free-floating state of pop elder statehood where they were beloved of all baby boomers equally—and pretty much everyone else too. What do I not know that accounts for continuing Republican antipathy toward the moptops?

Quote of the Day: Bush Would Have Punched Putin in the Nose

| Tue Oct. 28, 2014 1:22 PM EDT

Here is John Boehner, the leader of the House of Representatives and third in line for the presidency:

When you look at this chaos that’s going on, does anybody think that Vladimir Putin would have gone into Crimea had George W. Bush been president of the United States? No! Even Putin is smart enough to know that Bush would have punched him in the nose in about 10 seconds.

Look, I get it: I'm a partisan, and right now I'm blogging through a slight bit of a morphine haze. But WTF? Have our political leaders always talked like this? This is just ridiculously juvenile.

And while we're on the subject, I note that Boehner also said this: "I talk to world leaders every week. They want America to lead. They’re begging America to lead. Because when America leads and America’s strong, the world is a safer place." Ten bucks says Boehner is basically lying, unless by "world leaders" he means Paul Ryan and the odd backbencher in London he happens to have played golf with a couple of years ago. As anyone with a pulse knows, world leaders simply have different priorities than we do. It's the Europeans who are resisting stronger action against Putin. It's the Turks who aren't too interested in saving Kobani. It's the Saudis who want us to devote all our attention to their longtime Shiite enemies. It's Angela Merkel who's single-mindedly intent on destroying the European economy. If John Boehner thinks all these folks are eagerly waiting for America to whip them into line, he's even more delusional than I thought.

Question of the Day: Does Obama Plan to Flood America With Ebola Patients?

| Tue Oct. 28, 2014 12:20 PM EDT

From Fox anchor Megyn Kelly to Rep. Bob Goodlatte, chairman of the House Judiciary Committee:

So do you believe that the administration is planning on bringing Ebola patients from overseas here to America?

Yes, that's an actual question, and I probably don't have to tell you what Goodlatte's answer is. The only thing missing is whether Goodlatte also believes Obama is planning to naturalize these folks by executive order so they can vote in Tuesday's election.

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Republicans Coming on Strong in Election Homestretch

| Tue Oct. 28, 2014 10:52 AM EDT

It's now seven days until Election Day, and unfortunately things are trending pretty badly for us liberal types. The ABC/Washington Post poll on the right shows that Democrats and Republicans are pretty much all planning to vote for their own party next week, which leaves the election in the hands of independents. That turns out to be grim news. We can argue all day long about whether independents are "really" independent, but at this point it doesn't matter. They represent about a third of the electorate, and at the moment they favor Republican candidates by nearly 20 percentage points.

There doesn't seem to be any specific issue driving this. People are just generally unhappy. A huge majority think America is on the wrong track; Obama's approval rating remains mired only slightly above 40 percent; and far more people blame Democrats than Republicans for the rising dysfunction of the federal government.

That last point is especially galling for Democrats, but it's a win for Republicans and yet another sign of change in the way Washington is likely to work in the future. Republicans have discovered that a sufficiently united party can obstruct everything and anything but largely escape blame for the resulting gridlock. This lesson has not been lost on Democrats, and it bodes ill for the future regardless of who wins our next few elections. There's just no reward for getting things done these days, and this probably means that less and less will get done. That's Political Economy 101 for you.

Paying for Stuff Will Soon Be Almost as Easy and Reliable as Using Cash

| Tue Oct. 28, 2014 12:39 AM EDT

Sarah Halzack describes the difference between between ApplePay and a competing system, CurrentC, due to roll out next year:

Apple Pay's system relies on near-field communication chips, allowing users to wave their smartphones in front of a reader and confirm the purchase with a fingerprint scan. CurrentC, on the other hand, will require shoppers to use their smartphone's camera to take a picture of a code generated by the retailer, a series of steps that may feel slower and more complex to consumers than Apple Pay.

Say what? You have to pull out your phone, open the CurrentC app, and take a picture of a QR code that's displayed on the merchant's screen. If that doesn't work, you have to manually enter a numeric code.

And this is faster and more convenient than swiping a debit card because....what? Am I missing something here?

Refusing Medicaid Expansion Is Costing Red States a Bundle

| Mon Oct. 27, 2014 8:22 PM EDT

Here's a remarkable chart cobbled together from a survey of state Medicaid directors by the Kaiser Family Foundation. It's a little ugly, but bear with me.

This is a projection of Medicaid enrollment and spending for 2015 that compares states that accepted the Obamacare Medicaid expansion with those that didn't. As you can see, in states that accepted the expansion, enrollment is forecast to cover 18 percent more people compared to only 5.2 percent more in non-expansion states. And as you'd expect, this will cost money: total Medicaid spending will rise faster in expansion states than non-expansion states.

But most of that spending growth is covered by the federal government. It turns out that states which accepted the Medicaid expansion expect state spending to grow more slowly than in non-expansion states.

In other words, the non-expansion states really are shooting themselves in the foot. They're enrolling fewer people, but paying more to do it. They actually prefer spending more money if the alternative is spending less but helping their own poor with medical coverage. Hard to believe.

John Boehner Still Hasn't Sued Obama Over Obamacare. Why Not?

| Mon Oct. 27, 2014 1:27 PM EDT

Three months ago, John Boehner threw a bone to the tea-party faction that was nipping at his heels and demanding action against the lawless tyrant Obama and his executive orders that routinely defied both the Constitution and the duly enacted laws of the land. The bone took the form of a planned lawsuit against the administration because it had delayed certain aspects of the employer and employee mandates under Obamacare.

At the time, I was perfectly OK with Boehner doing this. Why not let courts decide this kind of dispute, after all? That's what they're for. What's more, unlike most of the tea party complaints about lawless behavior, this one seemed at least defensible. And yet, three months later, we still have no lawsuit. Why? Simon Lazarus and Elisabeth Stein suspect that it has to do with Boehner asking for some legal advice from the Congressional Research Service and then quietly getting a report that he wasn't expecting:

CRS reports such as this one are generated in response to requests by members or committees of Congress, though the CRS does not make public the identity of the requester or requesters. This particular report — of which House Democrats were unaware until it appeared — bears the earmarks of an inquiry, requested by the Speaker or his allies, to give some color of legitimacy to their charges of rampant presidential illegality. Instead, the result validates the lawyers’ maxim not to ask a question when unsure of the likely answer.

The Report offers two conclusions: First, under the Administrative Procedure Act (APA), no rulemaking procedure was necessitated by the Administration’s initial one-year delay in enforcing the employer mandate, past the ACA’s prescribed January 1, 2014 effective date....Second, the Report states that, when, in February 2014, the Administration announced an additional year’s postponement of full enforcement of the mandate, until January 1, 2016, “informal rulemaking procedures” appeared to be required. In fact, as the report’s authors reference, the Administration had engaged in precisely the type of informal rulemaking process that, the report concluded, was called for. The Administration’s action finalized a September 2013 Notice of Proposed Rulemaking, making adjustments in response to comments from interested parties, precisely as prescribed by the APA.

In other words, having been asked whether the Obama administration had crossed all its t’s and dotted its i’s, the CRS’ answer was unequivocal: yes it had. In bland CRS-speak, this seems like a veritable finger in the eye — or perhaps, a blunt warning to the Speaker to drop the lawsuit project.

Oops. This doesn't mean Boehner can't still file his lawsuit, of course. It was all pretty much symbolism and bone-tossing in the first place, so it hardly matters if he ends up losing the case a year or two from now. But it could have proven embarrassing, especially if the CRS report became public, which, inevitably, it did. This stuff never stays under wraps forever.

So perhaps Boehner has decided to hold his fire. He has bigger fish to fry right now, and I doubt he was ever all that excited about the lawsuit anyway. For now, it's become just another shard on the ever-mounting bone pile of tea party outrage about a president doing stuff they don't happen to approve of.