You realize that your insurance company does the same thing, right? Or your insurance company's pharmacy benefits manager (PBM) or some other entity even further divorced from the doctor patient relationship. If you want something other than by formulary under almost any health insurance plan, you pay out of pocket. There is almost no other way to control expenses: you negotiate until you get a good deal and in exchange for the good, you lose exclusivity.

Moreover, you're trolling isn't really helping your cause here. First, most of the United States won't get government sponsored health insurance. Nope, that's reserved for politicians, soldiers, and the very poor. Everything else is going to be by the same commercial insurance companies that already dictate healthcare. Good try though.

Second, control over individual medicaid expenses is something that the RIGHT wants, not the left. It allows states to prioritize their healthcare expenses and make decisions at a state level. You know, the whole "laboratory of states" thing.

I'm a patent geek. Patent attorney, undergrad in Comp Sci, and working in-house at a software company. Of course my view somewhat differs from the vitriolic responses of most commenters on here.

Nevertheless, I enjoy the patent stories.

So, the real question is: Our government is imposing an illegal tax on the people in direct violation of the Constitution; what do we do now?

That's not a real question that comes out of this ruling. In fact this ruling said the opposite: the "tax" is constitutional.

Moreover, the basic premise of your argument is wrong.

As the mandate is to give money to private insurers, and not the government itself, it does not fall under the Constitutional definition of a legal tax.

The mandate/tax is paid to the government, not directly to private insurers. The only direct payment to an insurer is for those people that ACQUIRE insurance.

The upside is you can now include the relevant links. You could also include the following money quote:

Our precedent demonstrates that Congress had thepower to impose the exaction in 5000A under the taxing power, and that 5000A need not be read to do more thanimpose a tax. That is sufficient to sustain [the individual mandate].

I'm reading that part right now. The opinion is the Medicaid portion of the opinion says that the loss of funding will be narrowly construed. So it doesn't seem to be a total loss of all funding, just the additional funding. This is one long opinion.

And if that one is down, here's another: http://www.docstoc.com/docs/123538217/11-393c3a2

http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

An outside firm has to worry about their jobs, so of course prolong cases to increase revenue when possible

There are a few mitigating factors here. First, outside law firms don't usually drive business decisions. Management still needs to be convinced of the value of a course of action. And, outside counsel is not free to do whatever they want. They are typically on a short leash. General Counsel's office gets every bill and is involved in the strategy. To say that "outside counsel does the litigation" is more of a they-handle-the-day-to-day operations of a case, they acquire the experts, they do the filings, they prepare witnesses, they write the briefs, etc. But none of this is without review. None of this would go on without the business teams.

Second, you're making an assumption about how outside counsel is paid. Sure, with some unsophisticated companies, those companies might be paying straight through the nose on an hourly basis. But sophisticated companies understand the dynamics and have payment schemes that avoid the worst abuses: incentive payments for getting things done early, fee structures that create incentives for lower costs / settlements, plaintiffs attorneys might be contingent fee, etc.

Common billing strategies, by the way, are to: give a bonus based on when you get out of a case (earlier better); set a fee sharing arrangement that if a firm can get the job done before x, they keep some of the savings; etc.

It's not quite a prisoner's dilemma because the choice by one actor is typically countered by the other. In the PD, the dilemma is whether to act first, i.e., whether to rat out the other, because if you act first, then the punishment is small relative to the other person acting first. Both parties are good if neither acts.

In this case, if one patent holder sues another the other just counter sues.

If you wanted to make a PD case, it would be for whether industry participants seek patents at all. If no one patents, everyone is free to compete. If only one party patents, or gets a huge patent headstart, the non-patenting entity is going to be defenseless. If both parties patent, both will have patent expenses, but a tool to prevent the other from suing them (mostly in the form of "mutual assured destruction").

Examined from that perspective, you might also see that the parties have another reason to both patent: market exclusion or increasing the barriers to new market participants.

This is more about the legal department making decisions

This is usually very much NOT the case. Legal departments in major corporations don't usually make these sorts of decisions. Or, when they do make the decisions, they're usually very conscious of the fact that lawsuits (and legal fees generally) are not viewed as revenue centers, but cost centers. Wins in any litigation are usually windfalls, not strategic investments.

There are exceptions, of course. Companies do exist with litigation as their business model. However, you might be surprised about how much strategic planning goes into that as well.

Are they going to decide "Let's not do any litigation!"? Of course not. They will always pick a choice that keeps them employed.

In-house lawyers don't view litigation as job security. Few companies staff litigation lawyers. That work is almost always moved to outside counsel. Those with litigators on staff don't usually do patent litigation. Litigation tends to detract from scarce corporate resources for legal services that are usually necessary to keep a business running.

For most companies, in-house counsel are concerned more about avoiding litigation and the expense of that litigation than they are with prolonging that litigation.

All of that said, it may come as a surprise to you that BUSINESS teams are usually more litigation happy than the lawyers especially if they see a competitive reason. In fact, at Apple, Steve Jobs famously said that he's willing to go "to thermonuclear war" with Google over Android: http://www.insidecounsel.com/2012/06/04/steve-jobs-quotes-allowed-in-apple-google-patent-t

In addition, business teams tend to be less calculating about their litigation risks than the lawyers they have on staff.

I've said before, in other threads, that I'm a patent attorney. I have my undergrad degree in CS. I have an ill view of many patents that are litigated. That's not to say there's no innovation happening in the software world, or that there's nothing worthy of protection.

Nevertheless, I generally think that the EFF's proposals here are misguided. Taking them one by one:

1. A patent covering software should be shorter: no more than five years from the application date.

Part of the problem in the first place is that it some times takes longer than 5 years to even get a patent. Most of the term of a patent (under this scheme) would be consumed with prosecution. It doesn't account for the Patent Office.

If the patent is invalid or there's no infringement, the trolls should have to pay the legal fees.

On board with this one, but it doesn't go far enough.

We really should be talking about fee shifting more generally in the case of a patent owner that fails to do their own diligence, but rather is seeking to extract nuisance money or impede lawful commercial activity.

Patent applicants should be required to provide an example of running software code for each claim in the patent.

This doesn't address the real problem. The real problem is when old claims are read to cover future technologies that they didn't not have possession of at the time the application is filed.

In a non-software example, it would be like a patent claim that covers something no larger than "a micrometer" before "nanometer" manipulation was available.

Infringers should avoid liability if they independently arrive at the patented invention.

There is already a prior user defense baked into the most recent patent reform bill.

Patents and licenses should be public right away. Patent owners should be required to keep their public records up-to-date.

Patents are. Most patent applications are public within 18 months of filing too.

I'm not sure why a license must be public. That's just a contract between two people.

I'm also not sure what public records they're referring to. It could be that patent assignment records aren't "up to date." (http://assignments.uspto.gov/assignments/?db=pat). I could get on board with requiring those be up to date.

The law should limit damages so that a patent owner can't collect millions if the patent represented only a tiny fraction of a defendant's product.

That's all relative. Besides, plaintiffs still need to prove damages. Defendants still have an opportunity to rebut those damages.

Congress should commission a study and hold hearings to examine whether software patents actually benefit our economy at all.

I bet you can predict how that'll turn out. In any case, doesn't move the needle much.

Tongue mostly implanted in cheek with this response. // I will probably get modded a troll, but I should note that people regularly propose ideas like the parent failing to recognize that it doesn't really move the needle on this issue.

I think what might be interesting is to develop a database of prior art/ideas

It's called the patent office. They have a huge searchable database of this stuff. They're called patents and patent applications.

With thousands of people submitting everything they can think of every conceviable obvious aggregation of technologies any patent application

These are called patents and published patent applications. // Includes the joke that even issued patents are obvious aggregations of technologies.

Also, pretty much any publication can serve this purpose.

The database would be run by the patent office or it would incorporate cryptographic and distributed features allowing timestamps and content to stand up to any challenge.

Almost any publication system would survive a legal challenge. Few people fight over publication date if it's apparent from it's face. The only real issue is determining whether the publication was to be public and readily accessible.

Companies not wishing to pay the patent tax might seek to use it in a bid to prevent others from filing first and locking up the same blatently obvious ideas for the next 20 years.
This doesn't add much. You can already publish and have that happen.

Also, there used to be something called the Statutory Invention Registration that the patent office provided that allowed inventions to publish just for the record of it: http://en.wikipedia.org/wiki/United_States_Statutory_Invention_Registration . Almost no one did it. And since about 1999 when most applications filed published anyway, it served little purpose.

It's not a dupe, that one was based on Kichoffs's Law. This one is based on Johnson-Nyquist noise.

It's totally different. // Doesn't actually know if it's different /// Is really, really impressed with Dwonis' memory. //// Is general Slashdot commentter with know knowledge of the things upon which he comments.

essentialy useless for defence against patent trolls which are essentially invulnterable to counter claims.

True, in a sense. Their acquisition model is the "defense". Under their model, let's say they have all the major players in a targeted market (cell phones) in as their clients and they're all the same people also targeted by a patent troll. It might be cheaper/easier to simply sell out to RPX than to sue them all.

RPX also can act to acquire, prospectively, patents that are also likely targets of patent trolls: patent assets being sold at fire sale prices in bankruptcy.

So, to my earlier posts, the "RPX pooling" model brings one more club to the game rather than merely getting like-minded, defensive patent owners to agree not to sue each other [again, something they weren't, by definition going to do].