Slashdot Mirror

← Back to Stories (view on slashdot.org)

Most Software Patent Trolls Lose Lawsuits

Posted by Soulskill on from the dismissed-without-prejudice dept.

An anonymous reader writes "A new study is out concerning patent trolls and software patents, which found the rather surprising news that the most litigated patents tend to lose nearly 90% of the time. When broken down into different categories, patent trolls and software patents lose their lawsuits most often. While some may suggest this means 'the system is working,' that's not really true. The data suggests that most companies, when threatened with a lawsuit, end up settling or licensing to avoid the high costs of litigating. But the fact that so few software patents and patent trolls do well at trial may be more incentive to fight back. Either way, what does seem pretty obvious is that all those ridiculous patents you see in patent lawsuits are, in fact, bad patents."

108 comments

  1. Marshall, Texas by Caerdwyn · · Score: 2, Funny

    I guess this means business will be falling off in Marshall, Texas...

    --
    Everybody gets what the majority deserves.
  2. The checks and balances don't work for software by ciaran_o_riordan · · Score: 0

    The problem is, in pharma or the car industry, patent threats get met by a legal team and a well-financed company, so patent holders don't launch as many spurious lawsuits. In software, where you don't need a legal team and a six digit bank balance, many developers get shafted because they can't use the court system. Patents shouldn't exist in domains where individuals and non-commercial entities can be mass producers.

    swpat.org is a publicly editable wiki, help welcome.

    --
    Expert in software patents or patent law? Contribute to the ESP wiki!
    1. Re:The checks and balances don't work for software by Moryath · · Score: 5, Insightful

      No.

      The underlying problems are twofold.

      First, that a major number of patents are being granted that never should have been granted. Either because they are overworked, or because they are not correctly able to evaluate patents due to lack of training in the fields they are analyzing, or because they have been indoctrinated into a "just grant it the courts can sort it out later" (and a friend I know who works in the USPTO has been told that several times by his direct superiors over the years) mentality, the USPTO is granting things that never should have been granted.

      Second, that the US court system is so fucked up and overburdened that most people who get hit with a troll lawsuit choose to settle, because fighting it is going to take years upon years, resources upon resources, and probably it's cheaper for them to just pay up. The legal system has ceased to be a venue where fair and equitable analysis of this sort of thing can take place, and instead is just a bludgeon for bullies with money and shyster lawyers willing to throw away the ethical codes to beat up on everyone else.

    2. Re:The checks and balances don't work for software by Eternal+Vigilance · · Score: 4, Insightful

      The "law" has always been just another way for those who write the law to control those who are required to follow it.

      "Law" is simply disembodied violence, physical force transferred to the domain of the mind.

      The notion of "fair and equitable analysis" is simply the system's own inflated self-image, like "all men are created equal" in 1776, or "freedom" in 2010.

      I agree with your statements, btw. I just want to make sure that in moving to something new we don't repeat the mistakes of our past.


      There's free as in speech, free as in beer, and free as in range. Americans are "free" in the final sense.

    3. Re:The checks and balances don't work for software by thePowerOfGrayskull · · Score: 2, Insightful

      The "law" has always been just another way for those who write the law to control those who are required to follow it. "Law" is simply disembodied violence, physical force transferred to the domain of the mind.

      Intriguing rhetoric, but what alternative do you propose to Law? (And I'd call it more "passive aggressiveness" than "disembodied violence", but perhaps that's just a different face of the same coin. )

    4. Re:The checks and balances don't work for software by NemoinSpace · · Score: 1

      what alternative do you propose to Law?

      Not to be rhetorical, but in my country's history (and others), regardless of politics, guns seem to do well whether enforcing or abolishing "law".

    5. Re:The checks and balances don't work for software by Anonymous Coward · · Score: 1, Interesting

      So isnt this just a case of the need for general tort reform ? It's not only patents that suffer from this kind of thing. Everything from liability lawsuits for slip and falls, to frivolous medical malpractice lawsuits burden the justice system and drive all costs up. It's rather narrow to focus on patents alone, when its a much wider problem.

    6. Re:The checks and balances don't work for software by Anonymous Coward · · Score: 0

      they have been indoctrinated into a "just grant it the courts can sort it out later" (and a friend I know who works in the USPTO has been told that several times by his direct superiors over the years)

      Make that one up for the EPO as well. "Who generates your income?" we were asked. "The applicants, who want a patent. So issue one for our customers if the application is not clearly anticipated. The courts can sort out the matter if anyone challenges it later. And don't forget, only a small fraction of one percent is successfully challenged in the courts". Yes, the term used was 'customers', and that made me most furious.

    7. Re:The checks and balances don't work for software by Eternal+Vigilance · · Score: 2, Interesting

      I don't know that I have an immediate alternative this evening (though I might and just can't remember it ;-) ), but I think societies reflect in a self-similar way the way the rules and agreements that describe them were fashioned.

      In other words, were a small group of people, no matter how gifted and altruistic, to create a framework for others to follow without participation and consent of those others during the framing itself, then eventually the society will come to reflect that inequity of that process. The society will just become a larger, longer-term analog of the seed that created it.

      This is what we see in the U.S. today.

      There are moments of exquisite beauty in the founding documents of the U.S. But because the system itself was developed - of necessity, mind you - in a procedurally inequitable way, the resulting state also reflects that inequity.

      It's a function of consciousness, really. Consciousness is self-similar (like fractals and holograms), so the pieces reflect the whole. If the first piece is inequitable (even if that's simply the inequity of participation in its creation), then the whole will be as well.

      So whatever follows after Law (which is simply the collective-scale version of how a parent needs to be when a child is roughly two, the structure necessary to hold the developing consciousness until it can hold itself. It was absolutely essential thousands of years ago, but humanity as a whole has developed beyond that stage now) will of necessity be something we create together.

      And in order to create something together, we first need to realize and accept that's what we're doing. And to do even that we'll need to be brave enough to leave some of the past behind. Then we can agree to work together to create something - anything.

      I'd even go so far as to suggest that anything we create together, no matter how immature in comparison to what we have now, will still in the long run be better for us all.

    8. Re:The checks and balances don't work for software by Sarten-X · · Score: 2, Insightful

      That sounds like a great bit of logic there, if you ignore various facts along the way.

      Many of those founders owned slaves. Does American society today support slavery?

      Women were considered unfit to enter politics. Are American women still kept out of political offices and denied the ability to vote?

      Society's observed reflection of its laws is not the result of some poorly-understood natural process, but the intentional result of the society's trust in its governing body. Laws are merely standards for behavior. When citizens follow the standards cooperatively, society as a whole benefits.

      To use the infamous car analogy, consider the laws requiring drivers to periodically stop and allow crossing traffic to move. If everyone follows the law, a few people get slowed down by a few seconds. If people are greedy and force their way into an intersection, then many people wait for several minutes, or worse if gridlock develops. By suggesting a single cooperative behavior, traffic laws improve society. Drivers who act against the laws (ideally) face rejection by society, and the simple way to accomplish that is to have society levy a fine.

      When adopting a new standard, it's important to have everyone's views included. With a single party/person controlling the standard, the chance of a mistake is very high. That's why American citizens (should) vote for representatives that they believe will support their views. Thus, their opinions are directly represented in the laws that are passed. Believe it or not, we are already creating a new society together, and have been doing so for the last two hundred years.

      Want a bigger voice out of the 300 million Americans? Write your representatives! Run for office! Do something following the democratic process, with respect for the opinions of the millions of people who aren't you. Laws will always exist in some form, because there will always be greedy people who act against the society's benefit, and the society will always find a way to reject them. "Fair and equitable" trials are simply a means of determining who's being greedy.

      Even patents are just a way to protect the hard-working inventor from the greedy people who will steal his idea and profit from it, without the investment cost to develop the idea on their own. As Moryath said, the problems lie in the implementation of the laws' enforcement, not the laws themselves, and certainly not in the concept of a lawful nation.

      --
      You do not have a moral or legal right to do absolutely anything you want.
    9. Re:The checks and balances don't work for software by Artifakt · · Score: 2, Interesting

      If you look at the real linguistic roots of the word anarchy, it means, not "no law", but "no rulers" - In essence, phrases such as "government by laws and not men" describe a form of anarchy. Having one group that is much less than the whole of the populace frame the laws, and be relatively immune from their penalties, is one, mostly inferior, option among some quite more acceptable alternatives.
              Supposedly, the Incans had a legal system where the penalties for acts grew if the person found guilty was more highly placed in society. A farmer charged with public drunkenness paid a small fine, a craftsman a larger one, a merchant might face lashing, and a politician execution. (I say 'supposedly' because there is some real dispute in archaeological circles over just what the Inca society was like, whether there are traces of it we can infer from the later Mayans, and such - maybe it was but a brief moment before the Incans lost such a system to rising corruption, or there were still some privileged people who were immune, or maybe they really made it work for many generations).
            Could any modern society develop a system like that? It seems hard enough to move things towards more equal treatments - just look at how difficult it has been in the US to get the idea even considered seriously that Congress members 'public service' should entitle them to a retirement program and medical assistance no better than what Social Security and Medicare provide to the general public. Making the penalties harsher for screwing up the higher you go is very far from the way things are usually done.
             

      --
      Who is John Cabal?
    10. Re:The checks and balances don't work for software by KDR_11k · · Score: 1

      Guns favor the guy with more guns and men. Guns certainly aren't the solution to organized crime. Having a police force means at least the most guns are in the hands of people who are at least somewhat accountable to the people.

      --
      Justice is the sheep getting arrested while an impartial judge declares the vote void.
    11. Re:The checks and balances don't work for software by hairyfeet · · Score: 1

      Hi MR AC! The problem with "general tort reform" is it ends up favoring the rich while screwing hard the poor, and sadly I have a personal example. My sister was horribly butchered by a surgeon, it took her 10 years to slowly fall apart and die. It turned out that not only was the surgeon negligent, but he had actually done the same exact thing to at least 4 other girls by rushing the procedure to try to squeeze more in and thus make more $$$. All of the medical care, which BTW got passed on to the state, probably cost well over a million dollars by the time she died.

      But because my state had a sleazy lobbyist wine and dine until he got "tort reform" passed for medical malpractice, the MAXIMUM anyone can get here is 250k, which isn't a drop in the bucket for someone with lifelong treatment required. We were told by every lawyer that there was no way they would touch a medical malpractice suit in this state, as the research and work required would cost them too much when compared with what they get under the cap. The result? A doctor can be drunk, drugged, hell completely incompetent, nobody will touch them. In a bit of poetic justice the scumbag lobbyist that pushed through tort reform was himself butchered by a doctor a few years later and died broke and in agony because nobody would take his case.

      So I wouldn't be too quick to jump on the "tort reform" BS if I were you, because while the rich can afford to hire private attorneys on retainer and simply not worry about the cost, the poor cannot. Tort reform simply makes one more form of justice an exclusive remedy for the rich and rich alone.

      --
      ACs don't waste your time replying, your posts are never seen by me.
    12. Re:The checks and balances don't work for software by tepples · · Score: 1

      To use the infamous car analogy, consider the laws requiring drivers to periodically stop and allow crossing traffic to move. If everyone follows the law, a few people get slowed down by a few seconds.

      I routinely see four-minute red lights at an intersection whose metal detector fails to sense my bike. Can you fit this into your car analogy?

      That's why American citizens (should) vote for representatives that they believe will support their views.

      The major publishers of non-free fictional entertainment own the means that representatives use for communicating to the general public. Can you fit MPAA news into your car analogy?

      Want a bigger voice out of the 300 million Americans? Write your representatives!

      Who write back with a form letter stating that an expansionist position on copyrights and patents is good for America.

      Run for office!

      Rep. Ron Paul (R-TX) tried this. His campaign got buried by the mainstream media in favor of that of then Sen. Barack Obama (D-IL), whose views more closely aligned with Hollywood's. Look at how little time he was allotted in the Republican primary debates.

    13. Re:The checks and balances don't work for software by Sarten-X · · Score: 1

      I routinely see four-minute red lights at an intersection whose metal detector fails to sense my bike. Can you fit this into your car analogy?

      Yes, actually. Occasionally, people get screwed by laws that don't account for them. The best solution is to propose an alternative that works for everybody. If you can invent a detector that works for both cars and bikes, yet still has the lifespan and approximate cost of the current detectors, go suggest it to the appropriate folks.

      The major publishers of non-free fictional entertainment own the means that representatives use for communicating to the general public. Can you fit MPAA news into your car analogy?

      Yes, actually. Occasionally, there are greedy people who will do bad things that are not actually against the written rules, such as parallel parking in the exact middle of two driveways when there's (unmarked) space for two cars. Sometimes there are laws to prevent such abuses, but those laws may not be worded precisely enough, or they may offer broad exceptions. Either petition to change the laws, or live with them and go make more noise with your free fictional entertainment.

      Who write back with a form letter stating that an expansionist position on copyrights and patents is good for America.

      And eventually they notice that they've sent out 1500 form letters saying that, or their intern (who actually wrote the letter) comments that they're writing an awful lot of those same statements. Your representative isn't there to serve you. They're there to represent you, and the thousands of others in your area. Those thousands of others have expressed interest in keeping businesses running, keeping jobs, and funding engineers. If you want to change the representative's stated position, get your like-minded friends to write as well. You have a right to "petition the government for a redress of grievances". Exercise that right.

      Rep. Ron Paul (R-TX) tried this. His campaign got buried by the mainstream media in favor of that of then Sen. Barack Obama (D-IL), whose views more closely aligned with Hollywood's. Look at how little time he was allotted in the Republican primary debates.

      Yeah. Maybe if I'd agreed with what he said, I'd have cared more about him. Maybe if his views were popular with anyone other than the conspiracy-loving, irrationally-thinking, anonymous masses on the Internet, the rest of the nation would care. He pushed for positions that I personally don't think are really feasible, and some that I believe to be harmful. He did raise a few good points, though, and his positions were considered by people who were following the election. Notably, that demographic should include Obama, who should now consider Ron Paul's views as representing about 10% of the American opinion. That's how representative democracy works. Even when your chosen candidate loses, you should still get a voice.

      --
      You do not have a moral or legal right to do absolutely anything you want.
    14. Re:The checks and balances don't work for software by tepples · · Score: 1

      If you can invent a detector that works for both cars and bikes, yet still has the lifespan and approximate cost of the current detectors, go suggest it to the appropriate folks.

      I managed to get one misbehaving intersection's sensitivity increased by calling 311 and reporting it. But the crack at the other, at the intersection of a low-traffic street and a major traffic artery, appears to be too long for such a quick fix. The long-term solution is to replace ring-shaped detectors with quadrupole detectors. This figure 8 shape concentrates the sensitivity in the middle of the lane, allowing traffic engineers to crank up the detector's sensitivity while still rejecting spurious signals from large vehicles in adjacent lanes. The only drawback in retrofitting existing intersections to use is that recutting the asphalt costs more than zero. I just wish I knew more about the economics traffic engineering and how to organize other area cyclists so that I could submit a proposal to the city.

      Either petition to change the laws

      Any such petition would get buried by the incumbent media, as the Eric Eldred Public Domain Enhancement Act petition from the early days of Creative Commons did.

      or live with them and go make more noise with your free fictional entertainment.

      Once I've created a work, how do I check it before I publish it to make sure I haven't accidentally plagiarized something non-free? And in the case of a medium with gatekeeper companies with imprimatur power (e.g. video games, which are controlled by Sony, Microsoft, and Nintendo), how do I get a work past these gatekeepers?

  3. Just ninety percent? by Anonymous Coward · · Score: 0

    Aren't ALL software patents bad?

    1. Re:Just ninety percent? by CarpetShark · · Score: 4, Insightful

      Yes, but if you're going to claim to know something about the law, it helps if you can pick some arbitrary criterion for why your rule works. In other words:

      "Patent claims tend to fail 90% of the time" is factually incorrect.

      But:

      "Patent claims by trolls tend to fail 90% of the time." is so fuzzy that no one can dispute it.

    2. Re:Just ninety percent? by nedlohs · · Score: 5, Informative

      "Troll" has a precise definition in their study - a non-practicising entity. So if the patent being sued over isn't used by the entity doing the suing in any of their products/etc, they are labelled a "patent troll" in the study.

    3. Re:Just ninety percent? by Theaetetus · · Score: 1

      "Troll" has a precise definition in their study - a non-practicising entity. So if the patent being sued over isn't used by the entity doing the suing in any of their products/etc, they are labelled a "patent troll" in the study.

      Accordingly, the only way that "Patent claims tend to fail 90% of the time" could be factually correct is if 100% of patent owners were non-practicing entities. Since that's not true, the 90% claim is false for all patents.

      Patents are expensive to obtain... Most companies need a revenue stream to support them. I suspect that the number of non-practicing entities asserting patents is closer to 5-10%. So, if my estimation is correct (and this is fully open to debate), we're really talking about .5-1% rather than "90%".

    4. Re:Just ninety percent? by nedlohs · · Score: 1

      Sure, but no one other than you has made the claim that "patent claims tend to fail 90% of the time", so that being not factually correct is pretty much irrelevant.

      The actual article is talking about various subsets of patents and that some of them have very high "failure" rates when they make it through to a judgement. The "patent troll" subset is one such high failure rate group.

      Of course there are holes in their data, heck they even point some of them out.

    5. Re:Just ninety percent? by Sarten-X · · Score: 1

      My opinion, having looked into patenting my own algorithm recently:

      No. Absolutely not.

      Patents in general are intended to protect an idea from the time it's conceived until the inventor has had the chance to at least recoup his research investment. Note that I said "chance", not "guarantee". In the world of physical devices, it takes a long time to turn an invention into a commercial success. First there's several rounds of prototyping (beyond what the USPTO has ever required), then manufacturing, distribution, marketing, revision... After a decade, a physical product has barely gained acceptance, let alone actually turned a profit. In a bad economy or with less-than-perfect management skills, 20 years is hardly unreasonable.

      Now consider the world of computers, and especially software. Twenty years ago, we were sitting around with our 386's (486 if you were lucky), running MS-DOS 4 and dialing in to BBS's. The successful products of today were unimaginable. Today's ideas will meet their commercial fate within two years. Having patents of several decades only stifles innovation, because interoperability (without high-priced license fees) is stuck in the early 90's (ignoring open source). At the most, I would prefer to see software patents last five years.

      Software patents aren't bad. Why should the invention of a software engineer be less protected than the work of a mechanical engineer? Overly-long-lived patents are bad. Why should a software engineer have a longer cycle of protection relative to his industry than a mechanical engineer?

      P.S. I decided that my algorithm (boiling down to "do vector algebra on text") wasn't worth the hassle to clean up and formalize. Someday, I'll come back to it, but for now I'm happily getting paid to work with medical data.

      --
      You do not have a moral or legal right to do absolutely anything you want.
    6. Re:Just ninety percent? by king+neckbeard · · Score: 1

      You don't really seem to be presenting an argument for software patents on their own merits, but rather that other patents are accepted and that you don't see too many differences. However, you do acknowledge a difference in cycle. Another difference would be the overhead. You need a considerable sum of money to manufacture a device on an industrial scale. With software, it's quite possible for a single person to do everything themselves, and the distribution network can have virtually no actual cost. Perhaps more importantly, the idea that other non-software patents are good is not self evident, so this kind of argument is basically just raising the stakes instead of providing an actual defense.

      --
      This is my signature. There are many like it, but this one is mine.
    7. Re:Just ninety percent? by KDR_11k · · Score: 1

      A problem with SW patents is that they are broader than physical patents. Physical patents cover implementations, SW patents often cover mere ideas. A patent covering an implementation can be worked around by devising another implementation but patenting an algorithm means there is no way around the patent and whoever patented it first can screw over the whole world. Patenting MP3 encoding should only be able to patent a specific implementation (not limited to a specific language but specifying e.g. using arrays for specific purposes, etc), not the algorithm itself.

      --
      Justice is the sheep getting arrested while an impartial judge declares the vote void.
    8. Re:Just ninety percent? by arivanov · · Score: 1

      No, It is a classic case of conditional probability:

      Claims that are litigated fail 90%. This is conditional on not settling and licensing before it goes to court.

      Just ask any licensing professional - if you end up litigating it is considered a failure. This means that you have not managed to present a sufficiently good case to the "customer" which shows that it you have good enough IPR and it is worth licensing at the rate you are offering. It is generally more cost effective for any _REAL_ patents than dealing with court for both sides.

      So having 90% failure for cases that have actually reached court is not surprising. I am surprised it is not 99%.

      In any case, this number speaks very little regarding the general validity of patents as a whole. You need stats on licensed and not litigated ones and these are very hard to come by.

      --
      Baker's Law: Misery no longer loves company. Nowadays it insists on it
      http://www.sigsegv.cx/
    9. Re:Just ninety percent? by Sarten-X · · Score: 1

      You don't really seem to be presenting an argument for software patents on their own merits, but rather that other patents are accepted and that you don't see too many differences.

      The AC's comment was regarding only software patents. I was staying on topic.

      You need a considerable sum of money to manufacture a device on an industrial scale. With software, it's quite possible for a single person to do everything themselves, and the distribution network can have virtually no actual cost.

      So your argument is that software is easier to steal, so it shouldn't be protected? That seems to miss the fact that research is expensive, regardless of the medium. My whiteboard markers, notebooks, and especially my food still cost money.

      Perhaps more importantly, the idea that other non-software patents are good is not self evident.

      I'll rephrase my first sentence in simple terms, then:

      When greedy people see good ideas, they often copy those ideas. Since they're greedy, they don't pay anything to the inventor. The inventor spent their own resources to research the idea, and I think they deserve to be paid.

      --
      You do not have a moral or legal right to do absolutely anything you want.
    10. Re:Just ninety percent? by Sarten-X · · Score: 1

      That's a problem with the USPTO's reviewers, most of whom need to spend a few years in training (but good luck finding the funding for that). It's not an inherent problem with software patents themselves.

      The equivalent statements in physical patents would be something like "use a thingy to move the stuff near the gadget, and a widget does something". A reviewer with an IQ over 80 should see the problems, but since they're often unfamiliar with computer science, the ridiculous patent gets approved anyway.

      My algorithm, had I patented it, would have been equally broad. Since I have morals, I will not patent such a concept. That's the "cleaning up and formalizing" that I chose not to pursue.

      --
      You do not have a moral or legal right to do absolutely anything you want.
    11. Re:Just ninety percent? by king+neckbeard · · Score: 1

      The AC's comment was regarding only software patents. I was staying on topic.

      I didn't say you were off topic. I was saying that you aren't actually presenting an argument of why software patents work, but rather that software is similar to other patents, which may or may not work. Similarities between the two might just mean that all patents suck.

      So your argument is that software is easier to steal, so it shouldn't be protected?

      No, my argument is that there is less overhead in production, so there is a greater chance that providing the same protection is harmful. If it costs less to produce, then the ideal degree of protection needed for motivation is less. And ideas can't be stolen, they can be copied or imitated. Learn the difference.

      The inventor spent their own resources to research the idea, and I think they deserve to be paid.

      Nobody is saying that researchers shouldn't be paid. However, there are other methods of insuring that they receive compensation than patents. More importantly, the patent system in the US at least is explicitly for the benefit of the public. If we get just as much or more invention/innovation just letting market competition handle things, then we shouldn't have patents regardless of their effect on the welfare of inventors.

      --
      This is my signature. There are many like it, but this one is mine.
  4. On the other hand... by N0Man74 · · Score: 4, Insightful

    You can lost most of the time, but when you win, can't the winnings quite overshadow the actual effort in trolling the system?

    It's not completely unlike walking up to many random women and saying, "nice shoes, want to have sex?" Sure, the vast majority will think you are a schmuck and maybe even give you a slap, but to some having an extremely tiny percentage agree makes it worth their effort. ;-)

    1. Re:On the other hand... by russ1337 · · Score: 1

      Agree. Also, if it was such bad business, why is it a growing industry?

    2. Re:On the other hand... by NeutronCowboy · · Score: 1

      And that's exactly it. RIM lost its lawsuit to the tune of several hundred million dollars. It doesn't matter if the patent troll ever won a lawsuit before or afterwards, they just received a lifetime payment for everyone who works there.

      That's the bad part about patent trolls. They're only business is lawsuits, so engaging in one isn't a cost as it is for other businesses. Losing one is just an outcome of their daily work. Winning one is the jackpot they're after.

      --
      Those who can, do. Those who can't, sue.
    3. Re:On the other hand... by MaskedSlacker · · Score: 1

      Because more than 90% never go to trial--that's 90% of less than 10% that are losing, because going to trial for most defendants is more expensive, even if they win, than paying off the extortion racket.

    4. Re:On the other hand... by Anonymous Coward · · Score: 0

      You can lost most of the time, but when you win, can't the winnings quite overshadow the actual effort in trolling the system?

      It's not completely unlike walking up to many random women and saying, "nice shoes, want to have sex?" Sure, the vast majority will think you are a schmuck and maybe even give you a slap, but to some having an extremely tiny percentage agree makes it worth their effort. ;-)

      The emoticon at the end implies you're one of those that find it worth the effort, but I gotta say, that sounds like the exact sort of woman I'd prefer to avoid...

    5. Re:On the other hand... by blair1q · · Score: 1

      The judge in the losing cases should be making sure it's expensive to lose, as well. Countersuits should come into play, too.

    6. Re:On the other hand... by Moryath · · Score: 2, Insightful

      And what REALLY sucks is that anyone who actually worked on the patent gets precisely Jack Shit.

      The CEO, CFO, and the lawyers will suck up all the money. The rest get told "here's a grand or so bonus, now get back to work, slaves."

    7. Re:On the other hand... by ciaran_o_riordan · · Score: 3, Interesting

      I bet a lot of patent trolls don't have much money in the bank.

      Acacia does a lot of troll suits under other names: IP Innovations, Acacia Technologies, or Acacia Media Technologies, among others.

      I wonder if this is a way to protect Acacia from having the pay the losses. Maybe when they lose, they just tear up the piece of paper on which that legal entity existed. ...and make two more.

      --
      Expert in software patents or patent law? Contribute to the ESP wiki!
    8. Re:On the other hand... by blair1q · · Score: 1

      I'm surprised I don't know this, but I wonder what happens to the patent once you lose a case; can the judge invalidate it completely if he decides it's just wrong? Certainly you could never press the case against anyone making whatever the guy you just sued was making, but it's unlikely anyone would, so you could still sue people who are making slightly different things.

      As for the shell company bankruptcy thing, that's a major flaw in corporate law, IMO. If the owners of corporations were more on the hook personally for their companies' actions, corporations overall would have a better reputation overall.

    9. Re:On the other hand... by ciaran_o_riordan · · Score: 2, Informative

      Depends. The patent holder can lose either by the judge invalidating the patent, or by the judge saying that the accused's usage doesn't violate the patent. The latter obviously leaves the patent intact.

      If the judge invalidates the patent, the patent holder can still go back to the USPTO and ask to change the wording and for a new patent with a different/narrower scope to be granted. (I'm not 100% sure, but I think this is a Reissued patent.)

      For example (although it's not the same situation), the Bilski patent owners, having had their patent rejected by the USPTO, the BPAI, the CAFC, and the Supreme Court, are still persuing their patent! These things don't die :-/

      --
      Expert in software patents or patent law? Contribute to the ESP wiki!
    10. Re:On the other hand... by walterbyrd · · Score: 1

      You do not have to win at a trail to "win" the lawsuit.

      TomTom was a huge win for Microsoft, but MS did not win at a trial.

      HTC was a huge win for Apple, but Apple did not win at a trial.

      In fact, it's better to not go to trial, because then everything is nice and undisclosed.

    11. Re:On the other hand... by KDR_11k · · Score: 1

      Patent trolls usually buy up inventions of other people. They're purely parasitic on society.

      --
      Justice is the sheep getting arrested while an impartial judge declares the vote void.
    12. Re:On the other hand... by Anonymous Coward · · Score: 0

      It's not completely unlike walking up to many random women and saying, "nice shoes, want to have sex?"

      You must be new here!

    13. Re:On the other hand... by tepples · · Score: 1

      The patent holder can lose either by the judge invalidating the patent, or by the judge saying that the accused's usage doesn't violate the patent. The latter obviously leaves the patent intact.

      But importantly, the latter also leaves a workaround for the patent in case law.

    14. Re:On the other hand... by Anonymous Coward · · Score: 0

      Except that the inventor got paid for his patent at one point. Seems like a major flaw in your argument.

    15. Re:On the other hand... by Anonymous Coward · · Score: 0

      there is a limited time in which you can get a patent re-issued and if reexamined, many patents (70%) come out narrower or invalidated completely.

    16. Re:On the other hand... by BitZtream · · Score: 1

      What you say is so incredibly true its not even funny.

      I had a friend that more or less did exactly that, he was slightly more polite than 'nice shoes, wanna fuck' but the conversation was never more than a minute long.

      He pretty much could get laid any time he wanted, he just went through a LOT of women in the process, but he won often enough that you had to wonder if he didn't really have the right way to go about the process if you just wanted to have sex.

      --
      Persistent Volume manager for Kubernetes - https://github.com/dwimsey/openshift-pvmanager
  5. Bad Patents by e4g4 · · Score: 1

    Either way, what does seem pretty obvious is that all those ridiculous patents you see in patent lawsuits are, in fact, bad patents.

    What seems obvious is that the *majority* of ridiculous patents are, legally, bad patents. This doesn't seem to suggest that *all* bad patents are caught by the judicial filter. It's a minor nitpick, for sure, but I'm 100% certain that the number of "bad patents" that have held up in court is non-zero.

    --
    The secret to creativity is knowing how to hide your sources. - Albert Einstein
  6. forgot what trolling means? by Mike+Kristopeit · · Score: 0

    achieving a goal through large quantities of little to no work. of course most "attempts" at any measurable level will show likely failure.

    1. Re:forgot what trolling means? by shawb · · Score: 1

      Exactly... it's like spamming. And realistically, 90% is probably high if you consider that any company actually violating patents should probably just settle out of court... cheaper and it doesn't tarnish the company's image.

      --
      I'll never make that mistake again, reading the experts' opinions. - Feynman
  7. So they win 10% of the time by houghi · · Score: 1

    With a success rate of 10% it must be certainly worth it.

    --
    Don't fight for your country, if your country does not fight for you.
    1. Re:So they win 10% of the time by Penguinisto · · Score: 2, Insightful

      Given that the 10% usually results in a uber-massive payday, and that the company being litigated against usually settles anyway?

      Not sure of the odds, but it likely adds up to a HUGE reason as to why patent troll 'companies' are realizing a lot of investment money, ne?

      --
      Quo usque tandem abutere, Nimbus, patientia nostra?
    2. Re:So they win 10% of the time by cetialphav · · Score: 1

      With a success rate of 10% it must be certainly worth it.

      Actually, the success rate is much higher than 10%. They win 10% of what goes to trial. But for every suit that goes to trial, there are many more that are settled much earlier on. That is actually where the big money comes from. Patent trolls don't actually want to go to trial; they want a settlement. They end up having to go to trial because someone decides that they think they can win in court and refuse to be extorted for money. And as soon as they win at trial, they know that anyone else that was thinking about challenging that patent will be forced to settle because that defense is a proven loser.

  8. In fact, the opposite of true by John+Whitley · · Score: 1

    While some may suggest this means 'the system is working,' that's not really true.

    How in the heck would a 90% reject rate indicate "the system is working"? If that number is correct, that supports the idea that the U.S. patent system under our current legal system is stifling innovation. I.e. "the system is broken" is a more sensible conclusion. With that kind of failure rate on a challenge, the patent trolls simply must not care that the patent is weak. They expect targets to just roll over and settle most of the time. Business model:

    1. Buy up patent with a domain applicable to targets with money. Patent needs only be domain relevant, not actually defensible.
    2. Sue
    3. Profit, no question marks needed.

    All this suggests that we really need both legal reform and patent reform.

    1. Re:In fact, the opposite of true by Surt · · Score: 1

      It means the court system is working to correct the problems in the patent system. You can't build a system the size of the US government without some pathological failures, so arguing that the 'whole' system isn't working is like suggesting that water is wet. Yep.

      --
      "Who is the Journal of Quantum Physics going to believe?" --Stephen Hawking
    2. Re:In fact, the opposite of true by Moryath · · Score: 3, Insightful

      The number of people who settle rather than litigate - compared with people who later litigate and get the same patents thrown out - indicates that you are full of shit.

      The system isn't working, because the cost to challenge a patent is so high, and the process takes so long, that most companies just pay into the extortion racket.

    3. Re:In fact, the opposite of true by Mister+Whirly · · Score: 1

      Wow, where have we recently seen that strategy used over and over?

      --
      "But this one goes to 11!"
    4. Re:In fact, the opposite of true by DDLKermit007 · · Score: 2, Informative

      The big thing is how much it costs to defend these BS patents. My work got sued for infringement because we sell CPU heatsinks with HEATPIPES!!! They didn't go after the manufacturers of the heatsinks, not the distributors, but the end user sellers. Defending these things cost around $100,000 against some asshat working on commission IF they win. Not to mention, even if you ask for court costs you'll get nothing because the owner of the company likely has 10 other companies with other patents with each one having no real value.

  9. A thought by webheaded · · Score: 3, Insightful

    If the system was working, these patents never would have made it through in the first place for them to sue anyone with. :)

    --
    "Those who would sacrifice essential liberties for a little temporary safety deserve neither liberty nor safety." - BenF
    1. Re:A thought by Anonymous Coward · · Score: 0

      working for whom?

    2. Re:A thought by Yvanhoe · · Score: 1

      And they wouldn't win 10% of the time.

      --
      The Wise adapts himself to the world. The Fool adapts the world to himself. Therefore, all progress depends on the Fool.
  10. maybe by phantomfive · · Score: 3, Insightful

    Either way, what does seem pretty obvious is that all those ridiculous patents you see in patent lawsuits are, in fact, bad patents

    Oh sure, I'll accept that they are bad patents, but I'm not going to accept that the law recognizes them as bad until Amazon's one-click patent is invalidated. Obvious ideas can be, and have been, patented, and that is a serious problem.

    --
    Qxe4
  11. uhh by nomadic · · Score: 5, Insightful

    The data suggests that most companies, when threatened with a lawsuit, end up settling or licensing to avoid the high costs of litigating. But the fact that so few software patents and patent trolls do well at trial may be more incentive to fight back.

    Of course we don't get a link to the paper itself, but the fact that where defendants decide their case is strong enough to go to trial, they tend to win, is not especially surprising.

    1. Re:uhh by shentino · · Score: 1

      s/their case is strong enough/they are rich enough to afford a lawyer long enough to survive the trial/

    2. Re:uhh by nomadic · · Score: 1

      If they didn't have the money for a lawyer, then what's the point of suing them?

  12. Only 90%, huh? by Zocalo · · Score: 3, Insightful

    OK, but what's the average return on investment for a successful patent troll lawsuit?

    Turning that 90% figure on its head, if the average ROI for buying up a patent and sucessfully suing some suitably wealthy potential infringers in court is more than nine times the outlay then unfortunately being a patent troll is still a viable business model.

    --
    UNIX? They're not even circumcised! Savages!
  13. The summary of the summary of TFA misses the point by gront · · Score: 4, Insightful

    Sure, just assume that 90% of the lawsuits brought by patent trolls lose at final judgment. You can't work backwards from that factoid and conclude that 90% of software patents are crap. After several levels of filtering, only then is a case decided. And at each level, if the software patent i strong, the process ends. Demand letter gets reviewed. Strong patent? Settle. Initial lawsuit gets filed. Semi-strong patent? Cost-risk analyze defending the lawsuit and license if the numbers don't work. Lawsuit continues. Weak but possible bad judgment? Settle. So only the patents that the defendant looks at and decides that the risk of losing the suit, cost of the suit, _and_ the strength of the asserted patent are such that it makes sense to risk a final judgment are these 90% losses representative. Hardly a basis for a universal declaration that all software patents are weak and unenforceable. Sure, folks may have a beef with the concept of software patents, but that is a separate issue.

  14. Re:who gives a fud? by Anonymous Coward · · Score: 0

    I'll take what they're having.

  15. In the UK they're smarter than us by jonathan_the_ninja · · Score: 1

    I'm a little ashamed that in the US we immediately turn to litigation without considering other options such as mediation law. In the UK mediation law is the norm, whereas litigation is more of a last resort. But in Soviet Russia, software patents litigate YOU!

    --
    I love NetHack.
    1. Re:In the UK they're smarter than us by nomadic · · Score: 1

      Huh? Federal cases almost always go to mediation before they go to trial.

  16. So what about the ones that settle? by hsmith · · Score: 1

    How suits fair in court is nothing of real importance - the importance is what percentage settle out of court. I'd want to see those stats - I would assume they are the exact opposite, if not higher.

  17. All that proves... by Chuckstar · · Score: 1

    All the proves is that defendents settle unless they have a case they believe has a 90% chance of winning.

  18. Statistics... by Idiomatick · · Score: 3, Insightful

    90% of patent trolls defended against succeed. That does NOT mean that more people should defend themselves. Say 50% of patent claims are settled outside court, and we have the stat that 90% of patents that make it are successfully defended. What does this tell us about the success rate of the 50% that never make it to trial? Fuck all because of self selecting bias, this isn't a blind trial.

    The majority of people in marathons do fairly well. That cannot be extrapolated to say that the majority of people would do well in a marathon. Its stupid. This study is no different.

    Disclaimer: I didn't RTFA because stats scare and confuse me.

    1. Re:Statistics... by Anonymous Coward · · Score: 0

      Precisely. Say a troll comes after you with a good patent. You don't go to court, you settle. Bad patents on the other hand...

  19. Re:who gives a fud? by Faylone · · Score: 1

    I have here a glass of dihydrogen monoxide just like they've had, and it can be YOURS for the low price of $60!

  20. Re:The summary of the summary of TFA misses the po by martin-boundary · · Score: 1
    You also can't work backwards and assume that 90% of software patents are strong. After several levels of filtering with mounting costs, both monetary and the distraction from doing real business, a settlement is highly likely just to cut losses. Hardly a basis for making any qualitative statement about the merits of the software patent in question, or even software patents in general.

    The fact is that the statistics are limited, and the most solid statistics are about final judgments, because it's hard to account for and classify all the settlements, especially if they don't involve a court.

    The other solid basis is looking at some software patents yourself, ie empirical evidence.

  21. Selection bias by MozzleyOne · · Score: 1

    It's not surprising - you'd need to have a bulletproof case before you actually challenged a case in court and ran up the huge associated cost. For everything else you'd just settle.

    --
    Ayjay on Fedang
  22. Fight back! by countertrolling · · Score: 1

    Yes, I'll break out my vast fortune, right now... I mean it... I'm headed to be bank... You'll be sorry...

    Patent trolls have a 100% success rate of draining your account... They should have to post a bond to pay your expenses if you win

    --
    For justice, we must go to Don Corleone
  23. Timely (for me) by grub · · Score: 1

    I'm writing some software for iOS. My lawyer told me last week that I should incorporate because of patent trolls. And he did TELL me in no uncertain terms.

    --
    Trolling is a art,
  24. Re:who gives a fud? by Anarki2004 · · Score: 1

    Can I have that in dehydrated form? Its easier to travel with.

    --
    The teachers will crack any minute, purple monkey dishwasher.
  25. checks and balances work if there by DCFusor · · Score: 1

    Last I heard (and I used to get and own patents, which I no longer care about) the flaw is this. You guys are missing it. It's up to the entity applying for a patent to find and disclose prior art. Period. If the examiner happens to know some and get back to them fine, but that's not how the system is set up. And the patent office runs off fees they don't get if applications aren't granted. Enough said?

    --
    Why guess when you can know? Measure!
    1. Re:checks and balances work if there by shentino · · Score: 1

      If people weren't afraid to defend themselves in court, you'd see a lot fewer patent trolls.

      However, it's usually cheaper just to roll over and settle.

  26. Odds by Anonymous Coward · · Score: 0

    I guess I just don't understand this. So it sounds like if it's the first dispute that goes to trial with a judgment, 47% of asserted patents are winners. IF you're a loser, and litigate 10 more disputes on the same patent, you'll win one of them.
     
    Now, if the patent has been held valid elsewhere, what possible motivation would you have to go to trial instead of license? (Only that you don't infringe. Dangerous.) Aren't we really saying the courts have a 10% margin of error on patent litigation?

  27. Expected Value by dcollins · · Score: 3, Insightful

    The probability of success is irrelevant if the expected value (success probability * average profit) is still positive.

    --
    We know where leadership by an anti-intellectual "strongman" who scapegoats minorities and likes boisterous rallies goes
  28. Why "winning" the suit is not important by walterbyrd · · Score: 1

    Consider the scox-scam. The lawsuit was ridiculous from day one. There was no way scox could "own" UNIX. But, the scam is now well into it's eighth year, with no end in sight.

    If, like IBM, you happen to have around $50 million to $100 million to defend yourself against a bogus lawsuit, maybe that's not a big problem.

    But if you are a smaller company, like TomTom, it may be better to just cave in. Maybe it's easier for HTC to cave in to a bogus lawsuit. Those suits were not officially "won" at trial, but they were big wins for Microsoft. The scox scam was a big win for Microsoft as well.

    The point of filing a bogus patent lawsuit is not to go to court, and actually "win" at a trial. You have basically "won" when the lawsuit was filed. The company you file the lawsuit against will have to give you something. It's like legalized extortion. Or, in the case of the scox-scam, you get eight years of FUD against your competitor for a relatively meager $100 million (hardly the cost of making a few TV commercials).

  29. The lawyers on both sides win, always by Rogerborg · · Score: 1

    Once you step into a courtroom, check to see if you have a soul. If you do, then you're not a lawyer, and you've already lost.

    --
    If you were blocking sigs, you wouldn't have to read this.
  30. No org, no strength by Anonymous Coward · · Score: 0

    All you scared of patent trolls little shops and devs...ever stop to think that if you ORGANIZED and paid into a pool, that you could be protected? Right off the bat, cross license all your patents, you might come out ahead of the big dogs like IBM and so on that way. Next, you'd be able to have top notch representation on tap, scary enough law teams to keep the trolls down, and if it came to a fiight, win.

    but, you refuse to organize. Divided you fall, you get stomped on all the time. And it is only going to get worse and worse and worse.

    Now, just so you don't get your typical white collar knee jerk reaction, DO NOT call it a "union", even though this is the strategy that can work. Call it something else, but DO IT.

    If you can't get several thousand coders to start it here and on a few other major tech boards....well, buncha namby slack jawed whiners then. Talk up a storm, get all hissy fit indignant, then when push comes to shove, retreat into some video game escape from reality instead of organizing.

    They system is NOT designed for you as little individuals and small shops, so until you realize this and act accordingly, you will keep getting screwed by the patent trolls. Want change, you need to be a big deal, something they can't ignore, something powerful.

    1. Re:No org, no strength by king+neckbeard · · Score: 1

      Patent pools only help against those that produce a product, and only if said product infringes one of your patents. If a company doesn't produce anything, patents are useless against them.

      --
      This is my signature. There are many like it, but this one is mine.
  31. At first if you don't succeed, try, try again? by Nyder · · Score: 1

    Isn't this the little engine that could?

    the human struggle?

    Never going to give you up?

    err, sorry, guess i'll leave the rickroll out of this.

    --
    Be seeing you...
  32. Fields they are analyzing? by Theaetetus · · Score: 1

    because they are not correctly able to evaluate patents due to lack of training in the fields they are analyzing

    As an aside to your main argument - I've seen this meme come up repeatedly, and I'm not sure where it started, though I suspect it's on the patent reform side: most anti-patent people seem to think that biologists are reviewing networking patents, and that GUI programmers are reviewing chemistry patents. Two words: Art Groups. The USPTO divides Examiners into groups based on their specific areas of expertise, divides applications the same way, and only has people working on stuff they're qualified on.

    You can call it incompetence within their field, but don't claim that Patent Examiners are examining applications outside of the field they have training in. That's demonstrably false.

    1. Re:Fields they are analyzing? by russotto · · Score: 1

      You can call it incompetence within their field, but don't claim that Patent Examiners are examining applications outside of the field they have training in. That's demonstrably false.

      For a time, while software patents were being granted, a computer science degree was not allowed as a prerequisite for becoming either a patent examiner or a patent lawyer. So just who was examining those early software patents?

    2. Re:Fields they are analyzing? by king+neckbeard · · Score: 1

      Actually, there was a recent study I saw that showed that there is a strong bias against computer science majors at the USPTO. The results were that software patents have grown to the second largest category, while I think CS majors are 7th place (it might have been CS and computer engineering combined, computer engineering dealing mostly with hardware). This means that we've either got unqualified people granting software patents, or those granting software patents are incredibly overworked. Neither of these is favorable, even if there is competence.

      --
      This is my signature. There are many like it, but this one is mine.
    3. Re:Fields they are analyzing? by shentino · · Score: 1

      Maybe software patents are simply the most requested, and the USPTO is so fee hungry that it's cracking down on people actually giving a fuck about prior art and obviousness and whatnot. Pissing off the corporate sector would mean less application fee bling, and that brings down the budget.

    4. Re:Fields they are analyzing? by Theaetetus · · Score: 1

      You can call it incompetence within their field, but don't claim that Patent Examiners are examining applications outside of the field they have training in. That's demonstrably false.

      For a time, while software patents were being granted, a computer science degree was not allowed as a prerequisite for becoming either a patent examiner or a patent lawyer. So just who was examining those early software patents?

      Computer Engineers and Electrical Engineers. For a time, when software was first being written, it was engineers doing the work, rather than computer science majors.

      But it's also finer grained than that - it's not one USPTO art group for "software"... Instead, there's more than a hundred, subdivided into areas of specialty, including AI, cryptography, network acceleration, UI design, etc: http://www.uspto.gov/patents/resources/classification/art/index.jsp.

    5. Re:Fields they are analyzing? by russotto · · Score: 1

      Computer Engineers and Electrical Engineers. For a time, when software was first being written, it was engineers doing the work, rather than computer science majors.

      Computer Science was not accepted until the 1990s. The field was quite well-established by then. They're still very restrictive on which CS programs they accept, requiring an accreditation that has only very recently become common, whereas they are not so restrictive with other technical degrees.

      But it's also finer grained than that - it's not one USPTO art group for "software"... Instead, there's more than a hundred, subdivided into areas of specialty, including AI, cryptography, network acceleration, UI design, etc:

      There's no evidence, IMO, that any of the patent examiners in any of those hundred subfields are skilled in those subfields.

    6. Re:Fields they are analyzing? by Theaetetus · · Score: 1

      Computer Science was not accepted until the 1990s. The field was quite well-established by then. They're still very restrictive on which CS programs they accept, requiring an accreditation that has only very recently become common, whereas they are not so restrictive with other technical degrees.

      That's because some CS programs are little more than liberal arts programs plus some coding, populated by neckbeards who will never amount to anything more than a Helpdesk monkey. Others are serious engineering programs. Until there's some standardization, it's reasonable to not accept at face value someone who holds up a CS degree.

      There's no evidence, IMO, that any of the patent examiners in any of those hundred subfields are skilled in those subfields.

      I would disagree. Many of them seem quite skilled to me. How many have you talked to or otherwise communicated with? Or are you just basing your opinion off the fact that software gets patented, and therefore no Examiner can possibly be skilled?

    7. Re:Fields they are analyzing? by king+neckbeard · · Score: 1

      MIT didn't meet the accreditation standards for the USPTO until 1996. That's a serious problem that has an incredible bias. As for the concern over evidence of skill, it's probably because of the number of obvious software patents that make it through. Of course, that could be attributed to adequately covering prior art being insane even for the most competent examiner.

      --
      This is my signature. There are many like it, but this one is mine.
    8. Re:Fields they are analyzing? by Anonymous Coward · · Score: 0

      [citation needed]

  33. Here's a real-life example... by mcguirez · · Score: 1

    The JPEG standard (?) was put at serious risk because one company claimed it had a patent stake in the underlying technology. Turns out they had a bogus claim but not before they collected 105 Million dollars from hardware and software companies. Some 30 companies paid up. Of course when the USPO determined Forgent Networks (during a reexamination) withheld prior art from the application things went downhill. You can read about it in the Wikipedia JPEG entry.

    --
    When you hear hoofbeats, think horses, not zebras
  34. This is what's ridiculous by Anonymous Coward · · Score: 0

    “Either way, what does seem pretty obvious is that all those ridiculous patents you see in patent lawsuits are, in fact, bad patents.”

    Who are you to say a patent is ridiculous--especially all of them?
    Furthermore, defendants may tend to have deeper pockets with which to fend off patent holders--which makes sense, because why sue an infringer who isn't making decent money?

  35. In Litigation, Final Outcomes Aren't Everything by CodeBuster · · Score: 1

    The problem with this study is that it ignores several key advantages enjoyed by patent trolls over their targets:

    1. The patent trolls are experts in the field of patent litigation and being attorneys themselves have perfected their craft over the lifetime of their firm. In other words, they are very efficient litigators, able to pursue large and complex cases over years or even decades for bottom dollar while wearing down companies whose primary competency is something other than litigation; technology in this case. When a company meets the patent trolls in court they are, with notable exceptions (IBM comes to mind), competing with the attorneys on their home playing field. Advantage: attorneys.
    2. The patent trolls do not produce technology products of their own and thus are not generally subject to counter-claims or cross licensing inducements. Advantage: attorneys.
    3. The patent cases which DO eventually go to trial may only get there after many years of other companies paying settlements. Indeed, the protracted litigation can be used as a stick to accelerate more settlement payments while the case drags on and the costs for the defendants spiral ever higher (remember that the patent troll are usually more cost efficient than the defendants per unit of litigation time, that is their business as attorneys after all). Even if the patent trolls ultimately loose they have still made lots of money during the litigation process; winning the case is almost icing on the cake by way of comparison. Advantage: attorneys.

    Finally, the study examined too few cases. How can we be sure that they didn't selected a weaker sample of patents than what is generally litigated? Could it be that many more patents never go to trial because they are strong enough to make defending infringement unfavorable for the defendants?

  36. They are spamming a lot of lawsuits by S3D · · Score: 1

    that's why they called trolls.

  37. Effective by MM-tng · · Score: 1

    What a waste of time.

  38. challenge by ProfBooty · · Score: 1

    The costs aren't that high, I'm always curious why parties in litigation almost never file a re-exam.

    http://en.wikipedia.org/wiki/Reexamination

    The filing fees are low and anyone can supply prior art that they feel invalidates the patent it.

    The backlog for re-exams isn't that long either.

    --
    Bring back the old version of slashdot.
    1. Re:challenge by Anonymous Coward · · Score: 0

      uh, no. Patent reexams can take a year to be granted, much less go through. Also, most are ex parte, so you submit the art and you're done, while the patent examiner and the patentee can go back and forth towards allowance. AND, many courts (especially int he E.D. of Tex) won't wait for a reexam to be finished before forging ahead with the suit, so you can have the court say one thing about the patent while the patent office says another.

      So not quite the silver bullet you're thinking of.

  39. Innocent until speculated guilty by gilesjuk · · Score: 1

    In the case of Microsoft it seems to be the case anyway.

    They have used the news of a competitor being sued for IP infringement in their own interests numerous times now. Just recently with Google and Oracle over the Android Java implementation.

    Maybe if they concentrated on making their products better and gave people a genuine reason to upgrade then they wouldn't need so much FUD?

  40. Selection Bias by Phleg · · Score: 1

    90% of software patents that went to trial were invalidated. Obviously, the ones that go to trial are usually the ones where the defendant has a high expectation of success, otherwise they'd just settle.

    Nothing to see here, folks. Move along...

    --
    No comment.
  41. bad news for trolls by Anonymous Coward · · Score: 0

    Bad news for NPEs (patent trolls). The disclosure of the results of this study likely weakens their bargaining position, as more defendants learn that NPEs have a disadvantage at trial. It's starting to look like the ITC -- which has proven itself quite NPE-friendly, of late -- may be would-be trolls' best bet.