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Most Software Patent Trolls Lose Lawsuits
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."
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. ;-)
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.
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.
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
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
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.
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!
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.
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.
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.
"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.
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.
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