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Bill Would Force Patent Trolls To Pay Defendants' Legal Bills
First time accepted submitter TrueSatan writes "With support from the EFF's Defend Freedom Project two Republican congressmen seek to introduce a bill called the 'Shield Act' which, if passed, would enable judges to award costs to defendants if they are found to be the victims of frivolous patent litigation. From the article: 'A new bill introduced in the House of Representatives attempts to deter frivolous patent litigation by forcing unsuccessful patent plaintiffs to cover defendants' legal costs. Introduced by Rep. Peter DeFazio (D-OR) and co-sponsored by Rep. Jason Chaffetz (R-UT), the Saving High-Tech Innovators from Egregious Legal Disputes (SHIELD) Act is limited to patents related to computer hardware and software.'"
Microsoft has mostly used their patents defensively so I don't think they've included in this, nor Apple. Google, on the other hand, will be on hot waters especially with the recent purchase of Motorola Mobility.
" two Republican congressmen seek to introduce a bill"
"Introduced by Rep. Peter DeFazio (D-OR) and co-sponsored by Rep. Jason Chaffetz (R-UT),"
So the parties are officially merged now?
Please FIX the system don't PATCH it!
The patent system is so badly broken that it kills innovation for generations..
Patent trolls are just an sideffect, and they won't stop just of risk of paying some money in 1 case out of 10...
The language allows the judge presiding over the case to effectively determine whether the case was a frivolous case, meaning there's a decent chance that this won't deter legitimate patent suits. That said, only time will tell.
Viable Slashdot alternatives: https://pipedot.org/ and http://soylentnews.org/
I think we can make a good guess about which movies these congressmen may have watched recently...
Geeks don't grock information, they grep it.
Now instead of no-name or proxy companies holding giants hostage, the giants themselves will become the hostage takers, violating patents left and right, and daring any little guy patent holders to try, just try, to take em to court. Then when the giant outspends I mean wins the court case, the lil guy is now really fookered cause he had to the giant's lawyer bill for its high profile team of super expensive attorneys.....
Result: no lil guy will ever take on a giant that violates his patents, and when he contacts the company for any kind of settlement or sale offer, they'll just brush him off.
Ya this is a great idea.
The guy who said the election was rigged won the presidency with the second-most votes.
Much as I'd like to believe that this is the result of politicians actually having a good idea, I suspect it's nothing but a negotiation ploy because they want bigger payments from corporations who draw a large revenue stream from the questionable use of patents.
Section 285 of the Patent Act of 1952 (35 U.S.C. 285) already permits judges to declare patent cases to be "exceptional" and award appropriate relief. From the defendant's perspective, a case can be declared exceptional if the plaintiff cannot show that at least one claim of the patent in suit covers the device or process accused of infringing the patent. This section is regularly used by defendants to obtain attorneys fees and costs.
Rule 11 of the Federal Rules of Civil Procedure and Section 1927 of Title 28 of the U.S. Code also provides bases for the same relief.
The problem with patent trolls is not the inability of defendants to get costs. It is that trolls often wage licensing campaigns by bringing highly questionable claims but set the costs of licenses below the cost to defend an action in court. Companies typically choose to go the economical route and take a license.
Laws affecting technology will always be bad until enough techies become lawyers.
Form a shell company for each litigation you're pursuing. If you win, reap the profits. If you lose, the shell company goes bankrupt and you're not out anything.
Um, why? Seriously, why on earth would you possibly think that there would be any benefit in restricting this law suit to just one industry when it clearly applies in principle to *every* industry that involves patents, even if not all of them are quite so litigious right now? OK, this law was probably paid for by IT industry lobbyists, but are things really that screwed up in US law making that if you don't fund the congress critters writing the legislation then you don't get covered and have to fund your own version of esentially the same legalese later on?
UNIX? They're not even circumcised! Savages!
Wow. What a novel idea -- making litigating douche-bags that lose their sleazy douche-bag games pay for the costs of the poor shmuck that went broke trying to defend himself against said douche-bags.
That almost sounds like common sense.
"It's time victims of patent trolling had an Avenger." -- Saving High-Tech Innovators from Egregious Legal Disputes spokesman Nick Fury. (Oh, I see they've already worked on the name.)
Needs to expand to copyright as well.. making it absolutely clear that trolls will be on the hook if they lose.
Republican congressmen? Then obviously the /. crowd will hate it. @_o
A wants X amount of money from B. A loses the case, but B is still bankrupt from the costs of the case.
I may be mistaken, but I think that in the Netherlands, if A loses, they always pay the entire costs of B too. That's the risk of suing someone for financial gain.
Patent frivolous patent lawsuits and sue EVERYONE!
Admit nothing. Deny Everything. Make Counter-accusations.
Apple might have to go back to innovating instead of what they've been doing the last 18 months. (Retina display being the last really clever thing I'd credit to Apple)
Galaxy S3 folks, Apple are shitting themselves and rightfully so, S2 was good, S3 is great, genuinely good hardware - some great software too.
Disclaimer: I've owned an iphone 3/3gs/4 and Galaxy S2 and S3.
Keep in mind that IP Ventures is said to use between 1600 and 1800 proxy companies for suing. Those companies are formally independent of IP Ventures, but the filings indicate that IP Ventures has a financial interest in the outcome (they get their share). If the legislation is not carefully crafted, the proxy companies can just go bankrupt and sell the patent(s) back to IP Ventures.
Source: http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack/
If the claims are truly frivolous the plaintiff should have to pay whatever they asked for in damages to compensate their intended victim for damage to their reputation. And it shouldn't just apply to trolls. The same should go for big sue-happy companies.
Be careful what you wish for, people!
The bigger patent trolls have plenty of money.
The small guy with a legitimate beef does not.
Here's what you do -- imagine you're a patent troll with $30 billion at your disposal. Now pay your multiple genius lawyers to figure out ways around it.
Now revise the law according to that before even bothering to pass it.
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
is good for the gander.
Should a defendant have to pay the plaintiff's attorney's fees if the defendant loses? If the defendant loses, that means the defendant was in he wrong, didn't accept responsibility for being in the wrong but instead chose to fight. Under those circumstances, shouldn't the plaintiff be entitled to their attorney fees as well?
The asymetric awarding of attorney fees is not consistent with the notion of equal justice. Hence, what is good for the goose is good for the gander.
Oh shut the hell up, you're just looking for an excuse to steal software. At least some pirates are willing to ADMIT they're pirates, instead of coloring themselves with fancy names like "software freedom activist".
...did not have a reasonable likelihood of succeeding, the court may award the recovery of full costs to the prevailing party, including reasonable attorney’s fees, other than the United States...
All this bill does is give judges the ability to required the loser to pay up. The legal definition and use of the word MAY is very important. MAY gives the judge discretion, SHALL does not. IANALBMWIAPL and she says this effectively does nothing other then give a judge the same ability to require one side to pay up without having to dismiss the case with prejudice. Nothing more then giving the judge more tools to punish trolls.
-=[ Who Is John Galt? ]=-
"Bill would force patent trolls *and their attorneys* to pay defendants' legal bills"
So the parties are officially merged now?
"Now"? They did that long ago, agreeing to jointly pin the blame on "the other guys", with the common goal of keeping their joint dominance of government/self-interests.
A truly *good* shell company will only have the rights to ONE patent, and only enough money assigned to it to feed the lawyers for the patent suit itself.
There's deeper rules that try to prevent this sort of stuff, but it's complicated to work through. If I understand it right today, in many ways companies that are wholly(or mostly wholly) owned by another company are considered part of that company.
I don't read AC A human right
Those are two different things. Likelihood of success in court is overwhelmingly a function of how much you spend on lawyers versus the other guy.
What this new legislation does is to increase the power of those with money, since even if their suit is frivolous, they cannot be judged to be "unlikely to succeed" versus a poor defendant.
The law was much more fair when "frivolous" was the only relevant metric, without examining likelihood of success. However, since a judge cannot not declare a suit "frivolous" when a plaintiff wins it, the earlier state of the law was broken anyway.
In other words, the whole thing is screwed up.
That could be a simple matter of taking the mayor for a good meal and discussing a zoning issue, or a vending permit.
Which isn't much help when so many of the issues that YRO geeks care about (those arising from copyright and patent) are exclusively federal. Or what am I missing?
We still use computers exactly as we did in the 60s, with only the very largest of companies being able to afford them.
I see the sarcasm in your post, but unfortunately, the "in the cloud" and "post-PC" fads appear headed that way.
All that will do is cause the patent trolls to create a number company with no assets for each lawsuit. So when costs are awarded, they will be bust and the victim will still be burdened with all the costs.
Excuse me, but please get off my Pennisetum Clandestinum, eh!
If you have a patent and you're suing for patent infringement... how the hell did they get their patent in the first place?
Wuddooeyeno? IITYWYBMAD? Like nuts? eclecticallyincorrect.com
You don't make money if the other side has no money to pay you.
Yes you do. You make money when customers have to start buying your products because the other side's products are no longer available. Or do you really think Apple is willing to license key iOS-related patents to Samsung and the like on fair, reasonable, and nondiscriminatory terms?
Bill wants to force patent trolls to pay defendant's legal bills? I know he isn't personally running Microsoft anymore, but doesn't he still have an interest in the company? And isn't Microsoft kind of one of the -biggest- patent trolls?
Wait, not that Bill.
Bill Posters is innocent!
Slashdot = stagnated.
I hope this includes Apple.
Copyright != patent.
nah. Make it that the loser dies along with their lawyer. Should help reduce frivolous lawsuits drastically while reducing the damn population in congress.
Mod me up/Mod me down: I wont frown as I've no crown
It also establishes the Supreme Headquarters, International Espionage & Law-enforcement Division.
The gubmint's move still ain't good enough to let me move up from mp2 to mp3! Since there are so many patent experts reading this story, it should be timely for me to ask, "Has the mp2 patent really expired?" By the way... ahem, cough, rattle ... I use ogg. That whole mp2 thing was hypothetical ...
I didn't see him advocating getting rid of copyright, therefore even without the patent law, he still couldn't "pirate".
Caution: watch for falling unintended consequences. Think trolls won't game this?
Oh, look, we did something about patent trolls. We invented a new band-aid!
You're right. I'm a pirate. I'm a "not wasting $20 on a CD for one song activist". I'm a "not spending $2000 on software just to learn ho to use it and be out that money if i lack the required skills activist" (that one's a dig at Adobe). I'm a "someone wrote that code and released it to you under a license requiring you to distribute the code with any product derived from it activist".
You'll probably ask how the first two can coexist with the third. Well, it's simple, let me explain.
If I hear a song I like, I find out what album it's on. I try to find a legitimate source where I can preview the entire album, but one literally never exists; failing that, I find an illegitimate source for it. Once I obtain a copy of the album, I listen to it, a few times, maybe 3 or 4, in different environments and under the influence of different moods. I, then, weigh the cost of the individual songs I like against the cost of the whole album, and buy whichever is cheaper, destroying (typically deleting the files, sometimes shattering a CD) the illegitimate copy once I've made my purchase. If I only like the one song I heard on the radio, I'd feel ripped-off (and rightly so, but if you disagree, please explain why) if I dropped $20 on an album with only one good song, especially when I could have bought the track for $1.29. Likewise, if the majority of the album is good, say 16 out of 20 tracks, it's worth $20 as the individual tracks would cost $20.64. The lower the price of the album, the fewer good tracks are required for me to justify my purchase. Say, for a $10 album, there are only 7 listenable tracks, it's worth it for my to buy them individually for $9.03; but if there are 8 or more, I buy the album for $10.
Let's talk about software for a moment. Another "product" you can't return if you don't like it. Why should I drop $1899 on CS6 Design & Web Premium just to learn how to use it? Yes, I know there's a 30 day trial; no, that's not long enough for a beginner to learn the tools. How about a more reasonable personal use license, something like, oh, 10% of the commercial use license, and watermark any images produced? But I'm not here to dictate terms, just to point out that they need to change. Let's look at this from the point of view I had 2 and a half years ago. Flat broke. I can make money working with Adobe products, if I learn them; but without money, how can I get them to make money with them? Piracy. And once I learn them and become productive with them, I can afford to buy them. And what did I do? That's $1899 they got from me last year for CS5, that they wouldn't have otherwise gotten; another $250 for the upgrade to CS6, which they also wouldn't have gotten had I not pirated CS4 2 and a half years ago.
With FREE (as in freedom) software, the source code is available, which typically means someone has a binary available for you to try, as well. Even paid FREE software, there's always the source so you can compile it yourself, or someone else has a binary they can provide. Use it as long as you need to, determine if it works for you, then pay for it; either pay the asking price, or if it's offered free as in beer, donate to the project.
It's not about getting free swag, it's not about justifying stealing bread off the table of another, it's about justifying putting bread on the table of another, rather than my own table. Every piece of media, be it music, movies, software, whatever, that I have purchased in the last decade has been a direct result of piracy. Without that, it's not like I would have bought every album ever produced that contained a song I liked, I simply wouldn't have bought any; Pandora does a good enough job at keeping me musically satisfied, and she does it for free. It's not like I would have bought CS4 2 nad a half years ago, I was broke and unemployed; had I not pirated it and landed a couple of design gigs shortly after becoming proficient in it, I would not have purchased CS5 or CS6, either. As for FREE software, I've donated and/or contributed source back to
APK quotes people (including myself) without context and should not be trusted. Just thought you should know.
I think I've just had an idea for Kickstarter.
If possible, would you similarly go to a live musical or sporting event, then decide afterward if you feel like paying or not? Why or why not?
If I'm going to a live event, I'm taking up space, which is a limited resource that costs money (bits are infinite and have no tangible value) and, if a price is put on my occupying that space, I pay it. In a packed venue, that space I'm standing in is space someone else could be standing in; if I'm there without paying, that's one admission fee or ticket sale lost. You're comparing the physical to the virtual and that's where your comparison breaks down.
APK quotes people (including myself) without context and should not be trusted. Just thought you should know.
Can we please have a Quiet the Use of Improbably sTretched Initialisms, Twats (QUIT IT) Act next?
If you consider the point of attending the performance or consuming the audio / video, it's for your ability to experience that art. While there are additional reasons why it's even more important to pay for a live performance (the scarcity example you provided) it doesn't change the fact that you intentionally went out of your way to experience the medium.
None of this is a justifiable reason to pirate the medium. If you want the audio / video / experience, you should pay for it. It's not being forced on you.
And, as stated a few posts ago, I do pay for the audio/video/experience I want. I hear that song on the radion, I want it, I set out to purchase it, but before I do, I determine which purchase best suits me (the single track, or the whole album). This generally results in *more* sales, not less.
Did you eaven read my post, or did you see the phrase "I'm a pirate" and just go off?
APK quotes people (including myself) without context and should not be trusted. Just thought you should know.
Ugh... typo... "radion" should be "radio"...
APK quotes people (including myself) without context and should not be trusted. Just thought you should know.
If I hear a song I like, I find out what album it's on. I try to find a legitimate source where I can preview the entire album, but one literally never exists; failing that, I find an illegitimate source for it. Once I obtain a copy of the album, I listen to it, a few times, maybe 3 or 4, in different environments and under the influence of different moods. I, then, weigh the cost of the individual songs I like against the cost of the whole album, and buy whichever is cheaper, destroying (typically deleting the files, sometimes shattering a CD) the illegitimate copy once I've made my purchase.
Different moods? Different environments? It stands to reason there is some significant time period in which you've made a copy of the art and are toying with the idea of which media you'd like, and whether you will purchase the rest of it or only the song(s) you originally heard. During that entire time you've "listen[ed] to it, a few times, maybe 3 or 4, in different environments and under the influence of different moods" you've pirated the art. The fact that you eventually get around to purchasing at least part of it is nice, but it is not factual to state that you aren't pirating it because you obviously are, at least for some significant period of time.
If you, as you say, wish to peruse the media, there are free, sometimes up to 1-minute samples of songs at pretty much all the legal places to buy music online. There is no defensible reason to grab a pirated copy of the album and sample it to see if you might possibly be interested in paying for a portion of it at some point in the future.
tl;dr? You're still pirating the music, even if you bought 100% of it later... which you've stated does not always occur. There's no justification for your actions, they are just selfish.
My most recent album purchase (2 days ago) was about to be a single rtack purchase, because the samples provided were all weak points in the songs. Had I not thought beyond the weak samples provided and pirated the album, I would not have turned aroudn and purchased the whole album an hour later. Argue what you want, but the terms under which I preview and purchase my media lead to more sales, not less. This may not apply to everyone, but it certainly applies to me.
APK quotes people (including myself) without context and should not be trusted. Just thought you should know.