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.'"

Comments

Rep. != Republican

[SJHillman]

" 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?

Re:Rep. != Republican

[dgatwood]

Introduced by a Democrat and co-sponsored by a Republican is a good thing. It might have a better chance of getting through committees and the Senate, even though this looks a lot like election year posturing.

Actually, it's a bad thing. Whenever those two parties agree, only one thing is certain: the American public are going to get screwed. This is one of the worst possible patent reform laws that could realistically be passed. Anyone who truly understands intellectual property would know that the way to prevent patent trolls is through fixing the loopholes that they take advantage of. This means:

• Pass laws that strengthen the doctrine of laches so that those who should reasonably have known that patent infringement was taking place have about a one year window to bring a lawsuit, or else they can never sue that particular plaintiff again. Patent trolls almost invariably wait to sue until the alleged patent violator can no longer realistically remove the functionality or engineer around it, and until the alleged patent violator's sales volume is high enough to make it a very expensive case if they lose. Remove that incentive, and you cut trolls off at the knees.
• Pass laws that absolutely require a functioning implementation created by the plaintiff, not just a description of that implementation, before the plaintiff actually gains the right to sue. At the core of patent trolling is suing over ideas with no concrete implementations. Remove that ability, and you deal the trolls a death blow.
• Pass laws that redefine obviousness more broadly so that if anyone unaffiliated with the patent holder published a paper suggesting a similar solution prior to the earlier of A. the patent approval date or B. the date at which the patent holder first released a product exemplifying the patent, the patent can be invalidated by a simple administrative process. Redefine obviousness to mean "obvious to an expert in the field, given the problem it attempts to solve", not "obvious to a person with average skills, without being told the problem it attempts to solve". This would, of course, eliminate 99% of software patents, but given that 99% of software patents are patently crap, that would undoubtedly be a good improvement.
• Pass laws that allow anyone to challenge a patent through an administrative process at any time, by paying a fee not to exceed $100, and by providing evidence of prior art that should have invalidated the patent, had it been considered when the patent was originally evaluated.
• Pass laws that mandate a longer public comment period after a patent is published, extending up to the date at which the patent is actually approved, in which the general public is allowed to discuss the patent and submit additional prior art at a convenient website.
• Pass laws that reduce the duration of patents depending on the rate of progress in the industry. The software industry goes through complete design cycles every four or five years. If patents lasted only four or five years, it would greatly reduce the ability of a patent to cripple the industry.
• Pass laws that limit the ability to sell patents such that a company who buys a patent can only sue over that patent if they continued to manufacture a product or provide a service that exemplified that patent for at least a year or two after the purchase of the patent (or if they are actively manufacturing or providing such a product or service at the time of the lawsuit, during that initial period of time). This greatly reduces the viability of holding companies that exist solely to monetize patents.
• Make patents expire automatically if the patent holder ceases to manufacture products or make services available that exemplify the patent for a period of a year or more. This basically eliminates the viability of holding companies that exist solely to monetize patents.
• Ideally, pass laws that r

Please FIX the system dont PATCH it

[Anonymous Coward]

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...

Re:Please FIX the system dont PATCH it

[Irishman]

I definitely agree with this comment but I think that the bill being proposed is something that should be expanded far beyond patents. Allowing judges to force the plaintiffs to pay for an unsuccessful suit against the defendants in all cases would help limit spurious legal cases. If groups like RIAA had to pay when they lost the case against someone, it would go a long way to reduce these legal manoeuvres against people who cannot afford it.

Re:Please FIX the system dont PATCH it

[AlecC]

The court has first to determine that the case was frivolous (assuming the law is properly drafted). Courts are familiar with the idea of honest but wrong complainants, and would not wish to punish them. Insofar as the court has an interest - which they are supposed not to, but obviously do - they would not wish to have the strangling effect that you describe, because it would reduce their work. So i don't think you need worry about the court classifying every loser as frivolous.

Heh, the bill isn't bad

[gcnaddict]

6 ‘‘ 285A. Recovery of litigation costs for computer
7 hardware and software patent
8 ‘‘(a) IN GENERAL.—Notwithstanding section 285, in
9 an action disputing the validity or alleging the infringe-
10 ment of a computer hardware or software patent, upon
11 making a determination that the party alleging the in-
12 fringement of the patent did not have a reasonable likeli-
13 hood of succeeding, the court may award the recovery of
14 full costs to the prevailing party, including reasonable at-
15 torney’s fees, other than the United States.

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.

Re:Garunteed Backfire

[dokc]

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.

I don't see any difference to current situation.

Re:Garunteed Backfire

[Anonymous Coward]

Have you *followed* any of the more fascinating patent cases? Take a good look at the SCO versus everybody lawsuits. The ability of a judge to bend over backwards to favor their friends in court is *stunning*.

The leverage this provides for large companies against small patent holders is amazing.

Oh noes!

[AbRASiON]

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.

Re:Garunteed Backfire

[Trepidity]

The bill gives the judge discretion to determine if it was a frivolous lawsuit, so if judges use that discretion properly (admittedly, subject to question), people who sue and lose won't be assessed the costs if the suit was at least a reasonable one.

Re:Garunteed Backfire

[LordLucless]

Well, if they get a judge to agree that the little guys suit was frivolous, yeah. This legislation doesn't mandate loser pays, it gives judges the option to enforce loser pays if they determine that the plaintiff knew the suit was likely to lose when they brought it.

And if you reply by saying that the big corp will just buy out the judge too - well, there's your problem. No matter what legislation is passed, you can't have justice if the officers of the court are corrupt. That's not a problem with this legislation, it's a problem with the legal system as a whole.

Re:Does this include Microsoft?

[bjwest]

You people think this is funny? This is EXACTLY how our political system works. It's perfectly legal for corporations to bribe our lawmakers to make decisions favorable to them, it's just called lobbying. Let Joe Shmoe try giving $200.00 to influence his representatives decision and see where he ends up.

Re:When will the fix the real problem?

[Anonymous Coward]

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".

Re:Does this include Microsoft?

[Anonymous Coward]

Yeeeeeeeah, because poor, poor Apple had to defend themselves from those big mean companies that wanted to use THEIR simple geometric shapes that they invented. I remember growing up in my parents' icosahedral house, wishing, nay, PRAYING that someday, some wonderful, glorious company would invent a shape that was simple, four-sided, and comprised of two pairs of edges wherein each pair had the same length, as that would simplify our maintenance costs significantly.

And because you shills still don't get it, we ARE fully aware that Motorola Mobility isn't owned by Google yet, nor were the lawsuits they filed before that announcement Google's lawsuits. So give it up already, we're not falling for it.

Re:Does this include Microsoft?

[Anonymous Coward]

The corps aren't the issue with this bill. The trial lawyer association will oppose this, and TLA runs much of the democrat party. It will die a quiet death in the senate.

Re:Does this include Microsoft?

[Gripp]

Except in those cases it is considered bribery if an individual, or at the least a conflict of interest, if a small/medium business. NO one is "above" the law. We just make new ones the higher you get.