Government Lawyer Says Patent Trolls Are a 'Concern'

New submitter gale the simple writes "While it is fairly common for the jaded and cynical to ride on the lawyers these days (often including Henry VI's famous line about them), every now and then we can see that they are not always the plague and scourge of the earth. EFF again shows that even lawyers can do good in this world. (PDF) All jokes aside, something seems to have moved. Maybe all that bloodletting between the major corporations (Apple vs Samsung) made the leaders recognize that MAD world of patents might not be very stable." From the EFF: "The Congressional Research Service (CRS), the research division of Congress known for its objective studies, recently released a report on the effects of patent trolls on innovation and the economy. ... According to the CRS report, 'The vast majority of defendants settle because patent litigation is risky, disruptive, and expensive, regardless of the merits; and many [patent trolls] set royalty demands strategically well below litigation costs to make the business decision to settle an obvious one.' Businesses lose both time and money, and innovation suffers."

Comments

not quite MAD

[jythie]

MAD only works because everyone dies, no one profits. The patent situation is almost an inverse MAD... the worse things get the more profit there is to be made and the more risk there is to not playing the game. Any public company basically has to behave this way, otherwise their shareholders will string them up or one of their competitors will become more profitable because they ARE playing.

Re:not quite MAD

[Zontar_Thing_From_Ve]

I think you are 100% correct. I still remember from some years ago where RIM went to court rather than settle with some infamous patent troll and they got hit with a staggering judgement in a jury trial. I think it was at least 5 times what the troll wanted to settle out of court. Being an American and having served on juries, I can tell you that most people on juries are pretty dumb and incapable of understanding the issues they are presented with. You really don't want to risk that some crazy jury will award 10x or more in damages what it will cost you to settle. RIM thought they could win too and that the patent would be invalid but they lost. To me, that was when things began to go wrong for them. They shrugged it off, but I see their downward slide beginning at that very moment. Nobody wants to go to court and roll the dice with the chance that a company killing judgement might be the outcome.

Re:not quite MAD

[CohibaVancouver]

I can tell you that most people on juries are pretty dumb and incapable of understanding the issues they are presented with.

Part of the issue is it's supposed to be a 'jury of your peers.' So if the trial concerns a complicated technology issue, then the jury should be highly skilled technologists - Those are the plaintiff and defendant's 'peers,' not some guy who sells ABS pipe at Home Depot.

Re:not quite MAD

[Anonymous Coward]

That's fine as long as you also support only gang members trying gang members and only sexual predators trying their own kind. In all seriousness, while I do think that maybe there needs to be a competency test given to serve on a jury to ensure one is able to understand the subject matter in play you're vastly simplifying the problem and bastardizing the meaning of peer within this context. The idea of a peer is a peer within a specific system. Given that the American (apologies to our overseas board members but this is the one I know about) justice system is structured to support and judge American society, your peers within that system are other American citizens. The whole idea was that there not be different levels of courts for different people. That was tried in the past and didn't work out so well for the little guy.

Re:not quite MAD

[CaptSlaq]

I can tell you that most people on juries are pretty dumb and incapable of understanding the issues they are presented with.

Part of the issue is it's supposed to be a 'jury of your peers.' So if the trial concerns a complicated technology issue, then the jury should be highly skilled technologists - Those are the plaintiff and defendant's 'peers,' not some guy who sells ABS pipe at Home Depot.

I used to hold this belief, until someone pointed out (here) that having "professional juries" is potentially a dangerous thing. Working in industry [x], you know that [y] happens even if it's TECHNICALLY not supposed to. You've done it yourself because you understood the risks and in your case it wasn't a huge deal. Now [y] blows up in someone's face causing [z] and the professional jury comes to the point of "well, we all do it so we'll let him off, despite the fact that it caused [z] with the results of [a], [b]. and [c]".

I agree that there are problems, particularly in highly technical cases, that are not easy to articulate. If the lawyers involved can't bring it down to a level that the common man can understand it, they don't understand the problem properly either.

Applause please..

[wbr1]

Sure, this report may say that current patent law stifles innovation, but that is a long, long way from rewriting the law. In my cynical view thes report will get shelved, and if any legislation does occur, the large corporations and lobbies with an interest in maintaining the status quo will line enough pockets to make sure it fails or gets watered down and altered enough to suit their needs. Remember entrenched power, money, and "it will hurt the economy to change", trump common sense and innovation.

Re:Meaningless

[Anonymous Coward]

Great, identifying the problem is the first step. However, what are the odds of our benevolent government doing anything about it? Unfortunately, without the second step this news is meaningless.

The more the information is disseminated, the harder it is for Congress to deliberately make bad policy decisions. CRS is one of the last of the non-partisan fact-based research services. Newt Gingrich, the mastermind that he is, systematically got rid of them because he knew what their absence would allow him to do.

So if you want to "out benevolent government" to do anything about it, YOU need to spread the word as much as possible.

Nothing has "moved"

[guttentag]

There are many "good" objective people who work for the government and submit reports to Congress (lawyers, scientists, accountants... Even IRS agents), however, it is important to understand that "objective people" do not make decisions for congress. They are not the "leaders" that the submitter is calling them and they have no power. The "leaders" are the representatives and senators, whose job is to cherry pick the reports for facts/out-of-context-statements that agree with their opinions. This has been going on for quite some time... After all, Benjamin Franklin wrote of the three degrees of lies, "there are lies, damned lies, and statistics."

The biggest troll is the USPTO itself.

[denis-The-menace]

It too profitable accept any patent, prior art or not.
-The USPTO get fees paid for every submission
-If the patent is invalidated, the USPTO is not affected in any way.
-The USPTO has a monopoly on the situation.

Whenever you have a business doing something that the government should be doing you get issues like this. (e.g. The Fed, Private Prisons, etc.)

Oh, the USPTO *is* part of the government?
It sure doesn't act like it.
http://www.longest.com/2011/05/11/federal-government-slows-innovation-on-intentionally/

Re:Make them pay.

[SecurityGuy]

This gets trotted out fairly often. The counter argument is this:

You (John Q. Public) create something actually innovative and legitimately patentable, and do so.
So does Apple, or Google, or any other huge company.
You realize they're using your invention, so ask them to pay you for it. They say no. Litigation ensues.
You spend a few thousand on your brother Vinny's legal services. They trot out a crack stable of lawyers at $300/hour/lawyer. They do a tremendous amount of analysis and preparation before their slam dunk victory.
You get stuck with a $500,000 bill because they bought better lawyers than you did.

In short, a system like this is massively disadvantageous to the little guy. Loser pays for frivolous lawsuits? Perhaps. Merely for losing? No.