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New Bill Would Require Patent Trolls To Pay Defendants' Attorneys
Zordak writes "According to Law 360, H.R. 845, the 'Saving High-Tech Innovators from Egregious Legal Disputes' (SHIELD) Act of 2013 would require non-practicing entities that lose in patent litigation to pay the full legal costs of accused infringers. The new bill (PDF) would define a 'non-practicing entity' as a plaintiff that is neither the original inventor or assignee of a patent, and that has not made its own 'substantial investment in exploiting the patent.' The bill is designed to particularly have a chilling effect on 'shotgun' litigation tactics by NPEs, in which they sue numerous defendants on a patent with only a vague case for infringement. Notably, once a party is deemed to be an NPE early in the litigation, they will be required to post a bond to cover the defendants' litigation costs before going forward."
Sudden outbreak of common sense?
A small shop can not afford to take a case to court even without paying the defendant's lawyers. An IP lawsuit costs millions of dollars to pursue; more money than any normal person will make in his entire working lifetime. The courts are for the big fish. For the rest of us, any involvement with them leads to bankrupcy.
Why am I having a hard time believing this is real and has a hope of being passed into law?
Am I really so cynical/jaded that a good-sounding idea from government and/or lawmakers just feels like some sort of a trap? It say something about how the world's been run lately.
No sig today...
The bill is designed to particularly have a chilling effect on 'shotgun' litigation tactics by NPEs, in which they sue numerous defendants on a patent with only a vague case for infringement.
So to achieve that, instead of addressing shotgun litigation by any litigant, they create an inhibition to all NPEs. That would include things like the The Open Invention Network, and would exempt practicing entities like SCO. Does that sound right?
This legislation would create unequal patent protection for big corps versus independent inventors. Once a patent is sold by its original inventor, it can only subsequently be sold to big corps or it loses some of its power. This means big corps will have an advantage compared to independent inventors, who will have less ability to market their inventions.
If the problem is shotgun patent enforcement, regulate shotgun patent enforcement. If the problem is overbroad patents, narrow the allowed scope of patents. Address the real problem with equal treatment for all litigants under the law. Don't create a preferred class for big incumbent corps and inhibit independent competition.
This is nothing more than another land grab by big incumbents who use our government to inhibit free market competition.
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I like this bill but I would take it a step farther. If the patent troll loses, not only do they have to pay the defense, they need to compensate the poor SOB they sued, AND they need to lose access to the original patent they where suing over.
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Geesus christ, whats with the negative vibes coming from the Slashdot crowd???
No, they do not fix everything at once, so fucking what? They are at least trying to fix part of the problem.
Yeah would be nice to have all the worlds problems solved in one go, but you know what, it's much easier to fix it if we solve it one step at a time.
Wow, did you read anything at all or did you see "patent" and just start posting? If you read anything and are posting, you must be a shill. If you didn't read, shame on you. "loser" in this case is limited to a defendant where it's deemed that the company initiating the suit is a troll. The wording in the article states very clearly that if you are deemed a NPE (more on that in a moment) then you must pay a bond to cover the defendant's cost in order to pursue the case.
NPE: You are a widget maker, and competing with 10 other widget makers in the market place. Trollguy buys a patent for a screw that you use in your widget and he sues every one of you dirty widget makers for infringing on his patent for a widget-screw. He does not make widgets, did not invent a widget, and in fact his current business is buying patents and suing people. He would be by definition a NPE. As a NPE, he needs to bond the defendant's legal fees, for every one of those cases of alleged infringement, in order to pursue the cases.
That is a good thing!
In addition: If the infringement claim is dies in court you, Mister Widget, immediately recoup your legal fees by cashing in the bond.
Now if Joe's Widgets sues you for stealing their rounded corner widget design, they are not a NPE. They do not have to bond your legal fees. So the law does not harm normal competition and does not punish inventors. It's at least "some" protection from the current joke that has become patent trolling.
Since I have not fully read the Bill I can not claim that the wording is secure and clear enough to really do anything. Politicians are generally shitheads, and even the best written and intended Bills can get screwed up by their idiocy. That fact is rarely the Bill's fault, but rather the people's fault for voting in shitheads over and over and over again.
-The wise argue that there are few absolutes, the fool argues that there are no probabilities.
That depends. Some lawyers are willing to take defense cases on a contingent fee basis. I was sued once for defamation. Because the case was filed in a state where there were strong anti-SLAPP laws, my, normally 500/hr lawyers took the case for (mostly) free with a relatively small retainer. They were so confident the case was bs, had no chance of winning, and that they could get paid through the anti-SLAPP statute, they were willing to take the small risk of losing. The case ended up costing the plaintiff probably close to half a million by the time the dust settled (the judge even granted them a 1.5x multiplier for their risk). The point is there are lawyers out there who are willing to take these sorts of cases if there are statutes out there that will allow them to get paid. I think this sounds like a good law, even for the small guys.
The "lone inventor around the corner" using his patent to fight the big corporations is kind of a myth nowadays. Patents are used to stifle innovation and protect entrenched businesses, not to prevent corporations from stealing the little guy's ideas. I'm pretty sure the vast majority of patent-holders are corporations.