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Finally, a Bill To End Patent Trolling
First time accepted submitter jellie writes "According to Ars Technica, a new bill introduced by Rep. Bob Goodlatte (R-VA), the chairman of the House Judiciary Committee, has received bipartisan support and has a real chance of passing. In a press call, lawyers from the CCIA, EFF, and Public Knowledge had universal praise for the bill, which is called the Innovation Act of 2013. The EFF has a short summary of the good and bad parts of an earlier draft of the bill. The bill will require patent holders who are filing a suit to identify the specific products and claims which are being infringed, require the loser in a suit to pay attorney's fees and costs, and force trolls to reveal anyone who has a 'financial interest' in the case, making them possibly liable for damages."
As long as there are patents on software and processes, the patent trolling will never really end.
Do what thou wilt shall be the whole of the Law - Aleister Crowley
Trolling will end only when the patent system ends
It's a good start - in the "trolls" who hold patents but don't have any actual products wouldn't be able to meet this bar. However, it still would not prevent a troll from selling said patents to someone who HAS such an infringing product - to whom violation of such a patent would be valuable, and valid for suit.
Wake me when it's done then.
I'd argue, the loser should be on the hook for the winner's expenses by default. Currently the court may make them responsible, but the winner typically needs to specifically ask for it — and it should be the opposite. In all cases: civil and criminal (if the accused is acquitted, the prosecuting office needs to cough up).
At least, this should apply (whether the subject is patent or not), when the losing the side is the one, that initiated the proceedings in the first place.
This bit also seems generic — if such a disclosure is a good idea (and I am not sure), then why limit it to just patent cases?
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Doesn't mean there can't be steps taken to help the victims or impede the belligerent parties. If it becomes more expensive or less profitable for the trolls then: there's less incentive for newcomers to enter the business, less incentive to stay in business, lower margins, less incentive to go after the same volume of litigation, and thus activity should lower.
I read TFA and all I got was this lousy cookie
NPEs selling their patents to practicing entities is exactly the behavior I'd want to encourage. It would at least draw a line between legit tech companies like ARM, which produce know-how in addition to patents, and companies like Lodsys, which exist solely to rest on laurels.
"We made a device with curved corners first, now you can't make one, na-na-na-na-na-na!"
Although patent trolls are bad, there are a lot bigger entities to fear with the current definitions of patentability.
Herewith, the law firm of WBR1 et. al., and its controlling interests issues a cease and desist letter to Bob Goodlatte, the EFF, and all pertaining parties.
It is our contention that we hold a patent on the process of bill writing pertaining to patent reform, and also on the process of reviewing and lauding it online
WBR1 would be happy to settle now for a to be determined sum before trying this case. Checks can be made payable to Shell Account #13837888 Cayman Islands Bank
Silence is a state of mime.
Microsoft is among the notables crippling the bill by prohibiting new buisness method patents from being challenged for review.
but it will mka eit harder for smally time inventors to get protestion.
" require the loser in a suit to pay attorney's fees and costs"
These fucking groups should get some input form the people this impacts the most: Hint: Not large corporations.
Loser doesn't not mean they where wrong or not infringe against. It could just mean they could afford an attorney.
The Kruger Dunning explains most post on
I think importantly this law is going to protect the end consumers of products. Slashdot had an article a while back where a troll was essentially carpet bombing small businesses looking for licensing fees if they used X and Y types of products and connected them with a Z network to perform A task. Since the troll can't actually identify a specific infringing product any lawsuit would fall flat on its face.
"Lack of speed can be overcome. In the worst case by patience." --Znork
Now we just need to stop issuing obvious patents like being first to market with a device that has curved corners. I don't remember the exact details, but back in the 19th century, the individual that first put an eraser on the end of a pencil had his patent application denied because all he did was put an eraser on the end of a pencil. We need a patent process that is sensible to begin with. Unfortunately, I suspect a lot of what is being submitted for patents is technologically over the heads of those issuing the patents, which is where a lot of bad patents come from. I also believe technology related patents are being intentionally written in an excessively complex and obfuscated manner to try and sneak them through. In a nutshell, we need an army of nerds in the patent office... now.
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Goodlatte is a very mixed bag. Very pro strong encryption when that was highly controversial for politicians back in the 1990s. However, he also played a key role in giving us the DMCA and wrote the NET Act (No Electronic Theft Act) which made mass file sharing for no profit even between friends a felony. It'll be interesting to see how this plays out because he's like a compromise between the Republican leadership and the Tea Party. He may in fact be the only Republican who can force a majority of both sides in the party to hear reason.
I've never understood how you can file suit without explicitly listing this.
We've heard about far too many lawsuits which vaguely reference a "set of infringing patents", and I seem to recall that (despite asserting Linux infringes) Microsoft has never actually enumerated the patents Linux is supposed to violate.
Forcing them to disclose who has financial interest in it is a good idea, because one gets the impression a lot of these have a behind-the-scenes actor which doesn't get revealed.
Lost at C:>. Found at C.
1.Require anyone who is saying "xyz is violating my patents" to disclose exactly which patents are being violated and exactly which products are violating those patents and how, regardless of whether a lawsuit is being filed or not.
This would, for example, mean if Microsoft wants to say "Linux violates our patents" they would have to show exactly which patents they are claiming Linux is violating and which parts of Linux are violating which patents.
2,Make it illegal to sue customers and users if the manufacturer has a license for the patents. So, for example, if a company makes a video camera that records H.264 compressed video and purchases a patent license from the patent holders of H.264, those same patent holders can't sue someone who buys that video camera and uses it. Or a patent troll suing the developer of an app because that app uses a feature that is provided by the OS (in that case they would be required to sue the operating system vendor instead)
3.Introduce an "enforce it or loose it" rule for patents that requires patent holders to vigorously defend (either via licensing or via lawsuits) their patent or risk loosing the ability to sue those entities in the future. This would prevent the situation where patent holders go after small fish that they know they can beat, then using those wins as precedent and leverage against the big boys. This would also prevent the situation where someone holding a patent sits on the patent until the technology is more wide spread and then files lawsuits (remember what happened with LZW and GIF?)
4.Introduce a system where anyone (even if they aren't using/violating the patent) can submit prior art to the patent office for review. The patent office would then review that prior art. If the prior art is found to be genuine and the patent is invalidated, the holder of the patent must pay the patent office money to cover the review. If the prior art is not genuine, the entity that submitted the prior art has to pay.
Due to the costs incurred if the prior art is not genuine, there is a dis-incentive to submit frivolous or bogus prior art requests. If the fees paid are structured correctly then there would also be an incentive to properly review all prior art requests.
and 5.Require that anyone who claims to have a patent over any part of a standard, where that standard has been mandated by the government for use in certain situations, MUST license that patent for use in implementing the standard to anyone who wishes to acquire a license (including open source software) and must license under fair terms (with a suitable legal definition of whats "fair" that is not open to influence from either party)
As long as it is "first to file," rather than "first to invent," patent trolls will have the upper hand.
Mordor where the shadows lie.
Customer-suit exception. There's no question that one of the practices that has been seen by Congress as abusive is the tendency to use patents to go after end users of a technology rather than the company that created it. Under the Goodlatte bill as drafted, if a manufacturer and customer agree, litigation against a customer can be stayed while the patent holder and the manufacturer battle it out.
That's a good start, but needs to go further. AFAIK this is a recent practice (some idiot judge said it was ok), but it's absurd to expect a customer to be responsible for whether or not any product they buy infringes on a patent. That's the manufacturer's responsibility. How many products do you own that could, according to some troll, infringe on "their" patents. Of course they won't go after John Doe, but it's another issue when the customer has deep pockets. This happened to a company my friend works for. They lost, or at least had put on indefinite hold, sale of a lot of equipment to a very large customer, because a patent troll threatened to sue the customer. The manufacturer might take them on, but do you think any customer, no matter how large, is willing to deal with that? Talk about restraint of trade.
That will prevent the most egregious parts of patent racketeering, but there are still many cases where the patent(s) are disclosed and the real problem is that the patent was so broad that it should never have been granted in the first place.
This could easily backfire, especially when patent trolls have an army of high-paid lawyers. Just the threat of having to pay millions of dollars for the plaintiff's legal fees means that you had better have some really good representation as well. And if you lose, you end up paying all of your own legal fees as well as the army of lawyers working for the patent troll. In most cases, it would just be cheaper to settle which actually strengthens the capabilities of patent troll racketeering.
That's what I thought about the bill that would have enabled stricter gun control laws since that had bipartisan support and overwhelming public support and yet that bill failed to get passed. Let's not count our chickens before they hatch.
It'll either get killed off immediately, or loaded down with so much pork that whenever people mention the bill, everyone in earshot busts out with "It's BACOOOOOOON!"
Chas - The one, the only.
THANK GOD!!!
Every single one of these proposed bills sounds great as long as you start by thinking about [insert outrageous patent troll story here] and think about how the provisions of the bill would have [made that situation better | kept it from happening].
As the saying goes, "hard cases make bad law."
Picture yourself as a stereotypical garage inventor. You had an amazing idea. You get a patent. You don't have the money to commercialize the idea.
Unintended consequence #1: You try to find a partner to commercialize it. BigCo looks at your idea, flirts with you a bit, then turns you down. Next year, something suspiciously like your idea (but not 100% identical to it) floods the market. Now nobody will talk to you about partnerships because there's no real market opportunity left. You want to sue BigCo for a royalty, but you now can't find anyone to take your case because of the fee-shifting provisions. Even a slam-dunk case has a 15-20% chance of going the other way, and this isn't a slam-dunk case. BigCo's legal fees are likely to run in the $3-5MM range, and they're likely to make sure you understand how much they're spending just to make it more likely that you'll settle or go away. Feeling lucky?
Unintended consequence #2: You need money. You have a patent for a great idea, but now you can't easily monetize it. You can't readily enforce it for the reasons stated above. Companies are less likely to license it [for as much] given the reduced odds of litigation. You can't sell it [for as much], because the fee-shifting calculus has significantly impaired the potential value a buyer might experience.
Now, if your world-view is that patents are evil and should be eradicated, you may be OK with all this. But be honest about what's really happening as a result of legislation like this. Patents aren't really being eradicated -- they're being consolidated. The CCIA wants this passed? Of course they do. They're already well-positioned for patents to become a rich man's game.
First, loser-pays only incentivize businesses and people who are not rich to settle out of court and admit defeat without a trial. That is not justice.
Second, small-time inventors don't always productize their inventions, either because they don't have the money, don't have the time, or for other reason. This shouldn't stand in the way of them profiting from their hard work and inventiveness.
This is just another pro-corporate bill churned out of our for-profit, insider-trading Congress.
This is an awful bill from the inventor perspective. With the "loser pays" rule, trying to enforce a patent, which costs about $1 million and up, becomes even more expensive. Now, suing a big company means you may have to pay for their lawyers. Patent cases are won by patent holders about 40%to 50% of the time, so you have to risk bankruptcy to enforce a patent.
This is worse than the previous "SHIELD act" from earlier this year. That exempted three groups from the "loser pays" scheme - the original patent holder, anyone manufacturing the patented thing, and universities. This new bill doesn't have those exemptions.
Who's pushing this? The American Association of Advertising Agencies. The Consumer Electronics Association, which by now mostly represents Chinese manufacturers.
Congress has been making it harder to make money as an inventor for over two decades now. First came the Bayh-Dole Act, which allowed universities to patent inventions made with Government funding. So now you have to compete with big Government funded universities.
Then Congress took away the possibility of triple damages for willful infringement, by redefining "willful infringement" as requiring "recklessness". So worst case for the infringer is to pay what they would have paid if they licensed.
Then there was a court decision that restricted injunctions in patent cases. A patent is supposed to be the right to exclude others from doing something. But in the US, it's hard to do that. Back when injunctions were available, Kodak tried copying Polaroid's instant-film technology. Kodak lost a patent lawsuit and had to stop making the film and buy all the cameras for it back.
Then, with the "America Invents Act", Congress added more "post-grant opposition" proceedings. So now, if you try to enforce a patent, infringers can stall and harass you through those proceedings.
Most of the whining about "patent trolls" comes from people who want to copy a good idea, instead of coming up with their own.
Next issue: Making software patents entirely illegal. Math is a public good.
It's better to vote for what you want and not get it than to vote for what you don't want and get it.
- E. Debs
> The fact that multiple conflicting patents exist for the same invention means either:
>
> 1: The patent lawyers who "honestly" did the patent search are incompetent, or,
>
> 2: The patent lawyers who did the patent search did not do it honestly
or
3: They missed one. It's kind of hard to read and fully understand every patent ever issued and how it might relate to your client's invention.
I don't understand what logic makes the "business owner" liable at all. Obviously the patent itself is crap, but if anyone should be a target it would be those that made the printers with the "infringing" feature.
A software developer who holds a patent on his invention can often cut the royalty he needs to pay for someone else's patent by cross-licensing his own patent. I realize this does not help the free software movement.
And yet they expect the rest of us to do it to avoid infringing?
the chairman of the House Judiciary Committee, has received bipartisan support and has a real chance of passing.
This is absolutely true, because zero is a member of the set of real numbers.
Welcome to the Panopticon. Used to be a prison, now it's your home.
It also doesn't help when the patent holder doesn't make anything but lawsuits.
Incidentally, the abusive NPEs that you describe are exactly what this bill is designed to end.
If intellectual property (such as patents) are really property, why does it matter if you're using the invention or keeping it for later?
If you own a bike, it does not and should not matter whether you ride it, store it in your garage or use it for parts.
If ideas can also rightly be owned, then it does not matter whether the patent holder uses the idea to produce anything yourself or stores the patent in a drawer.
Patents are the problem, not non-practicing patent holders.
These comments are mine; I do not speak for my employer.