Patent Trolls On the Run But Not Vanquished Yet

snydeq writes Strong legislation that will weaken the ability of the trolls to shake down innovators is likely to pass Congress, but more should be done, writes InfoWorld's Bill Snyder. "The Innovation Act isn't an ideal fix for the program patent system. But provisions in the proposed law, like one that will make trolls pay legal costs if their claims are rejected, will remove a good deal of the risk that smaller companies face when they decide to resist a spurious lawsuit," Snyder writes. That said, "You'd have to be wildly optimistic to think that software patents will be abolished. Although the EFF's proposals call for the idea to be studied, [EFF attorney Daniel] Nazer doesn't expect it to happen; he instead advocates several reforms not contained in the Innovation Act."

Comments

Really need to post information about the act

[Crashmarik]

http://en.wikipedia.org/wiki/I...

Also I would be very careful what you wish for here. Anybody who doesn't have the capital or desire to become a participating entity could be screwed over royally here.

It would be far better to take patent trials away from juries. Picking people at random and then pointing them at highly technical patents isn't something that even sounds like it might work.

Re:Really need to post information about the act

[garyisabusyguy]

Shopping around for juries and judges in rural areas is a big problem that should be addressed

Re:Really need to post information about the act

[icebike]

Shopping around for juries and judges in rural areas is a big problem that should be addressed

If it were that simple, the small player would have an equal chance.

The problem is there are some courts where the jury pool is populated by patent friendly people, some of which are not above going to great lengths to hide these facts during Voir dire. The Eastern District of Texas

Re:Really need to post information about the act

[garyisabusyguy]

Are you suggesting the Marshall Texas, population 23,523, where the federal courthouse is located that is mentioned in your linked article is NOT a rural area?

Or perhaps having a mail-drop 'office' adjacent to the court house is not 'shopping' for a jury and judge...

Re:Really need to post information about the act

[Virtucon]

Having just driven through Marshall yesterday I can attest that it's not some small city. I think that everybody expects that Wilmington, Delaware is the best venue? There's a reason that the Doubletree (closest to the Federal Courts) in Wilmington can charge an arm and a leg for rooms because just two blocks away is one of the the most dangerous areas of the city where every drug addict and homeless person within a 20 mile radius congregates daily. Given that or Marshall, I'll take Marshall.

Re:Really need to post information about the act

[gstoddart]

You know what would be far better?

Making the patent office liable for passing overly-broad patents, which aren't actually innovations, and which simply fall into "a system and methodology for going something we've been doing in the real world for decades, but with a computer ".

Put some actual onus on the patent office to not simply be chimps who rubber stamp inventions and collect fees, and legal liability on patent applicants who basically play a shell game to essentially patent an idea and not an invention.

By the time you are at a jury, the system has failed so badly as to be useless.

If the patent office allows a patent for something which already exists, or which is fairly obvious, or is merely an idea ... they're bloody incompetent, and essentially are the problem.

Re:Really need to post information about the act

[disposable60]

"the court" brings nobody. It is up to each side to employ and bring in its own 'experts.'
That's one of the things that makes a defense so expensive. The plaintiff can promise a cut of the take, but the small respondent - so far - has no such resource.

Re:Really need to post information about the act

[tao]

Just use a variant of the Donald Knuth reward check method. The first patent that gets invalidated will incur a 1 cent cut from the patent office budget. The second one a 2 cent cut, etc. After a few weeks the USPTA would have no option except shut down.

Re:Really need to post information about the act

[websitebroke]

The population of Wilmington is 70,851, and New Castle has 538,479 people total, including Wilmington. Harrison County has 65,631 people including Marshall. Wilmington has more people than the entire Harrison County. Yeah, Marshall is a very small city in a rural area. Maybe it's not Oklahoma rural, but compared to the east coast in general, it's pretty damn rural.

Re:Really need to post information about the act

[sycodon]

My dad patented an oil field tool that relied on the magnetic properties of the drill pipe to perform its function.

Someone copied it and started selling it. My Dad sued.

During jury selection an officer of the Navy who specialized in detection and masking of submarines through magnetic means was dismissed from the pool by the defendants.

He knew too much about the key technology involved in the trial.

Re:Really need to post information about the act

[slick7]

Hey! I have a patent on running patent trolls. Cease and desist or my running patent trolls attorney will have you running along side the running patent trolls.

Re:Really need to post information about the act

[Virtucon]

You mean like Baltimore Big? Shit 1/2 of Baltimore is a burned out wreck. I'll take Texas any day even in itty bitty Marshall. Oh and about 20 miles away is Longview, over 80,000 people there. We're not in the sticks but we do have elbow room.

Re:Really need to post information about the act

[Anonymous Coward]

Shopping around for juries and judges in rural areas is a big problem that should be addressed

If it were that simple, the small player would have an equal chance.

The problem is there are some courts where the jury pool is populated by patent friendly people, some of which are not above going to great lengths to hide these facts during Voir dire. The Eastern District of Texas

It isn't entirely that the juries are patent friendly. While you are far more likely to get a juror that actually holds (and understands the value of) intangible property in East Texas due to the widespread distribution of severed mineral and royalty rights, most East Texans don't care one way or another about patents. If you don't count general collegiality, there are three reasons the Eastern District is chosen for cases (not just patent cases, remember EDTEX was also the center for asbestos litigation):

1) The speed of the EDTEX Docket. The Marshall Court is known for getting cases from filing to trial in 18 months or less. I don't know how Judge Gilstrap does it, but he does . . .as did Judge Ward before him and other judges in the district (Though Judge Davis had a heart attack that could have been attributed to his workload). Other districts take significantly longer. This is not just with patent cases, as there has been a longstanding tradition in the area that "justice delayed is justice denied".

2) Discovery. Before you go to trial you have a chance to gather evidence, including compelling evidence from other parties (which means adverse parties as well). Texas has generous discovery rules, which the Federal Courts must adopt under the Eerie doctrine, and the Eastern District believes that a litigant is "entitled to every man's evidence", as outlined by the Supreme Court in Branzburg v. Hayes. This allows litigants to get more discovery from their opponents, which can be used as a tool to apply pressure to settle. Discovery is expensive.

3) The EDTEX Court follows the 7th amendment scrupulously. In court, questions of law (e.g. Do I have to prove that the car was speeding beyond a reasonable doubt, or merely more likely than not?) are decided by the judge, and questions of fact (e.g. How fast was the car going?) are decided by the jury. Many questions in patent litigation are "mixed questions of law and fact" (e.g. What did the drafter of the patent mean when he used the phrase "one of one or more downloading apparatuses"?). Many other courts overstep their bounds and decide many questions of fact without sending the issue to a Jury, and they get away with it because the question involves a mixed aspect of law. ED Tex judges tend avoid doing this.

To sum up, it isn't corrupt Juries but a completely different judicial philosophy . . . but most important is the speed of the docket because it puts pressure on defendants to settle earlier.

Re:Really need to post information about the act

[TheCastro1689]

They are paid to be witnesses.

Re:Really need to post information about the act

[TheCastro1689]

Well we don't want educated people making their own minds up about stuff.

Re:Really need to post information about the act

[garyisabusyguy]

So, you are claiming that a Kangaroo Court, http://en.wikipedia.org/wiki/K..., that ignores judicial standards and rushes cases at the expense of the defendant is a good thing?

WTF, no wonder the patent trolls flock to it, Marshall Texas Kangaroo Courts have even been the subject of local hymnals, https://archive.org/details/IB...

Re:Really need to post information about the act

[tao]

Not needed if you've ever heard of Donald Knuth's reward checks, something that I'd expect most Slashdot readers have.

Re:Really need to post information about the act

[garyisabusyguy]

Tomatoe/tomato, you say 'unique legal standards protected by Erie', I say bullshit local custom exploited by trolls

Not claiming that the juries are corrupt, just unsophisticated and willing to believe that some troll claiming to have 'invented' a technique that is disputed by prior art, that any person who has been using the internet for the past 2 decades, would recognized

QA and the lack thereof!

[s.petry]

I submitted a story and it was yanked, so I'll post in stories instead. Slashdot is once again broken. The top sentence of text in the majority of comments is clipped off so only about half the text is visible. The bottom sentence is spliced with the bottom links so you can't read those either. Buttons are almost all broken. Some buttons are not buttons at all, just text. Other buttons have the same text coloring as the button with maybe white shading?

How this could have ever gotten past QA is astounding. Fix the f^&$ing text so we can read it. Fix the buttons so I know what and where they are located. Dark green data fields on dark green backgrounds is not readable, fix that too. I see people posting pictures from IE so it's not just my browser. Last I checked, Firefox was the number one browser for *nix crowds which is a good portion of Slashdot's contributors.

It's not as bad as Beta in some ways, but being dumped on the community makes it close.

Re:QA and the lack thereof!

[icebike]

There is always http://soylentnews.org/ Formed by people sick of the nonsense that goes on here.

Re:QA and the lack thereof!

[mattventura]

I'm just wondering where the let sidebar is. When you have a fluid-width site, you generally want to have a sidebar on the left for readability.

Unlikely to make a big difference

[Harlequin80]

It will just change some of the risk profiles taken on by the trolls. In the end they are staffed by lawyers where as their targets have to retain a lawyer, so their targets have to fund their defence right from the beginning and hope to win to get their money back. What you will see is an increase in out of court settlements ie. we will stop litigating you if you agree to settle this now for no money out of court. This would be very very tempting option if you saw the likely hood of thousands and thousands of dollars of legal costs ahead.

Update

[s.petry]

I saw a message from Soulskill that they will work on the bugs tomorrow. Until then, an idea would be to pad your top and bottom lines with a line-break. It may help people to read your whole comment.. then again I don't know if they strip breaks on either end under certain conditions.

Re:Update

[Anonymous Coward]

I don't really mind the design myself but... is it really that hard to make a website that works and is visually consistent? Especially in this day and age...

Re:Update

[Cenan]

Yeah, but /. already had a visually consistent website. They now broke it, in the most amateur way ever (well, again really). I've got people's signatures scrawled on top of the "Reply to This etc." links. I've list the sidebar on the front page.

Re:Update

[Chatsubo]

All I want to know for now is: How do I get to more stories? Because at the moment I can't get to the "next" page at all. Don't even know where to look.

Maybe related: tags are invisible for me, so maybe the buttons are too (FF36).

Re:Update

[Soulskill]

The Older/Newer buttons broke with our code push yesterday (tags went into hiding, too). Hope to have them fixed soon. My apologies!

Until it's fixed, you can use this link as a workaround if you'd like: http://slashdot.org/?page=1

If you increment the page number, you can see successive pages.

Re:Update

[Chatsubo]

Sweet, thanks for the work and reply.

Why not just eliminate trolling?

[Anonymous Coward]

I don't understand why they can't just make trolling illegal. If a company wants to launch a lawsuit against another company for infringing a software patent, they should be required to have a current implementation of the patent in use by customers.

Software patent trolls seem so bad because they really are. Saying "I have an idea, I don't use it or won't ever use it, but noone else can use it" is illogical and it should be laughed out of court rooms.

Re:Why not just eliminate trolling?

[American Patent Guy]

The problem is in defining what "trolling" is. The court rules already permit a court to award attorneys fees where a claim is brought frivolously: the difficulty is in showing that a claim was brought or prosecuted in bad faith. The court can't read minds, and one can't usually show what the intent was when a patent infringement suit is brought.

Re:Why not just eliminate trolling?

[Headw1nd]

This doesn't work. The reason you get a patent in the first place is so you can market your product without fearing that it will be instantly ripped off. Let's say for example, I develop software that would say help manage data over transoceanic cables. I myself don't own any of these cables, so I would have to convince some company that did to license my software. Except that in your example they won't, since they know that if nobody licenses it then they can just replicate it themselves without fear, since I would have "no customers" and thus no claim to the patent. Perhaps if you modified your idea to where the patent has to be "in play", either a part of an offered product that is available or in development, or an internal part of a business model, and if if does not satisfy either of these for two years it is declared abandoned.

Who pays costs now?

[nukenerd]

"provisions in the proposed law, like one that will make trolls pay legal costs if their claims are rejected"

Do you mean to say that they are not required to pay their costs now ???!!! Thta's absolutely barmy. Who does pay?

Re:Who pays costs now?

[CrimsonAvenger]

It means the other guy's legal costs, not their own.

Trolling is overly broad

[Virtucon]

The term Trolling is overly broad and implies that if you're a non-practicing entity (NPE) with a portfolio of patents that makes you a troll. With the advent of software patents this has brought more focus onto NPEs but they've been around for a very long time. The problem is that a lot of these patents are very, very vague or as has previously been pointed out, crafted by skilled lawyers to make something appear as "innovative" when it really is obvious. There in lies the crux of the matter, we have lawyers who's job it is to craft patent documents including description and details about the invention, lawyers who specialize in patent litigation and former lawyers who sit in judgement over the entire mess. It's a self perpetuating system that does everything it can to protect the intellectual property rights of a patent holder. So, once you get a patent there are two ways to have it invalidated. 1) present evidence of prior art to the USPTO. 2) Go to court either as a plaintiff or defendant and have the legal process weed through it. All of this takes money and usually a Patent holder or NPE will have enough resources to make any fight costly. Changing the laws to make NPEs bear the costs of litigation is a start but that also means that those Patent Holders with deep, very deep pockets will take the risk and to some extent it cheapens the value of all Patents because then only very well off holders will be inclined to exercise their legal rights.

If you want to fix the Patent system:

1) Make the burden of getting a software patent stricter. Instead of vague things get rid of the weasel words and challenge if indeed the "innovation" really isn't an algorithm.
2) Get more people in the USPTO and get some reforms implemented. http://scienceprogress.org/200...
3) Fix the cost of legal fees in handling Patent cases. Many states have fixed costs associated with Estate Issues, it's time that the lawyers be put on a scale commensurate with the size of the case. If you take away the incentive for lawyers to rack up huge legal bills in the Patent game then you won't see as many frivolous cases.
4) Get rid of the right to trial by Jury and streamline the legal process. There's no reason that a Jury has to hear a patent case. Let the judge hear it and streamline the proceedings for no longer than two weeks of trial. Either the Patent is innovative and isn't subject to Prior art or it's not and it should be invalidated by the court. Done.
5) Respect the Inventors. Most of these patents are owned by large companies who didn't actually invent them but some employee did. Those people have no rights usually and invented something as part of their job. We need to get rid of the company owns all mentality when it comes to this technology and Inventors should have deeded rights to their Intellectual Property, say 10% shared among all inventors on a Patent. If there's licensing or royalties paid 10% goes to the Inventors. Likewise if a NPE sues and wins in court, 10% of the judgement goes to the Inventors.

Re:Trolling is overly broad

[drinkypoo]

1) How? That's what the law says we're supposed to do now.

4) Juries should hear patent case appeals. But they should be qualified juries of peers, not J. Random Assholes.

5) You're calling for an end to capitalism. Me too! But realize that's what you're doing.

Most problems with patents could be solved by severely reducing their duration, especially software patents. The same is true of copyrights.

Re:Trolling is overly broad

[Virtucon]

1) How? That's what the law says we're supposed to do now.

4) Juries should hear patent case appeals. But they should be qualified juries of peers, not J. Random Assholes.

5) You're calling for an end to capitalism. Me too! But realize that's what you're doing.

Most problems with patents could be solved by severely reducing their duration, especially software patents. The same is true of copyrights.

Yeah that needs to be changed. Legislation needs to be introduced to correct these problems. That's a tough political choice but inevitably capitalism succeeds by weeding out stupid patents more quickly or preventing them from being issued in the first place. Copyrights are another mess and the Sonny Bono legislation needs to be repealed. Considering how much Disney makes on their shit they need no protection.

Patents are racket.

[ivrogne]

Patents are racket. Human knowledge doubles every 12 months, soon to be even shorter. So for every patent, on average the idea would be replicated independently in the first year. IF we needs patents, they should be valid at most for one cycle, and only if the requester can document that their development required several cycles, or a substantial monetary investment. One cycle should be ample time to recoup your investment, then make way for other innovators.

Nope!

[penguinoid]

Still not good enough. </troll>