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Why? If it is ruled invalid today then it was also invalid the day it was issued. I would imagine any company who paid for a license under threat of suit would

Why? If it is ruled invalid today then it was also invalid the day it was issued. I would imagine any company who paid for a license under threat of suit would now be telling their legal department to file a suit to reclaim the fee paid plus interest plus any provable damages. So we already have a remedy for this situation, no need to complicate the statutes.

Canada 9y ago
Victims would have waived that right when they settled with the patent troll.
- danmaz74 9y ago
  These waivers should be rendered null by law. I don't see any other way to fix the problem.
  - Canada 9y ago
    Yeah, I wish there were a special place in hell reserved for patent trolls, but undermining contracts retroactively is not something to be taken lightly.
    - AnthonyMouse 9y ago
      It's not retroactive if you know about it ahead of time. It would be known when the contract is made that the money would by law have to be returned in the event the patent is invalidated. The consequence would obviously be that all the licensees of a patent that has any chance of being invalid would subsequently try to get it invalidated so they can get their money back, but isn't that the intended result?
    - toss1 9y ago
      Not sure that it would be undermining contracts retroactively. IANAL, but the approach I'd consider is fraud/breach of contract. The previous victims settled and paid a royalty to use a patentable technology. It turns out that it was not what was represented. Ergo, refund. How it plays out surely depends a lot on regional courts, precedents, etc.
      - stordoff 9y ago
        I wonder how air-tight you can make that reasoning. I suspect you could structure the settlement as paying to use the underlying technology _including_ the patents etc., rather than licensing the patent per se (so the fees paid are not directly predicated on the existence of a patent). Be interesting to see how the courts would react to that though, and if they see it as a sign you are negotiating in bad faith.
Eridrus 9y ago
IANAL, but I don't think this is how the law works today.
CodeWriter23 9y ago
We have a concept in US Law called “ex post facto” which means you are not liable after the fact if laws are changed.
- dragonwriter 9y ago
  > We have a concept in US Law called “ex post facto” which means you are not liable after the fact if laws are changed. That's not what ex post facto means. An ex post facto law is a law criminalizing an act or increasing criminal penalties after an offense occurred. It does not prevent retroactive civil liability. The more applicable concepts here are the binding nature of contracts (which settlements are) and res judicata (which means that, in short, once a court judgement has been entered and made final, a party cannot relitigate it to get a better outcome.)
  - CodeWriter23 9y ago
    https://en.wikipedia.org/wiki/Ex_post_facto_law https://en.wikipedia.org/wiki/Ex_post_facto_law

Canada 9y ago

Victims would have waived that right when they settled with the patent troll.

danmaz74 9y ago
These waivers should be rendered null by law. I don't see any other way to fix the problem.
- Canada 9y ago
  Yeah, I wish there were a special place in hell reserved for patent trolls, but undermining contracts retroactively is not something to be taken lightly.
  - AnthonyMouse 9y ago
    It's not retroactive if you know about it ahead of time. It would be known when the contract is made that the money would by law have to be returned in the event the patent is invalidated. The consequence would obviously be that all the licensees of a patent that has any chance of being invalid would subsequently try to get it invalidated so they can get their money back, but isn't that the intended result?
  - toss1 9y ago
    Not sure that it would be undermining contracts retroactively. IANAL, but the approach I'd consider is fraud/breach of contract. The previous victims settled and paid a royalty to use a patentable technology. It turns out that it was not what was represented. Ergo, refund. How it plays out surely depends a lot on regional courts, precedents, etc.
    - stordoff 9y ago
      I wonder how air-tight you can make that reasoning. I suspect you could structure the settlement as paying to use the underlying technology _including_ the patents etc., rather than licensing the patent per se (so the fees paid are not directly predicated on the existence of a patent). Be interesting to see how the courts would react to that though, and if they see it as a sign you are negotiating in bad faith.

Eridrus 9y ago

IANAL, but I don't think this is how the law works today.

CodeWriter23 9y ago

We have a concept in US Law called “ex post facto” which means you are not liable after the fact if laws are changed.

dragonwriter 9y ago
> We have a concept in US Law called “ex post facto” which means you are not liable after the fact if laws are changed. That's not what ex post facto means. An ex post facto law is a law criminalizing an act or increasing criminal penalties after an offense occurred. It does not prevent retroactive civil liability. The more applicable concepts here are the binding nature of contracts (which settlements are) and res judicata (which means that, in short, once a court judgement has been entered and made final, a party cannot relitigate it to get a better outcome.)
- CodeWriter23 9y ago
  https://en.wikipedia.org/wiki/Ex_post_facto_law https://en.wikipedia.org/wiki/Ex_post_facto_law