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I am a patent lawyer, and the sentiment from the article is on point. Recent case decisions have flipped the script for small companies targeted by patent troll

I am a patent lawyer, and the sentiment from the article is on point. Recent case decisions have flipped the script for small companies targeted by patent trolls. The term “Troll” captures many different kinds of patent lawsuits, but most often now the only trolls willing to sue small companies are looking for a quick small payday and will not tolerate any suggestion that they have to put up a real defense of their case on the merits. It can vary, but I have convinced several trolls to drop their case for small clients for just an hour’s worth of work. They know when I make an appearance for a client that they have to put up a fight and will walk away, and if they don’t I have been successful in several cases getting them to pay the lawyer fees incurred by my clients. Happy to answer any questions about the range of responses that may be necessary to defend against this scourge. But I’m happy to report that the trend is favoring the defendant in these scenarios.

pokemongoaway 8y ago
Do you only cover defense for tech patents or does this extend into older tech like medicine, energy, electronics, etc?
cinericius 8y ago
>Recent case decisions have flipped the script for small companies targeted by patent trolls. It would be interesting to see examples of this. What were the outcomes of these cases and how did judges reach those decisions? Many thanks for your time.
- fncypants 8y ago
  In 2014 the Supreme Court ruled in Alice v CLS that computer inventions that claim “abstract ideas” are invalid. What happened in the years following is that the lower courts took this as an opportunity to weed out the crappy patents that were previously good extortion assets. Around the same time, the Supreme Court in Octane Fitness granted lower courts more discretion to shift fees and force losing plaintiffs to pay the defense costs for an unreasonable patent infringement claim. Also, in 2012 Congress passed the American Invents Act that created an Inter Partes Review proceeding at the patent office that lets accused infringers (or others) challenge the invalidity of patents more cheaply than a full trial and often to stop a trial pending its resolution. All these combined have resulted in substantially lower troll demands, and more reluctance by trolls to follow through with an extortionate case. Good precedent is in Inventor Holdings v. Bed Bath Beyond at the Federal Circuit Court of Appeals. The holding is that a lower court can decide that if a plaintiff turns a blind eye to how bad it’s sotware patent is in light of _Alice_ and doesn’t drop its case, it can award the defendant its attorney fees. This particular case went on far, far too long and the court awarded almost $1M in defendant’s fees to be paid.
  - dahdum 8y ago
    Are they ever able to collect those defendants fees? I thought it was common to transfer the IP and file with the new shell company, who would then file bankruptcy in case of an award. Also thank you for that detail.
    - fncypants 8y ago
      It depends. I have obtained three orders to pay my client’s fees and all were paid in full. There is precedent (from an EDTX judge, no less) finding the plaintiff’s lawyer and the individual behind the troll liable when they were ordered to pay fees but tried to play that shell game. [0] [0] https://insight.rpxcorp.com/news/7795 https://insight.rpxcorp.com/news/7795
      - thehnguy 8y ago
        Yep. When the lawyers/firms were personally on the hook for the fees, it scared them a lot. https://arstechnica.com/tech-policy/2017/01/original-patent-troll-law-firm-is-shutting-down/ https://arstechnica.com/tech-policy/2017/01/original-patent-...
  - thehnguy 8y ago
    Another lawyer here. I think Octane Fitness was what really did in most parent trolls. Before the trolls were extorting small companies and playing the lottery with big companies (might win and get a huge settlement/judgement). With the risk of fees being assessed the price of entry is getting higher. We’re seeing the same thing now with disability accessibility suits. There’s a push to allow fee shifting in an effort to mitigate those exploitive cases. The trolls are in it for money. Unsurprisingly then, when there’s the risk that THEY might lose money they’re quicker to back down.
  - nwenzel 8y ago
    Link to the referenced cases: Alice v CLS: https://casetext.com/case/alice-corp-v-cls-bank-intl https://casetext.com/case/alice-corp-v-cls-bank-intl Inventor Holdings v Bed Bath Beyond (multiple): https://casetext.com/search?q=Inventor%20holdings%20v.%20Bed%20bath%20%26%20beyond&p=1&tab=keyword&jxs=&sort=relevance&type=case https://casetext.com/search?q=Inventor%20holdings%20v.%20Bed...
cbcoutinho 8y ago
Is this a problem primarily in certain parts of the world or is it wide-spread?
- 56chan4 8y ago
  It seems to emanate a lot from the US. My bro has a patent not tech sector but makes him world leader in his field, and the biggest player in his industry who happened to be based in the US, tried it on with patent infringements. They ended up killing the company in the country affected to avoid paying legal fees. Seems the most extreme forms of Capitalism and perhaps undesirable aspects of capitalism come from the US. However when looking at how the US was formed over the generations, one could argue the country is one built on extremism.
lazysheepherd 8y ago
Can patent trolling be decreed as an offense, or it is too much gray area to define and detect it reliably? Is the action punishable under another offense category, e.g. fraud? If not, what are your thoughts on what can be done to dissuade bad actors from engaging patent trolling, and seek the end of the "scourge"?
- fncypants 8y ago
  Some states have enacted bad faith litigation statutes. If the patent owner is not careful in avoiding the appearance of extortion, they can be liable for the defendant’s fees and other damages.
  - ourmandave 8y ago
    Could someone (or a group of companies) that have paid in the past sue to get their money back (or have the case reversed if it went to trial) if a troll has a bad faith ruling against them?
walrus01 8y ago
Is it still a thing for patent trolls to have a 80 sq ft "business office" with no staff somewhere in east texas, and to file suits there? https://www.google.com/search?client=ubuntu&channel=fs&q=east+texas+patent+trolls&ie=utf-8&oe=utf-8 https://www.google.com/search?client=ubuntu&channel=fs&q=eas...
- fncypants 8y ago
  Yes, just like any company with a virtual office. But the Supreme Court in TC Heartland last year limited where patent suits can be filed. Now, a _defendant_ needs a physical presence in east Texas to be sued there. Only big box retailers with stores in east Texas towns, or companies with headquarters / offices / storefronts in Dallas suburbs like Frisco or Plano, can be sued there. The virtual office for the patent owner no longer had any effect on the suit being proper in east Texas.
  - tluyben2 8y ago
    Do you know how it works if a US troll sues a company outside the US?
    - fncypants 8y ago
      Assuming you mean filing a lawsuit for infringement of a US patent, a foreign company can be sued in any federal district court in the US. It is a special case.
      - URSpider94 8y ago
        IANAL, but they can only sue for infringement that takes place within the US. A German company selling to Indian customers can’t be sued in the US.
        Drdrdrq 8y ago
        But German company selling to US customers can, right? Does that mean the company needs to defend itself on US court?
dshuang 8y ago
Would you mind providing a way to contact you in your profile? I'm not sure my questions regarding average cost per case, duration, etc. are appropriate for this thread. Thanks.
- mcherm 8y ago
  For what it's worth, I suspect that many of us would be interested in information about average cost per case and average duration for cases where the defendant is a small company (or small tech company).
- Boulth 8y ago
  I'd also be interested in contact info... Just in case...

pokemongoaway 8y ago

Do you only cover defense for tech patents or does this extend into older tech like medicine, energy, electronics, etc?

cinericius 8y ago

>Recent case decisions have flipped the script for small companies targeted by patent trolls. It would be interesting to see examples of this. What were the outcomes of these cases and how did judges reach those decisions? Many thanks for your time.

fncypants 8y ago
In 2014 the Supreme Court ruled in Alice v CLS that computer inventions that claim “abstract ideas” are invalid. What happened in the years following is that the lower courts took this as an opportunity to weed out the crappy patents that were previously good extortion assets. Around the same time, the Supreme Court in Octane Fitness granted lower courts more discretion to shift fees and force losing plaintiffs to pay the defense costs for an unreasonable patent infringement claim. Also, in 2012 Congress passed the American Invents Act that created an Inter Partes Review proceeding at the patent office that lets accused infringers (or others) challenge the invalidity of patents more cheaply than a full trial and often to stop a trial pending its resolution. All these combined have resulted in substantially lower troll demands, and more reluctance by trolls to follow through with an extortionate case. Good precedent is in Inventor Holdings v. Bed Bath Beyond at the Federal Circuit Court of Appeals. The holding is that a lower court can decide that if a plaintiff turns a blind eye to how bad it’s sotware patent is in light of _Alice_ and doesn’t drop its case, it can award the defendant its attorney fees. This particular case went on far, far too long and the court awarded almost $1M in defendant’s fees to be paid.
- dahdum 8y ago
  Are they ever able to collect those defendants fees? I thought it was common to transfer the IP and file with the new shell company, who would then file bankruptcy in case of an award. Also thank you for that detail.
  - fncypants 8y ago
    It depends. I have obtained three orders to pay my client’s fees and all were paid in full. There is precedent (from an EDTX judge, no less) finding the plaintiff’s lawyer and the individual behind the troll liable when they were ordered to pay fees but tried to play that shell game. [0] [0] https://insight.rpxcorp.com/news/7795 https://insight.rpxcorp.com/news/7795
    - thehnguy 8y ago
      Yep. When the lawyers/firms were personally on the hook for the fees, it scared them a lot. https://arstechnica.com/tech-policy/2017/01/original-patent-troll-law-firm-is-shutting-down/ https://arstechnica.com/tech-policy/2017/01/original-patent-...
- thehnguy 8y ago
  Another lawyer here. I think Octane Fitness was what really did in most parent trolls. Before the trolls were extorting small companies and playing the lottery with big companies (might win and get a huge settlement/judgement). With the risk of fees being assessed the price of entry is getting higher. We’re seeing the same thing now with disability accessibility suits. There’s a push to allow fee shifting in an effort to mitigate those exploitive cases. The trolls are in it for money. Unsurprisingly then, when there’s the risk that THEY might lose money they’re quicker to back down.
- nwenzel 8y ago
  Link to the referenced cases: Alice v CLS: https://casetext.com/case/alice-corp-v-cls-bank-intl https://casetext.com/case/alice-corp-v-cls-bank-intl Inventor Holdings v Bed Bath Beyond (multiple): https://casetext.com/search?q=Inventor%20holdings%20v.%20Bed%20bath%20%26%20beyond&p=1&tab=keyword&jxs=&sort=relevance&type=case https://casetext.com/search?q=Inventor%20holdings%20v.%20Bed...

cbcoutinho 8y ago

Is this a problem primarily in certain parts of the world or is it wide-spread?

56chan4 8y ago
It seems to emanate a lot from the US. My bro has a patent not tech sector but makes him world leader in his field, and the biggest player in his industry who happened to be based in the US, tried it on with patent infringements. They ended up killing the company in the country affected to avoid paying legal fees. Seems the most extreme forms of Capitalism and perhaps undesirable aspects of capitalism come from the US. However when looking at how the US was formed over the generations, one could argue the country is one built on extremism.

lazysheepherd 8y ago

Can patent trolling be decreed as an offense, or it is too much gray area to define and detect it reliably? Is the action punishable under another offense category, e.g. fraud? If not, what are your thoughts on what can be done to dissuade bad actors from engaging patent trolling, and seek the end of the "scourge"?

fncypants 8y ago
Some states have enacted bad faith litigation statutes. If the patent owner is not careful in avoiding the appearance of extortion, they can be liable for the defendant’s fees and other damages.
- ourmandave 8y ago
  Could someone (or a group of companies) that have paid in the past sue to get their money back (or have the case reversed if it went to trial) if a troll has a bad faith ruling against them?

walrus01 8y ago

Is it still a thing for patent trolls to have a 80 sq ft "business office" with no staff somewhere in east texas, and to file suits there? https://www.google.com/search?client=ubuntu&channel=fs&q=east+texas+patent+trolls&ie=utf-8&oe=utf-8 https://www.google.com/search?client=ubuntu&channel=fs&q=eas...

fncypants 8y ago
Yes, just like any company with a virtual office. But the Supreme Court in TC Heartland last year limited where patent suits can be filed. Now, a _defendant_ needs a physical presence in east Texas to be sued there. Only big box retailers with stores in east Texas towns, or companies with headquarters / offices / storefronts in Dallas suburbs like Frisco or Plano, can be sued there. The virtual office for the patent owner no longer had any effect on the suit being proper in east Texas.
- tluyben2 8y ago
  Do you know how it works if a US troll sues a company outside the US?
  - fncypants 8y ago
    Assuming you mean filing a lawsuit for infringement of a US patent, a foreign company can be sued in any federal district court in the US. It is a special case.
    - URSpider94 8y ago
      IANAL, but they can only sue for infringement that takes place within the US. A German company selling to Indian customers can’t be sued in the US.
      - Drdrdrq 8y ago
        But German company selling to US customers can, right? Does that mean the company needs to defend itself on US court?

dshuang 8y ago

Would you mind providing a way to contact you in your profile? I'm not sure my questions regarding average cost per case, duration, etc. are appropriate for this thread. Thanks.

mcherm 8y ago
For what it's worth, I suspect that many of us would be interested in information about average cost per case and average duration for cases where the defendant is a small company (or small tech company).
Boulth 8y ago
I'd also be interested in contact info... Just in case...