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Bill would force patent trolls to pay defendants' legal bills
- mparlane 14y agoI like this alot: In other words: just because we're defining "software patent" doesn't necessarily mean software patents are necessarily legal. It's basically a temporary fix.
- jmintz 14y agoHow would this actually work? Unless a bond has to be posted the troll would just make sure the trolling entity (almost always a separate company shielding liability from true owner) has zero assets to pay the legal bills. Or did I misunderstand something?
- skurry 14y agoWouldn't the troll entity have at least control of the patents it's suing for?
- noonespecial 14y agoI thought I saw somewhere that the loathsome "Intellectual" Ventures had a program where you could rent some patents to sue with.
- greenyoda 14y agoIf I remember correctly, the courts ruled against this practice, deciding that only the actual owner of a patent had standing to sue for infringement.
- learc83 14y agoI'm not sure about patents, but at least with copyright the judge in the Righthaven case ruled that Righthaven lacked standing to sue because they didn't have exclusive rights to the copyright.
- jmintz 14y agoSure but if they lost the case doesn't that suggest those patents are worthless? If they can't be enforced they aren't effective patents.
- learc83 14y agoAt least it would keep them from using them to extort money from other victims. A patent troll could lose without the patent being invalidated. It could be that the patent is enforceable, but not in this particular case (a case where a jury finds the defendant wasn't actually infringing). We've seen patent trolls go after victims with nebulous claims that might not win in court even though the patent wasn't likely to be invalidated. This may prevent those situations because if they lose and they have to hand over the patent, it deprives them of future extortion money. It may at the least limit the scope of companies they go after to actual likely infringers.
- Zenst 14y agoWhilst the motives are good it realy should be a simpler bill: `If you take somebody to court and you lose the case then you pick up the cost of the defence and courts time.` That is what is needed, something simple and fair that covers this and other area's instead of one law for a specific area which will then need another law for another area and in essence complicate things by having many laws covering one simple thing. Keep It Simple Stupid is a such a great old software term, that applies to so many things, including this.
- derleth 14y ago> If you take somebody to court and you lose the case then you pick up the cost of the defence and courts time. Or: "IBM just screwed me over, but if I sue there's a chance I'll lose, and the penalty for losing is orders of magnitude greater than I could possibly afford. Guess IBM gets to keep screwing me over."
- ScottBurson 14y agoFrom what I've read, loser-pays is standard practice in Europe, and judges have final say over the amount, which must be reasonable.
- slantyyz 14y agoI think it's like that in Canada too.
- pmccool 14y agoAlso the case in Australia and the UK. Not that the winner gets all their costs back (60% is a figure I've seen bandied around) but it still creates a significant disincentive. Probably a good thing in the case of patent trolls, but not necessarily in other situations.
- tsotha 14y agoThey're certainly welcome to the overly-litigious situation we have in the US. I would trade in a heartbeat.
- cletus 14y agoThis is a largely pointless gesture. Patent trolls by definition have no assets (technically they're NPE or non-practicing entities). This means that if they lose big, they'll simply declare bankruptcy and move on. The real problem--still--is software patents shouldn't exist at all. If a single device (eg a smartphone) potentially infringes on thousands of patents then you've gone well beyond the intent or usefulness of the patent system. If this were going to do anything at all, any entity that files a patent violation suit should be required to establish a bond (set by the court) to cover defendants' reasonable fees before the suit can even go to discovery. The maths of patent trolling is simple: - filing suits, issuing C&Ds, etc = $X million - potential payoff for settlement or successful litigation = $YYY million - probability of winning = Z% If Y x Z > X then it's worthwhile suing. Filing a bond with the court then change sthis to Y x Z > X + B.
- taligent 14y agoA smartphone doesn't infringe on thousands of patents because we have standards in place for 3G, WiFi, Bluetooth, H.264 etc which you can license affordably under FRAND terms. This process was what made software patents manageable. This process needs to be encouraged and expanded in order to dull the impact of software patents. So really there needs to be just as much criticism of Google and Samsung (FRAND abusers) as the patent trolls.
- krickle 14y agoUnfortunately we don't have standards in place for "click to upgrade" or "slide to unlock" and potentially thousands of other tiny patents that cover the minutia of operating systems and software. Why does it matter that you can use Bluetooth if you can't do anything with it?
- taligent 14y agoThere is only ONE way to implement Bluetooth and meet the standard. There are LOTS of ways to unlock a phone. Including the way every phone was doing before the iPhone i.e. holding down a button. Likewise for click to upgrade and most of the other design and UI related patents. So you see now why Google and Samsung are just as much of a problem as patent trolls ?
- mbell 14y agoMaybe I'm crazy but it seems there is a relatively simple solution to all this: make patents non-transferable.
- wtvanhest 14y agoIf company A buys company B and company B owns a patent, the patent wasn't transferred, just company ownership. So, making patents not transferable only adds a step or two depending on how complex the law is.
- mbell 14y agoWhat I said was extremely simple, there are a million ways it could turn into law. A simplistic solution in my mind would be a rule that if your example were to happen, the patent is transferable in the case that the purchasing company intended to act on that patent (insert legal shenanigans to define what that means here). The general intention is that a company can not own a patent which it does not have a vested interest in acting on, how that is defined could be an entire thread of its own.
- vidarh 14y agoAnd now your "relatively simple solution" has turned into a massive legal quagmire.
- eru 14y agoHere's a simpler solution, that creates no legal quagmires: Do away with patents.
- RexRollman 14y agoPersonally, if software patents can't be done away with or at least reduced in its length, then I would like to see a couple of things happen: 1. When sued, a defendant has the right to request a review of the patents, which would automatically stay all proceedings until the review is finished. Only upheld patents could then be litigated and if all patents were overturned, then the plaintiff would have to pay all court costs. 2. Patents holders who sue but do not actually manufacture anything should be awarded reduced damages.
- dctoedt 14y agoBoth of these things happen already (well, sort of) under existing law: 1. A defendant can request reexamination of the patent by the USPTO. There are pros and cons to doing so. [1] [EDIT: If a defendant requests reexamination at an early-enough stage in the lawsuit, the judge is likely to grant a request to stay the lawsuit until the reexamination proceedings are finished. If the defendant waits too long, though, the judge might think the defendant is gaming the system to try to delay the trial, in which case the judge likely will deny a request for a stay.] 2. A patent holder that actually makes and sells something can recover the profits it would have earned if it had made the infringing sales. To do so it has prove some things it doesn't have to prove to recover a reasonable royalty. A troll can't do this because it didn't have the capacity to meet an existing demand at the time of the infringing sales. [2] [1] http://en.wikipedia.org/wiki/Reexamination http://en.wikipedia.org/wiki/Reexamination [2] http://www.finnegan.com/resources/articles/articlesdetail.aspx?news=c29ba550-8c55-4b4f-a9a5-b2c72b1749c4 http://www.finnegan.com/resources/articles/articlesdetail.as...
- RexRollman 14y agoI know they can request it but I have seen cases being litigated while the patent review was being conducted. In my opinion, it is asinine for that to happen.
- prodigal_erik 14y agoA reexam request requires new prior art. You can't use what USPTO evaluated improperly (rms argued public prior art databases are a bad idea for this reason) and you're out of luck if it was something so obvious that nobody bothered writing it down. It also costs thousands of dollars per patent with no refund for winning.
- etfb 14y agoThis post was second after the one to Mark Zuckerberg when I clicked it, and for a second I thought it meant Bill Gates was doing it. I boggled for a second at the idea of Mr Microsoft being sane about patents, but of course it was my error. Pity.
- makecheck 14y agoWouldn't it be simpler to require that any company suing over patents must also be an active practitioner in the field(s) that the patents involve? That would kill the asset-free trolls instantly because without an engineering staff and a product they can't very well be building anything that uses their "property", can they?
- foxylad 14y agoI was thinking the same thing, but then realised how easy would it be to subvert any definition of "active practitioner". The troll only needs to contract a guy (offshore?) who swears he's developing something that will come to market real soon now.
- excuse-me 14y agoIf you were an active practioner in the field you wouldn't need a patent, you would have trade secrets. Suppose I'm a consultancy and i invent an improvement to an MRI machine. I can sell the idea an MRI maker - or without patent protection I would have to set up in business making million $ MRI machines and compete with Toshiba/Philips/GE etc in order to benefit from my small improvement.
- dinkumthinkum 14y agoI don't think we have to bring down the whole patent system just to stop software patents. Let's just stop issuing software patents and just deal with existing software patents however we can? One possibility.
- beagle3 14y agoIf it is property, tax it like property, at 1% of value per year. All of a sudden, every trivial patent will be assigned 0 value by its owner, and then convincing a court the violation is worth $100M is hard. Also puts old and new patents on equal footing.
- eru 14y ago> If it is property, tax it like property, at 1% of value per year. Where is property taxed like that?
- brennenHN 14y agoThe reason that the American government hasn't implemented this broadly in legal disputes, as is practice in other countries, is that it makes it dangerous to pursue legal action for any entity. If I am a lone engineer who has just invented the perfect fuel source and GE rips it off, I have no recourse, because they can hire $50 million worth of lawyers and if she can't beat them in court, she's stuck with an impossible bill. These laws unfairly stifle the little businesses who are "supposed" to have a fair footing in the unbiased court of laws.
- suresk 14y agoHow are the current laws any more favorable to the little guy? In the current situation, patent trolls "win" against small businesses, because even if you fight the patent and win, you still are severely damaged - if not bankrupted - by the legal fees. I would far rather have the lion's share of the risk be assigned to the plaintiff.
- tsotha 14y ago>If I am a lone engineer who has just invented the perfect fuel source and GE rips it off, I have no recourse, because they can hire $50 million worth of lawyers and if she can't beat them in court, she's stuck with an impossible bill. Yeah, that's what the ABA says. But in the real world you're going to get stuck with an impossible bill anyway when the deep pocketed people you sue start filing countersuits.
- learc83 14y agoWhy can't you make the max payout based on a percentage of the total money spent on the case by the loser. That way if company A spends $10 million on the case and loses, the winner can recoup say $8 million. But if Person A spends $50k on a case and loses, the winner can only recoup $40k.
- eru 14y agoSounds like you might run into problems similar to US campaign financing law.
- 14y ago
- excuse-me 14y agoGreat win for IBM/MSFT/Google/Apple etc. I am trying to defend myself against them stealing my ideas - but if I lose I have to pay their legal bill. All they have to do is to threaten to use their vast internal legal team to run up potential $M in bills and I have no choice but to settle out of court.
- DigitalSea 14y agoThis is the way things should always have been. If you're going to falsely claim patent infringement only for it to be discovered you're not the patent holder or are merely using scare tactics to get money out of people you should be held liable for all costs associated with the legal threat.
- encoderer 14y agoI know most people here favor abolishing software patents. My take is that they shouldn't be abolished. But they should be restricted. Say, 3 years. Maybe 5. Software has short development cycles and version iterations. Three years gives a company a year to bring a product to market, and 2 years of patent protection after that. This isn't perfect I'm sure and there are probably more optimal time frames than 3 years. But I like the idea that if I come up with a truly novel invention in code, I'll be granted a patent and a couple years at market before the clones emerge.
- btilly 14y agoSpeaking from personal experience, 8-10 years for a patent to go from application to being granted is not unreasonable. That fact alone makes the lag between work being done and a patent available to sue far too long.
- vibrunazo 14y agoWhy exactly do you think this would solve the problem? In a world where most (all?) patents being used for trolling are trivial and/or ignores prior art already. Why won't trolls just repatent something with different wording after it expires? This is already common in pharmaceuticals where some drugs have been under monopoly for way over the normal 20 years but under "different" patents. This is only not too common in software, yet, because the industry is young. So wouldn't reducing length just worsen the problem by shifting even more power into the hand of incumbents who can afford to refill "different" patents more often than startups? Trolls would just use newer crap patents anyway.
- encoderer 14y agoSo the answer is to deal with trolls not eliminate patents. Having a shorter patent grant is about addressing issues like Amazon 1-click. Amazon is not a patent troll, but having a 20 year patent on 1-click is absurd. There are a lot of patent trolls outside software. Being against software patents and being against patent trolls are different issues with different solutions. I reject that dispensing with patents altogether is the best choice.
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- olliesaunders 14y agoHas anyone ever read this? http://www.amazon.co.uk/Math-You-Cant-Use-Copyright/dp/0815749422 http://www.amazon.co.uk/Math-You-Cant-Use-Copyright/dp/08157...
- gingerlime 14y agoThis seems like a step in the right direction. In the UK, as far as I'm aware, this is standard procedure in ANY legal case. The loser has to pay the legal fees of the winner. This can be a double-edged sword however. A big legal firm with lots of resources will mount legal fees that they alone can crush any small company. This is one aspect that I see missing from this. The mere threat to sue over a patent can force a small company to settle or to even close-shop completely. Sure, if the small company wins, they'll get their legal fees back, but when would that be?? a good few months of time, energy, lack of sleep, and huge legal bills until the end of the process, and that's only IF they win.
- methodin 14y agoI like it. If it works then it should cut down on these stupid spectacles. If it does not work then it only would further the cry of "See? We need total reform!"
- coob 14y agoWhy restrict this to just patent trolls?
- stevejabs 14y agoI'm sure that I'm going to get down voted to oblivion, but every time I read headlines like this, I like to assume that Bill is a person. It makes the headline way more fun.