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This is not a bad idea, but I would add that I think a better idea is that abuse of the patent system (resubmitting patents over and over with slight modificati

This is not a bad idea, but I would add that I think a better idea is that abuse of the patent system (resubmitting patents over and over with slight modifications to gain approval [0], non-producing entities engaging in jurisdiction-swapping [1], etc) need to be confronted immediately by judges or individuals with the spectre of sanction and disbarment by local and state bar associations boards of professional conduct (EDIT: I am generally against an activist judiciary but, this is certainly an area where such activism has sufficient merit). This can happen right now. You don't have to wait for political reform or constitutional amendments. Disbar the people who are responsible for abuse. Then let the system work. Bar associations feel local pressure. They respond to it immediately, on the the timescale of months, not years. Remove the financial incentive to file obviously frivolous[2] suits, and the problem will go away. If the trolls can't find anyone reputable to represent them, we all win. Just my $0.02. [0] http://www.google.com/patents/US8086604 http://www.google.com/patents/US8086604 [1] http://en.wikipedia.org/wiki/Forum_shopping http://en.wikipedia.org/wiki/Forum_shopping [2] http://en.wikipedia.org/wiki/Jack_Thompson_(activist)#Disbarment_proceedings http://en.wikipedia.org/wiki/Jack_Thompson_(activist)#Disbar...

grabeh 14y ago
Why blame lawyers for the instructions and aims of their clients in engaging in litigation? It is up to the courts to judge the legitimacy of a claim on its merits, not bar associations to determine that someone is unfit to practice purely on the basis that they represent a client with an apparently legitimate claim.
- shawn-butler 14y ago
  Because lawyers are allegedly trained, ethical professionals that are granted a unique license in every jurisdiction to exclude nonprofessionals? A nearly universal aspect of most bar associations (ABA, state, local) is a statement of professional conduct requiring members provide competent representation. Are you saying that these NPE patent portfolio trolls have legitimate claims and that nearly everyone else is wrong or are you saying that patent/IP lawyers lack the competency to recognize patents that are junk prima facia and advise accordingly? In case you are not following recent events, most of the activity of NPE trolls happens outside the courts because the attorneys involved know full well their paper is worthless inside. So they target precisely those firms who cannot afford protracted legal proceedings and avoid those that can. This is not professional conduct and if it is, the profession has the wrong name. Their clients will not sue for malpractice because they are benefitting. Judicial sanctions are not an option for activity that occurs outside of any proceeding. Where is the control and check on such clearly unprofessional behavior, the only defense for which is that it generates income, if not the body responsible for policing its own conduct?
  - rayiner 14y ago
    The standard for claims is that they must have some basis in law and fact or on some non-trivial argument for changing the law. Most troll claims are well inside that boundary, given duly issued patents and non-spurious allegations of technical infringement. Just because you think the troll claims are clearly invalid under existing law does not make them so. The law is arguably far too broad, but if there is a duly issued patent, thats all the "basis" in the law that is necessary. If that results in a lot of what you consider trivial cases, the fault is the law.
    - shawn-butler 14y ago
      Let's say I have a patent for rotating the image displayed on a homepage [0]. You are trying with a straight face to tell us that there is any valid belief that this is an enforceable patent other than the incomprehensible fact that it was granted? And further, if you do provide competent representation and advise me that this patent is basically null if it gets challenged, present me with the obvious prior art, etc then you believe (again with a straight face) that it is ethical behavior to, on my behalf, threaten another party unless payment is made with legal action representing what you know to be false to that party and more importantly having no legal basis for a positive outcome in any legal proceeding? There is always room for improving statutes as no crafted law is a perfect instrument. It is clear to everyone by now that the simple existence of a duly issued patent should not be considered on its own as a valid basis for litigation. And, for the most part abuses are taking place outside of judicial purview or being forum shopped to certain favorable jurisdictions. I take issue with the ethical lapses having no consequence, and am advocating for self-correcting behavior by the very body that has that task. [0] http://1.usa.gov/dR6UBy http://1.usa.gov/dR6UBy
monochromatic 14y ago
Disbar people for acting within the laws and regulations? Yeah, lemme know how that goes... Also, I'm not sure what you're trying to show with [0].
- shawn-butler 14y ago
  They are not providing competent representation which is the very basis on which bar associations are founded. I understand your cynicism but can not share it and also have any hope of a reasonable outcome to this game being played. If the rules cannot change and they want to continue to milk the cow without killing it, they need to reel in the bad actors. They have the authority and moral imperative to do so. The patent cited in [0] was filed in 2000, rejected and resubmitted multiple times with minor modifications over the course of 5 years until they found an examiner to accept it. It was a not insignificant patent and has been used recently in a very important case every reader of hn followed. This application was a continuation of U.S. application Ser. No. 11/000,413, filed on Dec. 1, 2004, which was a continuation of U.S. application Ser. No. 09/478,009, filed on Jan. 5, 2000, now U.S. Pat. No. 6,847,959, issued Jan. 25, 2005. Sorry it wasn't clear, there is no good way I know to "diff" or show you the history provided by the uspto interface. There may be better secondary sources, I know at least one nytimes journalist was asking questions about it.
  - monochromatic 14y ago
    What's incompetent about that representation? And also, there's nothing at all unusual about filing continuations. I'm not gonna try to dig into the file history on my phone, but I'd be surprised if there's anything at all remarkable about this case--amendments, continuations, and (presumably) RCEs are absolutely par for the course.

grabeh 14y ago

Why blame lawyers for the instructions and aims of their clients in engaging in litigation? It is up to the courts to judge the legitimacy of a claim on its merits, not bar associations to determine that someone is unfit to practice purely on the basis that they represent a client with an apparently legitimate claim.

shawn-butler 14y ago
Because lawyers are allegedly trained, ethical professionals that are granted a unique license in every jurisdiction to exclude nonprofessionals? A nearly universal aspect of most bar associations (ABA, state, local) is a statement of professional conduct requiring members provide competent representation. Are you saying that these NPE patent portfolio trolls have legitimate claims and that nearly everyone else is wrong or are you saying that patent/IP lawyers lack the competency to recognize patents that are junk prima facia and advise accordingly? In case you are not following recent events, most of the activity of NPE trolls happens outside the courts because the attorneys involved know full well their paper is worthless inside. So they target precisely those firms who cannot afford protracted legal proceedings and avoid those that can. This is not professional conduct and if it is, the profession has the wrong name. Their clients will not sue for malpractice because they are benefitting. Judicial sanctions are not an option for activity that occurs outside of any proceeding. Where is the control and check on such clearly unprofessional behavior, the only defense for which is that it generates income, if not the body responsible for policing its own conduct?
- rayiner 14y ago
  The standard for claims is that they must have some basis in law and fact or on some non-trivial argument for changing the law. Most troll claims are well inside that boundary, given duly issued patents and non-spurious allegations of technical infringement. Just because you think the troll claims are clearly invalid under existing law does not make them so. The law is arguably far too broad, but if there is a duly issued patent, thats all the "basis" in the law that is necessary. If that results in a lot of what you consider trivial cases, the fault is the law.
  - shawn-butler 14y ago
    Let's say I have a patent for rotating the image displayed on a homepage [0]. You are trying with a straight face to tell us that there is any valid belief that this is an enforceable patent other than the incomprehensible fact that it was granted? And further, if you do provide competent representation and advise me that this patent is basically null if it gets challenged, present me with the obvious prior art, etc then you believe (again with a straight face) that it is ethical behavior to, on my behalf, threaten another party unless payment is made with legal action representing what you know to be false to that party and more importantly having no legal basis for a positive outcome in any legal proceeding? There is always room for improving statutes as no crafted law is a perfect instrument. It is clear to everyone by now that the simple existence of a duly issued patent should not be considered on its own as a valid basis for litigation. And, for the most part abuses are taking place outside of judicial purview or being forum shopped to certain favorable jurisdictions. I take issue with the ethical lapses having no consequence, and am advocating for self-correcting behavior by the very body that has that task. [0] http://1.usa.gov/dR6UBy http://1.usa.gov/dR6UBy

monochromatic 14y ago

Disbar people for acting within the laws and regulations? Yeah, lemme know how that goes... Also, I'm not sure what you're trying to show with [0].

shawn-butler 14y ago
They are not providing competent representation which is the very basis on which bar associations are founded. I understand your cynicism but can not share it and also have any hope of a reasonable outcome to this game being played. If the rules cannot change and they want to continue to milk the cow without killing it, they need to reel in the bad actors. They have the authority and moral imperative to do so. The patent cited in [0] was filed in 2000, rejected and resubmitted multiple times with minor modifications over the course of 5 years until they found an examiner to accept it. It was a not insignificant patent and has been used recently in a very important case every reader of hn followed. This application was a continuation of U.S. application Ser. No. 11/000,413, filed on Dec. 1, 2004, which was a continuation of U.S. application Ser. No. 09/478,009, filed on Jan. 5, 2000, now U.S. Pat. No. 6,847,959, issued Jan. 25, 2005. Sorry it wasn't clear, there is no good way I know to "diff" or show you the history provided by the uspto interface. There may be better secondary sources, I know at least one nytimes journalist was asking questions about it.
- monochromatic 14y ago
  What's incompetent about that representation? And also, there's nothing at all unusual about filing continuations. I'm not gonna try to dig into the file history on my phone, but I'd be surprised if there's anything at all remarkable about this case--amendments, continuations, and (presumably) RCEs are absolutely par for the course.