4 ms·

One of the interesting themes in the article is "we can't afford to go to court". Not to detract from the main issue of patent reform but perhaps America shoul

One of the interesting themes in the article is "we can't afford to go to court". Not to detract from the main issue of patent reform but perhaps America should look into making it's legal system a bit more user friendly. It should be completely viable for a smaller entity to take on one of these "bogus" claims in court and not go bankrupt doing it. Smacking these claims down in court might go a long way towards preventing future shakedowns.

rayiner 14y ago
Nothing prevents you from representing yourself. Maybe this is an easy way to disrupt patent trolling: a "how to" guide for taking an obviously stupid claim out in summary judgment.
- dllthomas 14y ago
  Would be awesome, but smells risky.
- thaumaturgy 14y ago
  > Nothing prevents you from representing yourself. ...other than good sense.
  - noonespecial 14y ago
    That's the part that needs fixing. A greedy amoral entity can threaten your entire livelihood for no cost to them and you are powerless to defend yourself or even understand the process by which to do so. That sounds like institutionalized injustice to me.
    - rayiner 14y ago
      How are you "powerless to defend yourself or even understand the process?" There is nothing magic about the legal system. You can pick up the crucial aspects of the patent law probably in less time than it'd take you to pick up a new scripting language. And since it's federal law, the rules of civil procedure and evidence are written in very easy to understand English.
      - sigsergv 14y ago
        You WON'T “pick up crucial aspects” because there all aspects are crucial. Law practice costs so much money mainly because it's totally entangled and messed up, and ordinary person just physically can't follow all these legal procedures correctly.
        rayiner 14y ago
        This is not true at all. There is nothing complex about basic legal practice. Legal services get expensive because companies hire expensive people to work on very complicated problems (e.g. multi billion business deal gone wrong). The process itself, for simple problems, is not complex or "messed up."
        thaumaturgy 14y ago
        We're not talking about small-claims court here. Your profile says that you're an attorney; I would be absolutely stunned if any trial attorney would suggest that a pro se defendant could prevail in a patent lawsuit against a much more resourceful organization without any more experience than reading a book or two (let alone a "how to"). You would know as well as anyone that legal actions are more a game than an effort to determine who actually is right or wrong. The entity with the greater amount of money in the bank can afford attorneys who are better at playing the game; while everybody loves a good story of the self-taught layman winning a case, in reality most laymen would get absolutely screwed. Certainly if it's a fight worth fighting -- if the patent dispute is that important to the victim's business -- then they should fight it as well as they can, especially since they would have so much riding on the outcome: potential grievous damages awarded to the plaintiff, for one. And, this all presupposes that the layman is lucky enough to get a judge presiding over the case that has some competence in the area of expertise covered by the patent. If the suit is held in the East District Court of Texas, well, the defendant already has the odds stacked against them. Even if the lawsuit doesn't go to trial, and gets settled like 96% of other such suits [1], the layman's ignorance of process could likely end up costing them far more in the settlement than they would spend on letters from a patent attorney's desk. The layman would be attempting to negotiate from a much weaker position, and the attorneys for the patent troll would know it. [1]: http://www.ipwatchdog.com/2011/06/02/what-to-do-sued-for-patent-infringement/id=17538/ http://www.ipwatchdog.com/2011/06/02/what-to-do-sued-for-pat...
- pravda 14y ago
  In the USA, you can't represent yourself if you are a corporation or an LLC. Gotta pay a lawyer. Although I suppose you can find some unemployed law school graduate pretty cheap on craigslist.
  - rayiner 14y ago
    A corporation is not "yourself" it's a distinct legal entity. Corporate form isn't just a neat little giveaway to businesses--treating your business as a separate person has both advantages and disadvantages.
- krichman 14y ago
  > Nothing prevents you from representing yourself. If you have foolishly decided to conduct business without creating a corporate entity to protect your personal assets from lawsuits, then yes you may. If you have created a corporate entity it may only be represented by a licensed attorney.
  - rayiner 14y ago
    If you're incorporated, then you're not representing yourself if the corporation is sued. You can't have your cake and eat it too. If you want to treat the corporation as a separate person for liability purposes, you have to accept that it'll be treated as a separate person for other purposes.
gav 14y ago
It's not just the cost of going to court you have to think about, it's the cost of having your lawyers investigate a claim too. There was a company going around asking $25k from e-tailors for a seemingly bogus search patent. The lawyers we worked with recommended that the client just settle as they'd blow through that way before it ever got to trial. The legality of using pre-settlement letters to extort money from smaller companies needs to be looked at.

rayiner 14y ago

Nothing prevents you from representing yourself. Maybe this is an easy way to disrupt patent trolling: a "how to" guide for taking an obviously stupid claim out in summary judgment.

dllthomas 14y ago
Would be awesome, but smells risky.
thaumaturgy 14y ago
> Nothing prevents you from representing yourself. ...other than good sense.
- noonespecial 14y ago
  That's the part that needs fixing. A greedy amoral entity can threaten your entire livelihood for no cost to them and you are powerless to defend yourself or even understand the process by which to do so. That sounds like institutionalized injustice to me.
  - rayiner 14y ago
    How are you "powerless to defend yourself or even understand the process?" There is nothing magic about the legal system. You can pick up the crucial aspects of the patent law probably in less time than it'd take you to pick up a new scripting language. And since it's federal law, the rules of civil procedure and evidence are written in very easy to understand English.
    - sigsergv 14y ago
      You WON'T “pick up crucial aspects” because there all aspects are crucial. Law practice costs so much money mainly because it's totally entangled and messed up, and ordinary person just physically can't follow all these legal procedures correctly.
      - rayiner 14y ago
        This is not true at all. There is nothing complex about basic legal practice. Legal services get expensive because companies hire expensive people to work on very complicated problems (e.g. multi billion business deal gone wrong). The process itself, for simple problems, is not complex or "messed up."
        thaumaturgy 14y ago
        We're not talking about small-claims court here. Your profile says that you're an attorney; I would be absolutely stunned if any trial attorney would suggest that a pro se defendant could prevail in a patent lawsuit against a much more resourceful organization without any more experience than reading a book or two (let alone a "how to"). You would know as well as anyone that legal actions are more a game than an effort to determine who actually is right or wrong. The entity with the greater amount of money in the bank can afford attorneys who are better at playing the game; while everybody loves a good story of the self-taught layman winning a case, in reality most laymen would get absolutely screwed. Certainly if it's a fight worth fighting -- if the patent dispute is that important to the victim's business -- then they should fight it as well as they can, especially since they would have so much riding on the outcome: potential grievous damages awarded to the plaintiff, for one. And, this all presupposes that the layman is lucky enough to get a judge presiding over the case that has some competence in the area of expertise covered by the patent. If the suit is held in the East District Court of Texas, well, the defendant already has the odds stacked against them. Even if the lawsuit doesn't go to trial, and gets settled like 96% of other such suits [1], the layman's ignorance of process could likely end up costing them far more in the settlement than they would spend on letters from a patent attorney's desk. The layman would be attempting to negotiate from a much weaker position, and the attorneys for the patent troll would know it. [1]: http://www.ipwatchdog.com/2011/06/02/what-to-do-sued-for-patent-infringement/id=17538/ http://www.ipwatchdog.com/2011/06/02/what-to-do-sued-for-pat...
pravda 14y ago
In the USA, you can't represent yourself if you are a corporation or an LLC. Gotta pay a lawyer. Although I suppose you can find some unemployed law school graduate pretty cheap on craigslist.
- rayiner 14y ago
  A corporation is not "yourself" it's a distinct legal entity. Corporate form isn't just a neat little giveaway to businesses--treating your business as a separate person has both advantages and disadvantages.
krichman 14y ago
> Nothing prevents you from representing yourself. If you have foolishly decided to conduct business without creating a corporate entity to protect your personal assets from lawsuits, then yes you may. If you have created a corporate entity it may only be represented by a licensed attorney.
- rayiner 14y ago
  If you're incorporated, then you're not representing yourself if the corporation is sued. You can't have your cake and eat it too. If you want to treat the corporation as a separate person for liability purposes, you have to accept that it'll be treated as a separate person for other purposes.

gav 14y ago

It's not just the cost of going to court you have to think about, it's the cost of having your lawyers investigate a claim too. There was a company going around asking $25k from e-tailors for a seemingly bogus search patent. The lawyers we worked with recommended that the client just settle as they'd blow through that way before it ever got to trial. The legality of using pre-settlement letters to extort money from smaller companies needs to be looked at.