4 ms·

Patent trolls own a patent, at the very least. The court could seize the patent and auction it off (or place it in the public domain) if the troll's string-pull

by pash 14y ago

Patent trolls own a patent, at the very least. The court could seize the patent and auction it off (or place it in the public domain) if the troll's string-pullers choose not to pay the loser's penalty.

visarga 14y ago
Putting the patent in the public domain or invalidating it would be a good penalty for frivolous patent suits.
- bloaf 14y ago
  Or the maintenance cost could be significantly increased. I would love something like this: any failed patent suit doubles the maintenance cost for all patents owned by the entity which owns that patent. The effect would be transferable (i.e. if they sold the patent to some other company, that company's costs would double) and it would stack (i.e. failing with the same patent twice, or owning 2 such patents would quadruple your maintenance costs.) The effect would last for some fixed period of time, so if the patent were truly valuable, a company could opt to keep it anyway. Obviously, that would make any patent involved in a failed lawsuit highly undesirable, so no one would want to buy it. It would also mean that shell companies wouldn't be able to send the patent back to a company dedicated to simply amassing patents.
  - jbri 14y ago
    This would discourage legitimate patent suits, while not particularly hurting one-patent shell companies.
  - benologist 14y ago
    Might as well just take them off them, it's a lot less messy and it doesn't require anyone to choose not to be a douche even if it's the less attractive option.
kalms 14y ago
I like this one. He understands!
fab13n 14y ago
If they lost, that patent has probably been invalidated. At the very least, its applicability has been downplayed.
- pash 14y ago
  A patent troll loses either when its patent is invalidated in the course of litigation or when its patent is upheld but the court determines that the alleged infringement did not occur. About 40% of patents are invalidated in the course of infringement suits. When a patent is upheld, about half the time the court finds that the alleged infringement did not occur. [1] So there would be a valid patent to seize in about 30% of cases in which a patent troll loses its suit. It's a start. I don't think losers' penalties would fundamentally change the financial calculus for patent trolls, however, because 97% of patent suits are settled before they go to trial. [2] Doubtless a similarly large share of threatened suits are resolved before a suit is even filed. What needs to change is the calculus for the troll's target of paying up versus challenging the patent in court. Here's a crazy idea. Perhaps patent-holders should be required to register licensing income, as well as infringement complaints, with the patent office. A patent's validity would automatically be assessed by a court if the licensed value or the number of complaints passed some threshold. Since so many patents are invalidated, this would encourage patent-holders to seek royalties or threaten litigation in fewer circumstances. Alternatively, a similar system could be used as the basis for enabling class actions to challenge a patent's validity. Merely publicizing a patent troll's actions would help its targets organize to share litigation expenses. Wouldn't it be a wonderful thing if we began to see television ads asks, "Have you been threatened with a lawsuit and strong-armed into paying licensing fees on a patent covering ..." 1. Michael Heller, Gridlock Economy, 2010. 2. http://www.freakonomics.com/2011/07/11/how-patent-trolling-taxes-innovation/ http://www.freakonomics.com/2011/07/11/how-patent-trolling-t...

by pash 14y ago

visarga 14y ago

Putting the patent in the public domain or invalidating it would be a good penalty for frivolous patent suits.

bloaf 14y ago
Or the maintenance cost could be significantly increased. I would love something like this: any failed patent suit doubles the maintenance cost for all patents owned by the entity which owns that patent. The effect would be transferable (i.e. if they sold the patent to some other company, that company's costs would double) and it would stack (i.e. failing with the same patent twice, or owning 2 such patents would quadruple your maintenance costs.) The effect would last for some fixed period of time, so if the patent were truly valuable, a company could opt to keep it anyway. Obviously, that would make any patent involved in a failed lawsuit highly undesirable, so no one would want to buy it. It would also mean that shell companies wouldn't be able to send the patent back to a company dedicated to simply amassing patents.
- jbri 14y ago
  This would discourage legitimate patent suits, while not particularly hurting one-patent shell companies.
- benologist 14y ago
  Might as well just take them off them, it's a lot less messy and it doesn't require anyone to choose not to be a douche even if it's the less attractive option.

kalms 14y ago

I like this one. He understands!

fab13n 14y ago

If they lost, that patent has probably been invalidated. At the very least, its applicability has been downplayed.

pash 14y ago
A patent troll loses either when its patent is invalidated in the course of litigation or when its patent is upheld but the court determines that the alleged infringement did not occur. About 40% of patents are invalidated in the course of infringement suits. When a patent is upheld, about half the time the court finds that the alleged infringement did not occur. [1] So there would be a valid patent to seize in about 30% of cases in which a patent troll loses its suit. It's a start. I don't think losers' penalties would fundamentally change the financial calculus for patent trolls, however, because 97% of patent suits are settled before they go to trial. [2] Doubtless a similarly large share of threatened suits are resolved before a suit is even filed. What needs to change is the calculus for the troll's target of paying up versus challenging the patent in court. Here's a crazy idea. Perhaps patent-holders should be required to register licensing income, as well as infringement complaints, with the patent office. A patent's validity would automatically be assessed by a court if the licensed value or the number of complaints passed some threshold. Since so many patents are invalidated, this would encourage patent-holders to seek royalties or threaten litigation in fewer circumstances. Alternatively, a similar system could be used as the basis for enabling class actions to challenge a patent's validity. Merely publicizing a patent troll's actions would help its targets organize to share litigation expenses. Wouldn't it be a wonderful thing if we began to see television ads asks, "Have you been threatened with a lawsuit and strong-armed into paying licensing fees on a patent covering ..." 1. Michael Heller, Gridlock Economy, 2010. 2. http://www.freakonomics.com/2011/07/11/how-patent-trolling-taxes-innovation/ http://www.freakonomics.com/2011/07/11/how-patent-trolling-t...