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I'm encouraged that patent trolls are getting knocked. But my fear is that patent law will hit such a state that only large corporations can wield them. If I'

by dded 13y ago

I'm encouraged that patent trolls are getting knocked. But my fear is that patent law will hit such a state that only large corporations can wield them. If I'm a small patent holder, and I'm liable for court costs if I lose a suit, then it becomes far too risky to defend my patent against a corporation that violates it.

lostcolony 13y ago
Just like currently it's far too risky to fight a troll in court even for a corporation, since treble damages means that if the jury (because 12 random people from the streets clearly know enough about technology, or can understand it well enough when it's explained to them, to pass a fair judgement) decides you're guilty, you're paying through the nose. The comparatively small amount demanded by the patent troll to go away, from large AND small businesses, is calculated to be the maximum amount possible where it still seems a better choice than that risk. We need to either remove that risk, or make it equally risky if they go to court. Or, you know, stop pretending software is patentable.
- blueskin_ 13y ago
  A good idea might be to reform the law to allow actual damages to be awarded against a patent troll if their target is found non-infringing rather than just forcing them to pay the legal costs.
- dded 13y ago
  I'm with you on the undesirability of sw patents. But nowadays, even hw patents are a problem. There doesn't seem to be any meaningful requirement of a patentable idea being non-obvious to "one skilled in the arts." What we have is a race to occupy the available implementation space. But I don't see the courts addressing either of these concerns. What they are addressing is the troll's ability to misuse patents against companies that make things (good), but they crank up the financial cost and risk so that only big players can play (bad).
- marcosdumay 13y ago
  The result is that only big companies can be patent trolls. It's still an improvement, but I'm quite sure it's not the intented one. By the way, small companies were never able to defend their patents anyway. That does not change.
  - rayiner 13y ago
    I don't know how you define "small" but ARM certainly manages to defend its patents against companies that are many times larger (Samsung is a couple of hundred times bigger both in revenues and number of employees). Patent litigation is expensive, but it's not that expensive for even relatively small corporations. Apple spent about $60 million in legal fees in its battle with Samsung in California (which resulted in the $1 billion verdict): http://www.fosspatents.com/2013/12/apple-demands-15-million-in-legal-fees.html http://www.fosspatents.com/2013/12/apple-demands-15-million-.... That case ran for two and a half years, involved a trial, an appeal, and a retrial. $60 million over 2-3 years is expensive, but it's not intractably expensive for a moderately sized company, especially if the patents are critical to the business and adequate litigation financing is available. And $60 million is for a blockbuster, "we're taking it personally" grudge match like the one Apple waged. A more typical patent lawsuit might cost $5-10 million. And if the plaintiff's case is strong, it might cost nothing for a firm to take it on contingency. Every year in the U.S. about 150-250 companies hit $100 million in revenues per year, about 20 of which are technology companies: http://www.kauffman.org/newsroom/2013/06/number-of-us-companies-that-reach-100million-in-annual-revenues-remarkably-stable-over-past-20-years-according-to-kauffman-paper http://www.kauffman.org/newsroom/2013/06/number-of-us-compan.... These all have the resources to defend their patents against even a fairly large company.
  - mark-r 13y ago
    > I'm quite sure it's not the intented one. Don't be so sure - remember who makes the big political contributions.
blueskin_ 13y ago
Perhaps the profile of the patent holder should be considered. Company with no revenue, no assets and no trade vs. a small trading business or an individual is fairly clear-cut.
jaynos 13y ago
If you have a serious (winnable) claim, there is surely a law firm that will take your case for a percentage of the final settlement.
- dded 13y ago
  Sure. But I doubt that said law firm would agree to cover GiantCorp's legal costs should we lose.
vacri 13y ago
It's already in that state. I used to work for a company with a $40M turnover, and our hardware had some inferior design decisions because a larger competitor held patents on obvious designs[1]. It was not viable to contest the myriad of small, obvious patents in court because of the huge expense and the non-certainty of winning. [1]For example, our humidifier had a removable water tank held in with a flap with a clip, because the competitor held a patent on it being held in with a hinged door. Stupidly obvious, but it still means a trip to court if you want it.

by dded 13y ago

lostcolony 13y ago

Just like currently it's far too risky to fight a troll in court even for a corporation, since treble damages means that if the jury (because 12 random people from the streets clearly know enough about technology, or can understand it well enough when it's explained to them, to pass a fair judgement) decides you're guilty, you're paying through the nose. The comparatively small amount demanded by the patent troll to go away, from large AND small businesses, is calculated to be the maximum amount possible where it still seems a better choice than that risk. We need to either remove that risk, or make it equally risky if they go to court. Or, you know, stop pretending software is patentable.

blueskin_ 13y ago
A good idea might be to reform the law to allow actual damages to be awarded against a patent troll if their target is found non-infringing rather than just forcing them to pay the legal costs.
dded 13y ago
I'm with you on the undesirability of sw patents. But nowadays, even hw patents are a problem. There doesn't seem to be any meaningful requirement of a patentable idea being non-obvious to "one skilled in the arts." What we have is a race to occupy the available implementation space. But I don't see the courts addressing either of these concerns. What they are addressing is the troll's ability to misuse patents against companies that make things (good), but they crank up the financial cost and risk so that only big players can play (bad).
marcosdumay 13y ago
The result is that only big companies can be patent trolls. It's still an improvement, but I'm quite sure it's not the intented one. By the way, small companies were never able to defend their patents anyway. That does not change.
- rayiner 13y ago
  I don't know how you define "small" but ARM certainly manages to defend its patents against companies that are many times larger (Samsung is a couple of hundred times bigger both in revenues and number of employees). Patent litigation is expensive, but it's not that expensive for even relatively small corporations. Apple spent about $60 million in legal fees in its battle with Samsung in California (which resulted in the $1 billion verdict): http://www.fosspatents.com/2013/12/apple-demands-15-million-in-legal-fees.html http://www.fosspatents.com/2013/12/apple-demands-15-million-.... That case ran for two and a half years, involved a trial, an appeal, and a retrial. $60 million over 2-3 years is expensive, but it's not intractably expensive for a moderately sized company, especially if the patents are critical to the business and adequate litigation financing is available. And $60 million is for a blockbuster, "we're taking it personally" grudge match like the one Apple waged. A more typical patent lawsuit might cost $5-10 million. And if the plaintiff's case is strong, it might cost nothing for a firm to take it on contingency. Every year in the U.S. about 150-250 companies hit $100 million in revenues per year, about 20 of which are technology companies: http://www.kauffman.org/newsroom/2013/06/number-of-us-companies-that-reach-100million-in-annual-revenues-remarkably-stable-over-past-20-years-according-to-kauffman-paper http://www.kauffman.org/newsroom/2013/06/number-of-us-compan.... These all have the resources to defend their patents against even a fairly large company.
- mark-r 13y ago
  > I'm quite sure it's not the intented one. Don't be so sure - remember who makes the big political contributions.

blueskin_ 13y ago

Perhaps the profile of the patent holder should be considered. Company with no revenue, no assets and no trade vs. a small trading business or an individual is fairly clear-cut.

jaynos 13y ago

If you have a serious (winnable) claim, there is surely a law firm that will take your case for a percentage of the final settlement.

dded 13y ago
Sure. But I doubt that said law firm would agree to cover GiantCorp's legal costs should we lose.

vacri 13y ago

It's already in that state. I used to work for a company with a $40M turnover, and our hardware had some inferior design decisions because a larger competitor held patents on obvious designs[1]. It was not viable to contest the myriad of small, obvious patents in court because of the huge expense and the non-certainty of winning. [1]For example, our humidifier had a removable water tank held in with a flap with a clip, because the competitor held a patent on it being held in with a hinged door. Stupidly obvious, but it still means a trip to court if you want it.