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Actually the idea that they should be forced to go after the largest infringer is a really good one, one which I haven't seen advocated for very much and seeing

Actually the idea that they should be forced to go after the largest infringer is a really good one, one which I haven't seen advocated for very much and seeing it there turned my initial first reaction of the piece upside down (nothing personal to original blog author, I just have a strong negative bias towards SEO). Though you can handwave the idea away by the technicality of it being difficult to determine who the "largest" infringer is, you could achieve the gist of idea by structuring enforcement of the IP protection such that if you know about infringement or can reasonably be assumed to know about infringement (because it is happening very publicly), you must take action or risk losing the protection. This is already how trademarks work, why not patents? There is some initial bad fallout that would come from a system like this in that there are surely companies who know about infringers of their patents who let it slide for whatever reason and this might force them to act, but I think the eventual positive effects this sort of system would have (IMO) would be worth that initial pain.

diminoten 13y ago
What you're saying is a terrible idea, because it shifts due diligence to the infringing party. This means that whenever I create something, I'd have to hire a legal team to figure out if I'm infringing on something or not, or risk losing the ensuing lawsuit. Furthermore, I resent the notion that I'm just "handwaving" at all here. It's not only difficult, but completely and entirely impossible. It's entirely untenable, and it's a little silly to take patent law reform advice from someone who admits to not knowing much about patent law.
- marcosdumay 13y ago
  > This means that whenever I create something, I'd have to hire a legal team to figure out if I'm infringing on something or not, or risk losing the ensuing lawsuit. What's the difference from the current situation?
  - diminoten 13y ago
    It's currently... not that way?
    - nknighthb 13y ago
      Of course it is. If you don't want to be hit with or lose a patent infringement lawsuit, you'd damn well better search for applicable patents so you can avoid them. Perversely, if you simply assume there will be patent lawsuits you will lose, you're better off not finding them, lest you then be hit with treble damages. For a small entity, of course, it doesn't matter. Your legal bills will bankrupt you anyway.
      - diminoten 13y ago
        Actually, no, that's not how it works. When being sued for patent infringement, a valid defense is indeed, "I didn't know about that patent."
        georgemcbay 13y ago
        No it isn't. You either infringe a patent or you don't. It is better not to know about the patent if you get caught infringing because of the treble damage possibility that nknighthb referenced, but "I didn't know about that patent" is a meaningless defense, you're still on the hook for the base cost of the infringement, just not 3x whatever that base is. In either the current situation or the one I think is worth considering, you either infringe or you don't, nothing changes with regard to due diligence. Many patents are infringed every day with the infringing party having no idea infringement occurred (see: Carmack's reinvention of the z-fail stencil shadow system or any of countless other examples); but not knowing of the patent is absolutely not a defense. This is one of the more insidious problems with the current patent system as it relates to software, there are so many broad patents currently active that you basically can't avoid infringing all of them if you write any code at all, even if you never spend a second looking at other people's patents. The only variables are will you ever get big enough to be worth suing or not prior to the lifetime of the many patents you will invariably infringe. Also, the idea that having a system where the IP holder is essentially forced to act to maintain control of the IP can't, by definition, be "impossible" because it is already how trademark law works in the US. And as I mentioned in the original post I made on this I recognize there would be some negative fallout from the proposed system, but I think over the long-run it efficiently adds in a lot of features to patents that are currently missing (eg. a lot of people have proposed a yearly fee to renew patents to make sure people don't horde mountains of defensive garbage patents, this would achieve that same goal because they wouldn't want to put the legal resources in worthless suits against known infringers, and thus their garbage patents would very quickly lose their power; also it would make it far easier for many unknowing infringers (see for example the recent audio podcast patent disaster that is still going on) to group up to fight garbage patents because the person claiming patent protection would be forced to pull them all in instead of using the current system which is "go after the small fish, get a victory in East Texas, then use that to bleed everyone else dry".
bunderbunder 13y ago
Requiring patent holders to go after the largest infringer would tilt the table sharply in favor of large companies. Lawsuits involving the largest corporations are enormously expensive affairs. Especially in the USA, with our extremely expansive rules for what information is discoverable in civil cases. That's part of why they so rarely make it to court when it's big companies suing other big companies. When it's small companies suing big companies, that asymmetry makes it really tough. And a small company suing a big company for patent infringement is likely already feeling some pain in the pocketbook. But if a small company whose patents are being infringed can start out by getting a judgment in their favor in a case that's less expensive to pursue, that will give them a big leg up when the time comes to take on the big guys. A rule saying that you have to go after the largest infringer would take that away.
- georgemcbay 13y ago
  I don't really agree with this for a couple of reasons. One is that juries, by and large, tend to favor David in David and Goliath cases. Also, it shouldn't be that hard to find competent lawyers willing to work on contingency to take meaningful patent case against a larger corporation if they get a percentage of the damages. For cases where the patent isn't that strong to begin with or the infringement isn't very clear cut and thus the lawyer's EV is very low, well then fuck the little guy anyway, he shouldn't be patent trolling in the first place.
  - bmm6o 13y ago
    It doesn't matter if you're likely to win if you can't afford to litigate. > it shouldn't be that hard to find competent lawyers willing to work on contingency to take meaningful patent case Yeah, that's why it happens all the time. (hint, it doesn't).
    - bunderbunder 13y ago
      Y'know, it's becoming increasingly common in patent law, and the trend is disturbingly closely related to the rise of patent trolling. The oversupply of lawyers in the USA has become so great that many attorneys will take on anything at this point, including patent cases on contingency. And that makes it easy for businesses to hop on board, since the cost to them is so low.

diminoten 13y ago

What you're saying is a terrible idea, because it shifts due diligence to the infringing party. This means that whenever I create something, I'd have to hire a legal team to figure out if I'm infringing on something or not, or risk losing the ensuing lawsuit. Furthermore, I resent the notion that I'm just "handwaving" at all here. It's not only difficult, but completely and entirely impossible. It's entirely untenable, and it's a little silly to take patent law reform advice from someone who admits to not knowing much about patent law.

marcosdumay 13y ago
> This means that whenever I create something, I'd have to hire a legal team to figure out if I'm infringing on something or not, or risk losing the ensuing lawsuit. What's the difference from the current situation?
- diminoten 13y ago
  It's currently... not that way?
  - nknighthb 13y ago
    Of course it is. If you don't want to be hit with or lose a patent infringement lawsuit, you'd damn well better search for applicable patents so you can avoid them. Perversely, if you simply assume there will be patent lawsuits you will lose, you're better off not finding them, lest you then be hit with treble damages. For a small entity, of course, it doesn't matter. Your legal bills will bankrupt you anyway.
    - diminoten 13y ago
      Actually, no, that's not how it works. When being sued for patent infringement, a valid defense is indeed, "I didn't know about that patent."
      - georgemcbay 13y ago
        No it isn't. You either infringe a patent or you don't. It is better not to know about the patent if you get caught infringing because of the treble damage possibility that nknighthb referenced, but "I didn't know about that patent" is a meaningless defense, you're still on the hook for the base cost of the infringement, just not 3x whatever that base is. In either the current situation or the one I think is worth considering, you either infringe or you don't, nothing changes with regard to due diligence. Many patents are infringed every day with the infringing party having no idea infringement occurred (see: Carmack's reinvention of the z-fail stencil shadow system or any of countless other examples); but not knowing of the patent is absolutely not a defense. This is one of the more insidious problems with the current patent system as it relates to software, there are so many broad patents currently active that you basically can't avoid infringing all of them if you write any code at all, even if you never spend a second looking at other people's patents. The only variables are will you ever get big enough to be worth suing or not prior to the lifetime of the many patents you will invariably infringe. Also, the idea that having a system where the IP holder is essentially forced to act to maintain control of the IP can't, by definition, be "impossible" because it is already how trademark law works in the US. And as I mentioned in the original post I made on this I recognize there would be some negative fallout from the proposed system, but I think over the long-run it efficiently adds in a lot of features to patents that are currently missing (eg. a lot of people have proposed a yearly fee to renew patents to make sure people don't horde mountains of defensive garbage patents, this would achieve that same goal because they wouldn't want to put the legal resources in worthless suits against known infringers, and thus their garbage patents would very quickly lose their power; also it would make it far easier for many unknowing infringers (see for example the recent audio podcast patent disaster that is still going on) to group up to fight garbage patents because the person claiming patent protection would be forced to pull them all in instead of using the current system which is "go after the small fish, get a victory in East Texas, then use that to bleed everyone else dry".

bunderbunder 13y ago

Requiring patent holders to go after the largest infringer would tilt the table sharply in favor of large companies. Lawsuits involving the largest corporations are enormously expensive affairs. Especially in the USA, with our extremely expansive rules for what information is discoverable in civil cases. That's part of why they so rarely make it to court when it's big companies suing other big companies. When it's small companies suing big companies, that asymmetry makes it really tough. And a small company suing a big company for patent infringement is likely already feeling some pain in the pocketbook. But if a small company whose patents are being infringed can start out by getting a judgment in their favor in a case that's less expensive to pursue, that will give them a big leg up when the time comes to take on the big guys. A rule saying that you have to go after the largest infringer would take that away.

georgemcbay 13y ago
I don't really agree with this for a couple of reasons. One is that juries, by and large, tend to favor David in David and Goliath cases. Also, it shouldn't be that hard to find competent lawyers willing to work on contingency to take meaningful patent case against a larger corporation if they get a percentage of the damages. For cases where the patent isn't that strong to begin with or the infringement isn't very clear cut and thus the lawyer's EV is very low, well then fuck the little guy anyway, he shouldn't be patent trolling in the first place.
- bmm6o 13y ago
  It doesn't matter if you're likely to win if you can't afford to litigate. > it shouldn't be that hard to find competent lawyers willing to work on contingency to take meaningful patent case Yeah, that's why it happens all the time. (hint, it doesn't).
  - bunderbunder 13y ago
    Y'know, it's becoming increasingly common in patent law, and the trend is disturbingly closely related to the rise of patent trolling. The oversupply of lawyers in the USA has become so great that many attorneys will take on anything at this point, including patent cases on contingency. And that makes it easy for businesses to hop on board, since the cost to them is so low.