Patent Trolls: Make Them Pay

First is some form of legal ju-jitsu. If you are sued by a patent troll, you need to make it so they have no chance of stopping your business. One possibility is to dissolve and reform your company in some manner, perhaps moving it to another jurisdiction in the process.

This would at minimum cause a lot more work for trolls. It also causes hassle for you, but perhaps a business model could be built around this - imagine if your small startup could be legally dissolved and recreated, with all current legal structure in places like equity, somewhere else, perhaps as a division of a larger company. With the option to reform as an independent company whenever you want. Just moving around would make troll's lives much harder, and this could be much cheaper than fighting in the courts.

Another interesting idea is, as mentioned by others, that you can be sued for patent infringement even for products you use but didn't make. Everyone uses Windows or OS X, and they surely infringe many (ridiculous) patents, so even patent trolls are vulnerable to this. Microsoft and Apple do provide protection though, so this might be problematic.

I would also suggest it should be the stated policy of the organization not to defer at all to the PTO on the question of patent validity. Everyone should expect that the arbiters would consider most issued patents (at least, most issued software patents) to fail the obviousness test.

There is a long history here. These terrible software patents have been around a good while now, and they have been a curse on Internet companies for over a decade. The "America Invents Act" which passed about a year ago was the culmination of a lengthy process which started with the proposed Patent Reform Act of 2005. It went nowhere, nor did the later iterations in 2007, 2009 etc. These earlier bills definitely targeted patent trolls, but did not pass because of significant opposition by a coalition of interests that did not (and do not) want to accept the changes necessary to hammer the patent trolls. Take a look at the organizations against and for at the wikepedia entry for the Patent Reform Act of 2009 and you will see what I mean.

Now, those opponents are still powerful; therefore to pass any legislation a bill will need to be acceptable to most of them. That means any bill that passes will not be ideal. My goal is to try to get a bill that at least levels the playing field and puts plaintiffs in a position where they have economic risk. The status quo is simply untenable and it is getting worse.

Many of the comments here correctly point out flaws in the SHIELD Act. We will try hard to convince the sponsors to correct these flaws to ensure the bill has teeth. However we must not lose sight of the real issue, namely whether the bill can get out of committee and receive a majority of the House and 60 Senators. It will be hard, and it will take a lot of public support. Please write Congressmen DeFazio and Chaffetz, as well as your own Members of Congress and give them your point view. They will pay attention. If they do not hear from thousands of people, nothing will change.