Law Students Fend Off a Patent Troll

I've seen a lot of horseshit patents asserted against start-ups. If there was an organization that followed the troll around and offered defense services against all of their defendants, it would make trolling a lot harder, and might reduce the numbers of these parasitic lawyers involved in this shameless trade.

I just read about a Fish & Richardson patent partner who started filing his own "inventions" with the patent office, based on slight modifications of the patents he was filing for clients, and then sold those patents to trolls for huge sums. Its actually really easy to write patents focused on sabotaging your clients, if you are a lawyer and become familiar with their future roadmaps.

I know a bunch of trivial claims I could write right now and they would be worth a few million in a couple years, because Google, Facebook, and others would have to move in that direction in a few years (related to Machine Learning and image recognition).

All you have to do is follow conferences, understand the papers, and then write some trivial, and obvious evolutions of those techniques. Obviousness is something defendant's find extremely difficult to prove for highly complex technology, because the juries are made of people that have no idea what programming is, much less Machine Learning, and the judge is probably some moron, that thinks he is really smart, and assumes that he patent office is full of diligent geniuses ... and so he will give a lot of weight to the plaintiff's "USPTO certified" claims.

All it takes is for a programmer to be involved in one patent litigation and you see the patent system for what it is. A colossal system of giant, continuous, expensive injustice implemented in the hope of preventing an extremely rare form of injustice (when a true original inventor is cheated by a shameless larger company).

Imagine we institute an expensive system of highly trained commandos to follow every nerd in America around in high schools across the country, to protect them from bullying and to be their friends. It would certainly stop all physical bullying. But would it be worth the giant overhead/expense?

That is what we have to start asking ourselves. Even if the patent system prevents some rare injustices, WTF, is this continuous, and overwhelming cloud of uncertainty for every start-up and company worth it?

I feel like China and India are doing quite alright without overburdensome strong patent protection. And Europe seems fine with a hamstrung software patent system. And even in the US, Microsoft, Oracle, Adobe, IBM, and Apple got their start before software became patentable ... and they all did, and are doing fine.

If you see someone arguing for patents, they are almost always some fucking lawyer, troll, or someone sitting on a giant portfolio. The people actually making software every day don't want this shit system. VCs that fund start-ups, don't want it ... even though you would expect they want it, to protect their investments.

Even then, empirical evidence suggests that the use of patents by small firms against large ones is not as "extremely rare" as you think it is. From http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396319:

"... public and large private companies initiated 42% of all lawsuits studied, 28% of the time against other large companies... 4% of the suits were initiated by individual inventors (David v. Goliath), 18% of the suits were brought by small private companies against public or large private ones (small v. large), 16% pit one small- or medium-sized company against another (limited stakes), and in 8% a large firm sued a small one (predation profile)."

So at least 22% of lawsuits involve a "small guy vs big guy" scenario. But considering that trolls (who, surprisingly, file a relative minority of suits, the study finds) often buy patents from individual inventors / small companies who cannot litigate themselves, that number may likely be higher. Now this says nothing about the merits of the lawsuits, but there certainly are a lot of small firms taking on bigger firms.

Now setting aside your strawman that the intended use is only small vs big, at least two-thirds of the time patents are used by operating firms against a comparably sized or larger firm. That indicates that the majority of the time the system is not being abused, even if you make the questionable assumption that all big vs small and troll suits are completely meritless.

> I feel like China and India are doing quite alright without overburdensome strong patent protection.

Really? I don't see many notable technical innovations come out of those countries, and I say this as a citizen of one of them. They are very good at reproducing technology, no doubt, but invention is rare.

> And Europe seems fine with a hamstrung software patent system.

If there's one thing the smartphone wars showed us, it's that other countries have software patents of similar quality as the US. The litigation environment is very different, though.

Also, citation on the Fish & Richardson lawyer? IANAL, but that sounds like shenanigans that could lead to disbarment.

Litigation isn't a sign of success, it's a systemic failure leading to an enormous waste of resources. Meanwhile the notion that trolls don't comprise a large percentage of the actual litigation is entirely unsurprising since their business model is to offer an out of court settlement in an amount that compares favorably with the cost of successfully defending a lawsuit.

Does that mean that if the troll tries this on with someone else, this case can't be cited? Just wondering.