Why Rackspace Is Suing The Most Notorious Patent Troll In America

Somewhat OT, but I'd love to see the term "patent troll" entered as official legal jargon.

+1 for Rackspace.

"Why not sue them right then and there"

If I read it correctly Rackspace probably wanted to see if they could be legitimately (in the eyes of the law) at fault.

The way I read that mind bogglingly stupid forbearance dance was as if a bill collector calls me up and says I have a bill to pay, but they won't tell me what it's for unless I promise not to dispute it. I'm not going sue then and there because maybe I really do have a bill outstanding, so I play their stupid game and agree neither side will do anything for 30 days, now show me the damn bill.

Well it speaks to the 'trollness' of patent trolling. In the Prenda Law case (and other copyright cases) the judiciary has decided in many cases that the 'threaten with action' strategy used is an issue. Had this been a "real" patent case the patent holder would approach Rackspace, say we think you infringe on patent X and you need to license that from us or stop infringing. Then license negotiations begin, and then either they license it or they break of negotiations and it becomes a lawsuit.

The steps here of attempting to intimidate them into a favorable position without any way of knowing if they are in fact liable, is what pushes it into the extortion space for me.

No, the course of action I would try to take in this situation is that as soon as I was presented with this demand I would respond, "Either sue us and open up to discovery, or go away, and if you go away and try to sue us later we'll use that as evidence that you didn't really believe we infringed in the first place."

I don't know if you have ever been in a bar fight but I can tell you from experience that once the trouble maker has asked you if you just called them a liar (or some other affront) there really isn't any negotiation that is going to work, their is going to be a fight whether you want it or not so your best bet is to just start planning to win it.

When presented with the "possible infringement" demand Rackspace was already in the fight. Appeasement doesn't work, it can push off the start of hostilities (and that can be strategic) but the safe bet is to assume they are coming after you. (which I have to believe RS knew because they did the whole mutual forbearance thing).

Whenever I see several different groups behaving in a manner I find obnoxious, I wonder incentives encourage this kind of behavior, and how those incentives might be reduced.

One such way is countersuit, which Rackspace is doing. If everyone (successfully) countersued, the incentive to be a patent troll would diminish.

There might be other ways. Is there some common property patent trolls depend on that might be penalized or forbidden? I've noticed that patent trolls rarely seem to produce anything. Perhaps some sort of "use it or lose it" clause, in which patent holders have a certain amount of time to effectively license their technology to some degree of effectiveness before they can't enforce infringements.

It works in other areas. For instance, in my home state, many people would love to live in the country extremely cheaply, so there's an incentive to set up dubious Christmas tree farms to get nice tax rates. To combat this, you have a certain number of years to turn a profit, and if you don't, you lose the farm credit.

(here's an example of why they do this: http://www.huntingnet.com/forum/wildlife-management-food-plo...)