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New USPTO Memo Makes Fighting Patent Trolls Even Harder

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Re: New USPTO Memo Makes Fighting Patent Trolls Even Harder

#71

Post by brandall10 »

therein wrote: post #55
daemonologist wrote: post #49

Earlier quoted context omitted.

You can buy IP insurance; the problem is that the proposed strategy only works against patent trolls. If you infringed a legitimate patent the insurer would be screwed, so they'd want to do an enormous (impossible?) amount of due diligence before writing the policy. As with most other insurance policies, insurers in practice are only willing to take on a portion of the risk.

Couldn't some innovative insurance company create a policy that adds a clause like "policy kicks in if the litigant fits the criteria of a patent troll (as described above, lacking any assets besides the patent or a few patents that don't pass initial muster as legitimate, or has fewer than two physical locations with at least 4 non executive employees). Even saying something like "if the litigant has no health insur…

The only issue is misalignment of incentives.

A patent troll will take a look at such a policy and do the bare minimum to give off the appearance of a ‘real’ company.

And then the insurance company will simply go “yep, that tracks”, with little incentive to investigate as it’s not in their best interest.

Re: New USPTO Memo Makes Fighting Patent Trolls Even Harder

#72

Post by fernmyth »

lofaszvanitt wrote: post #68
adgjlsfhk1 wrote: post #58

Earlier quoted context omitted.

Because it's generally considered bad policy to make it illegal for poor people to sue.

Yeah, that's trivial. But law has so many edge cases and seemingly it always favor either powerful or wealthy individuals. Plus, poor people cannot afford the litigation costs...

[Written laws] were just like spiders' webs; they would hold the weak and delicate... but would be torn to pieces by the rich and powerful

- Plutarch

Re: New USPTO Memo Makes Fighting Patent Trolls Even Harder

#73

Post by antasvara »

Teever wrote: post #50
rcxdude wrote: post #24

Earlier quoted context omitted.

How does that help? A patent troll doesn't really have any reputation to protect.

If legal consequences aren't a possible avenue to prevent unacceptable behaviour from someone then a viable alternative is to make that person a pariah. The more people know that someone is doing unscrupulous things the more people can choose to not do business with that person or interact with them in a friendly matter. Ideally this would lead to a scenario where they lose the means to continue to do unacceptable th…

The point here is that a patent troll isn't really a "business." There would be no real reason to work with the patent troll outside of the extortion they're using the patent for. Given the options for engagement are "settle or be sued," a friendly approach was never really an option.

Given these parameters, how would making them a pariah change the functioning of the business?

Re: New USPTO Memo Makes Fighting Patent Trolls Even Harder

#74

Post by antasvara »

gist wrote: post #67
karaterobot wrote: post #39

Earlier quoted context omitted.

It's not really a question of whether the patent troll has a legitimate patent or not—in the sense of having clear ownership over the IP, that is. They generally do. We consider someone a patent troll when they don't make use of the patent themselves, except to extract money from other people, typically through threats of legal action. They're exploiting the fear of being sued for a lot of money in order to get a com…

> when they don't make use of the patent themselves, except to extract money from other people, typically through threats of legal action. If someone has (what you have called) 'a legitimate patent' then they have the right (whether they use the patent or not) to then pursue legal action to either stop use of the patent or to settle for money damages. What companies don't like is someone coming along with the ability…

I feel like you're discussing this from a legal perspective, when it's really more of a moral (not the right word but the general concept is fine) one.

"GE defending a patent they use in their products" and "an LLC with one patent as an asset and no real business outside of defending said patent" are two entirely different situations, even if legally they're the "same."

Re: New USPTO Memo Makes Fighting Patent Trolls Even Harder

#75

Post by antasvara »

herniatedeel wrote: post #10
ujkhsjkdhf234 wrote: post #8

> Congress Created IPR to Protect the Public—Not Just Patent Owners For this administration, this is a problem to be solved. Big business are the masters now and we need to make it easier for them to step on small business by any means.

Big business isn't really monolithic when it comes to patents. Some large tech companies love patents (MSFT, e.g.), while others (Google, e.g.) seem to abhor them. Also, the troll problem is a problem for big business, not a benefit to big business.

Patent trolls benefit from it being expensive and time-consuming to challenge patents (and defend yourself from infringement claims)

These regulations are actually beneficial to big business. It makes it significantly easier to defend your own patents and sue anybody that infringes on them.

I imagine that these benefits are much bigger than the downside of dealing with patent trolls.

Re: New USPTO Memo Makes Fighting Patent Trolls Even Harder

#76

Post by [deleted] »

daemonologist wrote: post #49
whatshisface wrote: post #43

Earlier quoted context omitted.

How's this? 1. You buy "litigation insurance." 2. You state that you are insured on your website. 3. The insurance company is required to defend in all patent cases that arise, so there is no doubt that you will be represented in court. 4. Nobody sues. 5. The insurance company makes a profit with no cost or risk.

You can buy IP insurance; the problem is that the proposed strategy only works against patent trolls. If you infringed a legitimate patent the insurer would be screwed, so they'd want to do an enormous (impossible?) amount of due diligence before writing the policy. As with most other insurance policies, insurers in practice are only willing to take on a portion of the risk.

[deleted]

Re: New USPTO Memo Makes Fighting Patent Trolls Even Harder

#78

Post by cryptonector »

knowaveragejoe wrote: post #77
cryptonector wrote: post #70

Has the new administration replaced the leadership at the USPTO yet?

What makes you think this is something the new administration would take issue with?

Did I indicate that's what I think? My question was quite fair.

Re: New USPTO Memo Makes Fighting Patent Trolls Even Harder

#79

Post by hattmall »

conartist6 wrote: post #40
elevatedastalt wrote: post #15

Earlier quoted context omitted.

Doesn't it cost a lot in legal fee to the troll too? How are they able to finance it given that they are basically a sham company?

Because they don't expect to win the lawsuit. Their odds of winning a lawsuit aren't that good, so their goal is to badger a founder into settling. A founder would likely be killing their creative endeavor to become their own lawyer and go to court for themselves, and the trolls choose targets for whom paying a lawyer for the length of one of these trials would be prohibitively costly. In other words, their real busi…

The defense to this is multiple LLCs and licensing schemes. Just like the troll, don't hold any assets in the vulnerable LLC. If Walmart sells a bootleg shirt the IP holder can't sue the company that cleans the parking lot.

Re: New USPTO Memo Makes Fighting Patent Trolls Even Harder

#80

Post by Teever »

antasvara wrote: post #73
Teever wrote: post #50

Earlier quoted context omitted.

If legal consequences aren't a possible avenue to prevent unacceptable behaviour from someone then a viable alternative is to make that person a pariah. The more people know that someone is doing unscrupulous things the more people can choose to not do business with that person or interact with them in a friendly matter. Ideally this would lead to a scenario where they lose the means to continue to do unacceptable th…

The point here is that a patent troll isn't really a "business." There would be no real reason to work with the patent troll outside of the extortion they're using the patent for. Given the options for engagement are "settle or be sued," a friendly approach was never really an option. Given these parameters, how would making them a pariah change the functioning of the business?

They have lives outside of their way of making money.

They have friends, family, a community that they belong to.

Affecting their relationship with those things hurts them.

I'm kind of confused why 'name and shame' requires such an in-depth explanation. Patent trolls arent the first kind of social parasite to exist and their parasitism doesn't render them immune to all forms of pressure.

Social pressure is often one of the most effective ways of pressuring someone.

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