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Fark Founder Drew Curtis Explains How Fark Beat a Patent Troll 59

Posted by timothy
from the righteous-chip-on-his-shoulder dept.
Velcroman1 links to this coverage of Drew Curtis's explanation of how his company, Fark, managed to beat a patent troll's lawsuit alleging infringement of a patent on distribution of news releases by email. From the article: "It boils down to one thing: don't negotiate with terrorists," Curtis said during a talk at the TED 2012 conference in Long Beach, Calif."
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Fark Founder Drew Curtis Explains How Fark Beat a Patent Troll

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  • I watched it yesterday and a nice tip is to threaten to make their lives irritating so they can't get an easy win.

  • by mwfischer (1919758) on Thursday April 19, 2012 @11:37AM (#39734469) Journal

    If Fox News' Derp-O-Sphere can label patent trolls as terrorists and inform the pitchfork and shotgun base.... that *might* actually be helpful.

  • A Fox Link? (Score:1, Funny)

    by Tator Tot (1324235)
    Finally! An unbiased, true American news source! Bout time we got some real news instead of some LAMEstream media "facts".
  • by Anonymous Coward on Thursday April 19, 2012 @12:55PM (#39735413)

    "The patent troll realized we were going to fight them instead of settle, so they asked for our best offer. I said, how about you get nothing and drop the lawsuit? They accepted" - Drew Curtis

    True patent trolls, entities that solely exist to acquire patent portfolios and weaponize them for profit, do not know anything about the content of the actual patent. I mean, sure, they might read one or two and quote whichever small pieces they understand of them, but just like we techies struggle with legalese, lawyers struggle with technical documentation. If the case is strong enough, or has a very high earning potential, they will enlist the help of a technical consultant. This is a guy like you and I who will interpret and vulgarize the patent's claims into lay-speak. Now, most lawyers are pretty sharp, but they're not engineers. Their skills are honed differently, to such a degree that even a lawyer that specialized in tech IP cases will have a very hard time truly understanding the subtleties of why X database is different from Y. Since we techies aren't always favorable to lawyers and their destructive pursuits, they have to incentivize with money. The tech expert will be paid an hourly consulting fee, often supplemented with a settlement bonus if they win, as further incentive to provide competitive insight to benefit the troll.

    The thing to remember about patent suits is they often are carried out by people who didn't write the patent application, don't understand it, don't even have the slightest clue how it's intented to work. If they don't have access to the guy who actually invented the patented thingy, they're relying on low quality information. The people who are being sued are, by definition, working in the field and possess far more expert knowledge than their tormentors. They just look for any language they can abuse, and they know the very threat of litigation is their greatest asset, because an actual court battle means going toe-to-toe with other tech experts who are NOT on the troll's payroll.

    As a defendant, if you do your homework about the plaintiff and find they're in this position of technical inferiority, Drew Curtis' tactic can work very well. Call their bluff!

    Disclaimer: I used to work at a law firm, and was occasionally called upon as a technical consultant on IP suits. Can't tell you which, but it was one of the reasons why I left. I tolerate most lawyers but I despise patent trolls.

    • by dgatwood (11270) on Thursday April 19, 2012 @01:26PM (#39735763) Journal

      On the other hand, all of the patent troll lawsuits that have ever been filed were filed only because someone called their bluff. The reason people settle is that A. some of the patent trolls are too clueless to know that they are bluffing, and B.when they file suit anyway, the cost of defending the lawsuit could easily exceed the requested settlement.

      A better way to prevent patent trolls is to develop a reputation for stomping them into the ground with countersuits (ideally, before they even have the chance to file their lawsuit). Even if they have never produced a product, you can still pull together undeclared prior art and sue to have pretty much their entire patent portfolio overturned. Do that a couple of times and the trolls will think twice about talking to you unless they have successfully sued a fair number of other companies first. :-)

    • by psxndc (105904)

      True patent trolls, entities that solely exist to acquire patent portfolios and weaponize them for profit, do not know anything about the content of the actual patent.

      Straight up WRONG. For every non-techie litigator that a patent troll has, there is a technical patent attorney with an engineering degree that is supporting the litigator.

      I say this having represented defendants in about a dozen patent troll cases.

      Sincerely,
      A patent attorney with a comp. sci. degree

  • by whitroth (9367) <whitroth.5-cent@us> on Thursday April 19, 2012 @02:40PM (#39736847) Homepage

    Has *anyone* ever fought back asserting that by Article 1, section 8(8) specifically says "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors", and since trolls is neither the author nor inventor, nor to they use the material of the patent to produce the product of the patent, their claim to the patent is invalid?

                    mark

    • Has *anyone* ever fought back asserting that by Article 1, section 8(8) specifically says "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors", and since trolls is neither the author nor inventor, nor to they use the material of the patent to produce the product of the patent, their claim to the patent is invalid?

      Not that I know of, but they would fail. The Constitution doesn't define what a patent is, but rather gives Congress the power to pass laws securing time-limited monopolies for copyrights and patents. In the use of that power, they passed 35 USC 261, which states:

      Subject to the provisions of this title, patents shall have the attributes of personal property.

      Applications for patent, patents, or any interest therein, shall be assignable in law by an instrument in writing. The applicant, patentee, or his assigns or legal representatives may in like manner grant and convey an exclusive right under his application for patent, or patents, to the whole or any specified part of the United States.

      So, arguing that the troll's claim to the patent is invalid means you're arguing that Congress lacked the power to pass that law... Specifically, you'd have to argue that letting inventors sell their patents doesn't encourage at least some inventors to invent in the first place, and I doubt such an argument would be entertained by any court, much less the Supreme Court.

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