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Government Lawyer Says Patent Trolls Are a 'Concern' 91

Posted by Unknown Lamer
from the congress-sued-for-violating-patent-on-reports dept.
New submitter gale the simple writes "While it is fairly common for the jaded and cynical to ride on the lawyers these days (often including Henry VI's famous line about them), every now and then we can see that they are not always the plague and scourge of the earth. EFF again shows that even lawyers can do good in this world. (PDF) All jokes aside, something seems to have moved. Maybe all that bloodletting between the major corporations (Apple vs Samsung) made the leaders recognize that MAD world of patents might not be very stable." From the EFF: "The Congressional Research Service (CRS), the research division of Congress known for its objective studies, recently released a report on the effects of patent trolls on innovation and the economy. ... According to the CRS report, 'The vast majority of defendants settle because patent litigation is risky, disruptive, and expensive, regardless of the merits; and many [patent trolls] set royalty demands strategically well below litigation costs to make the business decision to settle an obvious one.' Businesses lose both time and money, and innovation suffers."
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Government Lawyer Says Patent Trolls Are a 'Concern'

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  • not quite MAD (Score:5, Insightful)

    by jythie (914043) on Wednesday September 05, 2012 @08:36AM (#41233901)
    MAD only works because everyone dies, no one profits. The patent situation is almost an inverse MAD... the worse things get the more profit there is to be made and the more risk there is to not playing the game. Any public company basically has to behave this way, otherwise their shareholders will string them up or one of their competitors will become more profitable because they ARE playing.
    • Re:not quite MAD (Score:5, Insightful)

      by Zontar_Thing_From_Ve (949321) on Wednesday September 05, 2012 @08:46AM (#41234003)
      I think you are 100% correct. I still remember from some years ago where RIM went to court rather than settle with some infamous patent troll and they got hit with a staggering judgement in a jury trial. I think it was at least 5 times what the troll wanted to settle out of court. Being an American and having served on juries, I can tell you that most people on juries are pretty dumb and incapable of understanding the issues they are presented with. You really don't want to risk that some crazy jury will award 10x or more in damages what it will cost you to settle. RIM thought they could win too and that the patent would be invalid but they lost. To me, that was when things began to go wrong for them. They shrugged it off, but I see their downward slide beginning at that very moment. Nobody wants to go to court and roll the dice with the chance that a company killing judgement might be the outcome.
      • Re:not quite MAD (Score:5, Insightful)

        by CohibaVancouver (864662) on Wednesday September 05, 2012 @09:22AM (#41234365)

        I can tell you that most people on juries are pretty dumb and incapable of understanding the issues they are presented with.

        Part of the issue is it's supposed to be a 'jury of your peers.' So if the trial concerns a complicated technology issue, then the jury should be highly skilled technologists - Those are the plaintiff and defendant's 'peers,' not some guy who sells ABS pipe at Home Depot.

        • Re: (Score:2, Insightful)

          by Anonymous Coward

          That's fine as long as you also support only gang members trying gang members and only sexual predators trying their own kind. In all seriousness, while I do think that maybe there needs to be a competency test given to serve on a jury to ensure one is able to understand the subject matter in play you're vastly simplifying the problem and bastardizing the meaning of peer within this context. The idea of a peer is a peer within a specific system. Given that the American (apologies to our overseas board me

          • by tnk1 (899206)

            I don't think it is fair to say that being a fellow criminal makes you a "peer". Clearly illegal attributes of your life would certainly not be placed into consideration for something like that.

            I do understand that it makes sense to consider any citizen to be your peer, but at the same time, it does not do justice here. The discrepancy between people who know technology and those who don't is huge. It's like putting mentally challenged people on a jury. The jury in this case may not have been deficient

            • by mcgrew (92797) *

              The discrepancy between people who know technology and those who don't is huge. It's like putting mentally challenged people on a jury.

              What's your IQ? If you're like most slashdotters (well, like most slashdotters seem to have used to be), most people will seem learning-disabled to you. And remember, learning-disabled people aren't disqualified from jury duty (although I would assume one or both lawyers would bounce them). AND, half of that jury will have a two digit IQ.

              Nobody is an expert on everything, mo

        • Re:not quite MAD (Score:5, Insightful)

          by CaptSlaq (1491233) on Wednesday September 05, 2012 @09:57AM (#41234777)

          I can tell you that most people on juries are pretty dumb and incapable of understanding the issues they are presented with.

          Part of the issue is it's supposed to be a 'jury of your peers.' So if the trial concerns a complicated technology issue, then the jury should be highly skilled technologists - Those are the plaintiff and defendant's 'peers,' not some guy who sells ABS pipe at Home Depot.

          I used to hold this belief, until someone pointed out (here [slashdot.org]) that having "professional juries" is potentially a dangerous thing. Working in industry [x], you know that [y] happens even if it's TECHNICALLY not supposed to. You've done it yourself because you understood the risks and in your case it wasn't a huge deal. Now [y] blows up in someone's face causing [z] and the professional jury comes to the point of "well, we all do it so we'll let him off, despite the fact that it caused [z] with the results of [a], [b]. and [c]".

          I agree that there are problems, particularly in highly technical cases, that are not easy to articulate. If the lawyers involved can't bring it down to a level that the common man can understand it, they don't understand the problem properly either.

          • That happened because 11 out of 12 were not peers. Therefore they believed the one patent owner as being correct.

            In Europe, patent cases are seen by specialists, not juries.

            • Someone seems to stick to twelve angry men movie... I am not sure that there is any patent trial that has 12 jurors in the past few years.
            • by rmstar (114746)

              In Europe, patent cases are seen by specialists, not juries.

              While the results are indeed generally better, the system is not perfect because those specialist have their own agenda. That's why the "programs as such" loophole works.

          • by swb (14022)

            Maybe what we need is a hybrid jury -- empanel the usualy "jury of your peers" the way they do now, but also have a parallel panel of experts in the field of law (ie, lawyers, judges, law professors or lay experts with some demonstrated knowledge, but not people practicing in the field itself -- no engineers or whatever the subject matter is) in question and require some supermajority or absolute majority for a verdict -- ie, the "common man" has to agree with the experts, but the experts also have to agree

          • by sjames (1099)

            However, there is a good reason why you can't get a degree by sitting in on a two week seminar, particularly not one where there are two presenters who disagree and have a fair sum of money on the line.

            The difficulty is that if the peer group is TOO close, no defendant would ever be found guilty/liable again. Alas, I have no answer to that.

          • by Golddess (1361003)

            I used to hold this belief, until someone pointed out (here [slashdot.org]) that having "professional juries" is potentially a dangerous thing [...] "well, we all do it so we'll let him off, despite the fact that it caused [z] with the results of [a], [b]. and [c]".

            Potentially a dangerous thing, but it doesn't have to be. As long as it is still the plaintiff and defendant selecting the jurors, and not a set of 12 jurors select off a sheet that the court uses to determine who counts as an "expert" in this particular case, I think that would work fine.

            Basically, rather than have the current system of randomly selecting a couple hundred people, and the plaintiff and defendant simply yay-ing or nay-ing from that pool, allow them each to recommend, say, 12 people. Then

        • by gl4ss (559668)

          I can tell you that most people on juries are pretty dumb and incapable of understanding the issues they are presented with.

          Part of the issue is it's supposed to be a 'jury of your peers.' So if the trial concerns a complicated technology issue, then the jury should be highly skilled technologists - Those are the plaintiff and defendant's 'peers,' not some guy who sells ABS pipe at Home Depot.

          phb's sould be deciding these cases? god no no no..

        • by Anonymous Coward

          Part of the issue is it's supposed to be a 'jury of your peers.'

          TV shows, movies, and novels throw that phrase around, but it isn't part of the law. The reality is that juries are drawn from the people who reside in the area the trial is being held in, and that is all the law requires. Seriously. Federal law requires jurors be selected from a “fair cross-section of the community in the district or division wherein the court convenes.” Look it up. The law and the courts do not work how you think they do...

        • Based on my experience as a juror, they specifically do not want people who know about the issues involved. The idea is that a juror will use basic judgement entirely on the facts presented by the lawyers during the proceedings. I was on a simple burglary case, we had jurors dismissed just because they had law enforcement relatives. Even knowing the place where the burglary took place was considered prejudicial, after selection we were told to not even go to the shopping mall where it had taken place a

        • by jbengt (874751)

          . . . the jury should be highly skilled technologists - Those are the plaintiff and defendant's 'peers,' . . .

          No, they aren't, at least not for the meaning in 'jury of your peers': If you are a commoner; your peers are commoners; if you are a nobleman, then your peers are noblemen.

      • One of the best indicators of a bad regulatory environment is uncertainty of outcomes. When companies are uncertain about outcomes of things like patent litigation or corporate tax rules or future tax incentives, they cannot make intelligent business decisions. Bad decisions across an entire industry becomes a huge drain on business efficiency.

    • Re:not quite MAD (Score:5, Interesting)

      by Rich0 (548339) on Wednesday September 05, 2012 @09:03AM (#41234185) Homepage

      I think the other key to MAD is that the barriers of entry are very high, so only those with a lot to lose get to play the game.

      If you're already the ruler of Elbonia and you have gold-plated toilets, then do you really want to start shooting nukes at the USA?

      The problem with patents is that anybody can get one of those trivial ones without building anything. If I have $10k to my name and can afford a $35 filing fee at the courthouse, and I get a patent for phones with microphones in them, why wouldn't I take a shot at the lottery?

      The other key to mad is the "assured destruction" bit - as in fire it and you're GUARANTEED to be toast. Google and Apple are still in business, the last time I checked. They have a lot to lose, but don't think that the threat of actually losing it all is credible.

    • Re:not quite MAD (Score:5, Informative)

      by Stuntmonkey (557875) on Wednesday September 05, 2012 @10:01AM (#41234839)

      It's a Prisoner's Dilemma game: Everyone would be better off if nobody engaged in the bad behaviors (patent trolling, patenting trivial "innovations"), but unfortunately it's to everyone's unilateral advantage to engage in those behaviors.

      • by Anonymous Coward

        No, its a Prisoner's Dilemma game with disproportionate consequences as well as disproportionate rewards. Its only natural for people to engage in bad behaviors because the rewards are overwhelmingly in the favor of the patent troll.

  • Applause please.. (Score:5, Insightful)

    by wbr1 (2538558) on Wednesday September 05, 2012 @08:36AM (#41233907)
    Sure, this report may say that current patent law stifles innovation, but that is a long, long way from rewriting the law. In my cynical view thes report will get shelved, and if any legislation does occur, the large corporations and lobbies with an interest in maintaining the status quo will line enough pockets to make sure it fails or gets watered down and altered enough to suit their needs. Remember entrenched power, money, and "it will hurt the economy to change", trump common sense and innovation.
    • by kiriath (2670145)

      I concur, there will be no true reform in this area the way things are operated now-a-days. The big dogs want to be able to sue each other to recoup losses of sales to other companies. The little trollies are just trying to get rich quick. The whole thing makes for an unpleasant industry.

    • But the large corporations have an interest in eliminating the "classic" patent trolls, the ones who do nothing besides collect stupid patents and then blackmail with them. The special interest groups are not going to abolish software patents or make it easy for startups, sure, but getting rid of the pure parasites would be an improvement.

      The fact that change doesn't happen immediately exactly the way you want it doesn't mean that the situation is hopeless forever.
      • by dpilot (134227)

        But with recent events, it looks to me as if Apple may have crossed a line and become a company that trolls as well as produces. I'd feel far more lenient toward what they've done if the period were shorter, say 5 years instead of 17.

  • by Anonymous Coward on Wednesday September 05, 2012 @08:37AM (#41233923)

    Last night my wife was commenting that the guy who wrote 'Modernist Cuisine' had a new book coming out aimed at non-professional chefs..

    I said "Isn't that the one by Nathan Myhrvold?" "Yeah, how'd you know?" "You know who he is, right?" "Well, he's a french chef who likes liquid nitrogen." "He owns Intellectual Ventures."

    "Oh my god, he's a fucking patent troll!" "King of the patent trolls, dear." "Can I just pretend he isn't and buy the book?"

    • Re: (Score:2, Interesting)

      by Anonymous Coward

      Actually "Modernist Cuisine" seems like an appropriate book for him to try to sell. A veneer of scientific authority and credibility, with all hype underneath.

      I'm not saying the book is entirely fraudulent, but at several hundred dollars, that it's not worth the price, and you're better off buying texts by Adria, Achatz, or any of the other excellent chefs working in this area that deserve more credit. If you're really serious, you could go buy a food science text by food scientists who have been working in

  • Great, identifying the problem is the first step. However, what are the odds of our benevolent government doing anything about it? Unfortunately, without the second step this news is meaningless.
    • Re: (Score:2, Insightful)

      by Anonymous Coward

      Great, identifying the problem is the first step. However, what are the odds of our benevolent government doing anything about it? Unfortunately, without the second step this news is meaningless.

      The more the information is disseminated, the harder it is for Congress to deliberately make bad policy decisions. CRS is one of the last of the non-partisan fact-based research services. Newt Gingrich, the mastermind that he is, systematically got rid of them because he knew what their absence would allow him to do.

      So if you want to "out benevolent government" to do anything about it, YOU need to spread the word as much as possible.

      • The more the information is disseminated, the harder it is for Congress to deliberately make bad policy decisions.

        However, Congress loves a challenge like this and will very likely rise to the occasion.

  • by EasyTarget (43516) on Wednesday September 05, 2012 @08:40AM (#41233943) Journal

    Humm, so the government (and therefore it's industrial masters) have now decided that patent trolls must go. I somehow doubt if this will benefit us one bit.

    Most likely planned end scenario (still years of lobbying away) is that large tech firms will be allowed to 'take over' patents of anyone who lacks the resource to fight them.

      A few of the bigger patent farmers might well survive this, but the wannabees will go under. Unfortunately, so will any real engineer with a genuinely good idea they have patented.

  • by puddingebola (2036796) on Wednesday September 05, 2012 @08:41AM (#41233947) Journal
    This story has been filed in violation of my patent on Patent Troll stories posted to Web Sites, patent no. 7640598 D607176 PP20622 RE41067 H002234. I am requesting $5.40 to cover my Veggie Sub at subway for lunch.
  • Famous Quote (Score:3, Informative)

    by Anonymous Coward on Wednesday September 05, 2012 @08:45AM (#41233987)

    For those of you unfamiliar with Shakesphere:

    In Act IV, Scene 2 of Henry VI Part 2, Dick says "The first thing we do, let's kill all the lawyers."

    • For those of you unfamiliar with Shakesphere:

      And for ACs unfamiliar with the spelling of the Bard's name, it should have "ea" where you put "he".
      Try spelling it as "Shakespeare", next time.

      • by GungaDan (195739)

        My attempt to patent the Shakesphere was stymied by the damned snow globe racket.

      • by N Monkey (313423)

        For those of you unfamiliar with Shakesphere:

        And for ACs unfamiliar with the spelling of the Bard's name, it should have "ea" where you put "he".
        Try spelling it as "Shakespeare", next time.

        "Shakesphere", might have been his nickname after moving to "the globe".

    • For those of you unfamiliar with Shakesphere:

      In Act IV, Scene 2 of Henry VI Part 2, Dick says "The first thing we do, let's kill all the lawyers."

      You keep using that quote [spectacle.org]. I do not think it means what you think it means.

  • by realsilly (186931) on Wednesday September 05, 2012 @08:46AM (#41234023)

    Wow, it only took Government lawyers how many years to figure this out? People have been screaming this to the heavens and all over the internet, and they are only now seeing Patent Trolls as a 'concern'. Notice, not a problem, just a 'concern'. AUGH! /facepalm

  • by Anonymous Coward on Wednesday September 05, 2012 @08:50AM (#41234065)

    I thought the point of Henry VI's famous line about them was that to take over and trample on people's rights, first you have to get rid of the lawyers.

    • Why not just get rid of all the people? Two birds, one stone (a very big one)?

      • by TheLink (130905)
        Because the robots aren't good enough slaves and serfs yet.

        And some may prefer human worshippers and slaves. Traditions and all that.
    • by Anonymous Coward on Wednesday September 05, 2012 @09:05AM (#41234199)

      I thought the point of Henry VI's famous line about them was that to take over and trample on people's rights, first you have to get rid of the lawyers.

      No, take some time to read this: http://www.spectacle.org/797/finkel.html . In context, it was clearly bashing lawyers, in part for the way they were hired by the wealthy to prey upon the uneducated who could not understand the contracts they entered into. (And could not afford a lawyer to read and explain them!)

      SB

  • by the computer guy nex (916959) on Wednesday September 05, 2012 @08:52AM (#41234079)
    Both companies bring products to market, so by definition they are not patent trolls.

    Oh wait, mentioning iOS vs Android results in clicks!!

    Continue on.
    • THANK YOU!!!!!!!!!

      From the paper, "The PAE business model focuses not on developing or commercializing patented inventions but on buying and asserting patents"

      Every freakin' jackass that says Apple is a patent troll doen't know the fucking definition of patent troll!!
    • Just because Apple produced some neat products does not mean that they can abuse the patent system and claim to be saints.

      ... so by definition ....

      The world is not so black and white.

  • that isn't spelled out in the sig...

  • Doesn't that comment really mean something like "Yeah, it's obvious it's a god damn problem but we have to be careful how we say it lest we piss off our corporate overlords." ?

  • by guttentag (313541) on Wednesday September 05, 2012 @09:18AM (#41234309) Journal
    There are many "good" objective people who work for the government and submit reports to Congress (lawyers, scientists, accountants... Even IRS agents), however, it is important to understand that "objective people" do not make decisions for congress. They are not the "leaders" that the submitter is calling them and they have no power. The "leaders" are the representatives and senators, whose job is to cherry pick the reports for facts/out-of-context-statements that agree with their opinions. This has been going on for quite some time... After all, Benjamin Franklin wrote of the three degrees of lies, "there are lies, damned lies, and statistics."
    • ... After all, Benjamin Franklin wrote of the three degrees of lies, "there are lies, damned lies, and statistics."

      Not exactly old Ben, it was somebody else [wikipedia.org].

      Just a little pedantry to go along with the morning coffee.

  • by denis-The-menace (471988) on Wednesday September 05, 2012 @09:34AM (#41234497)

    It too profitable accept any patent, prior art or not.
    -The USPTO get fees paid for every submission
    -If the patent is invalidated, the USPTO is not affected in any way.
    -The USPTO has a monopoly on the situation.

    Whenever you have a business doing something that the government should be doing you get issues like this. (e.g. The Fed, Private Prisons, etc.)

    Oh, the USPTO *is* part of the government?
    It sure doesn't act like it.
    http://www.longest.com/2011/05/11/federal-government-slows-innovation-on-intentionally/ [longest.com]

  • by Grond (15515) on Wednesday September 05, 2012 @09:48AM (#41234661) Homepage

    The vast majority of defendants settle because patent litigation is risky, disruptive, and expensive, regardless of the merits

    Note that patent cases are not unique in this regard. In 2011, only 1.1% of civil cases in federal district court reached trial [uscourts.gov]. Some of the other 98.9% were disposed of through summary judgment or involuntary dismissal, but the great majority settled. The statistics are not skewed by a large number of patent cases, either. In 2011 there were only 3,337 patent suits filed, compared to 301,474 total civil cases. In other words, patent cases made up 1.1% of federal civil cases. And of that 3,337, 868 (26%!) of them didn't involve any court action past filing the suit.

    Now, it is true that patent litigation is one of the more expensive kinds of litigation, and I favor a strong fee-shifting policy in order to reduce the leverage that plaintiffs have to extract nuisance settlements (i.e. settling for just under the cost of litigation). But it's not as though patent defendants are unusually likely to settle rather than go to trial. In fact, the patent trial rate is one of the highest in federal litigation, at 3.2%.

  • None of this patent mess would be happening if Einstein still worked at the patent office.
  • by Anonymous Coward

    Perhaps patent law needs to become more like trademark law. To retain a trademark, you have to use it in trade. To retain a patent, the change would require you to actually be using the patent or actively licensing it. Patent holders couldn't lurk under the bridge like a troll, waiting for an idea to become popular before leaping out and demanding tolls for their often vague and general idea. They'd have to use it from the start of lose it.

    It'd also help to rip down any 'corporate veils' between patents hel

  • Fark apparently got one to back down by threatening to pierce the corporate veil and go after the executives directly as individuals. How about start ups bring their cases forward and crowd source their defenses with a promise that they will pierce the corporate veil and directly attack the trolls' executives and their families? The only way to legally stop this short of legal reform is to make it clear to the trolls that their wives/husbands and kids will be put into abject poverty.

    And depending on how fri

    • Fark apparently got one to back down by threatening to pierce the corporate veil and go after the executives directly as individuals.

      This is a nice idea, but it's not as simple as just choosing to do it. Those execs have to do something that makes this possible, such as commingling their and the company's finances, that will persuade a judge that the corporation is a sham.

  • by Savage-Rabbit (308260) on Wednesday September 05, 2012 @11:11AM (#41235771)

    According to the CRS report, 'The vast majority of defendants settle because patent litigation is risky, disruptive, and expensive, regardless of the merits; and many [patent trolls] set royalty demands strategically well below litigation costs to make the business decision to settle an obvious one.' Businesses lose both time and money, and innovation suffers."

    How about making the party that looses the lawsuit autimatically pay the costs for the winner. Wouldn't that ruin the business case for the trolls and make people think long and hard about what they patent? ... Just a thought ....

    • Re:Make them pay. (Score:4, Insightful)

      by SecurityGuy (217807) on Wednesday September 05, 2012 @11:28AM (#41236023)

      This gets trotted out fairly often. The counter argument is this:

      You (John Q. Public) create something actually innovative and legitimately patentable, and do so.
      So does Apple, or Google, or any other huge company.
      You realize they're using your invention, so ask them to pay you for it. They say no. Litigation ensues.
      You spend a few thousand on your brother Vinny's legal services. They trot out a crack stable of lawyers at $300/hour/lawyer. They do a tremendous amount of analysis and preparation before their slam dunk victory.
      You get stuck with a $500,000 bill because they bought better lawyers than you did.

      In short, a system like this is massively disadvantageous to the little guy. Loser pays for frivolous lawsuits? Perhaps. Merely for losing? No.

      • This gets trotted out fairly often. The counter argument is this:

        You (John Q. Public) create something actually innovative and legitimately patentable, and do so.
        So does Apple, or Google, or any other huge company.
        You realize they're using your invention, so ask them to pay you for it. They say no. Litigation ensues.
        You spend a few thousand on your brother Vinny's legal services. They trot out a crack stable of lawyers at $300/hour/lawyer. They do a tremendous amount of analysis and preparation before their slam dunk victory.
        You get stuck with a $500,000 bill because they bought better lawyers than you did.

        In short, a system like this is massively disadvantageous to the little guy. Loser pays for frivolous lawsuits? Perhaps. Merely for losing? No.

        In some European countries for example, such cost payment obligations can be modified and reduced by the judge if he feels they are excessive. One would hope that judges will treat blatant patent trolls, ambulance chasers and megacorps going overboard on legal spending differently than Mr. Little Inventor Guy and his brother Vinny slogging it out with big evil Apple or Google. Especially if the case made by Mr. Little Inventor Guy and his brother had some merit even if they lost.

  • by schwit1 (797399) on Wednesday September 05, 2012 @11:17AM (#41235865)

    Prosecutor says he will go for the maximum sentence if you don't take his deal.

  • by Chewbacon (797801) on Wednesday September 05, 2012 @12:46PM (#41237059)
    Instead of just complaining about this stuff on /. and lobbying about these things, we need to write these reports the government likes. It seems to get shit done or at least gets the ball rolling.

As in certain cults it is possible to kill a process if you know its true name. -- Ken Thompson and Dennis M. Ritchie

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