Ten States Pass Anti-Patent-Troll Laws, With More To Come

An anonymous reader writes "With patent reform stalled in the Senate, many states have decided to take up the issue themselves. 'As states kicked off their legislative sessions this winter, lawmakers responded to the threats against small businesses by writing bills that would ban "bad faith patent assertions" as a violation of consumer-protection laws. The bills target a specific type of patent troll: the kind that sends out vaguely worded letters demanding licensing fees. The thousands of letters sent out by the "scanner trolls" at MPHJ Technology are often brought up as a case-in-point. The new laws allow trolls that break rules around letter-writing to be sued in state court, either by private companies they've approached for licensing fees, or by state authorities themselves.'"

Re:We'll take any victory, I suppose

[Virtucon]

Who knows, it was Leahy's call. [techcrunch.com]

Re:Pointless

[Theaetetus]

This is pointless since patents are administered by federal law. Any troll wanting to extort money is going to sue in an out of state venue (preferably Texas), immediately stepping up to the federal courts.

Federal courts can apply state laws, too. Happens all the time - most of the civil cases that go to federal court are not because of any federal law, but because of diversity jurisdiction: plaintiff in one state, defendant in another, amount in controversy over $75k, and you've got federal subject matter jurisdiction. But they apply state contract or tort law as necessary.

That said, there is a preemption issue here... States can't rule on the validity of a patent, because that explicitly is federal law. If bringing a suit under one of these laws means you're claiming the patent is invalid, then the state law may be preempted and your case would get bounced.

On the other hand, if you're just alleging a false claim generally, without needing to rule on the underlying patent, then you're probably okay. For example (and yes, I know it's a copyright case not a patent case, but the underlying concept is the same), Righthaven sent out a bunch of letters threatening suit for copyright infringement... for copyrights that they didn't own. Ruling that those threats were frivolous and extortionate doesn't require any ruling as to whether the copyrights were valid or that there was infringement. The same thing could be done here: if some troll sends out threatening letters for a patent they don't actually own, then they'd be in trouble. But honestly, who's going to do that, when it's such an obvious failure?

/I am a patent attorney; I am not your patent attorney. This post is only for (my) amusement purposes only.

Re:We'll take any victory, I suppose

[Paradise Pete]

Unless Texas is on that list, I'll give the states an "atta-boy", but it's not as though it will make a serious difference

I don't see how that's the case. It's about the threatening letters, not the place where a suit might be filed. If they're sending the letters to a company located in one of those states, it doesn't matter where the troll is located or where the suit might be filed.

Not pointless

[dutchwhizzman]

This is about the threat letters, not about actual court cases. If they really will have a case, they will start an actual case, is the idea behind these laws. Trying to threaten someone by claiming you will sue them for a high amount of dollars if they don't pay up a few hundred will be made illegal, not actually the actual suing. This is more about the extortion and blackmail part of the letters than the actual court cases that might ensue.