New Bill Would Require Patent Trolls To Pay Defendants' Attorneys 196
Zordak writes "According to Law 360, H.R. 845, the 'Saving High-Tech Innovators from Egregious Legal Disputes' (SHIELD) Act of 2013 would require non-practicing entities that lose in patent litigation to pay the full legal costs of accused infringers. The new bill (PDF) would define a 'non-practicing entity' as a plaintiff that is neither the original inventor or assignee of a patent, and that has not made its own 'substantial investment in exploiting the patent.' The bill is designed to particularly have a chilling effect on 'shotgun' litigation tactics by NPEs, in which they sue numerous defendants on a patent with only a vague case for infringement. Notably, once a party is deemed to be an NPE early in the litigation, they will be required to post a bond to cover the defendants' litigation costs before going forward."
Hmm (Score:5, Insightful)
Sudden outbreak of common sense?
Weird sensation... (Score:5, Insightful)
Why am I having a hard time believing this is real and has a hope of being passed into law?
Am I really so cynical/jaded that a good-sounding idea from government and/or lawmakers just feels like some sort of a trap? It say something about how the world's been run lately.
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Me being a pessimist, I figure it could be real, and could be quite likely to pass.
It should put the nail it the coffin of those annoying inventors applying for patents, and keep the patents where they should be, in the hands of the overlords.
If this law is tailored to the job, not only will you have to be able to afford to go round after round of appeal, but if you lose on any of them, you face instant financial ruin. So then if the ones you sue don't come to terms, then your goose is cooked before you be
Re:Weird sensation... (Score:4, Informative)
If this law is tailored to the job, not only will you have to be able to afford to go round after round of appeal, but if you lose on any of them, you face instant financial ruin.
If it's actually *your* patent, or if you're actively using the patent to do something other than suing people, then the requirements to post bond and pay the defense costs don't apply.
It's all in the wording... (Score:2)
Why am I having a hard time believing this is real and has a hope of being passed into law?
And even if it does become law, the wording is ambiguous:
...and that has not made its own 'substantial investment in exploiting the patent.'
What *exactly* does this mean? I'm sure that Patent Trolls can work the language to their advantage, especially in
South Texas, or where ever the local Media are cleaning up on Patent Troll cases...
Re:It's all in the wording... (Score:4, Insightful)
The preamble to the bill isn't the bill itself. My guess is that there is or will be wording within the fine print that will spell out exactly what that is.
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Really, all that's needed for this to pass is that the patent trolls decide it would be cheaper to pay the defendants' legal fees than to buy a few senators to oppose the bill...
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My question is what prevents this:
Company X is our patent troll, decides to sue someone.
Company X's owners establish Company Y with just enough money to litigate their side of the case
Company X sells the rights to a patent to Company Y for a pittance
Company Y Sues and loses
Compnay Y Has no holdings beyond the now largely useless bogus patent so it dissolves
Company X loses nothing except the patent, which again, is now largely useless
If Company Y wins, they sell the patent back to Company X and the owners ca
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IANAL but I suspect that in a case like this the judge would pierce the corporate veil since Company Y is clearly just an attempt to circumvent the intent of the law with a legal fiction. Specifically that Company Y is truly acting independently when in fact it is acting purely within the parameters dictated by Company X and purely within the interests of Company X.
Re:Weird sensation... (Score:4, Informative)
Company Y doesn't have the money to post bond, so can't continue.
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Do you know what a bond is (in this context)?
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My question is what prevents this:
Company X is our patent troll, decides to sue someone.
Company X's owners establish Company Y with just enough money to litigate their side of the case
Company X sells the rights to a patent to Company Y for a pittance
Company Y Sues and
wins... Company Z, the infringer, points to the pittance as being Company Y's valuation of the patent, and offers to pay a reasonable royalty of 5% of said pittance. The judge, finding this unbelievably clever, agrees. Company X's owners sob in the corner. :)
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These NPEs are a serious threat to large patent holders. Normally, patent holders come to some sort of agreement. In the case of NPEs, there is almost no negotiating. These large patent holders invariably have a lobby or two which they contribute to. NPEs? Not so much.
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Because when you are hit with a hammer a thousand times why would you honestly believe that hit #1001 will be with a balloon?
Re:Weird sensation... (Score:4, Informative)
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Remember the thing about "unintended consequences".
I absolutely agree, few laws get passed that don't screw some one else somewhere. But this is at least a step in the right direction. This action has been a long time coming and hopefully won't have many bad side effects.
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It is probably not a power grab, actually. Working in a business where my company has been threatened by patent trolls (and we settled), the fact that trolls can simply extort settlements out of producing companies is all the motive required.
There's no need for a move like this to move forward some sort of sinister agenda: there is plenty of money and uncertainty to be saved in simply ending this practice on it's own merits alone.
Re:just another club to protect large corporations (Score:5, Insightful)
The "lone inventor around the corner" using his patent to fight the big corporations is kind of a myth nowadays. Patents are used to stifle innovation and protect entrenched businesses, not to prevent corporations from stealing the little guy's ideas. I'm pretty sure the vast majority of patent-holders are corporations.
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A friend [buzzy4shots.com] of mine invented Buzzy [buzzy4shots.com] to take the pain out of shots. If she didn't have patents, the idea would have been stolen long before now.
Re:just another club to protect large corporations (Score:4, Insightful)
Unless the non-corporation inventor has their name as the inventor of the patent, then this bill doesn't apply.
Its to protect large companies from patent trolls.
Requiring the bond to be posted first stops shell companies just going bankrupt to avoid payment if they fail.
Re:Weird sensation... (Score:4, Informative)
Yeah, I don't know where they got the HR 845 from. The bill is real, though:
http://thomas.loc.gov/cgi-bin/bdquery/z?d112:hr6245 [loc.gov]:
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If you are the inventor you are not a "non-practicing entity" and the law doesn't apply to you.
Re:Hmm (Score:4, Insightful)
Almost. Of course, this bill is full of weasel words so it'll never pass, and we're still dancing around the two things we need:
1) Software patent reform.
2) Loser pays for every kind of lawsuit, not just patent troll suits. You know, like every other sane country on the planet.
Re:Hmm (Score:5, Insightful)
Even if this law passes, it won't work because the patent office keeps granting vague patent after vague patent.
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Loser pays is a terrible idea, unless you can guarantee that the legal system 100% of the time accurately determines who is wrong (as opposed to who has the best/most lawyers). As a person with limited resources, I would never be able to risk suing a corporation over something, because, even if I had a 1% chance of losing, that chance would mean instant bankruptcy for me. Similarly, corporations would have even more incentive to use bogus lawsuits to extract settlement money from individuals who would never
Re:Hmm (Score:5, Insightful)
Loser pays is a terrible idea, unless you can guarantee that the legal system 100% of the time accurately determines who is wrong (as opposed to who has the best/most lawyers).
Without loser pays, anyone who gets sued already lost. You get to pay millions to prove your innocence. So there's a loss for being innocent. Loser pays fixes that. What would you propose to protect the innocent from frivolous lawsuits?
Re:Hmm (Score:5, Interesting)
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I call bullshit!
In almost every civil action there is something called a counter suit. What is my option when you shut down my business because of an alleged patent infringement? What do I counter sue for? Nothing, because there is no protection from arbitrary and ambiguous patents or lawsuits using such patents. Even in cases where a patent has been invalidated during the trial process, the defendant has tremendous losses. Those losses can not be recouped. If I pay a troll and the patent gets invalid
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Loser Pays applies to virtually the entire rest of the galaxy, and, while not perfect, it is way better than the Loonie Tunes US approach. Here in the UK, it applies to both criminal and civil law in 100% of cases, unless the judge decides the loser was partly to blame - eg deliberately made himself look guilty to attract a law suit.
Wait, if I'm charged with a criminal offence in the UK, and found not guilty, I get my lawyers fees reimbursed by Her Majesty?
I don't think it works that way in Canada; I'd be quite interested if you could clarify that.
We do of course have loser pays in civil proceedings, unless judge decides otherwise, and on a fee schedule applied by the judge.
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Loser pays as a statutory requirement is a bad idea. However, loser pays should be an allowed option in every civil case, something that the judge/jury can impose when the circumstances warrant it. When the plaintiff has presented a good case, but still loses, loser pays could be unnecessarily punitive.
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Yes, but loser pays isn't a panacea for our problems.
If it was perfect, then it'd already be law. But it's almost certainly better than what we've got if the point is to stop frivolous lawsuits.
loser pays represents a very real deterrent to taking advantage of the legal system where one can't afford the possibility of losing.
I assume you don't mean "exploiting" because that's exactly the point. I couldn't have said it better myself.
Re:Hmm (Score:5, Insightful)
No, he means a legitimate small player *making use of the system as it was intended under the concept of equal protection under the law*. Having money is not supposed to be a prerequisite for obtaining justice in the US, at least in theory, of course.
I should be able to sue Apple or Samsung or some other multinational and if my case is correct and proven under the law, I not only deserve to win, I am supposed to win.
The fact that patent trolls can weasel into the space left for the small guy to have his voice heard doesn't mean that that method becomes expendable. It means we need a solution that filters patent trolls out better.
I agree that trolls need to be stopped. My own organization have been extorted by them. They're a parasitic entity made possible by government rules that would not exist without a broken patent system. However, fix the patent system, don't simply carpet bomb any requests from people who don't have money.
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I am mostly in favor of this provision, but honestly, we need to be very careful about putting pricetags on justice to fight the other implied pricetags. I would prefer, personally, that the patent system be corrected, instead of a band aid like this be applied. We need to make it easier to quickly dismiss these cases as frivolous, as opposed to simply upping the ante. Because ultimately, if the patent troll is big enough, they *will* be able to post the bond, and the extortion will continue.
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It is a big deal to those corporations. Although settling isn't that big of a deal, the money they pay the patent trolls only empower them to buy more patents and sue more companies. Also, there are some really gutsy patent trolls that don't settle and instead try to get the jury to pay the off big. "Members of the jury, the sale of the companies product is in use by their product. For this reason we want a mere 5% of the total sales of their devices" (They say this in an industry where the profit margin is
WTF? (Score:5, Informative)
Wow, did you read anything at all or did you see "patent" and just start posting? If you read anything and are posting, you must be a shill. If you didn't read, shame on you. "loser" in this case is limited to a defendant where it's deemed that the company initiating the suit is a troll. The wording in the article states very clearly that if you are deemed a NPE (more on that in a moment) then you must pay a bond to cover the defendant's cost in order to pursue the case.
NPE: You are a widget maker, and competing with 10 other widget makers in the market place. Trollguy buys a patent for a screw that you use in your widget and he sues every one of you dirty widget makers for infringing on his patent for a widget-screw. He does not make widgets, did not invent a widget, and in fact his current business is buying patents and suing people. He would be by definition a NPE. As a NPE, he needs to bond the defendant's legal fees, for every one of those cases of alleged infringement, in order to pursue the cases.
That is a good thing!
In addition: If the infringement claim is dies in court you, Mister Widget, immediately recoup your legal fees by cashing in the bond.
Now if Joe's Widgets sues you for stealing their rounded corner widget design, they are not a NPE. They do not have to bond your legal fees. So the law does not harm normal competition and does not punish inventors. It's at least "some" protection from the current joke that has become patent trolling.
Since I have not fully read the Bill I can not claim that the wording is secure and clear enough to really do anything. Politicians are generally shitheads, and even the best written and intended Bills can get screwed up by their idiocy. That fact is rarely the Bill's fault, but rather the people's fault for voting in shitheads over and over and over again.
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And here comes the new insurance market: Indemnity insurance to cover lost lawsuits.
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This could never pass as it is way too logical. I believe this rule should apply to all litigation, civil and criminal. Why should the government be allowed to bankrupt an individual by accusing him (or her) of a crime that they did not commit? If the government loses it should pay the defendant's legal expenses and vice versa. It would add further punishment to those convicted of crimes.
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Worse for small folks? (Score:3)
Seems to me that this will just encourage greater extortion of small shops - those that can't afford to even consider taking a case to court.
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they can't afford court right now either
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Correct. But this makes it worse for them inthat they will be increasingly targeted by NPEs who don't want to take the risk of going to court with one of the big players.
Small is an advantage (Score:3)
Correct. But this makes it worse for them inthat they will be increasingly targeted by NPEs who don't want to take the risk of going to court with one of the big players.
Unlikely. The reason they don't usually go after the small companies is because they are small, i.e. they have no money. There is little point in spending much money trying to extort a tiny settlement out of a company that the NPE may very well bankrupt in the process. If I'm a small company I would basically say "bring it on". They'll spend more money on lawyers than they would win in a settlement and even if they did win they probably would get nothing because the company would declare bankruptcy.
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Unless they want to use you as a "win" to extort settlements easier from their future victims.
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Re:Worse for small folks? (Score:5, Insightful)
A small shop can not afford to take a case to court even without paying the defendant's lawyers. An IP lawsuit costs millions of dollars to pursue; more money than any normal person will make in his entire working lifetime. The courts are for the big fish. For the rest of us, any involvement with them leads to bankrupcy.
Re:Worse for small folks? (Score:5, Informative)
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And there you have the REAL reason why this law is being proposed and why it will pass. It's for the benefit of lawyers. This law ensures that more lawyers will get paid, essentially extending the anti-SLAPP environment to patents, and for the same reasons. If there are any benefits to inventors or the real economy, it's purely coincidental.
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Small patent trolls won't be able to go to court? My heart weeps.
Your logic is faulty (Score:3)
Small shops are not out there filing lawsuits against numerous alleged patent infringing companies. Generally they are the targets of that approach. The bill would allow the targets of patent trolls the ability to recoup losses that they currently have no ability to recoup. Currently the defendants either pay the troll, or pay for lawyers to fight. There is no recovery currently for any part of the trial. The current methods of patent trolls are extortionist.
You phrase the problem like the patent troll
Congress is better than Marvel? (Score:3, Funny)
S.H.I.E.L.D.
"Strategic Hazard Intervention Espionage Logistics Directorate"
"Saving High-Tech Innovators from Egregious Legal Disputes"
I think congress pulled a fast one on Marvel and beat them hands down!
AC experimenter and I give a rats ass to anyone who cares!
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Oh damn, now we need a legislative working group for a bill to shield people from copyright suits.
Maybe call 'em... the Justice League?
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Write your representative (Score:2)
Bill page at Thomas [loc.gov]
Find your house rep [house.gov]
"substantial investment" (Score:3)
Does filing a lawsuit count as a "substantial investment in exploiting the patent"?
Regulate Bad Patents, Not Independents (Score:5, Insightful)
The bill is designed to particularly have a chilling effect on 'shotgun' litigation tactics by NPEs, in which they sue numerous defendants on a patent with only a vague case for infringement.
So to achieve that, instead of addressing shotgun litigation by any litigant, they create an inhibition to all NPEs. That would include things like the The Open Invention Network [wikipedia.org], and would exempt practicing entities like SCO. Does that sound right?
This legislation would create unequal patent protection for big corps versus independent inventors. Once a patent is sold by its original inventor, it can only subsequently be sold to big corps or it loses some of its power. This means big corps will have an advantage compared to independent inventors, who will have less ability to market their inventions.
If the problem is shotgun patent enforcement, regulate shotgun patent enforcement. If the problem is overbroad patents, narrow the allowed scope of patents. Address the real problem with equal treatment for all litigants under the law. Don't create a preferred class for big incumbent corps and inhibit independent competition.
This is nothing more than another land grab by big incumbents who use our government to inhibit free market competition.
Re:Regulate Bad Patents, Not Independents (Score:4, Informative)
Yes. The Open Invention Network shouldn't be suing people on flimsy grounds either.
Not to mention that the OIN has members like Google. If one of their members is a practicing entity, the OIN can likely make a good argument that they are as well.
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But then a NPE could enlist a more shady company as a "member" (think SCO) and make the same argument.
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A loss at trial does not imply "flimsy grounds".
That is the basic problem with any sort of "loser pays" approach. It primarily just increases the cost of litigation. It will probably not just be restricted to "evil people".
Measures intended to "punish evil people" don't really address the root of the issue. They just sound good to the masses. It's the perfect sort of "feel good and do nothing" measure.
Ultimately, they just open the door for bad ideas that end up victimizing "nice people" sooner or later.
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Re:Regulate Bad Patents, Not Independents (Score:5, Informative)
1. The Open Invention Network actively licenses the patents it holds, so it would not be considered an NPE.
2. The SCO litigation was about copyright, not patent.
3. Your statement about unequal protection is false, a non sequitur, and illogical. Big corporations do not "own" the patents it. A shell company in a tax haven like Ireland owns the patents and license them back to the parent, and other licensees. If the Open Invention Network is considered an NPE then so are these shell companies.
4. Attorneys fees to a defendant are already allowed in many types of cases when it is determined that the plaintiff had no business filing suit, including patent litigation. Revising the patent law so that a bond has to be placed before the suit can go forward ensures the wrongfully accused defendant will actually get paid and the plaintiff can't just vanish after they lose, thus leaving the defendant with the attorneys fees.
Your visceral knee jerk reaction to a concept that you do not understand is absurd.
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No that sounds completely wrong.
1. The Open Invention Network actively licenses the patents it holds, so it would not be considered an NPE.
Licensing patents to others is what patent trolls do. It would not meet the criteria of "substantial investment in exploiting the patent".
I think the original inventor would need to be part of the network in order to avoid the NPE classification.
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Assuming you are right, if the inventor "needs to be part of the network" then 99% of patent holding companies would be NPEs, because as I said before - Big corporations do not "own" the patents. A shell company in a tax haven like Ireland owns the patents and license them back to the parent, and other licensees. If the Open Invention Network is considered an NPE then so are these shell companies.
It's a good start... (Score:3, Insightful)
Why is this not for everything? (Score:2)
While patent lawsuits are particularly important, why is it that we have to make a new law for this at all? Shouldn't we have this for all lawsuits across the board? It can still be allowed for judges to decide in specific cases if the situation does not warrant this requirement. But overall it should normally be the way it is done.
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Is it in all civil cases so that loser pays winner's cost, and court cost?
In that case it would indeed be quite reasonable that when initiating a law suit, the plaintiff should post some kind of guarantee that they will pay loser's cost (preferably a fixed amount based on type of lawsuit etc, so that this is known before the suit is initiated and not dependent on the mood of the judge). That might make actually getting the money afterwards a little less impossible.
OTOH this can not reasonably be asked from
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What you propose would make it nearly impossible for a private citizen to ever, ever again sue a corporate citizen. Big corporations have dozens of lawyers on staff, so they can easily rack up "millions" of dollars of work on a lawsuit. (Of course, if the suit were never filed, those lawyers would have instead racked up millions of dollars of work doing something else as they are salaried employees.) With the chilling effect of you having to pay those fines if you lose the lawsuit, why would you, a mere
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Loser Pays... (Score:2)
So, why doesn't this apply to all civil lawsuits? This is how it works in many countries thus their courts aren't tied up as bad as ours (i.e. American).
http://en.wikipedia.org/wiki/Loser_pays [wikipedia.org]
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So, why doesn't this apply to all civil lawsuits? This is how it works in many countries thus their courts aren't tied up as bad as ours (i.e. American).
http://en.wikipedia.org/wiki/Loser_pays [wikipedia.org]
Justice is imperfect. If the little guy who is in the right sues a big corporation and loses, he could be bankrupted by the big corporation's legal fees.
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The last British government (you know, the American(Murdoch)-Australian(Blair) one was heading down the same route, but amazingly most British judges are rather sensible and tend to discourage frivolous and exploitative lawsuits; companies that have tried it have gone bankrupt or even had the Law Society feeling their collars. Perhaps we should send you some r
EFF piggy bank of infinite funding? (Score:2)
If this allows reimbursement of attorney's fees for patent troll attacks, will it induce charities like the EFF to bankroll a defense attorney if it can recover its legal fees from the plaintiff?
Little guy (Score:3)
Have they been reading my blog? (Score:2)
Not Enough of a Disincentive (Score:2)
Having the plaintiffs in a false claim pay 1.5x to 2x the defendants costs would be better. Perhaps the assessing of higher costs could be left up to the court, if the lawsuit was determined to be egregious.
Bad acronyms (Score:2)
Monkey wrench time. (Score:2)
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Not your problem since it is sold.
It's the Troll's problem.
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If they did that they would get around this law, but that does raise the bar significantly compared to just buying up junk patents and using them to sue people.
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They still have to exploit the patent, ie. make a product.
nb. This assumes the Slashdot summary is accurate and there's no hidden loopholes.
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They still have to exploit the patent, ie. make a product.
nb. This assumes the Slashdot summary is accurate and there's no hidden loopholes.
But that product doesn't have to actually *work*.
Also, they'd probably only have to offer the product for sale. Actual customers wouldn't be necessary.
Or two separate patent trolls get into the business of building products and selling exactly one each to each other for $1,000,000. If the law tries to prevent this, they use 3 trolls and a few shell corporations so they are all classified "Practicing Entities".
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I believe in order to sell a patent you would have to wait till it's actually issued. You could do the negotiations ahead of time, then when it's issued to you, hand it over.
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My pending patent has already been assigned to my superiors. I'm not sure exactly how this is implemented, but i think the point of the law is to allow this kind of thing (it's how capitalism is supposed to work, after all) while stopping the kind of patent troll which buys up a collection of older, tactically useful, patents for pennies and then spams lawsuits with them.
A non-practicing entity could still acquire patents and troll with them, if they were the original assignee. So, it's a conservative law;
Re:A better bill (Score:5, Insightful)
I like this bill but I would take it a step farther. If the patent troll loses, not only do they have to pay the defense, they need to compensate the poor SOB they sued, AND they need to lose access to the original patent they where suing over.
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No, its perfectly fair. Most patent trolls are lawyers anyway. A lot of them know they are just fishing for free money, Don't have any sympathy for them.
Lets say you and your friends get together and circle jerk every Friday night. Now then, I'm a patent troll that has filed a patent on circle jerking. Now a patent on circle jerking is stupid, I know that, and you know that but my plan is to sue you and your friends anyway hoping you will settle. Now you decide to fight my patent so we go to court.
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Re:only half the surface area (Score:5, Insightful)
Geesus christ, whats with the negative vibes coming from the Slashdot crowd???
No, they do not fix everything at once, so fucking what? They are at least trying to fix part of the problem.
Yeah would be nice to have all the worlds problems solved in one go, but you know what, it's much easier to fix it if we solve it one step at a time.
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It's a band aid on a bullet wound and nearly everyone here has enough of a clue to understand it.
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It requires a special kind of idiocy to claim that because you can't get a stitch now, you won't apply a band aid to slow down the bleeding.
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Sometimes a partial fix can make a problem more difficult to completely fix. When they fix one part of a problem, the other parts that remain look much less severe and risk becoming "too low of a priority" / too minor of an issue to get fixed.
So in some
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SCO wasn't a non practicing entity.
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Well, you have to clarify which SCO you meant. It's had several incarnations.
The SCO which sold software (Caldera Linux and some others) wasn't an NPE.
The litigious bastards which have been the last two (I think) iterations of SCO have in fact been NPEs in that they transferred their claims to a company who existed solely to sue.
There is no single entity which has continuously been SCO in all of this, and at least a few of them have been NPEs.
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When you put a bandaid on a cut...it still hurts, but it's better.
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Did you completely ignore the part where trolls now have to put aside money before they can proceed with their suit?
Notably, once a party is deemed to be an NPE early in the litigation, they will be required to post a bond to cover the defendants' litigation costs before going forward.
Even if they declare bankruptcy, there's money already set aside to help cover the defender's attorney fees.
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Naming it "intellectual property" doesn't make it real property. Patents are not property. Patents are purely a legal fiction to grant a monopoly to some entity. Patents expire, vanishing into thin air. Property does not expire. And no, that doesn't mean patents should last infinitely long, either. They're a fiction. A badly constructed legally exploitable fiction. This law is trying to fix some of the fuckups in the current construction. There is no property involved.