Ten States Pass Anti-Patent-Troll Laws, With More To Come 64
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.'"
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Have they heard of the Commerce Clause?
No need for such contortions. Patents are explicitly defined in the US Cnstitution as a federal matter.
Does patent litigation ever even use the state courts?
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One more note: if they amend consumer protections to allow broader consumer protections, then they might not be altering the patent law at all, but instead granting an additional course of action for the consumer against misused patents. That would be new suit filed by the victim. It wouldn't change the parent patent court case, if I read that right, so it might be ok in that it is a new course of action at the state level.
Re:Nice sentiment but... (Score:5, Insightful)
Please don't use the term "Intellectual Property" to describe the clause of the Constitution: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
Intellectual property is a modern day term meant to confuse the differences between copyrights, patents, and trademarks. Using a modern day corruption of the concepts to describe the initial writings further confuses the relevant issues.
Re:Nice sentiment but... (Score:5, Interesting)
Using a modern day corruption of the concepts to describe the initial writings further confuses the relevant issues.
The history of patents does not begin with inventions, but rather with royal grants by Queen Elizabeth I (1558–1603) for monopoly privileges...[snip]...In an 1818 collection of his writings, the French liberal theorist, Benjamin Constant, argued against the recently introduced idea of "property which has been called intellectual."[7] The term intellectual property can be found used in an October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et al. v. Brown., in which Justice Charles L. Woodbury wrote that "only in this way can we protect intellectual property, the labors of the mind, productions and interests are as much a man's own...as the wheat he cultivates, or the flocks he rears."[8] The statement that "discoveries are...property" goes back earlier. Section 1 of the French law of 1791 stated, "All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years."[9] In Europe, French author A. Nion mentioned propriété intellectuelle in his Droits civils des auteurs, artistes et inventeurs, published in 1846. - WP link [wikipedia.org]
The advent of Hollywood in the 20th century did two things, created wealthy and respectable citizens out of previously "immoral" entertainers, changed the notion of copyright from a temporary monopoly on property into an eternal property right, the computer industry came up with machines that could be anything you told them to be, the conceptual distinction between ideas and iron vanished and they were able to gain the protections afforded by both copyright and patent law.
I want to see IP law radically reformed: Art would be sponsored not sold, research would be sponsored not sold, software would be serviced not sold, scientific discoveries would be treated the same way as a finding an ancient "treasure trove", depending on it's value to society you either get to keep it in your head or the state publishes it and hand you a token cash reward commensurate with it's perceived value to society.
That's simply not going to happen in my life time, nor would I want it to happen "overnight" since such a rapid switch in basic property law would probably throw the global economy into black hole. It's taken at least 100yrs for the social pendulum to overshoot "reasonable" in the author's/inventor's favour. If you want to help push it back the other way, publishing conspiracy theories on Slashdot is not the way to do it. Getting your facts straight would be a start but "being right" may not help, politics is all about "being listened to" and nothing makes a politicians ears prick up more than the sound of a pen scratching against a cheque book.
Re:Nice sentiment but... (Score:5, Interesting)
Yay! This is what I've been saying for years! It's great to have someone agree with me. You've laid it out in a much more eloquent way than I ever had.
I'm a musician and an inventor. Everything I create I give away for free. I do the standard: Make a video of how to do it and post it. Thing. When I write a song I upload all the individual tracks so other people can, for example, take out the guitar and jam along if it helps them. etc... The art world would be far richer if more people did the same. Just try to go online and find just the drum track for some song so you can practice along with it... it's very rare.
I find it disgusting when I go to conventions or clubs and some dudes made a cool jig or tool, I ask him how he did it and he tells me its a trade secret but he can sell me one. I think the whole handyman community is thankfully turning that way. Imagine if Galileo had kept the telescope a secret...
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I'm gonna lose it. I actually agree with TapeCutter ... What next, up is down? Rivers and oceans boiling? Mass hysteria? Dogs and cats living together?
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I think "Intellectual Property" is also used to support the idea of increasingly longer copyrights. Thinking of a copyright as "intellectual property" suggests that it should last forever, since property doesn't expire, while thinking of it as an exclusive Right for limited Times doesn't.
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That's an easily solved problem, though. The state doesn't have to weaken the patents. They just have to tax the ill-gotten earnings at a 100% rate.
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The patent law 35 USC is built on the Intellectual Property clause of the Constitution (A1 S8).
You made me spit milk out of my nose I laughed so hard at your contortions. There is no "Intellectual Property" clause in the Constitution, no matter how much you want to make ephemeral ideas some sort of protected "property".
The only powers the Federal government was granted are all in Article 1 Section 8, which includes the following:
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Intellectual Property clause of the Constitution (A1 S8)
"Intellectual Property" is never mentioned or referred to in the US Constitution. Article one Section eight has a line about promoting progress in the useful arts by granting authors and inventors exclusive rights to their writings and discoveries for a limited time. Nothing in there refers to "Intellectual Property". It's about physical items. The current "Intellectual Property" laws are a perversion well beyond the scope of anything authorized by the Constitution created by existing power holders to preve
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Sure, that gives the feds the right to handle the matter between states. That does not prevent the states from regulating behavior where one party is within their own borders.
We'll take any victory, I suppose (Score:4, Interesting)
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 except for smaller business that can't afford regional offices. And let's face it, they're not the serious problem, since it's really only larger firms and patent trolls who go out of their way to set up offices in East Texas that are the problem.
Well, here's hoping that the federal government does the right thing here eventually. I'm typically not one to jump with knee-jerk reactions in favor of government regulation, as over-regulation gone overboard can have a stifling effect on business. Any reasonable analysis demonstrates massive and obvious problems with the current patent system, and the private sector has absolutely demonstrated an inability to handle this problem in a sane solution. In fact, the private sector has gleefully demonstrated that it's perfectly willing to exploit the situation and actually make a fucking business out of the problem. That's about the time for the government to step in and put the hammer down.
The only danger is that whenever the government steps in, there's a very real danger of making a problem worse despite all the best intentions. The individual state's efforts real legacy may be of giving some real, working examples of how to potentially fix the issue before it's tried out on a national level - that's certainly not unprecedented.
BTW, does anyone know why, in fact, the senate's patent reform bill is actually being held up (other than "politics" or "lobbyist")?
Re:We'll take any victory, I suppose (Score:4, Informative)
Who knows, it was Leahy's call. [techcrunch.com]
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Who knows, it was Leahy's call. [techcrunch.com]
Interesting, thanks for the link. According to the article at least, it sounds like the bill has been just delayed a bit longer rather than stalling outright. Also, the writer of that article appears optimistic that it could actually pass, which makes sense, given that it's apparently a bi-partisan bill.
Republicans want the law to require the losing party in a patent-infringement suit to pay the other’s legal fees. A reasonable idea, certainly. Democrats appear worried that some suits that do have merit may not be undertaken, provided the possibility of larger legal fees if an even reasonable suit fails.
Hopefully they'll hammer out a reasonable compromise. I can see the merits of both arguments here. The big issue is whether there have been any significant number of legitimate patent suits which would o
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Perhaps the Judge should have discretion on the "loser pays" . One of the big problems is how unsymmetrical some cases can be, eg little guy vs big guy
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It cuts the other way too. It's just insult to injury if a small defendant (such as the small businesses targeted by the scanner trolls) against a troll ends up on the hook for the troll's legal fees. It could be enough to make even more pay the extortion.
Loser pays works great as long as confidence in the courts coming to a just decision in spite of a huge disparity of resources between defendant and plaintiff is near 100% AND confidence in the just nature of the laws themselves is about the same. I don't
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That would help. Eventually, either the massive costs of going to court must be curbed sharply or a scheme will have to come into play where a defendant with a half decent case is as likely to have a law firm pick it up speculatively as the plaintiff is (if you lose, pay nothing, blah blah blah).
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I like 'Loser pays the lowest amount either side paid'. In other words, if big corp spends $1,000,000 suing citizen A, who spends $5,000 for his defense, and Citizen A loses, he pays $5,000 of big corps bills. If it's reversed, same applies.
That would discourage massively disparate spending in court, while still protecting the innocent target of lawsuits to some degree.
The problem, I guess, is that could encourage patent trolls to simply hold down their own expenses while attempting to incur massive expenses on the plaintif. The idea is to discourage the "lottery mentality" of our current system, where patent trolls are attacking giant corporations in the hopes of a massive settlement or patent licensing fee. They're currently safe because their own expenses are relatively fixed (with retained lawyers on staff, or lawyers paid on commission - only if they win), while th
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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.
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Patents are prescribed by the Constitution, making Federal regulations regarding same perfectly reasonable and correct.
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Idiots (Score:2)
I would try to avoid states that pass laws like this. Clearly this is a Federal matter.
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It discourages the trolls to operate, period, as long as the anti-trolling laws do not interfere with federal law, or patent rights protected by federal law, [which would lead to a legal challenge against the state act] ---- the rules of commerce, how property/trade work, dispute procedure, your abaility to send threatening blackmail/extortionate messages can be limited by the states.
That is the whole idea. They want the trolls to avoid their states.
However, if they do avoid my state, and the troll d
You think the feds will bother? (Score:4, Interesting)
I would try to avoid states that pass laws like this. Clearly this is a Federal matter.
And Congress has been shown themselves to be right on top of this issue too... [/sarcasm]
Congress has shown zero appetite for dealing with this matter. Until they can actually be bothered to do something in the interest of the country I'm fine with states taking up the slack where they can.
Pointless (Score:4, Interesting)
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.
Re:Pointless (Score:5, Informative)
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?
Re:Pointless (Score:5, Interesting)
I think in these cases it'd be even simpler: the letters don't actually spell out what part of the patent is infringed or how the recipient infringes it. It'd be the equivalent of sending a letter saying the recipient's violated a contract and has to pay penalties or face a lawsuit, without saying what contract, with who, or how the recipient's violated it. The state should be able to deal with that aspect of it without going anywhere near the patent itself, that kind of behavior should constitute bad faith even if the underlying patent's valid.
A lot of trolls do send out letters without any basis, because a lot of people will take a cheap settlement rather than spend the money to fight it, go through discovery and all it's costs, and get the suit dismissed. Take a look at the SCO v. IBM lawsuit, where the SCO executives were fairly explicit about not caring whether their claims would stand up or not because it'd cost IBM more to fight and win than to settle so they figured IBM would just settle. Anti-patent-troll laws aimed at this sort of vague accusation help because it forces trolls to be explicit up front about what they're accusing their victims of which gives their victims more opportunity to knock the accusations down early on before it gets expensive.
Not pointless (Score:4, Informative)
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Like applying bandaid to a gushing wound (Score:3)
So, their solution to a badly drafted, overly broad and ridiculously vague piece of legislation is... more legislation? And further, each state wants to introduce its own flavour of law into the picture?
What a nightmare. Instead of having to deal with one bad piece of federal legislation, you now have 1 federal and potentially 50 state laws to worry about. The only ones rubbing their hands in glee are patent lawyers.
The only real solution is patent reform, and the stalling members of the Senate [thehill.com] ought to lose their jobs.
*rolls eyes*
In the meantime, the rest of the country has to deal with the consequences [eff.org].
Re:Like applying bandaid to a gushing wound (Score:4, Interesting)
6092 patent lawsuits were filed in 2013, a 12.4% increase over 2012.
That figure's a bit misleading. Thanks to the AIA and several legitimate patent reform acts, patent trolls can't sue "Microsoft and Google and Apple and Joe Schmoe from Florida" in one suit anymore, something they did to force reasonable venues in Texas (halfway between Joe Shmoe and the other parties). So, now they file three suits against Microsoft, Apple, and Google, and leave Joe Schmoe out - 3 times the suits, 75% of the defendants, which is actually an improvement.
Re:Like applying bandaid to a gushing wound (Score:4, Insightful)
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So, their solution to a badly drafted, overly broad and ridiculously vague piece of legislation is... more legislation?
The only real solution is patent reform, and the stalling members of the Senate ought to lose their jobs.
So, your solution to a badly drafted, overly broad and ridiculously vague piece of legislation is... more legislation?
I'll never understand the mindset that thinks passing laws and creating regulations is bad.
The only way that could possibly work is if you think the world is already perfect as is, or if you want judges to decide everything instead of Democratically elected representatives (which includes some, but not all judges)
Does 10 out of 50 still count as many? (Score:2)
The "patent troll" problem is three law firms. (Score:5, Interesting)
Most of the "patent troll" problem comes from three law firms. [trollingeffects.org] They're the only ones who've sent out more than two demand letters, according to the EFF.
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This site is hilarious, but in no way relates to the actual number of demand letters sent by a long shot.
I'm confused (Score:2)
Is this another +5 Troll thread?
So.. (Score:1)
Ten less states where Apple can sue Samsung?
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Please, Samsung copies Apple phones so slavishly... every tiny detail. The intellectual property laws are so weak protecting Apple. For eg: iphone 5c comes in bright colors white, blue, pink, green and 5s is gold. Guess what, Samsung now has gold, green, white, blue, pink phones with a slightly different texture (dots instead of flat color). Granted you can't protect colors, but my point is Samsung copies everything Apple does.
It would be a fscking joke if Samsung were to sue Apple for copying their stuff.
Eh? (Score:2)
The title is confusing. Is it "Anti Patent-Troll" laws or is it "Anti-Patent Troll" laws???
It's a slight difference there in the semantics.
40 states left! (Score:1)
At least my "Snarky Internet Forum Post" Copyright will still hold up in a few places.