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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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Barnes & Noble's Common Sense Suggestions to the FTC and DOJ on Patent Trolls ~pj
Authored by: Anonymous on Thursday, April 25 2013 @ 01:20 AM EDT
And, of course, any patent case will be prosecuted by an entity whose sole asset
is the patent, which is also security for a huge loan. If the case goes pear
shaped, the holder of the loan will call it in, take possession of the patent,
leaving the defendants 'Holding a draft on the Pump at Aldgate!' And, low and
behold, it seems that the financier has found a ready buyer for that patent, and
they seem to be the same troll who sold it to the litigator in the first place,
fancy that!

[ Reply to This | Parent | # ]

Barnes & Noble's Common Sense Suggestions to the FTC and DOJ on Patent Trolls ~pj
Authored by: tknarr on Thursday, April 25 2013 @ 01:20 AM EDT

I'd think that the costs-and-fees rules would include the standard rule that the fees must be reasonable given the nature of the case. That would address the problem of a deep-pockets defendant running up an unreasonably high bill, even if they prevailed the judge could scotch their attempt by simply ruling that they hadn't needed to run up a bill that large and if they chose to be unreasonable it was their problem not the plaintiff's.

As well, the whole point here is to discourage suits where the plaintiff doesn't have a strong claim. If you have a strong, solid claim, a defendant running up their own bill isn't as much of a risk since the risk of you losing would be lower. And if you have a strong case, the defendant would be inclined to settle rather than risk a loss and the loss of any bargaining leverage they might have had.

The current situation's completely out of hand, and doing nothing about it's simply not acceptable.

[ Reply to This | Parent | # ]

Barnes & Noble's Common Sense Suggestions to the FTC and DOJ on Patent Trolls ~pj
Authored by: Nick_UK on Thursday, April 25 2013 @ 08:36 AM EDT
Imagine such an inventor has a net worth of several hundred thousand dollars and has a patent infringed by a large corporation. The corporation could conspicuously run up its legal costs to the point where a loss by the small inventor would be ruinous.

This is exactly how Microsoft operated[s]. There was a case a few years back (alas I cannot remember the details) whereby MS approached a small startup asking if they could use their technology and sent over a team to help it work with MS stuff. After 12 or so months, MS said, sorry, this is not for us and pulled out of the deal.

Of course, 1 to 2 years later, MS all of a sudden produced their own version of the technology (using the data and information gleamed from the people they had working with the start-up).

The start-up complained stating it was their work and stuff, so MS turned around and said - so sue us?

The start-up couldn't - they didn't have the millions of dollars that MS has for such actions, so they go out of business, and MS wins.


[ Reply to This | Parent | # ]

Board paid for researching, not for issuing
Authored by: rocky on Thursday, April 25 2013 @ 04:19 PM EDT
You mention a board of people skilled in the arts evaluating patents to decide
if they should issue. The aspect of what action ties to their pay is paramount
here. The patent office used to be paid for by the government to just do their
jobs. At some point, it was switched to try to save money by having the patent
office self funded by applicants' filing fees, issuing fees, renewal fees, etc.

That created the horrible situation where the patent office gets paid more for
granting patent applications than for denying them. More patents = more money =
more incentive to grant every patent applied for. A patent review board needs
to be paid based on the researching they do on each patent but completely
unrelated to whether the patent is issued or rejected. Maybe a fee structure
adjustment, where there is a larger application filing fee and then no
additional fees for anything after that, like patents issuing or being renewed.

[ Reply to This | Parent | # ]

Barnes & Noble's Common Sense Suggestions to the FTC and DOJ on Patent Trolls ~pj
Authored by: Anonymous on Thursday, April 25 2013 @ 05:22 PM EDT
An obvious (to me at least) solution which I have not seen proposed before to
the looser pays the winner's attorney's fees problem is:

The looser pays the looser's attorney's fees to the winner.

That caps your liability for attorney's fees to twice what you've chosen to
spend yourself, and acts as an incentive to minimize your own attorney's fees.

Of course, the lawyers wouldn't go for it...

[ Reply to This | Parent | # ]

Barnes & Noble's Common Sense Suggestions to the FTC and DOJ on Patent Trolls ~pj
Authored by: Anonymous on Thursday, April 25 2013 @ 05:36 PM EDT
The proposal "Require Losing Patentees to Pay Costs and Expenses, Including Attorneys’ Fees" would dissuade trolls to some extent. Unfortunately, it would for all intents and purposes take patent protection away from entities without deep pockets, in particular, lone inventors of the type who were the intended beneficiaries of patent protection.

The German system seems to work quite well. The steps are:

1. Plaintiff says how much money they want.

2. Defendent says how much money they are willing to pay.

3. Court calculates the difference which is what the case will be arguing about.

4. From the amount, the cost of the court (not free) and the lawyer's fees are calculated. Yes, the lawyer cost is limited. The amount of work they are going to do is limited as well.

5. The case is heard, and the court decides how much money the defendant has to pay (obviously could be zero, or what they were willing to pay in the first place).

6. Court calculates what percentage each side lost, and divides all fees accordingly.

The lone inventor who wants 100,000 Euros for an invention shouldn't have a problem, not even if they lose. The patent troll who tries to blackmail by asking for 100 million will end up paying all or most of the cost (even if the defendant were ordered to pay a million, the troll would pay 99% of all cost).

[ Reply to This | Parent | # ]

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