Being sued, in East Texas, for using the Google Play Store [video]
youtube.com
youtube.com
I agree with clavelle's comment. It's not so much the laws, but the system that allows this to occur.
Link here: https://www.reddit.com/r/Android/comments/4n08jj/developer_i...
Isn't this a blatant conflict of interest? If this isn't grounds for disbarment, what is?
https://en.wikipedia.org/wiki/Judicial_disqualification#Appl...
So there's no allegation that Judge Davis (now retired) actually presided over any of his son's cases, merely that his son stood to benefit from the overall patent-troll friendly climate of the Eastern District court. Not really a clear-cut recusal situation. If anything, the fact that his son's firm represents trolls and victims alike meant there was less reason for a specific bias on behalf of the judge.
One of those 3 letter federal agencies, that government spends $billions on, needs to look at this "not really clear cut situation".
The bit about "specific bias" is interesting. I wouldn't assume that the judge is biased for or against patent trolls, but his position gives him reason to be biased for patent trolling, which isn't quite the same. It would be to the advantage of his son to make a big deal out of cases which don't deserve it. Accepting cases about ridiculous patents would do that, as would encouraging trials for patent cases which are obviously legitimate.
Whether that's happening or not I have no idea, but he clearly has an incentive to keep things stirred up in this area.
(i.e the Judges Son tries a case with a different Judge in town, but that Judge is buddies with the other Judges.)
It's enough to just point out what the article/video says, like your second sentence does.
The situation is that with patent suits able to be brought anywhere and brought in East Texas by preference, a significant amount of that areas economy is now based on this racket and so the culture of the area is very oriented towards enable patent trolls, especially given a general contempt of outsiders characteristic of a small town.
In the pre-Internet era, one needed to take an unlucky to get murdered or shaken down by the corrupt culture of Smokey And The Bandit style US small towns. The ambiguity of the law and the convenience of entrenched interests now means that
It's been going on for a long time. Recent article: http://www.chron.com/news/houston-texas/article/How-east-Tex...
2006 article: http://www.nytimes.com/2006/09/24/business/24ward.html?pagew...
Choice quote: "'During the TiVo-EchoStar trial, 90 percent of my revenue for one month came from one of the law firms in the case,' said Phillip W. Gurganus, manager of the local 68-room Hampton Inn, where rates run $77 a night." Guess what he'd chose if got on a jury? Certainly a decision that kept business in East Texas.
How is this not legally considered a conflict of interest in cases where the judge had relation to one side of the case? I don't know much about the law system but I would assume their are provisions in place to prevent these types of conflicts.
They certainly don't have to and I'm not sure if Apple or Microsoft do or not for their equivalents, but I know Microsoft offers patent indemnification for a lot of things these days. It would be in Google's best interest to have a patent indemnification policy for Google Play store.
I'd love to know what the actual numbers look like but I'd be willing to bet that the costs are extremely low since it works as a deterrent to these kinds of lawsuits. Patent trolls go after these lone developers because they'll settle rather than incur the cost. It's an easy buck. This guy didn't make Google Play, he didn't write the code that "supposedly" infringed on the patent. He simply used it because that's the only way for practical purposes to publish an Android app. And since the patent covers a large set of features that Play uses for licensing, he couldn't have published through Play and not infringed in the eyes of Uniloc. The law allows anyone in the chain (including the guy playing with the Flight Simulator) to be sued for infringement, but they'd be very unlikely to do this kind of garbage if they knew Google would bring their legal team into the fold. By not protecting their developers, Google has a deterrent to people using their platform.
It's only a matter of time until a patent troll writes a for loop on the store index to send out infringement suits DMCA-takedown style.
Perhaps a competing troll owns the iteration patent.
#define whenceforth for
#define whereas else
http://thedailywtf.com/articles/_0x23_include__0x22_pascal_0...
Edit: Not saying Boost is idiotic; just that you may not be positively impressed with their use of preprocessor magic.
[1] http://www.boost.org/doc/libs/1_61_0/libs/preprocessor/doc/i...
You can also do even more weird things with it, like X macros
#define true false #define static thread_local
#define if(X) if((X) ^ (rand() < 1000))
#define private public
#define while ifhttps://github.com/dogescript/dogescript/blob/master/LANGUAG...
totalMoney = googlePlayAuthors.reduce((money, author) => money + abusePatentSystem(author), 0)Consider how Google is helping the OEMs get Android updates out. Consider how easy it is to call google customer care.
The real question should be: what the fuck developers? Why do you keep hitching yourself to such an unreliable partner? When is it enough?
Very hard road to travel though.
――――――
Slack desktop is a webapp packed in native wrapper.
Google, and Apple and Valve, can send their own lawyers to defend these clients, but since there are dozens of cases, it will be quite expensive. They can maybe sue these trolls for tortous interference, but that may not stick.
So they can't do much.
Plus Google can claim litigation costs.
Also clearly there is a damage to reputation of the Google, since we are discussing here that they need to get involved in this case. I am not sure if they can get compensated for that as well.
They could also take the first app developer to get sued under the patent and pay for them to file a CBM review. Or file an IPR or PGR in their own right seeking to invalidate the patent.
IANAL, but I suspect this is exceedingly rare.
This is what I could find. I think the suits were dropped.
http://arstechnica.com/apple/2011/08/apple-tells-judge-inter...
"Why are we forced to fight for ourselves?!"
Sure...
I'm also curious why numerous developers have not demanded an Insurance Protection Product / Plan that would take a premium in return for subrogation (defense) if a frivolous Patent Suit is filed. I'm rather certain the market exists and while it may be for larger businesses or players, developers forming a Mutual Company and writing on some big name AM Best A paper (or even going to Lloyds) could be helpful.
Anybody know of such an organization or idea?
I guess my line of thinking here is that "Yes, this is totally unfair and rigged" and then move on to "How do I work around the issues, at least to a limited extent, to avoid these pitfalls?" Sign me up for reform, sure, I'm all for it. Until then, I don't like banging my head against walls, I prefer to figure out ways around or over them.
It would be very cool if company such as NewEgg could offer this - they already have the in-house counsel/expertise; and since the number of people trolled is very small, I'm sure even a small premium would be enough to cover it (provided you have enough customers).
I suspect part of the problem is that the monetary and time costs of litigation could not be easily measured. Every case would be, effectively, unique. Not insurmountable, but I have to imagine that the premiums would need to be very high.
And as a bonus, you can generate a Newegg-like reputation to convince people that you're not worth bothering.
Pooling these cases, and the information gleaned from the tactics, might reveal patterns and/or pressure points for resistance that an Insurance Team would be willing to underwrite and hire defense for. The point is that if the Insurance Team is good at getting results, then in theory, fewer Patent Troll cases will arise, and the Insruance Company gets to pile up reserves for potential cases and make a profit concurrently.
Then, as you mention, just being a vetted participant and using the logo "Insured Against Patent Trolls By XYZ" can be a deterrent. Takes time, I understand, and it may be a very limited market. I'm just curious if the math and legal defense strategies can be combined in some ways. Thanks again for your postulations.
So in the end it's a choice between capitulating and paying some amount (and perhaps unleashing more trolls in the future) or wasting millions and many many hours of your time over years of your life defending yourself.
There's no way to win, which is why this is now a big industry.
See medical malpractice insurance for another example.
If enough people buy insurance to make sure that the patent trolls never win, then there's no money to be made and the lawyers stop suing. So the price of insurance goes down. It's not like insuring against tornados, which are going to happen regardless of whether the houses are insured. Furthermore, you can state up front "IP Lawsuit Coverage provided by XXX" as a disincentive for people to sue their members in the first place.
My impression is they'd rather not go to court, since there's always a chance they could have their patent busted.
For small companies, that's a great proposition because a small monthly fee can be planned for, while a patent suit is do or die find very expensive legal support.
I have a fair amount of experience with patent trolls.
I've seen companies sued for using facebook, where the damages are X dollars times the number of facebook followers/posts/comments they have. (So the level of risk is very hard to estimate for an insurer, because interaction numbers on the internet can spike easily)
Also, the the troll will practically _always_ offers a settlement that is roughly equivalent (or a few percent cheaper) than the legal fees to defend and win the case. -So a company has two options: Spend Y dollars to make it go away; or Spend Y*0.99 dollars and a year of wasted time to _maybe_ win. The system is setup such that Patent Trolls can't lose and companies can't really win.
He visits East Texas and shows that the 'offices' of the 'companies' that hold each patent are empty shells.
Tl;dr: He visits the listed offices of several dozen patent trolls in East Texas, including one directly across from the court house. Each one is empty with no sign of human activity. One has a secretary who claims the address is the accounting firm for those businesses. Then one person comes out to say that he is "a representative" of the businesses, and that those businesses "are based in East Texas" though. He recites one sentence about patents being property and then the video creator is kicked out.
1) The patent reason is a giveaway what they were really up to. 2) Why would you only hire part-time students? They were simply trying to build up a credible reputation in the community as a "small, local shop hiring locals" going against the big guys.
In one case you're jut trying to set your company up to avoid paying too much taxes, in the other you're forcing the people you're trolling to a) travel far from home to defend themselves against your likely unfair lawsuit, and b) be at a disadvantage in front of a judge who is known to tilt things in your favor.
What about actual patent violations?
"Their" in this case being "Google Play" product and any liability arising from the use of thereof.
One of these troll companies made $30 million a year doing this and they are even listed on the stock exchange!!
That is why that one copier patent troll (can't remember the specifics) files suit against businesses that purchase copier, but not the manufactures themselves.
It's appalling how limp this business is when it comes to demonstrating political muscle
edit: It'd actually be pretty effective if you stop to think about it, even if it doesn't technically prevent litigation.
Just think: "Sorry, this product isn't available in you're area due to patent litigation concerns". Part of me wonders if that happened with Netflix, Google Maps, etc. wouldn't the people start hating the patent litigation instead of being content with it?
He had just won a three year litigation with the same group, after which they pointed out that even though he had won a battle, they had enough BS patents to keep him in court for several lifetimes. He is currently in year 4 out of a projected 450.
https://popehat.com/2016/06/06/lawsplainer-when-must-federal... Article is in the context of Trump, but you needn't let that turn you off.
I say slay the trolls, slay the judges, slay them all - by legal means if possible. I would love to find an old Texas law that allows trial by combat with no substitutions...
Under no circumstances should anyone do any of those things, because that would be wrong.
(And, more seriously, I hope you never have a good excuse to try.)
Patent trolls don't rise (sink) to the level of child molesters, serial killers or ISIS terrorists, but still... I wouldn't shed any tears if something really bad happened to these people, whether by accident or design. They attack the best of us while contributing nothing. We don't need them.
- Somali pirates and Congolese poachers: poor and miserable conditions with no perspective to get out of it
- patent trolls: greedy, moral-less legal positivists
- serial killers: psychopaths
- ISIS terrorists: brainwashed losers, who want easy answers, a mission, a group and a leader
- child molesters: I would say mentally ill
If you see it like this, you can fix the problems below. You will still have to protect society from serial killers, but all others seem to be solvable.
- African criminals: fix Africa
- legal positivists: fix the law
- ISIS terrorists: fix ghettos
- child molesters: fix paedophilia
Of course this will only fix the problem for future generations. Potential patent trolls will be assholes in a post-troll world, too, but you will always have to deal with those. There are paedophiles who are not human scum, but are aware what consequences their actions could have. That is also why the catholic church with its celibacy is so attractive to some of them.
I personally think that institutions must act perfectly morally, but personally affected individuals should be required ultima ratio to act against morals and be later judged and punished for it. So in this case, when you are a small developer and there is no way out …
Patent trolls aren't much different from serial killers, though: they're both socio/psychopaths (same thing really). Patent trolls aren't violent, and are greedy for money, that's the main difference. But the law itself you could say is a work-around for problems like this, but as we see here the law is broken and needs to be fixed because the sociopaths have figured out a way to abuse the law for their gain.
Depends on your point of view. In the point of view of a paedophile, sterilisation might not seem like a fix, society itself thinks different.
>Patent trolls aren't much different from serial killers, though: they're both socio/psychopaths (same thing really)
I thought so, too, but then did decided to not call them that, because I imagine that many of them are just not "into market economy" (you get money in exchange for providing value). They see a gap in the law and try to take it from "the big guys", who have it anyway. There are many other groups of people, who think that they are somehow entitled to get money they did not provide value for.
There's a difference between suing Google or MS for patent violations, and suing some small business that's just selling an app on Google Play store. These patent trolls are frequently going after small companies because they know they're more likely to settle. That's sociopathic, it's not like Robin Hood.
In a nutshell, if you think beating someone up to get what you want is wrong, then you must necessarily think that military force is wrong, and maintaining a military force is also wrong.
You can also look at some pretty extreme examples: if you're a Jew in 1930-something Germany or one of the nations it occupied, and a bunch of soldiers are coming to take you to the camps, is it unethical for you to use violence against them? Of course, you might argue that's a bad example because the other side already initiated the use of (or threat of; they're carrying guns) violence so you had the right of self-defense. But that's no different than having a legal system that you feel is unjust: if you don't agree with the legal system's ruling and resist or ignore it, then they'll send men with guns to force you into submission using violence.
Now you can argue that there's a huge difference in magnitude between being taken to death camps and losing a patent case and having to give a large sum of money to a patent troll, but I think the principle is the same, it's just a difference in degree. All human conflict is like this: we have systems we try to use to avoid solving our differences with violence, but at times, these systems fail and at least one party feels the price/risk is worth it. Luckily, if you look at the entirety of human history, the amount of violence has been steadily falling, and we're probably at the least violent point in history, if you look at humanity as a whole.
For example I learned a lot from this video: in case I decided to sell an app on any store, I'd better contact my lawyer to get advised on where and how to incorporate my company.
I don't know if it can be easily resolved by incorporating in another country, but the difficulties of an international litigation should discourage trolls.
[0] https://en.wikipedia.org/wiki/RPX_Corporation [1] http://techcrunch.com/2008/11/24/is-rpxs-defensive-patent-ag...
Also, companies just don't sue each other that often. I don't know why US is different.
Google should fix it, East-Texas should fix it, Texas should fix it, donation to legal funds should fix it, insurance should fix it, more campaigning and lobbying should fix it, we should let them fight to the death that will fix it!
Hmhm. Quite :)
Except they are blaming the legal system, as you yourself enumerate:
> more campaigning and lobbying should fix it
Campaigning and lobbying are ways of effecting change to the system of laws.
Yes of course they are. But that way those with the biggest army of lobbyists and campaign donations are going to decide what your laws will be. This is part of your problem, not your solution!
"Ric Richardson is an Australian inventor. He is the holder of multiple granted patents including the Uniloc patent US5490216 and the Logarex patent 6400293. Although he spent twelve years in California to promote and develop products produced by Uniloc, Richardson grew up in Sydney and currently resides just outside Byron Bay.
He is the founder of Uniloc, a company based on the technology he first patented in 1992."
Here's his picture from the Uniloc web site: http://uniloc.com/wp-content/uploads/2010/08/ricrichardson.p...
He's apparently insanely talented, having "invented" the panic button, the visual voice recorder, the 3G skype phone, the secure browser, the universal database, the carbon scrubber, the book dispensor, "media objects", the "Internet Computer", QR Codes, DRM, a password replacement system, TV muting, and several dozen other devices, just in the past 16 years alone.[1]
Am thinking these activities devalue the terms invention and inventor. Would prefer that to patent some process that you had invented you ought to have to come up with a device to implement said process. You may not even know how to realise your idea in practise which is kind of where all the hard work is. An not saying idea for processes are ten a penny but the bar needs to be raised.
I'm told, you may be put to trial in East Texas, if you're selling your goods or services there. – So, why not stop selling to East Texas and let them settle the resulting collision of interests themselves?
(2) There is an active legal challenge to the existing rules (arguing that they misapply two separate provisions of law as if one controls a definition in the other, when that is not the case), which if successful would radically shake up patent venue and pretty much end the "drag everyone into ED Texas" thing we have going on right now. [0]
[0] http://patentlyo.com/patent/2016/04/circuit-continues-allowa...
Patent trolls file these frivolous lawsuits because they make millions and suffer zero consequences for their actions. Why? Because there is no industry trade group representing the software industry with any sort of teeth. They know software developers have money, and they know software developers are absurdly weak when it comes to defending themselves. Software developers are easy prey.
Other than the EFF who is out there to represent us with any measure of real leverage over the legal process? Who is out there with the muscle to make patent trolls and software unfriendly lawmakers have second thoughts when targeting developers?
With no lobbies or trade associations with any sort of power out there representing consumer software, anyone with even minor influence over government can simply walk all over software developers, again and again and again. The consumer software industry has enormous amounts of cash at it's disposal, surely a few cash rich companies can pool enough resources together to kick off a trade association worthy of punching back, hard
http://www.uniloc.com/wp-content/
It's like they're trying to be as obviously illiterate as they possibly can.
For a "software security company" they sure are begging for their website to be hacked.
Or maybe it is a honeypot?
What the hell? Could this be the lawyer the video talks about?
Apparently not:
> Bradley C. Davis, Brad serves as the Chief Executive Officer of Uniloc USA
For a business to claim it's "based in" East Texas it'll have to pay its taxes there. Local litigation law firms are bringing tons of money into the area, further increasing local revenue. Shutting it down would probably even knock a significant slice off of the state's income.
Edit: And IBM apparently got one granted: http://www.google.com/patents/US8386350
How is this even for real - why is Google not putting an end to it?
No, if you sell your product or service in the US (or at least East Texas). It doesn't matter where your company is incorporated, it only matters where you do business.
I imagine if in future somebody gets such a patent lawsuit, they'd just rip up the letter and throw it away. Police comes to carry out court orders because they decided in absence? "Sorry officer, the reason you're here is just patent bullshit." - "Oh well, I won't lift a finger for these idiots. Sorry for bothering you, have a nice day!"
Or a more extreme reaction: already in this thread, a couple of people are fantasizing about violence, hiring a hitman and so on. I realize it is mostly meant jokingly, but self-justice is another effect of a justice system that's lost legitimacy.
Rule-of-law is a great thing to have, but it only works if these laws are somewhat reasonable and in accord with peoples moral values...
If that's not a racket, I don't know what is.
Then again I'll just leave this here.
http://uniloc.com/wp-content/backup-9b7a1/uniloc_wpu_2012032...
that would stop it.
But in the meantime, guess I'll just be writing webapps.
http://www.plainsite.org/dockets/sknqayqz/texas-eastern-dist...
It's obviously rotten but that one-step removed corruption is probably not explicitly codified as wrong anywhere. Hopefully the legal system finds a way to root it out.
But a lawsuit is a civil case, not a criminal case, right?
The Supreme Court's ruling in Alice v. CLS Bank, which dealt a fatal blow to a lot of software patents out there (especially the awful, vague and overly broad patents that trolls love so much). The Supreme Court reaffirmed that merely "adding a generic computer to perform generic computer functions" does not make an otherwise abstract idea patentable. [0] This ruling helps get rid of cases earlier. While it doesn't kill off patent litigation, it makes it easier for us to fight low-quality assertions. More importantly, this puts a tougher filter for prosecution of new patent applications, the vast majority of which are dumb and overly broad.
Inter Partes Review (IPR) proceedings, which are rather expensive (average $278,000) [1], but are much cheaper than litigation. Third parties can use IPRs to challenge patent claims (patentability) based on prior art patents and publications. In the case of Austin Meyer's patent defense, many of the patent claims were invalidated through this kind of proceeding, and petitioned by a consortium (Distinctive Developments, Ltd., Electronic Arts Inc., Gameloft S.E., Halfbrick Studios Pty Ltd., Laminar Research LLC, Mojang AB and Square Enix, Inc.). [2]
Heightened pleading standards. Before December 2015, it used to be that trolls could sue dozens of companies with cookie-cutter complaints, citing no real facts, and put on pressure for settlements by threatening lengthy and costly discovery proceedings. But thanks to decisions in Iqbal/Twombly, complaints must plead facts and recite aspects of the accused product that are alleged to infringe. This butchers the spam lawsuit tactic, and the day before this went into effect, trolls filed a one day record for new suits. [3] Shameful, yes, but it's helped clarify standards governing motions to dismiss.
[0] https://www.eff.org/files/2014/06/19/alice-corp._v._cls-bank...
[1] https://www.rpxcorp.com/2015/07/02/iprs-reality-amid-the-pyr...
[2] search patent number 6857067 and document 37 at https://ptabtrials.uspto.gov
We do not have equal access to our judicial system in the United States.
If you have money, you have the power to legally hold people with less over a barrel. That exploitable inequality is poison for a well functioning society. That is the problem that needs solving.
I don't really have an opinion either way, those are just the common arguments against it.
Even if the poor person has a legitimate claim, there is a small probability that the rich person will win with their superior lawyers and the poor person will be bankrupted by the legal fees. Since they will know that from the beginning, they won't sue in the first place.
But it still doesn't solve the idea that the "Law is more equal the more money you have." .
If you lose and your suit was 100% without merrit, you can be sued for lawyer fees.
From what I understand, the problem is the bar for meritless is very very very high. Not sure how you legislate that. I think most lawsuits are meritless. A lawyer may have a very different opinion.
A lawyer's salary depends on him not having the opinion that most lawsuits are meritless.
Almost every country except the United States uses this system.
Not directly related, but personal bankruptcies aren't a thing here. If a debt can't be paid, it goes to recovery proceedings, and will stay like that until it expires in (generally) 15-25 years.
That just gives financial unsupervised power to the judge, without any clear definition of involved terms. Which doesn't really sound like a good idea.
What I don't see is how anyone who is inherently subject to popular opinion can possibly rule impartially in the interests of justice, but that's a different question.
Almost every country except the US uses agencies of their executive branch of government to enforce most labor, housing, discrimination, harassment, and civil rights laws. In the United States the enforcement of such laws is often split, with only very serious violations being handled by an executive agency and the more common violations simply creating a cause of action for a civil suit.
Even if the amount a loser has to pay is limited to what they themselves paid for their own attorneys it would still greatly discourage many people from bringing suits over labor, housing, discrimination, harassment, and civil rights against anyone who has significantly more resources than they do. If they spend a lot to get a top attorney and lose then they have to pay a lot. If they spend little on an attorney to limit the maximum they might have to pay then they have to worry that the other side will out lawyer them.
The point about potentially discouraging lawsuits has a grain of truth in it, but not more than a grain. In the US you'd have to pay $X regardless of whether you win, and with the loser pays system you pay $0 if you win and $2X if you lose. It is at most a factor of two. The reality is that most people who can't afford $2X also can't afford $X. Consider what you get in return: (1) if you're quite sure you can win, you can sue at no cost (2) big companies can't just bully people into a settlement (like they attempted in this story). The net effect is that poor people who are clearly in the right gain the ability to sue, and rich entities who are clearly in the wrong lose the ability to extort settlements from poor people, but poor people who can afford $X but can't afford $2X lose the ability to sue if they aren't sure they can win. A very good trade-off if you ask me.
In theory, I like the idea that the winner's legal fees are just another item in play when the judge decides how to award damages. Maybe it's just a matter of calibrating that judicial sense properly. Or maybe that's just a cop-out on my part to push the thinking onto somebody else.
In effect, this is exactly what happens in most loser-pays systems. Loser-pays usually doesn't mean literally that the winner automatically gets all of their fees paid, no matter how abusive their practices during the case or how disproportionate their expenses. More often it means that the judge can award those fees and there is some sort of presumption in favour of the winner of the case not losing out financially.
I do see people taking advantage of legal systems in other countries in order to do other behaviors and applying a legal arbitrage of sorts agaisnt another legal system (i.e scihub/libgen vs elsevier), so maybe this will become more prevalent as time goes on as the technical means to do so becomes more available.
These little guys have too much access to the legal system.
That's why it's hard to clamp down on. Nobody wants to make it so only big guys can have access to the legal system.
There is a form of patent trolling that only goes after small guys. But they'd avoid actually litigating the patent and just push a settlement. They'd never take it to trial because little guys can't pay out enough to justify the cost of a patent trial. That form is basically extortion. They ask for a small sum of money to just go away.
Outrageous.
Surprised there isn't a more meaningful response from Google.
#1: Big corporations can push small guys out of business by tying up their products in patent disputes.
#2: Patent trolls can bleed corporations big and small while producing nothing of value.
These problems are specific to the patent industry.
Are there similar problems in other areas of the law? If so, we may be able to identify and try to solve the larger problem. If not, we just need to focus on patent reform which is an easier problem.
They are rich enough to sue. They are not "the little guy", they are often well funded businesses that buy patents wholesale for the sole purpose of suing other businesses.
At my last job I fielded a call from the "scanner patent" guys, luckily I knew what they were up to and I declined to answer any questions. They framed the call as being from Staples for a survey about the office equipment we may have bought from them, i.e. they flat out lied. Since I was in charge of all office and IT equipment purchase decisions, I knew we'd never bought a thing from Staples, and when they started specifically asking about multifunction printers with scanners, I just said "troll someone else" and hung up.
I agree, but I think we can be more specific.
Criminals (or those accused of a crime) are constitutionally guaranteed an attorney. Civil plaintiffs/defendants, by contrast, have no such right. The anecdotes and experiences of HN users overwhelmingly describe the civil side of things.
Civil lawsuits, IMO, should carry no guarantee of counsel at the constitutional level. Imagine if they did: free lawyers mean frivolous lawsuits and over-burdened courts. But, I don't think anyone is actually clamoring for such an arrangement.
So, specifically, how can we more efficiently allocate limited legal resources to ensure that the average civil litigant is not disadvantaged by a wealth disparity with his opponent?
Well, what's the perceived disadvantage to a resource-poor litigant? What's the perceived advantage to a resource-rich litigant? Good facts make good cases much more frequently than good lawyers make good cases.
It probably breaks down a lot in cases involving multiple litigants (let alone class actions), but it is an interesting idea.
The ramifications on corp to corp lawsuits would be amazing.
Then repeat for every wealthy corp you can think of. A loss doesn't hurt you, because you're still getting paid from the joint legal fund.
Alternatively, Apple could give a lawyer a million dollar gift, with the understanding that he'll defend them in any lawsuits for the next year while charging minimum wage. Then, Apple would be happy to pay an equal amount of minimum wage dollars toward the other side's legal expenses.
Maybe I'm reading the parent comment wrong, but I assumed this system would allow for unequal funding between the two sides. So if you think it's a frivolous lawsuit that you can easily win you would just let the other side fund the entire endeavour.
A solution to this might be to say that any money not sent on the case is given back to the person who payed more, so it's not an avenue for making money.
Which is maybe not an unreasonable solution, but it strikes me as fraught with unintended consequences.
I don't think BigCorpA could get away with simply gifting a lawyer a large sum of money to work on cases with arbitrarily low costs, but I do think they could have contract lawyers who work for the fee their opposition works. These small frivolous cases run by a person representing themself should not require millions to get shut down as being such (and if they are that's a different legal system dysfunction), but there'd be more than enough cases where the amount spent is large and being on deck for those would be worth it to a good lawyer. Not to mention cases where the company thinks upping the spend is worth it to defend on something real and important.
Note that I don't think your scenario is actually all that different from the current reality, other than the idea that your opposition is funding you, but there are almost certainly arrangements where this would not be the case.
Also, if your case is dismissed as frivolous I think you would not get any of the fund regardless.
Good points :)
I see at least one flaw, though: what if the two sides disagree about the amount of money that should be contributed to the fund?
I haven't really thought through the consequences of requiring some kind of agreement in advance, but my instinct is it couldn't really work just because being obstinate would be heavily rewarded.
It's not crazy to think that before the state should use it's power against you on behalf of another citizen, it's up to the state to ensure that this action is lawful and correct to do (which might require supplying you with an attorney).
Demonstrably not in the case of patent lawsuits, especially in east texas.
"Ward’s rules unleashed what became known as the 'rocket docket.' In his first year on the bench, Ward heard 5 patent cases. In 2006 his docket had 87. 'I did not anticipate that there would be an explosion of lawsuits,' says the now-retired judge."
"Yet Marshall soon gained a reputation the judges may not have welcomed: it became known as a plaintiff’s playground, a place that frequently handed out tens, or even hundreds, of millions of dollars in damage awards. In 2006 the New York Times reported that of the patent cases that went to trial in Marshall, jurors ruled for plaintiffs 78 percent of the time, far more than the national average of 59 percent. From 2001 to 2006, plaintiffs prevailed in eighteen straight verdicts in Marshall."
Your POV that money distorts and helps determine winners, while seeming so prima facie obvious, does not come close to getting to the real problem. I know this because I have money and I've spent well over a million dollars on attorneys in the last decade and I got very little in the way of ... not justice, very little in the way of consideration of the core legal questions in each case; in fact, I don't even know how the interesting core legal questions would have been resolved, the courts completely dodged them; and along the way, I saw a vast amount of phony posturing, amplification of minor details, and outright lying and manipulation of the legal system, mostly by attorneys; and the judges eat it up, because they too are attorneys. (and BTW, when a judge sees an unsophisticated indigent defendant, they actually do bend over backward to help them, say a confused tenant who does not pay rent is most usually given many many more chances.)
To put it into the context of this guy's patent rant: my point would be, there is a question as to whether this patent is valid or not, and whether it covers this particular issue or not. The "right/just" answer would be found more quickly and more cheaply and more rationally if the judge would simply decide that first in a non-binding way, like "from what I know so far, here's the way this is tilted". Then after that, if the losers wanted to spend money to present a stronger case they could, and the judge could say "warmer...warmer... colder". Then after all that, if you want to try to change the thing on a technicality like "yeah but you didn't serve the notice the right way", then the court would hear that.
The way courts decide things is to completely front-load all these arcane minor points, and it has the effect of squeezing the shit out of the litigants to force them to settle. "You think you have a legal dispute that's worth this much? I'll give you dispute resolution that costs more and much of your life. Now do you want to settle? Don't test me, as a judge I'm a former attorney, we win at this game. Now do you want to settle?"
Whether you have money or not the real problem is the threat of loss due to the /process/ as opposed the merits and likely result of the case. That is the problem that needs to be solved.
I'm not saying I know how to remove the expense of the process out of the equation but that is what needs to be done.
Your suggestion is a good one. If the result itself is clearer earlier it would take some of the power out of the threat of expensive process.
I don't believe that moving #4 (or even #5) earlier in the process maximizes the possibility of a logically/legally sound conclusion, which IMO, is the purpose of the justice system. Then again, your comment has identified speed as a priority, not a thorough examination of the merits.
If the procedural rules don't offend you, then we might just be talking about expensive lawyers. Not all lawyers are expensive.
Getting to the merits is the point but the point is often lost in the game of the process. True statement?
True, but you're assuming that the process and the merits are totally distinct (in fact, my own comment reads that way ;]).
But, as another commenter noted, processes themselves can influence merits (e.g. missing a filing deadline, or enforcing discovery requests).
This is further compounded by how vague judges will be in their decisions in some attempt to prevent a successful appeal. The judgements relation to the facts are so intentionally obtuse.
There are a few reasons for this: 1. Judges are not legislators. Judges apply the law, and if they don't like the law, or if the law is contradictory, they write a note in the decision asking legistlators to review the law.
2. If a lower-court judge is corrupt, but didn't violate legal procedure, what does "corrupt" mean?
A higher court will only consider an error in law from a lower court. But when the lower court commits an violation of natural justice/due process by not even considering what the original lawsuit is about and being incredibly obtuse about what they did consider, a higher court has nothing to rule on.
In this example, as you say, "there is a question as to whether this patent is valid or not, and whether it covers this particular issue or not." If the defendant thinks those are real issues, then one of the first things the rules would have you do is to file a motion to dismiss arguing exactly those points. If the judge agrees with you, the case is over and you go home. (Of course, there is the possibility that there are other claims that aren't subject to those arguments, or that the plaintiff could amend the complaint to add new legal theories, but that's another story.)
To the extent it is true that courts "completely front-load all these arcane minor points" this is usually true only to the extent that these arcane issues are actually dispositive.
EDIT: Try thinking about it this way: whether an issue is arcane, and not what a person might think is the "real" core of the issue, is sometimes orthogonal to whether that issue is dispositive. And there are usually good reasons for this--though reasons that may not be obvious to non-lawyers. This can, and should, result in courts spending what may seem to the untrained eye like too much time on arcane but dispositive issues in an attempt to resolve a case efficiently.
Great! How much would getting to that point typically cost a defendant in the case of a fairly obvious bullshit patent?
There are other dynamics as well, but I think this one dominates.
Also, you didn't answer the question as asked. If the goal is "file motion telling judge 'patent is not valid' without doing literally anything else", what exactly is the money spent on?
EDIT: Of course, it often is not actually clear whether a patent is valid and enforceable or not. This could require evidence from experts about obviousness, prior art, etc. Assembling all of this in a way that is fair to both sides, and presenting it to the court in a way that is clear and compelling, is difficult, as one might expect. So this idealized situation may not be too common.
EDIT 2: In case it's not obvious, this shouldn't be taken as legal advice. Every situation is different, so you should hire yourself a lawyer, and not act based on general ruminations you read on the Internet by people like me. I am not your lawyer.
> drafting that motion
I'm going by this particular case, where the patent is obvious and patent bullshit. I would imagine that here a motion would be a form letter that could be handled in less than an hour? (Going by experiences in the german law system where i've seen a form letter to an unpaying client go out, cost and take effect, for half an hour billed.)
And yeah, in other cases it may be less obvious. I'm only talking about the case at hand, and other similar ones, where the patent can be seen to be invalid by anyone with good high school education and above.
Heck, shouldn't it be possible to informally request from the judge to say whether he already sees the patent is bullshit or not?
Since you don't get to file an unlimited number of motions to dismiss on the same topic (for obvious reasons), most litigants find that they want to put a substantial amount of effort into making their case as persuasive as possible before a judge sees it, even if the matter is fairly straightforward. It's the lawyer's job to help the client understand these levels of risk, and the client's job to decide how much money he wants to spend, given those risks.
I have a comment and a question:
The comment. Summary judgement does not accomplish what I think sheepleherd was proposing. As you say, if you get a summary judgment against you, you go home. That means that a judge has to be convinced that there is definitely no case in order to issue one. What's needed, rather, is a speedy determination of who seems to be in the right. It should not be final but should determine who pays going forward.
The question. What do you see as the problem in cases like this? Or do you see a problem?
And, just so we have our terminology straight, summary judgment is actually different from the motion-to-dismiss phase I was describing. In super simple terms, the latter happens after the parties have has the chance to gather evidence and seeks to determine whether it is legally possible for a party to win at trial. Therefore it occurs late in litigation, after parties have already spent a lot of money (but still before trial). The former typically occurs before evidence is even gathered to determine whether the plaintiff could legally win even if all of his or her allegations were factually true.
As for the threshold fee-shifting idea: I think it's probably not a good one. There are cases where it could help, but if the judge gets her threshold determination wrong, then it makes life even harder for a less wealthy litigant. The simplest solution, which many countries have implemented, is simply a loser pays system for legal fees. I'm not sure this is ideal either, but I think it is at least better.
There also is usually a possibility that the judge could require the loser to pay after the fact, if she determines that the case was especially un-meritorious. Another possible reform would be to loosen the standard that judges apply in choosing whether to award fees in this way.
I'm not sure what criteria you're using to judge that the proposal would be worse for a less wealthy litigant. Surely the proposal would be better in cases where one side is clearly right? The cost of patent litigation is currently huge. The only way a non-wealthy litigant can participate is with lawyers on contingency. No?
But I suspect fixing the legal costs is only a part of the patent problem. My understanding is that cases like the OP regularly go to verdict and find for the troll.
But inasmuch as it was an official proposal, the proposition was not that the all costs would shift to one party; it was that if you lost the preliminary ruling on the main point you could decide if you wanted to spend money on further litigation or look for a settlement; in a more nuanced way, if the preliminary ruling was 80-20 culpability/damages conceivably the winner might also wish to litigate further. I wasn't shifting the legal costs, I was educating the decisions along the way.
There potentially is something to be gained from more "loser pays" legal fees, but I was not making that proposal.
For example, and since you are an attorney I'll let you research this rather than give you the answer, does a signature on a shareholder petition under corporate by-laws require the word "certify" to be a valid signature? How much should be spent determining the answer to that? Seems pretty cut and dried to me, whether it is or is not required it's hardly breaking new legal ground. What's the answer? (and no weaseling out by saying "it depends". If you want to say "it depends", you need to finish the sentence, on what, and in that case the answer is what.)
And, frankly, I'm not surprised that it took a fair amount of legal work to figure out the answer. I, like you I take it, have the intuition that the answer should be "no." But I'm also not confident that the answer is not "yes." If the answer is "yes," I'd say the odds are 50/50 that there is a good reason behind it. (If, as one should, you count as a good reason "there is binding precedent in this circuit that says it must use the word 'certify'" then the odds jump to pretty near 100%.)
But I will say that, if you're trying to argue that the legal system is too arcane and complicated, a lawsuit over a "shareholder petition under corporate by-laws" is an exceptionally poor example. This is an especially technical areas of law that, among other things, makes the almost explicit assumption that, given the subject matter, parties will be unusually sophisticated and well resourced.
Lawyers have huge laundry lists of these ideas they get to spitball, except they get paid to do it, the more they spitball the more they get paid, and none of it has anything to do with the matter at hand, the legitimate grievance that the two sides have and are trying to resolve.
I just found it on more than one occasion to be unusually playground bullying rather than sophisticated. And on the same-ish topic as sophistication, lawyers like to couch things they say in the cloak of "truth and justice", like for instance, how many times have I heard that the right to petition is so sacrosanct that it's in our Declaration of Independence? Yet went you actually try to pursue a right to petition you are bogged down in lawyerly bullshit.
This is a pretty weird way to look at it. I would have thought it went more like this: opposing lawyers come up with some clever arguments to oppose your claim. One of them, I take it, was that the signatures on the petition were not valid because the word "certify" did not appear. Because the lawyers on the other side made this argument, your lawyers had to respond to it to reduce the chances that you would lose the case. Presumably the judge did not rule on that particular question because you wound up losing the case on some other ground (or settling). Is that right?
I should also add: I'm not here to argue that lawyers are always good at their jobs and that they always give issues the attention they deserve (no more and no less). This sort of risk assessment is a big part of the job, and it's not always easy. And when there is a lot of money involved, it can be rational to spend a lot of money to address relatively small risks. It could also have been that the certification question was a stupid one that your lawyers should only have spent an hour or two on. But instead, through poor judgment or something else, chose to go waaaay down the rabbit hole. I have no idea. But these things do happen. Lawyers are people, after all. One particular set of lawyers' poor judgment (if that is indeed what actually happened) is not a deep flaw in our legal system.
(By the way: what does the Constitutional "Right to Petition" have to do with any of this? I hope you don't think it has anything to do with your shareholder petition case, since the Constitution only protects your right to "petition the GOVERNMENT for a redress of grievances." It doesn't protect your right to bring a shareholder petition, and it most certainly does not protect your right to win every lawsuit that you think you're entitled to win.)
Rights to petition are, in a sense, even more fundamental than the right to vote, because historically speaking many undemocratic systems have been sustained because they listen to petitions. The worst dictators are the ones who kill you for petitioning.
This lawsuit I'm talking about was about both rights to vote and rights to petition and the lawsuit asked for nothing but rights to vote. They were gauranteed by the legal documents, ignored by the board, and only a lawyer would twist the very clear wording to say something else, based on standards that do not actually exist; and only a judge who was an attorney would listen to such crap.
I can see that in a messier case you might see a reason for seemingly nonsensical procedures, but this was so clean that all the worthlessness of our legal system was exposed. And I chose the Declaration not the Constitution because it also lays out "or you lose your claim to authority" which is pretty much how I feel to.
It doesn't matter how fairly the laws are written if the judges presiding over them are assholes.
Seems like Google/Apple should step in and cover the costs of being sued by a patent troll for using their platform... if they don't want developers to be discouraged from using it.
Then again, particularly in Apple's case, it's not like the developers have much of a choice.
It's sensational and scummy sounding, so it really fits the narrative of the evil patent trolls (a narrative I wholeheartedly support), I don't see any reason to believe it's true.
The state can pretty much do whatever it wants here.
Plus, all of this is federal anyway, so suing the state of texas would accomplish nothing.
Outside of random statutes, your best bet would probably be due process violations, but ...
http://www.firstamendmentcenter.org/right-to-sue
They have essentially grounded these claims in due process violations, etc, and then found a right to file those lawsuits. Not a right to sue for anything.
When they have tried to find rights in the right to petition (and i will grant that historically, it included a right to sue), it has been cases where someone is directly trying to affect a constitutional right.
Also nobody has to give a damn about what you say:
"Nothing in the First Amendment or in this Court's case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to communications of members of the public on public issues."
Ban software patents!
And big companies do not really want competition from small businesses.
Honest question: have anyone seen any software innovation been really protected by a patent litigation? All articles I have seen are about trolls.
Has anyone seen any innovation that has been really protected by patents, that couldn't have been protected merely with trade secrets and industrial capability (i.e., big companies are physically and organizationally able to make things that small companies cannot due to their resources, therefore they're really the last ones to need patent protection, but they're also the ones most able to afford spending huge sums of money on patent fees and enforcement)?
I guess we must secretly love getting screwed over.
Posted from my Windows Phone 8.1
That being said, patent trolling is obviously a problem, and legislation to fix the problem is making its way through Congress.
2) He never said the son appeared in front of his judge father. I'm almost 100% on that too.
So misconceptions in what you misheard, I guess.
If the son is not appearing in front of the judge, then the judge's rulings don't benefit the son in any way. If you are arguing the judge's ruling is somehow affecting the reputation of the court and attracting cases, the lawyers know it is only that judge, unless you are implying some sort of conspiracy among the federal judges to be patent troll-friendly.
https://twitter.com/iamjohnoliver?lang=en
or maybe this twitter account