Troll Blasting Strategy
iptarget.blogspot.com
iptarget.blogspot.com
It's not a "small" risk this strategy asks you to take. It is, relative to the cost of simply licensing the patent†, a rather large risk; for most independent shops, you would be staking your company on the psychology of patent licensing shop.
Also, don't courts routinely combine cases, and routinely throw them out when they're filed in the wrong venue?
† Which you probably no longer need to do after Apple all but threatened to sue Lodsys.
> trying to use the court system for the express purpose of inflicting financial pain on an adversary in order to intimidate them into changing their behaviour
Does that sound unusual to you in some way?
Because you are posting here in a position where you may actually have some small influence on people making decisions that may destroy their companies, or compounded with the error of failing to properly incorporate, destroy their personal finances. Are you sure you don't perhaps want to walk back the certainty of your statement?
Seems like I said that doing legal things such as filing lawsuits is legal, and companies often use threats of lawsuits or lawsuits to attempt to influence the behavior of other parties. Can you point out where I've gone wrong?
It appears to me that the only unusual element in the entire plan is several companies choosing to file papers against the IP troll on the same day. The article says "fight the trolls in court, but a bunch of us should agree to do it at once". You're asking me, how would 50 different judges in different jurisdictions see this... is there some reason they would care or notice?
as an immigrant of 10 years in the US i've been under impression what this is exactly what civil court system is (i'll leave for your imagination what the court system for in my old country)
>rather than to correct a wrong.
i'm at loss here - how would you do that other than by forcing the adversary to pay and change their behavior?
>the express purpose of inflicting financial pain on an adversary in order to intimidate them into changing their behaviour
as an immigrant of 10 years in the US i've been under impression what this is exactly what civil court system is (i'll leave for your imagination what the court system for in my old country)
>rather than to correct a wrong.
i'm at loss here - how would you do that other than by forcing the adversary to pay and change their behavior?
Edit: just to make it clear - there is no doubt that the US civil court system as it is is a major improvement upon the way to "change the behavior of your adversary" as people who lived through 1990s Russia and saw the alternative would confirm. A cease and desist letter is much easy to endure/survive than a steel rod or a bullet from TT :)
I think there's a lot to be said for people being trolled to band together, search for prior art, file reexamination requests, etc., but I'm not sure that you can just find a lot of other people to file declaratory judgement actions with you. At least, not very easily.
IANAL, so if you're going this route, you might want to ask a lawyer to explain MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) to you. Patently-O has a nice write-up on that, incidentally, which you can read here: http://www.patentlyo.com/patent/2008/05/the-multi-fac-1.html
Basically, you have to have taken meaningful steps to do something that might be infringing. Also, the whole idea of it being a strategy works against you. The statute is permissive, so the court has discretion in terms of whether or not to hear your case. If they think you're doing it to bankrupt your opponent, well, let's just say that they probably won't look upon that favorably. Just because the law gets used as a cudgel doesn't mean that judges approve of this. It's just that some lawyers know how to make fairness really expensive.
I honestly think that the best course of action is to work together to invalidate the patents. Even if you really do bankrupt the troll, they'll probably just sell those patents to someone else, possibly even another troll, during bankruptcy.
Trolls are pros at one thing and one thing only, and that is working the litigation system (well, maybe also at "monetizing" IP in negotiating forced licenses under threat of lawsuit). To go against them in this way is like sending amateurs out to do a job for which they are highly likely to be overmatched. I thought this piece was thought-provoking and that is why I posted it - but, I am skeptical about an approach like this working, at least when the players are small, independent businesses who have nothing in common with one another besides a desire to resist the threats of the troll. Too much financial pressure, too much risk, too many uncertainties to keep people with disparate interests banded together over a long haul.
The NPEs (patent trolls) I've seen in the news are mostly run by lawyers and I don't think they'd just back down from a lawsuit quietly. It's also pretty hard to coordinate with the other people being sued.
That said, I don't think people should give up. Even if I don't think that one idea would work, I agree that it's great to see people thinking about how to cooperate on legal defenses. In particular, things like prior art searches should be the same for everyone. So if you happen to know other people being threatened, I think it really might make sense to work together to search for prior art so that you don't all duplicate the same work.
And when the article says:
> FYI - my definition of a troll is any party that intentionally misconstrues the claims of their patent to assert it against another. They don't have to be NPEs, all that is required is an intentional misconstruing of the claims.
You know he doesn't know what he's talking about. This is not a definition of a troll that anyone uses.
tl;dr: Back to the drawing board.