A patent troll backs off
sparkfun.com
sparkfun.com
Patent trolls have a business model, which he's disrupted:
1) buy a patent, the broader and better-tested the better
2) start threatening the easy marks; the ones who roll over and write you a check right away.
Their trick is to ask for a settlement small enough to say "hey, it'll cost you more than that for attorney's fees!"
4) maybe actually go to trial with a very big target, one that'll get dinged for a 9-figure judgment if the troll wins. In the Eastern District of Texas, juries tend to do that.
Researching the validity of a patent does not require $400/hour attorneys. Anyone with a basic knowledge of patent law and computer science can do it. (And no, I'm not advertising for myself. I'm retired.) Do you think those expensive attorneys do it themselves? It is to laugh -- they assign it to a junior who knows technology.
But I wholeheartedly agree that you shouldn't start down the IPR road before you find the killer art (for all potential claims). I've seen to many instances of people rushing to file an IPR and then later finding better art.
Sorry to say, but I'm not sure the IP law profession is different... I probably have worked with about a dozen attorneys hired by my employer to file patents on my behalf, and there were two lawyers that stood out a lot. They understood the inventions, what we claimed to set them apart from prior art, and produced filings that were relatively brief and to the point. The rest of them didn't really get the stuff, sent us draft filings that made me cringe because they were shallow copy-paste jobs, etc. If you're one of the better lawyers out there, I hope your clients are rewarding you appropriately for it!
"pros" = "patent prosecution" that's what you're talking about. Writing the patent & getting it through the PTO.
"lit" - "litigation" A lit lawyer is quite different from a pros. They can switch back & forth, but it's a big switch.
"crim" - "criminal". You hear this one on the TV series "Billions" ("I want to be the head of Crim!")
"3L" - a third-year law student
Probably a lot of others I don't know.
One of the pros lawyers that Oracle used was a total copy-paste douchebag, like you said. At Packeteer we had an awesome guy, whom I brought in once a quarter to brainstorm our 2-3 filings that quarter (we did not have a big budget). I don't think he's doing pros anymore; it gets repetitive.
Most big companies want to use big law firms, regardless of whether their people are any good. As an independent lawyer you have to be really good to compete for that business.
Judges, juries, and the patent office don't seem to.
And as Sparkfun points out, this patent is nonsense and should not have been granted in the first place.
Yeah, a lot of the firms are garbage, but I remember a couple being pretty decent.
As a point of shameless self-promotion, I'm the founder of a company seeking to improve the patent system, starting with prior art search [1][2]. We're not one of those companies that will do it for you for less. Instead, we empower you to do it yourself, then have your attorney go deeper if needed. The idea being that you don't need to be a patent expert or lawyer to do it; anyone with knowledge of their technical area can search effectively. Plus we've got some collaboration features so when you're ready to hand off to your $500/hr attorney, you can. And not just hand off -- collaborate.
If a patent troll is shaking you down, reach out to us and we'll do you a generous deal, no strings attached. We very much do not like patent trolls.
[2] https://www.amplified.ai/en/blog/22062020/introducing-amplif...
They cause price distortions for consumers by creating state-sanctioned monopolies. Monopolies are a type of market failure and do a great deal of harm. The commonly cited goal of giving monopolies to little inventors and helping the underdog is not a good justification; it doesn't create any value for the user/consumer and ensures they will have fewer choices in the marketplace.
Don't fool yourself, it's not patent trolls that are the problem, it's the whole system. The only innovation I want to see in patents is a huge worldwide lobbying operation to abolish them and make sure everyone knows how detrimental they are to consumer choice.
The more common argument I hear is: Why would a company invest resources into research if there was no way to prevent a competitor from copying the result on day 1 of you selling a product?
Conversely, the success of the web is entirely dependent on not hitting patent walls. We've all seen the problems of app stores with arbitrary rules and 30% taxes; if there had been a patent on, say "using images in a web browser", how much money would the holder have extracted and how many arbitrary rules would we have had to deal with?
(This nearly happened with GIF)
If your business cannot survive without a state enforced monopoly, it's a business that can't support itself and should not exist.
People often point to drug development to illustrate your point about the necessity of patents, but how about a world in which drug development is public and funded by government as well as industry participants and a "drug company" becomes more of a "drug manufacturer" making generics. Lower profits, but consumers benefit from more selection, and I would argue the science of drug discovery would move faster because it could focus on discovery more than legal bullshit. If your interest in medicine is literally only money, maybe you should try something else other than medicine. Medical innovation did not start with patents.
I wonder if those companies consider this a "feature"?
That's not to say all regulation is bad, just that like most things that have beneficial ways to be used, it can be abused by some to negative effect also.
They found a previous concept that would invalidate their expensive patent(s).
They tried to settle with 0€. The lawyer of HQ didn't agree and changed it so they had to pay 1 CAD.
Just because they could.
Ps. It was accepted ofc.
It's possible that the rest of the settlement would provide valid consideration, but a nominal payment removes any doubt from the situation.
https://www.goodreads.com/quotes/7277192-anyway-smith-told-m...
The U.S. doesn't have a "loser pays" model like other countries. You can file for attorney's fees, but the barriers are higher.
I've never heard the term "invalidity counterclaim" and I was in Google Patent Litigation where suits come in constantly. IPRs were pretty standard. Maybe the lawyers did use it and I just never heard it.
If something was going to trial, then "invalidity" was one of the possible defenses, as was "non-infringement."
Who are you making this claim TO? The court? The PTO?
It happened during a very busy time for me and i wasn't involved, since it was a story that was shared during the weekly "covid update" that shares all the company news.
It could be that they also filed a counter lawsuit to invalidate it.
I think the main point was to defend successfully and not to attack/piss some big trolls off.
You just won't find it written down anywhere.
I think there's a typo in the blog post ("parent" should be "patent" below):
> Do you ever wonder what parent trolls tell their children they do for a job?
I read a story somewhere that claimed that "Captain Planet" had to be edited to feature cartoonishly evil villains, rather than the mundane day-to-day polluters, because they were worried that kids would ask uncomfortable career questions of their parents in sectors like disposable consumer goods, plastics, petrochemical, cigarettes, etc.
Once I reached the tech industry it was a total 180, ideas are worthless, the heroes are the engineers who can scale them and the founders who can make businesses out of them. But patent law didn’t get the memo, it’s still based on my elementary-school worldview.
Crucially, the inventors in those hero stories were always lone wolf eccentric garage/basement guys. Corporate R&D labs did not appear.
I always wondered what the moral of that story was supposed to be.
Sometimes it was just the ancient version of Squid Game, and people just wanted to hear or tell something entertaining.
Put another way, it says a lot of things, and outlines a lot of problems, but I'm not sure it puts any solutions forth. That's probably a good thing IMO, as any solution presented in a program like that invariably seems trite to me, as it necessarily oversimplifies the problem so the solution proposed can work.
Keep in mind this is a Korean drama, not a western drama. "Late stage capitalism" is an English language/western world concept, not a universal one. (Even the term "late stage capitalism" implies that capitalism is somehow going to end, but commentators never clearly explain what system they think is better or what should replace it. Capitalism IMO is with us for the rest of humanity.)
No, it's a version of such shows that you cannot escape from because of financial pressures on your life, despite likely ending in your death. That is the key - even when given a chance to get out, the overwhelming majority of participants embraces the game, because the alternative (being economically destitute, while lying to friends and family to keep up appearances) is seen as worse than death. It's literally "get rich or die trying".
The final revelations, about the game's origins and the fate of previous winners, add further elements of critique of "the system"; and the story arc of the "good son" is a critique of a (Korean) academic process that, while ostensibly promoting talent, ends up producing sharks.
https://www.abc.net.au/news/2021-10-16/squid-game-on-netflix...
But here: https://www.theguardian.com/tv-and-radio/2021/oct/26/squid-g...
“It’s not profound! It’s very simple! I do believe that the overall global economic order is unequal and that around 90% of the people believe that it’s unfair. During the pandemic, poorer countries can’t get their people vaccinated. They’re contracting viruses on the streets and even dying. So I did try to convey a message about modern capitalism. As I said, it’s not profound.”
And here's another one: https://www.nytimes.com/2021/10/06/business/economy/squid-ga...
“The stories and the problems of the characters are extremely personalized but also reflect the problems and realities of Korean society,” Hwang Dong-hyuk, the show’s creator, said in an email. He wrote the script as a film in 2008, when many of these trends had become evident, but overhauled it to reflect new worries, including the impact of the coronavirus. (Minyoung Kim, the head of content for the Asia-Pacific region at Netflix, said the company was in talks with Mr. Hwang about producing a second season.)
It's a recurring theme in Korean media eg Parasite and Snowpiercer.
I could pick Atlanta and The Wire and say American media is commonly critical of police. Or turn around and pick CSI and Law & Order and say that American media is commonly supportive of police. It hardly says something about the overall landscape. And thats even picking shows with different directors!
If the bucks following this stategy are the ones that survived, how is this survivorhsip bias rather than a winning strategy?
/s
Or maybe it's that it doesn't pay to be the bully, because eventually you try to bully someone bigger than you.
Bridges are dangerous if you're a little kid, you may want to get your older siblings to back you up.
Disdaining small victories leaves you unprepared for the big ones.
There's always someone bigger.
"Commented [A2]: Whoever wrote this sentence might be the same person who writes patents. It would be helpful in the future to write and speak in plain English. You are dealing with an ordinary court, not a patent examiner.
A few thoughts on patents:
- Don't bother reading anything other than the claims. Ignore everything else (yes, even the diagrams) unless referenced by the claims.
- Yes, they do try to -- and succeed in -- patenting stuff you can pull out of a textbook. One patent was a near cut-and-paste of some stuff on Kalman filters (that one made me pretty mad).
- Any time a patent lawyer makes a reference to a patent's "teachings", punch them in the nose. These things don't teach anyone anything, that's an impolite fiction for a game that's really all about obfuscation. If there was a patent that described how to nail two boards together, you wouldn't walk away from reading that patent with any useful knowledge.
- The very fact that every company in the US will tell you "Please, for the love of Pete, don't go read patents on your own, without permission" again belies that these things are land-grabs that are never designed to advance the state of the art through teaching.
I am not a lawyer. I do not play one on TV.
One reason for the guidance to not read patents is that, at trial, knowingly infringing a patent is much more expensive than unknowingly infringing.
Now, for the reality: I never saw this happen. How would they know you looked at their patent? From your server logs? From the PTO's? Do you think they file discovery on your personal computer? (Just don't send an email about their patent or write anything down about it -- THAT they can track.) Very, very few infringement suits go to trial anyway.
I think the real reason the lawyers tell you this is so they won't have to answer your questions. And because you might misinterpret the claims (not at all a hard thing to do).
If your management and lawyers want to, they can get an official opinion from a lawyer that you're not infringing. That's something you can use.
https://legaltimes.typepad.com/files/garner-transcripts-1.pd...
The interviews go beyond writing style into broader rhetoric, as well as dislikes and pet-peeves.
The language in them is so horribly convoluted that I, the supposed inventor can't make any sense of them. Hell, it took me a while to even figure out which invention maps to which application.
such a missed opportunity. daddy, why are you trying to kill the planet?
Or the kids themselves. Though it would have been pretty hilarious if Captain Planet turned to the "camera" and told the kids honestly: "The toys you play with, including this show's action-figures, were made using the ancient decomposed remains of countless dead plants and animals, in a process every bit as bad as what you see in this show. And recycling isn't going to solve this problem."
https://grist.org/culture/captain-planet-planeteers-real-sto...
>That family edutainment goal affected a lot of the show’s writing. Pyle didn’t want kids to see their family members as evil, ecologically speaking. “That’s one of the reasons we made the bad guys and their plans so ridiculous,” she explained, “We tried to point the finger at behaviors rather than industries. That way, no child would go home and say, ‘Oh, daddy, you’re in a blah blah business.’ It would be horrible for some child to see their family member as a Captain Planet villain.”
Yes, my student! Feel the power of the dark side!
My kids bring things up sometimes. We have a discussion about them, about our role in society, etc. But a good portion of the time the discussion becomes a lesson in critical thinking and not taking over-simplified idealistic pleas from randos on the Internet at face value.
I don't know if I'm necessarily making a value judgment either way here, but I don't think "get to them through their young kids" should be considered a general-purpose strategy for effecting societal change... and fear of this kind of thing is exactly what breeds mistrust in public education, parents pulling their kids out of sex ed, etc etc.
This would definitely have a negative impact on a child growing up- feeling like I had to worry about my parents' health when I was ~12 definitely did.
maybe here: https://grist.org/culture/captain-planet-planeteers-real-sto...
https://techcrunch.com/2017/07/11/the-hunted-becomes-the-hun...
At one time at least they seemed to view it as a fight to the death. When offered a settlement they'd just keep going.
https://www.blackbird-tech.com/blackbird-technologies-settle...
[1]that was sarcasm.
<quote>
After graduating from the University of Pennsylvania Law School in 1985, I spent nineteen years in litigation practice, with a focus upon federal litigation involving large damages and complex issues. My first seven years were spent primarily on the defense side, where I developed an intense frustration with insurance carriers who would settle meritless claims for nuisance value when the better long-term view would have been to fight against vexatious litigation as a matter of principle. In plaintiffs' practice, likewise, I was always a strong advocate of standing upon principle and taking cases all the way to judgment, even when substantial offers of settlement were on the table.
I am "uncompromising" in the most literal sense of the word. If Monster Cable proceeds with litigation against me I will pursue the same merits-driven approach; I do not compromise with bullies and I would rather spend fifty thousand dollars on defense than give you a dollar of unmerited settlement funds.
As for signing a licensing agreement for intellectual property which I have not infringed: that will not happen, under any circumstances, whether it makes economic sense or not.
I say this because my observation has been that Monster Cable typically operates in a hit-and-run fashion. Your client threatens litigation, expecting the victim to panic and plead for mercy; and what follows is a quickie negotiation session that ends with payment and a licensing agreement. Your client then uses this collection of licensing agreements to convince others under similar threat to accede to its demands.
Let me be clear about this: there are only two ways for you to get anything out of me. You will either need to (1) convince me that I have infringed, or (2) obtain a final judgment to that effect from a court of competent jurisdiction.
It may be that my inability to see the pragmatic value of settling frivolous claims is a deep character flaw, and I am sure a few of the insurance carriers for whom I have done work have seen it that way; but it is how I have done business for the last quarter-century and you are not going to change my mind.
If you sue me, the case will go to judgment, and I will hold the court's attention upon the merits of your claims--or, to speak more precisely, the absence of merit from your claims--from start to finish.
Not only am I unintimidated by litigation; I sometimes rather miss it.
</quote>
(Extra paragraphing added.)
Can Sparkfun now counter-sue for costs and maybe even Barratry?
I'll be ordering some circuity toys to let them know!
Coalition has a policy of never settling frivolous lawsuits and fighting all the way to the bloody end. We recently won a judgement with attorneys fees in another lawsuit.
When I first received the notice that I was being sued, I freaked out a little bit. I didn’t sleep well for the next couple of nights, but began working on this right away. I contacted a couple of dozen Texas patent attorneys, most of whom quoted outrageous prices ranging from $200 to $600 per hour and some asking for a $25k retainer upfront! I soon realized that all of these Texas patent attorneys are in the same game with the patent trolls… these attorneys make money the longer the legal process gets drawn out. I was contacted by Amit Agarwal (310-351-6596 – based in LA but he can operate anywhere) and at first I was turned off by his aggressive approach. However, I spoke with my other attorney and he said it won’t hurt to give him a shot. I signed up with Amit and it was the best decision I could have made. Amit brought a very aggressive approach and quickly got the patent troll to back down and dismiss the lawsuit.
The lawsuit was mostly dismissed after Amit really went after the troll and their attorneys with some great research and motions he spent Christmas writing.
Sorry if it's genuine, I also sometimes like to recommend people and companies I've had good experiences with.
I'm extremely grateful for the work Amit did for me, he did not compensate me or even request that I post this for him.
As the original blog post said, patent trolls are predators that rely on the fact that it costs companies over a million dollars to defend a case even if they win so that they can extort tens of thousands of dollars without much work.
We need to abolish the patent system altogether, as everyone on here knows ideas are worthless and execution is everything. The best way to protect real innovators is to prevent artificial monopolies rising up preventing them from competing in the market.
Which in this case, certainly reads like a boilerplate advertisement you read on a Top 10 How To Advertise listicle. Good faith advice or not.
Yo dawg!!! You'll never guess what happened to me when those bizsnitch little lawyers tried to sue me for some whack azz shiznit yo! Yo! You gotta call my bro the bizsnitch laywer asskickin mofo! Just smash them digits 555-212-0420 and he'll go to work for you yo!
Or maybe somewhere in between?
Also there is no need for the caricature, there are certainly more sincere sounding ways to recommend someone than following the standard testimonial script:
"I am [person] with [relevant characteristics or employment]. I had this exact [problem] and thankfully [advertiser] was able to help me.
When I first got this [problem] I was [emotionally affected in a personal and relatable way]. Other companies told me they had better [price/solutions]. Thankfully I found [advertiser] and they were able to help me like no others. [Short snippet demonstrating advertiser holds values important to the target demographic (price/effectiveness/privacy/dedication/...)]. I would definitely trust them again if [problem] happened again. [Prompt for you to trust them and give them your business.]"
Here are testimonials for cash for gold for comparison: https://vimeo.com/35628298
But you are right, its too hard to tell.
I hate to tell you this, but that’s not at all outrageous. And you get what you pay for.
And just to be clear, this is what the law firm charges for a lawyer’s time. It’s not the take home pay for the lawyer.
Ah, that makes more sense. I know someone who worked in finance. Her employer charged clients 500 euros per hour for her work and she saw around a fifth of that
It helps that Amit doesn't celebrate Christmas and needs holidays.
One day I got invited for interview at a famous SV company who has offices in Europe, in a snowy and catholic country.
It was the end of the year, so on the way out, with a good mood I said "Merry Christmas and Happy New Year" to the people I just met.
Later on, the recruiter explained to me that the team felt offended that I used the word "Christmas" (but still got an offer).
It sounds cheap, but one bad search and you may be fetching 100s of pages (IIRC, the number of pages returned by your search is what counts - https://pacer.uscourts.gov/pacer-pricing-how-fees-work).
If you do so, you can also use RECAP: https://free.law/recap. It's like the internet archive for PACER documents.
It's a browser extension that helps create a crowdsourced archive of the PACER content. You can then search that archive (this time for free) in https://www.courtlistener.com/recap/
For stuff not on RECAP, then PACER can be used, and fee is waived if less than $30 that quarter according to https://free.law/pacer-facts
It is surprisingly complete. See [1] for the Theranos trial.
I think most of the lawyers at Big Law must have the Chrome extension. A high percentage of the docs you would want are on there.
[1] https://www.courtlistener.com/docket/7185174/united-states-v...
Violating terms laid forth by the federal court system ends (for wealthy internet tech celebrities) in the EFF picking up your legal tab and the FBI saying "okay FINE, just don't do that again."
For you and me, it ends in tens of thousands in legal costs and at best probation terms that likely substantially interfere with your ability to make a living.
> Some courts such as the District Court for the District of Massachusetts have explicitly stated that "fee exempt PACER users must refrain from the use of RECAP,"[13]
I'm not sure if this is binding, or applies to fee-paying users.
Is sharing court documents a violation of copyright law?
The court-created documents provided by PACER are works of the federal government, and under copyright law, are automatically placed in the public domain and may be shared without legal restriction. The question is a little bit more complicated for documents filed by third parties, so we asked a prominent legal scholar about it. He told us that such documents may be under copyright, but he thought redistributing copyrighted court documents was legal under copyright's fair use doctrine. However, there is very little case law in this area (some examples are here and here), so it's impossible to be sure. We certainly believe citizens ought to have the freedom to share public court documents, and we hope RECAP users will help to establish that precedent.
The PACER "policies and procedures" prohibit "any attempt to collect data from PACER in a manner which avoids billing." Is this what RECAP is designed to do?
Absolutely not. PACER charges users for the documents they download from PACER. RECAP users pay for every document they download from PACER, just like any other user. RECAP simply gives users a second option: to easily share documents directly with one another, as they're permitted to do under copyright law. When a user downloads a RECAP document, the document comes directly from our server; the process imposes no additional load on PACER's web servers.
Do a web search for "prior art search." There are companies that do it for you, at costs that are... well, less than $500/hour. It's a flat fee.
When I was at Google we tried a whole bunch of them on the same patent, so we could compare them. There were a few that were quite good. Unfortunately I can't remember their names, but they're probably different now anyway.
So that's your gutsy opening conversation with Mr. Troll: "Hey, our search firm found some prior art that invalidates your patent. [Do NOT show it to him.] We're going to IPR you with it."
They might bluff you, laugh at your naivete, and say "We know all about that prior art; it's no good." If you have a lawyer, which you should, let him or her handle all this. You want the threat of an IPR to sound credible.
43. For example, US Patent No. 5,592,405 (Assignee Texas Instruments) discloses:
“There is thus a need in the art for a system which handles multi-processors having multi-memories
such that the address space from all of the memories is available to one or more processors
concurrently[.]” 2:5-9.
Answer: Altair Logix does not dispute the quoted language comes from U.S. Patent
No. 5,592,405 to the extent it is quoted correctly. Altair denies the remaining allegations in
paragraph 43.
Is it better to deny some unknown thing in case you miss it, than to not respond to it in a legal document? if so, why is that?
Is there some other reason for it?
Source: I litigate patents
It turns out that systematically not marking your patent on your products invalidates claims for infringement unless it occurred after the owner notified future infringers of the violation.
The striking thing about this for a patent troll is (if I understand this correctly) that it's easier to shake companies down if your patent has never been used to ship anything.
That seems odd.
Do you think those kind of company keep their name same for more than few years
Least Expensive Element: Invalidating prior art, counterclaim documents.
Actually Cost Money: Invalidating prior art, drafting counterclaim documents.
I think it's not the 500 USD they are looking for, but rather to win a court case against someone who has not the ressources to defend himself, so they can reuse this case as an example in a more lucrative litigation.
Not to real people it isn't.
It's expired for future use, and according to Sparkfun's response it can't be asserted against prior infringers because Huawei owned it and shipped devices without marking the patent on them.
Why didn’t the lawyer simply state this in their counterclaim? I don’t actually see it anywhere in the counterclaim.
You can do this yourself though
[0] I've been advised by lawyers to just pay them off, as it's "cheaper than dealing with the bottom feeders". Some things matter more than money, and on the few occasions I've pushed it to the wire the chancers have slunk away. It's still expensive though - and maybe only small companies can do it, because for big companies it would be internally expensive/potentially ruinous/worries the C suite it might affect the share price.
What's going on with suing people under an expired patent?
Is there actually some legal ground here -- like can you sue them for their historical violation before it expired or something?
A patent doesn't allow you to practice an invention; it allows you to exclude others from practicing it.
Sounds like troll insurance now that I read what I just wrote...
That's one of the reasons why some companies will settle instead of litigate - it's a cheap way to kill your competition before it threatens you while, at the same time, not raising any eyebrows about anti-competitive practices.
Can't even fathom what the patent is saying. Sounds like they have tried patenting the web.
While no one would legally admit that and putting aside morals, isn't it what big companies want anyway?
* Austin Meyer is the creator of X-Plane / Laminar Research.
If a patent troll is only someone that attempts to enforce patent rights against accused infringers far beyond the patent's actual value as Wikipedia's article claim, perhaps the justice system is broken?
That's certainly not doing anything good for the world. It's just lining the pocket books of the idle thinker.