New USPTO Memo Makes Fighting Patent Trolls Even Harder
eff.org
eff.org
The kicker? If you fight back, it costs a ton in legal fees, and even if you win, you can’t recover those fees — because the LLC’s only asset is the patent itself.
Just insane to me we would take a step back like this.
Send out 1,000s of dubious demand letters which don't cost much. Some percent of those will settle with minimal effort on the troll's side. Profit.
Drop the ones that look expensive and hope they don't counter sue.
In some countries you can sue for "unjustifiable threats to begin patent infringement proceedings", but I was also thinking things like filing complaints with the relevant Bar associations. That sort of thing.
In other words, their real business model, the reason that they can be considered a "safe investment" is that they operate as an extortion racket at scale with the justice system itself as their (free) muscle.
1. You buy "litigation insurance."
2. You state that you are insured on your website.
3. The insurance company is required to defend in all patent cases that arise, so there is no doubt that you will be represented in court.
4. Nobody sues.
5. The insurance company makes a profit with no cost or risk.
I have no experience with this, and the only time I've gone and tried to get quoted for things like cyber liability, etc, the costs are incredible relative to the value of the business and revenues.
A patent troll will take a look at such a policy and do the bare minimum to give off the appearance of a ‘real’ company.
And then the insurance company will simply go “yep, that tracks”, with little incentive to investigate as it’s not in their best interest.
Probably ineffective too, as some part of your firm must hold the assets, and that's the part that gets sued
It's for sure scummy, but from what I've read about patent trolls, usually they get to continue until they eventually run into someone principled (and bankrolled) and then they lose their patent due to prior art in many cases.
I've never heard of them getting in actual trouble.
The more people know that someone is doing unscrupulous things the more people can choose to not do business with that person or interact with them in a friendly matter.
Ideally this would lead to a scenario where they lose the means to continue to do unacceptable things and they would be forced to stop.
Given these parameters, how would making them a pariah change the functioning of the business?
They have friends, family, a community that they belong to.
Affecting their relationship with those things hurts them.
I'm kind of confused why 'name and shame' requires such an in-depth explanation. Patent trolls arent the first kind of social parasite to exist and their parasitism doesn't render them immune to all forms of pressure.
Social pressure is often one of the most effective ways of pressuring someone.
Plus, poor people cannot afford the litigation costs...
- Plutarch
Reality is in favor of the powerful and wealthy. It's practically a tautological statement that powerful people are more powerful than those who are not.
Poor people do have the option of seeking pro bono, contingency (lawyers paid from winnings or settlements), or other means, but they will still not have things like daycare / nanny for children, free time (still need to work to pay bills while trial is pending), prepared meals, staff to handle shopping / laundry / cleaning, or a billion other things that make the stress of going through the court system easier to bear.
You could probably say goodbye to pro bono or contingency work if you also had to prove you have the money to pay legal fees before you could go to court.
"The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread."
-- Anatole France
It’s not that lawyers told me there wasn’t a case. Instead, they said it was “too complicated.” One attorney spent a week supposedly weighing my meticulously prepared case, only to dismiss it with a curt email: “Regrettably, we have too many other cases to manage additional workloads at this time.” After that, my emails went unanswered, my pleas seemingly silenced by convenience.
Apparently, lawyers today prefer the ripest, lowest hanging fruit, the easy cases promising easy profits. In our society, drowning in incompetence, there’s no shortage of simpler, safer bets. Yet, you’d think there would still be at least a few brave souls seeking justice, not only easy money, who would choose righteousness over profit, integrity over convenience. But I learned the hard way that righteousness rarely outweighs the bottom line.
I handed them an almost complete case, indexed, transcribed, painstakingly timestamped. They didn’t even bother to read it. Beyond the injustice, what wounds me most deeply is the realization that my father’s profound decency, the quiet dignity and unwavering ethics that defined his life, ultimately meant nothing in a system indifferent to such virtues. His goodness didn’t offer him protection or redemption in death. Perhaps it was naive to believe that it ever could.
This realization doesn’t just hurt, it isolates, minimizes, and disillusions. It deepens the bitterness of loss. Forgive me for venting my frustration this way, but it’s all I have left.
I’m sorry, Dad. I truly tried. Turns out, you were right about lawyers, too. I’m writing this with just a few weeks remaining in the statute of limitations. It doesn’t have to be like this, but all indications are that decency simply costs too much for those in power.
On the surface by stories related that certainly appears to be the case.
However we don't have any data (only anecdotes) on how many patents are pursued this way that are actually valid. And 'back in the old days' it used to be that you could have an actual patent and then get shafted by some large corporation simply because they could afford lawyers and you couldn't (meaning 'mr small inventor')
What I am saying in no way means I don't think there is probably abuse (there are enough anecdotes to think 'something is wrong here') but really we need the entire picture and dataset to decide that (in all fairness).
But they generally don't have a patent that covers anything real. Even ignoring the situations where the patent is indefensible through defects in process or due to prior art, the claims in these patents often don't actually read against the businesses being sued.
The problem is that it takes tens of thousands of dollars per patent to get an opinion from your own lawyers about whether the patents bear on your products or processes and you pretty much have to do that even if you never go to court.
If someone has (what you have called) 'a legitimate patent' then they have the right (whether they use the patent or not) to then pursue legal action to either stop use of the patent or to settle for money damages.
What companies don't like is someone coming along with the ability to engage legal help that they wouldn't be able to do with out the attorneys that are handling this (to gain a payoff for themselves which well attorneys do for other things).
However while this seems different than similar things that happen (with actual companies with legal resources) it's really just the same thing just by different parties.
If let's say General Electric has a patent on something and you use that patent GE can come after you (and probably will). Same as with large companies defending their IP (trademarks).
"GE defending a patent they use in their products" and "an LLC with one patent as an asset and no real business outside of defending said patent" are two entirely different situations, even if legally they're the "same."
I am noting you have not said how this ended up. What does 'we ended up fighting it a bit because of "principles" of our founder.
[0] See https://www.oncontracts.com/monster-cables-picked-the-wrong-... (self-cite).
Sumptuous!
> RE: Your letter, received April Fools' Day
> Let me begin by stating, without equivocation, that I have no interest in infringing upon any intellectual property belonging to Monster Cable. Indeed, the less my customers think my products resemble Monster's, in form or function, the better.
> Similarly, as I note further below, you omit reference to another patent Monster has held which appears, frankly to be fatal to your position. If you expect to persuade me, you had better start making full, open and honest disclosures
> It looks like when you sent this letter, you were operating on the premise that I am not smart enough to see through your deceptions or sophisticated enough to intelligently evaluate your claims; shame on you.
> You are welcome to point out any errors in my reasoning; but I have to say that I will be unreservedly surprised if you are successful in doing so.
> It may be that my inability to see the pragmatic value of settling frivolous claims is a deep character flaw
For this administration, this is a problem to be solved. Big business are the masters now and we need to make it easier for them to step on small business by any means.
Also, the troll problem is a problem for big business, not a benefit to big business.
These regulations are actually beneficial to big business. It makes it significantly easier to defend your own patents and sue anybody that infringes on them.
I imagine that these benefits are much bigger than the downside of dealing with patent trolls.
If there is no continuous effort to tax rich people and split up political power, democracy will fall back into feudalism
Is it the case that every time a society has developed extreme wealth concentration, that concentration gets diffused only via violence? E.g., by internal revolution or by takeover by another country?
That's certainly the argument made by those within American society who want to undo the legislation and institutions by which those changes came about.
https://en.m.wikipedia.org/wiki/Lotka%E2%80%93Volterra_equat...
However I know I look at the world differently from most people: so it is just as likely my own views are warped.
The people with all the gold make all the rules.
You are off by several orders of magnitude - a person starting in wealth quintile 1 (numbered poorest to richest) has an ~18% chance to reach quintile 4 or 5, and starting from quintile 2, that rises to 25%.
Source: Figure 1, https://www.brookings.edu/articles/stuck-on-the-ladder-wealt...
The Panel Study of Income Dynamics (PSID) is the longest running longitudinal household survey in the world
The study began in 1968 with a nationally representative sample of over 18,000 individuals living in 5,000 families in the United States. Information on these individuals and their descendants has been collected continuously, including data covering employment, income, wealth, expenditures, health, marriage, childbearing, child development, philanthropy, education, and numerous other topics. Over 7,600 peer-reviewed publications have been based on the PSID.
How flawed do you think it is and why? What is the potential error margin? 20%? 200%? 1000%?
And if this data is flawed, which alternative, better data did you base your statement on? The one about wealth mobility being largely a myth.
If you think we should have no patents be my guest, but this helps non troll patent holders and not just trolls.
And we want people using the patents, so you'd have to actively troll...
Something like clean-room reverse engineering could be applied. First ask a LLM to describe the problem in a way that avoids disclosing the solution, then ask an independent LLM how that problem could be solved. If LLMs can reliably produce the idea in response to the problem description, that is, after running a LLM 100 times over half show the idea (the fraction here is made up for illustration), the idea's obvious.
Would we even be able to tell if the machine reproduced the invention covered by the claims in the patent?
I (regrettably) have my name on some US software patents. I've read the patents, have intimate knowledge of the software they claim to cover, and see nearly zero relation between the patent and the covered software. If I set a skilled programmer to the task of reproducing the software components that are supposed to be covered by the patents, I guarantee that they'd fail, and fail hard.
Back before I knew about the whole "treble damage thing" (and just how terrible many-to-most software patents are) I read many software patents. I found them to offer no hints to the programmer seeking to reproduce the covered software component or system.