Why I’m not paying the Troll Toll | Hacker News Reader

Why I’m not paying the Troll Toll

toddmoore.com

263 pointsdave161961 comments

My company TMSOFT was recently sued by Lodsys in the eastern district of Texas.

Again with this "eastern district of Texas". Might there be a way for the tech community to punish this podunk little area for letting themselves become a thorn in everyone's side? Refuse to ship or sell there? Put something in the TOS that refuses all support for products used there? Seems like something needs to be done to get the attention of the residents of this area and let them know that their local court has been usurped by trolls and is creating a national nuisance. If they all woke up one morning to find that Netflix was out and they couldn't even google why, it might get their attention.

If that's a Federal circuit (which seems likely, [1]) then I don't think there's anything that the local Texans had to do with it one way or the other. It's a Federal circuit court that happens to be located in Texas, Texas doesn't actually appoint the judges who serve there.

[1] http://en.wikipedia.org/wiki/United_States_District_Court_fo...

Several articles indicate it's also the jurors: http://www.thejuryexpert.com/2010/03/east-texas-jurors-and-p... http://www.businessinsider.com/why-patent-plaintiffs-win-in-...

So I think the parent post might be on to something. Let's mess with Texas!

From your second linked article: "In East Texas, juries are often older people who have less experience with technology and tend to view large corporate defendants with suspicion..."

First, most of these cases are deliberately filed in Marshall, TX, an out-of-the-way rural town that's not exactly renowned for its experience in IT.

Second, all this proves is that patent troll lawyers can simply "baffle them with bullshit" and I don't think that this specific location matters. The Eastern District of Texas has a secondary court in Plano, and Plano has been home to a variety of technology companies. You'll notice they're not filing in Plano where they'd be far more likely to encounter potential jury members who are familiar with terms like "hyperlink" and "web sockets."

The standard for novelty in patents requires that the invention not be obvious to a person skilled in the relevant field. The patent filing itself is required to describe the invention in enough detail that it can be understood by a person with ordinary skill in the field.

What is the logic, then, behind having random laymen as jurors in patent cases? Wouldn't it make more sense to have a jury of people skilled in the relevant field?

Juries just seem like a terrible idea in general. Let's put more non-knowledgeable people in positions of power!

The purpose of a court isn't to get the best answer. Its to get a decent answer while resolving the matter with finality. An adverse opinion of experts can be accused of bias and other things that can cause the conflict to continue to fester. The opinion of a group of layman cannot be attacked that way.

Instead they can be attacked about having no clue what they are talking about, which seems to be the case for many subjects.

> An adverse opinion of experts can be accused of bias and other things that can cause the conflict to continue to fester

Please correct me if I am wrong, but isn't this comment thread and the parent's article doing exactly that? To quote from [1]:

> And juries in East Texas like to hand out big awards to plaintiffs, jury consultant Julie Blackman has written for the Jury Expert blog.

[1] http://www.businessinsider.com/why-patent-plaintiffs-win-in-...

The jury isn't charged with "having a clue." It is charged with deciding what happened and who to believe. The judge, the lawyers, and the experts are charged with understanding the problem and spoon-feeding it to the jury. The idea is that if you can't explain to a group of ordinary people why you should win, its hard to say that you really deserve to win. You can call the jury stupid, but stupidity doesn't bias a jury against you. And any other jury would have been just as stupid. With experts its different. You can accuse an expert of being biased or interested (because experts are usually in the same industry as the litigants). You can claim that you would have won, if only you had a different expert.

Its a federal district court (trial court), not a circuit court (appeals court) (some systems, e.g. Cook county, call their trial courts circuit courts; it dates back to times when judges would ride circuit on horseback to different courthouses). The judges are appointed by the president, but on recommendation of Texas senators, and the juries are sourced from the local population. The area is known for its plaintiff friendly juries.

Hmm. If you really wanted to "stop feeding the troll", you could make it more expensive for people to give companies like Lodsys money.

That is, you could apply those "refuse to ship or sell there" tactics to deny business to companies who are Lodsys licensees. According to http://www.lodsys.com/-licensees.html those licensees include Ooma, Roku, Box, Photobucket, Surveymonkey, Oracle, Qualcomm, Delta Airlines, the Cleveland Clinic, and Office Depot, among plenty of other familiar names.

If your choice is between "settle for $1" or "expensive litigation", the choice that maximizes shareholder value is fairly clear. If your choice is between "settle for $1 and now you're blacklisted from using the following X products" and "expensive litigation", maybe the calculus changes a little and you are more free to make a decision that you really wanted to (but couldn't justify to your board).

EDTX as a venue is already a mostly solved problem. Rules/laws were changed in the past few years to make venue transfers more sane, so you can get out of EDTX. The federal circuit, in a fit of sanity, smacked EDTX down a few times for disallowing venue transfers, and there you go. Since then, i believe a district in delaware has almost taken the lead (since that is where most companies are registered)

Along these lines, I've wondered if a company that is being asked to pay, paying or has paid them could engage customers via a "Troll Tax" (not necessarily phrased that way of course) line item on on their bills/shopping cart totals?

Seems like it would be a great way to raise attention around a practice that most reasonable people find despicable.

I'd guess that folks with existing agreements/settlements might be barred from such things, but if a highly visible company were to do this while a case is pending I'd think it could be effective.

Move your business out of Texas and/or have the SV VC community blacklist any company based in that state.

IANAL and I don't have any business to sue, but my mind wanders about "creative" approaches to patent trolls.

1. I live in Houston, which is a reasonable drive from the eastern district of Texas. If I got sued, I'd probably show up in court just to make them show up in court.

2. I wonder if a layered defense would work? "Every problem in computer science can be solved by yet another level of indirection." I've read about holding company structures where Company A holds the trademarks, code, IP, etc. for a business and then licenses it for use by Company B. Company B is a shell that passes back everything to Company A. The only one doing business potentially "making, using or selling" the potentially patented IP is Company B, which can string the troll along, then close up business overnight and reappear as Company C, with new licensing agreements from Company A. Probably doesn't work long term, but it sure would slow them down.

3. What about "patent troll delayers" as a service? These would be people who live near the court that are given, say, 0.01% of the company. As "owners" of the company, they may appear in court pro se, without hiring a lawyer. I think there are requirements to be in the patent bar before appearing in patent trials, so pro se is not an option, but just showing up, acting pissed off, and demanding your rights might gum up enough of the court's docket to be some major friction in the troll's process. We aren't talking about million dollar judgements here, just enough friction to cost more than the settlement amount they were looking for. Imagine if the federal judge had to take time to throw out pro se defendants in hundreds of cases. There goes the court's schedule, and it would make great television.

1. Uh, they have local lawyers in EDTX, and those lawyers are friendly with the judges. They are happy to. In fact, in EDTX, they have (or at least had) a local counsel requirement (IE if you didn't live there, you needed to also have an attorney who was local be retained), and plenty of local counsel charged ridiculous rates for the privilege

2. They'll just sue everyone anyway. What you are arguing about is the merits. Most have never cared about the merits. They care about getting settlements, or large verdicts in some small cases.

3. This is a great way to get thrown in jail for contempt.

Regarding #1, EDTX allows any attorney of any state bar, not just of Texas to be admitted to practice. I live within a 30 minute drive to Marshall, TX. There are plenty of lawyers and attorneys around their courthouse too, which I have to imagine rake in cash.

Check out page 36, "Admission to Practice". http://www.txed.uscourts.gov/cgi-bin/view_document.cgi?docum...

What you say is true, but not at odds with what I said. Even though they technically allow it, pro hac vice is not that common, and it takes a while for them to process out-of-state admissions usually.

They used to have an explicit rule, similar to LR 83.10 that you can find still in the northern district http://www.txnd.uscourts.gov/pdf/CIVRULES.pdf

I wonder if there are ways to legally insure against trolls. Say, a patent lawyer might open up an insurance. As a company, you pay a monthly fee of some amount (say $1000). If nothing happens, then money goes straight in that lawyers pocket, but if you're sued by a patent troll, he will handle the case for you, including going to court if needed. You could even further extend the concept with an insurance against any losses that might be the result of a lost law suit, thereby making the whole thing completely risk-free for the insured.

You'll have to run the math on how common these law suits are vs. what the costs are to run the case, but effectively it could be amortized over a lot of people, so it might make sense. Further, with time the trolls would realise that members of this union/insurance are not easy targets, so they would probably back off rather than going all the way to court. Thereby making it cheaper for the members.

Not sure if it exists already.

it has been ruled many times that owners of a company can not represent a corporation pro se because a corporation is consider its own legal entity separate from the owners so a corporation must hire a lawyer to represent them in court. The only exception is if the owner is a bar licensed lawyer then he can represent the corporation pro bono but his actions as owner and lawyer are considered seperate

Regarding 3, a funnier option might be to pollute the jury pool by giving stock to everyone they can in the district (Eastern Texas).

You think you are kidding, but there are days i think it would be a better use of money to just buy a football stadium for the local teams, etc

I'm against conceptual patents like these. I feel they are too abstract, monopolize a common functionality/method, and hurt competition. Way to go Todd Moore, even if they settled for $5, fight what you believe in!

A general abstract patent that I can think of in relation is one I researched recently that Comcast filed, patenting online video playlists[0].

[0] http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=H...

Patent Trolls are one of the reasons I've kept my small business under the radar and rely on word of mouth or known clients to spread it.

I just can't afford it, and I'd rather open source the whole damn thing over giving some random slimeball in texas a dime.

I've read about Patent Litigation/Troll Insurance, has anyone tried this? Recommendations?

I would definitely (and will now) look into it. There is nothing more heart breaking and disappointing then coding for hours, setting up an infrastructure, becoming bootstrapped...then getting a cease and desist. Only thing to compare to that type of disappointment would be doing a quick patent search on a business method you might be implementing.

There are two issues with what you suggest (looking up patents ahead of time):

1. Many times the Cease & Desists, or "Invitations to License" are about completely tangential topics or technologies to the core of your business.

2. If you do specifically look for patents ahead of time, and this becomes known in any legal proceedings, the penalties for willful violation of assorted IP are higher. IANAL but have heard this often enough from people, without seeing it refuted. Someone do correct me if I'm wrong.

Willful patent infringement may lead to triple damages. (In legal terminology, called "treble" damages.)

However, if you've never even looked at the patent, then by definition you cannot be infringing willfully. The payout will be limited to 100%.

I generally support the fight against patent trolls, yet one of my biggest frustrations is that way too frequently the nature of discussion online regarding this issue obscures or even hinders substantive legal discussion about ways to actually reform the patent system.

Unfortunately, it seems as if there is some of that going on here. Lost among all the valid criticism of Lodsys in the linked article is the actual motion to dismiss their claim. Rather than take the opportunity to challenge Lodsys' patent on validity grounds, which is what would really be needed to push meaningful reform, the author's attorney has chosen to pursue relatively unimportant civil procedure and state law defenses that seem a) unlikely to succeed (although IANYL) and that b) will do absolutely nothing to affect the state of patent law in this country either way.

The defendant here isn't paying the "troll toll" because he doesn't want to cough up that money and believes he's in the right. Many of us probably agree with that belief. But it seems a bit disingenuous to write an article championing patent reform yet explicitly avoid the opportunity to take a real stand on that issue all while asking others to put their skin in the game to fight the good fight. Perhaps my time in IP law has left me cynical, so I've asked the author in his comments to address this and I'll update this post if he responds...

I am currently in the same situation. (I posted here on HN a while back: https://news.ycombinator.com/item?id=5272575)

The author was lucky enough to find a lawyer that will defend him pro bono, but in my case (and I assume many other cases that we don't hear about), the cost of defending is more expensive than settling. The problem is that it is really cheap for patent trolls to file a lawsuit, since they basically copy and paste the claim, which is most likely to be too poorly written to stand a chance in court. I wish the court had a strict approval process.

Personally, I think it will cost you more to settle in the long run because settling makes patent trolling profitable, which means more companies will do it and you'll get hit more often.

There's a name for this.

In the long run it's in everyone's best interests to fight this but it's each individual member that risks the damage by losing so it goes on. It's not the group being sued it's just one member.

Maybe everyone should pool resources into an entity to take up defence of anyone. I don't think the legal system allows it though.

Well, it's related to game theory, but in game theory you're only logical move is the one that gives you the middle result. In this case the options are "pay a fair amount of money now and hopefully never again" or "keep paying small amounts indefinitely", and that for all possible players. You don't come out ahead if you "screw" other players as in game theory and you don't come out further in the hole if another player screws you as in game theory (well, aside from more litigation coming but they have that consequence as well).

> Maybe everyone should pool resources into an entity to take up defence of anyone.

That is called a nonprofit patent lawfirm...I dont know if it exists though.

> There's a name for this.

The inverse tragedy of the commons?

What's inverse about it?

I thought "Tragedy of the commons" referred to people over-harvesting limited resource in an unsustainable fashion knowing it is wrong because it wont matter if "just they" do it. And then everyone does it, and the resource dries up and everyone starves.

This would be inverse in the sense that there is no limited resource being depleted, but bad seeds being sown, choking the environment and making it unsustainable.

To me it seems like the same category of problem, but with the opposite kind of adversary and feedback loop, so I assumed it wasn't covered by that term.

But it's also very likely that this is just the sort of unproductive, needlessly detailed nitpicking which geeks are so very much famous for. I've been known to go down that road before :)

We just received a letter from the trolls @ Dovden Inv. how has your situation progressed since your post earlier in the year?

Is it possible to patent patent trolling, so trolls can be sued back? "Method for finding patent infringement in software" maybe?

IBM and Halliburton are both in the process of trying!

http://www.npr.org/blogs/money/2012/08/01/157743897/can-you-...

Now we're talking!

Here is a simple suggestion to end the lawsuit madness: The loosing party must bear all costs of the process. This is how it works in Germany. Added benefit: The expected value for suing people over the most ridiculous things is suddenly negative.

You don't even have to go to a civil law jurisdiction like Germany. Loser-pays is also how the British legal system works.

I have a better one. A losing plaintiff should pay some small percentage, say 2%, of the damages that they sought. This discourages people from filing suits for ridiculous amounts of money, in the hopes of getting a reduced award later on. Whereas if reasonable damages were sought, then 2% will be much less than the legal fees even if the plaintiff loses. Thus, it would not deter reasonable lawsuits.

This sound like "We don't negotiate with ... no not terrorists ... trolls !"

@Lodsys: if you are suing patents because of a pod-cast: you are a not only a patent troll, you are a troll in every regard !

Lodsys is simply despicable.

Best of luck to TMSOFT, glad to see them fighting the good fight.

I am not very familiar with USA's legal system, but is there no way to sue the troll after winning the trial so that they pay your legal expenses? I know this is possible in some European countries. Also, is there no way to file criminal charges for harassment (or something similar) against this kinds of companies?

Yes, but these cases for drag on for years. Many of the defendant companies (especially the small ones) do not have the resources to continue to pay legal counsel until the case is resolved.

Also the troll often doesn't act directly, but sets up an "independent" company to which it assigns IP rights for a limited period. If that shell company loses the lawsuit, it simply disappears and the IP reverts to the parent. There aren't any assets to attack.

If they did set up a loser-pays system, it would also require the use of escrow accounts to avoid this problem. This seems to have helped combat the SLAPP phenomenon.

Its Always Sunny - http://www.youtube.com/watch?v=dJ8G2s--1zA

I don't know Todd, but I'm assuming he donated the $3500 and he should state that to get more people interested.

I don't think he has any moral obligation to donate the amount asked by Lodsys. Putting his head on the block like this is already helping a lot more than $3500 given to lawyers could.

He definitely doesn't have a moral obligation, but it is a fairly minimal number to help prove his intentions are genuine and not simply a strategy to save $3,500.

Also, he should stress the risk he is taking in defending his position since most readers will not have any idea how big it is.

What?! Why would he be obligated or in any way suggested that he donate the sum Lodsys are asking for, isn't that the whole point of this: it's a ridiculous claim and he isn't required to pay the money.

How else are you going to get into the boy's soul?

Deleted comment

Just delete this comment, while you still can.

It's from The Nightman Cometh episode of It's Always Sunny in Philadelphia. Both the OP and reply.

I got it but I also remember a time when people purposely restrained from turning the comment section into a joke fest. It's simple when I want to write and read silly stuff I go on reddit and when I want a serious discussion I come here.

I think it's difficult to refrain from such sophomoric behavior when the title of the article so blatantly aligns with the joke. If an article was submitted with the title, "Beans, beans, they're good for your heart..." I think we'd all have a tough time abstaining from ANY sort of reaction.

It's not difficult to refrain. Before you post ask yourself if it adds anything meaningful to the conversation. Quoting television to make a joke doesn't really add anything substantial unless it's related to the topic and says something beyond the actual joke.

Regarding "beans, beans", maybe also ask yourself if you are 13 or not :)

For what it's worth, the tide turned significantly and I'm now in the negative.

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