Judge tosses Apple motion, allows patent troll Lodsys to continue rampage
arstechnica.com
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It could be enforced by some soft of geofencing at app startup that splashes a "You're from East Texas, our app doesn't work there" type language. Will that affect the ability of the trolls to venue shop at least (if not to bring the suite in the first place).
Of course an even better response would be if smartphone vendors disable their entire OS's in that district. That might be fun.
If the population living in the causative region understands the nature of what their governing body is doing to impact and infringe upon on the rest of the world, maybe they'll change who holds the relevant positions of power.
It would be great if we could do this to websites and technology in general as well. Maybe we can start with this kind of campaign [1], but utilize geo-IP targeting.
NPR (well, technically This American Life) did a special on it a couple years ago[0]. It's fun to listen to. It may not tell the whole story, but it at least paints a decent picture.
[0] http://www.thisamericanlife.org/radio-archives/episode/441/w...
Now, where on earth is that patent troll bill congress has been promising?
Sorry to pick on just one phrase of your comment but I'm honestly curious. How is the "not-representing the client's interests" thing a problem inside a court? Is it because the other side or the court will pick on it, or is it because it honestly does not represent a client's interests[0]?
[0] In this case, I can't imagine an app. developer not wanting help dealing with this specific problem, but I've never been in that position.
If the lawyer and the developer, for what ever reason, decide that it's best to settle, it's fine, in that case the developer would have to pay out of pocket for the settlement, but they would be no worse off, and they would get a free attorney helping them in either case.
For apple this arrangement would be relatively inexpensive, as long as they hire a nation wide firm. Since the causes of action in each case are exactly the same, the defense would be exactly the same, same expert opinions, same motions, etc. For developers that publish to both Google Play and App Store, it's only fair if google would kick in 1/2 the costs, but if they do not, then it would be a huge PR win for apple. Basically, they would be saying, develop with us, and we will take care of you.
> Abelow is not an officer or manager of Lodsys Group LLC, he has no interest in Lodsys patents, and he does not receive any revenue from the licenses granted by Lodsys in the patents he created.
Just like you can sell stock to people completely unrelated to a company, you can sell patents too. Patent trolls are just efficient monetization of patents. The real problem is patent law (and judges preventing class-action to allow more efficient judgement of the validity of patents).
Hmmm.
My hypothesis is there's a payoff racket going on. There's a multi level system setup with a few insiders who know how to pay off the local judges to dismiss certain cases.
This is Texas. These people don't have some sense that big bad companies are beating up on little old inventors trying to protect themselves with patents as has been portrayed in the media. These people are generally small minded Jesus followers who can't name 20 states outside of Texas and would be hard pressed to remember the name of the Vice President.
I'm not speaking out of my ass either. I've lived in Texas. I have family there now.
There's some serious corruption going on and it needs looking into.
Grow up. There's no need to insult over 25m people based only on your personal experience and conspiracy theory.
Careful there. Unless you've got more than a hypothesis, what you're saying borders on the libelous. (Not that a federal district judge would deign to notice. The judges are public figures, so you have enhanced protection under the First Amendment, but making a statement like this, without evidence to support it, might qualify as the type of "malice" that can pierce the First Amendment protection.)
The judge is constrained by long-established rules. Article III of the U.S. Constitution limits the power of the federal courts to actual cases and controversies. If the parties to a lawsuit settle the case, then that case is moot, and with very limited exceptions, the judge is automatically stripped of pretty much all authority in the matter. (You wouldn't want it any other way, given that Article III judges are appointed, not elected, and for life.)
The battle isn't necessarily over. Apple might well be able to make a case on appeal that it should be allowed to continue to litigate against Lodsys, on grounds that the same issue is likely to come up again and be settled again, thereby evading judicial review. That's a standard exception to the mootness doctrine [0], and the U.S. Court of Appeals for the Federal Circuit is likely to give it serious consideration.
Disclosure: I'm a Texan; a lawyer, also admitted in California; and a patent litigator in a previous life.
[0] http://en.wikipedia.org/wiki/Mootness#Capable_of_repetition....
Like it or not, libel laws apply on-line as much as anywhere. As just one example, in 2006 a Florida woman won an $11 million verdict against a Louisiana woman who had called her a crook, a con artist, and a fraud in an on-line forum [1]. Do a Google search for "libel on-line" and you'll see lots of ads for lawyers hoping to be hired to bring a lawsuit for libel.
Incidentally, accusations like those of the GP are known as "libel per se." [2]
Another thing to consider: If you make an arguably-libelous statement on-line about a foreign citizen, that person might sue you in a "libel tourism" destination such as the UK, which until earlier this year was (and to a certain extent still is) much more friendly to libel plaintiffs than is the U.S. (Fortunately for U.S. citizens, U.S. law severely limits the enforceability in U.S. courts of a foreign libel-tourism judgment [3].)
[1] http://usatoday30.usatoday.com/news/nation/2006-10-10-intern...
[2] http://legal-dictionary.thefreedictionary.com/libel+per+se
[3] http://en.wikipedia.org/wiki/Libel_tourism#United_States
This is not even close to what I'm doing.
I look at the world scientifically. Hence a hypothesis and not a theory. I am asking a question and don't have hard evidence one way or the other. I have a suspicion, which is where hypothesises get started. This is not libel, it's fact finding.
Were I to call you a prevaricating snake that took bribes on your last 6 cases and were rogering the judge during tea time, then that would be libel. But I am not saying that about you because it's not true, hopefully.
I'm the first to admit I'm not a lawyer and I'm quite happy about that. It doesn't mean I'm ignorant or uneducated about things though. I also learn something new each day and am happy to be proven wrong.
Cheers.
Actually, in the US, it doesn't have to intend to cause damage to be libel (it does have to damage reputation), unless it is a public figure of some sort (in which case it requires what is known as "New York Times malice").
If you libel'd a private figure, negligently, you'd likely still be liable, though damages would likely be limited to actual harm.
Look up "libel per se". Certain types of false statements are so clearly damaging that there is no requirement of malicious intent for uttering them to constitute libel. Falsely accusing someone of committing a crime, for example.
Even if that was the case, assuming nothing bad is going on, there has to be a reason all these cases end up there. It's too frequent to be a coincidence.
Most recently, the Eastern District of Texas has seen an increase in the number of
cases filed relating to patent infringement. This District has experienced an increase
in the number of patent cases filed and tried, notably in the courts of Judge T. John
Ward in the Marshall Division, Judge Leonard Davis in the Tyler Division, and Judge
David Folsom in the Texarkana Division. Perhaps because the district has a set of
local rules for patent cases and relatively fast trial settings, patent plaintiffs
have flocked to this small venue. In addition the proximity to larger cities (such
as Dallas and Houston) along with an aging jury pool interested in protecting
property rights, may attract patent cases to Marshall, Tyler, and Texarkana. [1]
http://en.wikipedia.org/wiki/United_States_District_Court_fo...
Fifteen-plus years ago the Eastern District of Texas developed a reputation as a good place to litigate patent cases because at the time it was a fast docket (not so much any more, because of all the patent cases being filed there) and the judges there have come to know patent law pretty well, which is welcomed by lawyers for both sides.
In a 2010 article, Stanford law professor Mark Lemley, who is known for his careful statistical analysis of patent cases (and is cited amazingly often by the Supreme Court), noted that the win rate for patent owners in the Eastern District was 40% [1].
In a 2013 article, Lemley concluded that "... the patent sophistication of the jury pool had no statistically significant effect on trial outcomes." [2]
[1] http://amlawdaily.typepad.com/Lemley.pdf
[2] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2217690, page 177, text accompanying note 24.
That statistic is meaningless without the base rate, which turns out to be 32.5%. I'd also point out that there's something very weaselly about Lemley saying the district "is not in the top five", when what he really means is "it's the sixth most". It's technically true, but looking at N and saying "greater than N - 1" is a way of increasing the rhetorical impact of a figure without actually lying about it. It implies that N could fall anywhere over that threshold, when in fact you've picked the threshold right under N.
Perhaps a more objective way to say it would be to say that the Eastern District of Texas's patent win rate is in the 81st percentile.
It might be possible to change the locale without changing the outcome.
A similar analogy would be declaring poverty to be the bottom quartile of financial resources, then being surprised that as long as more than 5 people exist we'll always have a bottom quartile therefore always poverty.
What I'm getting at is there may be nothing special about TX at all, there always will be an 81st percentile of course. For example if we sell TX back to .mx, perhaps in exchange for oil or something, then obviously TX would cease to be the 81st percentile but some place else would become the 81st percentile, probably with no real change in the situation other than where the bizjets fly to.
Or maybe TX is corrupt as heck but no one knows it... why TX? Everyone knows Chicago is super corrupt, NYC is super corrupt, N.O. is somewhat corrupt, the whole state of Louisiana is corrupt, the whole state of Alaska is corrupt, the whole state of Illinois is corrupt... so why bypass those probably more fertile grounds for ... Texas of all places? On the big list of cities and states with proven documented corruption problems, east texas never seems to make it very high on the list. IF I were a crook who wanted to hang out with crooks, I see no reason to go to rural TX if I could simply go to Chicago with likely better results, for example.
I mean, haven't the last three governors of Illinois gone to prison on corruption charges? It would appear if you're looking for crooks you'd go to IL not TX, but the trolls don't, which is weird.
Here's how it really works. From the names of those lawyers who have applied to be considered, a name is "suggested" by whoever is the state's senior senator of the same party as the president. Assuming the vetting checks out, the suggested person is then nominated. If neither senator is of the president's party (as is currently the case in Texas), then somehow the congressional delegation of the president's party gets involved; I forget the details.
(The late federal judge Norman Black in Houston, appointed by President Carter, was both well-liked and well-respected. He used to tell a joke: A trial lawyer is someone who knows how to try cases. A litigator is someone who knows how to take depositions. And a federal judge is someone who knows a U.S. senator.)
In fact, it's fairly deceptive, since in the absence of anything else to go on, people may tend to assume that the base rate should be 50/50 (that would be maximum entropy, after all), and might think that 40% is low.
In fact, it's quite high; but it I would agree that it doesn't seem so high as to be completely out of whack (except insofar as a 30% win rate on patents nationwide is probably pretty out of whack).
Quite possibly. But who wants to spend the legal fees to test that? Pragmatically, it's better to stay reasonably far away from the edge of that particular cliff, lest one be propelled over the edge by a random gust of wind (or a well-placed push).
Before you go any further, I challenge you to find actual apples to apples examples that can support your remarkably menacing position.
Journalists. They know that you avoid libel by stating facts supported by evidence. Truth is a defense to a libel charge (at least in the U.S.). And as mentioned above, when the libel plaintiff is a "public figure," a higher standard applies, precisely because of the public interest in ferreting out corruption and the like.
How many /r/politics or /r/conspiracy or /r/occupywallstreet posters have been sued for libel? There is no realistic risk that the ancestor post will have to test his theories on libel in court; it just flat out isn't going to play out that way.
And, is that what he's saying? "Don't theorize about public figures"? That's not what I read.
Of course, government is shot through with conflicts, both obvious and hidden. And people getting criticized for these ignore them and the criticism routinely. But that doesn't change the fact that you don't have to know something is rotten to speak up. The mere appearance of rot is, in and of itself, a problem.
And yes, what's happening in West Texas looks REALLY shady.
I say what I think and while some people don't like what I say, I try to be as realistic about a situation as I can be. So yes, on average Texans are among the most devout Christians and among the worst educated in the United States. There are more than enough public statistics to back this up.
In response to your libel statement, while I respect your background, that is entirely not the point.
It's actually exactly the response I would expect from someone or a group who are involved in nefarious acts and are being called out on it. Rather than addressing the accusation and presenting evidence to the contrary, they seek to attack and silence the investigator by throwing out accusations of libel. It's a tactic of snakes.
Unless I am seriously misunderstanding what happened here, which is possible, there was no mutual settlement here. Lodsys was allowed to unilaterally settle. Most of Apple's arguments were just ignored. Quoting from the article,
"The East Texas judge overseeing Lodsys' systematic patent attack on app developers has refused to even consider Apple's motion. Instead, he allowed the patent-holding company to settle all its cases—and then dismissed Apple's motion as moot. By doing so, US District Judge Rodney Gilstrap—who has inherited the patent-happy East Texas court that once belonged to patent-troll favorite T. John Ward—has enabled Lodsys to threaten developers for months, and perhaps even years, to come."
This is why I stand by my question of corruption. Another commenter posted about no one finding corruption out of normal bounds. At least someone has been looking into it. But when you smell smoke, something's burning. These cases keep getting the same rulings over and over, in one area of the country, by the same judges, in an area of business that is essentially parasitic and damaging to the very nature of my industry. It has to stop
For what it's worth, when I was a patent litigator back in the day, I worked almost entirely on the defense side of the docket; that was coincidental, but I wasn't unhappy about it.
--------
> ... there was no mutual settlement here. Lodsys was allowed to unilaterally settle.
There's no such thing as a unilateral settlement in a lawsuit; both the plaintiff and the defendant in question must agree, otherwise there's no settlement. (Exception: A plaintiff can unilaterally dismiss its lawsuit against one or more defendants, without prejudice, but only if it does so before the defendant in question files an answer or motion for summary judgment.)
My guess -- unencumbered by any knowledge of the case -- is that Lodsys made a generous settlement offer to its defendants so that the case would become moot, in the hope that this would cut the ground out from under Apple's motion. If that was Lodsys's intent, it seems to have worked -- for now. From what I can tell from the report, there'd be nothing nefarious about a strategic withdrawal of that kind.
Do you blog about your experiences? One thing I could stand to learn about more are the internals of patent litigation.
No, not about patent litigation. It's been a long time since I've done that kind of work, and I never was one of the star litigators in any case. But thanks for asking!
Alternatively, you might like to consider the possibility your opinions are simply not universal truths.
I don't think that is a fair assessment of the above claim.
The claim is that threats of libel suits are what guilty parties do to silence their critics, not disagreeing.
Furthermore, I would loosely file "warning somebody about libel suits where there realistically is no chance of one occurring" under "'concern' trolling". Even if what @geuis said was libel (and to be clear, it isn't), there is fuck-all probability that he will become entangled in a libel lawsuit over it. Nobody but the deranged give a shit what random semi-anonymous nobodies with no influence or credibility say about them on the internet.
You are seriously misunderstanding. There is a mutual settlement between Lodsys, and the actual defendants in the lawsuit.
Apple is not a party to the lawsuit except as an intervenor. If the parties to the lawsuit want to settle, that's their call. If Apple wants to sue Lodsys for tortuous interference or something else, that's fine, it's a different suit.
Otherwise, what would happen is you'd end up with a lawsuit that was against 7 companies, none of whom were still in the action.
Your suggestion is essentially that Apple should be able to prevent the actual defendants and plaintiffs from ending the lawsuit, because Apple has a problem with one of the plaintiffs.
If the defendants wanted to keep fighting, Apple's motion should probably have been granted. However, except in circumstances involving non-parties (like class actions), once folks want to settle, intervenors can't really object, as it should be.
Note that the article is also some really bad reporting. Apple's motion to intervene in the lawsuit was actually granted: "SEALED MEMORANDUM OPINION and ORDER - Apple has satisfied each of the four requirements for intervention as a matter of right under Rule 24(a)(2). The Court finds that permissive intervention is also appropriate under Rule 24(b). To avoid any potential prejudice to Lodsys rights under the License Agreement such intervention shall be and is hereby limited to the issues of license and patent exhaustion. Apples Motion to Intervene is GRANTED-IN-PART to the extent and as specified herein. Motions terminated: 4 MOTION to Intervene filed by Apple, Inc.. Signed by Judge Rodney Gilstrap on 4/12/12. (ehs, ) Modified on 4/12/2012 (ch, )."
So Apple was given a right to be heard as an intervenor, but once the underlying jurisdiction terminated due to the settlement, they have no standing, and all of their motions are moot.
Note that apple could have prevented this outcome. If they had indemnified app developers by agreement (instead of disclaiming all liability), they likely would have been impleaded, which would have made them an actual defendant.
They don't get to have their cake and eat it too.
There is a huge (and growing) underclass in Texas that drags these kind of stats down.
I think this is grounds for further investigation.
Yes, you are. And you're a bigot to boot.
http://www.research-live.com/news/legal/foresee-settles-lods...
But who am I kidding, you've lived here too. Minus a short stint in Denver, I've lived here my whole life. People can say you're speaking out your ass and call it bigotry all they want --and demand you return to Slashdot; it seems Hacker News considers itself above such lowly forums as Slashdot and Reddit-- but it doesn't change the truth of the matter. A majority of the citizenry of this state make their opinions on such matters perfectly clear with every vote in every election they participate in. Hell, there's a significant contingent belonging to the Tea Party who think the Republicans don't go far enough. They were significant enough to elect a Tea Party representative to the U.S. Senate. That's mental. The only real hope Texas has is that eventually the Hispanic block grows to eclipse the Republican block without falling prey to the Catholic priests who say in so many words that Jesus wanted you to vote Republican.
Everyone tries to get their patent cases heard in this particular district in Texas the same way that everyone incorporates in Delaware. It's one particular legal venue that just happens to be friendly to certain vested interests. The reason to seek out this venue is because of nothing more than apolitical favoritism towards patent holders. That's all. Don't make this into something it's not.
I mean, you could be right, but it doesn't seem terribly likely when you look at it.
I still think there's something shady going on in that district but I don't want to put forward any specific assertions about criminal activity.
Don't upvote my comment if it sounds like righteous fervor and you agree with it because of that.
They live there. They are friends with hotel and restaurant owners. Their family members are local patent attorneys. They have relatives that own 'commercial office buildings' that are nothing more than empty offices for a convenient mailing address for shell companies.
If they started looking less friendly to plaintiffs they know all of that out-of-town cash would dry up to a great extent. They would become a pariah, which, in a small town is not something you can easily hide from.
*Edit: The same can be said for the juries as well.
Peer pressure, especially from close friends and family, and doubly in small towns, is incredibly motivating for most people.
First thing that popped up when Googling 'tyler texas federal court office suites'
I was not saying these offices are some kind of grift, just that these cases are a big part of the local economy. The backbone of related local cottage industry. And these types of offices are just one example of that industry that is so important to these judge's and jury's community.
You should be more careful about what you say.
I am surprised that HN doesn't mark these posts down. Less foolish statements have been censured by the powers that be on this forum.
The corrupt players, unfortunately, may have enough false-Chinese walls and connections that they cannot be brought up for the violation of any particular laws.
The situation, in fact, is one that has become standard in the US. We can see as a broader example the "revolving door" where ex-government officials join industry and vice-versa. As long as particular, explicit payoffs can be avoided, the overall process of favoring certain players and approaches and having a strong expectation of a payoff in the end is basically legal.
Edit: at end of article - Lodsys can be sure it will continue to draw Judge Gilstrap as long as it files its cases in Marshall, Texas. The other judge who considers patent cases filed there is US District Judge Leonard Davis; but since Judge Davis' son William "Bo" Davis is Lodsys' lawyer, the company's cases will all be redirected to Gilstrap. That this kind of essentially incestuous relationship is allowed should say a lot.
How so? Would you rather that the judge be related to the plaintiff's lawyer? Would you not be crying "Conspiracy! Corruption! Favouritism!" then? Should the judge's son be disallowed from practicing law?
I would certainly join such an organization as an individual inventor and technologist. This can't be a new idea. Has anyone else thought of doing this?
Seriously though, it would have to have some clear definition of patent troll.
It would be interesting to have some sort of insurance- say $5million to be spent in case of patent lawsuit. Make a clear public statement- we will never settle and WILL spend $5m in case of a lawsuit. Would make it very counter-productive for small-time trolls.
This is essentially what NewEgg did and it makes sense.
Presumably it would cover litigation costs but not liabilities. So if you lose at the end, you still lose and have to pay damages out of your own pocket.
>Seriously though, it would have to have some clear definition of patent troll.
Not necessarily. You might not classify the likes of IBM as a "patent troll" under some definitions, but having some sort of litigation expenses insurance when they come knocking would certainly be welcome. Why not avoid the hair splitting exercises and just have the insurance kick in whenever someone makes a patent infringement claim against you?
Lawsuit insurance is interesting. The problem seems to be that if an insurance company is funding the defense then they have the same incentive to pay a settlement rather than fight that anyone else does, and that would just cause even more money to go into the pockets of trolls by giving them a deep pocket in the form of the insurance company, exacerbating the problem (and making the premiums unaffordable).
But let's suppose we solve that by stipulating up front that the insurance money can't be used for a settlement. If you want the money then you have to fight; it can only go to lawyers, not plaintiffs. That would be an interesting dynamic. (Obviously plaintiffs would hate it with the fire of a thousand suns because it would cause all but the most blatantly liable defendants to fight.)
> to fund lobbying efforts to reform the patent system
That sounds pretty sensible.
> scrutinize a judicial apparatus that seems biased in favor of patent trolls
I don't see this going anywhere. It is far, far easier to lobby to have the law changed by Congress after a judge does something you don't like than to actually have the judge punished for the ruling. What you may want to do here is to lobby for sympathetic judges to be appointed to e.g. the Eastern District of Texas or the Federal Circuit (which has jurisdiction over patent appeals), but that's obviously not a short-term solution because the turnover rate isn't that high.
Unless more than one client of the insurance company might be on the hook for the patent. In which case, they'd simply have to figure out if it was worthwhile to fund one lawsuit to the end, in order to see if they could save money for the other client's policies.
Lets say that settling will cost $50,000 and taking the case to trial will cost $200,000 w/ a high likelihood of success. For a single company, the calculation is simple - settle, it's cheaper. But, if an insurance company is behind 5 companies that all might be sued for infringement, then it would make sense to fight at least one of the suits in order to try to save the settlement fees from the other four.
Not true at all. The difference is that the individual needs to factor in the cost of one defense (tens of thousands of dollars at a minimum - PLUS the chance of loosing and then going out of business) versus the cost of the settlement (perhaps a few tens of thousands of dollars). Financially, it makes no sense to pursue the case.
The insurance pool needs to factor in the cost of ONE defense (tens of thousands of dollars at a minimum -- PLUS the chance of loosing and then owing a court's determination of a "reasonable cost" for licensing the patent for all the pool's clients) versus the cost of ALL the settlements (a few tens of thousands of dollars times how ever many clients the pool has).
A pool doesn't need to get very big before it's financially advantageous to pursue cases you are likely to win and to settle cases you are likely to lose. (By comparison, for individual companies, the best short-term benefit is gained by settling in ALL cases.)
If that's the case that is a massive number of people, particularly if you consider employees and contractors they might work with.
Perhaps I am being a simplistic moron. To me the solution to these problems is to make a lot of noise. A lot of it. And to do it continuously. And to do it through all available media and channels. And not to stop until the issue is dealt with by legislators. You want coverage by every single media outlet on a daily basis.
This community can make something like that happen. It's isn't that difficult if top level companies take lead. With one simple addition to their websites the entire world would become aware of the issue that is killing innovation in tech circles.
This is a community that has the power to do this. If this community unites behind a common message tomorrow the entire world could start to feel the pressure. Political leaders will have to both acknowledge and act to solve the problem.
This is not a war that will be won one battle at a time. This is a war that needs to be won through legislative action. There are far more people affected by bullshit patents than most imagine. All we need is an organization under which we could all unite and start making noise. Banners on all websites. Pop-ups on all apps. Whatever it takes.
Would it be inconvenient to our users? Possibly. However, you have to consider the idea that there's a huge opportunity here to educate everyone and, at the same time, highlight the fact that a more sensible patent system would actually improve things across the world. I am not going to do them math, but I am sure one could easily show economic advantages which will include job creation.
I wish I had the standing, time and resources to launch such a thing. I don't. There are well-funded companies with more than enough resources to devote to such an effort. To borrow from Bravehart:
Help us. Help yourselves! Now is our chance, now! If we join, we can win. If we win, well then we'll have what none of us have ever had before; freedom to create; freedom from the fear of trolls; the ability to innovate to the extent of our abilities; the freedom to create whatever our minds can imagine. You are the technology leaders and there is strength in you. Unite us. Unite us!