Law Students Fend Off a Patent Troll
medium.com
medium.com
- Prof. Jonathan Askin - @jaskin - runs the clinic, and trusted us to try this experiment.
- Maegan Fuller - @mafuller21 - did the lion's share of research and writing. Brilliant and dedicated student. She just took the bar exam.
- Jorge Torres - @jorgemtorres - Guy who actually knows patent litigation. Too bad he dropped out of law to be a VC. Pitch him :-)
Does that mean that if the troll tries this on with someone else, this case can't be cited? Just wondering.
...
"After reading it, and weighing the recent Supreme Court decisions, the troll simply dropped its case against CarShield. After months of dedicated work, the clinic students deserved a gavel-banging judicial decision in their favor. All they got was a quiet withdrawal. But I think we can still chalk it up in the win column. The case is dismissed (for now), the students learned real patent litigation skills."
Does the decision encouraging "fee shifting" require that the case go to trial? Does it require that the fees actually be paid by the defendant? Or might the law school students still be able to receive payment by the troll for their pro bono defense? It seems like the "new standard" would be much more effective if it also applied in cases like this.
Nope. It only requires that the case is "exceptional" -- in the sense that the plaintiff filed an exceptionally crappy lawsuit.
>> Does it require that the fees actually be paid by the defendant? Or might the law school students still be able to receive payment by the troll for their pro bono defense?
I haven't looked into this myself, but my law students tell me that we can get fee shifting even for pro bono work.
One thing I wonder is if patent defendants in a situation like this might win from publishing all of their legal research on the patent online? It seems like this might help future defendants if there was anything interesting and I believe a tactic like that was used with some success against Microsoft in some of the state antitrust lawsuits long ago.
Bravo!
However, it shouldn't be that way anymore--not after Citizens United. I'm fighting a lawsuit about this issue right now, and if I win (however unlikely), corporations will be able to represent themselves against patent trolls.
Is it difficult, confusing and complex work? Yes. Is it any harder than programming, or anything else a serious startup would do? Not really. And it beats paying a law firm six or seven figures.
The case is:
http://www.plainsite.org/dockets/29himg3wm/california-northe...
This is a little disingenuous. You know the patent doesn't cover the "gist" or any particular figure. It covers the claims (which you don't mention at all, even in passing). And for some reason, you don't even tell us what the patent number is so we can look at it for ourselves!
From a little googling, I suspect that we're talking about Pat. No. 6,775,356. But why hide the ball and characterize the patent as "not particularly innovative" when you could just let people see it for themselves?
https://docs.google.com/viewer?url=patentimages.storage.goog...
It seems like whenever anyone criticizes a patent by summarizing it, someone points out that the patent is defined by the claims, but if anyone criticizes a patent by reading the claims, someone points out that the claims have to be read in the context of the rest of the patent.
When reading articles from Medium I feel like I am not only not wasting time but acquiring knowledge in extremely fast pace.
I wonder if invalidating patents, that trolls commonly use, a good use of a law student's time?
I think it would be a great use of student time to identify the most egregious patents / trolls and try to invalidate their patents.
From what I've read, it seems if a patent troll feels they might lose the case they'll drop it. Why risk losing the patent when you can just move on to the next mark?
Yet the startup and the judicial system already lost time on this. There should be a fee for withdrawing cases like this.
I've seen a lot of horseshit patents asserted against start-ups. If there was an organization that followed the troll around and offered defense services against all of their defendants, it would make trolling a lot harder, and might reduce the numbers of these parasitic lawyers involved in this shameless trade.
I just read about a Fish & Richardson patent partner who started filing his own "inventions" with the patent office, based on slight modifications of the patents he was filing for clients, and then sold those patents to trolls for huge sums. Its actually really easy to write patents focused on sabotaging your clients, if you are a lawyer and become familiar with their future roadmaps.
I know a bunch of trivial claims I could write right now and they would be worth a few million in a couple years, because Google, Facebook, and others would have to move in that direction in a few years (related to Machine Learning and image recognition).
All you have to do is follow conferences, understand the papers, and then write some trivial, and obvious evolutions of those techniques. Obviousness is something defendant's find extremely difficult to prove for highly complex technology, because the juries are made of people that have no idea what programming is, much less Machine Learning, and the judge is probably some moron, that thinks he is really smart, and assumes that he patent office is full of diligent geniuses ... and so he will give a lot of weight to the plaintiff's "USPTO certified" claims.
All it takes is for a programmer to be involved in one patent litigation and you see the patent system for what it is. A colossal system of giant, continuous, expensive injustice implemented in the hope of preventing an extremely rare form of injustice (when a true original inventor is cheated by a shameless larger company).
Imagine we institute an expensive system of highly trained commandos to follow every nerd in America around in high schools across the country, to protect them from bullying and to be their friends. It would certainly stop all physical bullying. But would it be worth the giant overhead/expense?
That is what we have to start asking ourselves. Even if the patent system prevents some rare injustices, WTF, is this continuous, and overwhelming cloud of uncertainty for every start-up and company worth it?
I feel like China and India are doing quite alright without overburdensome strong patent protection. And Europe seems fine with a hamstrung software patent system. And even in the US, Microsoft, Oracle, Adobe, IBM, and Apple got their start before software became patentable ... and they all did, and are doing fine.
If you see someone arguing for patents, they are almost always some fucking lawyer, troll, or someone sitting on a giant portfolio. The people actually making software every day don't want this shit system. VCs that fund start-ups, don't want it ... even though you would expect they want it, to protect their investments.
Such an organization might be eligible for tax-exempt non-profit status as a trade group, but it doesn't seem likely that a firm dedicated to providing services to a particular class of for-profit business would qualify as a 501c3 with tax-deductible donations.
Part of the problem is making it scale. It takes a lot of man-hours to defend a patent litigation case. Its certainly possible to set up such a non-profit... its just difficult. We're working on it!
Why should there be? Why allow VCs and other investors to externalise the costs of doing business, as arbitrary as those costs might be?
VCs and investors aren't creating the cost (so they can't externalise it), patent trolls are, and they do externalise it. Everybody is worse off when a startup (regardless of VCs and other investors) sinks hours into dealing with this, if they pay off the troll, and even worse off yet if the startup folds and a potentially valuable product isn't taken to market. That is an externality.
Also, there's a clear business case for VCs in contributing to a credible attempt at discouraging patent trolls at large, so it's quite likely that they'd donate to such an organisation - thus paying off a large part of the externality dumped onto society by the trolls.
If investors want to join together to create such an organisation, let them, but (1) it really shouldn't be a non-profit (its entire purpose is to act as a legal arm for for-profit business), and (2) asking for donations from the public to keep it running is utterly ridiculous.
Is there some point you were expecting a line to be crossed? "For profit" is an arbitrary designation created by the tax code. Should we not support researchers trying to cure cancer or generate clean energy because they anticipate turning a profit if they succeed?
Because donors turning a profit isn't the point. Most startups fail. Getting a percentage of something which is probably going to turn out worthless is less important than shifting the ecosystem away from one in which promising startups are destroyed by trolls.
First, I am not sure if the EFF defends such suits, but I believe they challenge the validity of patents held by various patent trolls.
Secondly, 481 days ago I proposed the idea of a crowdfunding website for the purpose of posting demand letters from trolls, allowing donations to challange specific patents if goals were meet Did not receive much interest from HN at the time. https://news.ycombinator.com/item?id=5573778
I'm sympathetic to the plight of startups having to deal with the trolliest of trolls, but give me a break. There are so many worthier avenues for pro-bono legal work than helping out for-profit companies.
Don't get me wrong. I spent my engineering career at small and startup tech companies, and I think they're an amazing part of the ecosystem. But let's be real: they're for-profit businesses, funded by rich investors, and usually run and staffed by privileged, educated people. They can fend for themselves. There's so many people out there who cannot, who are far more worthy of our public support.
I agree that many people out there are "more deserving." But take, for example, these students and their professor. Their expertise is in patent law. I find it plausible that the most positive impact they can have on society involves applying their expertise.
To me, the for-profit versus non-profit distinction is far more relevant than the small entity versus large entity distinction. I have nothing against profit-seeking investors, but I don't think they deserve charity.
For profit business needs to exist to make all the shiny toys we all enjoy, but public service needs to be at least a little insulated from business, lest it turn into farce and lip service.
I have a handful of students who want to be patent lawyers. Should I make them work on death penalty or civil rights cases?
Even then, empirical evidence suggests that the use of patents by small firms against large ones is not as "extremely rare" as you think it is. From http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396319:
"... public and large private companies initiated 42% of all lawsuits studied, 28% of the time against other large companies... 4% of the suits were initiated by individual inventors (David v. Goliath), 18% of the suits were brought by small private companies against public or large private ones (small v. large), 16% pit one small- or medium-sized company against another (limited stakes), and in 8% a large firm sued a small one (predation profile)."
So at least 22% of lawsuits involve a "small guy vs big guy" scenario. But considering that trolls (who, surprisingly, file a relative minority of suits, the study finds) often buy patents from individual inventors / small companies who cannot litigate themselves, that number may likely be higher. Now this says nothing about the merits of the lawsuits, but there certainly are a lot of small firms taking on bigger firms.
Now setting aside your strawman that the intended use is only small vs big, at least two-thirds of the time patents are used by operating firms against a comparably sized or larger firm. That indicates that the majority of the time the system is not being abused, even if you make the questionable assumption that all big vs small and troll suits are completely meritless.
> I feel like China and India are doing quite alright without overburdensome strong patent protection.
Really? I don't see many notable technical innovations come out of those countries, and I say this as a citizen of one of them. They are very good at reproducing technology, no doubt, but invention is rare.
> And Europe seems fine with a hamstrung software patent system.
If there's one thing the smartphone wars showed us, it's that other countries have software patents of similar quality as the US. The litigation environment is very different, though.
Also, citation on the Fish & Richardson lawyer? IANAL, but that sounds like shenanigans that could lead to disbarment.
Litigation isn't a sign of success, it's a systemic failure leading to an enormous waste of resources. Meanwhile the notion that trolls don't comprise a large percentage of the actual litigation is entirely unsurprising since their business model is to offer an out of court settlement in an amount that compares favorably with the cost of successfully defending a lawsuit.
Litigation is a failure, but a failure of negotiation, not of the system. On mobile, so can't find the Lemley study now, but something like 1% of issued patents are ever litigated, and a big fraction of even those settle out of court. The large majority are typically licensed without involving litigation -- thousands of practicing entities, including well-known firms like Qualcomm, ARM, Microsoft, etc. routinely license patents as part of their business without suing others, because lawsuits are as expensive to practicing licensors as to potential infringers. It's only when parties cannot agree on the validity or value of patents that lawsuits occur, and statistics indicate this is rare.
There's no evidence of "systemic failure" of patent litigation, unless you uncritically accept media reports without evidence or are simply biased against patents.
Except that they can show no such thing if by your own assertion the way they are used in the real world is primarily outside of litigation.
> Litigation is a failure, but a failure of negotiation, not of the system.
The reason negotiation fails is that the system is broken. Patents were issued that should not have been issued which makes defendants reluctant to license them but makes plaintiffs feel no less entitled to assert them.
> There's no evidence of "systemic failure" of patent litigation
This is a systemic failure:
http://www.theguardian.com/technology/blog/2010/nov/01/smart...
That is not how the landscape looks in e.g. the pharmaceutical industry.
Also, when litigation does occur, small companies are initiating it significantly often. This sheds little light on how small companies use patents outside litigation -- there are surveys showing startups in different industries use patents differently -- but it certainly shows that the small guy vs big guy scenario is much more common than grandparent assumed.
There is no evidence at all that the vast majority of regular, non-litigation activity is problematic. The only major complaint was trolls, but when the GAO investigated the problem they put out a report that essentially said, "meh". Admittedly the requisite data about mass-mailed demand letters is not available, but there is legislation in the works on that front.
> That is not how the landscape looks in e.g. the pharmaceutical industry.
Just because somebody doesn't make a pithy infographic about it does not mean it doesn't happen: http://www.fiercepharma.com/tags/patent-lawsuits
Note that this link only lists articles from 2008. If you google a bit with a custom time range, you'll find tons more patent lawsuit articles from before 2008 too. The reasons you don't hear about it is because any combination of:
a) it's been this way forever, so whenever a new drug suit happens it's just the usual;
b) pharma lawsuits don't generate rageviews which end up posted on HN; and
c) you probably are not in the pharma industry.
Just parroting the "patent system is broken" line the media puts out does not make it so.
I'm glad they didn't have to the pay the troll, but I also hate when the troll doesn't get what it deserves, either: losing.
This seems similar to a house that had an alarm system. The thief opened the door and started to look for good stuff to take then heard the alarm go off and ran away. Mainly I would say the home owner "won" in that case by not having their stuff taken. Though it is annoying that the thief could come back and they have to deal with the thief's break in attempt. And it is annoying the thief wasn't caught and put in jail to prevent them from just going to the next house and breaking in there.
Question 1: has the lawsuit been filed in an odd/irrelevant place? Followed by some subquestions to be more precise. If so, fill out this form, include the addresses of .. and ... and we'll send a form letter to them for you, asking for a dismissal.
Question 2-5: keep stalling and asking for dismissals based on various reasons.
Question 6-10: try some other ways to get the troll to drop it, for instance by presenting an example of obvious prior art
Of course all letter include repeating references to relevant higher court decisions.
While helping out gives the students experience, it's not reasonable to consider this any sort of real option beyond an occasional situation in which a startup can solicit a law-student who takes on a single case as part of their curriculum.
From the sounds of the article, there is one small clinic in Brooklyn that makes this a "real option" for companies. It's not like every company that faces patent trolls can rely on it, but I don't think it would be far-fetched to think that other law clinics may begin to (or already do) offer similar services.
As I see it, it's a win-win for both parties.
This is no different than big companies hiring unpaid interns. Sure it can kinda work in a handful of cases, but it's harmful to exploit people to perform unpaid labor.
I can recall a great many HN articles complaining about companies asking coders to work unpaid in a variety of situations. Working unpaid on learning projects in school is super! Getting experience is great! But, the reality of the situation is there are massively degenerate patent laws at work here and the solution isn't for startups to expect a contingent of students to work there buts off gratis for them.
There was a set of rules that came from a court ruling regarding unpaid internships[0]. I would like to go over the points here. These rules dictate whether an intern can go unpaid or not:
> 1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
Your intern can't be a coffee jockey for you. They have to actually learn things from the job. In this case, I believe this is more than can be gained from an educational environment. This involved many more intricate details, and probably a bunch of analysis of the patents at hand. I imagine they were trying to pick apart this patent.
> 2. The internship experience is for the benefit of the intern;
This experience was beneficial for both parties.
> 3. The intern does not displace regular employees, but works under close supervision of existing staff;
Unless the startup had a legal team that they didn't use, I feel this is self evident.
> 4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
While the startup did obtain an advantage (having a legal team), if the clinic team had failed, there is a very good chance they would have been greatly impeded.
> 5. The intern is not necessarily entitled to a job at the conclusion of the internship;
I highly doubt that any of the team got immediately hired, or were promised a job at the end of the internship.
> 6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
They had come to an agreement that the students would be working for the clinic pro bono.
I feel that all of these points were met, and in this case there was no exploitation of unpaid labor. Both sides benefited greatly from this.
> But, the reality of the situation is there are massively degenerate patent laws at work here and the solution isn't for startups to expect a contingent of students to work there buts off gratis for them.
You're right. But I don't see any other solutions right now. There isn't any drastic reform bill being pushed through Congress. There aren't any big companies standing up to these patent trolls, in fact most have given in. There was a patent troll going around suing companies for shopping cart technologies. Amazon and several others gave in, but Newegg finally stood up and denied them a settlment. Newegg went on to win the court case. They have won several others as well. Given the recent rulings of passing court fees on to patent trolls, I imagine they are getting less complaints in the long run than others that have given in.
[0]: http://www.theatlantic.com/business/archive/2013/06/the-cour...
I agree this isn't the solution to a fundamentally broken patent litigation process, but these students are almost assuredly better off for the experience and it's a mutually beneficial relationship for the students and clients who can't afford traditional legal representation.
Unpaid labor - students get school credit, and its way more fun that sitting through lectures.
Stick it to them! Good work.
The law students worked on this for months for free and the paten troll got away without any fee. I don't see what's so brilliant about it. Looks like shity system to me.