TV maker Vizio may finally get paid after beating 17th patent troll
arstechnica.com
arstechnica.com
That is to say nothing of the insanity of US patents and the concomitant trolls, but it would be a small change for the good if the NPEs/trolls had to pay fees if they lost.
It would be fine if you paid a lawyer for a day or two of preparation, walked into the court room about a month after the case was officially brought, and had the stupid patent suits thrown out after a couple of hours in there. "Wow that's a fancy lawyer you brought. Too bad this patent is clearly bullshit. NEXT"
EDIT: also, cheers to Vizio and NewEgg, for never settling
I thought people were allowed to self-represent at least...
In other words: the more you sue the more you will find yourself culpable for fees. The little guy who files one or two claims? He's fine. The trolls? Those guys pay.
If you were a minimum-wage worker injured by unsafe working conditions at a $BIGCORP warehouse, would you sue if you knew you'd have to pay a million dollars if you lost, because they have ten $1000-an-hour lawyers doing photocopying and filing, and there was a 1% chance you'd lose due to random chance?
What you really need is German style fixed fee litigation; neither party should have to pay more than $5,000 in fees of any type.
After all, if the courts can't figure out whether a patent is valid and infringed upon for $5,000 how is anyone supposed to?
Your other point is well taken and the potential to be liable for the other sides fees is a deterrent, but that is the purpose of prevailing party fees, to encourage both sides to resolve the dispute without litigation. To some degree they also permit the little guy to get representation when otherwise they could not afford an attorney.
under the current system [...] the fees
must be "proven" to be "reasonable"
[1] http://dlj.law.duke.edu/2014/04/what-patent-attorney-fee-awa...
Joe Mullin has notoriously poor understanding of patents (and I'm being charitable here, else I'd say he writes deliberately misleading language to pander to these types of crowds - his earlier work certainly betrays a more nuanced understanding of patents). Acquiring patents from somebody does not make you a shell company of theirs. The types of shell companies these entities use exist literally only on paper. Apart from their IP assets (which also exist only on paper), the only thing they have is a PO box, which they share with thousands others. They have no offices and no employees, let alone a website.
On the topic of Bill Gates, he literally enabled the computer revolution. Without Microsoft, we'd be in an industry ruled by hardware makers, each a mini-Apple, with their own walled-garden ecosystems that would not interoperate with any others. It's just that he happened to disagree with the most popular religion around these parts that has earned him the ire he gets.
Yes, IBM, the incumbent company with the largest market share, definitely tried to start a walled garden. /sarcasm
Microsoft's masterstroke was in foregoing exclusive licensing to IBM for lower royalties, and then making the same software available on all computers, thereby creating a standard platform that more software could be written for. The true value of a machine is in the software, and as more and more software is written, more and more value is created (which MS was perfectly positioned to capture a large chunk of), whereas hardware becomes fungible, causing hardware makers to enter a race to the bottom. This made hardware cheaper and more accessible, leading to even more software being created. I doubt any other company drove that shift as much as MS did. Certainly not IBM, which didn't even realize what was happening at the time, and if it did, it certainly would have fought its own commoditization.
Don't have a strong case with risk of losing? Don't go to court!
Have no money but a very strong case? Good. Go to court, you'll get your cost back if/when you win.
That alone would end many of the - shall we say - speculative lawsuits.
"Because of the importance of preventing undue influence on a jury, jury tampering (like witness tampering) is a serious crime, whether attempted through bribery, threat of violence, or other means. Jurors themselves can also be held liable if they deliberately compromise their impartiality."
Jurors cannot deviate from that flowchart. For instance, there may be only one set of questions to which you must answer Yes or No to reach the question that says "What damages do you award?"
But if your answers do not lead you down to the conclusion that you'd like, too bad, the law and the facts don't support your preference.
Juries could return any verdict that is not supported by the instructions, but I'd guess that is grounds for a mistrial.
And even when you lose on the merits, that doesn't mean there isn't any "there" there. I think the Ellen Pao lawsuit is a good example. I think, based on the evidence that came out, the jury decided correctly. But there was clearly enough misconduct to create justification for a lawsuit to dig into what really happened.
I'd argue that the total damage to society done by allowing speculative lawsuits where the intention is just to scare or defame someone into settling, by far outweighs the benefit done by also allowing speculative lawsuits done for more noble purposes.
Or does US law permit you to close a company keeping all it has while not paying debts?
Wikipedia says: Non-practicing entities are generally not considered 'patent trolls' when they offer their patented technologies to licensees in advance, such as individual inventors, university research laboratories, development firms, and licensing agents that offer enforcement and negotiation services on behalf of patent owners.
I think that's a pretty reasonable statement.
How do you do that, legally speaking? What is the fundamental technical difference between our hypothetical aerospace engineer suing Boeing and some troll suing Vizio? It's not enough to say that the patents of a troll might be invalid; invalidating patents is extremely expensive in court.
Also, this would make it pretty much impossible for smaller parties to go after larger parties, because there are no sure things in law, and losing a case in a 'loser pays' system could make you liable for whatever the larger party could afford to pay for lawyers. IBM's legal fees don't come cheap.
1. He references the roundly debunked "Patent Trolls cost X trillion dollars" study and accepts it as fact.
2. He calls ED Texas "plaintiff friendly", which it hasn't been for a while (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1597919) - these days it's popular because of other factors.
3. He shows a video clip of that M-CAM guy, who's famous for claiming there's a "patent on toast" (there's no such thing) in that NPR episode on patent trolls. Which, BTW, had journalism worse than this clip. M-CAM is a laughingstock of the IP licensing world as they appear to have no idea how patents really work.
4. The whole "trial lawyers killed patent reform" thing is a red herring if you just stop a second to think about it. As Oliver himself says a few minutes earlier, the whole patent troll business model is avoiding trials by settling for less than the cost of a lawsuit. In fact 97% of patent lawsuits, patent troll or otherwise, settle without trial. Statistically, trial lawyers have very little skin in the game. I don't know what really killed this patent reform bill (my guess is the pharma lobby), but I'm really curious why people decided to blame the trial lawyers.
"At each step of the case, Vizio's credibility increased while Oplus gathered rope to hang itself," she wrote. Yet Pfaelzer denied Vizio legal fees. Now, the Federal Circuit has ruled (PDF) that Pfaelzer needs to reconsider that decision.
Why, after such observations, would she deny Vizio legal fees?
"Oplus alleged sufficient facts to support its claims, gathered limited discovery, and lost on summary judgment, as it would have even without its misconduct," so attorneys' fees are not appropriate, the judge concluded.
http://www.law360.com/articles/507269/vizio-denied-fees-trol...
When you're sued, you often have to put aside money to cover the potential cost due to losing. So, this seems reasonable.