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Re:Blackbird's Patent Troll Suit Against Cloudflare Gets Pat... by chrsstrm on Tuesday February 13, 2018 @12:02AM (#16364887)
Why? If it is ruled invalid today then it was also invalid the day it was issued. I would imagine any company who paid for a license under threat of suit would now be telling their legal department to file a suit to reclaim the fee paid plus interest plus any provable damages. So we already have a remedy for this situation, no need to complicate the statutes.
Re:Blackbird's Patent Troll Suit Against Cloudflare Gets Pat... by Canada on Tuesday February 13, 2018 @02:22AM (#16365334)
Victims would have waived that right when they settled with the patent troll.
Re:Blackbird's Patent Troll Suit Against Cloudflare Gets Pat... by danmaz74 on Tuesday February 13, 2018 @03:33AM (#16365614)
These waivers should be rendered null by law. I don't see any other way to fix the problem.
Re:Blackbird's Patent Troll Suit Against Cloudflare Gets Pat... by Canada on Tuesday February 13, 2018 @05:10AM (#16366037)
Yeah, I wish there were a special place in hell reserved for patent trolls, but undermining contracts retroactively is not something to be taken lightly.
Re:Blackbird's Patent Troll Suit Against Cloudflare Gets Pat... by toss1 on Tuesday February 13, 2018 @11:39AM (#16368447)
Not sure that it would be undermining contracts retroactively.

IANAL, but the approach I'd consider is fraud/breach of contract. The previous victims settled and paid a royalty to use a patentable technology. It turns out that it was not what was represented. Ergo, refund. How it plays out surely depends a lot on regional courts, precedents, etc.

Re:Blackbird's Patent Troll Suit Against Cloudflare Gets Pat... by stordoff on Tuesday February 13, 2018 @01:45PM (#16369607)
I wonder how air-tight you can make that reasoning. I suspect you could structure the settlement as paying to use the underlying technology _including_ the patents etc., rather than licensing the patent per se (so the fees paid are not directly predicated on the existence of a patent).

Be interesting to see how the courts would react to that though, and if they see it as a sign you are negotiating in bad faith.

Re:Blackbird's Patent Troll Suit Against Cloudflare Gets Pat... by AnthonyMouse on Tuesday February 13, 2018 @10:57AM (#16368072)
It's not retroactive if you know about it ahead of time. It would be known when the contract is made that the money would by law have to be returned in the event the patent is invalidated.

The consequence would obviously be that all the licensees of a patent that has any chance of being invalid would subsequently try to get it invalidated so they can get their money back, but isn't that the intended result?

Re:Blackbird's Patent Troll Suit Against Cloudflare Gets Pat... by CodeWriter23 on Tuesday February 13, 2018 @05:29PM (#16371437)
We have a concept in US Law called “ex post facto” which means you are not liable after the fact if laws are changed.
Re:Blackbird's Patent Troll Suit Against Cloudflare Gets Pat... by dragonwriter on Tuesday February 13, 2018 @05:35PM (#16371497)
> We have a concept in US Law called “ex post facto” which means you are not liable after the fact if laws are changed.

That's not what ex post facto means. An ex post facto law is a law criminalizing an act or increasing criminal penalties after an offense occurred. It does not prevent retroactive civil liability.

The more applicable concepts here are the binding nature of contracts (which settlements are) and res judicata (which means that, in short, once a court judgement has been entered and made final, a party cannot relitigate it to get a better outcome.)

Re:Blackbird's Patent Troll Suit Against Cloudflare Gets Pat... by CodeWriter23 on Thursday February 15, 2018 @01:15PM (#16386209)
Re:Blackbird's Patent Troll Suit Against Cloudflare Gets Pat... by Eridrus on Tuesday February 13, 2018 @10:21AM (#16367743)
IANAL, but I don't think this is how the law works today.