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A comment on What Can Small Tech Companies Do About Patent Trolls?.

Re:What Can Small Tech Companies Do About Patent Trolls? by fncypants on Friday August 03, 2018 @06:16PM (#17684065)
I am a patent lawyer, and the sentiment from the article is on point. Recent case decisions have flipped the script for small companies targeted by patent trolls. The term “Troll” captures many different kinds of patent lawsuits, but most often now the only trolls willing to sue small companies are looking for a quick small payday and will not tolerate any suggestion that they have to put up a real defense of their case on the merits. It can vary, but I have convinced several trolls to drop their case for small clients for just an hour’s worth of work. They know when I make an appearance for a client that they have to put up a fight and will walk away, and if they don’t I have been successful in several cases getting them to pay the lawyer fees incurred by my clients. Happy to answer any questions about the range of responses that may be necessary to defend against this scourge. But I’m happy to report that the trend is favoring the defendant in these scenarios.
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Re:What Can Small Tech Companies Do About Patent Trolls? by cinericius on Friday August 03, 2018 @06:35PM (#17684169)
>Recent case decisions have flipped the script for small companies targeted by patent trolls.

It would be interesting to see examples of this. What were the outcomes of these cases and how did judges reach those decisions? Many thanks for your time.

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Re:What Can Small Tech Companies Do About Patent Trolls? by fncypants on Friday August 03, 2018 @07:10PM (#17684320)
In 2014 the Supreme Court ruled in Alice v CLS that computer inventions that claim “abstract ideas” are invalid. What happened in the years following is that the lower courts took this as an opportunity to weed out the crappy patents that were previously good extortion assets. Around the same time, the Supreme Court in Octane Fitness granted lower courts more discretion to shift fees and force losing plaintiffs to pay the defense costs for an unreasonable patent infringement claim. Also, in 2012 Congress passed the American Invents Act that created an Inter Partes Review proceeding at the patent office that lets accused infringers (or others) challenge the invalidity of patents more cheaply than a full trial and often to stop a trial pending its resolution. All these combined have resulted in substantially lower troll demands, and more reluctance by trolls to follow through with an extortionate case.

Good precedent is in Inventor Holdings v. Bed Bath Beyond at the Federal Circuit Court of Appeals. The holding is that a lower court can decide that if a plaintiff turns a blind eye to how bad it’s sotware patent is in light of _Alice_ and doesn’t drop its case, it can award the defendant its attorney fees. This particular case went on far, far too long and the court awarded almost $1M in defendant’s fees to be paid.

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Re:What Can Small Tech Companies Do About Patent Trolls? by thehnguy on Saturday August 04, 2018 @07:29AM (#17686406)
Another lawyer here. I think Octane Fitness was what really did in most parent trolls. Before the trolls were extorting small companies and playing the lottery with big companies (might win and get a huge settlement/judgement). With the risk of fees being assessed the price of entry is getting higher.

We’re seeing the same thing now with disability accessibility suits. There’s a push to allow fee shifting in an effort to mitigate those exploitive cases.

The trolls are in it for money. Unsurprisingly then, when there’s the risk that THEY might lose money they’re quicker to back down.

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Re:What Can Small Tech Companies Do About Patent Trolls? by nwenzel on Saturday August 04, 2018 @08:47AM (#17686657)
Link to the referenced cases:

Alice v CLS: https://casetext.com/case/alice-corp-v-cls-bank-intl

Inventor Holdings v Bed Bath Beyond (multiple): https://casetext.com/search?q=Inventor%20holdings%20v.%20Bed...

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Re:What Can Small Tech Companies Do About Patent Trolls? by dahdum on Friday August 03, 2018 @09:12PM (#17684848)
Are they ever able to collect those defendants fees? I thought it was common to transfer the IP and file with the new shell company, who would then file bankruptcy in case of an award.

Also thank you for that detail.

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Re:What Can Small Tech Companies Do About Patent Trolls? by fncypants on Friday August 03, 2018 @09:27PM (#17684890)
It depends. I have obtained three orders to pay my client’s fees and all were paid in full. There is precedent (from an EDTX judge, no less) finding the plaintiff’s lawyer and the individual behind the troll liable when they were ordered to pay fees but tried to play that shell game. [0]

[0] https://insight.rpxcorp.com/news/7795

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Re:What Can Small Tech Companies Do About Patent Trolls? by thehnguy on Saturday August 04, 2018 @10:30AM (#17686975)
Yep. When the lawyers/firms were personally on the hook for the fees, it scared them a lot.

https://arstechnica.com/tech-policy/2017/01/original-patent-...

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Re:What Can Small Tech Companies Do About Patent Trolls? by walrus01 on Friday August 03, 2018 @08:09PM (#17684567)
Is it still a thing for patent trolls to have a 80 sq ft "business office" with no staff somewhere in east texas, and to file suits there?

https://www.google.com/search?client=ubuntu&channel=fs&q=eas...

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Re:What Can Small Tech Companies Do About Patent Trolls? by fncypants on Friday August 03, 2018 @08:22PM (#17684622)
Yes, just like any company with a virtual office. But the Supreme Court in TC Heartland last year limited where patent suits can be filed. Now, a _defendant_ needs a physical presence in east Texas to be sued there. Only big box retailers with stores in east Texas towns, or companies with headquarters / offices / storefronts in Dallas suburbs like Frisco or Plano, can be sued there. The virtual office for the patent owner no longer had any effect on the suit being proper in east Texas.
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Re:What Can Small Tech Companies Do About Patent Trolls? by tluyben2 on Friday August 03, 2018 @09:13PM (#17684849)
Do you know how it works if a US troll sues a company outside the US?
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Re:What Can Small Tech Companies Do About Patent Trolls? by fncypants on Friday August 03, 2018 @09:32PM (#17684898)
Assuming you mean filing a lawsuit for infringement of a US patent, a foreign company can be sued in any federal district court in the US. It is a special case.
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Re:What Can Small Tech Companies Do About Patent Trolls? by URSpider94 on Friday August 03, 2018 @09:44PM (#17684925)
IANAL, but they can only sue for infringement that takes place within the US. A German company selling to Indian customers can’t be sued in the US.
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Re:What Can Small Tech Companies Do About Patent Trolls? by Drdrdrq on Saturday August 04, 2018 @08:57AM (#17686695)
But German company selling to US customers can, right? Does that mean the company needs to defend itself on US court?
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Re:What Can Small Tech Companies Do About Patent Trolls? by JackRW on Saturday August 04, 2018 @10:35AM (#17686993)
Generally yes.
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Re:What Can Small Tech Companies Do About Patent Trolls? by lazysheepherd on Friday August 03, 2018 @06:53PM (#17684263)
Can patent trolling be decreed as an offense, or it is too much gray area to define and detect it reliably? Is the action punishable under another offense category, e.g. fraud?

If not, what are your thoughts on what can be done to dissuade bad actors from engaging patent trolling, and seek the end of the "scourge"?

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Re:What Can Small Tech Companies Do About Patent Trolls? by fncypants on Friday August 03, 2018 @08:24PM (#17684633)
Some states have enacted bad faith litigation statutes. If the patent owner is not careful in avoiding the appearance of extortion, they can be liable for the defendant’s fees and other damages.
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Re:What Can Small Tech Companies Do About Patent Trolls? by ourmandave on Friday August 03, 2018 @10:22PM (#17685047)
Could someone (or a group of companies) that have paid in the past sue to get their money back (or have the case reversed if it went to trial) if a troll has a bad faith ruling against them?
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Re:What Can Small Tech Companies Do About Patent Trolls? by dshuang on Friday August 03, 2018 @08:59PM (#17684798)
Would you mind providing a way to contact you in your profile? I'm not sure my questions regarding average cost per case, duration, etc. are appropriate for this thread. Thanks.
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Re:What Can Small Tech Companies Do About Patent Trolls? by mcherm on Saturday August 04, 2018 @04:05AM (#17685894)
For what it's worth, I suspect that many of us would be interested in information about average cost per case and average duration for cases where the defendant is a small company (or small tech company).
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Re:What Can Small Tech Companies Do About Patent Trolls? by Boulth on Saturday August 04, 2018 @06:44AM (#17686292)
I'd also be interested in contact info... Just in case...
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Re:What Can Small Tech Companies Do About Patent Trolls? by cbcoutinho on Friday August 03, 2018 @06:47PM (#17684234)
Is this a problem primarily in certain parts of the world or is it wide-spread?
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Re:What Can Small Tech Companies Do About Patent Trolls? by 56chan4 on Saturday August 04, 2018 @03:32PM (#17688143)
It seems to emanate a lot from the US. My bro has a patent not tech sector but makes him world leader in his field, and the biggest player in his industry who happened to be based in the US, tried it on with patent infringements. They ended up killing the company in the country affected to avoid paying legal fees. Seems the most extreme forms of Capitalism and perhaps undesirable aspects of capitalism come from the US. However when looking at how the US was formed over the generations, one could argue the country is one built on extremism.
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