My Brush With a Patent Troll

Re:My Brush With a Patent Troll by wmil on Friday September 21, 2012 @11:38AM (#4554171)

I think the big problem is juries. A group of random individuals isn't going to wade through the technical details well.

However there's a right to a jury trial. So I propose the following.

Juries for patent trials should be paid dramatically more (in the neighbourhood of what lawyers get) and selected from a list of volunteers according to criteria that the two sides argue over.

The idea being that we want competent people to fight to get on juries rather than come up with an excuse not too.

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Re:My Brush With a Patent Troll by alanctgardner2 on Friday September 21, 2012 @11:45AM (#4554209)

Unfortunately, the flies in the face of the principles of trial law. The goal,in a trial, is that the jury is a blank slate, which exists only to judge what the counsels say. The only facts they can consider are those they hear in the trial from witnesses, and exhibits introduced. To have a jury of experts completely defeats this point; a lot of people argue the recent Apple v. Samsung ruling was invalid precisely because the foreman was an 'expert'.

There is already legislation coming into effect in the US which will give parties 9 months to contest any patent, through the patent office. This should help solve the problem of lay juries deciding the validity of recent patents.

http://ipspotlight.com/2011/09/19/changes-to-u-s-patent-law-...

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Re:My Brush With a Patent Troll by cookiecaper on Friday September 21, 2012 @04:02PM (#4555474)

>a lot of people argue the recent Apple v. Samsung ruling was invalid precisely because the foreman was an 'expert'.

Not so much that he was an expert, but he thought he had relevant expertise, made a false presumption about the nature of the law based on that misunderstanding (namely, that because object files would not run without recompilation between the iPhone and instances of prior art produced by Samsung, it didn't count as "real" prior art), and convinced the rest of the jury to deliver a guilty verdict based on whether the processor could execute the same object code or not, not whether the presented evidence actually was sufficient "prior art", meaning a demonstration that the invention was not unique enough at the time to warrant protection, to invalidate Apple's patent.

http://www.groklaw.net/article.php?story=20120828225612963

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Re:My Brush With a Patent Troll by alanctgardner2 on Friday September 21, 2012 @04:26PM (#4555562)

The point is, he brought his 'prior knowledge', which is expressly forbidden in the jury instructions. The parent basically proposed that every jury be made up of people like this.

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Re:My Brush With a Patent Troll by nitrogen on Friday September 21, 2012 @05:11PM (#4555826)

Not "people like this" (i.e. self-appointed "experts"), but actual experts from industry and academia.

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Re:My Brush With a Patent Troll by alanctgardner2 on Friday September 21, 2012 @05:20PM (#4555874)

I can't reply to the child comment, for some reason, but to expand on this idea: a jury's role is to basically decide if the facts as presented apply according to the law. The frustration technical people express is mostly that they want to decide what the law should be as part of the jury. This defeats the point of the legislative branch: if you want laws that make sense in a technical way, devote your life yo becoming a senator or congress person. Don't expect juries to suddenly gain the power to overturn laws because they "know better".

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Re:My Brush With a Patent Troll by nitrogen on Friday September 21, 2012 @05:08PM (#4555805)

The goal,in a trial, is that the jury is a blank slate, which exists only to judge what the counsels say.

This seems like an archaic goal that could safely be discarded if the legal system were changed from adversarial to inquisitorial to compensate for the fact that differences in wealth allow the wealthier side to hire more convincing counsel.

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Re:My Brush With a Patent Troll by alanctgardner2 on Friday September 21, 2012 @05:25PM (#4555898)

What would an inquisitional legal system look like? No litigants, just aimless fact finding?

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Re:My Brush With a Patent Troll by nitrogen on Friday September 21, 2012 @08:12PM (#4556576)

https://en.wikipedia.org/wiki/Inquisitorial_system

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Re:My Brush With a Patent Troll by alanctgardner2 on Friday September 21, 2012 @11:13PM (#4556993)

That's interesting, and I'm very grateful you didn't just LMGTFY (I was on my phone!). It sounds like it's only really employed in criminal proceedings, and even then only a small number, because the expense of employing an investigating judge is very high. As far as I know, patent litigation is moving to a 'loser pays' model in the US, which seems much more economically sound.

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Re:My Brush With a Patent Troll by nitrogen on Saturday September 22, 2012 @03:06AM (#4557314)

LMGTFY is definitely considered bad form here on HN.

Even loser pays can be problematic, though, because the troll or bigcorp can fund a war of attrition for far longer than a startup or small business. I saw a variant of this happen to a company. An adaptation of the inquisitorial system to civil cases seems like the most sensible approach, if the goal is to provide equitable outcomes regardless of the financial resources of the litigants.

An alternative idea is a shared pool of legal funds. Both parties contribute to the pool and the pool is divided equally. If an aggressor wants to hire the best lawyers in the business, they have to provide the equivalent to the defendant.

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