

Troll Blasting Strategy - grellas
http://iptarget.blogspot.com/2011/05/troll-blasting-strategy.html

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tptacek
Marco Arment talked about this (not directly; he probably hasn't read this
article) in "Build and Analyze" last week, and the conclusion he came to was:
there's every indication Lodsys is totally prepared to litigate, and were you
to challenge them, you would stand a very good chance of losing.

It's not a "small" risk this strategy asks you to take. It is, relative to the
cost of simply licensing the patent†, a _rather large risk_ ; for most
independent shops, you would be staking your company on the psychology of
patent licensing shop.

Also, don't courts routinely combine cases, and routinely throw them out when
they're filed in the wrong venue?

† _Which you probably no longer need to do after Apple all but threatened to
sue Lodsys._

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GiraffeNecktie
I'm not a lawyer, but this sounds like a conspiracy to commit an abuse of
process. In other words, you're trying to use the court system for the express
purpose of inflicting financial pain on an adversary in order to intimidate
them into changing their behaviour, rather than to correct a wrong.

~~~
code_duck
There's nothing wrong with 50 parties responding to the actions of another
party in a perfectly legal manner.

> trying to use the court system for the express purpose of inflicting
> financial pain on an adversary in order to intimidate them into changing
> their behaviour

Does that sound unusual to you in some way?

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jerf
Is that your unmotivated opinion, or are you in some position to make a
reasonably firm declaration of how judges are likely to respond to this
action?

Because you are posting here in a position where you may actually have some
small influence on people making decisions that may destroy their companies,
or compounded with the error of failing to properly incorporate, destroy their
personal finances. Are you sure you don't perhaps want to walk back the
certainty of your statement?

~~~
code_duck
I certainly hope people do not mistake anonymous forum posts from unknown
people, who make no attempt to claim or establish credentials, for legal
advice.

Seems like I said that doing legal things such as filing lawsuits is legal,
and companies often use threats of lawsuits or lawsuits to attempt to
influence the behavior of other parties. Can you point out where I've gone
wrong?

It appears to me that the only unusual element in the entire plan is several
companies choosing to file papers against the IP troll on the same day. The
article says "fight the trolls in court, but a bunch of us should agree to do
it at once". You're asking me, how would 50 different judges in different
jurisdictions see this... is there some reason they would care or notice?

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Natsu
I'd like to hear grellas' thoughts on this.

I think there's a lot to be said for people being trolled to band together,
search for prior art, file reexamination requests, etc., but I'm not sure that
you can just find a lot of other people to file declaratory judgement actions
with you. At least, not very easily.

IANAL, so if you're going this route, you might want to ask a lawyer to
explain MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) to you.
Patently-O has a nice write-up on that, incidentally, which you can read here:
<http://www.patentlyo.com/patent/2008/05/the-multi-fac-1.html>

Basically, you have to have taken meaningful steps to do something that might
be infringing. Also, the whole idea of it being a strategy works against you.
The statute is _permissive_ , so the court has discretion in terms of whether
or not to hear your case. If they think you're doing it to bankrupt your
opponent, well, let's just say that they probably won't look upon that
favorably. Just because the law gets used as a cudgel doesn't mean that judges
approve of this. It's just that some lawyers know how to make fairness really
expensive.

I honestly think that the best course of action is to work together to
invalidate the patents. Even if you really do bankrupt the troll, they'll
probably just sell those patents to someone else, possibly even another troll,
during bankruptcy.

~~~
grellas
I concur with tptacek's (and your) comments on this one.

Trolls are pros at one thing and one thing only, and that is working the
litigation system (well, maybe also at "monetizing" IP in negotiating forced
licenses under threat of lawsuit). To go against them in this way is like
sending amateurs out to do a job for which they are highly likely to be
overmatched. I thought this piece was thought-provoking and that is why I
posted it - but, I am skeptical about an approach like this working, at least
when the players are small, independent businesses who have nothing in common
with one another besides a desire to resist the threats of the troll. Too much
financial pressure, too much risk, too many uncertainties to keep people with
disparate interests banded together over a long haul.

~~~
Natsu
Thanks. I think you're absolutely right, which is actually kind of depressing
in a way.

The NPEs (patent trolls) I've seen in the news are mostly run by lawyers and I
don't think they'd just back down from a lawsuit quietly. It's also pretty
hard to coordinate with the other people being sued.

That said, I don't think people should give up. Even if I don't think that one
idea would work, I agree that it's great to see people thinking about how to
cooperate on legal defenses. In particular, things like prior art searches
should be the same for everyone. So if you happen to know other people being
threatened, I think it really might make sense to work together to search for
prior art so that you don't all duplicate the same work.

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monochromatic
It doesn't sound like any of these developers would have standing to sue. And
personal jurisdiction would be a problem too, if they're just suing wherever
they're located, instead of where the troll's located. If the troll is sure
that a court doesn't have personal jurisdiction, it'll just ignore the suit
(though of course there is some risk associated with that).

And when the article says:

> FYI - my definition of a troll is any party that intentionally misconstrues
> the claims of their patent to assert it against another. They don't have to
> be NPEs, all that is required is an intentional misconstruing of the claims.

You know he doesn't know what he's talking about. This is not a definition of
a troll that _anyone_ uses.

tl;dr: Back to the drawing board.

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madamepsychosis
This sounds like unionisation. Not exactly a new idea? On the other hand,
maybe the internet can provide alternatives to union.Or has this already been
done?

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micheljansen
So it is basically a legal DDOS? There is probably a legal way out of that
then.

~~~
shrike
A side note, Charles Stross's Accelerando is a great Sci-Fi book that deals
directly with the ideas of a DDOS using the legal system and courts. Really a
great read.

