

Troll-Killing Patent Reform One Step Closer - DiabloD3
https://www.eff.org/deeplinks/2013/09/troll-killing-patent-reform-one-step-closer

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rarw
As a lawyer I'm always concerned about changes designed to make it harder to
sue someone. You almost always end up with unintended consequences. Take for
example the heightened pleading standard. This standard has been used with
other case types in which the allegations are considered dangerous to one's
reputation, like fraud or discrimination. In many situations, people with
legitimate claims have been unable to overcome the heightened pleading
standard, not because their claim is weak, but because the evidence required
to plead the claim is difficult to come by.

Many of the changes suggested by the article can already be accomplished using
existing procedural devices. The only provision I see as having any teeth is
the one that deals with fee shifting. Fee shifting provisons are a big deal as
recoving attorneys fees is very rare in the American legal system. Generally
fee shifting provisions allow the winner to collect legal fees even if nominal
damages (e.g. $1) are awarded. This greatly increases the risk of trolling
since any loss, no matter how small, could equal hundreds or thousands
(probably millions) of dollars in legal fees owed to the other side.

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GeneralMayhem
> not because their claim is weak, but because the evidence required to plead
> the claim is difficult to come by

Could you provide an example? As a layman, I'm having trouble imagining how
you could have a strong case without basic information such as what exactly
the tort was.

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rarw
It actually happens all the time. The heightened pleading standard comes from
two cases - Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) and
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009). As the Twombly court
described it - The "[f]actual allegations must be enough to raise a right to
relief above the speculative level, on the assumption that all the allegations
in the complaint are true." What this ends up requiring is that the plaintiff
state specific factual allegations as to what the defendant is actually doing
wrong. This sounds like a pretty good idea but in many cases is much more
difficult than you'd think. Usually the difficultly arises because the
information that supports your complaint, i.e. what the defendant is doing
wrong, is totally within their control. You, as a plaintiff bringing an
action, do not have access to this information until discovery starts, which
is only after the complaint and an answer have been filed.

Think of it this way. You have a patent. You're pretty sure, but not positive,
someone is infringing on it. Without the ability to inspect the supposed
infringer's facilities, how do you plead with particularity factual
allegations sufficient to support an infringment claim? If the infringment is
blatent, sure this is easy. But in more nuanced cases (I can't think of a
technical exmaple) it is possible to end up in a siuation where actual
infringment is occuring but because of an inability to access the right
information there is not enough available to sufficiently plead a claim.

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walid
> What this ends up requiring is that the plaintiff state specific factual
> allegations as to what the defendant is actually doing wrong.

I'm not a lawyer but in the case of patent infringement I expect the plaintiff
to be able to show said infringement. It is a technical matter that can be
deduced from the product by studying its functionality. The defendant
practically cannot hide infringement.

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GeneralMayhem
Fabrication processes can be patented. I can imagine examples that would be
hard to definitively prove based on the final output three stages farther down
the assembly line.

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walid
True, but that is the same reasoning that the law goes by when it is required
to prove guilt rather than proving innocence. The legal system many times lets
the bad guy walk to make sure that an innocent is not accidentally convicted
or over burden by having to show innocence. Just because something criminal
can happen shouldn't be enough to warrant a lawsuit. There should be proof of
criminality, infringement, whatever. Otherwise the law will simply be used as
a harassment tool as is being done with patents.

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YummyTempura
There are certainly some good points covered here, and it looks like it would
be better than the current status quo of extorting payments as "settlements"
when one party can't afford the legal fees.

I do wonder if all these new measures will head us into a situation of patent
entrenchment though, whereby patents already granted to (or subsequently
acquired by) the biggest players actually increase substantially in real
values due to the greater difficulty in getting new patents granted.

What I'm sure a lot of us would like to see is a better means by which to
invalidate existing patents that have become standards-essential. Of course,
the problem then is that you're seen as effectively punishing the most
successful of ideas (in reality a lot of those patents should never have been
granted in the first place).

This has become a longer response than I intended. Hopefully someone eminently
more knowledgable on this will be along to solve the problem shortly!

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amikula
At least this would make it easier for a company to justify digging in and
fighting a patent. If they're confident they can win, they can anticipate
legal expenses being reimbursed. A lot of companies who today are on the fence
about whether to stand up and defend themselves would suddenly be willing to
go to court.

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YummyTempura
In theory it would, but if the company fighting the troll loses, surely that
would mean they'd need to pay the troll's legal fees also?

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WalterBright
A way to stop frivolous lawsuits of all sorts is to have the loser pay the
winner the lesser of (what the loser paid his lawyer) and (what the winner
paid his lawyer).

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victorf
No it won't. There's a reason patent trolls all use shell companies and it's
because they can be totally financially independent. Declaring insolvency of
one such company is nothing to the patent troll.

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nopinsight
That is why the Transparency and the Joinder clauses briefly described in the
original article are important steps forward.

> Transparency: The draft includes strong language requiring patent trolls to
> reveal the parties that would actually benefit from the litigation (called
> the real party in interest).

> Joinder: If the plaintiff is a shell-company patent troll, the defendant
> could require the real party in interest to join the litigation. Even
> better, a prevailing defendant could collect attorney’s fees from the real
> party in interest if the patent troll can’t or won’t pay.

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tzs
These fail to address the actual problem--poor standards for issuing patents.
Fix things on the issuing side, and all the patent troll problems go away.

These random attempts to fix things on the enforcement side of things tend to
seriously harm the ability of small inventors to bring legitimate infringement
suits against large infringers.

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adventured
Not quite, although it's obviously important to start crippling the supply
side of the troll equation.

There are 2 million patents in force in the US alone. Even if you began
choking off the stream of inbound patents, you'd have one to two decades of
patent trolling left (and most likely they'd get drastically more aggressive
in a last ditch feeding frenzy, knowing there aren't as many meals coming in
the future).

