
Help Fight Patent Trolls – Support the SHIELD Act - Steveism
https://www.eff.org/deeplinks/2013/02/help-eff-fight-patent-trolls-and-support-shield-act
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mfringel
The "Non-Practicing Entities must post a bond" section (section (b)) is the
one I was most happy to see.

It means that at least the first levels of "Have a corporate shell that
dissolves upon an adverse finding" tricks will be defused.

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Steveism
I feel the law should do more than require the patent troll to pay the other
side's legal fees. Perhaps extra damages should be awarded to patent troll
victims. Lawsuits take a tremendous amount of time to defend oneself against.
You should be personally compensated for the time spent defending yourself
when a troll needlessly drags you to court.

~~~
rayiner
You have to separate two scenarios: plaintiff brings a justifiable suit but
loses, and plaintiff brings an unjustified suit. The latter is handled through
professional discipline of the attorney's involved. The former is not really a
scenario where the plaintiff is at fault.

Just because you lose a suit doesn't mean the suit was unjustified. You know
all those plaintiffs suing the banks over mortgage related issues? Most of
those plaintiffs are going to lose, because they can't back up their claims
with sufficient proof or the banks skirted but stayed on the right side of the
law, at least technically. Should those plaintiffs pay the banks punitive
penalties for bringing suits they lost? Should they even have to pay the
banks' legal fees?

It's easy to throw around ideas like loser-pays when you have a clearly
established preconception of who the "good guys" and who the "bad guys" are.
But that doesn't make for workable policy. Bankers/private equity folks, etc,
really think they're the good guys and the people suing them are just bitter
because they got the short end of a deal they knowingly got into. The folks
that work in petro-chem really think they're the good guys, and folks suing
them for environmental harms are just hypocrites who want all the advantages
of modern petrochemcial processes (pretty much every gadget you own is the
result of a horribly polluting process) but aren't willing to put up with the
inevitable consequences. I'm sure they'd love loser pays too, for situations
where some investor ends up not being able to prove outright fraud, or where
some community can't muster the evidence to prove that a chemical plant caused
kids to get cancer.

Loser-pays is just a band-aid on what is a more fundamental problem with the
patent system: the law has evolved to make patents a strong right with very
ill-defined boundaries. That makes litigation protracted and expensive because
you end up getting into the weeds of technical issues and whether this kind of
thing is like this other kind of thhing that the court system isn't really
competent to deal with. No amount of tweeking at the edges is going to fix
that. The solution is to make patent rights narrower and more well-deliniated.
Shift the focus to questions like whether the defendant unfairly competed with
plaintiff by copying the plaintiff's IP instead of innovating themselves.
These are things the court system is competent to handle (and has been for
hundreds of years). When it can be easily seen whether clearly-defined legal
rights have been violated, frivolous litigation naturally diminishes because
the cost to prove allegations wrong goes way down, which makes the incentive
to just settle also

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sparky
> You have to separate two scenarios: plaintiff brings a justifiable suit but
> loses, and plaintiff brings an unjustified suit. The latter is handled
> through professional discipline of the attorney's involved.

Honest question: can you point to some examples where such professional
discipline lead to a meaningful impact on the plaintiff's firm (it would seem
that attorneys are not so scarce that censuring one or two at a large firm
would do much damage), or another kind of meaningful reform?

I'm speaking from a position of relative ignorance here, but the only time I
can remember hearing of an attorney being professionally punished in a career-
impacting way was Mike Nifong. _If_ it takes that level of egregiousness to
get the legal profession's attention (and maybe it doesn't, hopefully you have
some counterexamples), we're in trouble.

I don't claim it to be anything other than theater, but I think a lot of
people clamoring for these kinds of measures resonate with this quote from
_The Wire_ (NSFW language):

[1] <http://www.youtube.com/watch?v=nAZZdL1qhk8#t=2m05s>

~~~
rayiner
> Honest question: can you point to some examples where such professional
> discipline lead to a meaningful impact on the plaintiff's firm (it would
> seem that attorneys are not so scarce that censuring one or two at a large
> firm would do much damage), or another kind of meaningful reform?

Large firms are repeat players with the court system. A sanction that's even
nothing more than a note in a file is a scary thought when that firm will have
to go in front of that same court in other cases day after day. For a large
firm, it's not worth it to toe that line. That said, it still happens, e.g.
[http://abovethelaw.com/2012/08/benchslap-of-the-day-judge-
co...](http://abovethelaw.com/2012/08/benchslap-of-the-day-judge-cooke-
sanctions-greenberg-traurig-and-td-bank).

The situation is somewhat different for other lawyers. A single sanaction for
a frivolous suit is unlikely to get you disbarred. That said, the threat of
disbarment isn't illusory:
[http://www.calbar.ca.gov/LinkClick.aspx?fileticket=DPQeNI9Fz...](http://www.calbar.ca.gov/LinkClick.aspx?fileticket=DPQeNI9Fzlo%3D&tabid=224&mid=1534).
The California Bar disbarred or suspended 394 lawyers in 2011.

Note that sanctions can include financial penalties for both the lawyer and
the client. To pick an example out of a hat:
[http://valawyersweekly.com/2012/12/21/baseless-suit-nets-
san...](http://valawyersweekly.com/2012/12/21/baseless-suit-nets-sanction-
of-50k). If a patent troll is bringing clearly frivolous suits, nothing stops
a court from recognizing a pattern and imposing significant monetary
sanctions. The problem is, the bar for "frivolous suit" is pretty high in
order to avoid deterrming meritorious litigation.

~~~
Retric
Out of 242,000 members only 89 where actually disbarred in 2011. On top of
that misconduct often has more to do with what happens at trial/pretrial than
which cases are brought to court. So, while in theory there is a downside the
reality is it's vary week.

PS: Also of note 2011 was an unusual peak for example only 17 people where
disbarred in 2008.

~~~
rayiner
There is no reason to limit the scope to only disbarred attorneys. Being
disbarred is an extremely harsh penalty. It may mean finding something else to
do with your life after decades of practice. Suspensions are also serious.
They can be for years, and almost invariably mean the end of one's career at a
large firm. Imagine a programmer being told he wasn't allowed to program for
two years. What does he go back to after two years of working retail?

Comparing to other professions, the threat of licensure revocation is less in
law than in say medicine, but not by so much where I'd argue the threat is
"very weak."

In 2011, 365 doctors had their licenses revoked or restricted in California,
out of 131,696 (0.28%). That's about twice as high as for lawyers (0.16%).
See: www.fsmb.org/pdf/2011-summary-of-board-actions.pdf

Also, note that courts typically impose monetary penalties on lawyers and
clients to sanction conduct that doesn't warrant suspension or revocation of
license. Such monetary penalties are not common for doctors, but are also a
source of deterrence.

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SeanLuke
It's nice to see. But SHIELD lacks a critical element: allowing the defendant
to specify the jurisdiction. Otherwise every patent case will still be fought
in troll-friendly East Texas.

~~~
jhancock
Yes, it does seem reasonable to allow the defendant more choice on where they
have to go to court.

Is there some hack around the East Texas problem? If you don't sell your
product in that area, would it be possible to avoid being brought to that
district's court? If so, I could imagine companies could simply have a notice
on their checkout page: "Sorry, you live in East Texas, we don't sell there".
I'm sure some companies would not want to leave money on the table like that,
but for many things I do, I'd be happy to take such a position.

~~~
the_bear
I would really love for someone knowledgeable to comment on this. I'd never
even thought about blocking customers in Eastern Texas. I just compared a map
of my users to a map of the texas districts
([http://www.txed.uscourts.gov/images/divisions/texasdistrictm...](http://www.txed.uscourts.gov/images/divisions/texasdistrictmap.png))
and I'm pretty sure that out of my 2000 paying users, not a single one falls
in that district. It seems to just miss Houston and Dallas.

If blocking IPs that originate from that region would offer additional
protection from patent trolls, I'd do it in a heart beat. I know that the real
answer is "talk to a lawyer" which I will do, but it'd be interesting to see
someone from the Hacker News community comment on the viability of this
strategy.

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charonn0
It's a good bill, but why does every new law need a cutesy acronym for a name?
How about calling it the "Patent Litigation Reform Act of 2013"? Or something
else similarly utilitarian?

~~~
nwh
I remember reading somewhere that it's a requirement of US legislation that
the name be pronounceable. Someone might be able to confirm that for me, as
doing some quick searches didn't turn up anything useful.

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afandian
I'd love to know the reason. It always seemed incredibly juvenile (but from
the impression I'd got about the US legislative system I just took that on
face value). It's an interesting requirement. In the UK we get by with e.g.
"The Computer Misuse Act 1990" or the "The Terrorism Act 2000".

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mtowle
Hrm. I hesitate to write this; I don't anticipate the following will be well-
received. Call me a cynic if you will.

"Everyone knows" big business (i.e., folks with an interest in patent law)
"controls" the government, right? Or at least has disproportionate ability to
persuade? (I'm not trying to make a political statement here - quite the
opposite, I'm trying to phrase this in a way everyone can agree on.)

Anyhoo, suffice it to say whether Congressman X votes yea or nay here depends
more on the phone call he's about to get from the CEO of General Electric than
how many copies of EFF's form letter land in his inbox. So...what are we doing
here? By 'we' I don't mean you, dear reader. It wouldn't be the first time
netizens took to a rallying cry just for the sake of rallying and crying. What
is EFF doing? They're smart guys. They know their way up and down K Street.
They know what gets a bill passed and what doesn't, and they know 10,000 form
emails falls under the latter category. What's their game?

Fundraiser. Note the big, blue "DONATE NOW." Oh - and by 'fundraiser' I mean
income, livelihood, payroll checks, bacon-to-be-brought-home. Their business
is your excitability, and cousin, business is a-boomin'.

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dkaigorodov
I have just one question: where to sign against the SHIELD?

If you are judging on something you are to consider both options. And it is
not about software/hardware producers and p-trolls. The law is to protect
_authors_. In some way the law is to embrace innovation and progress (despite
it is not the main value).

Producers want do use the law to create monopoly. To eliminate minor
innovators and use they innovations for free. What about scientists? What
about research groups? Does they innovations "practical"? Mostly not, but
still these people might understand the direction of technology and take
actions that are two steps ahead of producers. Our society is called
"postindustrial" not because the great development of IT but of lack of
development "industrial" things. Progress became extensive and not moving
forward. Science became servant of production, faith by itself. Science
loosing criticism -- the approach that leads to better models of the world.

Author of innovation is nobody, a pawn in the hands of mighty producers, and
we, the _consumers_ is to worship _great producers_ , ought to sacrifice all
this minor and unworthy author. Who even dares to remember the authors?

Also, consider rights of "real" innovation authors -- in-company engineers.
Are they any protected? Do they really have author right's at some moment?
They are the authors! Many of them are quite unique in special areas. Did they
have a voice?

SHIELD act protect producers to create monopolies. It is uncertain that the
act will decrease possibilities of _pure trolls_. The origin of author's
rights is not about the areas where it is applied now, current approach is
outdated. But even complete rejection of author's rights is better than the
SHIELD law.

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bratsche
This seems like it isn't a totally perfect solution either, though. I would
expect that smaller companies or startups would be more hesitant to try to
file a legitimate claim now, especially against someone like Apple or Google,
because if they end up losing (because sometimes the other guys just have a
bigger and better legal team) then it may financially ruin the small company.

~~~
jessaustin
If this legal mechanism further discourages small players from playing a game
they already can't win, that's a benefit.

Even without this mechanism, I really doubt a small entity could sue A or G on
any IP matter and actually come out ahead in a financial sense. Our IP
protections were not constructed with the interests of individuals and small
firms in mind.

(edit: and of course dangoldin is correct about the NPE thing, d'oh!)

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Coincoin
I fail to see how this fixes the problem.

How does a small company or individual who doesn't have the millions to defend
herself win in the first place?

The way I understand it right now, this basically only removes the risk from
medium sized companies that have the financial backing but only settle to save
littigation money.

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saraid216
> I fail to see how this fixes the problem.

1) Does this make things _better_?

2) Does this actively prevent future improvements?

If the answers are yes and no, it's a good thing and should go in.

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socalnate1
Exactly, waiting for a "perfect" solution is a good way to ensure that nothing
ever improves. (This is true about nearly everything btw).

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jhdevos
I can't help but feel that this is battling symptoms, not the real problem.

A frivolous lawsuit is a frivolous lawsuit, no matter who brings it. The real
problem is that patents give far too much power (injunctions of products
heavily invested in), defending costs far too much money, and it is far too
easy to get patents on relatively simple things.

This has to be balanced by either:

* Making far fewer inventions patentable (only inventions that take a real investment of time and money should be patentable)

OR

* Drastically reducing the power of patents (no injunctions unless in rare cases, much cheaper process for patent infringement fights)

Preferably, both.

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phil
<3 Peter DeFazio

