
Law Students Fend Off a Patent Troll - teachingaway
https://medium.com/patents-technology-law/law-students-fend-off-a-patent-troll-2b8a708277fc
======
emptywindow
THESE PEOPLE DESERVE CREDIT:

\- Prof. Jonathan Askin - @jaskin - runs the clinic, and trusted us to try
this experiment.

\- Maegan Fuller - @mafuller21 - did the lion's share of research and writing.
Brilliant and dedicated student. She just took the bar exam.

\- Jorge Torres - @jorgemtorres - Guy who actually knows patent litigation.
Too bad he dropped out of law to be a VC. Pitch him :-)

~~~
keithpeter
The judge crossed out the 'with' and wrote in 'without' prejudice on the note.

Does that mean that if the troll tries this on with someone else, this case
can't be cited? Just wondering.

~~~
toong
I guess not: the troll dropped the case, there was no judicial decision, so
there is nothing to cite ?

------
nkurz
"The Supreme Court issued 6 patent helpful patent decisions while our case was
pending. In particular, Alice v. CLS Bank invalidated patents on taking
mundane tasks and doing them on a computer. The patent in our case was
basically for sending notification calls from a computer. Probably invalid
under Alice. A second Supreme Court case, Octane v. Icon encouraged judges to
impose “fee shifting” penalties in appropriate patent cases."

...

"After reading it, and weighing the recent Supreme Court decisions, the troll
simply dropped its case against CarShield. After months of dedicated work, the
clinic students deserved a gavel-banging judicial decision in their favor. All
they got was a quiet withdrawal. But I think we can still chalk it up in the
win column. The case is dismissed (for now), the students learned real patent
litigation skills."

Does the decision encouraging "fee shifting" require that the case go to
trial? Does it require that the fees actually be paid by the defendant? Or
might the law school students still be able to receive payment by the troll
for their pro bono defense? It seems like the "new standard" would be much
more effective if it also applied in cases like this.

~~~
teachingaway
>> Does the decision encouraging "fee shifting" require that the case go to
trial?

Nope. It only requires that the case is "exceptional" \-- in the sense that
the plaintiff filed an exceptionally crappy lawsuit.

>> Does it require that the fees actually be paid by the defendant? Or might
the law school students still be able to receive payment by the troll for
their pro bono defense?

I haven't looked into this myself, but my law students tell me that we can get
fee shifting even for pro bono work.

------
dang
_This is why we started using law school clinics to do free legal defense.
It’s a win-win arrangement: students cut their teeth on real litigation,
startups get free legal defense, and patent trolls get nothing._

Bravo!

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thinkcomp
The reason why it's so expensive for startups to even consider defending
themselves is because attorney fees are supra-competitive and corporations
cannot represent themselves in court pro se according to Local Rules, such as
Civil Local Rule 3-9(b) in the Northern District of California. Whether
through (absurd) precedent or rules codifying that precedent, it's been that
way for 200 years.

However, it shouldn't be that way anymore--not after Citizens United. I'm
fighting a lawsuit about this issue right now, and if I win (however
unlikely), corporations will be able to represent themselves against patent
trolls.

Is it difficult, confusing and complex work? Yes. Is it any harder than
programming, or anything else a serious startup would do? Not really. And it
beats paying a law firm six or seven figures.

The case is:

[http://www.plainsite.org/dockets/29himg3wm/california-
northe...](http://www.plainsite.org/dockets/29himg3wm/california-northern-
district-court/think-computer-foundation-et-al-v-administrative-office-of-the-
united-states-courts-et-al/)

------
dave1619
I love this story and it's a great effort by this law school. I wonder if
there could be some crowdsourced efforts to pool together key documents,
resources, processes, etc so that defending against a patent troll could be
more efficient. This would lower costs of defense and further discourage
patent trolls.

~~~
teachingaway
We definitely want to put together some guidelines for other schools to run
similar projects. In fact, @jorgemtorres wrote an entire Kauffman Fellows
thesis on this topic.

------
monochromatic
> The patent behind all these lawsuits is not particularly innovative. It
> claims something about sending notifications after an emergency phone call.
> Here’s the gist from one of the figures . . . .

This is a little disingenuous. You know the patent doesn't cover the "gist" or
any particular figure. It covers the claims (which you don't mention at all,
even in passing). And for some reason, you don't even tell us what the patent
number is so we can look at it for ourselves!

From a little googling, I suspect that we're talking about Pat. No. 6,775,356.
But why hide the ball and characterize the patent as "not particularly
innovative" when you could just let people see it for themselves?

[https://docs.google.com/viewer?url=patentimages.storage.goog...](https://docs.google.com/viewer?url=patentimages.storage.googleapis.com/pdfs/US6775356.pdf)

~~~
AnthonyMouse
> You know the patent doesn't cover the "gist" or any particular figure. It
> covers the claims

It seems like whenever anyone criticizes a patent by summarizing it, someone
points out that the patent is defined by the claims, but if anyone criticizes
a patent by reading the claims, someone points out that the claims have to be
read in the context of the rest of the patent.

~~~
monochromatic
You do have to read the claims in light of the specification. But I'd say that
looking just at one random figure is more wrong than looking just at the
claims in isolation.

~~~
teachingaway
Its about context. If this were _claim construction brief_ , just looking at
one random figure would be totally wrong. But a proper and careful analysis of
the claims would be a snoozefest. I wanted to tell a story celebrating the
hard work of these wonderful students.

------
funkyy
I love how Medium becomes my favourite "time waster". I remember about buzz in
media about how pointless Medium was but since some time majority of articles
I found on major suggesting websites from Medium are extremely interesting.

When reading articles from Medium I feel like I am not only not wasting time
but acquiring knowledge in extremely fast pace.

------
josho
I love this. But, am saddened that the troll hasn't lost. The troll is free to
move on to the next mark, which likely won't have a free legal team behind
them.

I wonder if invalidating patents, that trolls commonly use, a good use of a
law student's time?

~~~
nlh
What would be really awesome is if the BLIP clinic students decided to
dedicate themselves to destroying this particular troll. Since they'd already
put in the hours getting up to speed on the patent in question (and filing
that likely-would-have-been-successful motion), they should reach out to the
other folks who have/will be sued by 911 and offer to defend them. Troll the
troll, as it were.

~~~
jimbokun
Another comment mentioned Maegan Fuller just passed the bar exam. Could be a
great way to get a budding litigation career off the ground.

~~~
dhackner
If she started a kickstarter, I'd be happy to fund...

~~~
frankacter
I would as well.

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u124556
>the troll simply dropped its case against CarShield

Yet the startup and the judicial system already lost time on this. There
should be a fee for withdrawing cases like this.

~~~
cbd1984
Careful: It's hard to craft remedies against patent trolls that don't also
penalize poor inventors whose work was really and truly ripped off by a much
richer entity. Even simple rules like "loser pays" can make the potential
downside of filing a valid suit so intimidating that large players get a
complete pass.

~~~
teachingaway
Maybe its a close question for the first 2 or 3 patent lawsuits. But when
someone's filing 10+ patent lawsuits at a clip, its difficult to imagine a
legitimate scenario.

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TheMagicHorsey
I'm surprised there isn't an EFF-like non-profit that provides pro-bono patent
defense to start-ups, against patent trolls. I would donate to that
organization.

I've seen a lot of horseshit patents asserted against start-ups. If there was
an organization that followed the troll around and offered defense services
against all of their defendants, it would make trolling a lot harder, and
might reduce the numbers of these parasitic lawyers involved in this shameless
trade.

I just read about a Fish & Richardson patent partner who started filing his
own "inventions" with the patent office, based on slight modifications of the
patents he was filing for clients, and then sold those patents to trolls for
huge sums. Its actually really easy to write patents focused on sabotaging
your clients, if you are a lawyer and become familiar with their future
roadmaps.

I know a bunch of trivial claims I could write right now and they would be
worth a few million in a couple years, because Google, Facebook, and others
would have to move in that direction in a few years (related to Machine
Learning and image recognition).

All you have to do is follow conferences, understand the papers, and then
write some trivial, and obvious evolutions of those techniques. Obviousness is
something defendant's find extremely difficult to prove for highly complex
technology, because the juries are made of people that have no idea what
programming is, much less Machine Learning, and the judge is probably some
moron, that thinks he is really smart, and assumes that he patent office is
full of diligent geniuses ... and so he will give a lot of weight to the
plaintiff's "USPTO certified" claims.

All it takes is for a programmer to be involved in one patent litigation and
you see the patent system for what it is. A colossal system of giant,
continuous, expensive injustice implemented in the hope of preventing an
extremely rare form of injustice (when a true original inventor is cheated by
a shameless larger company).

Imagine we institute an expensive system of highly trained commandos to follow
every nerd in America around in high schools across the country, to protect
them from bullying and to be their friends. It would certainly stop all
physical bullying. But would it be worth the giant overhead/expense?

That is what we have to start asking ourselves. Even if the patent system
prevents some rare injustices, WTF, is this continuous, and overwhelming cloud
of uncertainty for every start-up and company worth it?

I feel like China and India are doing quite alright without overburdensome
strong patent protection. And Europe seems fine with a hamstrung software
patent system. And even in the US, Microsoft, Oracle, Adobe, IBM, and Apple
got their start before software became patentable ... and they all did, and
are doing fine.

If you see someone arguing for patents, they are almost always some fucking
lawyer, troll, or someone sitting on a giant portfolio. The people actually
making software every day don't want this shit system. VCs that fund start-
ups, don't want it ... even though you would expect they want it, to protect
their investments.

~~~
rayiner
> I'm surprised there isn't an EFF-like non-profit that provides pro-bono
> patent defense to start-ups, against patent trolls. I would donate to that
> organization.

I'm sympathetic to the plight of startups having to deal with the trolliest of
trolls, but give me a break. There are so many worthier avenues for pro-bono
legal work than helping out for-profit companies.

~~~
teachingaway
>> There are so many worthier avenues for pro-bono legal work than helping out
for-profit companies.

I have a handful of students who want to be patent lawyers. Should I make them
work on death penalty or civil rights cases?

~~~
FloydGondolli
There are dozens of pro bono clinics in the Bay Area and around the state that
provide advice and legal assistance to low-income Californians. Volunteers
(law students and lawyers) are critical to their mission. Check out
www.californiaprobono.org. BTW, I agree with your sentiment. The very
translation of the term "pro bono publico" from its Latin precludes work for
for-profit enterprises, IMO.

------
darksim905
It was dismissed without prejudice. This means nothing. If a patent troll
wanted to do the same thing & file for the same lawsuit, they could easily do
so. This isn't a "win" for the sutdents as much as it's "oh, let's just drop
it."

I'm glad they didn't have to the pay the troll, but I also hate when the troll
doesn't get what it deserves, either: losing.

~~~
rurounijones
Is there a legal procedure that would have made it possible for the defense
team to say to the judge "It should not be possible to dismiss this unless it
is with prejudice"?

~~~
teachingaway
In most cases, if a plaintiff withdraws, it _needs_ to be with prejudice.
Thats the default rule. In this particular instance, there was a procedural
twist that make it a somewhat close call.

~~~
coreyja
Can you elaborate or know where I could read more?

------
Confusion
Isn't there a potential startup in here? The judicial process follows clear
and distinct steps, with clear and distinct documents for every step. It seems
like much of this can be automated as much as the trolls automate their
process?

Question 1: has the lawsuit been filed in an odd/irrelevant place? Followed by
some subquestions to be more precise. If so, fill out this form, include the
addresses of .. and ... and we'll send a form letter to them for you, asking
for a dismissal.

Question 2-5: keep stalling and asking for dismissals based on various
reasons.

Question 6-10: try some other ways to get the troll to drop it, for instance
by presenting an example of obvious prior art

Of course all letter include repeating references to relevant higher court
decisions.

------
thro1237
I wonder if this model can work with the criminal justice system as well.
Quite often, defendants feel it is better to accept a plea deal even when they
have done nothing wrong because the economics of fighting a lawsuit (as well
as the outcome in case of a botched up defense) makes it compelling to accept
the accept the plea deal. The mechanism is analogous to the patent troll
scenario. If law school students can take up these "troll equivalent" cases,
they gain valuable experience and defendants get a fair shot.

------
ProfOak_
This article reads like one from 2600. You should consider publishing it on
that magazine. I'm not sure about the process, but it might be really neat to
do so.

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otterley
Alas, the case was dismissed without prejudice, which means the troll can just
wait a little while and sue again later.

------
aceperry
I wouldn't be surprised if there was a lawschool that had students supporting
patent trolls. There are some schools out there that are founded on
ideological grounds.

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peterJHS
This article suggests that this is a win-win situation for the startups and
law students, but, it's a pretty one-sided deal here. This doesn't work out at
all in the long term without unfair exploitation of the unpaid labor of the
students.

While helping out gives the students experience, it's not reasonable to
consider this any sort of real option beyond an occasional situation in which
a startup can solicit a law-student who takes on a single case as part of
their curriculum.

~~~
ilikemustard
It's not "unfair exploitation". The students willingly sign on to get
meaningful experience working on real cases. It gives them a chance to do real
work and see more closely how actual law work is done.

From the sounds of the article, there is one small clinic in Brooklyn that
makes this a "real option" for companies. It's not like every company that
faces patent trolls can rely on it, but I don't think it would be far-fetched
to think that other law clinics may begin to (or already do) offer similar
services.

As I see it, it's a win-win for both parties.

~~~
peterJHS
In a small number of cases it can work - but, you can't expect students to
take on legal cases for you for free-99 whenever you like.

This is no different than big companies hiring unpaid interns. Sure it can
kinda work in a handful of cases, but it's harmful to exploit people to
perform unpaid labor.

I can recall a great many HN articles complaining about companies asking
coders to work unpaid in a variety of situations. Working unpaid on learning
projects in school is super! Getting experience is great! But, the reality of
the situation is there are massively degenerate patent laws at work here and
the solution isn't for startups to expect a contingent of students to work
there buts off gratis for them.

~~~
ixwt
> This is no different than big companies hiring unpaid interns. Sure it can
> kinda work in a handful of cases, but it's harmful to exploit people to
> perform unpaid labor.

There was a set of rules that came from a court ruling regarding unpaid
internships[0]. I would like to go over the points here. These rules dictate
whether an intern can go unpaid or not:

> 1\. The internship, even though it includes actual operation of the
> facilities of the employer, is similar to training which would be given in
> an educational environment;

Your intern can't be a coffee jockey for you. They have to actually learn
things from the job. In this case, I believe this is _more_ than can be gained
from an educational environment. This involved many more intricate details,
and probably a bunch of analysis of the patents at hand. I imagine they were
trying to pick apart this patent.

> 2\. The internship experience is for the benefit of the intern;

This experience was beneficial for both parties.

> 3\. The intern does not displace regular employees, but works under close
> supervision of existing staff;

Unless the startup had a legal team that they didn't use, I feel this is self
evident.

> 4\. The employer that provides the training derives no immediate advantage
> from the activities of the intern; and on occasion its operations may
> actually be impeded;

While the startup did obtain an advantage (having a legal team), if the clinic
team had failed, there is a very good chance they would have been greatly
impeded.

> 5\. The intern is not necessarily entitled to a job at the conclusion of the
> internship;

I highly doubt that any of the team got immediately hired, or were promised a
job at the end of the internship.

> 6\. The employer and the intern understand that the intern is not entitled
> to wages for the time spent in the internship.

They had come to an agreement that the students would be working for the
clinic pro bono.

I feel that all of these points were met, and in this case there was no
exploitation of unpaid labor. Both sides benefited greatly from this.

> But, the reality of the situation is there are massively degenerate patent
> laws at work here and the solution isn't for startups to expect a contingent
> of students to work there buts off gratis for them.

You're right. But I don't see any other solutions right now. There isn't any
drastic reform bill being pushed through Congress. There aren't any big
companies standing up to these patent trolls, in fact most have given in.
There was a patent troll going around suing companies for shopping cart
technologies. Amazon and several others gave in, but Newegg finally stood up
and denied them a settlment. Newegg went on to win the court case. They have
won several others as well. Given the recent rulings of passing court fees on
to patent trolls, I imagine they are getting less complaints in the long run
than others that have given in.

[0]: [http://www.theatlantic.com/business/archive/2013/06/the-
cour...](http://www.theatlantic.com/business/archive/2013/06/the-court-ruling-
that-could-end-unpaid-internships-for-good/276795/)

------
zavi
This is an efficient and sustainable model for higher education in general.

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gear54rus
Seems like a brilliant solution to this problem

Stick it to them! Good work.

~~~
pantaril
> Seems like a brilliant solution to this problem

The law students worked on this for months for free and the paten troll got
away without any fee. I don't see what's so brilliant about it. Looks like
shity system to me.

------
dang
Url changed from [http://gigaom.com/2014/08/11/law-students-chase-patent-
troll...](http://gigaom.com/2014/08/11/law-students-chase-patent-troll-away-
from-connected-car-start-up/), which points to this.

------
asloobq
So much WIN!

