

Why I’m not paying the Troll Toll - dave1619
http://toddmoore.com/2013/07/02/why-im-not-paying-the-troll-toll/

======
noonespecial
_My company TMSOFT was recently sued by Lodsys in the eastern district of
Texas._

Again with this "eastern district of Texas". Might there be a way for the tech
community to punish this podunk little area for letting themselves become a
thorn in everyone's side? Refuse to ship or sell there? Put something in the
TOS that refuses all support for products used there? Seems like something
needs to be done to get the attention of the residents of this area and let
them know that their local court has been usurped by trolls and is creating a
national nuisance. If they all woke up one morning to find that Netflix was
out and they couldn't even google why, it might get their attention.

~~~
mpyne
If that's a Federal circuit (which seems likely, [1]) then I don't think
there's anything that the local Texans had to do with it one way or the other.
It's a Federal circuit court that happens to be located in Texas, Texas
doesn't actually appoint the judges who serve there.

[1]
[http://en.wikipedia.org/wiki/United_States_District_Court_fo...](http://en.wikipedia.org/wiki/United_States_District_Court_for_the_Eastern_District_of_Texas)

~~~
jongalloway2
Several articles indicate it's also the jurors:
[http://www.thejuryexpert.com/2010/03/east-texas-jurors-
and-p...](http://www.thejuryexpert.com/2010/03/east-texas-jurors-and-patent-
litigation/) [http://www.businessinsider.com/why-patent-plaintiffs-win-
in-...](http://www.businessinsider.com/why-patent-plaintiffs-win-in-east-
texas-2013-1)

So I think the parent post might be on to something. Let's mess with Texas!

~~~
tokenizerrr
Juries just seem like a terrible idea in general. Let's put more non-
knowledgeable people in positions of power!

~~~
rayiner
The purpose of a court isn't to get the best answer. Its to get a decent
answer while resolving the matter with finality. An adverse opinion of experts
can be accused of bias and other things that can cause the conflict to
continue to fester. The opinion of a group of layman cannot be attacked that
way.

~~~
tokenizerrr
Instead they can be attacked about having no clue what they are talking about,
which seems to be the case for many subjects.

> An adverse opinion of experts can be accused of bias and other things that
> can cause the conflict to continue to fester

Please correct me if I am wrong, but isn't this comment thread and the
parent's article doing exactly that? To quote from [1]:

> And juries in East Texas like to hand out big awards to plaintiffs, jury
> consultant Julie Blackman has written for the Jury Expert blog.

[1] [http://www.businessinsider.com/why-patent-plaintiffs-win-
in-...](http://www.businessinsider.com/why-patent-plaintiffs-win-in-east-
texas-2013-1)

~~~
rayiner
The jury isn't charged with "having a clue." It is charged with deciding what
happened and who to believe. The judge, the lawyers, and the experts are
charged with understanding the problem and spoon-feeding it to the jury. The
idea is that if you can't explain to a group of ordinary people why you should
win, its hard to say that you really deserve to win. You can call the jury
stupid, but stupidity doesn't bias a jury against you. And any other jury
would have been just as stupid. With experts its different. You can accuse an
expert of being biased or interested (because experts are usually in the same
industry as the litigants). You can claim that you would have won, if only you
had a different expert.

------
lesterbuck
IANAL and I don't have any business to sue, but my mind wanders about
"creative" approaches to patent trolls.

1\. I live in Houston, which is a reasonable drive from the eastern district
of Texas. If I got sued, I'd probably show up in court just to make them show
up in court.

2\. I wonder if a layered defense would work? "Every problem in computer
science can be solved by yet another level of indirection." I've read about
holding company structures where Company A holds the trademarks, code, IP,
etc. for a business and then licenses it for use by Company B. Company B is a
shell that passes back everything to Company A. The only one doing business
potentially "making, using or selling" the potentially patented IP is Company
B, which can string the troll along, then close up business overnight and
reappear as Company C, with new licensing agreements from Company A. Probably
doesn't work long term, but it sure would slow them down.

3\. What about "patent troll delayers" as a service? These would be people who
live near the court that are given, say, 0.01% of the company. As "owners" of
the company, they may appear in court pro se, without hiring a lawyer. I think
there are requirements to be in the patent bar before appearing in patent
trials, so pro se is not an option, but just showing up, acting pissed off,
and demanding your rights might gum up enough of the court's docket to be some
major friction in the troll's process. We aren't talking about million dollar
judgements here, just enough friction to cost more than the settlement amount
they were looking for. Imagine if the federal judge had to take time to throw
out pro se defendants in hundreds of cases. There goes the court's schedule,
and it would make great television.

~~~
DannyBee
1\. Uh, they have local lawyers in EDTX, and those lawyers are friendly with
the judges. They are happy to. In fact, in EDTX, they have (or at least had) a
local counsel requirement (IE if you didn't live there, you needed to also
have an attorney who was local be retained), and plenty of local counsel
charged ridiculous rates for the privilege

2\. They'll just sue everyone anyway. What you are arguing about is the
merits. Most have never cared about the merits. They care about getting
settlements, or large verdicts in some small cases.

3\. This is a great way to get thrown in jail for contempt.

~~~
bnycum
Regarding #1, EDTX allows any attorney of any state bar, not just of Texas to
be admitted to practice. I live within a 30 minute drive to Marshall, TX.
There are plenty of lawyers and attorneys around their courthouse too, which I
have to imagine rake in cash.

Check out page 36, "Admission to Practice". [http://www.txed.uscourts.gov/cgi-
bin/view_document.cgi?docum...](http://www.txed.uscourts.gov/cgi-
bin/view_document.cgi?document=1164#page=36)

~~~
DannyBee
What you say is true, but not at odds with what I said. Even though they
technically allow it, pro hac vice is not that common, and it takes a while
for them to process out-of-state admissions usually.

They used to have an explicit rule, similar to LR 83.10 that you can find
still in the northern district
[http://www.txnd.uscourts.gov/pdf/CIVRULES.pdf](http://www.txnd.uscourts.gov/pdf/CIVRULES.pdf)

------
quackerhacker
I'm against conceptual patents like these. I feel they are too abstract,
monopolize a common functionality/method, and hurt competition. Way to go Todd
Moore, even if they settled for $5, fight what you believe in!

A general abstract patent that I can think of in relation is one I researched
recently that Comcast filed, patenting online video playlists[0].

[0] [http://patft.uspto.gov/netacgi/nph-
Parser?Sect1=PTO2&Sect2=H...](http://patft.uspto.gov/netacgi/nph-
Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-
bool.html&r=2&f=G&l=50&co1=AND&d=PTXT&s1=%22video+playlist%22&OS=%22video+playlist%22&RS=%22video+playlist%22)

------
columbo
Patent Trolls are one of the reasons I've kept my small business under the
radar and rely on word of mouth or known clients to spread it.

I just can't afford it, and I'd rather open source the whole damn thing over
giving some random slimeball in texas a dime.

I've read about Patent Litigation/Troll Insurance, has anyone tried this?
Recommendations?

~~~
quackerhacker
I would definitely (and will now) look into it. There is nothing more heart
breaking and disappointing then coding for hours, setting up an
infrastructure, becoming bootstrapped...then getting a cease and desist. Only
thing to compare to that type of disappointment would be doing a quick patent
search on a business method you might be implementing.

~~~
chao-
There are two issues with what you suggest (looking up patents ahead of time):

1\. Many times the Cease & Desists, or "Invitations to License" are about
completely tangential topics or technologies to the core of your business.

2\. If you do specifically look for patents ahead of time, and this becomes
known in any legal proceedings, the penalties for willful violation of
assorted IP are higher. IANAL but have heard this often enough from people,
without seeing it refuted. Someone do correct me if I'm wrong.

~~~
tanzam75
Willful patent infringement may lead to triple damages. (In legal terminology,
called "treble" damages.)

However, if you've never even looked at the patent, then by definition you
cannot be infringing willfully. The payout will be limited to 100%.

------
Gorbzel
I generally support the fight against patent trolls, yet one of my biggest
frustrations is that way too frequently the nature of discussion online
regarding this issue obscures or even hinders substantive legal discussion
about ways to actually reform the patent system.

Unfortunately, it seems as if there is some of that going on here. Lost among
all the valid criticism of Lodsys in the linked article is the actual motion
to dismiss their claim. Rather than take the opportunity to challenge Lodsys'
patent on validity grounds, which is what would really be needed to push
meaningful reform, the author's attorney has chosen to pursue relatively
unimportant civil procedure and state law defenses that seem a) unlikely to
succeed (although IANYL) and that b) will do absolutely nothing to affect the
state of patent law in this country either way.

The defendant here isn't paying the "troll toll" because he doesn't want to
cough up that money and believes he's in the right. Many of us probably agree
with that belief. But it seems a bit disingenuous to write an article
championing patent reform yet explicitly avoid the opportunity to take a real
stand on that issue all while asking others to put their skin in the game to
fight the good fight. Perhaps my time in IP law has left me cynical, so I've
asked the author in his comments to address this and I'll update this post if
he responds...

------
barumrho
I am currently in the same situation. (I posted here on HN a while back:
[https://news.ycombinator.com/item?id=5272575](https://news.ycombinator.com/item?id=5272575))

The author was lucky enough to find a lawyer that will defend him pro bono,
but in my case (and I assume many other cases that we don't hear about), the
cost of defending is more expensive than settling. The problem is that it is
really cheap for patent trolls to file a lawsuit, since they basically copy
and paste the claim, which is most likely to be too poorly written to stand a
chance in court. I wish the court had a strict approval process.

~~~
flyinRyan
Personally, I think it will cost you _more_ to settle in the long run because
settling makes patent trolling profitable, which means more companies will do
it and you'll get hit more often.

~~~
Already__Taken
There's a name for this.

In the long run it's in everyone's best interests to fight this but it's each
individual member that risks the damage by losing so it goes on. It's not the
group being sued it's just one member.

Maybe everyone should pool resources into an entity to take up defence of
anyone. I don't think the legal system allows it though.

~~~
josteink
> There's a name for this.

The inverse tragedy of the commons?

~~~
if_by_whisky
What's inverse about it?

~~~
josteink
I thought "Tragedy of the commons" referred to people over-harvesting limited
resource in an unsustainable fashion knowing it is wrong because it wont
matter if "just they" do it. And then everyone does it, and the resource dries
up and everyone starves.

This would be inverse in the sense that there is no limited resource being
depleted, but bad seeds being sown, choking the environment and making it
unsustainable.

To me it seems like the same category of problem, but with the opposite kind
of adversary and feedback loop, so I assumed it wasn't covered by that term.

But it's also very likely that this is just the sort of unproductive,
needlessly detailed nitpicking which geeks are so very much famous for. I've
been known to go down that road before :)

------
hcarvalhoalves
Is it possible to patent patent trolling, so trolls can be sued back? "Method
for finding patent infringement in software" maybe?

~~~
jonmrodriguez
IBM and Halliburton are both in the process of trying!

[http://www.npr.org/blogs/money/2012/08/01/157743897/can-
you-...](http://www.npr.org/blogs/money/2012/08/01/157743897/can-you-get-a-
patent-on-being-a-patent-troll)

~~~
hcarvalhoalves
Now we're talking!

------
paulkoer
Here is a simple suggestion to end the lawsuit madness: The loosing party must
bear all costs of the process. This is how it works in Germany. Added benefit:
The expected value for suing people over the most ridiculous things is
suddenly negative.

~~~
tanzam75
You don't even have to go to a civil law jurisdiction like Germany. Loser-pays
is also how the British legal system works.

I have a better one. A losing plaintiff should pay some small percentage, say
2%, of the damages that they sought. This discourages people from filing suits
for ridiculous amounts of money, in the hopes of getting a reduced award later
on. Whereas if reasonable damages were sought, then 2% will be much less than
the legal fees even if the plaintiff loses. Thus, it would not deter
reasonable lawsuits.

------
Qantourisc
This sound like "We don't negotiate with ... no not terrorists ... trolls !"

@Lodsys: if you are suing patents because of a pod-cast: you are a not only a
patent troll, you are a troll in every regard !

------
RexRollman
Lodsys is simply despicable.

------
jaytaylor
Best of luck to TMSOFT, glad to see them fighting the good fight.

------
Tomis02
I am not very familiar with USA's legal system, but is there no way to sue the
troll after winning the trial so that they pay your legal expenses? I know
this is possible in some European countries. Also, is there no way to file
criminal charges for harassment (or something similar) against this kinds of
companies?

~~~
jlgaddis
Yes, but these cases for drag on for years. Many of the defendant companies
(especially the small ones) do not have the resources to continue to pay legal
counsel until the case is resolved.

~~~
jessaustin
Also the troll often doesn't act directly, but sets up an "independent"
company to which it assigns IP rights for a limited period. If that shell
company loses the lawsuit, it simply disappears and the IP reverts to the
parent. There aren't any assets to attack.

If they did set up a loser-pays system, it would also require the use of
escrow accounts to avoid this problem. This seems to have helped combat the
SLAPP phenomenon.

------
orasis
Its Always Sunny - [http://www.youtube.com/watch?v=dJ8G2s--
1zA](http://www.youtube.com/watch?v=dJ8G2s--1zA)

------
wtvanhest
I don't know Todd, but I'm assuming he donated the $3500 and he should state
that to get more people interested.

~~~
ricardobeat
I don't think he has any moral obligation to donate the amount asked by
Lodsys. Putting his head on the block like this is already helping a lot more
than $3500 given to lawyers could.

~~~
wtvanhest
He definitely doesn't have a moral obligation, but it is a fairly minimal
number to help prove his intentions are genuine and not simply a strategy to
save $3,500.

Also, he should stress the risk he is taking in defending his position since
most readers will not have any idea how big it is.

------
d23
How else are you going to get into the boy's soul?

