Someone should start a collective fund for smaller companies to help with legal support so that more troll claims can be fought instead of settled.
Anyhow, I'd be genuinely curious how much it cost to get to this point, and how much you think it would have cost if you'd had a protracted battle.
You mean the eff? Probably not exactly what you had in mind, but pretty close I think?
Well, of course, that requires people to put money in the fund.
Am I totally out to lunch on this?
Note that there's an important difference between publishing a position, general advocacy work in the interest of the public good, and being a reliable financial contributor to the legal fees required to defend yourself against a patent troll.
I heart EFF regardless, because if nothing else they unapologetically offer a progressive template for how the digital world could be. They challenge us all to be better versions of our digital selves.
1) RPX, which is basically just troll insurance. http://www.rpxcorp.com/
2) LOT Network (LOT=License on Transfer): http://lotnet.com/
3) My favorite: Unified Patents, which actively files IPRs against NPEs: https://www.unifiedpatents.com/
There may be others and I'd be glad to hear about them. I recommend every startup join at least these three - the annual fees are modest (free in some cases) and potential benefit is enormous.
Not exactly the same as a generic pool, but still a neat way to fight back against these trolls.
IANAL, but the approach I'd consider is fraud/breach of contract. The previous victims settled and paid a royalty to use a patentable technology. It turns out that it was not what was represented. Ergo, refund. How it plays out surely depends a lot on regional courts, precedents, etc.
Be interesting to see how the courts would react to that though, and if they see it as a sign you are negotiating in bad faith.
The consequence would obviously be that all the licensees of a patent that has any chance of being invalid would subsequently try to get it invalidated so they can get their money back, but isn't that the intended result?
That's not what ex post facto means. An ex post facto law is a law criminalizing an act or increasing criminal penalties after an offense occurred. It does not prevent retroactive civil liability.
The more applicable concepts here are the binding nature of contracts (which settlements are) and res judicata (which means that, in short, once a court judgement has been entered and made final, a party cannot relitigate it to get a better outcome.)
You can put such terms inside your own settlement agreements. One common way is to use a running royalty rather than a lump sum royalty. If the patent is ever invalidated, you can stop paying.
They can just pay out any income as soon as it shows up so there is nothing to recover if their patent is invalidated.
PS: The only way to make this work is if you pierced the corporate veil when their patents where invalidated, and that would make patents even more useless to small companies.
Personally I think we should just abolish the entire patent system, since I really don't see much benefit in it for anyone but large companies, but basically everyone agrees on stopping patent trolls with garbage patents
If you want to play offense rather than defense, your money is better spent lobbying to get the law changed so that overly broad patents are more difficult to acquire in the first place.
Is there any follow up on the body that approved a patent that should never have been granted ? Not per the court order.
Is there any punitive damage awarded to the defender against the filer ? Not per the court order.
Having been personally frivolously sued in the past, I can tell you, it's not fun and it's expensive. And even if you win, you have to sue back to pretend to any kind of financial compensation. If you have a settlement saying the opposing party is supposed to give you X amount of money, you have to sue to recover that money. And they can appeal. And even if you have an agreement saying that the winning party is entitled to have their legal fees paid by the opposing party, apparently no judge ever grants the real legal fees.
There's a major amount of work to be done in how we deal with abusive lawsuits and who pays the bill for the shared public legal system.
I'm curious how much Fastly paid. It's too bad that they didn't hold out for a weeks longer. Maybe they'll fight next time.
Plus, even if blackbird has to pay back their collected fees, they can "just" bankrupt - after all, the money is gone (unless you are implying that any dividends/payment to employees etc, are clawed back...)
Money that was already paid is gone, but if you had some settlement where you pay some amount per device, you could stop paying them going forward.
It would also be effective against the use of invalid patents by large companies that wouldn't be bankrupted, which would reduce their incentive to lobby for their continued granting.
I'm glad they did this and they've certainly gained some goodwill from me for this altruistic move. Was that part of CloudFlare's motivation, use it as PR? Because otherwise, the economics still appear to be in favor of the trolls. This battle is won, but how goes the war?
If there's any hope for the patent office it involves an act of congress explicitly making software non-statutory material for patents.
It's almost a bit arrogant too, how long would it really take for someone else to come to the same realizations?
Amazon has more money than god. For whatever reason, they decide that your thing is valuable to them, and is extremely easy to create but also extremely novel in its inception (nobody thought of this before). It took you years of work to create, and you're now unable to monetize that work because Amazon/Google/Apple/Walmart/Whoever is able to create it faster using there tens of billions of dollars of muscle to stomp you out. Because they're better positioned to produce, your years of work is now financially useless.
The idea of "how long would it take for someone else to realize the same thing" is silly. They didn't. You did. innovation is a large part of what makes software valuable. Anyone can type code if you gave them a sheet of paper that would make the machine do what you need it to. The only reason software has any value is because it took someone time to figure out what code to type in the first place.
I'm not saying inventors aren't intelligent, but I really think that if they had not existed someone else likely would have invented the same thing.
What your saying though is that some other company could have advanced the product in a way that people would prefer it over the original. The negative effects here seem stifling to innovation.
They have more money than god as you say, how can you hope to win against them in any reasonable amount of time? You would almost need angel funding, but if you have that anyway can you really not compete with them?