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Texas Jury Strikes Down Patent Trolls’ Claim To Own the Interactive Web (wired.com)
242 points by capocani 1721 days ago | hide | past | web | 49 comments | favorite

You know a patent claim has no merit when even an East Texas court won't accept it.


Honestly, I think being a juror in a patent trial is a hard proposition anywhere. Why do I say that:

-The subject matter is likely to be mostly to totally outside of a person's technical depth and factual experience. (Here I try and think if someone asked me to decide some question related to something like advanced particle physics, chemistry, or the tax code).

-There is not that much time to figure out what is going on (these trials tend to last less than a week of 7 hour days).

-There are many different complex topics being addressed in that time span: the patents, what is being accused, etc.

-What is said is being said by competing groups of apparently competent people.

-Those people are saying widely different things about the aforementioned complex subject matter.

-Everything is being said in an extremely serious environment (Federal Court) which lends substantial gravity to each side.

-Jurors are not to consult information beyond what is presented to them in court.

> -The subject matter is likely to be mostly to totally outside of a person's technical depth and factual experience. (Here I try and think if someone asked me to decide some question related to something like advanced particle physics, chemistry, or the tax code).

Not just "likely"; anyone who had such experience would get kicked off the jury.

Nobody on Hacker News will ever get to serve as a juror on a patent trial. (That cuts both ways, though: nobody biased towards patents will ever sit on a patent trial either.)

I think it's worth noting that as a nation we have chosen to be "biased" in favor of patents. A patent is presumptively valid. To find a patent invalid a jury's standard is "clear and convincing evidence." By contrast the standard for infringement is "a preponderance of the evidence."

Its worth noting that those standards evolved when patents were subject to much more intense review by the patent office, and it was (procedurally) easier for the patent office to just reject an application.

One of the easiest potential fixes to the US patent system would just remove the no longer warranted presumption of validity from patents.

"Not just "likely"; anyone who had such experience would get kicked off the jury."

I was disqualified from the jury on a drunk driving trial, because the defense was based in some way on the Breathalyzer and its design or calibration, and I have a BSCS.

And yet if someone is "biased" against murder, they will let you be a witness in a murder trial. Love the legal system.

Murder is criminal, patents are civil. They are completely different, and they absolutely should be.

Absolutely true. However, I think the principle of "innocent until proven guilty" ought to apply in both cases.

I've heard (but you should verify - IANAL) that jurors often err on the side of not sentencing in civil matters.

Judges tend to think that everything should be resolved by the court, after all - they are paid to be there. Jurors tend to think that people should just sort things out without dragging innocent bystanders into a jury box.

Also, people with legal training are taught to think everything deserves compensation, and the only question is who to bill.

agreed, it doesn't seem like it should be a jury trial, but instead should be just a hearing in front of matter experts.

What does joe schmoe know about the nuances around patent law? There is a reason there are lawyers who specialize their entire practice just around patent law.

Experts are employed in most (probably closer to all) patent trials, but they tend to have an offsetting effect (or at least that is the opinion).

I think a system of appointed masters has its issues too. Theoretically, that is the PTOs role right?

The closest idea I've been able to think of is a modification to the jury system so that the base pool that jurors are randomly selected from consists of people with experience in that field. Essentially, the base pool is of persons of ordinary skill in the art. I have no idea how to practically implement that though.

right now it's more of a case of each side getting someone who'll come out and say they agree with them.

> "What does joe schmoe know about the nuances around patent law?"

Just curious--pretty much neutrally curious--do you feel the same way about medicine? Civil engineering?

"What does joe schmoe know about the nuances around prenatal genetic screening?"

"What does joe schmoe know about the nuances around suspension bridges?"

Too much room for bias. Remember, "experts" doesn't just mean people who know to apply heavy skepticism to ignore frivolous patents; it also includes people who wholeheartedly support patents and believe most of them have merit.

EDT has been more favorable to defendants than plaintiffs for quite a while. It isn't even in the top 5 for plaintiff win rates.

The numbers claimed in that Wikipedia article are wildly off. Here is a much better researched source: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1597919

Wikipedian here.

Your source's analysis reflects the years 2000-2010, while the citation given for Wikipedia's article is based upon numbers provided to the New York Times for the years 1991-2006 (which included a nine-fold increase in the number of cases filed during the years 2002-2006).


> The dueling teams of lawyers have spent millions creating elaborate presentations

Did the lawyers spend millions, or did they bill millions?

Probably spent millions in getting expert testimonials. Those aren't cheap. Of course they turned around to bill the clients for the work with cost plus.

All in a day's work.

> Apple, Argosy Publishing, Blockbuster, Citigroup, eBay, Frito-Lay, JP Morgan Chase, New Frontier Media, Office Depot, Perot Systems, Playboy Enterprises International, Rent-A-Center, Sun Microsystems (bought by Oracle while this litigation was underway), and Texas Instruments.

^^ The list of companies who settled with Eloas before the patent was ruled invalid.

A part of me wishes companies had a legal obligation to fight patent claims they believed to be invalid. Settling hurts us all.

then an agreement that the patent is valid would simply be included in the settlement.

Can the companies that settled ask for their money back?

Most likely not. They buy the licence to indemnify themselves, like insurance. But when you don't use your insurance you don't get the money back.

It's closer to a protection racket than insurance in this case, isn't it?

Yup, that basically sums up how patent trolling works. Threaten with a government backed court order for unknown millions. Offer a special deal worth hundreds of thousands to take away that threat.

Public corporations tend to go with option 2 even though they know 75% of it is bullshit. They have to list any outstanding lawsuits as liabilities every quarter. Investors ask lots of questions about these liabilities. Expenses are cheaper than liabilities so it's better to turn those liabilities into relatively, small expenses than potentially large liabilities.

Small private companies also go for option 2. Cheaper to pay them off than be billed $200/hour for a lawyer and the court fees.

I have to wonder when I keep hearing about these cases: if you have say a 50% chance of a favorable ruling on some absurd patent, and the upside is billions of dollars in shakedown payments, backed by the authority of the judicial system, how much would a disreputable company be willing to spend on the chance of getting such a ruling? How many other companies, seeing such rulings, would try to get their own? How many cases would they bring on the chance of getting the ruling? I ask somewhat rhetorically, but of course I'm suggesting by asking the answer is "a lot" and also suspecting that there do exist people that will prop up shell companies that bring case after case after case until they get rulings that enable them to legally blackmail others.

Here's a list of at least some of the companies that fought the patent:

Google, Amazon, Adobe, CDW Corp, JCPenney, Staples and Yahoo. [1]

Well done guys. Long live the fighters!

[1] http://www.businessweek.com/news/2012-02-09/google-amazon-co...

This is important because this Texas court is not just any court but THE court where most patent law is deliberated. The fact that this was struck down here is a victory. Most of these trolls are shell corps setup by a group of lawyers with no technical council strictly to manipulate the legal system to extort money from tech companies willing to settle than battle it out in court. I hope this starts to slow the onslaught of frivolous lawsuits by wanna be lawyers. We spent Millions last year out of our R&D budget to defend ourselves from this nonsense. They target companies with potential and growth and use models to determine optimal circumstances for settlement. Maybe this will slow the destruction of innovation and American jobs driven by these greedy people. Lawyers wonder why they have a bad rap but yet they don't seem to police their own. Sadness:(

Personally, I think it's crazy that some court in Texas even gets a chance at deciding a case with a reach like this.

Heck, they were talking about basically shutting down the web or turning it into yet another "you have to pay big bucks to participate" medium of which we definitely have enough already.

Every case has to start somewhere. If the obscure court screwed up somehow, they can always appeal it up the chain.

Yes, court in Texas shall not be allowed to judge anything important ;-)

Can't believe they settled in just two hours. The claim must have been as specious as it appeared, but like most trolls, they might have lost the battle, but they'll crawl back to wherever they come from and regroup for the next battle.

Thank God. I didn't realize UCal had a stake in this. WTF? Don't they know better?

FAQ and press release from the settlement with Microsoft



Looks like the UC is not really so directly involved anymore; just taking it's cut from a patent it owns part of by virtue of the fact it owns part of its employees' inventions.

My understanding is that the person holding the patents in question came up with the "invention" while employed by UCSF.

Amusingly, ViolaWWW, one of the pieces of prior art used by the defendants, was written by a Berkeley student.

That settles it, we'd better not let students write code, in case that code invalidates patents produced by students' code.

It may be that they can't back out of their deal. Let's not be too quick to burn them in effigy.

That would strike me as worthy of a black mark by the industry---a statement that we will not hire your students if you back this stuff.

That would be an overreach, and unfairly punish some eminently-qualified grads from Berkeley and the like. I would, however, like to see some of the big boys boycott a career fair, or simply set up a stand with no attendant and a poster reading, "UC Berkeley tried to blackmail us and hold the web hostage. In response, we will not be attending this career fair." Then let the students put pressure on the administration to perform a cranio-anal extraction.

Find the right people in Cal's middle management, cold call them, and complain to them.

Also, find out who has donated large amounts of money, cold call them too, and complain to them also.

Well I'm glad to see the end of that. Its quite possible some courts (judges/juries) would not have grasped the true ramifications of this claim and may have opened a can of worms.

While I agree with you that I am glad this has basically died because I too was worried about what would happen:

It is not in the jury's remit to "grasp the true ramifications of this claim". They have to judge it based solely on the merits of the case and the law being applied.

If Eolas had a valid case then they should be paid, even if it means problems with companies that are "too big to fail" and the rest of us.

I'm glad to learn the jury made the right decision. Sometimes it seems too much to expect even that much. Something really needs to be done to fix this nature of trolling.

Maybe they're seeing so many patents they're starting to realize how many of those patents are just ... stupid?

When you're exposed to a field more (lots of cases kinda do that), you start to think more like a person in that field and suddenly previously non-obvious things are obvious!

Who, the jurors? It's unlikely any juror on this case has been a juror before in a patent case.

Perhaps, but Tyler, Texas is not a large metropolitan area, so the chances that your neighbor served on the jury of a patent trial are higher given the propensity of lawyers to sue there.

1) Predict that a new piece of technology will be used to solve a common problem (i.e. using a Facebook page as a resume).

2) Patent it.

3) ...


5) Now any juror on a case will have an opinion on IP law.

3) Wait till the patent has almost expired.

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