Judges Want To Make Life Harder On Patent Trolls: Want Them To Actually Have To Explain What Infringement Happened

from the twiqbal dept

I'd missed this one, but Cory Doctorow over at BoingBoing points our attention to the fact that, last month, the Judicial Conference voted to make a little-noticed change in patent lawsuits that should serve to make life more difficult for patent trolls. The details here are more complex than necessary, but the short version is that, under current rules, to file a patent infringement case, the initial complaint can be almost entirely bare bones: basically naming the plaintiff, defendant, patent and saying there's infringement, but providing no real details on the infringement. That aids patent trolls, who often will file questionable lawsuits without even telling the defendant where the infringement occurs -- leading defendants to have to go into the case a bit blind, and making it more appealing to just settle.

A key part of the patent reform proposal that everyone thought was going to happen earlier this year was to change those rules to require the patent holder to have to actually explain where the infringement occurred -- basically inching up the bar to filing a patent lawsuit. Then the trial lawyers came in and killed patent reform dead with a call to Senator Harry Reid. However, it looks like the courts may want to take this matter into their own hands. The Judicial Conference sets the rules by which the courts work under, and it appears that it's basically decided to implement this change in rules (bringing patent lawsuits more in line with most regular lawsuits) anyway, no matter what happens with Congress, though the Supreme Court needs to approve first. Given the way the Supreme Court has handled patent cases lately, it would be surprising if they had a problem with this particular change.

Slowly, but surely, it looks like the courts themselves are chipping away at the setup that makes patent trolling so profitable.

Filed Under: claims, judicial conference, patent reform, patent trolls, patents


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  • icon
    That One Guy (profile), 16 Oct 2014 @ 12:04am

    The fact that this even needs to be addressed is all sorts of screwed up. 'Trust us your honor, they're guilty, no need for us to actually prove it' should never have been acceptable.

    Hopefully the SC agrees and authorizes the (incredibly overdue) change.

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 17 Oct 2014 @ 3:00am

      Re:

      Beats me why this simply isn't the norm for ages now. I would go further and make them also present either a prototype or a detailed explanation of the thing working and why there isn't any prior art or anything that invalidates their patent. This would single handedly kill trolls and greatly improve the quality of the patents.

      reply to this | link to this | view in chronology ]

  • icon
    Anon E. Mous (profile), 16 Oct 2014 @ 12:07am

    While getting the trolls to explain it in their court documents is a good step, I am not so sure many Magistrates or Judges will understand it.

    If you look at some of the information used to file for the patent , there are a endless stream of applications where there is a bunch of supposedly technical gobbledygook that drones on and on without really specifically saying what said patent does.

    Is this a great step. yes I believe so. The problem is that some courts are so over burdened that they just seem to rubber stamp anything that comes there way. Lets hope this helps.

    reply to this | link to this | view in chronology ]

    • icon
      elemecca (profile), 16 Oct 2014 @ 12:46am

      Re:

      This isn't good so much because the judiciary will be able to toss out bad suits on their own (though that would be awesome). It's good because it means that the initial complaint the defendant gets served with has to tell them what they're accused of doing wrong. Right now it's not uncommon for defendants to not know which of their products or processes is accused of infringing which patent claims until discovery, hundreds of thousands of dollars into the suit. If this goes through they'll hopefully have the ammunition to get the suit dismissed much earlier in the process.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Oct 2014 @ 9:00am

        Re: Re:

        This also reduces the trolls ability to troll.

        They file in hopes the company will just settle, they don't have to provide any details as to the merit of their claim to file.

        If they are now required to show what is infringing and how they will be less likely to file bogus suits that can easily be dismissed thus reducing the trolling aspect of patent suits.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 16 Oct 2014 @ 4:22pm

          Re: Re: Re:

          Not only that, but if they file a suit with technobabble that doesn't actually describe anything, after the defendant is served, they can tell the court, "excuse me your honor, the plaintiff's suit doesn't actually point to any infringement on our part" at which point the case gets thrown out with prejudice (because the plaintiff not only didn't comply with the directives, but made the court look foolish).

          reply to this | link to this | view in chronology ]

  • icon
    orbitalinsertion (profile), 16 Oct 2014 @ 12:19am

    Activist judges!

    OK, that's out of my system now.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Oct 2014 @ 5:23am

    Wait a sec ... you have to present evidence? When did this happen?
    Oh - man! This is the end of the world. No more free ride for Mr. Entitlement IP holder. They actually have to prove something in a court of law where the defendant is represented and stuff. Oh boy, shit got real yo.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Oct 2014 @ 7:16am

    "...basically inching up the bar to filing a patent lawsuit"

    Actually, it was much, much more demanding, to a point where even meritorious suits might have difficulty getting past the pleading stage because discovery would be necessary to answer critical questions relevant to infringement.

    One would like to think that a patentee can look at a competitive offering and immediately discern if infringement is taking place. Unfortunately, in many instances that is simply not at all possible. Product by process is one instance that quickly comes to mind. The practice of a method is yet another.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Oct 2014 @ 7:51am

    1. Hooray!

    2. About fucking time.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Oct 2014 @ 8:38am

    I think there should be a provision that if you sue for patent infringement you must be making a product that uses the patent.

    The whole point of having statutory damages is (or should be) that it can be difficult to evaluate actual damages to your product. So to facilitate that we just have statutory damages to accommodate the potential actual damages while saving the very difficult to impossible costs of trying to evaluate the actual damages.

    but if you're not selling a product related to the patent then how can someone else that's selling it cause any damages whatsoever to your product? They can't, you're not selling anything to infringe upon. So there should be no damages.

    So in addition to pointing out which of the defendant's product(s), which aspect of that product are infringing and which patent(s), and which part of the patent(s), are being infringed upon the plaintiff should also point out which of the plaintiffs products (and which aspect of those products) is being infringed upon. If you're not selling a product that covers the relevant patent then there are no potential damages to sue for and so statutory damages, to account for potential actual damages, don't make sense since there are no potential actual damages.

    reply to this | link to this | view in chronology ]

  • identicon
    Reality bites, 16 Oct 2014 @ 9:13am

    the only reason trolls exist is because they haven't been treated correctly.

    Trolls have a lead deficiency, once they are given their lead injection they aren't trolls anymore.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    staff, 16 Oct 2014 @ 12:20pm

    more dissembling by Masnick

    'Judges Want To Make Life Harder On Patent Trolls: Want Them To Actually Have To Explain What Infringement Happened'

    Often in patent infringement cases the patentee must first collect confidential information from the suspected infringer before they can conclude infringement is present. All you and these other large infringer puppets know about patents is...you don't have any.

    infringers and their paid puppets definition of ‘patent troll’:

    anyone who sues us for stealing their invention

    Can you say dissemble? All this talk about trolls and so called ‘patent reform’ is just spin control by large infringers and their paid puppets to cover up their theft. If you tell a lie often enough and can dupe others to repeat that lie, eventually it is accepted as fact. As Mark Twain said, 'truth is not hard to kill, and (that) a lie well told is immortal'. Those who use the amorphous phrase 'patent troll' expose themselves as thieves, duped, or doped and perpetuate the lie.

    http://www.npr.org/player/v2/mediaPlayer.html?action=1&t=1&islist=false&id=276448190& ;m=276545654&live=1
    http://www.npr.org/2013/11/06/243022966/secret-persuasion-how-big-campaign-do nors-stay-anonymous

    Property rights and jobs in America are now hanging from a frayed thread. These changes are killing our small and startup firms and the jobs they would have created. When government fails to uniformly and justly enforce property rights they promote unrest and insurrection. Some in Congress and the White House continue to follow the lead of their giant multinational campaign donors like lambs...pulling America along to the slaughter.

    The patent system now teeters on the brink of lawlessness. Call it what you will...patent hoarder, patent troll, non-practicing entity, shell company, etc. It all means one thing: “we’re using your invention and we’re not going to stop or pay”. It’s a pure red herring by large invention thieves and their paid puppets to kill any inventor support system. Their goal is to legalize theft. The fact is, many of the large multinationals and their puppets who defame inventors in this way themselves make no products in the US or create any American jobs and it is their continued blatant theft which makes it impossible for the true creators to do so. To infringers the only patents that are legitimate are their own -if they have any. Meanwhile, the huge multinationals ship more and more US jobs overseas.

    It’s about property rights. They should not only be for the rich and powerful -campaign contributors. America’s founders: Jefferson, Franklin, Madison and others felt so strongly about the rights of inventors that they recognized and incorporated inventors rights to their creations and discoveries into the Constitution.

    From ‘Section 8 - Powers of Congress:
    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;’

    They understood the trade off. Inventors are given a limited monopoly and in turn society gets the benefits of their inventions (telephone, computer, airplane, automobile, lighting, etc) into perpetuity and the jobs the commercialization of those inventions bring. For 200 years the patent system has not only fueled the US economy, but the world’s. If we weaken the patent system, we force inventors underground like Stradivarius (anyone know how to make a Stradivarius violin?) and in turn weaken our economy and job creation. Worse yet, we destroy the American dream -the ability to prosper from our ingenuity for the benefit of our families and communities. To kill or weaken the patent system is to kill all our futures. Show me a country with weak or ineffective property rights and I’ll show you a weak economy with high unemployment. If we cannot own the product of our minds or labors, what can we be said to truly own? Life and liberty are fundamentally tied to and in fact based on property rights. Our very lives are inseparably tied to our property.

    Prior to the Supreme Court case eBay v Mercexchange, small entities had a viable chance at commercializing their inventions. If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it. Unfortunately, injunctions are often no longer available to small entity inventors because of the eBay decision so we have no fair chance to compete with much larger entities who are now free to use our inventions. Essentially, large infringers now have your gun and all the bullets. Worse yet, inability to commercialize means those same small entities will not be hiring new employees to roll out their products and services. And now those same parties who killed injunctions for small entities and thus blocked any fair chance at commercializing now complain that small entity inventors are not commercializing. They created the problem and now they want to blame small entities for it. What dissembling! If you don’t like this state of affairs (your unemployment is running out), tell your Congress member. Then maybe we can get some sense back into the patent system with injunctions fully enforceable on all infringers by all patentees, large and small.

    Those wishing to help fight big business giveaways should contact us as below and join the fight as we are building a network of inventors and other stakeholders to lobby Congress to restore property rights for all patent owners -large and small.

    For the truth about trolls and so-called patent reform, please see http://truereform.piausa.org/default.html#pt.
    http://piausa.wordpress.com/
    http://www.kentucky.com/2014/05/27/3260938/george-ward-patent-reform-cou ld.html?sp=/99/349/
    http://www.hoover.org/publications/defining-ideas/article/142741

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Oct 2014 @ 5:34pm

      Re: more cocksucking by Ronald J. Riley

      BAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA

      *breathes*

      HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA

      What's funny is that aside from your usual copypasted junk, your only altered paragraph doesn't explain shit - except that you have to scour for information on whomever's the unlucky sap you plan on suing.

      Owned, jackass!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Oct 2014 @ 10:12pm

      Re: more dissembling by Masnick

      Awwww, has the little troll lost it's patents? Awww

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Oct 2014 @ 10:24pm

      Re: more dissembling by Masnick

      anyone know how to make a Stradivarius violin?

      Simple, ask one of the members of the Stradivarius family to make you one.

      try harder troll

      reply to this | link to this | view in chronology ]

      • identicon
        Pragmatic, 21 Oct 2014 @ 3:13am

        Re: Re: more dissembling by Masnick

        Actually, the argument falls flat because the wood used at the time was of a particular quality that was caused by atmospheric conditions that don't exist now, to wit, a sort of mini ice age. No patents were involved. I'm not aware of any copyright or patents on musical instruments, does anyone know of any?

        reply to this | link to this | view in chronology ]

    • identicon
      Justin Olbrantz (Quantam), 18 Oct 2014 @ 12:35am

      Re: more dissembling by Masnick

      "Often in patent infringement cases the patentee must first collect confidential information from the suspected infringer before they can conclude infringement is present."

      There is an age-old term for what you described, and it isn't "patent infringement lawsuit". It's "fishing expedition". If you don't have the cards, all you're doing is bluffing; and in the court of law that isn't an accepted part of the game.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Oct 2014 @ 4:48am

    Shame on you all for mocking this fine gentleperson who has performed a noble deed. We now know what "dissembling" truly means. Why, what finer example could you ask than this fine post? It is filled with inaccuracies, misinterpretations an logical non sequiturs yet somehow woven to appear a passionate and almost plausible defense of the truly indefensible. Bravo, excellent effort.

    But I'm still not interested in that prime Floridian development "land".

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Oct 2014 @ 5:19am

      Re:

      1) inaccuracies - examples to be provided, never.
      2) misinterpretations - examples to be provided, never.
      3) logical non sequiturs - examples to be provided, never.


      Are you implying that plaintiff does not need to explain anything to the court?

      Why yes, of course the court should simply roll over and do what it's told. What is so difficult about that?
      lol

      reply to this | link to this | view in chronology ]


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