Defense Against the Dark Arts (You Knew Someone Was Going to Use That)

Cease and desist letter from the Harry Potter people in my mailbox in 5, 4, 3…

Or is this considered “Fair Use”?  I don’t know, copyright isn’t really my thing.  I’d have to get the creator of the Comic Constitution for advice on that.

On March 27th, Jeremy P. Oczek wrote this article about defending against patent trolls.

To defend the case, even if the case is bogus, can be quite expensive, potentially costing your company millions of dollars.

This is exactly the issue that so many of us troll-haters have. We all know that suing for patent infringement is a legal remedy provided by the US Constitution.  But the typical troll goes after companies for crap patents.  Crappy patents?  Patents that they know are dubious at best, is the point.

I want to highlight this:

They know the thought process that companies go through when assessing a newly filed patent lawsuit: What is the amount at risk? How much will it cost us to defend the case? Can we settle the case for less than it will cost to defend the case?

because the thought process that companies go through probably sounds more like this:

OMG OMG OMG!!  What fresh hell is this??  Where’s my attorney?  Get me my attorney, get me my accountant!  Do you have the Beatles White album?  Nevermind, get me a glass of hot fat, and bring me the head of Alfredo Garcia while you’re out there...Where’s my highball glass and the scotch? I need a drink…

Which is to say, they panic.  And Mr. Oczek is 100% right when he says that that is exactly the response the NPE/PAE/Trolls are after.  The more off guard and unsettled they can get you the easier is for them to extract their extortionistic fees.   <— I moonlight as a wordsmith.  True story.

Now, Jeremy’s argument is that one reason the cost to defend against these suits is so high is the price of designer attorneys:

Patent trolls salivate when companies hire expensive lawyers to defend patent lawsuits. …

But this approach doesn’t work with trolls. They aren’t afraid of going up  against any firm, and usually interpret the hiring of expensive counsel to mean: “If you’re willing to pay high billing rates to outside counsel, then you’re more likely to pay our high settlement demands.”

In other words, you bring in the top Jedi Knight like Luke Skywalker and his band of rebels and they counter with Jabba the Hutt, who pushes a little button next to that ugly, screeching, Chihuahua-looking pet of his and sends your Jedi ass into a pit full of angry Rancor and then when you manage to get out of that mess, he decides to send you and your thawed-out mercenary, his giant pet dog, and his princess girlfriend into an upside down octopus out in the middle of the desert, all of which costs you tons of money and assets and even when you win, you still have to de-sand your R2 unit.

Digression aside, there’s no question he’s right about that.  He says you can get just as good of representation for less of an hourly rate by going with a smaller firm and/or to some sort of alternative fee schedule.  Which, by the way, is the billable hour still rocking in the free world?  Law firms are seriously still doing that?  {scratching head}

I like his way of thinking and troll targets, especially the mid and lower tiered demand letter recipients who don’t have high-dollar counsel on retainer would do very well to pay attention.

Beyond all that though, I think that Colleen Chien has got a fantastic idea when she says that we could probably head off a lot of the panic or fear-driven responses  to trolls if only the recipients of demand letters understood their options better.  Letters from lawyers scare people, that’s the bottom line.  Maybe it’s because I worked with them for so long but I came to see that most lawyers really are people too so I’m not 100% sure why seeing a law firm name in the return address is so frightening.  Then again I’ve never been sued (as far as you know).

I think the article and Colleen’s ideas point to something interesting that heretofore I hadn’t really thought about, which is that a lot of what drives the trolls is the reaction they get.  If people would stop panicking, understand their options and when to use which ones, or alternatively pull a William Wallace and fight to the death, it might just change the behavior of the other guy.

I haven’t read all the books because the dementors in the Prisoner of Azkaban scared the living daylights out of me.  But surely there is more than one defense against the Dark Arts?  I think evaluating options upon receipt of a demand letter, and making sure you’re getting good value for your outside counsel are two good ones to start with.

Just sayin’,


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