Idaho Comes Out Of Left Field, Takes Its Turn At Bat Against Trolls

Idawho?  What?  Man, you gotta be awful quick around here not to miss something major.  The State of Idaho, under the governance of one Butch Otter has stepped up and passed Demand Letter legislation to attempt to thwart patent trolls.  Here’s a link to the actual bill that passed, and here’s a picture of Idaho:

Idaho, land of...waterfalls??

I’m not even kidding you, this is Idaho. I want to move there yesterday.


So it all goes swimmingly until we hit section 48-1703, which is of course the heart(land) of the matter.  Is Idaho considered the heartland, or is that parenthetical assuming too much?  Never mind.  I think a), b), and c) are very nice and reasonable and for Pete’s sake, trolls, if you can’t at least divulge that then you’re the pond scum we think you are.  But at section d), the ball seems to roll a little left of the foul line:

The demand letter demands payment of a license fee or response within an unreasonably short period of time.

You know what I can’t stand?  Imprecision.  Unprecise-ness.  When people don’t give a specific timeline.  An “unreasonably short period of time” is relative.  If I’m starving, a 90-120 minute wait is an eternity.  If I’m waiting on an appointment for a root canal, 90-120 minutes is coming up on me WAY too soon.  Why not scope it out fully?

The person offers to license the patent for an amount that is not reasonably based on the value of a license to the patent.

This has been argued before, I can’t remember where but I will hunt it down and find it.   Ah yes, here it is:  the idea was that you can’t charge more for a license to the patent than the patent itself costs.  Huh?  Of course you can.  It’s called “market value”.  I don’t think you can legislate patent market value,  besides which you used that non-specific “reasonable” word again.  If trolls were reasonable, we wouldn’t be in this position, now would we?

And really, why spell it out at all if this is the case:

Any other factor the court finds relevant.

So essentially, if we say you are trolling, you’re trolling.  Which you would think, given the level of…frustration?  Anger? Incredulity?  that I have had over the years for patent trolls that this would be a good thing to me.

But there’s this small voice in the back of my head, the part that really likes the idea of free speech and market-driven solutions, that says we ought to have stopped with just this part:

(a) The person sends a demand letter to a target without first conducting an analysis comparing the claims in the patent to the target’s products, services or technology.

(b) The demand letter does not contain the following information:

(i) The patent number;

(ii) The name and address of the patent owner or owners and assignee or assignees, if any; and

(iii) The factual allegations concerning the specific areas in which the target’s products, services and technology infringe the patent or are covered by the claims in the patent.

(c) The demand letter does not identify specific areas in which the product , services and technology are covered by the claims in the patent.

Anyone demanding anything to do with patent infringement ought to logically and transparently produce that information.  That’s reasonable.  So while I commend Idaho for being Idaho and being so pretty and being about so much more than just potatoes like we’ve all been taught since the third grade, I do think this oversteps a little bit.

I like the trend though, the trend of getting involved in the issue and trying to go at it on the state level (v. monolithic Federal reform).  Just to beat the dead horse again, I don’t like the idea of legislation to solve this problem, but when it’s smart and lays out expectations like sections a), b) and c) in the Idaho law do then I’m surprisingly for it.

And to that end, well (partially) done, Idaho!



{Awesome Idaho image found here.}

One thought on “Idaho Comes Out Of Left Field, Takes Its Turn At Bat Against Trolls

  1. Pingback: Dear Patent Reform Haters… | IP Troll Tracker

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