Getting him a latte shouldn’t be hard, and he’s going to need one to stay awake for the discussion of how his proposed bill isn’t worth the disk drive space it takes up. I don’t mean to say that patent law is boring but….zzzz….it’s lots of legal stuff and…*nod*..*snort*…then the sheep went over the fence….and…
Ho, hey, what just happened there?
If you can manage to stay awake to read the Goodlatte Bill Proposal (or isn’t that what a bill is? a proposed law? I really should have paid attention to Schoolhouse Rock) then you’ll find loopholes and balderdash designed once again to make people think that the government actually cares to solve this problem. (Hint: they don’t.)
Let’s start off with page three, lines one and two, emphasis mine:
1 cross-claim for patent infringement, unless the informa-
2 tion is not reasonable accessible, the following:
First off, typo. Reasonably accessible. Don’t I pay you enough taxes to hire a proofreader? Either way, since when has anyone known a patent troll to be reasonable? This is not just a loophole, it’s a giant gaping chasm you’ve left open to interpretation by a group of people who think nothing’s wrong with extorting money from Grandma Mimma who bought a printer/fax/scanner machine to use to run her quilt-selling store on Etsy. “Reasonable”? Not bloody likely.
This bill, like a few others out there, bangs the “Loser Pays” drum:
(a) AWARD.—The court shall award, to a prevailing
25 party, reasonable fees and other expenses incurred by that
1 party in connection with a civil action in which any party
2 asserts a claim for relief arising under any Act of Con-
3 gress relating to patents, unless the court finds that the
4 position of the nonprevailing party or parties was substan-
5 tially justified or that special circumstances make an
6 award unjust.
Here again, there’s a way out for the trolls. They’ll argue all day long that there are “substantially justified” or “special circumstances” that prevent them from paying. Besides which, as I’ve argued before, they’ll hide their assets and claim you can’t get blood from a turnip. I like the theory of loser pays as it applies to trolls, but the reality will not bear out the way you want. What will actually happen is it will prevent small inventors who are really truly being infringed on from taking the risk of a lawsuit. Strike 1 1/2, Bob.
Why 1 1/2? Well, because this is a pretty decent addendum:
‘‘(b) RECOVERY.—If a nonprevailing party is unable
8 to pay reasonable costs and other expenses awarded by
9 the court pursuant to subsection (a), the court may make
10 the reasonable costs and other expenses recoverable
11 against any interested party joined pursuant to section
What I read here is that, since all interested parties would be required to be named, when Lodsys claims it can’t pay the bills on account of the high rent it has to pay for those swanky offices in Marshall, TX, the prevailing party can go after Intellectual Ventures. That’s got some teeth.
“Reform should include demand letter transparency …,”
Totally agree. I realize the Goodlatte bill puts the hurt on long and drawn out discovery requirements, which is the stage that kills a lot of defendants. But wouldn’t it be better to resolve some of this prior to the suit actually being filed? If we can continue to gather information on the demands the trolls are making by tracking their threatening “pre-suit communications” at That Patent Tool, I maintain that we can rally the troops and shut these guys down. All you need is a solid set of data and communication between recipients and you’ve got yourself a way to collaborate and refuse to let these trolls even get to the litigation stage.
It’s great (I think) that the government is all over the patent trolling problem because it’s real, and it’s costing people money and companies. But what I remain unconvinced of is that these bills aren’t going to do more harm than good, and end up being repealed or modified in some way that’s going to cost us yet more money as taxpayers.
As always, I remain a fan of market-based solutions, though I commend Senator Goodlatte for a) trying and b) having a great name that I can poke fun at (even though it’s really pronounced “Goodlat“, and not “lottay” like the drink, which is a total bummer).