Patent Troll Ordered To Pay For the Costs of Fighting a Bad Patent 191
We mentioned last year that FindTheBest CEO Kevin O'Connor had taken an unusual step, when confronted with a demand by patent troll company Lumen View that the startup pay $50,000 for what struck O'Connor as a frivolous patent: He not only refused, but pledged to spend a million bucks, if necessary, to fight Lumen View in court. Now, as Ars Technica reports, O'Connor has succeeded on a grand scale. Before trouncing Lumen View in court, Ars reports, "FindTheBest had spent about $200,000 on its legal fight—not to mention the productivity lost in hundreds of work hours spent by top executives on the lawsuit, and three all-company meetings.
Now the judge overseeing the case has ruled (PDF) that it's Lumen View, not FindTheBest, that should have to pay those expenses. In a first-of-its-kind implementation of new fee-shifting rules mandated by the Supreme Court, US District Judge Denise Cote found that the Lumen View lawsuit was a 'prototypical exceptional case.'"
Newegg did that too? (Score:5, Informative)
http://soylentnews.org/article.pl?sid=14/05/23/1347205
"Unlike the other 36 codefendants, Newegg chose to go further and recover its legal fees, an action that most companies choose not to pursue because prevailing defendants were, until recently, required to demonstrate that a plaintiff acted in bad faith."
Re:Newegg did that too? (Score:5, Informative)
Re:Newegg did that too? (Score:5, Funny)
Sounds awesome except.... (Score:5, Insightful)
The Patent troll will probably just declare bankruptcy and reform under a new name, all in the same day.
Not even looking at how it is structured I'd blindly wager that they are held by no fewer than two shell companies. So the problem is that the people pulling the strings never suffer any real repercussions.
Sounds awesome except.... (Score:5, Insightful)
The problem is also that the USPO granted the patent in the first place :/
Re:Sounds awesome except.... (Score:5, Insightful)
The problem is also that the USPO granted the patent in the first place :/
Amen. The "experts" who are supposed to know better are accepting these bullshit patents all the time. The courts have to sort it out while the victims get to pay. How about we personally make the patent examiners financially liable for the costs involved in defending one of these bullshit patents. I'd bet that they'd be looking at these patents with a much more critical eye then...
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The patent examiners are approving patents figuring that the courts will sort it all out. And the courts just assume by default that the patent examiners did their job and reviewed the patent. The end result is patents that shouldn't have been granted being held up in court or requiring lengthy, expensive litigation to get invalidated. I completely agree that there needs to be some accountability in these patent applications. If one of your patent applications is overturned by the courts, you go on prob
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The problem is that there are not enough examiners. Apparently as an examiner you have about 2 minutes to look at a patent and say yay or nay.
Re:Sounds awesome except.... (Score:5, Interesting)
Re:Sounds awesome except.... (Score:5, Interesting)
This.
Patents are supposed to be provided in exchange for an inventor disclosing the invention for future public benefit. But, they're written in such an obtuse manner that they can't be used that way - they're expected to be used to extract money out of the people who come up with something similar, not provide a workable explanation of how to make something useful.
The solution is for examiners to simply outright reject any patent which isn't readily understandable. A person "skilled in the art," shouldn't have to learn deliberately obtuse patent-speak to even begin to understand a patent.
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that isn't true. under the new examiner count system allowances are weighed less. besides, you can easily get at least one continuation out of every application. so that's a count for the FAOM, the RCE, the subsequent FA and then maybe an allowance. hell, sometimes you can get 2 or more continuations on a case and something like 80+% of your counting is rejection-related.
Re:Sounds awesome except.... (Score:5, Insightful)
You're also expected to be a subject-matter-expert on every application that crosses your desk. And remember, you have 2 minutes to review an application written by lawyers paid to write confusing applications.
Well if the examiner cant understand it immediately, they should deny it, if in doubt dent. Yeah I know they get paid for approvals and all that but really, the whole system sucks, it needs pulling out, burning, having the ashes jumped on then started again using common sense.
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Well if the examiner cant understand it immediately, they should deny it, if in doubt dent. Yeah I know they get paid for approvals and all that but really, the whole system sucks, it needs pulling out, burning, having the ashes jumped on then started again using common sense.
Or if it isn't immediately obviously what the patent is even for.
Re:Sounds awesome except.... (Score:5, Insightful)
The problem is that there are not enough examiners. Apparently as an examiner you have about 2 minutes to look at a patent and say yay or nay.
Which means we either need more examiners... or fewer patent applications. What's really bad is that the current state is a vicious cycle. If any patent application is likely to be approved, then people will submit more applications, which increases the workload on patent examiners, reducing the time they have to look at a patent, and increasing the likelihood that any patent application that appears on its surface to be novel and to have referenced the appropriate prior art will be approved.
Further exacerbating the problem is the fact that patent portfolios so often do battle by "weight". If company A has 10,000 patents and company B only has 5,000 patents, it's much easier for B to pay A some money and both to enter a cross-licensing agreement than to actually determine which of the 15,000 patents has value and is relevant. So, companies incent their technical people to patent all sorts of silly crap. More applications, more applications per examiner, less time per application, lather, rinse, repeat.
IMO, we need to take a big step back and re-examine the whole system. I've been arguing for a long time that there's a very simple test we should be using to evaluate the effectiveness of the patent system which is supposed to be encouraging progress (not paying inventors, note. If that happens, well and good, but it's not the goal). The way patents are supposed to promote progress is by publishing details of the inventions so that other inventors can use the ideas and build upon them. The licensing fees patent owners can receive as a result are their incentive to publish, rather than keeping their ideas as trade secrets.
So, to see if the system is working well, we just need to look at how often the patent database is used by inventors as a resource when they're looking for solutions to problems they have. If the patent system were working, we'd see the database being mined for ideas, and companies happy to pay licensing fees for useful inventions that help them build their products more cheaply than if they'd had to invent it all themselves.
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> we just need to look at how often the patent database is used by inventors as a resource when they're looking for solutions to problems they have.
This has probably been brought up before, but typically companies will instruct their people to _not_ look at existing patents. The reason for this is that if they do create something that is similar to an existing patent, they can justifiably claim ignorance and avoid the treble damages associated with 'willful infringement'.
Re:Sounds awesome except.... (Score:4, Interesting)
Change that to their boss is fired and it might work.
Re:Sounds awesome except.... (Score:5, Insightful)
The problem is that USPTO is getting paid *more* for every approved patent than for every rejected patent application.
Like it was said before here, this is like paying fishermen for the fish they *didn't* catch.
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An easy way to fix this would be to have the USPTO grant every patent (for a fee) as it does currently, but also every time you want to sue someone, you would need an USPTO expertise granting you the right to sue.
That way, creating bad patents would cost you money ; suing for nothing would cost you money, and invalidate your patents at the same time. And the USPTO would get enough money to have real experts look at each case.
Re:Sounds awesome except.... (Score:5, Insightful)
Whilst I agree that a lot of bad patents are certainly granted, I actually think the systemic problem here is actually the review process after the initial grant.
Even if USPO was a lot better, then it is safe to assume that some crappy patents would get through when an examiner was having a bad day.
It's ok to have errors like that if you have a decent fast review process to fix mistakes.
This might be something that a judge could request before a case went to trial.
The patent would be re-reviewed by a senior patent examiner who would make an new judgement:
1) this probably should not have passed. (Inventor can appeal, but legal process assumes that patent is invalid until the appeal).
2) this is a solid patent that probably should have passed. (the infringer can appeal, but legal process assumes the patent is valid until the appeal).
given that only a tiny fraction of patents will ever get taken to court, this isn't adding a huge amount of re-work to the USPO, so they can handle this stream as a high priority.
This does somewhat reduce the certainty of the initial patent grant, but that is no bad thing.
given enough eyeballs, all claims are hollow (Score:3, Interesting)
This could all be fixed by issuing the original patent provisionally, and mandating a second, more thorough review by the patent office when the decorative sabre is first unsheathed.
Maybe the target of the action files an application for second-stage examination and ponies up a small fee on the order of $1000, then the patent office adds the patent to their public "notice of re-examination" board for sixty days to solicit any other public input. After the examination, the target recovers from the patent ho
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Another problem. If the patent troll has already threatened litigation against others, and those others caved & paid, there is ( in my opinion ) undeserved income.
If it is shown in a subsequent court case that the patent troll's claim was unsupportable, it was unsupportable to begin with, any monies paid should be reimbursed.
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Then they should pay the legal bill.
Re:Sounds awesome except.... (Score:4, Insightful)
When filing a lawsuit you generally only have to consider spending what you can afford, but having to consider what the other party can afford changes the equation dramatically.
Re:Sounds awesome except.... (Score:5, Funny)
That is part of the reason that these 'looser pays' rules make me nervous..
Would you feel better if it was 'tighter pays'?
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That is part of the reason that these 'looser pays' rules make me nervous. Truly bad actors like patent trolls have lots of ways around actually paying out, but small shops or inventors generally do not, so all it does is increase the risk associated with taking on companies with more resources. When filing a lawsuit you generally only have to consider spending what you can afford, but having to consider what the other party can afford changes the equation dramatically.
Good point. But looser pays has good aspects too. How about we modify it by requiring an escrow account where the filer is required to either put up a percentage of expected legal fees, or allow leans on the personal property of the principles of any corporation that files? Claims on personal property would require court action to prove who the person or persons who made the decision to sue was, but this would put a huge damper on marginal lawsuits.
They do this kind of thing in other countries, so Loos
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Re:Sounds awesome except.... (Score:4, Insightful)
The Patent troll will probably just declare bankruptcy and reform under a new name, all in the same day.
Not even looking at how it is structured I'd blindly wager that they are held by no fewer than two shell companies. So the problem is that the people pulling the strings never suffer any real repercussions.
What's more important than whether or not this particular company actually pays, is that the precedent is being set and the tides are shifting, hopefully making others think twice before filing frivolous lawsuits.
Re:Sounds awesome except.... (Score:5, Informative)
Re:Sounds awesome except.... (Score:5, Interesting)
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Re: Sounds awesome except.... (Score:4, Informative)
Can work. Can also fail. (Score:2)
Re:Sounds awesome except.... (Score:4, Insightful)
you need money to litigate a patent suit. if you had cash in the bank to pay the bills and it vanishes the day before you file chapter 11, the court is going to start asking questions and auditing your books
Re:Sounds awesome except.... (Score:5, Interesting)
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At first this will happen, but then judges will request a fee bond from these numbered companies, which will pay the fees to the winner if the troll loses.
The judge is aware of that, and has tools to handl (Score:2)
I'd wager that the judge is fully aware of that and has issued appropriate orders freezing assets until such time as it is determined which assets should actually be seized permanently. This judge DID just rule that Lumen View is a patent troll who is abusing the court system. Judges don't like it when you do that. Three years from now, the people involved might ultimately get their bank accounts released, but the judge knows how to make it an expensive pita to get the order overturned.
My favourite sentence (Score:5, Interesting)
My favourite sentence from the summary in the first link:
The patent troll's attorney also made the claim that calling someone a 'patent troll' was actually a 'hate crime' under 'Ninth Circuit precedent' and threatened to file criminal charges — unless they settled the civil case immediately, apologized, and gave financial compensation to the troll.
Re:My favourite sentence (Score:5, Insightful)
My favourite sentence from the summary in the first link:
The patent troll's attorney also made the claim that calling someone a 'patent troll' was actually a 'hate crime' under 'Ninth Circuit precedent' and threatened to file criminal charges — unless they settled the civil case immediately, apologized, and gave financial compensation to the troll.
That is the worst thing I've ever read!!! It's the kind of thing a lawyer should be disbarred for. The kind of thing that would make me willing to bankrupt myself and my company just to punish the company and attorney. Ugh that's the worst!!!
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How long before (Score:2)
Re:but (Score:5, Interesting)
Re:but (Score:5, Insightful)
SWAT. MPAA. RIAA. (Score:3)
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re I live, it costs more in permits than materials to build a two-bedroom house.
Bullshit.
Even in the most expensive parts of the country, you could barely manage to build an uninhabitable, unfinished shell of a house for the price of a building permit.
Re:but (Score:5, Informative)
There are some places in Canada were the permits cost are huge.. Think about a construction permit fee based on the lot size (multiple $$$ per square feet) where the minimum lot size is required to be at least something close to an hectare...
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But that's not U.S. In the U.S., I'd ballpark $1500 for a completely new house for permits in an incorporated metro area.
Re:but (Score:4, Informative)
Actual specification for that area was, in 2008, 8000 to 9000 square meters per plot; 95$ per square meter of lot size plus 150$ per square meter of habitation for the construction permit. Other requirements were two stories, full masonry, hidden garage entrance and no roof slopes at less than 12-12.
Needless to say we went somewhere else.. having had that kind of money I really would have liked to build at that place though.
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Where were you setting up? I'm in the process of looking for land and have looked at the cost of building a 40x40 house (Estimated) + 28x30 garage on a 2 acre lot. The range I was giving for a building permit was 60 000 to 80 000. This is in the GTA (Grand Toronto Area).
I can only see rates like this for building downtown Toronto or Vancouver and even that seems high. Was there a deposit included in that? I know they require a deposit in some areas. What they do is pay it back to you after they look to see
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Well, large high class development often have higher costs for those parameters. You have much less houses per linear foot of frontage, increasing the cost of bringing water, taking sewer out, and building roads. That area was rocky and had a lot of slope, thus it was easy to understand that the development costs were high, and the city can't be building this without making it back.
The promoter who was selling the plots was also the only one allowed to build in the area; or rather, he would not sell a plot
Re:but (Score:4, Interesting)
Re:but (Score:5, Informative)
Even in the most expensive parts of the country, you could barely manage to build an uninhabitable, unfinished shell of a house for the price of a building permit.
It's over $30,000 in permits to build a small two bedroom house (say, 1000 square feet) in Lake County, CA, counting the water connection fee and other bullshit. You can buy a kit home for $45/ft^2 or less. A seasoned contractor who purchases materials at the right time of year can absolutely get the materials for less. It'll be a little shit-shack of a house like virtually all of them are, made out of chipboard and sheetrock, but that's what at least nine in ten of the houses being built today are like anyway so let's not be discriminatory. And I've got to add that this is one of the cheapest parts of the state, at least, that nominally still has water. Oh, did I mention that people on municipal water are being subjected to restriction? No new wells are being permitted, so you can only build where there is municipal water, which is mostly really bad here?
Sometimes, I hope I live a long time. Sometimes, I think human lifespans are too damned long. The crusty old fucks holding up progress in this town really get my goat.
Re:but (Score:5, Interesting)
It's over $30,000 in permits to build a small two bedroom house (say, 1000 square feet) in Lake County, CA, counting the water connection fee and other bullshit.
So, not just the price of the building permit, then?
The purpose of development charges is to defray (some of) the costs to local government that they would otherwise incur for doing things like connecting your new home to the water, sewer, electrical, and any other utilities; construction of roads and streetlights; construction and purchase of additional emergency services equipment (fire trucks and fire houses, etc.); construction or enlargement of water reservoirs, sewage treatment plants, and electrical substations....
In other words, there's a heck of a lot of new infrastructure capital costs associated with new expansion of a community--costs that wouldn't be incurred without the new construction. (The rest of your comment notes how precious a commodity water is, and how difficult it is to secure access to more of it.) Instead of loading those costs on to people already living in town, the municipalities put the costs on the developers, who in turn pass them on to the new home buyers.
If you were to instead demolish an existing home and replace it with a new one of similar size, the building permit costs would be far less than $30,000, since the home would already have water, sewer, roads, electrical service....
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The purpose of development charges is to defray (some of) the costs to local government that they would otherwise incur for doing things like connecting your new home to the water, sewer, electrical, and any other utilities;
Except there is no legal way to opt out of those things, due to revenue-generating requirements in the local ordinances. So that makes it just as onerous and unnecessarily expensive. That is, you can't just say "I will be using X and Y homesteading technologies to supply my own water, sanitation, and power".
construction of roads and streetlights;
Those things are provided by local property taxes, developer stipends, and other fees unrelated to specific new home construction. And, again, there is no provision for allowing discounts / credits fo
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If you were to instead demolish an existing home and replace it with a new one of similar size, the building permit costs would be far less than $30,000, since the home would already have water, sewer, roads, electrical service....
This is actually 100% false. Instead, it would cost you more, because now you have permitting from several agencies required for the demolition and removal of debris, and you still have to pay all the concomitant costs required for new construction.
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Still, water connection is a construction cost, not a permit cost. It is a requirement to pass inspection.
Making the water connection is a construction cost. If you live near the street, it will only itself cost a few hundred dollars, including the backflow preventer that you're required to have if you live on a flood plain — and everyone not on a mountain around here pretty much does that. That is, unless you live smack in the middle of town and you're required to pay the city to dig up the street for you, or something silly like that.
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No matter how you look at it, it is not a permit cost. It is either a construction cost or a utility cost, not a permit cost.
That would be true if I were talking about making the connection in the first place, and not just paying for the permit for the connection.
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Green Efficiency (Score:2)
So even if I'm spending an extra ~$100k to build a 'water neutral' house* that doesn't need a water or sewer connection, I still need the connections to pass inspection?
*I'm either an insanely rich 'green' or disaster prepper.
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Also part of building costs are the appliances, such as stove, which are considered in most places as part of the house.
You can get crappy stuff new for a few hundred bucks. No big deal.
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re I live, it costs more in permits than materials to build a two-bedroom house.
Bullshit.
Even in the most expensive parts of the country, you could barely manage to build an uninhabitable, unfinished shell of a house for the price of a building permit.
It's not the cost of the building permit itself, per se, but the hidden cost of kickbacks...
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Well, If you build a new house in Toronto as part of a development you are forced to pay an infrastructure fee = huge cost. If you build on an existing infill lot it is a lot less, and cheapest is if you buy a house, tear it down and build a new one.
This process can take years because it is part of a scheme to increase housing costs
Re:but (Score:5, Informative)
The problem was not that it was 'hot', but that they were serving it much hotter then would be typical since that was cheaper then using cups with marginally more insulation.
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Recommended by who? Coffee should be brewed at 90C and served fresh, which means close to 90C. If it is stored colder than that, it will still be served colder than freshly brewed coffee...
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The recommended temperature is between 155 and 175 for taste and comfort considerations.
National Coffee Association [ncausa.org] - 180-185 ;)
Coffee Detective [coffeedetective.com] - People prefer coffee served at between 155-175, with a massive preference towards 175. Of course, with the popularity of iced coffee drinks today, one might extend that down to 33F.
Bunn [bunn.com]: 175-185 Holding temp, 155-175 Serving
The thing to remember about McD coffee is that people often let it sit for a bit before drinking it - reaching the office, for example.
Re: but (Score:4, Informative)
Your brewer should maintain a water temperature between 195 - 205 degrees Fahrenheit for optimal extraction. Colder water will result in flat, underextracted coffee while water that is too hot will also cause a loss of quality in the taste of the coffee. If you are brewing the coffee manually, let the water come to a full boil, but do not overboil. Turn off the heat source and allow the water to rest a minute before pouring it over the grounds.
So, Umm....
The real thing to know here is that no one at the time did not know that McDonalds coffee was really hot. Many went there for that reason. Fuck that bitch.
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You brew and serve at the same temperature, 'eh?
Anecdotal, but... (Score:2)
I'm not a coffee drinker, so I have no real interest in this, but I do remember that many restaurants in my city of the time turned down their serving temperatures to what the plaintiff's lawyers said was a good safe temperature.
Within a day coffee drinkers were screaming at the companies to turn the temperature back up, and there were even public death threats against the grannie.
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Also. Are you stating that people buy coffee at McDonalds were surprised by the temp?
If you buy really hot coffee don't fucking spill it. That bitch took away other peoples hot coffee because she was stupid and unwilling to pay for her own mistakes.
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In a place that serves a lot of coffee, so that it's always freshly brewed, into low thermal mass, insulating cups - heck yes, they will be very close together, within 10F or so.
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but do not overboil
Because there's nothing worse than burnt water.....wankers.
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Re:but (Score:4, Insightful)
The lady's labia melted to her thigh [blogspot.com.au].
It was not a frivolous law suit.
Re:but (Score:5, Informative)
That's a vast oversimplification. [stellaawards.com]
Most significantly, the temperature people generally serve coffee at is, in fact, hot enough go give third-degree burns. The general recommended temperature to store coffee at before serving is 185 degrees (farenheit, obviously). The truth is neither that the lawsuit was totally frivolous, nor that it was totally justified, but that this was a complicated situation with a number of issues that generally get glossed over.
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but that this was a complicated situation with a number of issues that generally get glossed over.
Including that there are vast numbers of people who WANT their coffee that hot, and will burn you in effigy if you suggest/force turning the temperature down. During the McD coffee lawsuit a number of stores and restaurants turned down the temperature to what the lawyers were recommending and people went insane. Boycotts, actual protests with signs, death threats against the burned woman, etc...
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If by anywhere you mean the US, yes. It would still count as cold coffee in Europe, so no, no one is going to sue over coffee colder than normal.
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As has been noted elsewhere, McDonald's hasn't changed the brew temperature for their coffee, although I thought I'd heard somewhere that they did drop the hold temperature for coffee down somewhat. I could be mistaken on that point, but I
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Silly lawsuits are the American way! It's well known all around the world.
I suggest we fix it... One simple rule change will do it. If you file suit and loose, you pay both sides' legal fees.
This would make it less likely for folks to file marginal lawsuits .
Re:but (Score:5, Insightful)
So John Smith files suit against MegaCorp Inc. (with a legitimate claim) but MegaCorp's army of lawyers buries Smith in motion after motion, draining his coffers dry. When he loses (because he doesn't have enough money left to continue) he's on the hook for the millions of dollars in expenses MegaCorp's army of accountants can somehow link to the case.
There needs to be some protection for this situation, but there also needs to be consequences for "spaghetti suing" -- filing lawsuits against anyone and everyone and seeing which ones get settled and which ones stick. Maybe a superlinear increase in the cost to file suits based on the number of suits you've filed? If you want to file suit in a given issue against two or three people, you're not going to pay much extra, but if you want to sue a hundred people separately you're going to pay through the nose. [And you're not allowed to "lump together" people without showing a good reason to lump them together.]
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Maybe a superlinear increase in the cost to file suits based on the number of suits you've filed?
Generally the law is meant to treat everyone as equal, though... (Unless, you know, you're rich, or something, but it's a nice ideal to aim for.)
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In that case, you settle out of court before you run out of money. I would suggest perhaps a maximum fee recovery, based upon the kind of suit filed, unless the winner wants to pursue their full costs. by filing suit. But in order to get your full cost back, you have to prove that you didn't drag it out and run up costs though procedural delay.
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Exceptionally prototypical.
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Parsing error detected, should be: prototypical "exceptional case"
The anti-patent-troll loser-pays law applies to "exceptional cases" (presumably from context that's a step beyond just bad faith), and this is a prototypical example.
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Oh good! So now if some Chinese copycat company with no morals rips off my company's technology and I sue them then they spend 10 million on lawyers and beat my small company, I have to pay that bill for them. Fantastic!
Not really. If you have legitimate claim and litigate in good faith then you are unlikely to get hit with paying the winner's expenses; while adding significant financial risk to the "they'll settle because it's cheaper to than fight even a bogus claim" business model.
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LOL, considering that the *US* courts are really known for finding for foreign companies.
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Okay, what if MS or Oracle were the big company in this scenario? Lawyers charge between $250 and $500 per hour. So imagine the small company loses and has to pay these lawyer costs.
This law is partially stupid. Why was a troll patent issued in the first place? It was because the USPTO has few resources. But before going to trial, can't the USPTO do a 2nd detailed review and eliminate any troll patent based on complaints from the defendants? Note troll patents are those patents that are trivial changes to
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How can you tell if they "ripped off" the technology, or they thought of the idea on their own because it really isn't that hard and shouldn't have been awarded a patent? If they can rip off the technology that easily, then maybe it was too obvious to deserve a patent? Your first mover advantage isn't any help because the idea is too easy to utilize? It doesn't take years of preparation and training? Then it shouldn't have been patented.
But that's all beside the point. We shouldn't grant monopolies o
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and what is the latest news in the prenda soap series ?...
This seems to be the latest: http://www.jdjournal.com/2014/... [jdjournal.com]
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This is not strictly losers pays. The losing side also has to be ruled to not be acting in good faith.