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Kendall Scott

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Patent trolls?

I heard about patent trolls on This American Life and I found the idea of lawyers sucking start ups dry horrifying. I am curious, besides those making money doing the suing, are there any supporters for patent trolls?

I also thought this would be a good chance to share a link to advocate changing the law (from change.org):
"The SHIELD Act is a clever piece of legislation introduced by by Rep. Peter DeFazio (D-OR) and Rep. Jason Chaffetz (R-UT). The backronym stands for Saving High-Tech Innovators from Egregious Legal Disputes. Under the Act, if the patent troll loses in court because the patent is found to be invalid or there is no infringement, then it pays the other side’s costs and legal fees, which often stretch into the millions of dollars. This "fee shifting" system would empower innovators to fight back, while discouraging trolls from threatening lawsuits to start. Please support this the SHIELD act to stop patent trolls!"
https://www.change.org/petitions/congress-stop-patent-trolls
The SHIELD Act: http://www.gpo.gov/fdsys/pkg/BILLS-112hr6245ih/pdf/BILLS-112hr6245ih.pdf

Topics: patent law
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    Jun 16 2013: Regarding "if the patent troll loses... it pays the other side’s costs and legal fees".

    The fundamental problem here is that it takes money and time to fight it to get to the point where a small business gets its money back. The main asset of small businesses is time. The second is money. A small business who devotes significant time to a lawsuit is unlikely to be successful in being a business. That solution is not a realistic solution.
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      Jun 16 2013: That is a really great point. They mentioned the cost in the petition
      "According to the most recent AIPILA‘s Report of the Economic Survey, the average cost of defending patent suits with less than $1 million at risk is $650,000; the cost of defending patents suits with $1 million to $25 million at risk is about $2,500,000; and the cost of defending patent suits with more than $25 million at risk is over $5 million."
      From what I read of the law "the party alleging the infringement of the patent did not have a reasonable likelihood of succeeding, the court may award the recovery of full costs to the prevailing party", I think that could mean that the fees are assigned before the actual battle in court takes place. I am no lawyer, so I am not sure.
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      Jun 16 2013: That is an interesting point LaMar.
      From what I have read, the law would give defendants and avenue to recoup legal fees after winning, it wouldn't be an automatic given though.
      "‘(a) In General- Notwithstanding section 285, in an action disputing the validity or alleging the infringement of a computer hardware or software patent, upon making a determination that the party alleging the infringement of the patent did not have a reasonable likelihood of succeeding, the court may award the recovery of full costs to the prevailing party, including reasonable attorney’s fees, other than the United States."
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          Jun 16 2013: I heard something similar in a blog I read (that it supports big corps more than small businesses). Is congress capable of doing anything if their pockets aren't getting lined by somebody? That is the real question :/

          I don't see that part of it, could you point me to where it is biased toward large corporations?
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    Jun 13 2013: I think it's better to move away from the whole patent idea and have Creative Commons instead.

    TED Talks on patents http://www.ted.com/talks/kirby_ferguson_embrace_the_remix.html
    http://www.ted.com/talks/drew_curtis_how_i_beat_a_patent_troll.html

    Everything is a remix series by TED Speaker Kirby Ferguson http://everythingisaremix.info/watch-the-series/

    Creative Commons: http://creativecommons.org/
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      Jun 13 2013: I listened to both of these TEDs, thank you for sharing them. They both seemed to fall in line with what I heard on the This American Life podcast.

      I think creative commons is an interesting solution,I am not sure if creative commons would work well for technology within a capitalist country. I think it could have potential within a different economic system. On Larry Lessig's (the guy who came up with the creative commons solution) bio it says that he is currently working on fixing the broken United States political system. I couldn't find any particulars. Here is his talk: http://www.ted.com/talks/larry_lessig_says_the_law_is_strangling_creativity.html

      I think the problem in the U.S. is that pharmaceutical companies have a TON of political power and they like strong patents. I am not sure there would be any movement to change the patent laws even if there were a lot of citizens in an uproar over it.
  • Jun 13 2013: Sure? Really? Maybe the problem is patent law itself. See Hayek the Road to Serfdom and Ravi Batra The pooring of America.
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      Jun 13 2013: George, as you are a lawyer, maybe you could provide a couple of sentence summary of the case each of these books makes.
      • Jun 14 2013: Hayek The main problems with America are patent law and corporations. and other stuff but that was most interesting as it is on Paul Ryan's reading list.
        Ravi Batra a conservative Republican and economics professor at SMU suggested that we need higher tariffs, more rigorous enforcement of antitrust law., more manufacturing, and more government research.
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          Jun 16 2013: To that point, a good book to read is "Why Nations Fail" by DARON ACEMOGLU and James A. Robinson. It addresses the elements which constrict certain economies and make others success. They don't address patents directly, but they do talk about laws and regulation which support or undermine innovation and growth.

          I suspect they would say that a certain level of patent law is necessary.
  • Jun 17 2013: Good point Drew You would need someone smarter than me to do the analysis. I will say that in the mid-seventies as a studentatThe University of Texas Law School I thought the 2nd circuit was too hard of patents. Now I feel they were right.
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    Jun 13 2013: I should say that I got the information I currently have on patent trolls from an episode of This American Life: http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack
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    Jun 13 2013: When I read the title 'Patent Trolls' I thought u were referring to this http://www.economist.com/blogs/babbage/2013/06/invention
    Nothing to do with law and lawyers - its actually about using a bot to find and highlight the very few patents that are actually of any interest to society.