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10.17.19

There Won’t be Patent Justice Until Patent Trolling Becomes Completely and Totally Extinct

Posted in Courtroom, Patents at 8:30 am by Dr. Roy Schestowitz

If the system exists to reward innovation and not punish the falsely-accused

A hanging snake

Summary: SLAPP-like behaviour and extortion/blackmail tactics using patent monopolies are a stain on the patent system; it’s time to adopt measures to stop these things once and for all, bearing in mind they’re inherently antithetical to the goal/s of the patent system and therefore discourage public support for this whole system

THE POSITION that patent trolls ought not exist is not a controversial one. People who never invented or created anything go after those who do; many of the underlying patents are merely purchased — a passage of assignment that probably oughtn’t be permitted. The key concept behind patents and rationale for their existence demand that the end goal should be innovation, progress of science. Sharing of knowledge/methods/understanding can be mutually and collectively beneficial.

The United States has thankfully weakened patent trolls; some went out of ‘business’, some barely survive and others suffered in the ‘sales’ department (selling ‘protection’), quite severely in fact. A lot of trolls we used to cover no longer exist. They don’t formally announce shutdown, but it’s clear that they no longer operate, i.e. no new lawsuits are filed (that’s their sole mode of operation).

As expected, RPX has been waning. We wrote about this several times in recent years. It became less relevant because the US patent system ‘tightened’ and litigation numbers collapsed. It did better when there were lots of patent trolls around. It profits from their existence and patent trolls are like an ally. These trolls, referred to by another name, NPEs, have been mentioned by RPX some ago as follows:

Litigation finance firms have experienced record fundraising in recent years, with private equity firms and hedge funds looking for opportunities to invest in uncorrelated assets that can withstand, or even perform well, in the next economic downturn. With large amounts of capital on hand, and therefore fewer concerns about diversifying their investments, multi-strategy funds are proving to be attractive investment partners for standalone litigation funders. Through such partnerships, a new breed of NPEs has emerged—one backed by more copious and patient capital than those of years past. This article, the first in a series covering the evolving sources of capital for NPEs today, takes a look at two private equity firms and a hedge fund backing notable NPE campaigns.

“12 of the 17 patent suits filed today were filed by #patenttrolls, according to RPX Corp.,” said one Twitter account. “That’s 71%.”

“It’s a very costly thing.”‘Only’ 71%. Sometimes it’s 100%. It used to be even higher about half a decade ago. The back yard of patent trolls is still seeing more software patents granted by the USPTO (patents which courts would likely reject, no doubt even in Texas). It’s a very costly thing. Most of the time wrongly-accused parties aren’t compensated, not even seeing their legal fees covered. Here with the British court system we have this issue as well. Lawyers are very expensive here and earlier this week Anthony Gold’s Robin Stewart wrote “I won in the First-tier Tribunal and the other side was unreasonable: do they have to pay my legal costs?”

Probably not. In his own words:

The Court also commented that their decision did not have the effect that pre-action costs could not be recovered, but rather costs “of and incidental to” the proceedings may include costs incurred before the commencement of the appeal.

As noted in the previous post, the EPO tried to impose severe legal costs upon me for daring to just speak about EPO abuses. EPO management acts a lot like patent trolls, not just working for trolls’ agenda and bottom line. But that’s a subject for another day.

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