On Friday, August 12, 2011 8:40:32 AM UTC+2, Cédric Beust ♔ wrote: > > >> but I'm still waiting for an answer to my straightforward challenge: > > Do explain. Let's say there is a 3 year deadline and no transfer right. A > company or an inventor comes up with an idea and patents it. > > How does a patent troll take advantage of that patent? > >
Two ways. The short version: (A) Sue company with the patent portfolio you've gathered together in this fashion. Gain majority control of company. Rebuild company as a troll subdivision. Sue some folk. Rinse and repeat for an ever growing network of trolls-owning-conquered-trolls. Slight inconvenience to the trolls, as they have to put in some work to sue with multiple separate patents. I doubt that's going to stop them, though. (B) Even simpler: just sign a contract with the guys who own the patent. There's no way the state could possibly outlaw such contracts. It's just like selling it, except with more lawyers involved, so even less money remains for those mythical only-in-the-movies hypothetical smallcorps where a software patent is legit and not some screwy replay of the cold war. For details as to why you can't write a few laws to stop (A) and (B), read on. (A) If you end up pestering smallco long enough, they'll have to file for Chapter 7. At that point, as you may well be the major creditor in this case (All those damages awarded to you, or that settlement contract they still haven't managed to pay off), or even if not, you have the cash to do it, you can offer to pay off in full all other creditors to this business and assume ownership. As the company is already in Chapter 7 mode, you can trivially reorganize that business by 'firing' some of your own legal staff and rehiring it at the newly acquired company (room to reorganize is the whole point of bankruptcy proceedings). Probably easier to turn it into a literal shell of a company with no resources to its name other than the patents, and no personnel. Then sign a contract, which you can do as owner of SmallCo, to hire TrollCo as your legal counsel for patent issues. TrollCo works on a no-cure no-pay platform, and its fees are 99.9999% of any awarded damages. Tada!! (B) Like A, but have SmallCo voluntarily decide to hire TrollCo as legal counsel, and instead go with, I dunno, 80% of damages awarded or something. Maybe TrollCo gets 99% instead and pays an up-front kickback, or invests in SmallCo. This quacks, walks, and looks just like a duck (buying the patent from SmallCo, who voluntarily sold it), but is legally indistinguishable from _EXACTLY_ how a small company with a legit patent would act if it needed to use patent law to find redress against an infringer. It's therefore the exact same as SmallCo selling its patent to TrollCo, except no law could be written to stop it. Everyone would switch to doing that in a heartbeat, and literally the only people who benefit from this are the lawyers, who need to write up a few more documents than usual. To show why this is, here's what it would look like if a SmallCo with a legit patent is honestly trying to stop LargeCo from blatantly copying their hard-won invention: SmallCo finds out LargeCo is trying to blatently copy their product and throw their marketing clout behind it to beat SmallCo at their own game. Fortunately SmallCo has a patent. However, you can't just walk down to the nearest judge office and sort it all out in 5 minutes. That kind of thing takes time and more importantly legal savvy, something virtually no SmallCos have in-house. They could now put out an ad in the paper to employ a lawyer, but that's going to take way too long. You do what you normally do in such cases: You go grab the yellow pages and call a lawyer, preferably an office that is familiar with this kind of thing. You sign a deal with them: You acquire their services in exchange for some fee, either per-hour or no-cure, no-pay. Probably the latter, because they have very little money to start out with; they spent on bunch of inventing the Invention and getting it patented, and just as they started to recoup some of their investment, LargeCo showed up and took their turf away from them. So, no-cure, no-pay it'll be. No-cure, no-pay route might mean the lawyer office gets perhaps as much as 60% of the damages awarded, as smallco gets more out of the deal than awarded damages: They get LargeCo to stop infringing, or sign a licensing deal. Note how the troll fake-buys a patent and the legit company hires a law firm to help them out scenarios are legally impossible to distinguish. See? Your proposals are horrible; they'd do far more harm than good. Just like the entire patent system. The theory behind it (protect the small guys, support inventive companies, attempt to avoid abuse of the system) is laudable, but as a practical matter it'll always do more harm than good, because abuse is impossible to legally describe without throwing the baby out with the bathwater. Abolish the entire thing; it's the least bad option. -- You received this message because you are subscribed to the Google Groups "The Java Posse" group. To view this discussion on the web visit https://groups.google.com/d/msg/javaposse/-/5DURVzQ0LGwJ. To post to this group, send email to [email protected]. To unsubscribe from this group, send email to [email protected]. For more options, visit this group at http://groups.google.com/group/javaposse?hl=en.
