Bill Takes Aim At Patent Lawsuit Stupidity

give them pause to determine if they really really want to file a frivolous law suit.

and what happens when the lawsuit isn't frivolous but is brought by some "little guy" against a big corporation for stealing his novel idea and making billions on it?

The corporation can afford a covey of high priced lawyers, while the little guy can't and when the corporate legal army wins out the little guy would have to pay for the corporations lawyers.

Current Patent law is indeed broken, but as with most attempts at resolving market issues with legislation, this bill can only make it worse.

and what happens when the lawsuit isn't frivolous but is brought by some "little guy" against a big corporation for stealing his novel idea and making billions on it?

The interesting thing is that most of us would agree on who a patent troll is if we posted the facts of a case. When you try to define it with precision, the troll can tweak a few settings to get to the other side of the demarkation point. It then takes years for Congress to regroup.

Congress has dealt with other similar problems by delegating the rulemaking authority to agencies to change the criteria to deal with adaptive system abusers. For example, designer drug laws allow the DEA to ban new drugs that have certain properties even though they are not listed by name. This stops drug dealers from creating slight variations in drugs to slide around the rules. Similarly, the IRS can do this with tax structures. When people suggested a similar proposal to deal with assault weapons, people went ballistic.

If you look at many of these patent trolls, they operate out of offices the size of a shoebox (rarely a mailbox), in the Eastern District of Texas, are fully owned by lawyers who make their living representing these corporations. Since corporations are separate legal entities, they can collect attorney fees. (Someone representing themselves cannot).

My thoughts are as follows:

*We stop the trolls from getting attorney fees from the other side by allowing the court to peer through the structure and make an economic reality based test whether the lawyer and the business are largely overlapping;

*We create a special patent/copyright enforcement court that is designed for virtual litigation (appearance by teleconference, fasttracked discovery), etc.;

*We create a fast tracked first stage of litigation with limited discovery (to stop abusive discovery aimed at burdening the defendant);

*We allow damages to mitigated by proof that the infringment was untintentional and the product of good faith patent research. If the infringment is unintentional, we can offset the damages by proof of what the cost and reduced sales would be to go forward with alternate non-infringing technology. For example, Samsung quickly reworked their phones to deal with some of Apple's patent claims. In a judgment issued for an infringement, the jury should be asked to determine how many more phones would have been sold because of the infringing similarity than if the product had come to market with the non-infring interface;

*If the infringment is innocent (see above), compulsory licenses can be calculated with reference to industry standard fees with some multiplier, e.g. no more than 2.5 times what the factfinder believes comparable licenses were granted for;

Special rules should be put in place for probable trolls. I believe that the Justice Department or the Patent Office should be empowered to promulgate rules defining the ever changing characteristics of a troll and that Congress should identify the criteria with a broad brush. Trolls could further be limited to only collecting X times what they originally paid for the patent.

The interesting thing is that most of us would agree on who a patent troll is if we posted the facts of a case.

And you just proved my point.

The problem is should Tivo be allowed to fully own some of their features or just the specific software code that makes them happen. This is where the software patent issues come into play, If someone codes their own DVR should they have to pay a license fee for someone else's code that does the same thing but with a different internal process.

I would argue that your gene machine and all the patents in-between should not be granted until you have a working model. Your idea, regardless of how well you or a lawyer or an engineer can put it down on paper is nothing but a dream until you actually have something tangent that can do what you "think" it can do.

Concepts, theories and hypotheticals should not be patented even if they can be proven with mathematics and physics unless you have a working model.

If in the process of making the gene machine you create something else (the in-between) then that should be patented on its own merit.

Software along with their processes and results which are the end product of software should NEVER be patented for any reason. It is code and should be copyrighted. This would and should allow others to create the same end results, but require they write their own code for doing so.

Software patents only exist to provide something to sue people over. A good example is the constant rounds of bullshit in the smartphone industry.

Like it or not, everyone gets their day in court. There is a reason that people don't automatically have to pay defense costs when they lose. It shuts down the legal system to all but the wealthy.

Lawsuit losers SHOULD pay - it would cut way back on meritless lawsuits.