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back to article Patent troll lawsuits may be on thin ice

Innovatio’s strategy of suing Wi-Fi end users might already be on uncertain ground, according to an American IP lawyer. Brad Pedersen, a partner at Patterson Thuente Christensen Pedersen and chair of the firm’s patent practice group, told The Register the form of the filings makes it clear that Innovatio is trying to work around …

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Flame

Reap this

Suing the end-user... ooo, picture pops into mind of a city lawyer crossing a half-mown field and tapping on farmer's shoulder, saying "That scythe infringes my client's patent and you'll have to pay to keep using it!" The question "How much per lawyer?" seems appropriate.

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Meh

tl;dr

As I said recently:

Oh, to be an American lawyer.

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WTF?

I'm very confused

How can the end user of a technology be the one infringing a patent?

Say for example I invent a new type of RAM, and a company rips off my patent and starts selling it as their own work.

How is it in my own corporate interest to go after the end users?

That'd be like Apple suing me for owning a Galaxy Tab, surely?

Can anyone enlighten me?

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Anonymous Coward

end user liability

"... whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent," see 35 U.S.C. 271 (a).

In this situation "uses" applies.

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Bronze badge

I'm not sure why AC above got voted down for stating the grounds on which "users" may be pursued as it does seem the law says that. One may not like it but that's what it says, and "don't shoot the messenger" seems to apply ...

http://www.uspto.gov/web/offices/pac/mpep/documents/appxl_35_U_S_C_271.htm

I expect "uses" came in as a clause for the case where there is no manufacturer per se nor anyone else to take action against, where alleged infringing use 'just came about' in an ad hoc way, such as where a manufacturing process changes to one for which a patent exists; "we simply added ingredient X at that stage".

I don't believe the "uses" clause was intended to allow individual end-users to be sued in the way the patent trolls are doing but if that's a loophole for them to exploit then one can expect them to; that's their role in life, to use every trick in the book.

They're perhaps not unlike terrorists who will kill civilians in order to influence government rather than attack a government directly.

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Hmm

that "uses" word isnt clear on its intention.

Personally, Id be inclined to believe that the term "uses" is in the context of "includes as part of something" rather than any other sense, at least in the original spirit of the law, but being the US, its any ones guess.

It just doesnt seem logical that you infringe a patent by using a patent infringing product, but then, the law isnt always logical.

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I agree in that I do not think it is meant to be used that way.

Any court that lets this go ahead are simply mad. Do they really expect every consumer of any product to make sure it does not infringe a patent of every component?

This should be the manufacturers responsibility and I hope that they get slapped down for trying this.

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Pirate

Personally, I hope that this _does_ go ahead, as it is so clearly wrong, as it may then be a catalyst for reform. It's not like the defendants count as small-business exactly.

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Bronze badge

I am puzzled by the word "uses" also.

Remember the whole Polaroid vs. Kodak instant camera patent spat. Polaroid won and Kodak were forced to buy back from end users all the cameras it had sold. Notice Polaroid didn't sue people for using the infringing cameras. They sued the manufacturer and hit them more than once, without upseting end users.

Kodak had to pay up for infringing the patent, they had to pay customers to buy back the cameras, they no doubt had to pay dealers to administer the buy back, they had to pay to dispose of all the cameras they bought back and there were probably other costs too. The end result of all this may well have been extra sales for Polaroid too. A lot of people probably went and spent their buyback cash on a Polaroid camera, I know I did.

The very fact that these people can sue end users just shows how totally fucked up US patent law is. Remember the idea of a patent is twofold. Firstly to protect the interests of the inventor and secondly to make sure that the inventions are documented. It is not supposed to be there as a way of some opportunist company making money out of the little guy.

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Facepalm

Serious suggestion

Why doesn't the law disallow infringement suits in which the patent has been sold on and the new "owner" does not itself manufacture a product that makes use of the patent?

It seems like the obvious way to outlaw trolls without penalising inventors and legitimate patent assignments.

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Devil

Because...

Someone could steal your idea under the name of company A, produce the product, e,g an Application, sell it to company B and "Go Out of Business", when in reality company B just paid some developers to steal your software.

Not that I think the American patent system is not broken, it clearly is.

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your example is conceptually wrong, methinks.

The OP's point is that to sue you must have a proven interest (ie skin in the game).

In your example, the original company robbed of its tech would STILL have a verifiable interest and be allowed to go after company A or B.

This pretty much exists in insurance contracts, whereby I can't purchase fire insurance for your house in the hope that you'll be clumsy with a lighter. I have to prove a financial interest in your property to do that.

(And that's what some peeps want to introduce on certain financial instruments to limit speculation but that's another story).

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Because a patent is as much a "product" as the actual device that utilises the thing described in the patent. Worse still, inventors who sell on their rights in an invention to someone who believes they can do a better job of getting licence fees from people using the patent would get a worse price for the patent thus losing out on the real value of their invention.

The assumption is that patent trolls are simply out there to make money but that may not always be the case. A single inventor may not have the wherewithal to pay the legal costs of recovering licence fees from people who have breached the patent and therefore they may be approached by a so called troll who offers them a cut of any penalties that they may obtain if they sell their patent to them..

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Holmes

Patent law reconsidered

Can anyone remember when patents actually encouraged innovation? The primary motives for seeking patents these days are (1) massive monopoly profits and (2) counter-threats against patent-based blackmail. Innovation? Bah, humbug.

Actually, the basic idea of a limited time monopoly is ridiculous now. For almost everything that is patented these days, 23 years is insanely long. Almost every new technology will be obsolete and superseded long before that.

My suggestion: You have to release it to the public and anyone who uses it has to acknowledge that use. Later on, and ONLY if there is a profit there, then the source of the profits will be analyzed thought an audit, the contributing factors will be identified, and some fraction of the profits will be transferred to each of the sources of the innovations in proportion to their contribution.

Not sure what the proper splits might be. Perhaps that needs to be determined at the time of the audits? Speaking as a technogeek, it just seems to me that if you make a very straightforward application of someone's innovation and make a lot of money, then you ought to retain a smaller share of that profit than if you combine a number of interesting innovations and do a lot of extra work to make the same amount of profit...

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Gold badge

"For almost everything that is patented these days, 23 years is insanely long. Almost every new technology will be obsolete and superseded long before that."

Your IT bias is showing. Stuff like new drugs may still be the preferred treatment for some condition or other 25 years after they were patented. Of course, that immediately leads *me* to the conclusion that a one-duration-fits-all approach to patent protection is wrong. Which means the system is broken, much as you describe.

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Boffin

And that's not the worst of it....

For about half the lifetime of a pharmaceutical patent, the new drug isn't even saleable - it's still being tested and approved....

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Alert

Man

It is seriously getting to the stage where you would be crazy to do business in the US of A.

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Or even to live there

if you have to do a patent search for every purchase you make to ensure that you are not a user of patented technology without license (see previous comments!).

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Silver badge

This came up decades ago with dail modem chips

The manufacturer paid for a license to make the chip. The chip was then licensed no matter how often it is resold, given away or scavenged from a skip. The legal term was patent exhaustion.

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title schmitle

“Each Best Western or Comfort Inn might try to argue that they each have to be sued individually,”

There are lots of arguments and defences available to this action. The point is, they are all going to cost the poor schmuck who dares turn to the law for help a lot of money. The western way of law has long since removed realistic access to the law for ordinary people.

In a system created by lawyers you can be damn sure that the lawyers always come out on top.

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Re: title schmitle

"The western way of law has long since removed realistic access to the law for ordinary people."

The weak point seems to me to be the fact that everyone believes that a *good* lawyer gives you an advantage. (I don't know if there is hard evidence to support this claim. I can't imagine who would have both the cash and the interest in funding such research.) This allows lawyers to charge wildly different rates for doing essentially the same job. This, in turn, means that if you are sued by a huge company, then losing will land you with their enormous legal bill. This means you need to be financially reckless to actually stand up for your rights.

You could fix the system by imposing a sensible upper limit on the liability of the losing party for the winner's costs. I'll let you figure out the likely wider consequences.

"In a system created by lawyers you can be damn sure that the lawyers always come out on top."

Oh, you already have done.

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Bronze badge

A thought

With trademarks you have to defend your trademark (and show that you do) lest it become common use and you lose control of it. To that end companies find themselves sending out strongly worded letters to others who use the trademark without correct attribution and you see the very full and complete disclaimers on fan websites ("not affiliated....etc etc")

I presume there is no similar requirement with a patent. Otherwise Innovatio would have to seek out and serve notice on every user of a allegedly infringing device, and not just pick and choose their targets.

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Boffin

Patent invalidation due to non-enforcement

graeme; see this link:

http://en.wikipedia.org/wiki/Laches_(equity)

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Boffin

And possibly closer to the point, though slimilar and related:

http://en.wikipedia.org/wiki/Estoppel_by_acquiescence

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Silver badge

Which will be first to tip the US into the stone age

lawyers or the tea party?

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Oh, definitely the tea party if voters are dumb enough to allow them to.

But have a guess at what most of the tea party affiliated politicians were doing before they became politicians. (Clue: the same thing as most politicians were doing before they became politicians. Not only do we have a legal system created by lawyers, benefiting lawyers; the rotten bastards have taken over the political system as well.)

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Silver badge

Either would be good

because once America collapses, the rest of the West follows suit. Once that happens, the whole bullshit concept of "intellectual property" goes out the window since the new superpowers, China and India, don't give a toss about the concept.

Intellectual property is simply the last gasp of a civilisation that has sold all its infrastructure and manufacturing base to third-world countries, trying to hold on to some semblance of economic significance.

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Happy

Indemnities

Often when you buy a product (software or hardware) the manufacturer provides an indemnity that says they will take responsibility for any claim made by a third party against you in respect of a breach of intellectual property rights. Therefore whilst the individual companies or defendants may be sued by this company the reality is that those defendants will contact the manufacturer to get them to take on the case. Therefore the claimant will still find itself facing the financial muscel of the manufacturer rather than Best Western or other defendant.

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re: end user liability

AC @ Thursday 6th October 2011 00:23 GMT

"... whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent," see 35 U.S.C. 271 (a).

That one word "uses" could open a right can of worms.

It's not clear on it's meaning. You could take it as the individual user of a product.

For example Apple sueing all users that use Samsung products that "infringe" on Apple patents and visa versa.

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Anonymous Coward

Actual damages?

A lot of this problem would go away if the patent holder were required to show actual damages or losses (as in many other civil cases). If you own a patent and do nothing with it, you haven't actually lost anything to an infringing manufacturer. But if you are actively using your patent, you can sue for what you lost based on what the infringing party gained.

(By the way, the same should apply to copyright. Download a song illegally? You owe $1. Make a song available for download and 1000 people copy it? You owe $1000).

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Stop

I can understand suing the company who makes a product that is legally infringing on a patent... However how can they sue someone who bought that product and is just trying to use it in its intended manner.. That would be like Ford suing the owners of GM cars for having a car built on an assembly line!

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Bronze badge

There need to be massive penalties introduced into patent law for obvious abuse of the system.

For example it seems to be standard practice for companies to sue in order to make money rather than to protect legitimate interests. That is not what patent law is supposed to be about, but that's how it's used. Speculators are going out and buying IP simply in order to try to make money from litigation rather than to use or even just licence that IP. Where it is proved that this is the case not only should the patent owner have to pay compensation to the defendant, but they should also be fined.

The fines could be used to fund the patent office. That way hopefully they could afford to properly investigate patent applications and stop granting so many stupid patents.

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Anonymous Coward

Best Westerns

Funny thing is I was part of the team that implemented high speed Internet access in the Best Western hotels. To my knowledge, much of the wifi equipment we provided was based on Broadcom chips, the original holder of the patents in question). That was many years ago, and I no longer work for them. In the case of Best Western Hotels, the troll would have to file thousands of suits as their hotels are completely independently owned and operated. There is not one corporate-owned hotel in the chain (to my knowledge)

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