Perk up! Stimulating patent troll legislation brewing in Congress

Legitimate patent owners won't be substantially negatively impacted by this bill. It's a little weak (leaving the door open to the big-boy trolls who use a different bag of tricks), but it's good, robust progress.
Written by David Gewirtz, Senior Contributing Editor

Once or twice a year (if we're very, very lucky), Congress surprises me by doing something actually useful. Amidst all the crying about the NSA and the various arguments about whether we should be allowed to use the world "holiday" to describe the holiday season, one lone Congress-critter has stepped up to the coffee bar and shown his Venti-sized cups.

In this case, it's legislation (PDF) proposed by one Representative Bob Goodlatte (who, until there's a Senator Caffeine, holds the honor of being my favoritely-named politician). Goodlatte has brewed up a bill called the "Innovation Act" that aims to go after those nasty patent trolls who have a tendency to be little more than protection rackets.

Let's establish a couple of basic parameters for this discussion. First, patents are good things. Patent holders have the right to protect patents, and they should have the right to do so. That's innovation, too.

What patent trolls do is buy up a bunch of patents (often relatively weak ones) and start to spam-sue everyone in sight. This is different from, say, Microsoft, IBM, or Google buying up companies for their patents to protect their products or their products' turf. Patent trolls have been doing nasty things like dropping lawsuits on the end-users of technology.

For example, there are a bunch of lawsuits out there where users of WiFi routers (the suit is particularly going after restaurants) are being sued for using an unlicensed patent. This isn't going after Cisco or Buffalo or other router makers, it's going after the customers. This is just plain nasty.

Goodlatte's bill "espressly" goes after these two-day-old-coffee-ground-scum-in-the-bottom-of-the-cup patent trolls, by specifically stating that end-users of a product can't be sued for patent violations.

The Goodlatte stirs in some other steamy elements in his bill. For example, his bill might encourage more victims to fight, rather than settle.

Here's how it works today. Some scummy patent troll says you're in violation of their patent. If you pony up, say, five grand for a "license," they'll go away and annoy someone else. You do the math. Fighting would cost well more than $5K, so you settle, even if the troll really doesn't have much of a knobby leg to stand on.

Goodlatte's bill would allow defendants to sue for legal expenses if they win the patent case. So, if the defendant is pretty sure the case doesn't hold water, they might be more willing to fight to the tune of tens of thousands of dollars in legal fees, because they stand a chance of getting that money back and giving the patent trolls some lumps in the process. Sweet. 

Other aspects of the bill require plaintiffs to actually describe the foundation case of their lawsuit. Let's go back to Trolls 'R Us for a moment. Let's say they have a patent on the filtering technology used in coffee makers and you've been known to drip with irony.

They can sue you claiming patent violation, and then demand you turn over all sorts of detailed information about your company. This is called discovery. The trolls paw through that information in the hopes they can find something incriminating. The unfairness of the way things are today is the trolls don't really have to know that you're infringing on a patent. They can blind-spam everyone and see what low hanging fruit offers to settle.

Goodlatte's warm bill of goodness would force patent plaintiffs to make their case upfront, identify with some degree of specificity the area the defendant is infringing. This alone could kick a lot of nuisance cases right out the front door, without the opportunity to add milk or sugar, or even buy a scone.

In my opinion, legitimate patent owners won't be substantially negatively impacted by this bill. It's a little weak (leaving the door open to the big-boy trolls who use a different bag of tricks), but it's good, robust progress.

Make no beans about it, at least one politician is working when he shows up to the daily grind.

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