Visiting Fairy Tales: Patent Trolls

    Patent trolls have long appeared and still quite often appear on the first lines in the news when lawsuits are directed against industrial giants such as Apple, Microsoft, Samsung and others. However, not only large corporations suffer from patent trolls, but also small companies and startups. This is due to the fact that small and new companies simply do not have the resources to resist trolls, because in addition to the high cost of litigation, you must be able to defend your rights to products, which is usually difficult for startups to take into account the lack of protection of intellectual property (IP).

    One of the good articles on strategies for responding to letters of claim from parasites like trolls has been publishedon the Kaspersky Lab’s blog and is based on the company's experience. In my article, I want to highlight the topic in terms of helping companies in this difficult matter.

    Supporting Communities

    It is clear that not every company dares to go against the patent troll. How to increase the chances of small enterprises in the fight against trolls? For this, various communities were created, for example, PatentShield , LOT Network , The Law School Patent Troll Defense Network and others.

    Developers and small businesses got the opportunity to use the services of law schools and lawyers that participate in The Law School Patent Troll Defense Network for free. To do this, send a request to the community website, describing the activities of the company and the current situation. The community has been formed and is managed today by the Application Developers Alliance. Helping small businesses circumvent the situation of paying royalties to patent trolls contributes to a more global goal, namely to make patent trolling less profitable and, as a result, force investors to refuse to finance trolls.

    Patent shieldprovides access to the collection of patent portfolios that will be needed to deal with claims from patent trolls. Startups will be able to apply patents written by experienced companies and research institutes against the troll in court proceedings. PatentShield is managed by Intertrust as part of the holding and offers membership for a certain amount, which depends on the development of the business, the company's products and the risk of potential litigation. To date, the proposed patents are owned by Intertrust and Google, but some of them are acquired from other large companies. In addition, members of this organization will have access to recommendations for building an IP protection strategy from a team of Intertrust IP specialists.

    An interesting fact is that Google is also a member of another patent troll network: LOT (License on Transfer) Network. The principle of operation of this network is different and consists in preventing possible attacks. Namely, upon entry into the community, an agreement is signed and if the patents of one of the community members fall into the patent troll in one way or another, then the remaining participants will have automatic licensing of these patents. This means that they cannot be applied in court against companies that have signed the agreement. Licensing takes effect only if IP is transferred to the patent troll (designated as Patent Assertion Entity in the agreement). Membership in such a community also requires certain costs,

    Legislative regulation

    In the conversation about patent trolls, many express the opinion that it is necessary to ban software patents, backing it up with words no patents, no problems with trolls. I think differently, software patents also protect the intellectual property of developers as in other areas of invention. The problem of the emergence of patent trolls lies not in the very fact of the existence of IP protection, but in the absence of regulation of such manipulations by the legislation.

    For example, in the United States, more and more bills are currently under consideration in Congress, 7 legislative proposals put forward by the White House, not to mention one law at the state level. But unfortunately, none of them solves the specific problem of the breadth of software patents and patent trolls, but only prove the imperfection of the existing patent system.

    The Electronic Frontier Foundation (EFF, the leading non-profit organization in the United States protecting civil liberties in the digital world) advocates for the following measures to ensure proper legislative regulation:

    Change fees - Introduce a mandatory bail claimant in case of litigation.

    Transparency :

    • Real Stakeholders — Respondents must know each party that financially benefits from a patent lawsuit;
    • Tracking claims letters - letters in the public domain will help companies identify trends and unite against one troll in a certain area;
    • Clarity of application - patent claims must be clear and concise what and how specifically is violated. There are times when patent trolls simply throw a pool of patents at a company, claiming that it violates them all.

    Revision of patent validity - Under Section 18 of the American Invents Act, anyone who is threatened with a lawsuit may request a review of the validity of certain categories of patents from the patent office. However, this does not apply to software patents, and is also a temporary point, namely until 2020.

    • Substantive statement - patenting a specific solution. As you know, software patents can be very wide and cover many solutions to one problem. It is proposed to narrow down the requirements for patenting software.

    The problem of patent trolls continues to annoy companies in the electronic field, but work on the solution is in full swing and more communities and initiatives appear to support small businesses that find themselves in sad situations. It must be remembered that you can’t give up, and fight back parasites using all possible methods.

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