Top-Level and Grass-Roots Strategies to Fight Patent Trolls May Meet in the Middle

Kachina Shaw

President Obama’s summer directive to the U.S. Patent and Trademark Office to make changes specifically designed to reduce patent trolling has opened a fresh dialogue about the best strategies to pursue, while protecting innovation and legitimate challenges to patent holders. The debate has both most parties nervous and shows no sign of abating before fall arrives.

Most of the Obama administration’s proposed changes to the handling of patent infringement claims revolve around more specificity in what the patent describes and what the infringement entails. Fair enough. But relative terms like “more” are the ones that raise flags among many large patent holders and industry organizations, which fear losing some of their own ability to defend their patents.

Large tech companies are swelling the rosters of patent lobbying groups, according to one Washington Post profile, as they examine the effects of legislation like the 2011 America Invents Act, which was designed to protect against broad patent trolling, but inadvertently created many more filed suits, each aimed at one target. Groups like the Coalition for Patent Fairness seek strength in numbers and diversity, bringing together technology, media and mainstream retailers.

Smaller coalitions want to gather support from developers, users and concerned small business owners, and encourage direct petitioning of Congress. The Application Developers Alliance aims to help concentrate concerned IT folks in a few efforts, including petitions from the Innovators Need Patent Reform group and the Fight Patent Trolls initiative. You can check out the suggested letters for each at Techdirt. In the meantime, the Alliance is also gathering case information and strategies for fighting back in its Patent Troll Smackdown series, featuring concrete guidance like “How to Slaughter a Patent Troll in 5 Steps.”

While they wait for the federal government to solidify its approach, several states are taking action to protect businesses within their own borders from trolling behavior. Vermont state government, working with groups of concerned and frustrated businesses, has taken a leading position, passing state legislation to curb patent trolling and seeing its attorney general directly sue one company. Vermont attorney Peter Kunin, who leads a coalition in the state to fight patent trolls, believes that Vermont’s Consumer Protection Act holds the key to fighting back against harassment, according to the Washington Post. Kunin says state legislators there are “willing to listen to the business community” and moved forward with legislation to allow countersuits. Attorneys, legislators and business executives in other states are paying close attention to see if state actions may supersede federal law.

And writing on Forbes, commentator Tim Worstall points to the recent conclusion of one of patent troll Lodsys’ suits as an anomalous situation that should, and perhaps could, become the norm. Lodsys settled its case against a small iOS developer after lawyers provided over $200,000 in legal services pro bono to the developer. After the developer and the lawyers fought back, which so many small targets cannot afford to do, Lodsys moved on. Free legal protection worth hundreds of thousands or millions of dollars for everyone isn’t going to happen, but Worstall wants to see a level playing field instituted to dissuade the trolls:

“… the answer to killing the trolls while still allowing the legitimate patent assertion entities to flourish is to level that legal and financial playing field. Something that could be done very simply. Just move to loser pays all legal fees in patent cases.”

Will it work? It already does, in England, writes Worstall:

“… the point to note here is that in England we really don’t have patent trolls the way you do in the US. Why not? Because all civil cases are conducted on the basis that the loser pays everyones’ legal fees. You simply do not base a business strategy upon the idea of spraying writs to all and sundry in such a system.”

Simple to implement, simple to understand.

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