What I take away from this is that a serious court case costs millions of dollars. Which means is that the current patent system erects a massive moat around the entrenched players with large patent portfolios and the cash to put lawyers to work 24/7/365.
From time to time, some small troll wins a few hundred million from Microsoft or whatever, but the real story here is that if you don't have ten million dollars to buy into the game, you can't play. It's almost as if the odd "win" by a bit player is a PR stunt to convince congress that the current system is an incentive for entrepreneurs and dreamers to invent new things.
I really like the suggestion of malandrew yesterday on HN:
This is one of the main reasons I think that all money spent on lawyers should go into an account that both sides get to draw upon equally to pay legal expenses. You simply cannot have a system capable of meting out justice if money can skew "justice" in your favor.
The two questions which immediately come to mind:
1. How to bell the cat (how does one actually get this enacted)?
Easy to imagine how this could be abused. Imagine that I have a brother who's a lawyer. I bring a frivolous lawsuit against Google/Apple/Microsoft/etc. knowing that they'll dump a fair amount of money into the account. My brother bills me for legal services, taking roughly half the money from the account. I lose the lawsuit but my brother and I split the money.
Courts have been relatively wary of dismissing frivolous suits (at least according to some reports) in recent decades (perhaps in response to an overinclination to do so in the past, further disadvantaging disenfranchised groups). A bit of strengthening of frivolous suit protections, and a waiver of the shared fees in this case, might help.
I'll give you another: there are situations in which pro-bono services may be provided to one party in a suit. Often to increase the equity of a situation, but not in all cases. Should the pro-bono provider be on the hook for the opposing parties reciprocal costs, and how should the PB provider's services be valued?
The SCO v. IBM suit is another in which I could see IBM's legal costs (very high, I'm sure, though I've seen no figures or estimates given) but in which SCO being granted pooled fees would be a miscarriage of justice.
No one forced Microsoft to choose expensive lawyers. If they don't want to take your frivolous lawsuit seriously, they're welcome to buy el cheapo legal services.
It's not that hard to settle out of court and the threat of selling your patent to a patent troll enables you to leverage the threat just as well as the big guys. As to defending yourself, if you don't have the resources to mount a reasonable defense your not worth the cost of a lawsuit.
It's 2nd hand, but I do know someone that uses vary narrow patents to make a decent secondary income stream. Granted, this probably does not work as well for broad software patents, but make the cost benefit analysis obvious enough and you don't need much in the way of sticks.
I guess we'll never know for sure if Steve Jobs egged on his buddy Larry Ellison to throw this sucker punch at Android but given his apoplectic reaction to Android it sure seems likely.
Power player A meets power player B, they discuss what they hope to do in the near future - plans and interests. Perhaps they will have matters of mutual interest - thats great.
Then they seperately take action, happy to know what positions and interests the other players in the game have.
Apple and Oracle were both threatened by Android. No-one needed egging on, no-one needed secret deals. They were open and above board about wanting to screw over Larry and Sergey. :-)
I appreciate that it probably wasn't yourself who chose to include the term 'shill' in the Google document name, but your referring to 'the Google bloggers' is a bit misleading. To quote from Google's disclosure:
"Neither Google nor its counsel has paid an author, journalist, commentator, or blogger to report or comment on any issues in this case. And neither Google nor its counsel have been involved in any quid pro quo in exchange for coverage or articles about the issues in this case."
Contrast this to Oracle's retaining Florian Mueller as a paid consultant when he was backing their case on his blog.
Page two, line eight of Oracles' disclosure states that they retained him as a "consultant on competition-related matters." Although that isn't necessarily the same as paying him for "promoting their case", its hard not to get that impression when you read his enthusiastic backing of Oracle's legal theory as used in the case.
Google's list is basically "here's a bunch of organizations which we're a member of or make contributions to." Some of the people within those organizations made comments about the case.
Mueller was directly hired and paid by Oracle. Whether or not he was specifically hired to comment on the case or not, that's quite a different kettle of fish to simply belonging to the same organization that Oracle may have contributed to.
Besides, it's not clear what "consulting" he has done for Oracle, but his expertise is patent law...
Google had asked for $4,030,669, but the judge cut it back, denying the part that was for the work done by the ediscovery vendor. Truthfully, I've never seen a bill of costs that was not cut back, but the bottom line is, Oracle has to pay for bringing this stupid lawsuit about APIs.
That's not what matters. Getting costs is like a TKO in boxing.
They won, the judge knows they won, but they still had to do the road running and the no sex for a month before the match, so its a sunk cost. Lots of sex after the match does not make up for the month before.
Getting costs in most civil cases is no longer about making financial restitution - the litigants are usually
so well funded it does not matter
cost awards indicate not only did the jury agree with you, but your case was so strong the other side should be punished for bringing it. Compare to cads where costs of a dollar are awarded.
As for sex, forswearing sex before a sporting match is / was a common means of getting teams away from disruptive or chaotic marriages by wiley coaches, and could be seen as a sunk cost in winning the match. Even if you were awarded restitution after the match the costs were sunk so it does not matter if costs are awarded or not (see the too well funded to care above)
From time to time, some small troll wins a few hundred million from Microsoft or whatever, but the real story here is that if you don't have ten million dollars to buy into the game, you can't play. It's almost as if the odd "win" by a bit player is a PR stunt to convince congress that the current system is an incentive for entrepreneurs and dreamers to invent new things.
But it's all bullshit. It's a rigged game.