"IPRs can be risky and costly. We know this IPR will cost us more than the $75,000 that Rotatable wanted to extort from us. But we are not just fighting for us; we are fighting for all the app developers who are also in the line of fire."
Clearly the patent system is defective and needs to be fixed radically (or patents entirely eliminated in the software space, which I personally believe is preferable).
Nevertheless the above suggests a possibility for a shorter-term fix. If companies could proactively band together in some kind of association to fund IPRs for every single troll attack, spreading out the costs of the IPR amongst the member companies, it would seem that this would make life for the trolls much harder. Indeed, simply listing your company membership in such an association on your website might be sufficient to ward them off, same as sticking alarm decals on car windows wards off many would-be car thieves.
PatentHoldingShellCompany60852, Inc. files a lawsuit. They have no products and no services and so cannot be countersued for any conceivable infringement. Even if you do manage to sue them successfully, the company's only asset is the patent. It declares bankruptcy, nobody involved in setting it up gets hurt, and tomorrow PatentHoldingShellCompany60853, Inc. is filing in East Texas to try to shakedown somebody else.
I think the modern wrinkle would need to be establishing a common defense fund with the goal of funding all the way through invalidating bad patents, not just settling a suit. Right now most of these players simply risk losing their time investment, not the grounds for future extortion or possibly even invalidating other settlements.
A well-funded, well-known legal team could have an easier time doing filing to consolidate cases, making the strategy of repeatedly going after small companies less one-sided.
Oracle Corporation has taken a public stand against the patentability of software and has forsworn use of its own patents except to counter-sue in infringement claims.
Now this is really a great quote from that article!
A way to get around b) would be to have the association merely provide financial help, or possibly have the association be a group of lawyers such as the EFF where they will represent the company who does have standing to sue.
I don't see the relevance of either. Antitrust deals with breaking up colossal monopolies like AT&T and Standard Oil... not sure how that relates to this in any way. IPRs are a new concept to me, but I don't see why any entity can't challenge the validity of any patent. If there's a problem with that, which I doubt, the company receiving the troll attack could presumably be the challenger, with the association reimbursing its fees.
"Antitrust deals with breaking up colossal monopolies like AT&T and Standard Oil."
Not true there is also collusion to consider, price setting, dividing markets etc. For example web hosting companies can't band together to set pricing or to determine certain things as a group. (Obv. companies get together to set standards etc and other things).
I'm just raising the issue but I know this from back at the beginning of ICANN registrars we had to be concerned with what we did and what we said to each other when we had group meetings on the advice of attorneys in our registrars constituency. And I'm not saying that the lawyers weren't over reaching or that particular behaviors had merit I'm merely mentioning it as a point of discussion and consideration.
FTA: [The IPR is] a new proceeding made available under the America Invents Act.
The new patent legislation is very recent, and patent trolls are still operating under the older model. I think it's worth seeing whether and how this fix operates.
Clearly the patent system is defective and needs to be fixed radically (or patents entirely eliminated in the software space, which I personally believe is preferable).
Nevertheless the above suggests a possibility for a shorter-term fix. If companies could proactively band together in some kind of association to fund IPRs for every single troll attack, spreading out the costs of the IPR amongst the member companies, it would seem that this would make life for the trolls much harder. Indeed, simply listing your company membership in such an association on your website might be sufficient to ward them off, same as sticking alarm decals on car windows wards off many would-be car thieves.