Subject: Re: patent trolls and X-licensors
From: simo <s@ssimo.org>
Date: Sat, 03 Jun 2006 15:38:35 -0400

On Sat, 2006-06-03 at 12:02 -0700, Thomas Lord wrote:
> They make a judgment but they do not adjudicate.   The decision of the
> third party is *not* binding on the courts.
> 
> The idea is that if the case were to reach court, plaintiff would need
> that third party testimony anyway.   Well, they better get it before
> they start making demands because, otherwise, they have incentive
> to make demands that wouldn't even begin to stand a chance in court.

If they are not binding then nobody stops you sending out Cease and
Desist letters and asking for payments, because you can always produce
evidence just before you get to the court case. Trying to achieve what
you propose without a binding decision wouldn't make sense imo.

> You, the little guy, should be able to find an expert service
> that will prepare testimony for, say, $5,000 -- on credit.

Do you really think all you asked this party to do, with liabilities can
cost just 5k ?

>   If
> you win, you're all set.  If you lose, well, I guess you have to
> make payments.    If you couldn't afford that $5K risk then,
> first, how did you get the patent in the first place?  Second,
> just exactly how diligent could you have been being in putting
> your patent into practice?

How can you derive the diligence of a party by his richness ?
I think you should read what a Patent Office is supposed to do, but also
what are real numbers, how can you propose something without even
knowing which are the costs involved ?

> > You effectively raise the cost of the patent this way, because patents
> > will not have any value without the assessment they are valid, so you
> > will end up being forced to pay immediately such study when the PTO
> > releases you a patent so that the market can give this patent a value.
> > 
> >   
> 
> Nope.  You must get the study for particular defendants in response
> to the specific actions of those defendants.   This third party
> testimony
> says nothing at all about the validity of your patent in general --
> only
> in specific actions.

Do you understand that in many case you can't prove that without
subpoenas to the defendant? How are you supposed to gather information
on the specific way someone do something if you have no way to ask them
for documents ??
Your proposal seem more and more law-fiction ...

> Again, I've also proposed clarifications or strengthening of scope
> and diligence requirements.   There is more here than just shuffling
> around what must be paid when.

You better do that at the Patent Office level then because it is were a
patent is examined that you should block bogus patents. Why should you
raise the bar after the patent is granted but not before, what kind of
twisted logic is this ?

You are just trying to release the PTO from any responsibility and shift
the duty of the PTO on private firms, and that will inevitably just
raise the cost of the patent system, and lower the value of any patent
until tested, at least once, in court for 2 reasons:

1) The PTO will basically stop doing any real research and grant every
patent as that will lower the PTO costs as the patent holder has always
to do it's own research later anyway, so the PTO will be justified to
become just a register, just a bureaucratic cost.

2) If the patent is not considered enforceable until you do a specific
research against someone, then all patents will immediately loose a lot
of value, and patent holders will be forced to go to courts to show that
their patents are indeed valid, this will raise the cost enormously and
will also load the courts of unnecessary work.

> Also, I've imposed penalties for trying to enforce a patent that,
> though granted, doesn't stand up in the actions threatened or 
> initiated.   Depending on how you set those penalties, it's either
> 0 cost or mildly profitable to get demand letters and summons from
> plaintiffs who have no business sending them to you.

You are killing lot of legittimate cases where you wrongly believe your
patent apply, and your own law firm make you believe it was true.
Are you also proposing that third party experts should be liable if they
in bona fide certify a patent holds but then the court decide
otherwise ?

> > All right, you should probably read about what are the duties of a
> > patent office and how a patents are released.
> > And perhaps you will then be able to make some decent proposal based on
> > how things works (or should work) in reality.
> > This may be a good point where to start for the USPTO:
> > http://www.uspto.gov/web/offices/pac/mpep/consolidated_laws.pdf
> > 
> >   
> 
> You've pointed me at an 88 page document that is much broader in
> scope than just the specific form and function of the PTO.

Well sometimes you need to document yourself to understand a legal
problem, if you don't dare to, then to me, it seems you are just
trolling around.

> Will you please provide a more specific cite of the materials you
> think contradict what I said?

I do not need to provide evidence for anything (exp. when it is self
evident to anyone that knows how the patent system works).
You are doing a proposal, you should provide evidence that support your
proposal.

Simo.