LikBez on patents (continued)
In the first part of the article, we talked about what patents are, who the trolls are and how patent litigation begins, with the promise that we will continue the topic. Then I will talk about how the process of the dispute is going on, what the troll dreams about and what are the methods of fighting against patent trolling.
Then begins the pre-trial proceedings, that is, some formal steps that should lead to the adoption of the claim for consideration by the court or to refuse to consider. This is a rather complicated procedure that falls on the shoulders of lawyers (yes, I did not tell you that the first thing after receiving the letter is to find a patent lawyer who will represent you in court). Most likely, the plaintiff will be required to state their claims in a table, indicating specific patent points that you violated, with evidence. You will need the same table with refutations. By the way, all correspondence with lawyers is a secret for the court, and cannot be presented as evidence. Therefore, when sending any potentially sensitive information by e-mail, it is always useful to put your current attorney in the CC, then during the e-discovery procedure these letters will be removed from consideration in an unconditional way.
Further, having considered these tables, as well as the arguments of the parties, the court will decide what to do. Either the lawsuit will be rejected, or it will be accepted for consideration, or, what happens quite often, the court will appoint a mediator who understands the topic, whose task is to help the parties reach an agreement out of court.
This process is not fast anyway, some stages will last for months.
What do you need time to do during this time?
The most important thing is to collect the so-called prior art: materials proving the fame of the points on which you are trying to sue you, until the patent is submitted for consideration. Most often, it is not easy to do: you have to pick up old articles, your own materials, lost in many respects (and who thought this old stuff would be useful?), Wool patents, etc. A good patent attacker, like old wine, gets better over the years. The more thick a layer of dust covers prior art, the harder it is to find it, and the less chances there are to find experts who can confidently assert that the essence of the patent was obvious at that time, and therefore, the more difficult it was to convince the judge. Trolls know it and actively use it.
It looks like it's time to talk about trolls and their strategy.
Trolls often have one goal - to cut more bucks from you. But this is if you are dealing with a professional troll specializing in the patent. Very often we see trolling by well-known companies, and it is no better. In this case, however, the goals are more often others, for example, to bring a competitor to bankruptcy and / or make him sell for cheap.
As already mentioned, the trolls are attacking with the help of stale umbrella patents. Recently, certain amendments to the rules of patenting in the United States have been adopted, in order to make life difficult for trolls. But it’s too early to rejoice: firstly, all this is half measures, and secondly, these amendments will affect many years later, when the existing stock of mines for trolls is over. And he is still far from the end: on the contrary, in recent years, several successful large actions for withdrawing money from large companies have attracted an unprecedented number of players to this business, which means that the most interesting is yet to come. The term of a patent in the United States is 20 years.
Trolls attack at the same time with many patents. This strategy increases the chances of a troll, even if 90% of patent content is irrelevant to your product. You have to prove it, and the more you have to prove, the more compliant you will be.
Trolls are sometimes very aggressive. Only you have found a patent that contains prior art, how the troll finds the holder of this patent and either buys out his rights for a penny (many are happy to get any money for the old paper, the values in which they no longer see), or persuade him to become a co-seeker. You thought you found a weapon, but it turns out to be directed against you.
')
First, if his claims look reasonably reasonable (and there is such a danger, the judges are different), then sales of your product may be prohibited, as a measure to ensure the interests of the plaintiff. If you have already achieved something in the market (otherwise, hardly anyone would have attacked you), even one thought of this can cause panic, although in practice the likelihood of such a development is low. Courts usually make such decisions only after due process.
Then, the trolls are accustomed to the fact that the defense hires lawyers and entrusts them with all the work, and this for them "their people", far from the subject of the dispute, the motivation and possible actions of these people to the troll are understandable. Therefore, if you want to gain an advantage, you should always connect real engineers who understand the subject and are able to give answers to the lawsuit in essence.
There are some more tricks used by trolls. For example, the state of Texas is notorious for the fact that it is there that the majority of patent trolls are registered, and judges of this state more often than anywhere else take the side of the plaintiff in patent disputes. Therefore, the trolls are bleeding from the nose are trying to get the case is in the state of Texas. In addition to the disadvantageous position of judges, you will have to travel there regularly and spend a lot of money on travel and accommodation. This is also on the troll's hand.
Another element of the calculation: even in the pre-trial procedure you spend a fairly significant amount of money (tens of thousands of dollars). Therefore, you are interested to quickly finish the case. The troll pretends that it wants to bring the case to court, and this makes you be more accommodating with the money.
Even with the impressive umbrella patent package, the troll is quite vulnerable. Here are the things that scare him:
Based on the above, we formulate a protection strategy:
I hope this article will help you not to be caught off guard. In any case, you can indulge in the fact that the patent troll attack on you is a recognition of your success in the US market. So there will be a reason to rejoice.
What's next?
Then begins the pre-trial proceedings, that is, some formal steps that should lead to the adoption of the claim for consideration by the court or to refuse to consider. This is a rather complicated procedure that falls on the shoulders of lawyers (yes, I did not tell you that the first thing after receiving the letter is to find a patent lawyer who will represent you in court). Most likely, the plaintiff will be required to state their claims in a table, indicating specific patent points that you violated, with evidence. You will need the same table with refutations. By the way, all correspondence with lawyers is a secret for the court, and cannot be presented as evidence. Therefore, when sending any potentially sensitive information by e-mail, it is always useful to put your current attorney in the CC, then during the e-discovery procedure these letters will be removed from consideration in an unconditional way.
Further, having considered these tables, as well as the arguments of the parties, the court will decide what to do. Either the lawsuit will be rejected, or it will be accepted for consideration, or, what happens quite often, the court will appoint a mediator who understands the topic, whose task is to help the parties reach an agreement out of court.
This process is not fast anyway, some stages will last for months.
What do you need time to do during this time?
The most important thing is to collect the so-called prior art: materials proving the fame of the points on which you are trying to sue you, until the patent is submitted for consideration. Most often, it is not easy to do: you have to pick up old articles, your own materials, lost in many respects (and who thought this old stuff would be useful?), Wool patents, etc. A good patent attacker, like old wine, gets better over the years. The more thick a layer of dust covers prior art, the harder it is to find it, and the less chances there are to find experts who can confidently assert that the essence of the patent was obvious at that time, and therefore, the more difficult it was to convince the judge. Trolls know it and actively use it.
It looks like it's time to talk about trolls and their strategy.
Trolls strategy
Trolls often have one goal - to cut more bucks from you. But this is if you are dealing with a professional troll specializing in the patent. Very often we see trolling by well-known companies, and it is no better. In this case, however, the goals are more often others, for example, to bring a competitor to bankruptcy and / or make him sell for cheap.
As already mentioned, the trolls are attacking with the help of stale umbrella patents. Recently, certain amendments to the rules of patenting in the United States have been adopted, in order to make life difficult for trolls. But it’s too early to rejoice: firstly, all this is half measures, and secondly, these amendments will affect many years later, when the existing stock of mines for trolls is over. And he is still far from the end: on the contrary, in recent years, several successful large actions for withdrawing money from large companies have attracted an unprecedented number of players to this business, which means that the most interesting is yet to come. The term of a patent in the United States is 20 years.
Trolls attack at the same time with many patents. This strategy increases the chances of a troll, even if 90% of patent content is irrelevant to your product. You have to prove it, and the more you have to prove, the more compliant you will be.
Trolls are sometimes very aggressive. Only you have found a patent that contains prior art, how the troll finds the holder of this patent and either buys out his rights for a penny (many are happy to get any money for the old paper, the values in which they no longer see), or persuade him to become a co-seeker. You thought you found a weapon, but it turns out to be directed against you.
')
What does the troll count on?
First, if his claims look reasonably reasonable (and there is such a danger, the judges are different), then sales of your product may be prohibited, as a measure to ensure the interests of the plaintiff. If you have already achieved something in the market (otherwise, hardly anyone would have attacked you), even one thought of this can cause panic, although in practice the likelihood of such a development is low. Courts usually make such decisions only after due process.
Then, the trolls are accustomed to the fact that the defense hires lawyers and entrusts them with all the work, and this for them "their people", far from the subject of the dispute, the motivation and possible actions of these people to the troll are understandable. Therefore, if you want to gain an advantage, you should always connect real engineers who understand the subject and are able to give answers to the lawsuit in essence.
There are some more tricks used by trolls. For example, the state of Texas is notorious for the fact that it is there that the majority of patent trolls are registered, and judges of this state more often than anywhere else take the side of the plaintiff in patent disputes. Therefore, the trolls are bleeding from the nose are trying to get the case is in the state of Texas. In addition to the disadvantageous position of judges, you will have to travel there regularly and spend a lot of money on travel and accommodation. This is also on the troll's hand.
Another element of the calculation: even in the pre-trial procedure you spend a fairly significant amount of money (tens of thousands of dollars). Therefore, you are interested to quickly finish the case. The troll pretends that it wants to bring the case to court, and this makes you be more accommodating with the money.
What is the troll afraid of?
Even with the impressive umbrella patent package, the troll is quite vulnerable. Here are the things that scare him:
- Delay and complication of the case. The troll staff is not engineers, but lawyers. They understand almost nothing about the essence of patents that they use to attack, so over-tightening and deepening the issue makes them nervous and makes compromises. The only exceptions are big games when the stakes are high and they can hire professional engineers to organize a skilled attack. But before such games you need to grow.
- Transfer of hearings to a disadvantageous place for them. In those states where there is a real IT business, the courts just do not really like trolls and often make unprofitable decisions for them. That is why it is best to open an office in such a place as to have good reasons for transferring hearings to your territory. This will doubly weaken the position of the attack: a judge unfavorable to them and the need to come to a foreign state for a hearing.
- Full court hearings that may limit the scope of a patent or the full revocation of patents. It is rather difficult to achieve complete cancellation of a patent, but it is relatively easy to limit the scope of action thanks to the accumulated prior art. This will reduce your payments to a minimum, and the troll will cause irreparable damage. After all, if, thanks to these patents, he has already received money from someone through the court, these people can now file claims for reimbursement. Well, getting money on will become much more difficult. In addition, the process of court hearings is recorded and can be used further by future victims against the troll. I'm not talking about the need to spend money on the process, as well as the possibility of combining claims to several companies in one process, which most often complicates the life of a troll. Therefore, the troll is afraid of considering the claim on the merits in court, and most often tries to negotiate out of court. And that means - when the troll scares you with the court, with a favorable scenario for you, you can stand your ground and pretend that you are ready for a court dispute. It is a bit like a poker game. Sooner or later, the troll will not stand the nerves and he will make a reasonable deal. But be prepared for the fact that something will still have to pay, do not feed the patent troll is unlikely to succeed. It’s pointless to rest on it: you will lose more money on lawyers and on distracting your employees. However, with the right strategy, there is a chance that you will leave the troll in the red by paying him less than the cost of trolling.
Security strategies
Based on the above, we formulate a protection strategy:
- Pate your inventions if you are looking to succeed in the US market, although it is quite expensive. At the same time, you will understand how this whole system works; this will be very helpful in the case of court fights.
- In the process of protection, use real knowledge holders to prepare answers for lawyers. Achieve consideration of the case on the merits, but not formally.
- Look for prior art in publications, patents, in any products that were before the plaintiff filed a patent application.
- Hire good lawyers who are able to understand the essence of the issue and who are able to obtain favorable conditions from the court.
- Try to cooperate with other victims of the troll, with whom he goes disassembly.
- Attack trolls in response, if possible, be aggressive and decisive, but at the same time reasonable in setting goals.
- Where possible, keep all documents, product documentation, copies of all products. It is not known that tomorrow may be useful to combat the patent troll.
I hope this article will help you not to be caught off guard. In any case, you can indulge in the fact that the patent troll attack on you is a recognition of your success in the US market. So there will be a reason to rejoice.
Source: https://habr.com/ru/post/100791/
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