10 tips to deal with patent trolls
Good morning, Habr! No, today is not about viruses, and not even about antiviruses. Today about the trolls. Patent As you may have heard, recently we (Kaspersky Lab) crushed another one of them - Lodsys. The battle was epic in every sense: not only did the trial itself last as long as a year and a half, and the number of defendants exceeded 50 pieces, we also got to the finish line all alone, forcing the reptile to flee from the battlefield, cowardly pulling patents. So, given that this was not the first ( and not the last ) fight, we can safely say that we have gained impressive experience in dealing with patent trolls of various stripes, sizes and degrees of arrogance. And I really want to share this experience with you.
Therefore, we present to your attention 10 basic recommendations that were formed during the struggle with patent trolls in different countries. Yes, everyone has national peculiarities, but in general the pattern of their actions is quite the same, and the tricks fit into the standard with minor deviations. So, to one degree or another, the advice will be useful to any patrolled company, not necessarily large and not necessarily Russian. But perhaps the post turned out to be rather big, but we tried to tell about everything in the most interesting and substantive way. So…
... You received a "letter of happiness" from the patent troll with a kind offer to unfasten a certain amount for a patent license. Oh yeah! You are reading this patent, you understand that it is a complete garbage, it overwhelms with indignation, I want to erase these bloodsuckers right now. And it is better to torment first, and then to powder. And it does not even matter that the authors of the patent are higher minds, graduates of such serious educational institutions as Harvard (although this is alarming). A little later, after the release of steam, the opposite effect may occur - apathy and pofigizm. Both the first and second reactions are wrong: emotions will not only help you to cope with the troll, but also put your business at risk.
')
“Don't panic!”, As the “Hitchhiker's Guide to the Galaxy” told us. Trolls regularly roll in to tens of thousands of other developers in the hope that they will experience the same thing: they will start, will behave inadequately and, in the end, will be forced to pay compensation. So will in a fist, away emotions, begin to think.
Here is the real case. Once we received a claim from Italy for patent infringement on one mobile technology. The “little cart” of the claim was a bunch of demands, from withdrawing the product from sales to paying license fees. Patent really with very wide formulas. The Italian office is sounding the alarm!
No need to hit anything! We carefully analyzed the patent, made a prior art search (this is information as of the date of filing an application about known technical solutions in this area) and came to the question: how could they even patent the technologies that were obvious at the date of filing the application? Italian legislation was dug up, and it turned out that the patent was not exactly a patent. The Italian Office issued a "patent" without checking it for novelty: only a formal examination was carried out. They, the Italians, had an application system. That is, the publications were not taken into account the existing level of technology, and they were. Hinting to the guys from Italy that they were deeply mistaken when they came over us with pseudo-patents, they no longer received any news from Italy.
A remarkable fact: the correspondence with us was conducted by a very respected professor in the field of intellectual property, who has his own law firms, and, as it were, “does not understand” that he is wrong.
Conclusion: you can neither panic nor relax: the one and the other troll only on hand.
If you have already received a whole claim chart detailing your violations, then go straight to tip number 3. If this is just a “letter of happiness,” then the next step is to try to figure out how a troll patent can intersect with your technologies.
At this stage, you can and should make the troll break his head. For example, make a list of clarifying questions. And be 100% sure that the troll, in turn, will do the same: throw questions at you. Remember: you (and they, too) have no more than 30 days to respond. Some people think that if they don’t answer, then the troll will lag behind. This also happens, but in reality you are digging a hole for yourself. If the case goes to court and the troll declares that he wanted to agree amicably, and the alleged offender behaved rudely and rudely, that is, he ignored the "heart-to-heart talk", it would be a fat minus to the defendant: can be recognized as a malicious violator, since he knew about the violation (he was informed in the letter of happiness). And this can increase the amount of payments three times - the so-called deliberate violation or the willful infringement will work.
Yes, the most important thing is that the correspondence is better kept on paper, via courier delivery. Such correspondence can last for months, the main goal is to get from the troll clear and detailed explanations of how his patent may be violated, make him send a claim chart explaining the terms. This stage gives you time to prepare, an understanding of what is happening and excludes from this process simple gop-stopniks, who are simply trying to take the “fright” and cut down easy money. At the same time, it gives you protection in court (if it happens) against accusations of maliciousness.
A troll can blame you for any reason. For example, Intellectual Ventures sued Symantec for infringement of several patents on March 18, 2013 in a Delaware court. It is noteworthy that the claim IV claims a deliberate violation, citing the presence of references to patents IV in the Symantec patents. Thus, Symantec knew or should have known about the existence of patented technologies IV, which indicates, in their opinion, deliberate violation.
Conclusion: it is necessary to thoroughly understand the incoming claims, to be as thorough as possible, to correspond with paper letters and in any case not to ignore the troll's arrival.
Here, as in the previous paragraph, you need to carefully examine the essence of the patent, compare it with the essence of your technology, prepare clarifying questions (the more, the better). Look who was harassed by this patent and how, and how events developed in those cases, how the patent got into the troll’s hands, think for possible scenarios and adjustments to the protection methods. All these actions will allow you to find an understanding of which protection strategy to choose in the pretrial settlement of the issue and what you have in the case of the court. Perhaps you just reveal the non-intersection of your technology with the patented. The non-infringement strategy is the best in the case of fan mailing “letters of happiness”, which, by the way, are actively fighting.
Real case. In our direction came a few patent claims settled before the trial. At the same time, our technology was so different from the patented one that it raised questions about whether the troll was aware of what exactly it accused us of.
Conclusion: understanding the essence of the patent and finding similar claims to other companies may give a chance to use the non-infringement strategy.
Is everything pure in the presented patents? Look for contradictions in them, study the history of the examination of a patent, make a patent and non-patent search prior art. All this again will help to understand what to do in the case of pre-trial resolution of the issue or already at the trial. Perhaps you will find a killer prior-art and you yourself will threaten the troll. In the end, a patent may be invalidated due to the so-called inequitable conduct. In general, this category includes all conscious or irresponsible attempts to deceive, falsify and distort facts related to a patent application, which may influence the decision to issue a patent.
For example, one troll was deprived of a series of patents within a court for a very simple reason: not all authors were indicated when filing an application and issuing a patent. Other causes of invalidation for this reason may be as follows:
Real case. We had a case of very long extrajudicial proceedings with a well-known company on the technology of placing suspicious objects in quarantine, patented in the distant 1995. During the lengthy correspondence, several scenarios of non-infringement and invalidity of patents were worked out, and in several regions. While in the discussion one of the scenarios was worked out (illegal amendment of the mother application text and subsequent change of the formulas in accordance with the changes), another alternative variant was also worked out: searching for prior art and publications calling into question the novelty of the decision. By the time of the decision to reexamine a patent in the United States, and the reexamination lasted almost 10 years (!), We had found this very prior art, while he perfectly fit the examiner's argument “why is it still a patent?” We held negotiations, having told in detail all our arguments and, having shown that it is within our power to deprive them of this very patent, they peacefully dispersed.
What is important to note: alas, the process of patent invalidation is not only very long, but also quite expensive - around $ 500K.
What else can be recommended in this context? In fact, on this topic, you can write a doctoral and subsequent annual updates. Everything in one article does not fit. However, something to mention can and should be. From the most accessible in all senses: look at the past of the author of the patent and his entourage - what did you do, what libraries did you go to, what works did you print. After all, surely there will be something about this gifted creation in the Harvard School or in the Library of Congress that can be used during the process. For example, invite a teacher or fellow student to talk. Suddenly, one of them was overlooked by the authors of the patent. In such a happy case, we return to one of the important points: see above for invalidation points due to inequitable conduct. It is also possible that the patented invention was known and you will be able to find evidence of this.
Conclusion: you should try to find any clues that could lead to patent disability for one reason or another, but at the same time be prepared for the fact that it takes a lot of time and money.
There is another strategy to solve the problem. It may be that the technology that attracted the attention of the troll is licensed from another company. If this is true, then the problem with the troll is not with you, but with the company that sold it and licensed it to you. The flip side of this strategy: you may be the object of an attack as a licensor, and your licensee will simply pass on your headache. In general, regardless of the side of the licensing relations with partners, do not forget to correctly formulate the relations and prescribe the clause (indemnity) for violating the patent rights of third parties.
Indemnity requests make up a good half of all patent claims. This is a feature of some Western companies: I received a complaint - write to all of your partners something like “we are licensing something from you, so in view of our court, we ask for indemnity in accordance with the agreement between our companies”. At the same time, this “that” may not intersect with the patent at all, such as “maybe a ride ... and if it doesn’t, then at least we will receive a free analysis of the claim”.
Sometimes it comes to curiosity. The license partner, recognizing the responsibility for a patent lawsuit after the settlement thereof, invites its partners to chip in and share the costs. HAHAHA ... No!
Therefore, the conclusion: trying to find an opportunity to shift responsibility from yourself to the licensor is not cowardice, but the right strategy; however, you should be prepared to receive a claim from the licensee yourself.
If patent A is licensed, say, by Microsoft, then software using Windows functionality (covered by patent A) is immune to patent infringement A.
For example, in the framework of the recent Lodsys trial, we were blamed for the functionality of Live hat on our sites. Live Chat is written in Java and licensed from Oracle. Oracle licensed Lodsys patents, therefore, by a court decision, we and many other defendants withdrew claims on this part. However, the matter is bad if your software is multi-platform: in this case, the described mechanism no longer works.
Conclusion: It is necessary to carefully check whether you are using something that already involves licensed patents.
"Yeah, you just talk - you have budgets and lawyers!". This is true. But for the same reason, trols are more likely to stick to us. If it comes to court, the money and the truth will require significant. For example, two cases against American trolls cost $ 2.5 million and $ 1 million, respectively. If you don’t have any money or expertise, don’t be discouraged: the case can be solved in another way.
Contact other subjects of patent extortion (victims), agree on joint actions, hire a representative (not a right choice, but on bezrybe, as they say ...). You can contact public organizations like the EFF or private non-profit activists who provide legal support against patent lawlessness. Be calm, confident, consistently and firmly defend your point of view. Public opinion is on your side, and history knows many victories over trolls.
But if you have money, you need to fight on your own. And there are several reasons. First, the position on non-violation is likely to be different for everyone and for you it will simply not be applicable: everyone has different technologies. Secondly, how many respondents, so many opinions, and come to a consensus is not so easy, almost like in the Duma of the second convocation. Thirdly, it’s not a fact that a company hired by joint efforts (for example, searching for prior art for invalidity) will give the desired result. We have already passed this in the case against IPAT. A telephone conference with several dozens of lawyers turned into a circus with horses: some “hello, I'm such and such” took about 20-25 minutes, then everyone made noises and after an hour and a half there were hints of some sensible ideas, and even then A moderator was appointed on time. As a result, they hired an English company, which worked its own, but ... found nothing. Then we decided to work the question on our own and still achieved success! We found two respected IT gurus, who not only supported our position, but also gave very vivid examples for our proposed scheme for invalidating the IPAT patent. Win!
Conclusion: to fight independently is more effective, although it is more expensive; in the event of a lack of money and / or strength, it is better to fight with someone’s support.
Yeah, the case still came to court and you received a subpoena. In this case, you just followed the recommendations above and your "guns are charged." Remember the tip number 1 ("Do not panic!") And proceed to the next stage of the operation.
You are waiting for the stage of discovery, testimony and claim-construction. Just say: you need to open everything as it is. If it emerges that you concealed something, did not provide it in time, began to contradict yourself - the troll will intercede with you, including showing to the court that since you are so bad, then let us "write out the penalty right away", i.e. we find guilty.
Interrogations are a separate song. You must always tell the truth and only the truth and clearly answer questions. Remember that any inaccuracy or confusion will necessarily be interpreted and used against you. Another thing is that before each specific answer to a specific question, you can always add information that will be interpreted in your favor.
Claim-construction means the definition of terms. Very difficult stage. If you chose a non-infringed position, then the terms need to be harmonized narrowly. If invalidity, then wide. In any case, all your preparatory work, described in the paragraphs above, should let you understand exactly what interpretation of the terms works in your favor and push it in court. You can do this both independently and in a group of respondents. The result will be a document, an example of which can be taken from the site of the same Lodsys . As you can see, Lodsys defended his interpretation, his group of respondents, and we had our own position.
Further. You must show the court respect, openness and readiness to close this terrible case to the devils as soon as possible. Gone are the days when even a Texan court, for one well-known reason, sympathized with the trolls. Despite the required impartiality, judges are also people who also read the Internet and are well acquainted with the news and analytical background of patent trolls. Help the court make a fair decision.
Be prepared that the trolls will do everything to complicate this task. As in the quest, you will be given complex, contradictory and absurd tasks for a while (“well, give us your source code of all versions, as well as all the documentation, with draft notes that accompanied the development”), throw tons of pieces of paper, bombing the court with various petitions, provoking hysterics, etc. - everything to expose in court a malicious deviant and arrogant boor. Treat this as a game and do not take it to heart. Understanding the actions and motivation of the trolls will allow you to keep cool and listen to the mind, not feelings.
All correspondence, calls, Skype, e-mails, everything that relates to the conduct of the case should be logged (records, copies, screenshots, videos, etc.) and attached to your shadow archive. Following the strategy of unbalancing, the troll will regularly tug you, throwing similar inquiries. The court understands the nature of these requests, and if you demonstrate the speed of reaction and willingness to cooperate, 1) earn points, 2) give the court the opportunity to pull out the troll soon.
Well, as an illustration of the case from our combat past. In the case against Lodsys, we were suddenly asked to provide screenshots of Skype correspondence with an expert who spoke on our part. Lodsys really wanted to turn off at least some of the arguments we gave. In principle, if there were no screenshots, the court did not pay attention to it - there were other, more convincing written confirmations. However, the availability of screenshots and our openness showed the seriousness of intentions and thorough preparation. Lodsys petition was ignored by the judge.
Conclusion: It is vital necessity to follow the well-known covenant and log everything that is possible (correspondence, negotiations, documents of all kinds); at the trial one should be extremely honest and open, and not be disturbed by the troll.
Yes, what about that? Call all the bells, tell us about the essence of the patent proceedings, give an interview, issue press releases, tweet, facebook, instagram, make a post on Habré, Deot and non-existent blozhik, write antitrol rap, in the end! Anything goes! Do it yourself and with other respondents. This will give you strength, confidence, you will get support and useful tips and, of course, demoralize the troll. However, they are not sure that the verb “demoralize” is applicable to an object without morality.
Conclusion: you need to do everything so that everyone knows about your business!
The closer the court, the worse. And this also applies to the troll! At this stage, we read the first tip again (three times) and post a tweet filled with confidence (three tweets). Very carefully read the correspondence with the troll: you will begin to skillfully rinse the brain, admire perseverance, in every way hint at the world for a modest compensation and the opportunity to bargain. In any case - each case is individual, but with full confidence in your innocence, in no case do not agree! We must go to the end! “ With a crook, let's say we must fight! "Trolls do not like to bring the case to court (fear of patent invalidity = loss of licensees) and it is likely that they will withdraw the lawsuit. But we must take it as a rule: before receiving the decision of the judge not to rejoice, because the troll can play with you, so that you relax, believing in victory.
Hints at the world can begin to arrive long before the trial. And the closer the court, the less the troll's appetite. We usually do not react to them in any way, and within the framework of mediation we insist on our position on non-violation, and even explicitly declare that they are swindlers.
Thus, the last conclusion: the trolls are afraid of the court, and if you are really innocent, press the reptiles to the end, until they whistle and run away!
That somehow, briefly about the fun court showdown with the trolls. By the way, many thanks to our main fighter against evil spirits: Nadezhda Kashchenko , a brilliant specialist in the protection of intellectual property, without which our victories and this post would not have taken place. And yes, there is still a lot of interesting things overboard, and we are ready to share them. So ask in the comments - be sure to answer.
Therefore, we present to your attention 10 basic recommendations that were formed during the struggle with patent trolls in different countries. Yes, everyone has national peculiarities, but in general the pattern of their actions is quite the same, and the tricks fit into the standard with minor deviations. So, to one degree or another, the advice will be useful to any patrolled company, not necessarily large and not necessarily Russian. But perhaps the post turned out to be rather big, but we tried to tell about everything in the most interesting and substantive way. So…
1. The main thing - keep calm
... You received a "letter of happiness" from the patent troll with a kind offer to unfasten a certain amount for a patent license. Oh yeah! You are reading this patent, you understand that it is a complete garbage, it overwhelms with indignation, I want to erase these bloodsuckers right now. And it is better to torment first, and then to powder. And it does not even matter that the authors of the patent are higher minds, graduates of such serious educational institutions as Harvard (although this is alarming). A little later, after the release of steam, the opposite effect may occur - apathy and pofigizm. Both the first and second reactions are wrong: emotions will not only help you to cope with the troll, but also put your business at risk.
')
“Don't panic!”, As the “Hitchhiker's Guide to the Galaxy” told us. Trolls regularly roll in to tens of thousands of other developers in the hope that they will experience the same thing: they will start, will behave inadequately and, in the end, will be forced to pay compensation. So will in a fist, away emotions, begin to think.
Here is the real case. Once we received a claim from Italy for patent infringement on one mobile technology. The “little cart” of the claim was a bunch of demands, from withdrawing the product from sales to paying license fees. Patent really with very wide formulas. The Italian office is sounding the alarm!
No need to hit anything! We carefully analyzed the patent, made a prior art search (this is information as of the date of filing an application about known technical solutions in this area) and came to the question: how could they even patent the technologies that were obvious at the date of filing the application? Italian legislation was dug up, and it turned out that the patent was not exactly a patent. The Italian Office issued a "patent" without checking it for novelty: only a formal examination was carried out. They, the Italians, had an application system. That is, the publications were not taken into account the existing level of technology, and they were. Hinting to the guys from Italy that they were deeply mistaken when they came over us with pseudo-patents, they no longer received any news from Italy.
A remarkable fact: the correspondence with us was conducted by a very respected professor in the field of intellectual property, who has his own law firms, and, as it were, “does not understand” that he is wrong.
Conclusion: you can neither panic nor relax: the one and the other troll only on hand.
2. Delve into the claims, ask questions and do not slow down
If you have already received a whole claim chart detailing your violations, then go straight to tip number 3. If this is just a “letter of happiness,” then the next step is to try to figure out how a troll patent can intersect with your technologies.
At this stage, you can and should make the troll break his head. For example, make a list of clarifying questions. And be 100% sure that the troll, in turn, will do the same: throw questions at you. Remember: you (and they, too) have no more than 30 days to respond. Some people think that if they don’t answer, then the troll will lag behind. This also happens, but in reality you are digging a hole for yourself. If the case goes to court and the troll declares that he wanted to agree amicably, and the alleged offender behaved rudely and rudely, that is, he ignored the "heart-to-heart talk", it would be a fat minus to the defendant: can be recognized as a malicious violator, since he knew about the violation (he was informed in the letter of happiness). And this can increase the amount of payments three times - the so-called deliberate violation or the willful infringement will work.
Yes, the most important thing is that the correspondence is better kept on paper, via courier delivery. Such correspondence can last for months, the main goal is to get from the troll clear and detailed explanations of how his patent may be violated, make him send a claim chart explaining the terms. This stage gives you time to prepare, an understanding of what is happening and excludes from this process simple gop-stopniks, who are simply trying to take the “fright” and cut down easy money. At the same time, it gives you protection in court (if it happens) against accusations of maliciousness.
A troll can blame you for any reason. For example, Intellectual Ventures sued Symantec for infringement of several patents on March 18, 2013 in a Delaware court. It is noteworthy that the claim IV claims a deliberate violation, citing the presence of references to patents IV in the Symantec patents. Thus, Symantec knew or should have known about the existence of patented technologies IV, which indicates, in their opinion, deliberate violation.
Conclusion: it is necessary to thoroughly understand the incoming claims, to be as thorough as possible, to correspond with paper letters and in any case not to ignore the troll's arrival.
3. Follow non-infringement strategies
Here, as in the previous paragraph, you need to carefully examine the essence of the patent, compare it with the essence of your technology, prepare clarifying questions (the more, the better). Look who was harassed by this patent and how, and how events developed in those cases, how the patent got into the troll’s hands, think for possible scenarios and adjustments to the protection methods. All these actions will allow you to find an understanding of which protection strategy to choose in the pretrial settlement of the issue and what you have in the case of the court. Perhaps you just reveal the non-intersection of your technology with the patented. The non-infringement strategy is the best in the case of fan mailing “letters of happiness”, which, by the way, are actively fighting.
Real case. In our direction came a few patent claims settled before the trial. At the same time, our technology was so different from the patented one that it raised questions about whether the troll was aware of what exactly it accused us of.
Conclusion: understanding the essence of the patent and finding similar claims to other companies may give a chance to use the non-infringement strategy.
4. Follow the invalidity strategy
Is everything pure in the presented patents? Look for contradictions in them, study the history of the examination of a patent, make a patent and non-patent search prior art. All this again will help to understand what to do in the case of pre-trial resolution of the issue or already at the trial. Perhaps you will find a killer prior-art and you yourself will threaten the troll. In the end, a patent may be invalidated due to the so-called inequitable conduct. In general, this category includes all conscious or irresponsible attempts to deceive, falsify and distort facts related to a patent application, which may influence the decision to issue a patent.
For example, one troll was deprived of a series of patents within a court for a very simple reason: not all authors were indicated when filing an application and issuing a patent. Other causes of invalidation for this reason may be as follows:
- Deliberate failure to provide prior art materials when filing a patent application;
- Deliberately hiding information about well-known publications in foreign languages, as well as translations of these publications, both full and partial;
- Facts distortion regarding patentability of the invention, including affidavit.
Real case. We had a case of very long extrajudicial proceedings with a well-known company on the technology of placing suspicious objects in quarantine, patented in the distant 1995. During the lengthy correspondence, several scenarios of non-infringement and invalidity of patents were worked out, and in several regions. While in the discussion one of the scenarios was worked out (illegal amendment of the mother application text and subsequent change of the formulas in accordance with the changes), another alternative variant was also worked out: searching for prior art and publications calling into question the novelty of the decision. By the time of the decision to reexamine a patent in the United States, and the reexamination lasted almost 10 years (!), We had found this very prior art, while he perfectly fit the examiner's argument “why is it still a patent?” We held negotiations, having told in detail all our arguments and, having shown that it is within our power to deprive them of this very patent, they peacefully dispersed.
What is important to note: alas, the process of patent invalidation is not only very long, but also quite expensive - around $ 500K.
What else can be recommended in this context? In fact, on this topic, you can write a doctoral and subsequent annual updates. Everything in one article does not fit. However, something to mention can and should be. From the most accessible in all senses: look at the past of the author of the patent and his entourage - what did you do, what libraries did you go to, what works did you print. After all, surely there will be something about this gifted creation in the Harvard School or in the Library of Congress that can be used during the process. For example, invite a teacher or fellow student to talk. Suddenly, one of them was overlooked by the authors of the patent. In such a happy case, we return to one of the important points: see above for invalidation points due to inequitable conduct. It is also possible that the patented invention was known and you will be able to find evidence of this.
Conclusion: you should try to find any clues that could lead to patent disability for one reason or another, but at the same time be prepared for the fact that it takes a lot of time and money.
5. Follow the strategy of indemnification (exemption)
There is another strategy to solve the problem. It may be that the technology that attracted the attention of the troll is licensed from another company. If this is true, then the problem with the troll is not with you, but with the company that sold it and licensed it to you. The flip side of this strategy: you may be the object of an attack as a licensor, and your licensee will simply pass on your headache. In general, regardless of the side of the licensing relations with partners, do not forget to correctly formulate the relations and prescribe the clause (indemnity) for violating the patent rights of third parties.
Indemnity requests make up a good half of all patent claims. This is a feature of some Western companies: I received a complaint - write to all of your partners something like “we are licensing something from you, so in view of our court, we ask for indemnity in accordance with the agreement between our companies”. At the same time, this “that” may not intersect with the patent at all, such as “maybe a ride ... and if it doesn’t, then at least we will receive a free analysis of the claim”.
Sometimes it comes to curiosity. The license partner, recognizing the responsibility for a patent lawsuit after the settlement thereof, invites its partners to chip in and share the costs. HAHAHA ... No!
Therefore, the conclusion: trying to find an opportunity to shift responsibility from yourself to the licensor is not cowardice, but the right strategy; however, you should be prepared to receive a claim from the licensee yourself.
6. Find out if you are immune to a violation.
If patent A is licensed, say, by Microsoft, then software using Windows functionality (covered by patent A) is immune to patent infringement A.
For example, in the framework of the recent Lodsys trial, we were blamed for the functionality of Live hat on our sites. Live Chat is written in Java and licensed from Oracle. Oracle licensed Lodsys patents, therefore, by a court decision, we and many other defendants withdrew claims on this part. However, the matter is bad if your software is multi-platform: in this case, the described mechanism no longer works.
Conclusion: It is necessary to carefully check whether you are using something that already involves licensed patents.
7. Fight independently and together
"Yeah, you just talk - you have budgets and lawyers!". This is true. But for the same reason, trols are more likely to stick to us. If it comes to court, the money and the truth will require significant. For example, two cases against American trolls cost $ 2.5 million and $ 1 million, respectively. If you don’t have any money or expertise, don’t be discouraged: the case can be solved in another way.
Contact other subjects of patent extortion (victims), agree on joint actions, hire a representative (not a right choice, but on bezrybe, as they say ...). You can contact public organizations like the EFF or private non-profit activists who provide legal support against patent lawlessness. Be calm, confident, consistently and firmly defend your point of view. Public opinion is on your side, and history knows many victories over trolls.
But if you have money, you need to fight on your own. And there are several reasons. First, the position on non-violation is likely to be different for everyone and for you it will simply not be applicable: everyone has different technologies. Secondly, how many respondents, so many opinions, and come to a consensus is not so easy, almost like in the Duma of the second convocation. Thirdly, it’s not a fact that a company hired by joint efforts (for example, searching for prior art for invalidity) will give the desired result. We have already passed this in the case against IPAT. A telephone conference with several dozens of lawyers turned into a circus with horses: some “hello, I'm such and such” took about 20-25 minutes, then everyone made noises and after an hour and a half there were hints of some sensible ideas, and even then A moderator was appointed on time. As a result, they hired an English company, which worked its own, but ... found nothing. Then we decided to work the question on our own and still achieved success! We found two respected IT gurus, who not only supported our position, but also gave very vivid examples for our proposed scheme for invalidating the IPAT patent. Win!
Conclusion: to fight independently is more effective, although it is more expensive; in the event of a lack of money and / or strength, it is better to fight with someone’s support.
8. Be honest, respectful and log ALL
Yeah, the case still came to court and you received a subpoena. In this case, you just followed the recommendations above and your "guns are charged." Remember the tip number 1 ("Do not panic!") And proceed to the next stage of the operation.
You are waiting for the stage of discovery, testimony and claim-construction. Just say: you need to open everything as it is. If it emerges that you concealed something, did not provide it in time, began to contradict yourself - the troll will intercede with you, including showing to the court that since you are so bad, then let us "write out the penalty right away", i.e. we find guilty.
Interrogations are a separate song. You must always tell the truth and only the truth and clearly answer questions. Remember that any inaccuracy or confusion will necessarily be interpreted and used against you. Another thing is that before each specific answer to a specific question, you can always add information that will be interpreted in your favor.
Claim-construction means the definition of terms. Very difficult stage. If you chose a non-infringed position, then the terms need to be harmonized narrowly. If invalidity, then wide. In any case, all your preparatory work, described in the paragraphs above, should let you understand exactly what interpretation of the terms works in your favor and push it in court. You can do this both independently and in a group of respondents. The result will be a document, an example of which can be taken from the site of the same Lodsys . As you can see, Lodsys defended his interpretation, his group of respondents, and we had our own position.
Further. You must show the court respect, openness and readiness to close this terrible case to the devils as soon as possible. Gone are the days when even a Texan court, for one well-known reason, sympathized with the trolls. Despite the required impartiality, judges are also people who also read the Internet and are well acquainted with the news and analytical background of patent trolls. Help the court make a fair decision.
Be prepared that the trolls will do everything to complicate this task. As in the quest, you will be given complex, contradictory and absurd tasks for a while (“well, give us your source code of all versions, as well as all the documentation, with draft notes that accompanied the development”), throw tons of pieces of paper, bombing the court with various petitions, provoking hysterics, etc. - everything to expose in court a malicious deviant and arrogant boor. Treat this as a game and do not take it to heart. Understanding the actions and motivation of the trolls will allow you to keep cool and listen to the mind, not feelings.
All correspondence, calls, Skype, e-mails, everything that relates to the conduct of the case should be logged (records, copies, screenshots, videos, etc.) and attached to your shadow archive. Following the strategy of unbalancing, the troll will regularly tug you, throwing similar inquiries. The court understands the nature of these requests, and if you demonstrate the speed of reaction and willingness to cooperate, 1) earn points, 2) give the court the opportunity to pull out the troll soon.
Well, as an illustration of the case from our combat past. In the case against Lodsys, we were suddenly asked to provide screenshots of Skype correspondence with an expert who spoke on our part. Lodsys really wanted to turn off at least some of the arguments we gave. In principle, if there were no screenshots, the court did not pay attention to it - there were other, more convincing written confirmations. However, the availability of screenshots and our openness showed the seriousness of intentions and thorough preparation. Lodsys petition was ignored by the judge.
Conclusion: It is vital necessity to follow the well-known covenant and log everything that is possible (correspondence, negotiations, documents of all kinds); at the trial one should be extremely honest and open, and not be disturbed by the troll.
9. Arrange the buzz :)
Yes, what about that? Call all the bells, tell us about the essence of the patent proceedings, give an interview, issue press releases, tweet, facebook, instagram, make a post on Habré, Deot and non-existent blozhik, write antitrol rap, in the end! Anything goes! Do it yourself and with other respondents. This will give you strength, confidence, you will get support and useful tips and, of course, demoralize the troll. However, they are not sure that the verb “demoralize” is applicable to an object without morality.
Conclusion: you need to do everything so that everyone knows about your business!
10. Feel free to go to the end!
The closer the court, the worse. And this also applies to the troll! At this stage, we read the first tip again (three times) and post a tweet filled with confidence (three tweets). Very carefully read the correspondence with the troll: you will begin to skillfully rinse the brain, admire perseverance, in every way hint at the world for a modest compensation and the opportunity to bargain. In any case - each case is individual, but with full confidence in your innocence, in no case do not agree! We must go to the end! “ With a crook, let's say we must fight! "Trolls do not like to bring the case to court (fear of patent invalidity = loss of licensees) and it is likely that they will withdraw the lawsuit. But we must take it as a rule: before receiving the decision of the judge not to rejoice, because the troll can play with you, so that you relax, believing in victory.
Hints at the world can begin to arrive long before the trial. And the closer the court, the less the troll's appetite. We usually do not react to them in any way, and within the framework of mediation we insist on our position on non-violation, and even explicitly declare that they are swindlers.
Thus, the last conclusion: the trolls are afraid of the court, and if you are really innocent, press the reptiles to the end, until they whistle and run away!
That somehow, briefly about the fun court showdown with the trolls. By the way, many thanks to our main fighter against evil spirits: Nadezhda Kashchenko , a brilliant specialist in the protection of intellectual property, without which our victories and this post would not have taken place. And yes, there is still a lot of interesting things overboard, and we are ready to share them. So ask in the comments - be sure to answer.
Source: https://habr.com/ru/post/200210/
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