These nasty patent trolls

From the translator. This article was written by one of the leaders of a large international corporation engaged in the production of electronic equipment for the consumer market with headquarters in Western Europe and was published in an internal corporate journal. In connection with the latest publications on the topic of patent law and the invariably high interest in materials on this topic, I would like to tell Habrahabr readers how a European businessman who has repeatedly acted as a defendant in patent disputes is looking at patent laws. By agreement with company representatives, all personal data and business specifics are removed from the text. I hope this material is not lost much.



Participation in court hearings on patent law issues is not the most pleasant thing for a businessman. And the point is not only that losing in court very often entails huge expenses: as a rule, even winning the process is fraught with serious time and money. So, our principal competitors once initiated a lawsuit aimed at banning the sale of our devices in the United States. They filed five different lawsuits, where we were accused of copying the five different features that they had (and that was enough arrogance!). In order to support the charges, they demanded to provide an archive of our internal correspondence over the past five years. This archive should contain all letters containing keywords related to their patent claims, including the most general terms related to our business. Many thousands of pages of text, on which the lawyers specially hired by them then spent their days and nights.



Taking into account the possible consequences of a loss, we had to defend ourselves. In the same court, we filed five lawsuits already defending our intellectual property rights. In addition, we also hired lawyers to examine in detail the correspondence confiscated by competitors. It was necessary to prepare for the long battle, which was inevitable. By the way, if you think that your plumber last time asked for too much for replacing a faucet in the kitchen, try sometime for a joke to hire a team of lawyers. Lawyers who need to learn perhaps not under a magnifying glass of tens of thousands of pages of corporate correspondence, half consisting of specific applied jargon. And see what it will cost you.

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I cannot disclose the details of the hearings that were held - they are confidential, but there are rumors that the monthly payment to lawyers to support such cases may well be seven-digit numbers. In addition, while the proceedings were going on in court, any news from there led to a drop in the price of the shares of both companies - ours and the competitor.

We do business honestly: our company does not steal ideas from others (and in general we often act in our field as an innovator and a generator of new ideas), therefore patent claims from our competitors are not so often initiated in our respect. In all cases when we were forced to defend against such cases, we won the courts. Patent trolls are a much bigger problem for us, like for most other large and successful companies.



In short, patent trolls are like fleas on a large, shaggy and neglected dog, which is now patent legislation. They are well aware that it is unacceptable for people who are at the head of large business structures to waste time and money on patent disputes that are not attractive in terms of profit. Well, so they take some completely left-handed patents about anything, and file a lawsuit about their violation in court. The respondent, of course, is a large successful company that conducts business in a field similar to the field of application of a patent. Well, since the patent trolls themselves do not produce any goods, then they may not be afraid of retaliatory claims. And our pool, numbering several thousand patents, will not help here.



The first patent troll I met said that we violated its patent when developing one of our successful products related to the acquisition and automatic processing of large arrays of specific data. The same approach, which was described in his patent, contained some completely useless cheap manpower technologies that were not applicable to our business conditions for obtaining and processing similar data in manual mode, but with a wooden maximum. I lost the gift of speech when I became acquainted with this document - the nonsense described there was useless not only for us, but wherever else. So, in general, and said the American lawyer, who came to us with a lawsuit. He just smiled at that in all his thirty-two healthy teeth and said: “That's right, Mr. Bailey, but it’s not easy to prove it in court.” (I'm not Bailey, in general, my name is not like this ). And it was all just a lawyer. The patent owner himself, to my deepest regret, could not come - he was in prison for fraud with other patents. Well, in order to sit there it was not boring, he was amusing himself by filing patent claims from prison.

His lawyer offered to settle the case in the pretrial order, asking us for fifty thousand dollars. After that, he unobtrusively hinted that the cost of proof of the groundlessness of the claim filed against us would most likely exceed this amount, so that in any case we will have to part with it. And this is without taking into account lost time.

He was not lucky. We basically do not negotiate with terrorists, nor do we appease patent trolls. Pay one - immediately a dozen more will come, you do not have time to look back. We always fight with them to the end, even if it gets us a lot of money. We have never lost to them. And even with all this in mind, at least a dozen lawsuits are constantly being brought against us. Such, unfortunately, is the price for the possibility of running a large business in the field of high technologies.



By the way, when I talk about the company's losses from litigation, I do not accidentally mention lost time with money, it is also worth a lot. And not only money it is measured. Fighting patent trolls is often very messy. They themselves know that they are wrong, and all they are trying to achieve is to make such claims for us as unpleasant as possible. When we refused to settle the case I mentioned earlier, the very first thing that patent patent troll brought almost the entire leadership of our company to the court of Wisconsin, Arizona, to testify. None of us was directly involved in the development of the contested functionality, but, guided by some completely wild logic, the troll declared that we were supposedly "fully responsible for what happened." The real motive of such actions on his part was that he simply tried to annoy us in all possible ways: he forced the maximum possible number of top managers of the company to break down and fly through half the globe to face a US jury. And the American jury is twelve people from the street who are attracted to the process so that they listen to lawyers chew on the endless cud of court debate (“these greedy European manufacturers stole the invention of the poor American worker!”) And technical terms (“well, that the capacity of the backbone fiber-optic Internet channel has nothing to do with the download speed and ping of a particular end user! ”). Fortunately, after another game in legal ping-pong, I was allowed to testify on the Internet. And the day before, our lawyers, in the process of preparing for the hearings, arranged a role-playing game in which I learned to behave correctly during the process. And from the first minute everything went wrong.

- Can you, Mr., explain the high court, what is your job? Just as easy as possible, please.

- Well, I'm trying to invent all sorts of different things that would be so easy to learn that my wife wouldn't even need an operating manual to use them.

- No, that will not do. You've already lost half the jury. The prosecution will convince them that you are releasing sexist jokes about female intelligence.

We spent the whole day, having fun in this way, but I was never able to fully prepare for the humiliating interrogation of a hostile lawyer. Almost immediately, she asked me: “Mister, is it in the nature of things to steal other people's ideas for your company, or was it an exceptional case?”



And away we go. And the end of the interrogation was generally beyond my comprehension. “And the very last question. Will you, as a personal insult, call your wife and children to testify to the High Court? ” Since at that time my children were seven years old, and my wife is an artist and doesn’t understand the technical details of my work, I said after a short delay that I don’t see the point, but I don’t take it as a personal insult, no. After the process, I asked one of our lawyers what it was for. What could the wife and children add to the testimony that I already gave? He shrugged: “You know, they don’t care at all that your wife and children know or do not know. The only thing that they worry about is how it would be stronger to hook you . They are looking for ways to make this process so disgusting for you that you just spit and pay them compensation. ”



It turns out that patent trolls are a part of our life, as inseparable as intrusive mosquitoes or as basement rats. I would certainly like to get rid of all of them, but this is impossible. You have to clap the most annoying from time to time, and try to think about the good the rest of the time.