Visiting a fairy tale: patent trolls

Patent trolls have long appeared and still often appear on the first lines in the news when lawsuits are sent against industrial giants such as Apple, Microsoft, Samsung and others. However, not so much large corporations as small companies and startups suffer from patent trolls. This is due to the fact that small and new companies simply do not have the resources to resist trolls, because in addition to the high cost of litigation, you must be able to defend their rights to products, which is usually difficult for start-ups because of the lack of intellectual property protection (IP).

One of the good articles on strategies for responding to letters of complaint from such parasites as trolls was published in the Kaspersky Lab blog and is based on the company's experience. In my own article, I want to highlight the topic from the point of view of helping companies in this difficult task.

Supporting communities

It is clear that not every company will venture to go against the patent troll. How to increase the chances of small businesses in the fight against trolls? For this, different communities were created, for example, PatentShield , LOT Network , The Patent Troll Defense Network and others.
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Developers and small businesses were given the opportunity to use the services of law schools and lawyers who participate in The Law School Patent Troll Defense Network for free. To do this, you must send a request on the community site, describing the activities of the company and the situation. The community has been formed and is managed today by the Application Developers Alliance. Helping small businesses to get around the situation of paying royalties to patent trolls contributes to a more global goal, namely to make patent trolling less profitable and as a result of forcing investors to abandon the financing of trolls.

PatentShield provides access to a collection of patent portfolios that will be needed to deal with patent troll lawsuits. Startups will be able to apply patents written by experienced companies and research institutes against the troll in court proceedings. PatentShield is managed by Intertrust as part of a holding and offers membership for a certain amount, which depends on the development of the business, the company's products and the risk of potential litigation. To date, the proposed patents belong to Intertrust and Google, but some of them are purchased from other large companies. In addition, members of this organization will have access to recommendations for building an IP protection strategy from a team of IP specialists from Intertrust.



An interesting fact is that Google is also a member of another anti-patent trolls network: LOT (License on Transfer) Network. The principle of operation of this network is different and consists in preventing possible attacks. Namely, when joining the community, an agreement is signed and if the patents of one of the community members get into the patent troll in one way or another, the remaining participants will have automatic licensing of these patents. This means that they cannot be applied in court against companies that have signed the agreement. Licensing takes effect only in the case of transfer of IP to the patent troll (designated in the agreement as Patent Assertion Entity). Membership in such a community also requires certain costs, but not for startups with an annual turnover of less than $ 5 million - for them joining the community is free.

Legislative regulation

In talking about patent trolls, many have expressed the view that it is necessary to prohibit software patents, backing it up with words no patents no problems with trolls. I think differently, software patents also protect the intellectual property of developers as well as in other areas of inventions. The problem of patent trolls does not lie in the very fact of the existence of IP protection, but in the absence of regulation of such manipulations by the law.

For example, in the USA at present, more and more bills are under consideration in Congress, 7 legislative proposals put forward by the White House, not to mention one law at the state level. But unfortunately, none of them solves the specific problem of the breadth of software patents and patent trolls, but only prove the imperfection of the existing patent system.

The Electronic Frontier Foundation (EFF, the leading nonprofit organization in the US protecting civil liberties in the digital world), advocates the following measures to ensure proper legislative regulation:

Changes in fees - to introduce a requirement for mandatory bail by the plaintiff in case of legal proceedings.

Transparency :

• Real stakeholders - respondents must know every side that financially benefits from a patent lawsuit;
• Tracking complaint letters — open-access letters will help companies identify trends and team up against a single troll in a specific area;
• Clarity of the petition - patent claims must be clear and precise, what and how exactly is violated. There are cases when patent trolls simply throw a pool of patents into a company, claiming that it violates them all.

Revising the legality of a patent - According to section 18 of the American Invents Act, anyone threatened with a claim may request a revision of the legality of patents of certain categories from the patent office. However, this does not apply to software patents, as well as being a temporary item, namely until 2020.

• Substantive statement - patenting a specific solution. As you know, software patents are very wide and cover many solutions to one problem. It is proposed to narrow the requirements for software patenting.

The problem of patent trolls continues to annoy companies in the electronic sphere, but work on the solution is well underway and there are more and more communities and initiatives to support small businesses that find themselves in sad situations. It must be remembered that you can not give up, but to repel parasites using all possible methods.