New USPTO Memo Makes Fighting Patent Trolls Even Harder
80 comments
·March 21, 2025niwtsol
dctoedt
See Blue Jeans Cable's classic response to a patent cease-and-desist letter from Monster Cables: The Blue Jeans Cable CEO was a former litigator who pulled no punches in his response. [0]
[0] See https://www.oncontracts.com/monster-cables-picked-the-wrong-... (self-cite).
jnsie
> Not only am I unintimidated by litigation; I sometimes rather miss it.
Sumptuous!
dkh
I get an adrenaline rush just reading it
dkh
This man is my hero. What an absolute legend
elevatedastalt
Doesn't it cost a lot in legal fee to the troll too? How are they able to finance it given that they are basically a sham company?
conartist6
Because they don't expect to win the lawsuit. Their odds of winning a lawsuit aren't that good, so their goal is to badger a founder into settling. A founder would likely be killing their creative endeavor to become their own lawyer and go to court for themselves, and the trolls choose targets for whom paying a lawyer for the length of one of these trials would be prohibitively costly.
In other words, their real business model, the reason that they can be considered a "safe investment" is that they operate as an extortion racket at scale with the justice system itself as their (free) muscle.
hattmall
The defense to this is multiple LLCs and licensing schemes. Just like the troll, don't hold any assets in the vulnerable LLC. If Walmart sells a bootleg shirt the IP holder can't sue the company that cleans the parking lot.
whatshisface
How's this?
1. You buy "litigation insurance."
2. You state that you are insured on your website.
3. The insurance company is required to defend in all patent cases that arise, so there is no doubt that you will be represented in court.
4. Nobody sues.
5. The insurance company makes a profit with no cost or risk.
Someone1234
The troll is lawyers, so it only costs their own time.
ziddoap
It's like spam.
Send out 1,000s of dubious demand letters which don't cost much. Some percent of those will settle with minimal effort on the troll's side. Profit.
Drop the ones that look expensive and hope they don't counter sue.
HeatrayEnjoyer
What would they counter sue for?
gist
> We ended up fighting it a bit because of "principles" by our founder. - in discovery there was something like 1,000 of these exact demand letters they had sent.
I am noting you have not said how this ended up. What does 'we ended up fighting it a bit because of "principles" of our founder.
ddtaylor
It means they pushed back then settled without any useful resolution. The troll didn't get a big payday, but they didn't get told to stop and it set precedent helping them shake down others.
Teever
The correct course of action in situations like this is to name and shame.
rcxdude
How does that help? A patent troll doesn't really have any reputation to protect.
toasterlovin
Would the bar association in the lawyer’s state be interested?
Teever
If legal consequences aren't a possible avenue to prevent unacceptable behaviour from someone then a viable alternative is to make that person a pariah.
The more people know that someone is doing unscrupulous things the more people can choose to not do business with that person or interact with them in a friendly matter.
Ideally this would lead to a scenario where they lose the means to continue to do unacceptable things and they would be forced to stop.
lofaszvanitt
How come you can sue others and the court doesn't check whether you have the funds if you lose? I mean if you don't have funds allocated away in case you lose, then why start the proceedings?
adgjlsfhk1
Because it's generally considered bad policy to make it illegal for poor people to sue.
lofaszvanitt
Yeah, that's trivial. But law has so many edge cases and seemingly it always favor either powerful or wealthy individuals.
Plus, poor people cannot afford the litigation costs...
ddtaylor
Because solving the answer to what is the correct legal interpretation is not concerned with if that interpretation yields economic identities.
gist
I think like so many things the idea of 'patent trolls' has taken on a meaning whereby anyone who has a patent but no operating actual company (as you are describing LLC with 5 members and a lawyer) everyone automatically thinks 'sham'.
On the surface by stories related that certainly appears to be the case.
However we don't have any data (only anecdotes) on how many patents are pursued this way that are actually valid. And 'back in the old days' it used to be that you could have an actual patent and then get shafted by some large corporation simply because they could afford lawyers and you couldn't (meaning 'mr small inventor')
What I am saying in no way means I don't think there is probably abuse (there are enough anecdotes to think 'something is wrong here') but really we need the entire picture and dataset to decide that (in all fairness).
karaterobot
It's not really a question of whether the patent troll has a legitimate patent or not—in the sense of having clear ownership over the IP, that is. They generally do. We consider someone a patent troll when they don't make use of the patent themselves, except to extract money from other people, typically through threats of legal action. They're exploiting the fear of being sued for a lot of money in order to get a comparatively small amount of money in exchange for agreeing to not sue. "Troll" here is in the pre-internet sense of the word, not someone making up a fake story on a message board, but more like a troll living under a bridge, demanding money from people in order to cross it.
ted_dunning
Trolls often have clear title to a patent that covers something. Many of these patents should not have been granted, but they were. If you fight them to the end, you can often get the patent invalidated, but the trolls are smart enough to settle before that happens.
But they generally don't have a patent that covers anything real. Even ignoring the situations where the patent is indefensible through defects in process or due to prior art, the claims in these patents often don't actually read against the businesses being sued.
The problem is that it takes tens of thousands of dollars per patent to get an opinion from your own lawyers about whether the patents bear on your products or processes and you pretty much have to do that even if you never go to court.
gist
> when they don't make use of the patent themselves, except to extract money from other people, typically through threats of legal action.
If someone has (what you have called) 'a legitimate patent' then they have the right (whether they use the patent or not) to then pursue legal action to either stop use of the patent or to settle for money damages.
What companies don't like is someone coming along with the ability to engage legal help that they wouldn't be able to do with out the attorneys that are handling this (to gain a payoff for themselves which well attorneys do for other things).
However while this seems different than similar things that happen (with actual companies with legal resources) it's really just the same thing just by different parties.
If let's say General Electric has a patent on something and you use that patent GE can come after you (and probably will). Same as with large companies defending their IP (trademarks).
whatshisface
The policymaking with regards to industry is functioning more like a clearinghouse, where every interest group gets to have their targeted policy, than a coalition, where the event that one interest group's target policy would hamstring another member would result in dealmaking and some sort of compromise. Certain industries like the steel industry receive steeply protectionist trade restraints, but they're also being de-prioritized in favor of non-producing vexatious litigators who stop them from innovating. In essence this is similar to how some industries are seeing major policy-driven price increases on their outputs and inputs. Multiply that by every lobby and that's all I can interpret out of the big picture.
ujkhsjkdhf234
> Congress Created IPR to Protect the Public—Not Just Patent Owners
For this administration, this is a problem to be solved. Big business are the masters now and we need to make it easier for them to step on small business by any means.
herniatedeel
Big business isn't really monolithic when it comes to patents. Some large tech companies love patents (MSFT, e.g.), while others (Google, e.g.) seem to abhor them.
Also, the troll problem is a problem for big business, not a benefit to big business.
antasvara
Patent trolls benefit from it being expensive and time-consuming to challenge patents (and defend yourself from infringement claims)
These regulations are actually beneficial to big business. It makes it significantly easier to defend your own patents and sue anybody that infringes on them.
I imagine that these benefits are much bigger than the downside of dealing with patent trolls.
zerkten
Are tech companies really the ones lobbying hardest for policy changes? I suspect other industries are the ones pushing harder with fallout for tech.
ujkhsjkdhf234
Tech companies aren't the only big businesses in the US.
null
reverendsteveii
Why do we keep moving toward a system where being ahead is the most viable way to get ahead?
01HNNWZ0MV43FF
Power accumulates the same way rivers flow into the ocean
If there is no continuous effort to tax rich people and split up political power, democracy will fall back into feudalism
quantified
"While" not "if"
vkou
Because of the golden rule.
The people with all the gold make all the rules.
gosub100
Because "we" don't have a functioning democracy. Only the illusion of one.
null
robocat
I think systems grow by themselves - more like a biological ecosystem. Even powerful politicians seem to often be reduced to dealing with the outcomes of a system without seeming to understand how that system works. The idea that people are in charge leads to conspiratorial theories: imagined incentives of people behind the scenes.
However I know I look at the world differently from most people: so it is just as likely my own views are warped.
DrillShopper
Because money controls things
floatrock
because r > g
HPsquared
Not sure what that is but it's more like the Lotka-Volterra equations (predator–prey model).
https://en.m.wikipedia.org/wiki/Lotka%E2%80%93Volterra_equat...
btrettel
See https://en.wikipedia.org/wiki/Capital_in_the_Twenty-First_Ce... for an explanation of r > g.
buckle8017
Maybe it's time for a patent pool for non-trolls covering patent to behavior.
herniatedeel
Defensive patent pools exist, if that's what you're saying: Unified Patents, LOT network, and RPX are a few.
ted_dunning
Defensive patents don't really help against trolls since they don't actually make products. That means that they don't infringe on any patents and thus your defensive portfolio doesn't get to play.
jerry1979
I'm confused. Do you mean a patent that patents 'patent trolling'?
sejje
Way too much prior art, no?
And we want people using the patents, so you'd have to actively troll...
yubiox
I can't parse this sentence. I even tried reading out loud. I thought maybe to=troll but still I can't understand it.
cryptonector
Has the new administration replaced the leadership at the USPTO yet?
knowaveragejoe
What makes you think this is something the new administration would take issue with?
cryptonector
Did I indicate that's what I think? My question was quite fair.
daedrdev
IPR is a tool that weakens all patents. Saying it helps trolls at the expense of everyone else (which this article says) is a bad faith argument. Weakening IPR helps all patent holders fight for their rights, including trolls. Considering how the tech industry has bullied its way past numerous rightful patents, this seems like it could be reasonable or might not be.
If you think we should have no patents be my guest, but this helps non troll patent holders and not just trolls.
dctoedt
(Inactive) patent litigator here (been doing other things for some years now): IPRs are way better than jury trials for determining patentability.
amelius
We should have notarized LLM models for this. Timestamp your LLMs, put them in a notarized database. Then, if you en up in a patent lawsuit, just fire up the relevant LLM, and ask it in simple terms to reproduce troll's claims.
elevatedastalt
Should it be put on the Blockchain too?
textlapse
Patent this idea! now! And timestamp it! in an LLM!
herniatedeel
For what purpose? If it's for prior art, the prior at must have been publicly available, so a private LLM wouldn't work. Perhaps I'm missing your point, though.
kam
I think the idea is that if an LLM trained prior to the patent date can reproduce the invention, then either the idea is obvious or there was prior art in the training set; either way the patent is invalid.
btrettel
I had similar thoughts before. It's worth thinking about what attorneys will do in response to rejections based on LLMs reproducing ideas. I'm a former patent examiner, and attorneys frequently argue that the examiners showed "hindsight bias" when rejecting claims. The LLM needs to produce the idea without being led too much towards it.
Something like clean-room reverse engineering could be applied. First ask a LLM to describe the problem in a way that avoids disclosing the solution, then ask an independent LLM how that problem could be solved. If LLMs can reliably produce the idea in response to the problem description, that is, after running a LLM 100 times over half show the idea (the fraction here is made up for illustration), the idea's obvious.
simoncion
> ...if an LLM trained prior to the patent date can reproduce the invention...
Would we even be able to tell if the machine reproduced the invention covered by the claims in the patent?
I (regrettably) have my name on some US software patents. I've read the patents, have intimate knowledge of the software they claim to cover, and see nearly zero relation between the patent and the covered software. If I set a skilled programmer to the task of reproducing the software components that are supposed to be covered by the patents, I guarantee that they'd fail, and fail hard.
Back before I knew about the whole "treble damage thing" (and just how terrible many-to-most software patents are) I read many software patents. I found them to offer no hints to the programmer seeking to reproduce the covered software component or system.
amelius
Yes that's the idea, and now I'm wondering why I'm being downvoted. Maybe the patent trolls don't like it.
bschmidt704
[flagged]
We dealt with some patent trolls back in the 2010-2020 era, for those who have not experienced it, it is absurd. In our case, the patent "troll" was an LLC w/ ~5 members - 2 lawyers, 1 person who owned the original patent, and some spouses. The only "asset" of the LLC was the patent. I think it was around scrollbars or some CSS overflow thing - they sent us a demand/cease-desist letter saying they will sue for $1M and asked for a call. Classic Lawyer call "well, we can make this all go away for $25k." We ended up fighting it a bit because of "principles" by our founder. - in discovery there was something like 1,000 of these exact demand letters they had sent.
The kicker? If you fight back, it costs a ton in legal fees, and even if you win, you can’t recover those fees — because the LLC’s only asset is the patent itself.
Just insane to me we would take a step back like this.