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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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Should never get that far | 101 comments | Create New Account
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Should never get that far
Authored by: ailuromancy on Saturday, August 11 2012 @ 10:54 PM EDT

Thousands of pure software patents are granted in the EU each year by calling the software patent a "computer implemented invention". By the time a defendant is asking for JMOL, at least 100,000 has gone done the toilet, and cannot be fished back out because the troll will be bankrupt. The troll's brother will be back the next day with another invalid patent. (A director of a bankrupt company cannot become director of a new company, but can remain director of an existing one. All he has to do is split a safe company into two, and he has a new shell to go trolling with.)

What we need is an existing law that gets trolls into prison today. The racketeering laws are an obvious first choice. The other place to look are the laws concerning "innocent unless proven guilty", and "cruel and unusual punishment": before a jury gets anywhere near a verdict, the defendant has already had to take days away from his business reading simple computing techniques translated into opaque patent language. Patent lawyers may enjoy that, but for everyone else it is torture.

Another line of defence is where the plaintive asks for $4,000,000,000 when a reasonable license should be under $100,000 if the defendant is actually infringing a valid patent. Even at ten times reasonable, that is $3,999,000,000 of fraud.

There is no point discussing how to define what is and is not patentable with a patent lawyer. They will just invent some new terms in patent language describe non-patentable subject matter, and claim because the words are different the patent must be granted. Instead of arguing in terms where they are expert, move the discussion to places they do not want to go, like the damage they cause and "why aren't you in prison?".

[ Reply to This | Parent | # ]

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