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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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SIIA Tells the FTC What Patent Trolls Are Doing to the Software Industry ~pj | 225 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
SIIA Tells the FTC What Patent Trolls Are Doing to the Software Industry ~pj
Authored by: tknarr on Monday, May 20 2013 @ 03:32 AM EDT

I'd say that and one additional requirement:

The fact that the defendant did not produce the product claimed to infringe the patent is a nigh-absolute defense. If the plaintiff has not prevailed in an infringement action against the entity that manufactured the claimed-infringing product, any infringement suit against any other entity shall be immediately dismissed.

This doesn't imply that prevailing against the actual producer guarantees your right to successfully sue end users. You still have to meet all the other legal requirements and those end users still have all the ordinary defenses available to them. It just means that if you haven't prevailed against the actual producer you automatically lose against end users.

[ Reply to This | Parent | # ]

SIIA Tells the FTC What Patent Trolls Are Doing to the Software Industry ~pj
Authored by: Anonymous on Monday, May 20 2013 @ 08:39 AM EDT
I think this would not be enough to create clarity, many times things are
settled before court.

Patents should supposedly help industry by offering a number of inventions,
temporally on a pay-by basis. So how could anybody defend secrecy in that area?
What public interest would be served that way?

For me, any patent holder should make a reasonable effort to prevent anybody
infringing by publishing information about his patents and contacting potential
users of the patents.

If he thinks somebody is infringing he should, while contacting him, contact
also all others probably infringing parties at the same time with all relevant
information, the patents involved, the contacted parties, the reason why he
thinks they are infringing.

Not proving a reasonable effort to do so, would have consequences in later
damages he can get. If somebody was not properly informed, a court could allow
an infringer some time to switch his production system without paying any
damages.

These rules would balance with the rule that higher damages can be asked for
someone knowingly infringing. But more importantly, they would give a better
guaranty for equal treatment of different companies active in a sector,
necessary to keep competition alive.

There may still be situations a manufacturer needs more legal certainty. He
should be able to challenge potential patent holders by publishing some
information about his new product. And be sure to receive information about
every possible claim within a limited period of time.

Compared with the actual system, this looks as science fiction. But is there a
reasonable way to defend not having such rules in place? Something right and
proper?

[ Reply to This | Parent | # ]

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