On Tue, 2005-10-18 at 13:07 -0700, Chris Travers wrote:
Gregory Youngblood wrote:
> On Mon, 2005-10-17 at 12:05 -0700, Chris Travers wrote:
>
>>5) Independant patent license firms. I guess it is a possibility, but in the end, companies that mostly manufacture lawsuits usually go broke. Why would you sue a non-profit if you were mostly trying to make a buck with the lawsuit?
>
snip
> Often, the smaller targets will settle and license the patent because
> the cost to defend themselves is so high that it is cheaper to pay the
> license fees than to fight (this sounds familiar, oh yeah, protection
> rackets). These "firms" then use those licensees to legitimize their
> patent, claiming others licensing the patent "proves" their patent is
> enforceable. Then they target bigger and more lucrative fish.
IANAL either, but I am hard pressed to determine where such a settlement
proves anything (at least in the US). Now if you go to trial and lose,
then the same defenses may be unavailable to others. I.e. if the court
determines that your arguments for X being prior art do not impact the
invention in question, then the next defendant will probably be barred
from arguing that X is prior art at least in reference to the same
invention. But this cuts both ways... If the courts determine that X
*is* prior art, then the patent may be limited by the courts. I.e.
prior suits don't prevent new defenses which is why serial enforcement
of patents is so dangerous (sooner or later, maybe someone finds a chink
in the armor), but facts necessarily decided as part of one case are
generally considered beyond dispute.
That's why I put the word proves in quotes when I wrote it. It doesn't prove anything. But, it does give them ammunition.
The smart ones will stay out of court, precisely for the reasons you listed. As they move up the food chain, going after larger and larger targets, you can bet one of the arguments they will throw around is that X others have already licensed this patent, making their patent seem more legitimate.
Still doesn't make them right.
