There are definitely low-cost and pro bono (free) options out there for very small businesses. The EFF attorney referral list is a good place to start.

I'm also happy to talk it through with you if you'd like more specific information - my contact information is here: https://shawkeller.com/attorneys/andrew-e-russell/

[1]https://en.wikipedia.org/wiki/Alice_Corp._v._CLS_Bank_Intern...

And I wish all the best

There are in fact legitimate small inventors who must approach large companies, and that situation predates the hardware and software industries, but it was software and hardware people that created this idea of the "patent troll". If there was a "bad" situation that existed before Intellectual Ventures was founded, no solution was offered by those who were negatively affected. Rather, the approach taken was "If you can't beat `em, join `em." One could argue, as a result, the situation went from bad to worse.

I'd say the business idea was created by the govt. Finding new ways to profit via exploiting the laws will always happen sooner or later if they exist.

Hardware and software are perhaps unusual because the patent office has such a divergent idea of what is and novel and obvious to experts versus reality, presumably because computer technology moves so fast.

https://www.eff.org/document/memo-uc-regents-re-patent-licen...

What would people call this. What is this LLC actually going to produce, besides licensing revenue or litigation.

(But you probably have a point that if patents are legitimate than an otherwise ethical patent troll would also be legitimate)

I'm not sure it's possible to be an "ethical" patent troll. It is a structure explicitly chosen to minimize any collateral in case their patents are thrown out in court, claims are invalidated, and they have to pay to for the counterpart's expenses (and which point the company is simply dissolved, with little to no damage to the owners).

If somebody is so sure their patents are valid, let them form a "real" company which utilizes said patents to bring in revenue, and let that company go to court with competitors and bear the risk of having to pay for frivolous lawsuits.

Not that I think that that software should ever be patentable, of course.

There are a variety of reasons why forming a "real company" that produces products might not be practical. For example you might be in a field where the startup costs for a competitive company is in the billions (silicon manufacturing), or that is a natural monopoly already monopolized by one or two big companies (operating systems). Your competitors also have patents on things that you would need to be competitive and for whatever reason you aren't willing to license them.

Or really you might just not be well suited to running a company, bad at managing people or whatever, and if patents are legitimate it seems like they are legitimate regardless of whether or not you want to start a company.

(PS. I'm generally against patents, and strongly against software patents, but that's neither here nor there on whether or not patent trolls are legitimate under the assumption that patents are)

> There are a variety of reasons why forming a "real company" that produces products might not be practical. For example you might be in a field where the startup costs for a competitive company is in the billions (silicon manufacturing), or that is a natural monopoly already monopolized by one or two big companies (operating systems). Your competitors also have patents on things that you would need to be competitive and for whatever reason you aren't willing to license them.

But what are you doing with those patents, then? As much as we both consider them to be a bad idea, patents are supposed to be a vehicle to promote tangible advancements in the field, to encourage development and manufacturing. If you don't produce anything but just stop anybody else from doing that, or just collect rent by granting out permissions, you are not using patents "correctly".

I'm not sure it is either, the law is a blunt tool and it's not always possible to legislate things like "be ethical".

One potential way to do legislate this is to require that plaintiffs place funds in escrow pending the outcome of the case, to pay for the other sides fees if they lose. Occasionally courts will already order this under current law. I'm not going to generally advocate for that as a good idea though, I think it probably has a lot of side effects and I haven't put enough thought into it to be sure it is a good idea.

> But what are you doing with those patents, then? As much as we both consider them to be a bad idea, patents are supposed to be a vehicle to promote tangible advancements in the field, to encourage development and manufacturing. If you don't produce anything but just stop anybody else from doing that, or just collect rent by granting out permissions, you are not using patents "correctly".

Theoretically, it was the act of inventing that occurred prior to the award of the patent that the patent is supposed to be rewarding. The reward is precisely the ability to extract rent from people who use the invention (whether by making it and selling devices at a premium, or licensing the patent).

You see this mechanism actually function in pharmaceuticals for instance, because patents are so valuable there are companies that pour resources into inventing new drugs that they can patent. (I have other issues with patents in this industry, I wrote about them elsewhere in this comment thread, but the reward mechanism really does motivate useful work here: https://news.ycombinator.com/item?id=27587034)

That's an interesting direction, but how does the collateral compare to the average lawsuit's costs? What happens if the suit drags on, exceeding the collateral, do the parties just agree to disagree and drop it?

I could also be a small company, on the defending side, which is the frequent case in patent trolling scenarios. I shouldn't be barred from defending myself in court if I don't have the ability to post the collateral up front (if I'm convinced my case is strong, at least).

On the flip side, a small IP owner should still be able to sue a giant company that is violating their patents/copyrights/etc. Even if the said company has a lot of money and is liable to create huge attorney bills. But I suppose if the escrow for plaintiffs becomes more common, it's a small price to pay for the benefit of the whole ecosystem.

> You see this mechanism actually function in pharmaceuticals for instance, because patents are so valuable there are companies that pour resources into inventing new drugs that they can patent. (I have other issues with patents in this industry, I wrote about them elsewhere in this comment thread, but the reward mechanism really does motivate useful work here: https://news.ycombinator.com/item?id=27587034)

Good points on the pharma industry.

But okay, let's agree that there are pharma companies (research laboratories, etc) that don't ever do the end production themselves. Perhaps that's even a good state of affairs (of which I'm less certain).

Still, those companies are "real", and they have financing and budgets for stuff other than the patent lawsuits. They have to do the said research and put quite a lot of money in it (which is what makes those patents valuable and arguably a benefit to society as a whole), and that distinguishes them from an average patent troll.

You would expect the value to be set by the court as an approximation of the amount of fees that they might award to the defendant (which in turn is an approximation of what a reasonable defense might cost), as the lawsuit goes on you would expect the court to periodically increase the collateral requirements on the plaintiff, since the total cost to defend the suit has gone up.

Small, legitimate, companies having to put up collateral is an unfortunate side effect, but if they have good claims (and can convince a lender of that) they should be able to finance it... so that's probably not the end of the world? It does seem like a bit of an access to justice problem, not really sure how I feel about it.

> They have to do the said research and put quite a lot of money in it (which is what makes those patents valuable and arguably a benefit to society as a whole), and that distinguishes them from an average patent troll.

This is true if they license the patent directly to the manufacturers, but that's not necessarily the case. It seems entirely reasonable for a company to discover a drug, patent it (so they have something to sell), and then sell the patent to another company that deals with licensing it out to drug companies.

A license management company (aka patent troll) in the middle comes with a number of benefits:

- Chances are there's still a lot of risk associated with that drug, e.g. it might fail in human trials, by selling the patent immediately you reduce your risk.

- Licensing patents is not your core competency as a drug discovery company, it makes sense to have an entity that handles licensing for the patents invented by many different drug-discovery companies.

- You might, for whatever reason, want to stop operating as a drug discovery company. Maybe you want to retire. This shouldn't wipe out the worth of your previous work.

Generally, assets being transferable seems like a good thing. A lot of our society is based upon that principle... and if patents are transferable, it seems inconsistent to say "you can do X with asset Y, and so can most other companies, but not if the only thing a company does is doing X to assets Y". Inconsistencies like that generally lead to weird arbitrage opportunities and inefficiencies in society...

So the system might still work fine even if all patents get shut down when a company that acquired them does.

It's not what I suggested, though: just that a non-practicing (at least in some sense) company can't litigate.

That would mean that you can sell your patents to some shell company even. But the recipient couldn't sue anybody over them until they either start a profitable business on the side relating to said patents. Or they resell it again to a company that satisfies the requirements. Or have a lump sum set aside in escrow, I guess.

I assume the patent troll approach would be that they're returning value to their investors, while following the law as it stands.

We should not through out the baby with the bathwater....

Example: Are you going to reverse self-driving code from a vehicle giving you are ride? Or a server behind an API?

I looked into just the fees to file a patent, and it's for middle class, upper class folks, institutions, and companies.

The poor guy tinkering around in his wood shed is not filing patents.

Maybe not throwing out all patents us a good idea? I don't know, but an American citizen (low income) all fees shouid be eliminated.

I would like to see a limit on patents anyone can file, or a graduated fee structure?

1 patent free. (low income. $300 everyone else) 2 patent $500 3 patent $500,000 4 patent $1,000,000,000

This would at least limit those guys patenting round corners?

So is copyright, without them both the concept of IP dissapears.

Patents at least have to be usefull, and documented publically for future use.

Copyright of code by comparison is an abomination, it does something to your smartphone and data, you have no right to inspect it or change it.

My pet example is the mosquito laser. They invented it at MIT, and showed that it could effectively shoot down mosquitos that pass between posts. The hardware costs were a bit high, but would come down drastically if someone mass-produced custom chips for it. But, the overall idea is patented, and currently held by a “think tank” licensing company, and no product has emerged. I can only assume that it is because their licensing demands are too high. I’d be happy to start my own company to build mosquito lasers, but I’m sure that their licensing costs would kill any profit from it, so I don’t. And so the world is left with no mosquito lasers for more than a decade.

If you want another extreme example, the 3D printer craze was kicked off by the expiration of a patent on the FDM process: https://www.fabbaloo.com/blog/2020/3/2/the-challenge-and-opp... The innovation in the 3D printer space probably lost 10 years due to that patent.

One possible solution to the problem, without throwing out the entire patent system, would be to create a mandatory licensing system with fixed rates. For example, if you know that your design is about 60% patented, and there is a law that says 20% of your profits have to be given to the patent holder, then you might be able to go ahead and make the product and still turn a reasonable profit. The patent holders would get paid something and the products would continue being innovated without these stupid wait-17-years delays. Also it would put less severe stake on the patents, so people could just argue out the details in court about who gets how much money without worrying that it was going to bankrupt a company or kill the product line.

As soon as any technological idea becomes well-known, say some research idea getting hyped in the media (e.g., quantum, VR, some new kind of laser, 3D displays, etc.), then people everywhere run out and patent all possible imagined ideas of how this new tool might be used to make products.

This seems an arbitrary assumption. Products don't make it to market for myriads of reasons. Seems like a poor example to use to target patents - especially as with patents you know that within ~20 years that idea will be freely available to everyone.

Innovation seems to come from

- Academics, who would be doing the same thing regardless of patent revenue

- Entrepreneurs (and people working for small companies), who are hurt much more by the existence of the patent system than the potential revenue from it.

- People working for big companies, who would almost always be building the exact same product if the patent system didn't exist, except they wouldn't have to worry about working around competitors patents.

Certainly the patent system makes some people money, but it mostly seems to be

- Lawyers (for obvious reasons)

- Owners of already very large and no longer very innovative big companies, who had the time to build up a war chest of patents.

I don't particularly believe that giving extra money to either of those groups encourages innovation, and I certainly don't believe it encourages innovation enough to make up the harm it does to people attempting to be entrepreneurs, people having to work around patents, and so on.

---

One potential exception to this is bio related industries, which are different in that patents are often the primary product a company produces, instead of a byproduct produced by engineering work that happens for other reasons. Without patents you would need to find another way to fund that work, if you want it to happen. I wouldn't call most of that work particularly innovative though, it's mostly just very expensive mind numbing work like "trying a million different possible drugs" and "running huge human trials" and so on.

I would generally prefer that the bio work be funded by a different system, because I don't think the patent system produces good outcomes for society. It creates perverted incentives to always be creating new drugs, instead of finding new ways to use old ones. It creates perverted incentives to not build on each others work. It means that drug companies have the ability to charge substantially more than the cost of production for drugs they produce, meaning people who could be treated cheaply in an optimal system go untreated (note: The marginal cost of treating more people is really small since the expensive part is the R&D that already happened). Moreover it forces drug companies to do that if they want to recoup their R&D costs.

Something like direct government subsidies to companies who discover drugs that people end up using (for medical purposes) seems like a better solution. There are a million variations on that, but I'd claim that basically any variation on that is probably better than patents.

And a novel high performance x86 CPU design. x86 is patented thoroughly, although now it ought to be ok to ship one that has the features from about 20 years ago. I would still recommend to be cautious!

And an ARM one. ARM is known to some in the field as a company with an army of lawyers after all.

A lot of innovation happens when patents expire.

Other people's open source FPGA designs are shipping now (and kudos to the designers - they are really well implemented!), in part thanks to many of the basic patents on FPGAs expiring about now.

I would be quite surprised if RISC-V implementations aren't dependent on a number of key patents having expired by now.

FDM 3D printing (where hot plastic is squirted through a moving nozzle) became popular when the patents on it expired. Some people into open source 3D printing think it happened because that's when people innovated. They did innovate at making it low cost, but the expiry of the patents was a factor too.

At the moment I'm building a specialised high-performance database engine, and I have to explicitly avoid some of the obvious on-disk data layouts because they turn out to be patented. It's annoying having to come up with some "clever" alternative, but I'll find a way.

I don't know if patents encourage innovation on balance, but they've definitely prevented me from shipping some fairly advanced things I've worked on in the past.

I don't begrudge the companies or the system, but I will argue that there is plenty of innovation impeded by it, and in my experience I have never worked anywhere that patents helped, only places where they hindered. It could happen but it hasn't yet.

When I discussed this with a patent attorney once, there was a fascinating gulf between people who dream up patentable (or already patented) solutions almost casually on demand when faced with a problem, and people who think this is impossible and such insights are precious gems that rarely occur. I'm sure it differs between fields, and I know there are some very clever patents. But in software and to an extent hardware, the two fields I'm most familiar with, most patents seem to cover natural solutions to a problem which would occur to anyone skilled in the area when faced with that particular problem.

https://www.gearhartlaw.com/2016-9-8-a-way-to-defeat-a-troll...

IIUC, inter partes review is a relatively recent (9 y.o.?) patent law practice that allows 3rd parties to challenge patents directly to the patent office any time between patent award and expiry. I had thought there was only a short period this could be done after award of the patent.

[0] https://www.ecfr.gov/cgi-bin/retrieveECFR?n=37y1.0.1.3.12#se...

(*) Edit: An IPR may seem expensive (~$500k is average), but if successful it is much cheaper than winning a patent infringement lawsuit ($millions).

When troll will try to annoy the new owner - the troll will be dealt with in the way he deserves.

They had another meeting to go over it with IBM to show results. Not impressed IBM said fine you don’t violate those. We have a hundred thousand more patents.

Are you buying a license for these, or should we go find more that you “violate”

Company purchased a license.

This was 20 years ago.

You don't have to "own" tech in order to infringe a patent. Making a product that includes the technology protected by the patent, or selling it without there being a license (eg you buy it offshore where they're not covered by a particular patent, but you sell it where there is a patent covering that tech).

None of that matters in USA, as the threat of a lawsuit is threat of massive costs; ostensibly it doesn't matter that the court would award costs of a few $thousand against you if the lawyers to get you through the case cost $100,000s.

This is my personal opinion and not legal advice.

Edit: A link to that story: https://www.forbes.com/asap/2002/0624/044.html

On a side note, I know someone who’s company got sued, then when the lawyers came to the table to negotiate, they showed him a list of other companies that had previously settled with them and the amounts they had settled for. He said the lawyers had clearly done their homework in terms of estimating how much it would cost the company to go to court and the proposed settlement amount was within 10-15% of that estimate. He decided to settle.

Trolls' method is exactly racketeering because it's extorting money using threat tactics. "You don't want something worse happening to you? Better pay up XYZ amount!". It's not going get much more classic protection racket than that. Except they threaten not with beating you up, but with you spending millions on court cases. I'd say trolls getting jail time for this garbage should be a good medicine for them.

Right, but law actually presumes they are valid. Which is why its tough to go after a troll for asserting a valid patent.

Aside, in the UK there's compulsory licensing (UKPA Section 48x to prevent people from inventing stuff and refusing to license it (at reasonable terms), too.

And that is the grand joke of the patent system.

But, as I tell my kids: Just because you're right doesn't mean you won't go bankrupt proving it in a court of law.

IANASBO (I am not a Small Business Owner) so I can't say I wouldn't necessarily do any different, sadly. But I like to think I would.

That’s why leading companies have come together to form a collaborative, voluntary community to reduce this risk – one that grows in importance as the economic environment becomes increasingly uncertain.

Also wanted to ask, how can a software guy get into IP law?

Write to each of your competitors, explain the situation and ask for a referral to their lawyers. You'd be surprised how many are more than willing to make a referral against a troll Also search around for any other attorneys who have filed against this troll and contact them as well. They should all be willing to do an initial call for free.

You are trying to find an attorney who has a successful blueprint for dealing with this particular troll, ideally this particular claim. If the attorney is able to leverage their prior work or knowledge, your costs are greatly reduced. Also, if the troll has unsuccessful experience with a particular attorney they may just give up. Good luck!

Dealing with this kind of thing is a nightmare. You have to find someone who does EFF type stuff.

I didn't understand this phrase. Does that mean the "good" lawyer is just a false front and the real business is handled by somebody else?

- Simply stopping to respond to requests without signaling in any way, that you are not interested in continuing the interaction is rude (aka ghosting).

- Signaling even just once that you would not like to continue the interaction (as clearly and polite as possible) and ignoring the other side from that point on is appropriate.

Even though you might not 'owe anyone' anything, humans typically have socially accepted behavior patterns. So the argument is less about what you must do and more about what the majority of people around you consider good style. However, these things might differ between cultures and social circles.

Even back in the prehistoric times of my dating days, which was before I recall the term "ghosting" existed, it wasn't an uncommon thing. It might have been disappointing on occasion, but I never found it "rude". It wasn't very hard to take the hint and move on.

I had this one English teacher who squashed any interest in writing after I took his class. He was known as Red because that's what color our papers were when he was finished grading them.

He did say a few thing that felt right. One was just don't use cliches. The other was don't use slang.

It's clearly rude to ghost friends, acquaintances, business partners etc. But if someone reached out to you with the intention of doing business with you, I think it's ok to ghost them if you're 100% not interested. Am I wrong?

It's a discourteous and lazy way of dumping a romantic interest.

Language isn't fixed, the meaning of words, especially "new" words (and ghosting is a new verb) changes over time. That was the original meaning, but it's now applied to all relationships.

>Ghosting is by no means limited to long-term romantic relationships. Informal dating relationships, friendships, even work relationships may end with a form of ghosting.

https://www.psycom.net/what-is-ghosting

https://www.urbandictionary.com/define.php?term=Ghosting

For clarity, I didn't mean that ghosting was only to do with dumping partners. I suppose I was suggesting that that's the canonical example.

They can, however, take on competing companies for a single action if they all agree. It's probably best if the firm didn't have a prior relationship with any of them.

(Not a lawyer but I am a software developer who's built a legal conflict of interest search system)

E.g. I once had a lawyer review a severance agreement before I signed it, since it had non-compete language in it. He had to be sure that his firm didn't already have a relationship with the employer.

If there's no common interest in the case, lawyers are expected to be able to maintain confidentiality. Same as an accountant who might have two competing businesses as clients.

But, IANAL.

I, personally, would not risk this approach.

This could also mean that the patent troll (the enemy of your competitor) is your friend.

In WW2 Stalin initially made a pact with Hitler while all the while knowing Hitler would violate it and invade anyway. Stalin just used it to buy time to ramp up the Soviet military. From what I recall it's likely Hitler assumed this as well and used the pact to delay dealing with the Soviets militarily and focus on his Western front to snatch up as much of Europe as possible.

Obviously a very dramatic example but as it applies here there's a very good chance that even if a competitor seems helpful, etc at first they could very well leverage the entire scenario to their advantage eventually (somehow).

It's a roll of the dice for sure, but I'd take that roll over a cold call of a lawyer.

That is partly true, but in this case the patent troll is not vanquished and so doesn't apply.

Often competition is not that cutthroat. It's not usually a zero sum game. There are definitely outcomes where your competitors even add net value by legitimizing the market, educating potential customers, providing a source of ideas, etc. My general philosophy here is the world is big enough for all of us, I don't treat it as war, and don't seek to crush competitors - I seek to make my users and employees happy. That's it. Being competitor focused is an error, at least in a high margin business.

> In WW2 Stalin initially made a pact with Hitler while all the while knowing Hitler would violate it and invade anyway.

By accounts I've seen, Stalin was genuinely surprised and caught off guard by the invasion.

Not sure how this thread turned to Hitler so quickly. What's that internet law called?

Not true at all. 1) Stalin was caught off guard by the invasion. We know this because he holded up in his private residence for a few days afterwards until the Politburo came visited him and asked him what he was going to do.

2) The Russian military was not tactically or strategically ready when the Germans attacked. We know this because the Russians lost millions of soldiers by encirclement in the days and weeks after the start of the war. If Russian military had been ready, it would have been in much better position(s).

3) Stalin had purged thousands of quality officers and NCOs from the Russian military. You can't have a good military without a professional, respected and well maintained NCOs core. If Stalin thought the Germans would really attack, he would have built up a professional officer and NCO core.

The three things that really saved Russia are January, February and the willingness of the Russian people to do anything for Russia, regardless of who is in charge.

I’m probably wrong, whatever, let me know I guess. I’m not running a company, I’ve just observed the SF companies I worked at for years. Opinions my own.

- There's definitely no privilege with a competitor. The only people you should provide ANY detail or discussion on any of this are your attorneys. Full stop. That includes this post and discussion.

- You signal to your competitors the very weak and vulnerable position you're in. Many will be happy to dance on your grave...

- Business can be absolutely ruthless. I wouldn't put it past some Machiavellian type competitor to tip off the troll to let the troll take you out for them (or who knows what).

Business doesn't have to go full "Art of War" but to many people that's exactly what it is.

The OP has been provided with copies of lawsuits that sound like they may have been resolved one way or another. OP doesn't sound like they have any resources to assist in the matter.

This would likely incur additional expense on their part (as OP is unlikely to contribute much to the legal fight) and enable a competitor. One immediate impact to the bottom line and potential future impact by saving another competitor in the field.

Assuming the competitors are currently or have incurred expense in dealing with it, the only reason left (as I see it) would be altruism on their part in banding together with a competitor.

There aren't many examples of this actually happening for a reason.

Its not just altruism. If you expend resources on something, you want to get the most value out of it as possible. It would be extending the value of their investment into lawyers/settlement/etc. to band together and get a possible reversal of judgement/recompense. There is definitely something to gain from taking down the troll, including recouping any initial settlement.

Telling a competitor that you are being sued by a patent troll does not impair confidentiality. And if they are a true competitor, it is very likely that they have also been sued by the patent troll, or are next on the list, and may join in multi-party litigation against the troll.

You signal to your competitors the very weak and vulnerable position you're in.

Maybe in your particular industry or geographic niche its dog-eat-dog.But especially outside of tech, most companies will band together against outsider threats.

I wouldn't put it past some Machiavellian type competitor to tip off the troll to let the troll take you out for them

The only way this would happen without backfiring on the plotter is if they were already targeted by the troll and lost.

Businesses aren't as ruthless as you seem to think they are. They are run by real people, and they and act like people. The kind of ruthlessness you describe is something you see at the largest levels (i.e., Amazon and Apple) where sociopathy is a virtue rather than a hindrance, and even those companies will band together against patent trolls.

I'm not saying this is always the case. I'm saying that unless you're completely desperate or absolutely know otherwise it's the safer assumption.

Even taking into account the different business culture of the 1980s, Microsoft's early ruthlessness is well known precisely because it was not the norm then, and certainly not the norm now.

Is there any real difference / likelihood of a good outcome there?

Ultimately I see little difference in the potential of "most lawyers will happily take your money without necessarily having an expedient path to resolution for a small one-person company".

At worst some of your competitors will ignore your request. But like I said, I have been through similar situations. Without delving into too many details, I had competitors who had no reason to help go so far beyond just a referral that years later I am still grateful. Once you've been burned by one of these trolls, you have a bit of a bond with other victims I guess.

> Competitors who by default do not have your best interests in mind.

FWIW ‘competitors’ are not enemies or out to sink you in all but the most extreme cases. Two things that are definitely a bigger danger to a small startup are: yourself, and patent trolls.

This idea that they might care is just an assumption.

Just because you're nominally competitors serving the same market doesn't mean you can't work nicely together. In many cases the true competition is 'people who don't understand how much they need our products.'

There's no reason to assume they'll be cooperative.

Also you should add "[ask HN]" to the beginning of your post.

edit: A good way to find a lawyer is to talk to good lawyers you have worked with in the past. They will not be able to help you themself if they practice in a different area, but will likely have referrals for someone who does.

The other scenario is that the good-lawyer-you-know has a personal relationship with a practicing (as opposed to managing) IP lawyer. This may be a solo practitioner. But the problem with this approach is the the good-lawyer-you-know is relying on an instinctual assessment of the IP lawyer (I like this person; they seem smart), since the good-lawyer you know has not had a need to defend or litigate IP matters.

My experience comes from working with a dozen different lawyers, with many being rereferred. I have had $1200/hour partners provide me with factually incorrect information (wrong about actual black-and-white law). And I have had lawyers provide me with $20,000 legal briefs I did not authorize or order.

When it comes to litigation attorneys, I have had some success finding a lawyer through other founders who had been fighting lawsuits for years and hired/fired several lawyers to finally settle on the most competent. I have also had luck in finding legal specialists by becoming very well informed on the subject matter (reading lots of case law) and then interviewing random lawyers, who I usually came across through legal blog posts.

Finding the 5% that are competent is harder than it looks.

And the hourly rate and/or physical location of said lawyer bares no correlation to competence level.

And once you find that person they usually get scooped up and become GC for some VC funded startup or whatever because word travels.

I'd say that "95% of people exhibit incompetence at least once per shift" is not far from the truth. I've been in taxis where the driver has run redlights. I built a house so I know all about keeping tradesman honest.

And the same with doctors, unfortunately, when they don't meet the person they treated again, when there's no follow up if it worked or not.

Plumbers, though, are different, in that then there's more feedback: does the water pipe still leak, or not? So they need to do something that actually works.

"95% of all workers perform at the bare minimum required not to get fired or sued."

- it becomes quite defensible. To someone used to high performance, that does look like incompetence.

Also, it is much harder to fake it in typical trades than in "professions".

I paid 200 to 300 dollars per hour for International Tax Consultants, that were unable to understand the most common cross country tax scenarios, like "triangular taxation". At the same time, very cheap and experienced "regular accountants" provided, clear, concise and correct advice.

No one actually knows anything about this, save for like 3 people world wide for each country pair.

Lawyers will happily bill you for incorrect advice because their liability is limited to the amount invoiced. But you can end up with massive tax bills based on that bad advice.

You can do better by reading the law and tax treaties yourself, then getting someone to verify your interpretation.

Law is just code for humans.

A lot of things you can pay a lawyer for business/tax/etc wise, your accountant can probably do better and cheaper.

Accountants are under-appreciated. lol.

You just have to bounce around until you hit someone who actually knows what they’re talking about.

I.e. none for me. Is it that common to have worked with lawyers then? I honestly wouldn't know how to find a good lawyer. I don't even think I know anyone in person who ever needed a lawyer (not sure - it's not something which comes up often in conversations).

You’ll be using these consultations to learn the area and evaluate who you are dealing with, their style/approach, and level of competence. Ask a lot of questions.

Things like 1) do they personally have experience with cases like this? 2) how did those cases end? 3) can they provide references? (If they start saying ‘no because attorney client priviledge’ they are generally bullshitting you. Don’t fall for it. Run fast the other way.) 4) which legal principles are in play in your case, and what are the risks or advantages you have?

Then do your independent research on #4 so you can evaluate yourself what is going on. Figure on this taking a week of solid work.

Most lawyers will provide consultations for free as part of their public service obligations under the bar rules in many states. Some won’t. I haven’t had any luck with the ones who charge for consultations, and have had in some cases terrible advice (like just flat wrong in black and white areas of the law), that cost me major money when I relied on it.

You will likely schedule a time to sit down and discuss the letter and they might give you some indications of how to proceed.

At that point if you want to continue forward a "retainer" fee will be collected. It could be thousands.

From there good luck!

https://www.avvo.com/

Get ready for so many continuances and discovery requests. Do not delete anything, purposeful deletions can be taken as an admission of guilt.

But I’m clearly not your lawyer or a lawyer just someone who has been sued.

They always want to settle for precedent. Prior art is a harder thing than it should be, but you better find out everyone else they sued and make contact, assuming they aren’t gagged.

Sadly courts don’t slammed down enough people as vexatious litigants, so here we are.

I thought that was automatically appended? Just seemingly not in this case possibly because it doesn't end with a question mark.

Some years ago, worked for a US based startup that went public. When they got to a valuation of around 1 billion, they got hit by a patent troll. Completely bogus claim, but at the time the CEO just decided to settle and avoid the risks and financial stress of prolonged litigation.

As you stated you are a small business I would start by doing the following four things :

1) Read the Wikipedia pages about these morons. It is a good overview of what you are up against:

   https://en.wikipedia.org/wiki/Patent_troll

   https://lotnet.com/

"How to Fight--and Win--Against Patent Trolls"

https://www.inc.com/magazine/202004/minda-zetlin/patent-trol...

4) Respond only through an attorney.

   Also as stated in the article above, only agree to talk 
   to lawyers where the initial consultation is 
   free of charge. I have no affiliation with this 
   company but you might want to start your search here:

   https://www.priorilegal.com/intellectual-property/patent/patent-trolls

Good luck and remember ... IANAL

Have they actually served you with any notice, potential licensing terms, legal documents of any kind? For clarification, are they a NPE (non-practicing entity)?

Anyway, I've worked on pretty much every side of the patent system in the United States (assuming you're there). While I (fortunately) haven't been presented with your exact scenario I suggest:

- You need to hire a patent attorney immediately (it doesn't sound like you have one).

- Get them up to speed on the situation.

- They can advise you on what to do.

The advice I've been given in the past essentially boils down to:

1) Have your attorney immediately respond with a letter containing any/all of the following: likely prior art, issues with their patent, why it doesn't apply to you, any circumvention measures you've taken, etc, etc.

2) Meet their terms. It sounds like this probably isn't a viable option for you.

#1 serves several purposes:

1) Letting the other party know you have a patent attorney.

2) You (and they) understand the landscape and have a prepared response.

3) You aren't just some naive rube that will be (that) easily intimidated.

4) If they're looking for a quick rollover, settlement, licensing terms, etc that won't happen here.

For you it sounds like most of this will be a bluff.

Ideally they'll move on to a different target. However based on what you've described they sound very aggressive and well funded so that's probably not what will happen here if it comes to that.

As you probably know these kinds of things often come down to who has the last dollar and it sounds like that will be you.

The worst case scenario is you end up with a judgement against you and the cops show up and seize company assets. Don't mess around with this and let it get to that.

Good luck.

Can you recommend me a patent attorney? Any idea on how much this could cost?

Unfortunately the patent attorneys I've worked with are in very large international firms with a price tag that goes along with that. I can provide some recommendations but I suspect (and please don't take this the wrong way) they won't be of much use to you.

Basically an NPE files a lot of lawsuits at once, legal companies are monitoring the lawsuits and will proactively reach out to potential customers.

In my case the firms that reached out were mostly tier one national law firms and they were very familiar with the NPE. And like the OP I was unaware of the lawsuit because they served our corporate agent in Delaware. So it was quite useful.

However, the difference between this and the warranty scam is that the complaint they are attaching is 100% real.

It’s more like a mechanic emailing you saying, hey I notice your car was broken down on the side of the road.

It’s patent so you can’t file an anti slapp, but until you have been properly served you need to find hearing dates and BE THERE, and demand a dismissal based on improper service. The court will almost always dismiss it, have you served right then and there but it does drag the clock.

Also get a lawyer don’t listen to strange people like me on the internet. Most likely it’ll involve some posturing and mediation or a settlement.

Also what will happen is your lawyer will send them a request to serve them on your behalf. It’s only the beginning. Things drag slow for months then speed and slow down.

Interesting fact. These lawyers won a case against the guys who are suing you: https://sabety.net/2020/01/patent-troll/

Maybe worth engaging with them?

You likely can either do something more advanced or something less advanced -- if you have the choice do the more advanced solution as you are then likely pushing your product even further.

Fighting patents is for rich, established companies. You do not have the luxury.

You should change your product immediately to avoid infringement, or even close to infringing. If you do this you can avoid damages/claims against you.

Because you didn't know you were possibly infringing, you can avoid all claims/damages by immediately changing your product.

When you respond to them, you should say you didn't realize you were possibly infringing as you were not aware of the patent, you should say that you do not believe you were infringing, but anyhow you have modified your product to clear up any possibility of claims of infringement going forward.

You do not want to admit any guilt in anyway (actually the rule is NEVER admit guilt, always claim you believe you are not infringing), and you want to get away from these people because they are not worth your time.

But if you do need to use this tech, you should try to license it, but while claiming you are not infringing and there are alternative methods you can adapt. This gives you the most powerful stance. Make sure they understand you are very small and thus not worth dragging this out. Offer them something for a one time fee if possible and get than done and move on.

But avoiding the perception of infringing going forward is best.

The parent’s advice assumes the players are reasonable people acting in good faith. In the case of patent trolls, they are often not acting in good faith. Most of the allegations are not good faith interpretations of the patent. There is no “perception of infringement” to begin with. They just want a quick payout and found a cost-efficient way to state a claim against a widely used technology so that they can threaten and file lawsuits in volume. Instead, find a good patent lawyer or a pro bono resource (like EFF or a colleague with experience) that can give you resources or advice to quickly dispose of it cheaply (or even for free), if you cannot afford fight it. Sometimes, it can even be cheaper to hire an excellent patent lawyer that can win the case early than it would be to pay off the patent troll. I have written many a response to a patent licensing demand letter, knowing exactly what to say for much less than settling, where they disappear and never sue. And if they have sued, sometimes they disappear as soon as lawyers they do not want to be up against show up in the case.

In the instance of a good faith claim by a patent owner (even if wrong), there will be enough money at stake that it would be worth the cost to consult a good patent lawyer before doing a single thing.

That is the impression I've formed.

You need a lawyer, but a lot of lawyers do this sort of thing pro bono for small companies. The EFF has a list of attorneys who can help. Interview at least 5 of them - ask for references, ask about past successes in this space, and ask about your case at a high level (give the one-minute overview of the case and ask about their plan).

The good news is that most software patents are invalid (thanks to the Alice decision* in 2014), and will be struck down in a process called inter partes review, which is a cheap way to challenge the validity of a patent through the USPTO. When you interview attorneys, you might want to ask prospective candidates about the validity of this patent and if they see this as a viable strategy.

Another dynamic at play here is that in many patent proceedings, the loser pays attorneys fees. You may not end up paying a dime, even without a pro-bono lawyer. Trolls like threatening lawsuits to pressure you into a settlement, but there's a lot at risk for them if they actually sue you for infringement.

*The full opinion on the Alice case is here, and is very interesting: https://www.supremecourt.gov/opinions/13pdf/13-298_7lh8.pdf

EDIT: Also, if your lawyer suggests that you might be able to invalidate this patent, you may be able to band together with some of your competitors to share the cost of invalidating it.

https://www.eff.org/pages/legal-assistance

Probably a long shot, but you might get somewhere.

1) Willful infringement is worse than infringing.

2) Patent trolls are trying to earn money - some money is better than no money.

3) In most legal scenarios, you want to get out of the conflict as cheaply as possible - vindication is very expensive.

While true, this is unfortunate, because it means that patent trolls continue to get away with this behavior.

I think society today is insufficiently aggressive and vengeful. The social utility of vengefulness is precisely that it allows for n-tit-for-tat strategies to punish social defectors like patent trolls.

I don't think vengefulness is the right thing to look at. I imagine large corporations with armies of lawyers might be glad to invest in winning enough lawsuits that other patent trolls are scared off. Small companies don't have the resources to do that.

Both the large companies and the small companies are making decisions on the basis of profit. Vengefulness isn't likely to be a motive in itself.

I know - I’m saying it should be. Vengeance is a critical social regulator in human societies, but it has been damped to the point of total dysfunction.

The biological instinct for vengeance solves a social coordination problem - namely, the stability of altruistic punishment, where you make a sacrifice (such as spending resources fighting someone who wronged you rather than capitulating and moving on) to protect other people.

Modern liberal capitalism has done too good a job of suppressing higher-order social optimization instincts like vengeance, while leaving first-order selfish optimization instincts like profit-seeking in place. I don’t think this is necessarily an inherent problem in capitalism, but the current implementation won’t let you do things like this in most cases. If you go after a patent troll instead of settling, your shareholders will sue you.

Sure, the society with one of the largest per capita prison populations in the world is insufficiently vengeful.

One obvious source of this problem is that n-tit-for-tat behavior in humans is moderated by testosterone levels, which have been declining precipitously. 100 years ago you had personal vendettas between CEOs driving corporate policy, which is unironically good for society because it encourages real non-kayfabeized competition and the punishment of antisocial corporate behavior.

sorry, what?

n-tit-for-tat behavior is the family of game-theoretic strategies where you respond to a defection by defecting one or more times, but if the other participants don't defect then neither do you. Most societies encode this kind of behavior as some system of honor and propriety, where you don't transgress against another person unless they transgress against you, and then you are free to engage in various degrees of retaliation.

tit-for-tat would be proportional response, and then you have a whole continuum of disproportionate response up to grim trigger (infinity-tit-for-tat), which would correspond to a blood feud or something.

ntft strategies are known to be highly performant or even optimal in many settings, and are very easy to compute.

As testosterone levels decrease, the viable societal distribution of n goes down, at some point drifting into sub-1, which pushes you into a sub-optimal strategy domain.

Sorry but no. Patent trolls are no better than ransomware gangs. If you pay them once, they'll be back for another helping tomorrow.

Is it similar to the process of getting the patent itself where most companies pay $$$ for lawyers, but a determined technical (and legally literate) person can do it themselves with not that much effort (like I did)? Or is there some sort of gatekeeping or statutory fees that must be paid?

Courts have procedures, and it many juris dictions, they require you to be represented by an attorney. While I'm not an attorney, I've been the the process enough to know a few of the steps:

1) demand letter(s) and responses

2) negotiations, w/o a mediator

3) drafting and filing of the complaint

4) motions w/ responses

5) negotiations w/ a mediator

6) interrogatories

7) discovery

8) depositions

9) pre-trial hearings / more motions

10) presiding judge led mediation (sometimes the judge wants to give it a shot)

11) trial

The entire process can take years - especially when one party is on a tight budget (dragging it out can be strategic).

So, there are quite a lot of steps and in the US, very few statuettes allow for legal fee recovery, so it might not be available.

If we had chosen to litigate, it would have taken years, been very stressful and possibly created issues with future company financings etc.

And even if we had won - the NPE has zero assets to attach so you always bear the legal cost.

I've vaguely heard of this so it might not be directly relevant, but I've heard of "performance bonds" or the like being mandated for litigants. Basically the idea is that the litigant has to put up a sum of money to continue the lawsuit so that they don't get the free optionality of collect-if-win / have-no-assets-if-lose scenario.

Does anyone have experience with the LOT network [0]?

If so, is this useful, recommended or advisable for small startups?

As for the OP. I wonder if joining LOT at this point might have any value for you.

Political: The patent troll industry is yet another example of how much our politicians have failed us. I see them as scam artists who would be bad car sales people and ambulance chasers had they not gone into politics. All they care about is votes. Everything else does not affect their fitness function, therefore, they tend to ignore things that are actually important to real people.

[0] https://lotnet.com/

By the way, I strongly believe that software patents should not exist.

I have seen US companies convince employees to move to another state. Real reason was dismissal laws were more convenient for the company. After a 3 to 4 months they closed their offices. So all within the rules of the game, but unethical. Or the "hire to fire" practices. Within the rules of the game also...

There are also some law firms in the US which will help against these types of suits without requiring you to fork over a large retainer. You'll have to research these but they are out there.

I found a good patent attorney and explained the situation. After learning that we were a small company with less that $500K revenue that year, bootstrapped and only had couple hundred thousand dollars in the bank, he suggested that I talked to the patent trolls lawyers by myself without a lawyer first. His rational was that they were not really after us as we were small, and once they learned that, they would either drop it or ask for a small amount to settle.

I followed his advice and had a call with them and it went exactly as he predicted. Upon learning that our US revenue was only few hundred thousand dollars, they asked $30K to settle and sent me an agreement. He reviewed the agreement for us, and recommended that we settle. We did. It was a ridiculous patent yet all of the companies that were sued settled as well. The experience was traumatic and was one the main reasons I decided to raise money from investors later. I slept better knowing that we had the funds to fight lawsuits if need be. Patent lawyer was happy to take the case if we needed to, but warned us about how expensive it would be.

Given that you're a single person company, you're likely small fish for patent troll. The best option for you may be to let them know that and see what they do. Best of luck!

Having said and tried all that personally, I've usually got my lawyer to negotiate it down to a smaller sum of a few thousand dollars and paid it. It simply wasn't worth paying orders of magnitude more than that for a legal process in which the outcome was unsure and that would take years.

Did I like it? Hell no but it was the best possible outcome at the time.

The secret to a good negotiation is getting your lawyers to call them and basically plead poverty. If you don't have substantial revenue or assets in your corporation, the NPE isn't dumb enough to keep spending time chasing you. In my case they were suing massive multinational corporations and also tiny startups with the same sized lawsuit.

The NPE are usually some random inventor who sold their 90's era patent to some shitty lawyers, with an equally random person trying to 'negotiate' the settlements. It's better to let your lawyers deal with them than getting your hands dirty yourself.

I assumed they wouldn't touch companies less than 100k revenue but if they do, I think I might want to get some patent troll insurance.

Or cutting wood with a knife to then use it to build a chair.

I.e. while you need the result of the first part to do the second part, how you do the first part and how you do the second part are completely unrelated.

Honestly given the large degree of economical damage such patent trolling does it's sad to see that laws hasn't been updated to involve serve penalties for anyone trying to abuse the patent system (if it's clear that it's an abuse like in this case).

Like if it's such a obvious case like this:

1) Hold the suing person responsible for all financial costs of the defender, and a penalty and personal consequences for lawyer suing.

2) Make it a crime a create "deceptive" patents. Which are not clear in what they patent or clearly (for a person with knowledge of the topic) patent trivial or obvious things which should never bee palatable.

3) Make the patent office earn more money from catching clearly bad patents then from passing them through.

Through only if it's "clear" abuse, whatever that means.

Sadly with many countries law system even if you are in the right they opponent still can drive you to ruine before they lose.

So the penalties (for trolling company and lawyer) must be to a point that they won't want to risk abusing the patent system.

It sucks, but when you’re small that’s how this works. Fighting these could be a multi year process that costs tons of money and may require you to personally show up in court. Do you want to bet the future of your company and spend hundreds of hours of your life fighting this? Or do you give them a few thousand to go away?

Also representing yourself is not quite like in the movies. There’s typically no sympathetic judge willing to bend the rules, etc. etc. The bureaucratic machine is quite efficient at following the letter of the law, so you’re putting yourself at a disadvantage by being a non-professional.

Patent trolls have no reputation to ruin, so you can’t shame them by being very public.

Unless this is a particularly outrageous case or you are a very well-known person I doubt you can get much marketing benefit from a public fight.

https://hn.algolia.com/?q=ip+lawyer

Might give you a starting point to see some people that have been suggested in the past

Such a shame for innovations in this area. I hope something can be done, but I am sceptical.

Can you work around the patent?