I am concerned that these proposed changes might be used in a manner opposite to the intended effect. Patent trolls and patent aggressors use the high cost of litigation as a threat to coerce the victim to pay rather than fight. These changes to the law are being proposed in order to make patent attacks more dangerous to the attacker. Suppose instead that the attackers find ways to use the more baroque litigation rules to make it even more expensive to fight a patent suite because the courtroom proceedings become even more convoluted? Then the incentive for the victim to settle out of court would be increased even though the proposed changes provide the possibility that in the best case the victim might do much better in a courtroom than under the present laws.
Most abusive patent litigation occurs with software patents. For software patents a better solution is to abolish software patents. For patentable areas other than software these proposed rules may or may not solve what is a minor problem.
Judge Moore’s tone was in places apocalyptic. She worried that Judge Lourie’s approach would mean "the death of hundreds of thousands of patents" and would "decimate the electronics and software industries." She said, "There has never been a case which could do more damage to the patent system than this one."
I am concerned that these proposed changes might be used in a manner opposite to the intended effect. Patent trolls and patent aggressors use the high cost of litigation as a threat to coerce the victim to pay rather than fight. These changes to the law are being proposed in order to make patent attacks more dangerous to the attacker. Suppose instead that the attackers find ways to use the more baroque litigation rules to make it even more expensive to fight a patent suite because the courtroom proceedings become even more convoluted? Then the incentive for the victim to settle out of court would be increased even though the proposed changes provide the possibility that in the best case the victim might do much better in a courtroom than under the present laws.
Most abusive patent litigation occurs with software patents. For software patents a better solution is to abolish software patents. For patentable areas other than software these proposed rules may or may not solve what is a minor problem.
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Steve Stites