[asterisk-biz] Verizon v Vonage

Wed Feb 21 21:58:48 MST 2007

	The problem with tort "reform" is that all that's sure is that tort
rules will change. There's no reason to think they'll change for the
better. In fact, since (as you point out) the "reforms" will be written
by lawyers, tort reform will most likely serve lawyers. The rest is a
crapshoot, biased in favor of lawyers' favorite clients: rich
corporations (and other lawyers). The independent inventors who vastly
outnumber (and often out-think) large corporate inventors are very low
on the list to serve with reform. Even something specific, and probably
fair, like "loser pays everyone's costs" will have to wait in line
behind rules that ensure the people with the most money get targeted,
"balanced" against those with the cheapest lawyers losing.

	By the time a patent reaches a suit in court, the patent system has
already failed. Subsidizing intellectual property monopolies with
expensive, wasteful, slow, often technologically arbitrary court
procedures at public expense in addition to the rigged litigants's cost
game is a crime. It works against progress in science and the useful
arts, instead serving maximum profitability for minimum risk. So the PTO
itself is where the reform should start.

	Getting a patent monopoly should put the burden of proof on the patent
applicant. Really patents should cover only physical devices (not
"content" or solely descriptions like algorithms - covered instead by
copyright or trademark), back to the "working model" requirement. They
should last no longer than 17 years, probably more like 7 years in our
modern fast-growth and obsolescence economy, or after generating revenue
double their documented costs, whichever is first.

	Patents should be presented as a case before a patent examining
"court", with its evidence presented to "con" and "pro" examiners with
experience in the specific technology who compete to prove invalidity or
defend validity, respectively. Judged by an expert in patents. The
examiners could be hired from "expert witness" lists vetted for interest
conflicts. And this entire process should be paid from royalties on the
patented product. Much cheaper than the later infringement costs,
without nearly the impediments to inventors, and without as much risk of
infringement damage.

	Meanwhile, there is a specific reform to our legal system that would go
a long way. Lawyers whose cases are dismissed at high rates should be
suspended or disbarred. Dismissal as "frivolous" weighted very heavily,
basically "3 frivolous strikes and you're out". Correspondingly,
investigations of lawyers for refusing cases that are sound, even if
risky, should be easy to initiate with legitimate complaints backed by
evidence.

	Patent law is a badly rigged game. It's a compromise the US
Constitution recognized as necessary to protect from sniping, lazy
competitors the people's interest in scientific (and useful artistic)
progress, though at odds with free expression. In the late 1700s, that
meant granting temporary monopolies lasting a generation. in the early
2000s, that means much shorter times, with more options for breaking the
monopoly. The alternative is the current system that grants baseless
monopolies like... monopoly money, inhibiting progress more than just
going it alone would. Something's gotta give. And it ain't gonna be the
lawyers, who got the patent on take take take.


On Thu, 2007-02-22 at 03:41 +0000, Trixter aka Bret McDanel wrote:
> 
> 
> On 2/21/07, Sergey Kuznetsov <asterisk_biz at deeptown.org> wrote:
>         That's easy!
>         
>         Dan Ravicher of Public Patent Foundation (pubpat.org) does
>         that.
> 
> 
> In reality that only solves the minor half of the problem. The biggest
> thing america needs in this particular arena is tort reform.  If the
> loser has to pay the winners court costs, then you would
> *dramatically* see the number of frivolous cases (including bogus
> patent suits) drop.  There will always be crackpots with more money
> than sense filing stupid cases, but this would make people think twice
> before filing. 
> 
> The way it stands now people can file stupid suits against you, you
> can win every one (and unless you won on summary dismissal its hard to
> counter sue for court costs, although not impossible) and you sitll
> file bankrupcy.  See the cult awareness network vs 20 'random' church
> of scientology members where those people paid $200 to sue, lost every
> case, but CAN spent about $1M defending itself.  The church of
> scientology bought CAN out of bankrupcy right after the suits were
> over.  Amazing how CoS is no longer listed as a cult by them. 
> 
> Patent reform does need ot happen, but tort reform is much more
> important.  Who has a big hand in drafting laws?  Lawyers.  Who
> profits the most from stupid insane lawsuits?  ...  Coincidence that
> lawyers are very opposed to tort reform saying it will prevent people
> from ever filing with cause? 
> 
> 
> Tort reform would solve most of the patent problems, if a company
> refuses to sue because their patent is bogus (j2's patent on fax2email
> is based on someone elses patent which is based on j2s press release,
> RTI in NY has a patent on LCR which is bogus due to 10 years of prior
> art, sprint claims over 100 patents (and sued vonage as well), verizon
> claims 85 or so patents, the list goes on). 
> 
> It costs $1-2M minimum to fight a patent case on average, RTI charges
> $20k licensing fees, and has gotten vonage (after an initial pre-ipo
> fight then when the sprint case came up vonage settled), cisco,
> lucent, and many others to settle because its cheaper, google called
> shenanigans on it and grabbed their brooms, RTI filed for $6B, case is
> pending.  J2 charges $1 or so per customer for fax2email.  Unless you
> have millions of customers its just not worth it. 
> 
> Sprint and verizon appear to only go after bigger companies that
> actually have money.  They dont have to stop there, they can try to
> squelch anyone that poses enough of a threat before they get big
> enough to actually defend themselves... 
> 
> If tort reform happens, then companies run the risk of losing their
> patent AND paying for the defense on the people they tried to extort.
> That will certainly stop a lot of people, especially since you might
> get a better defense if you have a real case against the bogus
> patent. 
> 
> It has been the policy of the USPTO to issue the patent, without
> regard for its validity and let the courts decide the matter later on,
> this has gone on for at least 15 years, maybe more.  This certainly
> needs to change, I dont want to sound like I am minimizing patent
> reform, I just see it as the lesser issue in the whole process. 
> 
> -- 
> Trixter http://www.0xdecafbad.com     Bret McDanel
> Belfast +44 28 9099 6461        US +1 516 687 5200
> http://www.trxtel.com the VoIP provider that pays you! 
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(C) Matthew Rubenstein