Bits and Bytes by Dennis Crouch

  • Kevin Noonan at PatentDocs reviews the recent Special 301 report by the U.S. Trade Representative focusing on the protection and enforcement of Intellectual Property Rights. "The Priority Watch List in the Report lists Algeria, Argentina, Chile, Chine, India, Indonesia, Pakistan, Russia, Thailand, and Venezuela."
  • Eric Goldman review's Vermont's "First Anti-Patent Trolling Law." Prof. Goldman highlights a key problem for all nuanced anti-abusive-litigation statutes. He writes: "I'm skeptical of this attempt to distinguish legitimate from illegitimate patent assertions."
  • Michael C. Smith writes on a recent court ruling that allows expert testimony that applies the "entire market value rule" in calculating damages.
  • Bill Vobach highlights the fact that Raymond Chen's nomination to the Federal Circuit has been voted out of the Judiciary Committee and now moves to the full Senate for Consideration.
  • The ELS Blog calls for papers on Trademark Data.
  • Job: Berkeley needs a new Associate Director of its IP Law Clinic [Link]

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181 thoughts on “Bits and Bytes by Dennis Crouch

  1. Somehow, you seem to be having difficulty with “Last I checked, resolving patent infringement claims ” and my comments on this very subject from yesterday.

    You’re absolutely correct, I have difficulty with weird comments that don’t appear to actually say anything, as well as with comments that do so through an incorporation by reference of unspecified previous comments. But OK, let’s go back to the referenced comment:

    Last I checked, resolving patent infringement claims definitely falls into the things I flagged above (the things Leopold threw a conniption over).

    Best I can tell, you seem to be concerned that Vermont wants to “resolve” patent infringement claims. However, that’s not what the statute’s statement of purpose says. It says that the legislature wants to facilitate efficient and prompt resolution of claims. As I said earlier, the statute, which is directed solely to business conduct undertaken in bad faith, seems a reasonable way to do that, in a way that is complementary to the federal scheme. So, where exactly is the conflict? You keep saying (or suggesting, rather) that there is one, but you’ve never identified a single way in which the Vermont statute conflicts with the purposes and objectives of the federal patent law. You’ve also cited Federal case law that strongly suggests that it doesn’t, notwithstanding your mysterious references to the “two other areas” in that case. So again, where is the conflict that triggers preemption?

    You also rather miss the fact that preemption will occur if a state makes the bringing of a patent suit (or related action) more onerous than what the Federal Rules of Civil Procedure provide.

    I’ve actually pointed out several times that this statute has NO effect on your ability to bring a patent suit. None. Would you care to explain why I’m wrong?

  2. LOL – that was a typo for ‘chief.’

    Malcolm has the corner on eplectic. You would need to talk with him about that. You might offer him a Calvinball face sp1ke or two.

    You cannot be anthropomorphicating, as machines are nowhere in the sight of the conversation. But you have not commented on whether you think that machines think. Ned’s silence screams, while Malcolm actually does think that machines think.

  3. when the defendant has probably never seen the patent before.

    Pretty sure that that point is, well, pointless.

  4. once something has been done that there is almost a mystery force that makes it easier for the next person.

    You must be a great interference lawyer. All you have to do is see which inventor had an easier time of it, and the other guy gets the patent.

    Mystery force? Boy oh boy.

  5. And, the concept that disclosure of the earlier invention may have lead the defendant to their invention. (which is a complicated topic that I am sure is way above your head.)

    No, it’s a perfectly simple concept. It’s also perfectly irrelevant to whether the defendant has to pay the plaintiff.

    It’s also a difficult and fact-sensitive argument to make when the defendant has probably never seen the patent before.

    I’m trying to figure out why you want to make a difficult argument when there’s a perfectly simple one that they teach in the first year of law school – this is one of those situations where intent is irrelevant. If you practice the claim, you infringe. You do admit that’s the controlling law, don’t you?

    I’m trying to help you here.

  6. Another thing too, IANAE, you appear not to understand the importance of disclosure. You seem to fail to understand what every diligent person trained in science knows—guess what that is boy—well, boy that is that once something has been done that there is almost a mystery force that makes it easier for the next person. It is very, very odd. But, boy, boy, boy, if you had an education and the raw talent to you would know that.

    (I can’t wait for your lame nonsense of trying to ridicule this post and then —boy—me telling you all the great scientist in the history of the world having said essentially the same thing. —boy–)

  7. you should appreciate a call for client education. [...] client education would only help the situation and help to clarify the issues.

    I do, and it would. Which is why I don’t want you doing it.

  8. And, IANAE, if all you say is true, then you should appreciate a call for client education. Even if all the other problems are true that you claim, client education would only help the situation and help to clarify the issues.

  9. IANAE: You never cease to amaze me at your inability to understand simple arguments.

    Please tell me how in the world you got from my post that I think derivation is element of infringement? I was obviously referring to the concept of whether or not the defendant felt that maybe their was some merit in the plaintiff’s argument. That maybe the defendant felt like well, gee, they did do it before us so maybe they do deserve something. And, the concept that disclosure of the earlier invention may have lead the defendant to their invention. (which is a complicated topic that I am sure is way above your head.)

    IANAE either you are a dolt or you are intentionally trying to provoke me.

    I suspect the former. So, please do not respond to my post without reading it at least 10 times and bringing it to a real attorney that can help you understand it.

  10. all the victims’ fault

    Chapter 1 Verse 2 from the Infringer’s Bible, championed by chied infringers’ right’s advocate INANE.

    Go figure.

  11. “Client education” is the first casuality in the war against patents. I think you called this blackhearted demagoguery “appeals to the ignorant.”

  12. A lot of this can be solved with client education.

    Your refreshing brand of “client education” is always appreciated. Great to hear an unbiased opinion about how this is all the victims’ fault, from someone who is admittedly in the business of acquiring and asserting patents in an area of steadily increasing court-imposed dubiousness.

    But that’s not even what I was taking issue with. You seem to think that derivation is an element of infringement, which is a pretty clear indication that you don’t know the first thing about patent law either. Or about being persuasive, since it’s a way stronger argument to say “derivation is irrelevant” than to try to convince people they must have accidentally copied something they’ve never seen before.

    Maybe you’re bracing yourself for a future career in copyright when that’s all you’ll be able to get for most software, in which case I think that’s a wise decision.

  13. NWPA,

    You mean, that people should just understand the law and stop spinning things that they are ‘broke?’

    Sorry, you kind of miss the fact that this is a deliberate tactic. Agaiin, think about who coined the perjorative “Troll” in the first place and why.

    The plain fact is that the patent system is under attack. The whole ‘Troll’ bit is just another gambit in this attack.

  14. LOL – a pattern alright – you feigning ignorance, and then projecting.

    Somehow, you seem to be having difficulty with “Last I checked, resolving patent infringement claims ” and my comments on this very subject from yesterday.

    This purposeful stup1d1ty is just you being a d1ck.

    Statement of purpose very much implicates preemption, by the way; or is that another concept that is just too difficult for you and that you will want to b1ame someone else for being ‘unclear?’

    You also rather miss the fact that preemption will occur if a state makes the bringing of a patent suit (or related action) more onerous than what the Federal Rules of Civil Procedure provide.

    What you consider ‘pretty reasonable’ simply has the legal problems that you simply want to close your eyes to.

  15. It sounds like IANAE that you are agreeing that huge part of the problem is the defendants’ attorneys, who exploit the perception that the system is broken and it is going to cost you a lot of money, and let’s go to court to stop these bad actors.

    A lot of this can be solved with client education.

  16. No, actually it did not. You missed the counter point that you only covered one of three items and did not establish your position. (post at 8:04 PM)

    OK, fine. You win, on that decisive counter point. The VT statute is preempted, for all of the reasons that you haven’t stated but that I have not covered.

  17. Translation: why bother with law? Just get rid of patents altogether.

    The patient is dead, but is no longer sick.

    D’Oh! (said in the best Homer Simpson tones)

  18. Since the case law you provides suggests pretty clearly that the statute is not preempted

    No, actually it did not. You missed the counter point that you only covered one of three items and did not establish your position. (post at 8:04 PM)

    Bloat? perhaps. I note that it is either bloat or preemption. Plus I note other problems with the law (someone did NOT do their homework). In any event, the law is unnecessary. So it is not “the case” – there still is the preemption factor, and your feigned confusion still paints you as being a d1ck. Just like you were on the Monsanto thread (there too, you were wrong, but the ‘anon said’ factor got in your way).

    As I already mentioned today, you need to read the rest of my comments.

    C’mon Leopold, do NWPA a favor and streamline this, OK? Read. Think. then respond.

  19. A lot of defendants that don’t appreciate the patent system

    Who can blame small business owners for not understanding the patent system, when even “patent attorneys” think this kind of thing is legally relevant:

    But, you see defendants eventhough their product is just like the one described in the patent years before somehow believe that they independently came up with the invention. And that the disclosure of the invention had nothing to do with them having their idea of the invention.

    Where are they supposed to get sound legal advice? Other than “pay up, because you’re being sued and it’s gonna get expensive, and let’s face it, you probably accidentally stole the idea from my client anyway, even if you have no idea how or when that might have happened. It’s for your own good.”

  20. And, you know, another aspect of this too, that I have personally seen is that the defendant often thinks the plaintiff is just troll that deserves nothing. When in reality, the patent isn’t great, but they did do what the defendant did before the defendant. In other words, maybe it is invalid or unenforceable, and maybe you don’t infringe, but they have a decent argument. And the defendant just digs in and won’t negotiate despite the fact that they could settle for say $500K, and the legal bill to fight is going to be $3 million.

    Again, I think this is bad lawyering. The lawyer should bring the defendant off the cliff and talk them into settling. But, it is against the interest of the defendant’s lawyer (not his clients though.)

    I think this is another huge part of what is going on. A lot of defendants that don’t appreciate the patent system and don’t realize that, well, guess what, maybe you product was derived from their ideas and you just don’t know it. And, guess what, they want some money but it isn’t that much and it isn’t that unreasonable for them to be asking for a bit money.

    But, you see defendants eventhough their product is just like the one described in the patent years before somehow believe that they independently came up with the invention. And that the disclosure of the invention had nothing to do with them having their idea of the invention.

    You know—be real people—a lot of the problem is the defendants being unreasonable and the defendants’ layers stoking the flames.

  21. You quite missed the point of my posts. The patent side is either superfluous or prempted, there are other existing laws that cover tortious interference.

    Apparently I did. Since the case law you provides suggests pretty clearly that the statute is not preempted, it now appears that your sole concern is that the Vermont legislature is unnecessarily adding bloat to their laws, by codifying a specific form of tortious interference. Is that right?

    If that’s the case, though, I’m still a little confused about why you went on and on with your questions about whether bad faith “involved” questions of non-infringement or invalidity.

  22. As to the Vermont law, try reading it (like you said you have), and note the specific comments I have posted on this thread including the one to Paul.

    They’ve been noted. You made some vague suggestion to Paul that you detect some kind of problem with section 4195(b) of the Vermont statute, although you weren’t at all clear what that problem is. (This seems to be a pattern…)

    Anyway, this section, which is nothing more than a statement of purpose, says that the Vermont legislature wants to “facilitate the efficient and prompt resolution of patent infringement claims.” That sounds like an admirable goal. A statute that encourages patentees to be more explicit and clearer in their demand letters, while discouraging the sending of demand letters in bad faith, seems like a pretty reasonable way of complementing the federal patent statutes.

  23. You quite missed the point of my posts. The patent side is either superfluous or prempted, there are other existing laws that cover tortious interference. I am NOT surprised tha tyou are having such a difficult time with this, after all, the red cape is there.

    Obtuse. Is it on purpose?

    (said in the best Andy Dufresne tones)

  24. Do any of you ever think about maybe the problem is the abuse of the defendant’s lawyers? Maybe the defendant’s lawyers (and the clients) should be trained to make it so that it is at least as expensive to assert the patent as it is to defend against infringement when the patent is invalid or not infringed?

    I mean seriously. LB gave a hypo that no one objected to of a simple letter with a naked assertion of infringement and the defendant went off and spent 10′s of thousands of dollars.

    Get a grip. Keep your attorney in check. I think a lot of the problem could be solved with training clients on how to deal with trolls by keeping attorney costs low. If they make it so the covered business method patent review is applicable to all patents, then you could delay for years action. There are lots of ways of fighting without dropping big bucks.

    Make them do the claim chart. Make some simple assertions of invalidity. Make simple assertions from the client of non-infringement. Make them do the work.

  25. The point Leopold, is that the law is either superfluous or preempted.

    Ratchet up the foul language? Not at all, just calling it as I see it – you are being a d1ck about your announcement and playing the f001 instead of addressing the points. You responded to Ned pedantically when the meaning of his post was quite clear. Hiding behind formal language on a blog is being a d1ck, plain and simple.

    As to the Vermont law, try reading it (like you said you have), and note the specific comments I have posted on this thread including the one to Paul.

    Get your head out of your @_$$ and stop being obstinate.

  26. What about suing a patent owner for exercising a statutory rights to notify possible infringers of their possible infringement?

    What about it? You’ve already provided the answer yourself, with the case you cited the other day. The Federal Circuit has already suggested pretty clearly that federal law does not preempt state actions that are targeted to conduct taken in bad faith.

    So what’s your point?

  27. And the question after that would be – what exactly does this Vermont law provide that cannot be handled by the courts already?

    I explained this for you about two weeks ago, anon. The Vermont law provides a remedy for targets of harassment who have not been sued in federal court. I’m surprised that you’re having such a difficult time with this.

  28. LOL – I like how you critize Ned for ‘sneaking’ the word valid into a post, while you sneak in the word ‘infringer.’

    That’s even more brazen than usual, anon. My comment was in direct response to Ned’s:

    If they can sue the patent owner even while continuing to infringe, I think there just might be a problem.

    You’ve really ratcheted up the personal insults and the foul language in the last few days. Problems at work?

  29. That option was presented to Malcolm long ago when I discussed blog quality.

    The move is still in his court.

  30. Got a cite for that?

    LOL – nice spin as the part of my post that you are misrepresenting was to void for vagueness rather than preemption.

    But for that, I have plenty of cites. Let’s start with the fifth amendment.

  31. MM and anon, you two are making it almost impossible to have discussions in these threads. Can’t you two somehow be more concise?

  32. How dare anyone assert patents? Why, that’s like trying to make money or something.

    What would Jane say?

  33. You really need to get into a line of work you can believe in, Malcolm.

    This cognitive dissonance cannot be healthy for you.

  34. The parade of horribles is easily dispatched by any competent counsel. For all else, see Chief Judge Rader’s suggestions (which ‘shockingly’ mirror my own).

  35. Long ago, most of us identified the source of the problem: The Federal Circuit and the USPTO: allowing claims to business methods and the like, allowing claims to old techniques using modern systems without technological change, allowing claims that are wholly functional at the point of novelty, or that use terms and language that are boderline incomprehensible.

    Who in the h is “us”? The tireless defenders of patent trolling (e.g., the self-interested d-psh-ts who troll this blog with their fantasies about “leftist academics” etc) don’t consider any of those items to be the “source of the problem”. On the contrary, Ned, the “source of the problem” from the perspective of patent trolls is people like you who propose doing anything that would impact their ability to make money off the Patent Casino.

    Wake the f— up.

  36. Paul,

    You are absolutely correct and perfectly reasonable.

    However, the bill might also have problems with 4195(b), specifically “facilitate the efficient and prompt resolution of patent infringement claims…“, which does seem to contradict Leopold’s assertions. Last I checked, resolving patent infringement claims definitely falls into the things I flagged above (the things Leopold threw a conniption over).

  37. Spammy McFilter: If you cannot tell me what a bad faith assertion is

    LOL. The “convincing Spammy McFilter test” for pre-emption. Got a cite for that?

  38. Ned: Not investigating? How much does one really need to do if the accused is doing X

    How much “investigation” do you need to do if the accused isn’t doing X but you still want to sue them to see if they’ll give you some money?

    How much “investigation” do you need to do if it’s impossible for your patent to be valid and still be infringed by every recipient of your lawsuit threat?

    How much “investigation” is needed if some superskummy patent attorneys like the cretins that “anon” hangs around with buy 500 or a 1000 patents and then send a threatening letter to, say, 100,000 or 500,000 different businesses around the country alerting them to the “belief” that they are infringing one of their patents (bear in mind that these skumbags “believe” some of their patent claims are “fundamental” “technology” and justifiably broad) and suggesting that the letter recipient simply “take a license” like “many others” have done?

    You do see where these skumbag trolls wants to take this, don’t you?

  39. As to your comment 1), look at 4197(c)(6)(B).

    While technically this is not ‘needed proof,’ the lack of anything resembling a ‘needed proof’ throughout the bill is problematic. You have a bill with mere factors (including omnibus ‘any other factor’ sections for a court to determine whether something is ‘bad faith,’ (a slight void for vagueness issue) – and that’s in addition to the other comments already made. If you cannot tell me what a bad faith assertion is a priori, how is anyone going to know what a court may determine to be bad faith? The moment this goes beyond what is required to bring an actual federal action, BAM, preemption issues.

  40. Ned: Unless a patent was procured by fraud, it cannot be bad faith to assert a valid patent.

    This is a joke, right?

  41. now you are all set to go into one of your famed eplectic rants of rage…

    More like set to get myself a hamburger with o-rings. It was delicious. What else did you see in your crystal ball, Spammy?

  42. So it kind of comes down to, either the law asks more than what is required from a federal standpoint (ouch, preemption), or the law is superfluous to what the courts can already do (including what the Vermont courts can already do in regards to things like tortious interference and the like).

    Either way, you come out looking like a d1ck, Leopold, and all because you saw the red cape of ‘anon said’ and had to get p1ssy.

  43. And the question after that would be – what exactly does this Vermont law provide that cannot be handled by the courts already?

    Oh wait? Wasn’t that the point that a recent chief judge of the court of appeals federal circuit made?

  44. I don’t think I’ve ever suggested that an infringer should sue a patent owner.

    LOL – I like how you critize Ned for ‘sneaking’ the word valid into a post, while you sneak in the word ‘infringer.’

    Unless of course, you were merely deploying a strawman…

    …or being merely pedantic.

    Would it help if Ned and I hold your hand and rephrase the question to be:

      What about suing a patent owner for exercising a statutory rights to notify possible infringers of their possible infringement?

    After all, you are not an infringer until a court says so, right?

    But more to Ned’s point, what the Vermont law does is allow anyone to sue someone who follows the designated Federal Rules of Civil Procedure for patent infringement.

    See link to uscourts.gov

    Well, I do jump th egun just a tad, as you still have not provided an answer, so maybe the answer is that the information of Form 18 will enable a patent holder to escape the “bad faith assertion.”

    If so, the very next question is: Well, why didn’t you just say so instead of being a d1ck about this?

  45. you seem incapable of making without our help

    LOL – the ‘help’ I get from you? Sorry, Malcolm, obfuscation, purposeful twisting of fact with spin, misrepresentation, evasion and even outright blatant 1ying is not help here on planet Earth.

    Maybe where you come from…

    Speaking about l y i n g…. How is the controlling law to the exception to the printed matter doctrine and the “configured to” is structural language helping your agendas?

    LOL

  46. this deliberate vagueness thing< ?I>”

    What are you talking about?

    without notice

    Nice strawman. I’m sure that the granaries are on notice now. And I am sure that Monsanto would be more than willing to put the granaries on notice and collect what is due to them.

    Except maybe in Vermont (but let’s wait for an answer from Leopold first).

  47. What are you talking about? Leopold, I am waiting for you to answer the question.

    You still haven’t done so.

    Why the evasions?

    Here let me make it easy for you:
    link to greenmountainip.com

    Let me know when you want to stop being a d1ck.

  48. Malcolm,

    Try to stay on point, will you?

    What you label as ‘games’ -regardless of moniker – were not games, and were substantive points.

    Sorry but your ‘spin’ just is not the same as actual facts. We covered this already when I discussed the true drivers of poor quality that you merely stood by and [shrugged].

  49. Uh … no. And thanks for proving my point

    LOL – if your point is the typical Malcolm Self-Defeat (in that you are a hypocrite), you are more than welcome.

    Your head, sir.

  50. Really? Showing that you are a first class hypocrite is a classic t–b-gger ‘argument’?

    Uh … no. And thanks for proving my point about your kneejerk t–b-gger tendencies. I’m quite certain that you don’t even understand the extraorinary depth of your inherent derpitude.

  51. Spammy McFilter: you are spending more time playing games

    Than you? LOL. Nice try, Spammy. Have you forgotten that you spent years trolling this blog with thousands of inane insults under scores of s-ckp-ppet pseudonyms until Dennis finally outed you (there wasn’t much doubt, of course, but you did l i e about your behavior endlessly)? LB and I have a lot of catching up to do before we spend half as much time “playing games” as you, Tr0llboy.

  52. Smammy McFilter: More questions

    We’ll never stop asking you questions, Spammy, until you learn how to write English proficiently and stop dancing around “the points” you seem incapable of making without our help.

    I’ll ask you again: is it your position that it’s impossible to determine whether a suit was brought in good faith without a so-called “infringement analysis”? Or is it your position that you lack the intelligence to see how it could otherwise be done? Which is it? I’m happy to do your work for you but only if the record is clear beforehand. Otherwise we all know how you’ll behave: like the s-ci-pathological l y i n g t00l that you are.

  53. Patents are presumed valid by statute. Unless a patent was procured by fraud, it cannot be bad faith to assert a valid patent.

    Your first sentence is correct, Ned. What you did with that second one is pretty clever, sticking the word “valid” in front of patent. Do you mean “valid” as in “presumed valid”, or do you mean “valid” as in “no court has yet rendered it invalid”, or do you mean “valid” as in there really truly is no prior art out there that could possibly render the patent invalid?

    Here’s a scenario for you. You have an issued patent, that was obtained in good faith. Long after the patent issued, you learn about some prior art that clearly invalidates it. You go to three separate patent attorneys, and they all independently tell you that a court would almost certainly find all claims to be invalid over this prior art. You decide that you want to get what you can from it, so you send letters to a dozen infringers (we’ll assume they’re infringing, for the sake of argument), with an irresistibly low offer of $50K for a paid-up license.

    Is your assertion of infringement in good faith? This is a serious question.

  54. “is “free to donate money to the government.”"

    I think they should be free to donate to whatever pet project they wish it to go to. Then the government establishes whatever baseline on spending they want, and people are free to boost up the funding as much as they wish for their pets.

    I know I for one would toss the space program 100$ if it didn’t have to go through appropriations and most likely end up as a small part for a F-15.

  55. Oh yes, buried in the rant:

    Ned’s Point of Novelty Canard Alert

    This public service brought to you on behalf of McCracken’s Webbreakerz Service.

  56. It seems the basic violation is asking for compensation at all.

    Yes (as been posted before), enforcing a patent is the “worst thing evah

    That’s because it has to do with evi1 MONEY – What Would Jane Do?

  57. Ned,

    Define “technological.”

    You may reference the USPTO rules made in response to the AIA, but you may not engage in the same circular definitions.

  58. LB, I agree with Anon here. How does one show that patentee is acting in bad faith? Is the “Troll” label that Big Businesss attaches to the NPEs sufficient?

    Patents are presumed valid by statute. Unless a patent was procured by fraud, it cannot be bad faith to assert a valid patent.

    No good faith belief in infringement? Is this the same thing or something different from adopting an aggressive claim construction?

    Not investigating? How much does one really need to do if the accused is doing X and X is known to infringe?

    Asking too much, or too little. Both are alleged to be troll behavior. What is the point here? It seems the basic violation is asking for compensation at all. The law seems to assume that NPEs with patents not only should not have injunctions, but also should go completely uncompensated.

    Long ago, most of us identified the source of the problem: The Federal Circuit and the USPTO: allowing claims to business methods and the like, allowing claims to old techniques using modern systems without technological change, allowing claims that are wholly functional at the point of novelty, or that use terms and language that are boderline incomprehensible.

    Arm the unscrupulous with such patents what did you expect?

    Why don’t we address the source ot the problem by law: Clearly ban business method patents, spruce up 103 to require that the difference over the prior art be “technological” and define that term in 100; and put some teeth into 112(2) by requiring, for example, that claims use reference numerals, or a number that indexes a table of definitions.

  59. Classic t–b-gger ‘argument’

    Really? Showing that you are a first class hypocrite is a classic t–b-gger ‘argument’?

    It’s classic, alright – just not what you think.

  60. Spammy McFilter: Still no answer from you…

    Just assume that I have one, Spammy. Changes nothing.

    You’re still a l i a r, and a pretty bad one at that.

    What exactly were you thinking, Spammy, when you told everyone that you could successfully (i.e., equitably) avoid disclosing prior art by using mailroom staff to screen registered letters sent to attorneys and throw away the letters if they were deemed by the mailroom staff to contain relevant prior art? Or maybe you weren’t thinking at all because you were on drugs?

    Serious question.

  61. demonization based on who owns property

    LOL. Keep cranking it up, Dumpty! Really persuasive stuff there.

  62. How many of the j_nk patents you post have you initiated a review of?

    Classic t–b-gger “argument,” just like the Repukkke t00ls who respond to proposals to raise taxes by noting that the proposer is “free to donate money to the government.”

  63. Awww, poor widdle Malcolm – your post svcks and I merely pointed out why, and now you are all set to go into one of your famed eplectic rants of rage…

  64. And please move the goalposts back.

    The attack from the Left and from the Right is separate from the discussion of personal property and forced tracking and the concurrent demonization based on who owns property as opposed to what the property is.

  65. and they took advantage of that rather than whine on a blog

    LOL – from the blog’s biggest crybaby bar none, the accuse-others-of-what-you-do is in high gear.

    How many of the j_nk patents you post have you initiated a review of? Yet, you yourself would rather QQ incessantly.

    Malcolm Self Defeat Extraordinaire!

  66. The royal we, of course.

    See the conversation upthread (your 3:50 PM post and subsequent posts).

    The question remains.

    Funny though, that you are spending more time playing games than simply backing up what you said.

    Methinks that you cannot back up what you said, and instead of simply being forthright about it (oh noes – it’s because “anon said”), you resort to this petty gamesmanship.

    C’est La Vie

  67. (sigh) nice tree in the wrong forest leopold.

    Can we get answers from you any time soon?

    for this infringement

    There is more than one act of infringement, no? There is more than one actor making money off of Monsanto’s invention, no?

    Phhhfffft.

  68. Another try at fixing the mistake that one particular person is known to cause

    LOL – talk about fignerprints….

    FIX
    the
    line-through

  69. LOL – Malcolm, email spam filter?

    Still no answer from you…

    (your one trick-pony response is more than a bit old and stale)

    Flagstaff – sorry still no intelligence from you.

    and stop breaking the internetz, please.

  70. link to betanews.com

    “i4i developed a product and established a sizable client base, particularly among pharmaceuticals such as Bayer, Merk and Schwartz Pharma.”

    I don’t think i4i should have won their case, but the facts distinguish them from the skumbucket trolls you spend your days defending, Spammy.

    Also, as I noted, they had a perfectly acceptable remedy for addressing the problem, including the ridiculous presumption that their p.o.s. patent was valid, and they took advantage of that rather than whine on a blog about a myth that “leftists” and “BigCorp” made it impossible for them to monetize their patents without hiding behind a shell company.

  71. LB anon refuses to actually make any clear point, preferring instead to dance around while hoping to trap someone else in an error or inconsistency

    Did anon really do that? I’m shocked and saddened that our resident blogtroll would engage in such behavior.

  72. the granaries are infringing patents because they are engages in selling and offering to sell the very newly made grain from Bowman

    You want them to harass the resellers who purchased in good faith without notice, rather than suing the “innocent victim” manufacturer of infringing goods? That’s an even worse point than the one I thought you were making. Maybe you’re on to something with this deliberate vagueness thing.

  73. You said this was possible…

    No, I didn’t. And who exactly is this “we” that is still waiting?

  74. While you have every right to voice your opinion, your opinion has no weight merely because it is your opinion

    That’s pretty funny, Mr. Dumpty.

    What’s your opinion on using mailroom staff to screen registered letters to attorneys for prior art, whereupon letters deemed to contain prior art relevant to an application being prosecuted by that attorney are discarded without the attorney being informed of the contents of the letter? Is that a good idea, in your opinion, Mr. Dumpty? Ethical? You certainly thought so, once upon a time …

  75. Like what? Bowman has been found guilty of making. It should be relatively easy to follow the trial of seed – that illicitly made seed. What do you think Bowman did with his late season harvest?

    Guilty? What kind of law do you practice?

    I thought you were saying that Monsanto should have sued the granaries instead of poor, 85-year-old, Mr. Bowman. Now you’re saying that Monsanto should sue the granaries in addition to Bowman? How many times do you think Monsanto should recover for this infringement?

  76. Spammy McFilter: how do you determine the good-faith basis without having to address questions of patent law – the validity/invalidity or infringement/non-infringement questions?

    Just so we’re clear, Spammy, is it your position that it’s impossible to do that? Or is it your position that you lack the intelligence to see how it could be done?

  77. Spammy McFilter: I am pretty sure that whatever test the Vermont law has, it is not an “in the eye of the accused, there is no reasonable basis” test.

    I never said that was “the test”. NWPA’s question is answered, regardless.

    Yet another d-psh-t comment from Spammy, the resident bl-gtroll who never met a patent troll he couldn’t wrap his lips around.

  78. You are correct again, anon. You’re pretty clever

    And you are too clever by half.

    Can we now return to the point here and have you answer the question on this thread?

    You still haven’t done that.

  79. obivous problems at proof?

    Like what? Bowman has been found guilty of making. It should be relatively easy to follow the trial of seed – that illicitly made seed. What do you think Bowman did with his late season harvest?

    Think Leopold, think – you are letting the “anon said” red flag befuddle your mind.

  80. Although anon refuses to actually make any clear point

    LOL – what? The question is at present is clear and straightforwar, Leopold, and it is you that insists on playing games.

    The question on the suing of granaries is also quite clear – I explicitly stated that Monsanto should go after them. Go back and re-read the thread. Open your eyes.

    Then return and provide the answers that you said you had here.

  81. Point in fact is tha ta showing of proof of infringement is more than sufficient to defeat the Vermont statute.

    You are correct again, anon. You’re pretty clever.

  82. …and then INANE stumbles by to receive his Calvinball face sp1ke.

    It’s absolutely clear that the granaries are infringing patents because they are engages in selling and offering to sell the very newly made grain from Bowman (post second season making, INANE – not the precursor – Keep your eye on the right items, INANE). That very grain that has been held to be unexhausted.

    some kind of abuse of process…” wth?

  83. Although anon refuses to actually make any clear point, preferring instead to dance around while hoping to trap someone else in an error or inconsistency, I think the idea here is that at least one granary bought and sold Bowman’s infringing seed. anon seems to suggest (without saying it, because he’s far too clever for that) that Monsanto should have sued the granaries instead. There are some pretty obvious problems of proof at play with that strategy, however.

  84. All that is correct, anon.

    It’s not at all clear that the granaries were infringing any patents. Which kinda subverts/inverts his entire point. It’s perfectly appropriate to sue the manufacturer of infringing goods, and it would probably be some kind of abuse of process to go after his non-infringing raw material suppliers.

    However, it is possible that the graineries were guilty of anthropomorphication. Anybody know the controlling law?

  85. So what’s the problem?

    The question reamins: how do you determine the good-faith basis without having to address questions of patent law – the validity/invalidity or infringement/non-infringement questions?

    You said this was possible, but you have NOT YET explained how this is possible.

    We are still waiting.

  86. Leopold kind of disappeared from that conversation (too).

    This too is all correct. My point is that you come by, make a grand announcement, and then disappear when I ask you to back up that grand announcement.

    Or are you going to actually answer the question that you said you new the answer to? How do you show the bad faith if you are not addessing the validity/invalidity or infringement/non-infringement?

    You quite confidently stated that “neither of these proofs is either necessary or sufficient under the Vermont statute” and you are quite mistaken in this comment. Point in fact is tha ta showing of proof of infringement is more than sufficient to defeat the Vermont statute.

    I think that you may have had something in mind, but what you have posted doesn’t reach.

    And please, don’t get your undies in a bunch jsut because of the “anon said” factor.

  87. In both circumstances, the cost of and individual defense doesn’t make sense. But the patent owner on the other hand, or copyright owner as the case may be, may have an incentive to make an example out of a randomly chosen victim.

    That’s fine, Ned. And nothing in the Vermont statute prevents you from suing your randomly chosen Vermont statute for patent infringement. Further, nothing in the Vermont statute prevents you from sending “Dear Infringer” letters, so long as you have a good-faith basis for doing so. So what’s the problem?

  88. I know of a certain 85 year old farmer that Monsanto targeted, all the while much deeper pocketed graineries are engaged in patent infringement by selling and offering to sell 3rd+ generation, unexhausted patented items (for example the later generations of illicit second season newly made articles for which Monsanto never received any benefit for).

    All that is correct, anon. What’s your point?

  89. You don’t even need to leave the patent world for examples of patent holders making an example of a single, older infringer.

    I know of a certain 85 year old farmer that Monsanto targeted, all the while much deeper pocketed graineries are engaged in patent infringement by selling and offering to sell 3rd+ generation, unexhausted patented items (for example the later generations of illicit second season newly made articles for which Monsanto never received any benefit for).

    Leopold kind of disappeared from that conversation (too).

  90. LB, if I recall correctly, Vermont law was passed in response to some patent owner sending out notices of infringement to a large number of shop owners selling some product or service allegedly covered by patent. I don’t know the details beyond this, but the hue and cry seems to be that such an enforcement effort itself was beyond the pale.

    But if this practice is illegitimate, what about the practice of copyright owners suing grandma’s for downloading music?

    In both circumstances, the cost of and individual defense doesn’t make sense. But the patent owner on the other hand, or copyright owner as the case may be, may have an incentive to make an example out of a randomly chosen victim.

    In the end it seems that what Vermont is trying to do is insulate its citizens from patent actions where the amount in controversy is so low as to make a defense unreasonable.

  91. All I see is you babbling, with no actual points to make.

    While you have every right to voice your opinion, your opinion has no weight merely because it is your opinion.

    Try to add something intelligent, ok?

  92. That may be literally the dumbest thing ever posted on the internet. I’m actually nauseous from reading it. Sorry you have no friends, maybe try going outside instead of making horrible posts on the internet.

  93. Just like you

    Assumes evidence not present.

    Sorry Flagstaff, but your mewling just does not have any effect. PLenty of people of posted that they very much care what I think.

    Are you related to Leopold?

  94. Sorry Flagstaff,

    I don’t see a point in your mewling. And you are more than somewhat vague about nonsense. You don’t think knowledge of patent law is nonsense, do you? Friend of Malcolm, are you?

  95. Don’t you have anything better to do in life? Sweet Lord Jeezus, no one cares about your half-baked nonsense.

  96. You look at the law and there is no reasonable basis for the allegations

    I am pretty sure that whatever test the Vermont law has, it is not an “in the eye of the accused, there is no reasonable basis” test.

    Yet another glorious Malcolm moment…

  97. instead of trying to change the subject to personal griping about how [insert large computer company here] “stole their invention

    LOL – i4i called just to laugh at your life. They said to get into a profession that you can believe in instead of letting the m@lignant dissonance eat your soul.

  98. Flagstaff,

    Good God, your infantile drivel of accusing others of infantile drivel is rather pointless.

    My comment to Malcolm is very timely given the changes in design patent law that let one have literally thousands of variations in a single patent.

    (No one is forcing you to be here, by the way)

  99. Again with the accuse-other bit, Malcolm?

    Everyone knows that the king of QQ is you.

    Further, I raise a valid point – that’s not even a “Waaaaaaaaah!” item.

    Have you nothing better to do than to troll my discussions with others?

    Really?

  100. you have not shown why you would be right.

    Oh, how horrible LB must feel about failing to convince the great Dumpty. I guess we’ll find out soon enough if LB is right or wrong.

    Who’s the fatcat lawyer who’s going to go to bat to defend the superskummy NPE in Vermont? Or are they going to attempt to defend themselves? I heard the Sherriff in Vermont is really mean to “outsiders.”

  101. Spammy McFilter: You only covered one of the three areas in Hunter, and by no means have positively concluded that the state cause of action involving questions of validity/invalidity or infringement/non-infringement (which by the way was expressly NOT what you stated at 3:50 PM with your “neither of these proofs is either necessary or sufficient under the Vermont statute” comment)makes the question meaningless.

    Shorter Spammy: “Waaaaaaaaah!”

  102. More patent troll takedown here:

    link to newyorker.com

    and here:

    link to thisamericanlife.org

    Maybe those folks who are sincerely concerned about patent theft (assuming there are any) should consider another strategy for “responding” to trollery instead of trying to change the subject to personal griping about how [insert large computer company here] “stole their invention.” After all, there’s already a remedy for having your patent stolen. It may not be the magnificent cash windfall once dreamed of by these computer-implementin’ sadsacks when they got started on their “virtual toolbox” “invention” (or whatever other lame “innovation” we’re told that we’ll be missing out on if we don’t coddle them), but they’ll still get their day in court if they really want it. And let’s face it: goin’ to court and successfully facin’ down one of those Big Ol’ Thievin’ Companies is the patent t–b-gg-ers wettest dream evah. So maybe time to get with the program and stop defending these skumbag Texas attorney/NPE types? Just a thought.

  103. With the technical corrections bill passed in January of this year, that’s not as many patents as previously may have been required.

    And each has an extra year to boot.

  104. You only covered one of the three areas in Hunter, and by no means have positively concluded that the state cause of action involving questions of validity/invalidity or infringement/non-infringement

      (which by the way was expressly NOT what you stated at 3:50 PM with your “neither of these proofs is either necessary or sufficient under the Vermont statute” comment)

    makes the question meaningless.

    All you have done is dodge a question that you stated that you had an answer to.

    If you don’t have an answer (after stating that you have read the statute severl times), than the better course of action for you would be to state the truth instead of trying to play games.

    The question remains and is far from meaningless.

  105. The question remains: how do you show bad faith if you are not involving questions of validity/invalidity or infringement/non-infringement.

    The question is meaningless, because there is nothing wrong with a state cause of action involving questions of validity/invalidity or infringement/non-infringement, as you demonstrated with your citation to Hunter Douglas.

  106. The question remains: how do you show bad faith if you are not involving questions of validity/invalidity or infringement/non-infringement.

    You say you have read the statute, so tell us how do you establish a baseless assertion?

  107. How is determining that the assertion is frivolous without directly impacting either of vlaidity/invalidity or infringement/non-infringement.

    I’m afraid that I don’t understand the question, anon. Sorry. In any event, the Vermont statute (which I have read) does not require a showing that an infringement assertion is objectively frivolous.

    Check out Globetrotter Software Inc v Elan Computer Group Inc and Hunter Douglas v Harmonic Design.

    Thanks for the citations. Both are interesting cases. The first one, if I read it correctly, suggests that Vermont’s cause of action can’t be raised as a counterclaim in an infringement lawsuit, because it would then conflict with the Federal Rules of Civil Procedure. I don’t have any problem with that. I don’t think the Vermont legislature intended this statute to be used in that way.

    The second case, Hunter Douglas, is even more interesting, as it appears to directly support my position on the Vermont statute. Consider what the CAFC said in Part IV of that case:

    We readily conclude that, in accordance with Dow Chemical, there is no reason to believe that the clear and manifest purpose of Congress was for federal patent law to occupy exclusively the field pertaining to state unfair competition law. Because of the lack of such congressional intent, in conjunction with the underlying presumption disfavoring preemption, there is no field preemption of state unfair competition claims that rely on a substantial question of federal patent law.

    Also (emphasis mine):

    Second, federal patent law bars the imposition of liability for publicizing a patent in the marketplace unless the plaintiff can show that the patentholder acted in bad faith.

    The Vermont statute (which I have read) is squarely directed to bad faith assertions of infringement. It appears that someone in Vermont did his or her homework.

  108. Serious question: have you read the Vermont statute, or are you simply pulling this opinion of yours out of thin air?

    Not that I have not read the proposed statute yet, so I afford the possibility that you might be right. But you have not shown why you would be right. Yet.

  109. How is determining that the assertion is frivolous without directly impacting either of vlaidity/invalidity or infringement/non-infringement.

    Check out Globetrotter Software Inc v Elan Computer Group Inc and Hunter Douglas v Harmonic Design.

    Yes I am familiar with Gunn v Minton. That case is inapposite here. Unless you care to show why it pertains… (which you might be able to do by answering my snark-free question).

  110. How is what done, anon? And who says that the Vermont cause of action can’t touch on a federal question? You’re familiar with Gunn v. Minton, right?

  111. How is it done then, under the Vermont statute and without touching on the federal question?

    (no snark intended – I really don’t see how you get there from here)

  112. Directly regarding 1), don’t you need these things to determine if the assertion is frivolous?

    Those are two pretty good ways to demonstrate that an infringement assertion is frivolous, anon. But neither of these proofs is either necessary or sufficient under the Vermont statute.

  113. Leopold,

    Directly regarding 1), don’t you need these things to determine if the assertion is frivolous?

  114. LB, while there may be some actions that VT might regulate, the law must exclude anything that needs proof of patent invalidity or non infringement as an element. If such is included in the statute, it makes no difference that other reprehensible conduct is also proscribe. The statute interferes with the exclusive jurisdiction of the federal courts and congress’s power to regulate patents.

    I’m really not sure what position you are arguing, Ned, but here are two answers:

    1) Nothing in the Vermont statute “needs proof of patent invalidity or non infringement as an element.”

    2) Gunn v. Minton (2013).

  115. Really? Whose to know whether the shop owners selling infringing widgets are not infringing? If they can sue the patent owner even while continuing to infringe, I think there just might be a problem.

    Sorry, Ned, I don’t know what we’re discussing here. Can you please explain the scenario that concerns you, in a little more detail?

  116. Really? Whose to know whether the shop owners selling infringing widgets are not infringing? If they can sue the patent owner even while continuing to infringe, I think there just might be a problem.

    If you really want to prevent such action, you will need to revise the laws of infringement to convert inducement and contributory infringement into direct infringement without the need to prove direct infringement. I think that kind of “reform” will never pass.

  117. LB, while there may be some actions that VT might regulate, the law must exclude anything that needs proof of patent invalidity or non infringement as an element. If such is included in the statute, it makes no difference that other reprehensible conduct is also proscribe. The statute interferes with the exclusive jurisdiction of the federal courts and congress’s power to regulate patents.

  118. It looks like this VT law might have some vagueness issues that could render it unenforceable?
    But state fraud and consumer protection laws are not federally prempted just because patents are involved. If that was not already clear before, from state court enforcements of patent licenses, after the Supremes recently unanimously slapped down the CAFC for claiming jurisdiction over a state patent malpractice case it is certainly clearer now.

  119. What about it, Ned? I don’t think I’ve ever suggested that an infringer should sue a patent owner.

  120. Malcolm, California law, if I recall correctly, already has a tort regarding bad faith assertion of a patent. I think at a minimum that the tort requires that there be no good faith belief or basis for belief that the party accused is infringing.

  121. Ned, of course the patent owner has a right to rely on the statutory presumption of validity. That’s why I said that the validity is irrelevant to the cause of action that Vermont has created here. Because of the presumption of validity, a state court cannot ever find, on the grounds of invalidity, that an infringement allegation is baseless. That still leaves plenty of room for the Vermont statute to operate.

  122. LB, may I politely suggest that the patent owner has a right to rely on the statutory presumption of validity. Before a state can strip the owner of this legal right, they would have to show that the patent is invalid in court, or have the patent office canceled claims in a reexamination or inter partes review.

  123. it will mean yet an additional issue to litigate

    Someone can count!

    another topic for law professors to write about

    Maybe the patent troll defenders should focus on trying to shut down the leftist and communist law schools that are destroying our great nation. I don’t see any downside! All you need to do is come up with a good “soundbite.” Maybe ask Bill O’Reilly or Rush Limbaugh to help you. That worked really well for the Republican Party.

  124. “I’m skeptical of this attempt to distinguish legitimate from illegitimate patent assertions.”

    Yes, it will mean yet an additional issue to litigate (and another topic for law professors to write about)

  125. Vermont will be interpreting the federal law for a baseless claim. How can that not be preemption?

    Let’s say I send you one of 5,000 threatening letters saying that some specified Federal law (pick one!) is being violated and you should settle for $1000-$5000 “in two weeks or I’ll sue you in Federal Court.” You look at the law and there is no reasonable basis for the allegations.

    So you take me to State Court and sue me under the state’s vexatious/frivolous litigation law, which punishes frivolous filers with fines. Where’s the “pre-emption”? There isn’t any.

  126. “Our plan to 3D-print 3-5 million unique products per year”

    That’s a lot of design patents!

    LOL.

  127. Ultimately, we need to get rid of the child labor laws, the environmental laws, patent laws, social security, to compete with the Vietnamese to get those factories back. Right?

    Assuming by “patent laws” you mean “laws that make it more difficult to monetize a patent”, that’s a pretty accurate description of the Republican party platform. Maybe throw something in there about “family values”?

  128. Vermont will be interpreting the federal law for a baseless claim.

    State judges aren’t allowed to interpret federal law? Do you have a citation for that?

  129. There is clear liability being imposed based on the assertion of patent rights.

    Are you applying some version of a field pre-emption test (Gade v. National Solid Waste (1992))? Because I’ve yet to see any conflict identified between the Vermont law and the Federal patent laws.

  130. LB: Vermont will be interpreting the federal law for a baseless claim. How can that not be preemption?

  131. So to prove that there will be no factories in the future your first link is to a factory? (complete with a hot chic sitting on a table no less, my kind of factory :) ) I’m pretty sure we’ve been seeing replicator tech “in the future” always taking over factories. Yet, even in the star trek fantasy world there are still factories.

  132. Eric: if the choice is between no threats action at all versus state-level threats actions, I might favor the former to avoid the inevitable problems that accompany state-by-state regulation.

    Of course, no such yay/no choice exists.

    How about about if Eric propose some improvements to the Vermont law that allow it to still achieve its goals effectively (shutting down PAEs who canvas Vermont businesses with threatening letters) but which minimize his “issues” (that assumes his real “issue” isn’t simply that a law is being passed which negatively affects a patent owner, somewhere on earth — a major assumption in a world where pure patent t–b-ggery is treated like a legitimate occupation).

    State-by-state laws is just one of the approaches that is being taken to shut down PAEs. There will be more.

  133. There is clear liability being imposed based on the assertion of patent rights. Period.

    There is liability being imposed for the baseless assertion of patent rights, yes. However, I’m not aware of any precedent that says that a state law is necessarily preempted if it is somehow “based” on federal law, or even if it requires an interpretation of the federal law. Certainly the Patent Act has preemptive effect, but the issue here is the scope of that preemption. The question, then, is whether the state law conflicts with the purposes and objectives of the federal law. In what way does the Vermont statute conflict with the purposes and objectives of the Patent Act? It doesn’t purport to change the standards for patentability. It doesn’t change the standards or penalties for infringement. It doesn’t change the defenses to infringement.

  134. It’s not a two-step process, there are (potentially) two different processes. Vermont can’t stop you from filing your claim in federal court, in Vermont or elsewhere. Vermont doesn’t decide anything that would be decided in the federal court.

  135. I hear what you are saying Leopold, but I cannot see any logic to your words.

    There is clear liability being imposed based on the assertion of patent rights. Period. There is no way to spin out of the facts of the situation. None.

  136. And, frankly, you must be incredibly naive to think that if this law is allowed to stand that it won’t get much worse in other states. There will be “deals” with the state. Come move your factory to our state and we will make sure that you aren’t sued for infringement. It is the race to the bottom for attracting businesses. Ultimately, we need to get rid of the child labor laws, the environmental laws, patent laws, social security, to compete with the Vietnamese to get those factories back. Right?

  137. Now in Vermont, there is a two step process: (1) can you get through the sheriff of Vermont, and (2) can you get through the federal court.

    Vermont may create a cause of action whereby if a federal court holds that the infringement allegation is baseless, then etc…punishment for being bad actor in Vermont.

  138. Simple: if Vermont can determine when an assertion of infringement is baseless, then they are preempting federal law.

  139. LB: how could this not be a preemption issue?

    Vermont is going to determine what? A baseless claim? Based on what?

    The impact is on whether or not you can enforce the patent rights. That is preemption.

  140. As just one example, federal courts have exclusive jurisdiction to determine patent validity and infringement, but Vermont courts effectively would have to make these determinations to decide if a patent assertion was in bad faith

    “Effectively”? Baloney. There’s no reason for the state court to get anywhere near the issue of validity. If there’s evidence that the patentee believed the patent was invalid, then sure, you have evidence of bad faith, but the ultimate validity of the patent is irrelevant. As to infringement, the state court needs to get no closer to the conclusion of infringement than a finding of “probable cause” is to a finding of “guilty.”

    The state is not imposing any liability for any conduct that is regulated by the patent statute, and the state’s conclusions as to the whether an infringement allegation is baseless have no impact on the validity, scope, or ultimate enforceability of any patent within the state. There is no preemption.

    As just one example…

    Right. Where are the other examples of how this law conflicts with federal patent law?

  141. Goldman writes:

    “Federal Law Preemption? While I think Vermont’s approach is promising, I don’t think state-level regulation is the right solution to patent trolling. First, due to federal preemption doctrines, states cannot enact their own patent laws, and that preemption principle may apply to this law. As just one example, federal courts have exclusive jurisdiction to determine patent validity and infringement, but Vermont courts effectively would have to make these determinations to decide if a patent assertion was in bad faith.

    Second, even if the law isn’t preempted by federal patent law, I don’t favor state-by-state development of intellectual property doctrines for numerous reasons: it would be troublesome if states adopt inconsistent or different legal standards for threats actions; it becomes exponentially more expensive for IP owners to enforce their rights when they have to research and comply with multitudinous state laws; and business activities routinely cross state borders (especially with respect to the Internet), making it hard to determine which state’s laws apply. I would enthusiastically favor a nation-wide threats action–and I’d favor it for all of the intellectual properties, not just patents. However, if the choice is between no threats action at all versus state-level threats actions, I might favor the former to avoid the inevitable problems that accompany state-by-state regulation.”

    I agree that state laws such as Vermont’s are preempted.

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