Patent Reform 2013: Demand Letter Transparency Act of 2013

By Dennis Crouch

In many ways, a patent infringement demand letter is akin to a debt collection action. And, we know that debt collection is highly regulated under both Federal and State consumer protection laws. The current mood in Congress and amongst the state attorneys general is that patent demand letters should also be regulated to control their negative impact on the marketplace. The particular focus is on patentees who threaten litigation against the users of off-the-shelf technology (such as WiFi technology or Flat-Panel Screens) with little or no due diligence or pre-threat investigations. In some cases, patentees are threating litigation with no intention of actually filing suit and are hoping to use the high cost of patent litigation to drive settlement value rather than the underlying value of the patented invention.

Senators Leahy and Lee have proposed the Patent Transparency and Improvements Act (PTIA) of 2013 (S. 1720) as a quite weak form of regulation that would only address the most egregious cases of threats that operate as an unfair competition.

Now, Representatives Jared Polis (D-Co) and Tom Marino (R-Pa) have proposed their own legislation that would have more teeth. See the Demand Letter Transparency Act of 2013 (H.R.3540).  Download HR3540

H.R. 3540 includes a number of interesting features:

  • Any demand letter must include:
    • A listing of each claim being asserted and a listing of each accused device;
    • If indirect infringement is claimed, an explanation of the underlying direct infringement;
    • A description of the principle business of the party alleging infringement;
    • A list of other cases and review proceedings where the patent was asserted;
    • Identifying of any licensing term or pricing commitments associated with the asserted patent.
    • A listing of all people who have a direct financial interest in the outcome of the action, and a description of the agreements providing the legal basis for these financial interests; and
    • A statement to the recipient that 'You are not required to respond to this letter by law.'
  • A 20-demand-level threshold that raises heightened requirements, including the submission of demand information regarding the demands to the USPTO that will then be publicly available. (i.e., once a patentee sends out 20 demand letters, then it must begin complying with certain reporting requirements).
  • Failure to abide by the demand letter requirements would result in abandonment of the patent; other financial penalties; and also action by the FTC.
  • Under the statute, a demand letter is defined broadly as any "written communication directed to an unaffiliated third party stating or indicating, directly or indirectly, that the intended recipient or anyone affiliated with that recipient is or may be infringing a patent, or may bear liability or owe compensation to another because of such patent."

While the Leahy-Lee proposal is likely under-inclusive, H.R. 3540 is over-inclusive and would serve as a trap for unwary business leaders looking to license their company's technology. Two tweaks would bring focus: (1) only apply the demand letter requirements to instances where more than 20-demand letters have been sent-out; and (2) narrow the definition of demand letters so that some amount of written technology license negotiations can occur without raising the threat of abandonment (perhaps this could be done through some sort of safe-harbor).

200 thoughts on “Patent Reform 2013: Demand Letter Transparency Act of 2013

  1. Quote of the Day: “Google seeks broad, sometimes nearly ridiculously broad, patent claims just like everyone else.”Guess who?Man, that bubble is airtight.

    1. Let’s pretend the gist of the piece is something other than what it is .Oh wait – you’ve already done that.Why do you insist on posting here concerning Gene’s blog? Why do you not post there?

      1. the gist of the pieceThe gist of the piece is that Gene is shocked — shocked!!! — that Google is applying for a junk patent in the computer-implemented “arts”. Like he just woke up yesterday and discovered that this goes on. And “nobody” criticizes Google’s junk patents! Again, that bubble is apparently airtight.And then out of the other side of his mouth he proclaims that “everybody” files junk at the PTO. So what’s his point? Well, he’s clearly not suggesting that anyone (especially not self-proclaimed tech/patent experts like him) should spend more time discussing the reams of computer-implemented junk applied for and granted every week and perhaps advocating sensible ways of changing the status quo. No, it’s not that all. He doesn’t have time for that. Rather, his point is how dare Google interfere with the “small” “incremental innnovators” who pursue similar junk and would love to take out a big chunk of Google’s hide with that junk. It seems that “patent apologetics” has its limits and some junk patents actually are worthy of public condemnation in spite of their “presumed validity”.Nobody could have predicted that.

        1. No. That is not the gist of the piece.The gist has to do with duplicity – you know, your stock-in-trade.Like how you are attempting to treat the gist of his piece in the immediate conversation.

          1. “The gist has to do with duplicity”There’s some of that tossed in, I must admit. Amongst Eugene’s own duplicity, as noted above by MM.

          2. The gist has to do with duplicityRight. That’s explained in my comment, as every reader of English can plainly see. It’s pretty funny that you accuse me of being “duplicitous” when I’m the one who consistently points out that Google files just as much junk as the trollies. It’s been suggested directly to Gene (and that other guy with the similarly shilly biotech patent blog) that he might want to use his alleged tech/patent expertise to point out the junk routinely filed by both small and large entities and explain why it’s junk and shouldn’t be filed, much less granted or asserted. But for some mysterious reason Gene doesn’t believe that is a good use of his time. Perhaps he’s on a path towards reconsidering that position. Or perhaps it’s too late for that.

            1. Your dissembling on the topicI haven’t “dissembled on the topic”.Are you going to just sit there and fling insults now?

            2. Are you just going to sit there and dissemble now?Clearly, what you are trying to portray Gene’s article as, is nothing at all what the article is actually about.

            3. Are you just going to sit there and dissemble now?Are you going to just sit there and beat your wife?Rinse. Repeat.

            4. Anyone can go over to Gene’s blog and read the story directly at link to ipwatchdog.com…to see that you are plainly misrepresenting what he wrote about.On the Mullin thread, you posted “I think the term you were looking for is ‘shameless.’” and clearly your Accuse-Others-Of-That-Which-You-Do posting technique is of the same cloth.Rinse. Repeat. Indeed.Let’s have a modicum of intellectual honesty from you please.

  2. People seem to forget that “technological progress” reduces to one thing: the actions of individuals, working either alone or in groups.There is no “the field” or “the art” without the actions of individuals. Ultimately, the granting of letters patent is designed to encourage individual action, whether directly, or indirectly through an intermediary such as an employer.All proposals aimed at weakening or burdening the position of a patentee have the practical effect of steering individual contribution to society away from the “invention” dimension of technological development.The property that is “a patent right” has no intrinsic value, its value is created and constrained by social action; it is an acknowledgement by a society that the actions of an individual can ultimately be of value to that society, and that such individual action needs to have affirmative social support in order to take place and succeed. This principle underlies the very concept of the private ownership of any type of property, whether real or personal, including patent rights.These proposals evidence a decision by parts of society that, in their opinion, the economics have shifted such that the social bargain made with individuals is now improvident for society. This is an understandable effect, and IMO has its fundamental basis in the issuance of invalid and subject-matter-ineligible patents by the USPTO.I feel for patentees, but the sentiment is understandable. It is ultimately governmental incompetence that has corroded the framework within which the bargain plays itself out in practice.Unfortunately, the “solutions” proposed address the symptoms, but not the problem. It’s just another example of how “the government”, here exemplified by the PTO, is exalted to a position of supremacy, above the larger “society” itself.No, rampant garbage demand letters on garbage patents don’t serve a net social good–but neither do the proposed solutions.The real answer lies in the reform of the public sector, which is dependent on changing the understanding of “public service”. Kennedy’s presidential orders must be rescinded, public-sector unions must be disallowed, and consequences for incompetence/failure and enhanced training and reward for competence must be implemented, to enable patent quality to improve, such that if someone receives a demand letter citing a patent, they can be fairly certain that the patent is actually valid.Finally, of course the quality of the patent jurisprudence must be improved, which means a specialist court that is not overburdened with MSPB issues, which would also be totally obviated with a re-conceptualization of public service and a fundamental restructuring of the public sector. In order to function anywhere near well, the PTO needs competent judges to provide them with reliable, meaningful guidance. It is telling that you need a technical degree to be a patent attorney, but not to be a patent judge. Absurd.

    1. “This is an understandable effect, and IMO has its fundamental basis”No. You do not burn down the kitchen in order to make a slice of toast.

    2. “Unfortunately, the “solutions” proposed address the symptoms, but not the problem”Yes. or what is dust-kicked and over-hyped to be a ‘problem.’

    3. It’s important in all of this to remember what is already required in an actual complaint. Demand letters are private communications between two private parties, and should be, and are, subject to the same constraints as are all other such communications.

      1. Demand letters are private communications between two private parties, and should be, and are, subject to the same constraints as are all other such communications.That’s a discussion we’re having right now. Given that every patent is a law that effectively prohibits every non-licensed member of the public from engaging in the acts described in the claim, perhaps these communications should be treated differently than “all other such communications”.

        1. Consider the two consumer warranties that often accompany a retail purchase: merchantability, and fitness for intended purpose. If I were sued in my individual capacity on a patent infringement theory, I would surely cross-claim against the seller for having sold me a product that was not fit for its intended purpose, which was the lawful execution of whatever “normal and expected” use to which it was put. There are many, many dimensions to this issue, most of which seem to be casually overlooked. This is but one such example.

          1. Consider the two consumer warranties that often accompany a retail purchaseYou mean the warranties that, among other information, indicate who is ultimately responsible for defects in the product? So the public can be quickly informed, e.g., if they need to be concerned abou their safety?

            1. No, I mean the actual legal consumer warranties, not some figment of your argumentative imagination. Sometimes I am amazed that you are actually an attorney.

    4. It is telling that you need a technical degree to be a patent attorney, but not to be a patent judge. Absurd.The “technical degree” requirement for patent attorneys is absurd, given that much of the worst patenting (and the patenting that seems to be beloved by trolls) is no more “technical” than receiving, storing and transmitting information “using a computer”. When the “information” in question is information about, e.g., “available real estate” or “ranking of Miley Cyrus SNL skits”, what’s the point of requiring the prosecutor of the patent to have a “technical” education?Also, just a friendly reminder that a certain Giles Rich had a bachelor’s degree in “science” of some kind before he polluted the legal system with his shallow patent-fluffing nonsense. “Technical degrees” are less essential to patent law than intelligence and careful reasoning.its fundamental basis in the issuance of invalid and subject-matter-ineligible patents by the USPTOThat’s definitely part of it. But to a certain extent, the USPTO is just “following orders” handed down to it from the judiciary. You’ve seen what happens when the PTO tries to put the breaks on the ridiculousness. It wasn’t until relatively recently that the judiciary realized that a horrible mess had been created (see note above re Giles Rich) and that mess is going to take a while to clean up. In the meantime, we address the “symptoms.”

      1. “But to a certain extent, the USPTO is just “following orders” handed down to it from the judiciary. “Exactly.

      2. “Technical degrees” are less essential to patent law than intelligence and careful reasoning.But, you have to admit, much more common.

      3. It’s not an either-or proposition, as you seem to suggest–one can have both a technical degree and intelligence. Also, while the presence of a technical degree does not necessarily decrease patent and patent law quality, the absence of one most certainly does, except in the simplest of cases, and in issues that are truly constitutional in nature, which issues can go by writ to the SC in any event. As to your last paragraph, if you had read my entire post before replying thereto, you would realize that your comment is merely duplicative.

        1. It’s not an either-or proposition, as you seem to suggest–one can have both a technical degree and intelligence.I don’t see where I suggested that. In any event, it’s not something I believe.while the presence of a technical degree does not necessarily decrease patent and patent law quality, the absence of one most certainly does, except in the simplest of casesThese “simplest of cases” (i.e., cases requiring no technical degree to understand the issues) take up an amazing amount of administrative and judicial bandwidth. Or haven’t you noticed? Note that I’m not saying “no technical knowledge” is required (although that is sometimes true) to understand the claim. But certainly no “advanced” technical degree beyond a decent high school or (in some cases) middle school education is needed. When I was a baby, programming your own computer was pretty much unheard of among my parent’s crowd. That changed dramatically by the time I was 10. That was a long time ago. But the news has apparently not filtered into the patent world yet, where the generic computer is still being treated as if it were invented yesterday. How else to explain the genuflecting before “inventors” of methods of using computers to (try to believe it) facilitate the delivery of information! Including phone numbers! Available real estate! Virtual friendship status! Rankings! It’s all so complicated and super magical. As to your last paragraph, if you had read my entire post before replying thereto, you would realize that your comment is merely duplicative.I did read your entire post before replying. It seemed to me that you had forgotten or diminished an important point that you had merely touched upon. I wished to amplify the point. Hence my comment.

          1. Again, a technical education will not impede the successful resolution of a non-technical case, but lack of one will almost certainly impede the successful resolution of a technical one. You, like I, are older…do you know what counts as a high school/middle school education right now? These kids can’t even name the Great Lakes, let alone program a IIC. Now, as then, only a very small minority of kids have any self-gained technical knowledge or capability. What burns me is when I have to concede that a client of mine has incurred liability based on a patent that would be currently ruled valid, enforceable and subject-matter eligible, but which I feel never would be, had the system being operating properly. Finally, “software patent” disputes IMO require little to no technical training, and only a modicum of intelligence and cognitive rigor to properly characterize, analyze, and resolve–and even THAT is beyond current reach, meaning that it is not only technical competence that is lacking, but also intelligence and cognitive rigor.

    5. “These proposals evidence a decision by parts of society that, in their opinion, the economics have shifted such that the social bargain made with individuals is now improvident for society. This is an understandable effect, and IMO has its fundamental basis in the issuance of invalid and subject-matter-ineligible patents by the USPTO.”Mhmmm. But if you try to tell business method/software people they’re ruining it for the people in the useful arts they cry wah wah wah all the way home.

    6. “I feel for patentees, but the sentiment is understandable. It is ultimately governmental incompetence that has corroded the framework within which the bargain plays itself out in practice.”Well I mean, come on, the CAFC tries pretty hard. The congress puts them between a rock and a hard statute.

        1. Well of course that’s what they’re there to do, but seeing as to how much they mess up, blatantly, I give them the benefit of the doubt that they’re at least trying to be expert about it since they’re blatantly not actually being expert about it.

          1. Trying to be an expert, and merely just believing that you are one and acting according to that belief, are decidedly different things–but of course, “trying” is by itself insufficient.

    7. “The real answer lies in the reform of the public sector, which is dependent on changing the understanding of “public service”. Kennedy’s presidential orders must be rescinded, public-sector unions must be disallowed, and consequences for incompetence/failure and enhanced training and reward for competence must be implemented, to enable patent quality to improve, such that if someone receives a demand letter citing a patent, they can be fairly certain that the patent is actually valid.”lulz, um, ok, whatevz you think bro. The only people that caused this are the CAFC leading us down a path where the pto felt obligated to issue the patents you noted.

        1. If you’d like me to take responsibility for the travesty on behalf of the previous administrations (and somewhat the current administration) I will be happy to do so as well. It was up to the PTO to challenge these things until there was no more fight left in them. They decided not to. Their bad. The same cannot be said for me personally or I’d take responsibility as well, personally.

          1. I don’t understand this–you are either in violation of PTO policy and law, or lying to yourself. And from an outside perspective, there is no “you” and “they”–you ARE they. This happens all the time not only in the public sector, but in the private sector as well. Show us the memos you wrote to the appropriate office within the PTO outlining your positions and suggesting particular courses of action.

            1. “I don’t understand this–you are either in violation of PTO policy and law, or lying to yourself.”Not thaaaaaaaaat! But seriously, which “policy” and “law”? I’m blogging under a pseudonym, as per policy (a policy that was in fact made probably to deal specifically with my blogging). What lawl do you think I’m breaching on? ” And from an outside perspective, there is no “you” and “they”–you ARE they. “True, but from my perspective, and from the standpoint of objective reality, I’m not. “Show us the memos you wrote to the appropriate office within the PTO outlining your positions and suggesting particular courses of action.”I can’t just send memos to whomever I please and have them obliged to read it over in detail or even better, expect and receive a response to the memo on the merits. I can talk to people in person sure, and I have, but you don’t care about that. But just sending random memos isn’t how stuff goes down. I suppose I could have sent solicitor Chen a memo, or David K, or even Rea, but they know very well what many of their employees would have them do, they don’t do it. Many of them have read some of my own writings on here. You know why they don’t do it? Because they don’t want to (they think they know better), or else they lack the leadership necessary, or else they’re too ignorant (depending on the topic), or else they don’t want to rock the boat, and couple any of the above with: they have power. I know you might not understand what having power means in depth, but it means something.

            2. 6, you and I might be friends in the private world.You understand that ACTUALLY “taking responsibility” means incurring the effects of a response. One cannot simultaneously continue to be a part of an organization, the policies of which one disagrees with, and legitimately claim to be “taking responsibility”. What effects have you incurred? Further than that, how was it that it was you yourself who occasioned those effects?Like many, you want to have it both ways, but I won’t let you have it. I will not allow you the dichotomy of a “private” life and a “personal” life. PTO staff constantly want to be considered and treated as “professionals”, but they don’t understand that the cost of such a status is the erasure of any such boundary. You as a professional embody the values, spirit, and policies of the professional organization to which you belong, in your case the PTO.The only way you could “personally” take responsibility would be to be publicly outspoken and critical of those aspects of the PTO with which you disagree, in your own name, so that it is you who incur the effects of your actions.You know as well as I do that you can generate a memo and send it to whomever you wish in the PTO, whenever you wish, but that’s only part of the equation–the other part is working outside the organization, serving the organization’s guiding principles rather than the organization itself…at potential expense to yourself.That’s why I said you were lying to yourself when you suggested that you were willing to take any kind of personal responsibility for any PTO “travesty”, as you put it.If you had been blogging under your actual name, or made any sort of public representations under your actual name, you know as well as I that you would be in violation of policy, and possibly law, depending on what you said and how, where, and when you said it. I don’t know whether you in fact do this or not, I assume you don’t–but since I don’t know for a fact, I included it as an option.The more likely situation is that you are lying to yourself. You like to believe that you are somehow “taking responsibility” because that makes you feel like you are somehow validating yourself morally—but that is NOT an assessment that you yourself can make, it has to be made by somebody external and unbiased. Unfortunately, the world is full of such self-delusional personal echo chambers, I am certainly not immune to them myself. What I expect of others is the same as I expect of myself–in this case, I would expect to be told by somebody “objective” how my actions appear to them. I do for you as I would expect you to do for me.”You” “taking responsibility” means that it is “you” who would incur the effects of a response, and you would would occasion that response.”You” “bearing responsibility” means that it would be “you” who would incur the effects of a response, and somebody else who would occasion that response.Precisely what effects do you claim to have experienced, how can you prove it, and how are they bettering the patent system?

            3. IBP sorry man I typed up a lengthy response then my computer randomly crashed right as I was about to publish and I don’t feel like retyping it. Suffice to say, the “effects” I’ve felt are minimal at this point. I deal with matters in the cases before me. I deal harshly with matters of nonsense that have arisen in patent law in the cases before me, so much so that usually they simply evaporate and are never heard from again in that case. If you don’t want a man on the inside to help your cause, then so be it, but I’m more wily than you are in that respect. Eventually I will gain power around here and on that day, I will be able to take more responsibility for these things that have occurred and direct future action to correct them, as well as wield influence over the others in power around me. I’m not quitting my job to spite my face (cut off nose to spite face). If you want to pay for law school and then lobby the current president to install me as undersec I’ll be grateful, and will take all responsibility. Again, as to the memos, they have a procedure specifically to ignore such memos. They can simply declare that the memo did not come through “the proper channels” and dismiss it out of hand if they don’t want to read it. They’re busy people, and have more to do than simply sit and read and respond to my email about how their policy is all wrong. When I am more powerful, trust me, earfulls will be given. Finally, I’d like to point out that, unlike my opponents, I’m not 100% certain that I’m “right”. It could be that I’m mistaken. Or it could be that the executive (or the executive’s assistants the undersecs) has simply chosen an illegal undertaking, under the cover of the CAFC’s faux “law”. If they simply did that out in the open then of course the congress/USSC would respond immediately. But if they did it somewhat clandestinely, acting all the while as if they’re simply following orders, they could have gotten away with it for decades (as they did). Those kinds of things do happen you know, and it isn’t my place as a lowly employee to question their actions, they’re the elected officials and their hand picked assistants. It is not up to me to directly oppose the will of the people as expressed through our elections. They. Have. The. Power. And until I get the power, there isn’t much I can do about it. As to your final question, the effects I experience are those I experience in my day to day examinations. They are rare that ones that would be of interest to you happen to me, since I am in the useful arts. We don’t get many cases involving hogwash nonsense. I’m afraid the proof of my experiencing these effects will have to be hidden from you for now, but do not overly concern yourself as they are de minimus anyway. How they better the patent system is that I personally do not issue patents to such hogwash under my authority, nor will I likely ever. That is simply because 35 U.S.C 151 now prevents it, and likely always will prevent it.

            4. Oh, and the next time you hear someone say “the preemption doctrine” or “preemption” in reference to a 101 rejection, know that there was but one voice in the wilderness spreading that gospel in 2006. You’re reading the words of that voice now.

            5. LOL – And if you are referring to your claptrap ‘abstraction’ theory, the one you promised to explain in light of a particular case (and failed to do so), the one that absolutely fails when one considers the ladders of abstraction concept which permeates nearly all patents (that is, any patent that has more than a strict picture claim – and even half of those), then that voice you hear should be recognized for its lack of touch with reality.

            6. Cryptic has nothing to do with it.It just wasn’t worth my time to go back and identify the thread in which you promised and then failed to meet that promise.

            7. In other words, it’s so cryptic you literally don’t even know w t f you’re talking about.I have to admit, I lulzed.

            8. In other words, it just wasn’t worth my time to go back and identify the thread in which you promised and then failed to meet that promise.Your choice of lulzing is very odd.

            9. It’s only odd because you don’t understand what I’m saying. I could care less about what thread. What case is what is important, but you don’t even know that.

    8. IBP : These proposals evidence a decision by parts of society that, in their opinion, the economics have shifted such that the social bargain made with individuals is now improvident for society. This is an understandable effect, and IMO has its fundamental basis in the issuance of invalid and subject-matter-ineligible patents by the USPTO.Again, the subject-matter and invalidity “basis” is just part of the larger “story” here. The behavior of the “individuals” who assert the patents is another part of the story and one that shouldn’t be ignored. Even if the patents owned by these individuals are valid, it’s perfectly reasonable for society to put checks on where/when/how patent-asserting “individuals” go about maximizing their pleasure. It’s done all the time, in other contexts. What’s especially fascinating about patent trolling, of course, is that it’s really just a microscopic few “individuals” whose pleasure is being curtailed here, and only in modest ways. But for some reason these “individuals” are convinced (or behave as if they are convinced) that they are responsible for all the shiny things that ever existed and all the shiny things that ever will be. They’ve said as much, right here on this blog.

      1. I did not overlook patent assertion behavior. However, patent rights are personalty that can be bought and sold. When one buys a patent, the government is a de facto third party guarantor regarding the quality of the property, and fitness for intended purpose, upon whose representations a bona fide purchaser for value should be able to reasonably rely. That alone legitimates efforts to monetize that property. Just as you are not expected to be an automotive engineer to use a purchased vehicle as a taxi, or as a commuter vehicle, in anything resembling a free market, you are not expected to be a technical expert in order to be able to buy and monetize patent rights. Checks on behavior? Again, why? Those are done normally to protect the weak from coercion, duress, undue influence, unconscionability–for which there are all legal and equitable remedies. The existing regime of legal complaint and defense applies to all areas of life, not just to patents. What is special about patents such that they should occasion special requirements regarding demand letters, versus any other similar communication like a cease-and-desist letter regarding any other activity? Nothing. Restrictions on the use and ownership of property are fine, as long as they achieve a valid social objective. The mere reduction of the number of demand letters is not such an objective. The objective, from a commercial perspective, is to increase the size of the pie as much as possible. If the same number of demand letters went out tomorrow as today, but tomorrow’s were all on valid, enforceable, subject-matter-eligible patents and had a prima facie explanation of the offending activity, nobody would have any ground for complaint, other than that the patent laws were themselves too liberally drafted and/or applied. Sorry about the block of text, the return function isn’t working for some reason, even I have gotten turned around as a result!

        1. If the same number of demand letters went out tomorrow as today, but tomorrow’s were all on valid, enforceable, subject-matter-eligible patents and had a prima facie explanation of the offending activity, nobody would have any ground for complaint, other than that the patent laws were themselves too liberally drafted and/or applied.You seem to be arguing with yourself now. “The patent laws” include laws about how/when/where patents can be asserted against others and how patents are distinguished (or not) from other property rights. There is a huge continuum of possible patent rights availble under our Constitution. That continuum includes “no patents for anybody.” Could we reach that endpoint someday? Maybe. It would require more bad behavior than we are seeing now, but it’s not the kind of bad behavior that can be hand-waved away. Not anymore. That ship has sailed. The existing regime of legal complaint and defense applies to all areas of life, not just to patents. What is special about patents such that they should occasion special requirements regarding demand letters, versus any other similar communication like a cease-and-desist letter regarding any other activity?Again, it’s not just that “patents” are special. What’s also “special” is (1) how are they obtained; (2) who owns them; (3) who benefits financially from that ownership; (4) who pays for those benefits and (5) how are those payments obtained. It may not be the case that patent rights are unique in these respects (even in combination). But they certainly differ from most “areas of life” where a person might be motivated to tell another person to “stop doing that.”

          1. The last paragraph best illustrates your apparent confusion, “MM”: only (1) is in any way special, and the most important dimension of (1) is “patent quality” (i.e. validity, enforceability, eligibility). Procedural laws pertaining to assertion relate to only the commencement and prosecution of legal actions in court, which is not the only avenue for assertion. The threat of legal action is not functionally equivalent to legal action itself, as is made especially obvious by standing issues. Before the initiation of legal action, there are plenty of other laws that govern the conduct of patent owners and asserters.

      2. I assume that you are correct that this would affect only a very few individual patent asserters, but that’s not important. What is important is justice, and how to best effect valuable social policy. So what if a bunch of lawyers buy some patents and assert them? If everything is above board, it is well within their rights. If the patents are junk, the sued entities can fight back, and if they turn out to be garbage, then the lawyers should have protected themselves against the sellers of the property for such a contingency, either contractually or through insurance. If the lawyer’s actions are unlawful or inequitable, there is recourse against them. Yes, all this takes money, but so does everything in life. I haven’t yet received any demand letters in my personal capacity, have you?

        1. So what if a bunch of lawyers buy some patents and assert them? If everything is above board, it is well within their rights.It’s “within their rights” until people are sufficiently sickened/disgusted by their behavior that those rights are taken away from them. Laws change. I haven’t yet received any demand letters in my personal capacity, have you?LOL! Please, please, please keep making this really persuasive argument for the status quo. It’s, uh, bulletproof.

          1. Again, would anybody be sickened and disgusted if the patents upon which they were suing were reliably valid, enforceable, and eligible? Change in law should be directed at the problem it aims to solve. As for the rest, you might want to consider not only what I have said about consumer protection provisions, but also the broader area of consumer protection law, which my comment was intended to suggest, a subtlety that seems to have escaped your notice.

  3. The over-the-top disclosure requirements are simply punitive. And no, Mr. Crouch, a few “tweaks” cannot patch a fundamentally flawed, heavy-handed, onerous law. Have you been reading the papers lately?Spasmodic gestures of putatively good intentions are not the same as good law. Constant battle reminding people of that.

    1. The over-the-top disclosure requirements are simply punitive.”Over the top”? Those disclosures are pretty trivial, especially compared to a typical discovery request.Grow up.

  4. Now please tell me why the same bull should not be applied to an ambulance chaser sending a demand letter to a small business.

        1. a career in which you can believeI’m not an ambulance chaser. I’ve definitely worked with patent trolls in the long-distant past, however. I’m very happy to have moved on to better things. Thanks for your concern.

          1. My concern is not what you did in the past – clearly – it is what you do now and the evidence that what you do now creates a nastiness that is eating your soul.

  5. “We’re not talking about systemic changes to the patent system,” said McCaskill. “We’re talking about bottom feeders… You’re a smart guy [speaking to Prof Mossof who recited a very tired script that appears to have been drafted by compiling comments from a popular "patent apologist" blog]. You’re not going to sit there and tell me you don’t think these letters are scams,” said McCaskill.Mossoff rolled out a favorite of patent troll defenders, stating that in the current environment Thomas Edison would have been considered a trollI seem to recall that Thomas Edison had a company that made a lot of stuff, as Mossoff is surely aware. That said, Edison’s abuses of the patent system were widely recognized in real time and with respect to certain industries (e.g., the movie industry) there’s little doubt that his litigating stunts did far more to impede the development of the industry than promote any progress.”I don’t think Edison would have been offended if he had been asked to file a licensing letter he would have been sending,” said McCaskill. “Isn’t a registry [of patent demand letters] a way we would get past anecdotal evidence?”Indeed. How odd that anyone would complain about providing this information. What are they trying to hide?

  6. I think I mentioned this before, but back in the day many a patent owner would visit the company I represented and demand money for a patent license, at times going so far as actually to identify a patent or two. But not once in all those visits did any of these folks provide a claim chart against any product, or to the extent they did, they hand-waved the critical limitations. Hopefully those days are long numbered. I wholly support legislation that would prevent holdup operators from practicing their tricks, from placing a humongous pile on one’s desk, to never showing how any product infringes. (To do so, actually commits one to some form of claim construction.)Demand letters should be specific as to patent, to product and should include a claim chart showing every element. I think the only reasonable remedy is to deny damages based on notice if the demand letter is not sufficient. Perhaps demand letters should include a statutory warning of the legal requirements for demand letters so that a letter without such a warning would not be notice even if it met the other requirements.

        1. You are jumping the gun or missing something here:”only reasonable remedy is to deny damages based on notice if the demand letter is not sufficient.”Remedy?

  7. Speaking of the MPHJ complaint, and just in case anyone has forgotten: this appears to be a Republican enterprise from top to bottom. Anyone surprised? I didn’t think so.But we can all certainly trust these extremely wealthy folks (e.g., J Mac Rust and his lackey Bryan Farney) to do the right thing: it’s all about helping the “little guys” monetize their Incremental Innovation.Oh yes, and it’s about promoting technology and science, too. Except for evolution, of course (because there’s “gaps”).

  8. Big Blue is really going to love this. Pile licensors might have a problem with stacking a pile of patents on a target’s desk 20 feet high and demanding payment to avoid just having to read them.

  9. Stephenville, Texas is among several communities that calls itself the “Cowboy Capital of the World”.LOLOLOLOL

  10. On a related note, MPHJ finally filed suit against someone concerning the scan-to-email patents yesterday. (If this deep link to the complaint doesn’t work, let me know – I wanted to avoid opening a can of worms by linking to the article, since the article is biased and the complaint itself is more of interest here.)http://cdn.arstechnica.net/wp-…

      1. Is there a reason you feel compelled to put quotes around the word ‘biased?’DO you really doubt that that source is NOT biased?Seriously?

            1. Do you really doubt that that source is NOT biased?It appears to be biased against bottom-feeding attorneys who exploit the patent system. I’m not sure why that is surprising or why it would bother anyone. Oh wait — these guys are friends of yours, maybe?

            2. Again with the meaningless deprecation of attorneys…Get into a line of work that does not eat your soul, Malcolm.

            3. meaningless deprecation of attorneys…Nothing “meaningless” about the “deprecation” in my comment. Also, it’s not directed to “attorneys”, generally, but to a specific “class” of them. Learn to read.

      2. “Legal reform to stop “patent trolls” like MPHJ is the tech topic of the day in Congress recently. Earlier this month, US Senators from both parties tore intoMPHJ at a hearing about patent demand letters. Senator Claire McCaskill (D-MO) called those who send demand letters “bottom feeders.”"We consider [MPHJ] similar to garden-variety extortion,” said Republican Attorney General of Nebraska Jim Bruning. He described how MPHJ sent one letter to an Alzheimer’s patient in a nursing home.In its short life, MPHJ has become a poster child for patent abuse. While politicians are divided about exactly what reforms will make the patent system better, the letter-writing campaigns brought by MPHJ are something that there’s general agreement on—no one likes it.”Lulz. link to arstechnica.com

        1. “Julie Samuels of the Electronic Frontier Foundation, a longtime fighter for patent reform, spoke next. She emphasized transparency, saying that the Federal Trade Commission could keep a registry of patent threat letters that get sent. Essentially, the government could create something like the Trolling Effects threat-letter site that EFF recently set up; but with real legal teeth. “These trolls conduct the vast majority of their business under the veil of secrecy,” she said.Edison wouldn’t have mindedThe only witness who spoke against the idea of registering demand letters was Adam Mossoff, a law professor who also works for the Innovation Alliance, a group of large patent holders who has warnedCongress not to buy into the patent troll “fairy tale.”There’s no proof of “existing harm to consumer welfare” in demand letters that requires the FTC to step in, said Mossoff. “The problem is we don’t have any statistical evidence.” He dismissed oft-quoted studies about the costs of patent trolls as “non-random and non-generalizable studies” based on “proprietary secret data.” The evidence was anecdotal.”We’re not talking about systemic changes to the patent system,” said McCaskill. “We’re talking about bottom feeders… You’re a smart guy. You’re not going to sit there and tell me you don’t think these letters are scams,” said McCaskill.”It’s an excellent question, as to what degree patent owners are deceptively asserting demand letters or invalid patents,” said Mossoff. A registry would raise costs. “The problem is we don’t have any statistical evidence.”"See, they don’t have the necessary evidence. And someone is proposing putting together a system so that its easy to gather that evidence.

    1. Hilarious complaint. Why do the courts even entertain this garbage? “Upon information and belief he’s totally using on our softwarz!!!!!”Court: K, ineligible, invalid, next.

      1. I found this pretty hilarious as well, since it really amounts to, “Other companies of that size use our invention, so if you give us discovery, we’ll probably find out that they use our invention as well.”But I lack the legal training in terms of infringement suits to know whether this is par for the course when you think somebody is infringing your invention in a non-publicly-visible way (e.g., possibly infringing a manufacturing process, but you’d have to get somebody on the inside in order to know for sure). I was curious as to what other folks around here thought about this.

        1. Yeah that too, but I wasn’t going to get into all that.Generally, from what I understand, you just can’t get discovery and the suit goes away. But then, I’m sure there are little tricks to it.

            1. That’s just your subject opinion, the folks that do such testing objectively for a living disagree.

            2. Hey, I can only go by the results in front of me – I am not privy to any LSAT efforts that you have not shared (and last you shared, you were still QQ’ing on that)

    1. Yes, if implemented this would likely result in many patentees simply forgoing sending demand letters. Many license agreements are confidential, and what exactly are “pricing commitments associated with the asserted patent”?

  11. Wow. Bizarre: Lets set thing up so that: if a lot of people (i.e. more than 20) infringe your patent, then if you don’t jump through a bunch of unjust hoops while you are desperately trying to stem the tide of thieves, you loose your patent.That seems fair.

    1. a bunch of unjust hoopsWhat’s “unjust” about following some procedures prior to capitalizing on your Incremental Innovation at the expense of everyone else who didn’t know you existed prior to your demand letter?

      1. For starters, it is not a part of the quid pro quo.Secondly, by law, patents are personal property and you (still) have not shown a valid legal reason for wanting more.

        1. For starters, it is not a part of the quid pro quo.Nor is a requirement that drivers have licenses. So what?you (still) have not shown a valid legal reason for wanting more.Beyond parody.

            1. Funny that Leopold is not moved to comment on either the trespassing or driver’s license legal errors…Oh that’s right, it is not the person he wants to tell to ‘just shut up.’

            2. Check again on the requirement that drivers have licenses.I did. There’s nothing in any of the discussions regarding “quid pro quo” about driver’s licenses. But as LB and I have both pointed out to you, your belief about what is not in the “quid pro quo” is irrelevant to the discussion.

            3. “as LB and I have both pointed out to you”Leopold’s attempt has been soundly refuted.You have made no such attempt.A little (just a little) intellectual honesty from you please.

            4. Of course – as you miss most of all the substantive comments with your focus on your ‘policy’ positions.

        2. “For starters, it is not a part of the quid pro quo.”Of all the arguments that you frequently employ, anon, this one is probably my favorite. “Your arguments in favor of a change to the law are invalid, because the change you propose is not part of the current law.” Keep up the good work!

          1. Nice (mis)representation Leopold.I am not saying that the law cannot change – I am merely saying that justifying the change in law needs to be articulated in light of what the law has established.If you want more – and this is clearly more – then you have to establish the reason for wanting more. Keeping in mind the state of law (the Quid Pro Quo) is very much like the award winning journalism that 6′s mancrush Dudas shared on PatentDocs awhile back. Understanding the founding fathers intent to make patents as freely alienable as any other personal property – without the constraints attempting to be foisted now, is critical to understanding BOTH the law as it is and the changes being sought. If you want to limit the impacts of unintended consequences, this type of legal thinking is required. Your cheerleading of Malcolm remains evident (what, no pointing out that his recent characterization of Professor Mossof is egregiously poor?) with who you continue to basically tell to ‘just shut up.’ You seem to have a problem (again) with my pointing out such critical aspects of law, and (again) are taking a smarmy red-cape approach (and again will likely run away when I point these things out to you).I am (still) waiting for the ladders of abstraction sources from you.In other words, “your favorite” and smarmy “keep up the good work” is pure B$.Try to keep up with what I am actually saying and use a little intellectual honesty in doing so.

            1. What were the words? beyond parody?It is most telling that you seek to ignore foundational legal thinking on the issue (since such thinking shows your ‘policy’ to be bankrupt).

            2. Leopold is wrong. And clearly, I have shown why, as I have provided the information to the foundational legal thinking – quite the opposite of what Malcolm is doing.You are trying to play that Malcolm-Accuse-Others game 6.It does not work for him. Why do you think it will work for you?

            3. “provide the information to the foundational legal thinking”I have provide (d) the information to the foundational legal thinking. I just wanted to repeat that. Because you’re obviously not hearing yourself.

            4. (sigh)see the comment about your mancrush Dudas and the award-winning journalism that he disclosed on the PatentDocs thread, 6.You know, the stuff that I have already told you about. The stuff, that the little circle cannot seem to address.

            5. We address it in the same manner as we address the “foundational thinking” on the laws against sodomy. Different thinking for a different time. At some point the law changes. Especially when it is abused. Get over it.

            6. I don’t know how many reading this blog are actual inventors, individual inventors, not those working for the oligopolies, but those actually inventing. But, just to get your attention, all this new reguation being bantered about in congress only inhibits invention on all levels. First to file will slow down the induvidual inventor who has more limited resources but it is a fairer system. Everything else that is being planned is part of big business lobbying for an even larger advantage. The largest corporations file the most patent infringment lawsuits, IBM, Microsoft, Apple, Oracle, Google, GE etc… They want even more monopoly in a space they can’t posibbly control, the inventive mind. Actions file by NPE’s are a fraction of the total, a fraction that gets all the attention.As for dubious patents, this is total bunk as well. The USPTO has three, 3, levels of review and an many cases it takes years, 5+, to get through the system. If you are not legally trained, getting a patent issued is a lifetime achievement. And let me ask, if an inventor has a duly issued patent, which is property, and someone is using the property, the inventor should take any action for payment of the use of the property. That action may entail being part of a business, like all the companies mentioned above, be the only business like an NPE (patent troll coined by those at Intel) or an individual inventor or small company. In all cases mentioned the inventing party has right its property and revenu dervived from it.This goes all the way back to Jefferson vs Franklin.

          2. “Your arguments in favor of a change to the law are invalid, because the change you propose is not part of the current law.”You left out the best part. Getting the change accepted as being already part of the current law is “legislating from the bench”. Which is bad, except when it isn’t.

      2. “the submission of demand information regarding the demands to the USPTO that will then be publicly available. (i.e., once a patentee sends out 20 demand letters, then it must begin complying with certain reporting requirements).”I think its unjust to require me to make my private business public. Isn’t the NSA knowing enough? Why do I have to make my business available to every wacko on the planet?

        1. Why do I have to make my business available to every wacko on the planet?Because your business is starting to look an awful lot like suing every wacko on the planet.

          1. Trust me, there are way more than 20 wackos on the planet. There might even be more than 20 that post comments on this board.The ones it looks like I’m suing are aware that it looks like I am suing them without me so informing the PTO. You have not justified the need for the submission of demand information.

            1. Because private information about personal property should belong to everyone (at least that’s what Jane says).No wait, that cannot be correct.The invitation stands for all of those pushing this “transparency” to volunteer to submit a listing of all of their personal property to the government so that such information can be made openly available to everyone.

        2. Because you’ll be making it available to every normal person as well? You know, just so we can track the really “great” patents.

            1. The ‘who’ is immaterial – we’ve been over this before 6 – brush up on your personal property and alienability of property reading.

            2. It’s not that simple. Consider the following: I negotiate a deal where I get a blanket license to patents owned by company A, or company A agrees not to sue me or assist others in doing so. Sometime later I get a letter from company B asking me to license a patent that names some inventors from company A.The “who” can matter. The question is does it make more sense for me to bear the burden of uncovering who’s behind company B, or for everyone asserting a patent to identify all relevant financial interests. I don’t really think it is that big of a deal either way. The more problematic proposed requirement is “identifying of any licensing term or pricing commitments associated with the asserted patent.” This could effectively eliminate demand letters relating to patents subject to confidential license agreements, or patents where the patentee supplies components covered by the patent and they don’t want their pricing information available to the world.

            3. If it is a patent number in the same family, a quick call to your licensor would resolve the matter. If it is not, then your licensing facts are immaterial.It is that simple.

            4. “This could effectively eliminate demand letters relating to patents subject to confidential license agreements, or patents where the patentee supplies components covered by the patent and they don’t want their pricing information available to the world.”That’s kind of the whole point, or at least a large part thereof. So that the “market” for licenses is made transparent. You have to remember, the whole basis for this whole licensing agreement is not some fundamental right that the the inventor has to license his patent or whatever you may think it is along those lines. The basis is simply a government entitlement program. Transparency in government extends to government entitlement programs.

            5. The proposed language isn’t just about licenses. Many companies have different pricing structures for different customers.

            6. ” Many companies have different pricing structures for different customers.”I know, and so does the congress. They’d (apparently) like this to be out in the open. And frankly so would I. Seems totally reasonable to have pricing structures out in the open just like we have pricing structures for just about everything out in the open these days.

            7. 6,I suggest you stop broadcasting your ignorance and this ‘entitlement’ BS. Integrate the notion of Quid Pro Quo and realize that the ‘entitlement’ aspect is resolved separate from the ownership of the property aspect.

            8. That’s like saying the “entitlement” aspect of food stamps is “resolved separate” from the usage of them at 711 to buy a pizza. And then implying that such a statement has any meaning even if true. /boggle

            9. “The ‘who’ is immaterial”That’s for congress to decide brosephus. It’s not an immutable lawl of nature.

            10. Apparently, it is well beyond your understanding of the law.Go catch up on a basic property concept like alienability of property that permeates the legal system.

            11. You can still alienate your property all you like after this bill anon. What, specifically, about alienability do you think is hurt by the current legislation?

            12. As you wish:Change it had to comeWe knew it all alongWe were liberated from the fall that’s allBut the world looks just the sameAnd history ain’t changed’Cause the banners, they all flown in the last warI’ll tip my hat to the new constitutionTake a bow for the new revolutionSmile and grin at the change all around mePick up my guitar and playJust like yesterdayAnd I’ll get on my knees and prayWe don’t get fooled againNo, no! I’ll move myself and my family asideIf we happen to be left half aliveI’ll get all my papers and smile at the skyFor I know that the hypnotized never lieDo ya?There’s nothing in the streetLooks any different to meAnd the slogans are replaced, by-the-byeAnd the parting on the leftIs now the parting on the rightAnd the beards have all grown longer overnightI’ll tip my hat to the new constitutionTake a bow for the new revolutionSmile and grin at the change all around mePick up my guitar and playJust like yesterdayThen I’ll get on my knees and prayWe don’t get fooled againDon’t get fooled againNo, no!YAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAH!Meet the new bossSame as the old boss

      3. “capitalizing on your Incremental Innovation at the expense of everyone else who didn’t know you existed “Maybe (just maybe) they should keep abreast of patents in their field. After all, the purpose of publishing the patents and making the ‘what’ public knowledge is best served when people actually do ‘know [what] existed prior to [any] demand letter.’

        1. Kinda ironic that an Inventor is charged with knowing all the art when filing his/her patent application, but a potential infringer is encouraged to fly blind.

  12. “If you like your issued patent you can keep it.*”*unless you want to monetize it, enforce it, or otherwise communicate with others that you may or may not own said patent.

  13. This article begins with the premise: “In many ways, a patent infringement demand letter is akin to a debt collection action. And, we know that debt collection is highly regulated under both Federal and State consumer protection laws.”The analogy is inapposite. The high level of regulation by debt collection actions is premised on the need to protect individuals (especially the poor) from overreaching and abuse by debt collectors. Statutes such as the Fair Debt Collection Practices Act are expressly premised on the inequality of bargaining position and need to protect an informed consumer from the evil debt collection agencies.The patent infringement demand letters that are the target of this proposed legislation simply have no resemblance to debt collection actions. The only types of letters that these would address are the demand letters bulk mailed to a large number of corporations, usually for using some kind of common equipment such as scanners. And the letters usually seek small nuisance amounts. The corporations that receive these letters are amply capable of dealing with them. The majority of the companies that receive these letters know that if they simply ignore then, the company will likely never be sued. Macro-trolls like Project Paperless (the ones mentioned by President Obama) do not make money by engaging in costly litigation, but from carpet bombing demand letters and hoping to get royalties from the low-hanging fruit. The notion that the companies targeted by these letters need this kind of “consumer protection” statute is laughable.

    1. Statutes such as the Fair Debt Collection Practices Act are expressly premised on the inequality of bargaining position and need to protect an informed consumer from the evil debt collection agencies.Inequality of bargaining position? Such as the recipient being a small business which bought a $200 product off-the-shelf at their local big box retailer and used it according to the instructions, versus the senders being a team of experienced lawyers working for their own profit?

        1. Aren’t you forgetting that infringement is a strict liability tort?Aren’t you forgetting that if you have a point you should really work hard at expressing it in a statement rather than trolling this blog with your inane innuendo?You’re welcome.

        2. Anon loves to assert that neglecting that doing so just leads people to think that’s merely another thing that needs changing.

        3. Okay, after educating myself on the subject, I’m convinced that anon’s statement is a red herring. The question of culpability doesn’t even arise when the letter sender hasn’t established infringement in the first place, and most of these demand letters fall woefully short of providing enough information for even the recipient to decide internally whether an infringement may have occurred.

    2. The only types of letters that these would address are the demand letters bulk mailed to a large number of corporations, usually for using some kind of common equipment such as scanners. And the letters usually seek small nuisance amounts. The corporations that receive these letters are amply capable of dealing with them.Shorter version: “People should just get used to these threatening demand letters. It’s just part of doing business in the land of the free.”The notion that the companies targeted by these letters need this kind of “consumer protection” statute is laughable.Go ahead and laugh all you want. This is just the beginning, really. Until these money-grubbing, greedy, grifting parasite lawyers are effectively shut out of the patent system (aka The Incremental Innovation Casino for the Already Wealthy) the “laughable” statutes are going to keep being proposed. And some of them will be enacted. If you think that these statutes are somehow harmful to you or will make you have a sad, then perhaps you should propose some alternative solutions that are attractive to everyone. I humbly suggest that one of those solutions is not “go to court and fight.” That works for some, but not for all.

      1. “If you think that these statutes are somehow harmful to you or will make you have a sad, then perhaps you should propose some alternative solutions that are attractive to everyone”The “alternative” is do nothing. Its not incumbent upon anyone to do something that is “attractive to everyone.” Such “solutions” don’t exist.These proposals rise or fall on their merits, not on the alternatives proposed by the PAE-lobby to placate infringers.

        1. “Its not incumbent upon anyone to do something that is “attractive to everyone.”"I’m pretty sure that’s what lawmaker’s jobs are… it’s kind of in the job description. At least attractive to all their constituency.

  14. The demand letter definition is notably broader than in the Senate bill.”Identifying of any licensing term or pricing commitments associated with the asserted patent.”What if those terms were the result of a confidential agreement or settlement? What if that confidential agreement was entered into prior to the passage of this proposed law? Would the patentee be effectively prohibited from seeking further licensees because they would be unable to comply with the law?”A description of the principle business of the party alleging infringement”What is the point of this? That a PAE will somehow be ashamed of admitting how they make their money? That letter recipients will take letters from some kinds of businesses more seriously than others? Is there any empirical basis for the 20 letter threshold? Or did that just sound like a good number to whoever wrote the law?

    1. “A description of the principle business of the party alleging infringement”What is the point of this? That a PAE will somehow be ashamed of admitting how they make their money?The point is to provide the information. Is it very difficult, onerous or unfair to provide a US citizen with that information when you demand that they act according to your personal wishes? That letter recipients will take letters from some kinds of businesses more seriously than others?And what if they did, James? Is that a crime? Is that “nefarious” (trying not to laugh here)? Imagine you’re standing in a field, unarmed. Some guy tells you you’re trespassing. You don’t think that you are trespassing. In one scenario, the guy is three feet tall and wearing a diaper and claims to be an expert in “spam filters.” In the other scenario, the guy is six feet tall and has a shotgun. I’m guessing you’ll take the latter guy “more seriously”. And there’s nothing wrong with that.But again, it’s really just about providing information to people who have every right to know the identify of the party who is telling them what they can and can not do in their own home or in their own office. You know who I mean when I say “people”, right? I mean you and me and the 99.999% of ordinary people who are increasingly likely to receive one of these “cease and desist” letters unless we shut these greedy s—bag attorneys down. In other words: the public, the same public who allows this broken patent system to continue operating because they believe there is something about it that is worth saving, in spite of the obnoxious grifters who can’t help but abuse it.What’s fascinating is that anybody would object to providing this information. Then again, cockroaches don’t like the light very much.

      1. You seem to have misunderstood my rhetorical questions. I was suggesting that, putting myself in the shoes of a letter recipient, I didn’t see the point of that particular piece of information (the principle business bit). I get the rationale behind the rest of it, even if I don’t think it would be very useful.* It just seemed like such an odd thing to require be included in a demand letter.* To the extent either of these bills would be effective it would mostly be by increasing the cost of sending demand letters by forcing the sender to engage in regulatory busywork, not to actually assist the recipients to any great extent. But instituting a direct “demand letter tax” probably wouldn’t pass First Amendment muster, so here we are.

        1. It just seemed like such an odd thing to require be included in a demand letter.Okay. it doesn’t seem odd or useless to me at all, for the reasons that I gave.

      2. “Imagine you’re standing in a field, unarmed. Some guy tells you you’re trespassing.”You see, this is the type of example and legal analysis I love from Self-FAIL Malcolm.Trespassing. It does not matter (legally) if a dude in diapers or a man-mountain with a shotgun tell you that you are trespassing.D’Oh! (said in the best Homer Simpson tones)

        1. It does not matter (legally) if a dude in diapers or a man-mountain with a shotgun tell you that you are trespassing.It appears to matter in Florida, at least. But as I’ve explained to you before, when the discussion concerns policy (as this one does), your bizarre rants about the “legal” relevance of a fact are best ignored. So enjoy being ignored.

          1. LOL – No wait,LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL ahhh.because the discussion concerns ‘policy’ legal relevance is best ignored?Really?Policy (your policy?) trumps law – on a legal blog?Oh so very Carroll of you Malcolm.And so completely wrong. At least in this reality.

      3. “cockroaches don’t like the light very much.”LOL – tell me again why you have chosen the extra secrecy options with the blogging community here at Patently-O?You are doing that Accuse-others thing again…

        1. tell me again why you have chosen the extra secrecy optionsThere’s a bit of a difference between commenting on a blog, on one hand, and hiding behind multiple shell corporations while your attorneys shake down people for thousands or millions or hundreds of millions of dollars. But you knew that already.

    2. “Would the patentee be effectively prohibited from seeking further licensees because they would be unable to comply with the law?”Meh, could just break the confidentiality agreement. But it’s a good point to bring up to the senate, they can fix er up for ya. “What is the point of this?”Good record keeping. They want to know what the trolls are really up to so they have good data with which to smack them over the head in the future. You guys really don’t see where this is going do you? It’s like you’re completely blind to the machinations of your own government. First they gather data (that’s this bill) then they strike.

  15. “Failure to abide by the demand letter requirements would result in abandonment of the patent; other financial penalties; and also action by the FTC.”sounds way too harsh

    1. Can you imagine 20 thousand patents going abandoned if the big licensors don’t comply with the statute? Gotta love it.

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