Brooklyn Law Clinic students scare away patent trolls

The school's clinic is run like a law office and offers free counsel based both on need and on the interestingness of the cases for law students.

When they were approached by a small NYC startup that was being sued by a patent troll called 911 Notify, LLC, who had a ridiculous patent on "notifications" (basically, if someone calls 911, look up their emergency contact info and call that number) that wanted $250,000 to settle, they went to work.

By putting the troll on notice that there was an unlimited amount of free legal hours from third-year law students available to the defendant -- students who got more out of the experience if they got to work on a full-blown trial that could invalidate the dumb-ass patent -- they terrified the troll into dropping the suit and running away.

I think there are other ways of recreating this dynamic (though this is a great way, because it gets law students really valuable experience that they would otherwise have to get after graduation while interning, provides a community service, and makes the world a better place), without relying on an infinite supply of third-year law students, like The Magnificent Seven Business Model.

Free legal support drastically changes a patent troll’s calculus. They win by offering to settle cases for less than the cost of the legal defense. It’s much cheaper for defendants to pay a troll $50,000 to settle a lawsuit than to pay lawyers $200,000 to win it. However, when a law school clinic is involved, the cost of legal defense drops to zero, and defendants have no incentive to pay trolls anything at all. With a free legal and a winning defense, who wouldn’t fight all the way to trial?

The clinic was also lucky. The Supreme Court issued 6 patent helpful patent decisions while our case was pending. In particular, Alice v. CLS Bank invalidated patents on taking mundane tasks and doing them on a computer. The patent in our case was basically for sending notification calls from a computer. Probably invalid under Alice. A second Supreme Court case, Octane v. Icon encouraged judges to impose “fee shifting” penalties in appropriate patent cases. Patent trolls are taking note. Ours seemed to get flustered whenever I mentioned these new cases.

Law Students Fend Off a Patent Troll. [Eric Adler/Medium]

(via Metafilter)

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  1. This isn't really news; but anyone who likes the theory that the legal system is a good mechanism for upholding the law should be Very, Very, Very, concerned if simply tweaking the cost of legal representation radically alters the equilibrium behavior of the system.

    The "Yeah, we have maybe a 10% chance of actually winning this case; but you can't afford how much we'll win if we do..." school of speculative lawsuit is bad enough; but at least it is derived from the law(odds of winning and formula for damages calculation). The law is often magnificently draconian(see also Capitol Records, Inc. v. Thomas-Rasset...) so this still leads to bad outcomes; but they are outcomes defined by the law.

    The "Our case is utter bullshit; but it'll cost you a second mortgage or worse to fight it" is pure extortion without any particular legal grounding aside from the need for some sort of claim just plausible enough to not be thrown out on sight. It's a 'legal' process utterly divorced from the law, however benevolent or draconian, and purely extortionate.

  2. It seems that it's in the students' own best interests not to let the troll (or anyone they're going up against) know about the resources being thrown at their case. Well, not just in a Sun Tzu Art of War way, but also if they're looking for experience.

    If they're looking to end it quickly, process as many cases as possible, or the case isn't interesting enough, then pull the "lotsa law students" card. The case may get interesting if their opponent persists in pursuing it.

  3. It is inadequate that trolls be scared away. They must be tracked back to their lair and hunted and destroyed utterly, their offspring slain, and the land salted for a mile all around.

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