Here is a strategy that a community of developers could implement to try to kill a troll. It has risk, but the benefits are huge.
Generally, trolls know exactly what they are doing when they set the license price for small application developers very low. They probably chose this to give the application developers a huge incentive NOT to go to court. Most trolls business plan is predicated on the idea that a certain percentage of companies will pay to avoid legal costs because the troll also wants to avoid legal costs. (note: A troll, such as Lodsys, that wants a percentage of revenue does not guarantee that agreeing to the license will be the cheapest resolution to the problem.)
Below is a strategy that I would love to see implemented in response to a troll, though it carries with it a certain amount of risk. But, it basically lets the application developer community slap the Troll down in a huge first round. It would also make an amazing statement to other Trolls that might attack application developers.
The Troll Blasting Strategy:
1. Prepare a declaratory judgment action to be filed based on non-infringement. For Lodsys '078, the details found here and the details in Apple's letter to Lodsys lay out the non-infringement argument against Lodsys's '078 Patent. Thus, the cost of preparing a detailed argument hopefully could be $10,000 or under.
2. Find developers across the nation, hopefully in 100+ different jurisdictions, willing to file the declaratory judgment action.
3. Each developer files the declaratory judgment action ON THE SAME DAY. That way, the troll would be required, at least initially, to respond to them all at the same time. Each developer may have to retain a local counsel to do this, but hopefully the costs for that are low (<$2,000 each? though we would need more specific quotes on this).
Goals of the Troll Blasting Strategy are 1) cause the troll to spend so much money defending against the claims that they will never recoup more than that from the app developer who filed the action; 2) bankrupt the troll; 3) show other trolls that the application developers will not be pushed around without a costly fight; 4) win the fight in a final battle.
Even if the developers are found not to have standing to sue (possibly due to no direct threats, though we can argue otherwise) or their actions are consolidated, the Troll will be required to at least respond in each jurisdiction. The goals of the Troll Blasting Strategy could be accomplished.
This strategy does start litigation, so it definitely has risk. Though, in the case of Lodsys '078 the likelihood of winning the declaratory judgment action is definitely in the application developers favor.
Requirement for this strategy really to work is 1) funding to write the declaratory judgment action (ideally, I would love to see one of the application developers who has made a ton of money step up to fund this part); 2) a commitment from many other developers to file the action on the same day.
As with any strategy, businesses need to consult their own patent attorney to receive feedback and determine if this minimizes their risk. That risk needs to include what the app developer will do about the next troll that comes along if Lodsys is successful in getting some good money.
These are just my thoughts for discussion, I would love to here feedback.
(FYI - my definition of a troll is any party that intentionally misconstrues the claims of their patent to assert it against another. They don't have to be NPEs, all that is required is an intentional misconstruing of the claims. Lodsys has clearly done this.)
Definition - "Patent Troll"
"PATENT TROLL" - Any party that intentionally misconstrues the claims of their patent to assert it against another. A patent troll does not have to be a non-practicing entity (NPE) or in any particular industry, all that is required is an intentional misconstruing of the claims in an attempt to extort money from another.
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