as I recall, using a threat to criminally prosecute as part of civil suit negotiations by lawyers is a crime in and of itself.
Or at the very least it should lead to sanctions by the civil court judge.
IWAL
one of my friends from kindergarten -> high school was Gore Vidal's last personal assistant. I hang out with him about twice a year (including this coming weekend), last year we had a long conversation about Gore... He gave me a manuscript he was writing about his time with Gore (and other things). I devoured it in 7 hours. Three days later, Gore died.
RICO is about holding leaders responsible for the crimes of their organizations. That, in itself, makes sense (further, I recall courts being resistant to using RICO against "upstanding" but essentially criminal operations,sadly). As far as I can tell, the act doesn't extend the definitions of crimes or call for any specific enforcement whereas the Patriot does this in spades, as far as I can tell.
I can't vouch for the accuracy of this report (was a quick google search; PATRIOT was passed at a point in time where not everything was quite so webbified), but I recall the lawmakers who crafted PATRIOT used RICO as a starting point ("precedence") for the most controversial provisions. There are surely more authoritative resources out there.
"Some of the more controversial provisions of The Patriot Act were largely inspired by the RICO act, which restricted some elements of due process for individuals involved in organized crime, racketeering, and drug trafficking. The Patriot Act essentially extended the restrictions to those involved in terrorism."
>> When you're targeted by a patent troll, the rational thing to do is to capitulate. Defending a patent infringement lawsuit can cost millions of dollars, and trolls carefully calibrate their settlement demands so that it will always cost more to fight than to settle.
This is the crux of the problem. We need to make things such that this is no longer true. In practice, given the cost of legal fees in the real world, I see no other way than banning software and process patents in their entirety - and retroactively.
There may be those who argue the line between those kinds of patents and others is somewhat gray. If that argument holds, I'd be in favoring of scrapping the entire patent process rather than conceding.
It kind of reminds me of a bluffing strategy I've used in poker. If you can guess your opponent's hand, you can bet just enough to make the pot odds just under their odds of winning, so that the rational thing for them to do (assuming they don't know you're bluffing) is to fold, while exposing yourself to minimal risk. A converse strategy works for getting people to call when you know that you have them beat. (There's probably a name for these like "three eyed street corner" or "popping the collar" or something, but I kind of lost patience with reading up on poker strategy).
> We need to make things such that this is no longer true
Surely the obvious solution is costs awards - i.e. loser pays winner's legal fees. Instantly destroys the tactic of threatening suit for meritless claims, as if the defendant can see the suit is meritless, they can call the claimant's bluff and know they won't be out-of-pocket. That's what England (and, I believe, every common law country apart from the US) does.
(The downside is if your legal system is bad enough that some stupid claims aren't meritless, i.e. stand a reasonable chance of winning, as with US software patents, then if that happens the loser has to pay twice. But that just means you need to do this in conjunction with reforming the patent system, not instead of).
Declaring patent trolls to be terrorists and sending them to Gitmo or someplace like that to be tortured until they confess to whatever we want them to confess to would also work, I suppose. It surprises me the reporter didn't mention that option.
I think the best plan would be to coordinate a concerted defense plan under the EFF. A significant number of donors could create a fund big enough to meet the entire patent troll industry head on. They could compile a list of trolls and their targets. They'd then provide pro-bono council to defendants, utilizing the same effective tactics that get the trolls to back off on every single one of them. Eventually it just wouldn't pay to troll, they'd get so flooded with counter-suits and demands for further information that the entire industry would shut down.
Is there any website that lists these patent trolls and their sister companies? I think this would be a great way to create awareness and potentially make people think twice before dealing with such companies.
As much as I hate patent trolls I wouldn't hold your breath on this. RICO charges were hard to pin/stick on the mafia, who openly committed organized crime, because the general nature of the justice department is to not simply indict a whole group of people for being around a criminal.
A mafia organization is a certain kind of acquaintances that formed a "social group" and did not necessarily work for a single employer (or small set of employers), thus the paper trail did not exist. The FBI had to do a lot of careful investigation to document "business" relationships that were ongoing.
A law firm pursuing patent claims has to leave a paper trail. The more convoluted, the more likely jurors will be inclined to see fraud.
A valid point but I think the ability to determine criminality becomes harder because the business wraps itself in current legalities, being run by lawyers themselves.
Agreed. One has to prove that individual arguable mistakes are a purposeful pattern of fraud.
As the system exists, if I were to make, say, an incorrect bill or make some other factually incorrect assertion that you owe me money, it is assumed to not be a crime or even a civil offense. You would have to prove it.
The advantage of RICO is that it makes the pattern of behavior and therefore all my legal records a matter of possible interest to the judge. There is still a lot of work for you to do, and I can try to hide behind client-attorney privilege.
26 comments
[ 53.7 ms ] story [ 1625 ms ] threadI tried to come up with a snarky comment, but this quote is sufficiently funny on it's own.
Tumi info is interesting, though. Hope the RICO thing sticks and some legal precedent is created that will make trolling impractical.
http://en.wikipedia.org/wiki/Racketeer_Influenced_and_Corrup... http://en.wikipedia.org/wiki/Patriot_Act
http://www.johnisaza.com/patriot_act_compliance.html
"Some of the more controversial provisions of The Patriot Act were largely inspired by the RICO act, which restricted some elements of due process for individuals involved in organized crime, racketeering, and drug trafficking. The Patriot Act essentially extended the restrictions to those involved in terrorism."
This is the crux of the problem. We need to make things such that this is no longer true. In practice, given the cost of legal fees in the real world, I see no other way than banning software and process patents in their entirety - and retroactively.
There may be those who argue the line between those kinds of patents and others is somewhat gray. If that argument holds, I'd be in favoring of scrapping the entire patent process rather than conceding.
Surely the obvious solution is costs awards - i.e. loser pays winner's legal fees. Instantly destroys the tactic of threatening suit for meritless claims, as if the defendant can see the suit is meritless, they can call the claimant's bluff and know they won't be out-of-pocket. That's what England (and, I believe, every common law country apart from the US) does.
(The downside is if your legal system is bad enough that some stupid claims aren't meritless, i.e. stand a reasonable chance of winning, as with US software patents, then if that happens the loser has to pay twice. But that just means you need to do this in conjunction with reforming the patent system, not instead of).
Is there any website that lists these patent trolls and their sister companies? I think this would be a great way to create awareness and potentially make people think twice before dealing with such companies.
A law firm pursuing patent claims has to leave a paper trail. The more convoluted, the more likely jurors will be inclined to see fraud.
As the system exists, if I were to make, say, an incorrect bill or make some other factually incorrect assertion that you owe me money, it is assumed to not be a crime or even a civil offense. You would have to prove it.
The advantage of RICO is that it makes the pattern of behavior and therefore all my legal records a matter of possible interest to the judge. There is still a lot of work for you to do, and I can try to hide behind client-attorney privilege.