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Law students battle trolls
August 12, 2014 6:03 PM   Subscribe

How a handful of Brooklyn Law students forced a patent troll to drop a meritless lawsuit.
posted by stp123 (27 comments total) 16 users marked this as a favorite

 
I have new heroes. Well played.
posted by kjs3 at 6:20 PM on August 12


Very interesting. I may explore this type of model at my university.
posted by Existential Dread at 6:40 PM on August 12 [2 favorites]


I know the author and he's rad and I'm really glad that this is getting all this coverage.

He also has a really terrific dog.
posted by entropone at 6:45 PM on August 12 [7 favorites]


This troll didn’t bother sending a demand letter, it just filed a lawsuit.

Sending a demand letter opens the door to the alleged infringer filing a declaratory judgment suit against the patentee. This means that the alleged infringer gets to pick the district the suit gets filed in and when.

Patentees generally want to avoid this, so "sue first, settle later" has become a more popular strategy in the wake of the Supreme Court case (MedImmune v. Genentech) that broadened the scope of declaratory judgment jurisdiction in patent cases.

It’s a win-win arrangement: students [take on six-figure debt for the chance to] cut their teeth on real litigation, startups get free legal defense, and patent trolls get nothing.

A crucial point far too often omitted from discussion of law clinics. If "Eric Adler, patent and tech lawyer at Adler Vermillion LLP and an advisor to the BLIP Clinic" really believes that "patent trolls hurt innovation", that students need real-world training, and startups need free legal defense, then maybe Adler Vermillion LLP should hire some summer associates and put them to work representing startups pro bono.
posted by jedicus at 6:45 PM on August 12 [15 favorites]


In Canada, CIPPIC, a legal clinic at the University of Ottawa, has been known to take on clients in technology law cases.
posted by maledictory at 7:55 PM on August 12


I am glad that someone is doing this, but like jedicus I don't care to see for-profit companies (startups or not) getting free legal services on the backs of law students' tuition. They are doing real work to advance the interests of a for-profit enterprise and deserve to be paid for their efforts. But this is the reverse of that, and that sucks.
posted by 1adam12 at 8:16 PM on August 12


From the article:

It’s a win-win arrangement: students cut their teeth on real litigation, startups get free legal defense, and patent trolls get nothing.

Companies getting good work for free is in no way a win. The return for the students is incommensurate with the return for the company. The company tangibly saves anywhere from 50k-250k immediately and benefits from a possible free-legal-work market in the future.

The students gain an experience that may or *may not* pay dividends in the form of a future job - a future job that may or *may not* pay them a decent living wage. They also possibly contribute to eventual legal wage deflation by giving away their labor for free.

There is something to be said for earning ones stripes and gaining experience...but these days there are entire markets popping up whose wages are 'experience' or 'exposure' with no guarantee of anything more tangible. In today's America 'experience' is no longer sufficient compensation for the work being done in that name.
posted by jnnla at 10:37 PM on August 12 [3 favorites]


Companies getting good work for free is in no way a win.

Currently the alternative appears to be letting the troll go on. Yes, it's not an simple straightforward win-win, but in this particular case, making live unprofitable for these trolls is a huge net profit for society as a whole. Don't forget to include that in your calculations.
posted by DreamerFi at 1:23 AM on August 13 [1 favorite]


jnnla, you're being way harsh. This is a win-win because everybody benefits, including the wider ecosystem of companies that could be sued by patent troll companies.

Lawyer wages are not depressed, because the defendant would not be able to afford the cost of defending the patent suit in court, and so would not be employing lawyers to carry out that defence in the first place. Patent trolls know exactly how much defending their patent will cost a company & will set the cost of settling at somewhere under that cost, knowing that a "rational" company will choose to settle rather than fight the case. (Some companies deliberately choose never to settle, like NewEgg, taking the 'porcupine' approach to dealing with the threat of patent lawsuits, but a small startup doesn't really have this option because they can't afford to defend one patent lawsuit, never mind a pile of them.)

The situation for law students with their expensive degrees and limited current employment market is a difficult one, and no-one is going to deny that, but none of the participants come out of this worse than they went in, which is pretty much the definition of a good thing, surely?
posted by pharm at 3:17 AM on August 13 [2 favorites]


I can see the problems of devaluation etc with the clinic giving legal services away, but in cases like this there aren't many other ways to solve the collective action problem that patent trolls rely on (as Adler points out). If CarShield had been paying the troll would just have bled them out.

And Adler Vermillion seems to be 3 lawyers; they might not have had the resources to take on a complex interstate case like this if they were being paid for it, let alone pro bono.

Really the problem is with a system that grants 20-year monopolies on trash like this then makes it crushingly expensive to defend infringement lawsuits. US Supreme Court decisions like Alice and Octane look like they'll help, but the system is profoundly broken.
posted by A Thousand Baited Hooks at 3:45 AM on August 13 [1 favorite]


yeah those poor lawyers also those poor startups. I don't know who I feel is the one in greater need of the money being "saved": people who will potentially start making big bucks, or other people who will potentially start making big bucks.

Snark aside, I do hope that the law students get some sort of tangible reward out of this.
posted by rebent at 5:32 AM on August 13


Companies getting good work for free is in no way a win. The return for the students is incommensurate with the return for the company.

This is flatly untrue. Getting actual, no-shit commercial litigation experience in law school is extremely rare and extremely valuable to a new lawyer intending to ply his trade at a law firm -- both in getting a job and doing well in the job. This is especially so for students coming out of a law school that isn't in the very top echelon.

This is not remotely an exploitation-of-interns situation. Law school clinics are rad.
posted by eugenen at 5:37 AM on August 13 [4 favorites]


Currently the alternative appears to be letting the troll go on. Yes, it's not an simple straightforward win-win, but in this particular case, making live unprofitable for these trolls is a huge net profit for society as a whole.

First, that depends on which economist you believe. Second, even if it's true, programs like this are a drop in the bucket compared to the total amount of patent litigation brought by patent assertion entities. Third, even if programs like this were able to respond to a meaningful fraction of cases brought by PAEs against small companies and non-profits, the result would be a societal benefit at the enormous expensive of a very small group of people (law students), many of whom will never see a net economic benefit from their student loan debt. That is an incredibly regressive system.

If you think patent trolls are a problem, support some brand of patent reform. Don't put it on the backs of heavily indebted law students to solve a problem that you think affects society as a whole.
posted by jedicus at 6:31 AM on August 13 [3 favorites]


Adam Carolla is currently battling a patent troll who tried to drop the case, but Carolla won't allow it.
posted by ChuckRamone at 6:33 AM on August 13 [1 favorite]


Law school clinics are rad.

There are a lot of hidden generalizations on the way from "Getting actual, no-shit commercial litigation experience in law school is extremely rare and extremely valuable to a new lawyer intending to ply his trade at a law firm" to "Law school clinics are rad."

First, most clinics don't involve commercial litigation experience. Most are public interest-oriented, which are jobs that are hard to get and usually low-paying.

Second, law clinics are not just supported by the students who participate in them. Their existence is dependent on the rest of the law school and all of the hundreds of students with six-figure debt that goes with it. So even in your best case scenario, a few Brooklyn Law School students benefit at the ruinous expense of hundreds of others. That is not rad.
posted by jedicus at 6:35 AM on August 13


And Adler Vermillion seems to be 3 lawyers; they might not have had the resources to take on a complex interstate case like this if they were being paid for it, let alone pro bono.

This was not a complex case. If it were it would not have been given to the clinic. It was specifically chosen because the defense had some good early-stage arguments (e.g. getting out of Delaware) and the plaintiff was likely to fold once some reasonable opposition was shown. The whole case took 6 months from start to finish. It was filed on January 21st and terminated on July 28th.

The interstate issue is pretty unimportant. Substantive patent law is the same everywhere in the country. Procedural issues like venue vary a little across the regional circuits, but that's one of the reasons you hire local counsel, which the defendants did in this case (Robert Goldberg of Biggs & Battaglia in Wilmington). Hiring local counsel in a case outside your usual jurisdiction is extremely common in patent cases. That's how it works in all of those Eastern District of Texas cases, for example.
posted by jedicus at 7:01 AM on August 13


In case anyone is interested, the patent at issue was 6,775,356. It was originally assigned to Boars Head Corporation (dba Public Safety Network), a company that bid on some 911 improvement contracts. A few years later it was assigned to 911 Notify, LLC, the company that filed the lawsuit. I suspect that Boars Head's original business plan didn't pan out, and so the investors wanted to recoup some of their losses by monetizing the company's only substantial asset: its intellectual property.

This is a common theme in "patent troll" lawsuits. Often the patents are purchased at bankruptcy, sold by a company that is dissolving a subsidiary or division, or are used by the company itself as it shifts from R&D to patent assertion. The social benefit of this practice is that it encourages front-end investment in companies that don't have many other assets.

Consider a software startup. If it folds early on it won't have a factory or a warehouse full of widgets that can be sold at bankruptcy. It has 2 or 3 year old computers, some office equipment, and that's about it. But if the startup patents its inventions, then those patents can be licensed to others who may have been more commercially successful (sometimes forcibly licensed via a lawsuit), thus allowing the original investors to recoup some of their losses and encouraging them to have invested in the first place. Sometimes they will even invest in the very companies that end up being the commercially successful ones.
posted by jedicus at 7:02 AM on August 13


Second, law clinics are not just supported by the students who participate in them. Their existence is dependent on the rest of the law school and all of the hundreds of students with six-figure debt that goes with it. So even in your best case scenario, a few Brooklyn Law School students benefit at the ruinous expense of hundreds of others. That is not rad.

I don't grok the logical leap to "at the ruinous expense of hundreds of others." It's not the fault of law school clinics that too many people are going to law school.
posted by eugenen at 7:29 AM on August 13


I don't grok the logical leap to "at the ruinous expense of hundreds of others." It's not the fault of law school clinics that too many people are going to law school.

It's not about "fault." It's about the way things are. Right now, the existence of law school clinics is predicated on the existence of a legal education system that is massively economically disadvantageous for a very large percentage of law students.

So if you want to say that "law school clinics are rad" (emphasis added), then you have to explain how their current funding model is also rad. Or at least how the amount of social benefit they provide (which, in the grand scheme of things, is very small) makes up for the social loss of the indebtedness caused by the current legal education system.

If you want to say that "law school clinics could be rad, given massive systemic reforms to the legal education system", that's different.

But even if law school were free, I disagree that clinics are actually a good thing. Clinics are just law school welfare, a way for schools to disguise the fact that their students can't get adequate experience elsewhere, whether at firms, non-profits, or government offices. If a school has to effectively employ its own students because they are unemployable elsewhere, that shouldn't be a selling point to prospective students, it should be a giant warning sign that the school isn't very good, has too many students, or both.

And if small businesses, non-profits, and individuals have to turn to free representation at a clinic because they can't afford to hire an attorney, then the solutions are law reform (for systemic issues) and expanding the availability of dedicated legal aid programs (for individual cases), not having law schools become part-time law firms primarily staffed by ultra-part-time, unlicensed, transient law clerks.
posted by jedicus at 8:05 AM on August 13


Finally, the claim that law school clinics can provide quality representation gives the lie to the whole notion of law school in the first place. If a bunch of second and third year law students, working part-time on a single case—which is probably the only case they've ever worked on—can do quality work under the supervision of one or two licensed attorneys, then that suggests that three years of legal education and passing the bar exam aren't really all that important, are they? Why don't we have whole firms made up of a few licensed attorneys while dozens of law clerks who took a few law courses as undergraduates do the bulk of the work?

Either law school clinics don't provide efficient, quality representation or the existing legal education and licensure system is largely unnecessary. But it cannot be the case, as law schools would have it, that clinics do good work and that three years of post-graduate law school education are necessary to be a competent attorney.
posted by jedicus at 8:12 AM on August 13


Okay -- in the context of law school education and the job market as it currently exists, law school clinics are rad. They are meant to address the very problem you describe -- the perceived failure of a traditional law school education to provide practical practice-oriented training. Sometimes they succeed, sometimes not.

I was a patent litigator at two prominent Silicon Valley law firms. I would have been thrilled beyond measure to work with a first-year associate who knew the first thing about what to do with a patent troll complaint in Delaware.

It is, of course, still possible to axe-grind about law school, higher education, capitalism, America, and the human condition.
posted by eugenen at 8:41 AM on August 13 [1 favorite]


Okay -- in the context of law school education and the job market as it currently exists, law school clinics are rad. They are meant to address the very problem you describe -- the perceived failure of a traditional law school education to provide practical practice-oriented training. Sometimes they succeed, sometimes not.

So they're "rad" because they're well-intentioned and sometimes they're even successful. How about instead we just make practical practice-oriented training an integral part of the law school curriculum. Oh, and cut a year off of law school, since it's obviously not necessary. And since now we're down to a mere 18 or so courses, we can just make it an undergraduate program, which gives students three summers worth of internship and summer associate programs instead of two. That's more practical training than law students get now, at lower total cost and lower opportunity cost, and nobody has to work for free.

I was a patent litigator at two prominent Silicon Valley law firms. I would have been thrilled beyond measure to work with a first-year associate who knew the first thing about what to do with a patent troll complaint in Delaware.

Of course you would! What employer doesn't want employees who got on-the-job training at someone else's expense, especially from a previous employer that isn't in competition with them for customers?

Where does it end? How about a mandatory 4th year of law school consisting solely of unpaid clinical work? Wouldn't that be great for law firms? And think of all the free legal work that society would get! And it would only cost law students another $50,000 or so, which if you think about the invaluable experience they'd be getting, they should be grateful for the chance to pay it.
posted by jedicus at 9:34 AM on August 13 [1 favorite]


I was a patent litigator at two prominent Silicon Valley law firms. I would have been thrilled beyond measure to work with a first-year associate who knew the first thing about what to do with a patent troll complaint in Delaware.

Let me just say that you and I both know that all the clinical experience in the world is completely useless to students from Brooklyn Law School applying to "prominent Silicon Valley law firms" if they aren't also in the top 10-25% of their class (coming from Brooklyn, realistically top 10% at least). The person in HR or the partner-with-better-things-to-do reviewing the giant pile of applications won't even look past the GPA or class rank line on their resume.

And indeed this is true of every law school in the country, bar a handful (like Harvard, Yale, and Stanford) from which the students will be able to get jobs whether they have clinical experience or not. Good grades are a necessary and often sufficient condition for a job. Clinical experience is neither necessary nor sufficient. It's a "nice to have", like moot court.

You have evidently been successful in your legal career. Frankly, I think you should take some time to think carefully and introspectively about how your experience biases your approach to these issues and how applicable your approach is to current law students and recent law graduates, especially those that the current system is not serving well. After all, we shouldn't be too concerned about the ones that the current system is serving well. They're doing well, by definition! And they will probably continue to do well under any likely future system.
posted by jedicus at 9:52 AM on August 13


If you think patent trolls are a problem, support some brand of patent reform.

I do. In the long run it's the only way to really get rid of the trolls. The doesn't mean I can't enjoy the occasional defeat in the short term, even if said defeat has many sides on it that are far from the best way to do it.
posted by DreamerFi at 10:12 AM on August 13


jedicus: "Frankly, I think you should take some time to think carefully and introspectively about how your experience biases your approach to these issues"

Sage advice, that. Might want to practice some of it yourself.
posted by desuetude at 10:21 AM on August 13


Sage advice, that. Might want to practice some of it yourself.

"Check your privilege" is usually something one says to those that have benefitted from the current system, not those who haven't. But in case you were wondering, I didn't participate in a law school clinic, and I don't regret my decision not to. I don't have a personal axe to grind regarding their existence.
posted by jedicus at 12:11 PM on August 13


Finally, the claim that law school clinics can provide quality representation gives the lie to the whole notion of law school in the first place. If a bunch of second and third year law students, working part-time on a single case—which is probably the only case they've ever worked on—can do quality work under the supervision of one or two licensed attorneys, then that suggests that three years of legal education and passing the bar exam aren't really all that important, are they?

I think you're underselling the importance of "a bunch of...working on a single case." When I was in a clinic (Criminal Defense), I had a total of five misdemeanor cases over the course of a year. When working at a public defender, I had forty a week. The reason I was able to provide adequate representation as a third year law student was because I had only one case at a time.
posted by Bulgaroktonos at 1:27 PM on August 13


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