Agentless Backup is Not a Myth

So what's to be done?

Cheng described how Newegg first took the settlement route rather than fighting – but no more. "We could see what was coming down the pike, and we decided to take the stand that we have taken," he said.

Congressman DeFazio wants to make it riskier for trolls to extort settlements sue for patent infringement – although he's not at all sure that the current "incredibly dysfunctional Congress," as he put it, will be receptive to the ideas that he and his small-but-growing coalition of troll-hunting legislators are putting forward.

DeFazio and his congressional cohort are developing a test that would be applied at the beginning of any patent litigation that would be used to determine if the plaintiff could pass a patent-troll smell test. If the test determined that the plaintiff was a troll – or, more delicately, a non-practicing entity, or NPE – DeFazio's bill would require that the plaintiff shall pay (and he twice emphasized the word "shall") the legal costs of the defendent if said defendent prevails in the legal action.

What's more, the NPE would be required to post a bond before litigation began. "These people are very good at morphing, creating shell companies," Defazio said. "They could easily declare bankruptcy but still litigate, drag it out, still try to extort money from you." A bond would prevent that sort of chicanery.

It's not just startups and small companies that have been attracted to DeFazio and his growing coalition of legislators. He has been approached by airlines that are being sued for their seat-selection charts, for example, and cities such as Portland in his home state, which is being sued for how they track vehicles in their transit systems.

According to DeFazio, it's time to engage in good ol' fashioned citizen pressure on legislators. He gave as an example his work on establishing a national standard for organic foods, which he said involved getting people to make phone calls, send postcards, speak up at town-hall meetings, and "bombard" their legislators with input on his organic-foods amendment to the US omnibus farm bill.

It worked. As he tells it, one legislator came up to him on the floor of the House and said, "DeFazio, I don't know what this goddamn organic stuff is, but if these people will stop bothering me, I'll vote for your amendment." As it turns out, his amendment was the only one that was opposed by the House leadership that year which passed and became law.

"I believe that we can get folks in every one of the 435 districts in Congress to approach their member of Congress and advocate for our bill or something like our bill," he said, "we'll get this done and solve the problem."

And so, dear US Reg reader, if you're alarmed at the damage patent trolling is doing to start-ups, innovation, or American business in general – or, for that matter, if you think DeFazio is way off-base – it's your move. ®

Bootnote

Not everyone is the CES audience was thoroughly sympathetic with the panel's majority opinion against patent trolling. One listener who identified himself as Andrew Bridges from the law firm of Fenwick & West took issue with the use of the pejorative term "trolls", and argued that focusing on "bad people" rather than the host of other problems in the patent and legal systems was an oversimplification.

DeFazio agreed with Bridges that the patent office is woefully underfunded and understaffed, has a 600,000-patent backlog, and that in March the America Invents Act may very well cause "a whole new flood" of patent applications. Realistically, though, Congress is in no mood to increase any government agency's budget, he said.

Newegg's Cheng was having none of Bridges' suggestion that the use of the word "trolls" was counterproductive. "If labeling them 'trolls' or calling them 'cancers' gets the job done," he said, "I'm all for it."

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