Newegg recently defended itself against a patent troll that sued them over a shopping cart patent. As a result, the patent was invalidated and Soverain Software will lose $2.5M from this and the $18M they won in 2011 from Victoria’s Secret and Avon. Unfortunately, they’ll still keep the tens of millions of dollars they “earned” in earlier years. Since virtually every ecommerce site has a shopping cart feature you’d think that this patent would have been invalidated sooner.

The reason it takes this long is that most companies settle when faced with a lawsuit and only a few fight back. Over time, companies that have a reputation for fighting back are sued less frequently and companies that do settle just pass the cost onto the consumer. It’s no surprise that these patents end up sticking around. Unfortunately, it’s a shitty situation for smaller businesses: they can’t afford a lawsuit and can’t afford to raise their prices.

What can we do to change these incentives around? Right now, a big advantage patent trolls have is that they make the first move and can choose who to sue and who to avoid. Why not bring the fight to them? A simple approach would be to find these these flawed patents and file for a reexamination with the USPTO. Ask Patents has already started collecting a database for prior art to challenge patent applications but this information can also be leveraged to challenge already granted patents. Another option would be to sue the patent troll directly, as Microsoft and Google have done, which has an added benefit of a jurisdiction other than East Texas. An extreme approach would be to create shell companies that intentionally violate these patents in order to challenge them. Imagine a hackathon whose sole purpose is to create sites and companies that violate these patents in order to troll the troll. Why not bring the fight to them?


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