Why you should support the SHIELD act

Shocker! All sides of the debate agree the SHIELD Act offers part of the reform needed for U.S. patent system

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What is the SHIELD Act?
Fortunately, there's a move in Congress to address at least this small corner of the dysfunctional patent system. The SHIELD Act, HR 845, -- so short and clear you'll have no trouble reading it -- finally does something about PAEs. Submitted by Reps. Peter DeFazio (D-Ore.) and Jason Chaffetz (R-Utah), it's a bipartisan initiative that actually stands a chance of succeeding. The Act takes three significant steps:

  1. First, and most important, it amends patent law so that victims of patent trolls can recover their costs if they prevail in court. That measure alone might be enough to break the cycle.
  2. Patent trolls are often insubstantial, mercurial legal creations and might vaporize on defeat. The real king trolls frequently create shell companies to perform the shakedowns, and a victim might not recover costs even if they win. Thus, the Act allows judges to require the troll to post a bond covering the full cost of the case. Even if the shell companies play a shell game, there will be cash to compensate the victim.
  3. The Act limits the discovery that can be performed. In other words, the troll can only ask for evidence from the victim directly related to the allegation and not go on a general fishing trip through their emails and records looking for information to identify other victims. By restricting discovery, the Act further reduces the impact on the victim in an area where costs could not be claimed.

This may not be all good news. Trolls may decide to target larger numbers of smaller victims to build their war chest, rather than starting with midsized companies as they do now. But the measures proposed will certainly impact patent troll business models.

Who supports the SHIELD Act?
The SHIELD Act is bipartisan politically, and it's supported all over the technology industry. VC Fred Wilson backs it, for example. Longtime advocates of patent reform Red Hat are supporters. Mark Bohannon, Red Hat's vice president of corporate affairs and global public policy, told me: "NPEs have used the large number of vague and overbroad software patents to engage in litigation abuse. Legislation, like the SHIELD Act, recently introduced with bipartisan support, can be an important step to reducing the power of NPEs, as we continue to work to narrow software patentability and fix our broken patent litigation system."

Google directed me to a blog post by its senior patent counsel Suzanne Michel, who says: "Congress should also make it easier for companies to recover money spent defending against frivolous troll suits. Legislation, such as the bipartisan SHIELD Act re-introduced this week in the House, can do much to reduce troll litigation."

The winners of the current patent system support it too. For example, Microsoft pointed me at a posting by general counsel Horacio Gutierrez, who says, "the SHIELD Act is an interesting effort to address a real problem and represents a thoughtful contribution to the debate about how to curb litigation abuse. We welcome its introduction, and look forward to continuing to participate in further discussion as the legislative process proceeds."

What should you do?
While only a small part of the solution, the SHIELD Act seems to be a great idea with wide support. But in today's political arena, even great ideas can go nowhere if the political will is lacking. That's why the Electronic Frontier Foundation is making it exceptionally easy for us all to tell our representatives we'd like to see the SHIELD Act become law. With just your ZIP code, the EFF's action page will speed your encouragement to your representatives in under a minute. Why not take the time to go there now and send patent trolls the unmistakable message their unwanted game is over?

This article, "Why you should support the SHIELD act," was originally published at InfoWorld.com. Read more of the Open Sources blog and follow the latest developments in open source at InfoWorld.com. For the latest business technology news, follow InfoWorld.com on Twitter.

Copyright © 2013 IDG Communications, Inc.

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