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去年1月,我的公司Fark.com被控告,Yahoo、MSN、Reddit、AOL、TechCrunch等網站也被控告,被一家叫Gooseberry Natural Resources的公司提告。Gooseberry擁有的專利是透過電子郵件創建和發佈新聞。(笑聲)這樣的事竟可申請專利似乎有點奇怪,但這種情形確實屢見不鮮。
將某些早已存在的事物當做新技術來申請專利-就像網路電話或電視節目的影片列表,或手機使用的收音機等等,這些專利所產生的問題是,其中的機制晦暗不明,導致專利制度功能失調,結果是,這些訴訟大多以庭外和解收場。因為庭外和解是非公開協議,沒人知道協議條件是什麼,因此專利蟑螂可以宣稱他們打贏了這場官司。
在Gooseberry Natural Resources這個案例中,我認為以電子郵件發佈新聞這項專利有某些致命的缺陷,也就是說,在主流媒體領域,新聞發布只有一個定義,那就是以新聞稿-即P.R.的形式發佈。我的公司Fark顯然只是處理新聞訊息,因此我們並沒有違反這項專利,所以就此結案,對嗎?不。
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以下為系統擷取之英文原文
Last January, my company, Fark.com, was sued along with Yahoo, MSN, Reddit, AOL, TechCrunch and others by a company called Gooseberry Natural Resources. Gooseberry owned a patent for the creation and distribution of news releases via email. (Laughter)Now it may seem kind of strange that such a thing can actually be patented, but it does happen all the time.
Take something already being done and patent it for an emerging technology -- like phone calls on the internet or video listings for TV shows or radio but for cellphones, and so on. The problem with these patents is that the mechanisms are obscure and the patent system is dysfunctional, and as a result, most of these lawsuits end in settlements. And because these settlements are under a non-disclosure agreement, no one knows what the terms were. And as a result, the patent troll can claim that they won the case.
In the case of Gooseberry Natural Resources, this patent on emailing news releases had sort of a fatal flaw as it pertained to myself, and that was that in the mainstream media world there is only one definition for news release, and it turns out that is press release --as in P.R. Now my company, Fark, deals with news, ostensibly, and as a result we were not in violation of this patent. So case closed, right? Wrong.
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專利法的主要問題之一是,當你被專利蟑螂控告時,被告必需自行舉證並未侵犯那項專利,這意味著你必須證明你並未侵犯他們提起訴訟的那項專利,這可能需要花一段時間。你必須知道,跟專利蟑螂打官司平均需花費兩百萬美元,耗時18個月-當你勝訴時,這是你被專利蟑螂控告時最好的結果。
我曾希望與其中一些規模較大的被告公司聯手來打這場官司,但他們一個接一個地進行庭外和解,即使-這點很重要-這些公司沒有任何一家侵犯了這項專利-沒有任何一家,但他們開始進行庭外和解。他們進行庭外和解的原因是,庭外和解比打這場官司更省錢-顯然在某些案子中,花費比兩百萬美元更少。如果真的輸掉官司會更糟,這也對公司的經營造成嚴重混亂,尤其是像我這家八人小公司。
訴訟開始6個月後,終於進入舉證階段。在舉證階段,我們要求專利蟑螂提供顯示Fark侵犯專利的網頁截圖。現在,也許因為這樣的網頁截圖並不存在,Gooseberry突然表示希望庭外和解,他們的律師說,「啊,好的,我們公司正在進行重組。」更別提事實上這個位於洛杉磯北部商業區某處的地址根本沒有員工。「我們想盡快解決這個案子,所以你是否介意提出你認為最適當的和解金額?」我的回應是,「一毛不出如何?!」(掌聲)我們並沒有對這個結果寄予厚望。(笑聲)但他們和解了,沒有討價還價。
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One of the major problems with patent law is that, in the case that when you are sued by a patent troll, the burden of proof that you did not infringe on the patent is actually on the defendant, which means you have to prove that you do not infringe on the patent they're suing you on. And this can take quite a while. You need to know that the average patent troll defense costs two million dollars and takes 18 months when you win. That is your best case outcome when you get sued by a patent troll.
Now I had hoped to team up with some of these larger companies in order to defend against this lawsuit, but one-by-one they settled out of the case, even though -- and this is important -- none of these companies infringed on this patent -- not a one of them. And they started settling out. The reason they settled out is because it's cheaper to settle than to fight the lawsuit -- clearly, two million dollars cheaper in some cases, and much worse if you actually lose. It would also constitute a massive distraction for management of a company, especially a small eight-man shop like my company.
Six months into the lawsuit, we finally reached the discovery phase. And in discovery phase, we asked the patent troll to please provide screenshots of Fark where the infringement of their patent was actually occurring. Now perhaps it's because no such screenshots actually existed, but suddenly Gooseberry wanted to settle. Their attorney:"Ah, yes. My company's having a reorganization on our end." Never mind the fact that the address led to a strip mall somewhere in Northern L.A. with no employees. "And we'd like to go ahead and close this out. So would you mind giving us your best and final offer?" My response: "How about nothing?!" (Applause) We didn't have high hopes for that outcome.(Laughter) But they settled. No counter offer.
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現在,如我之前提過的,我可以在此談論這個案件的原因之一是,這個案件並沒有保密協議。現在,這是怎麼回事?好,在庭外和解過程中,當我們收到和解書後,我把它劃掉了。我的律師說,「不,對方不可能同意。」但他們簽署了。為什麼?你可以打電話問他們,他們的電話也不在保密條款中。
那麼,我從這個案件中學到什麼?嗯,三件事。首先,如果可以的話,不要針對專利抗辯,而是針對侵權部份。專利很難推翻,侵權卻很容易反駁。其次,一開始就讓對方清楚,你根本沒錢,或你寧願花錢請律師跟專利蟑螂打官司,也不願給他們錢。這麼做可行的原因是,專利蟑螂獲得的利益是在和解金裡抽成,如果他們瞭解無法獲得任何和解金,就會變得對這場官司不那麼感興趣。
最後,你得明確讓他們知道,你會盡可能讓他們感到這個訴訟過程相當惱人、痛苦和麻煩。這本來是專利蟑螂用在對手身上的招數,事實上,因為他們的獲益視訴訟結果而定,所以可以其人之道還治其人之身,別忘了這一點。
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Now, as mentioned before, one of the reasons I can talk to you about this is because there's no non-disclosure agreement on this case. Now how did that happen? Well during the settlement process, when we received our copy, I struck it. My attorney said, "Nah, no chance of that working." It came back signed. Now why? You can call them.They're not under NDA either.
Now what did I learn from this case? Well, three things. First of all, if you can, don't fight the patent, fight the infringement. Patents are very difficult to overturn. Infringement is a lot easier to disprove. Secondly, make it clear from the beginning that either you have no money at all or that you would rather spend money with your attorney fighting the troll than actually giving them the money. Now the reason this works is because patent trolls are paid a percentage of what they're able to recover in settlements. If it becomes clear to them that they cannot recover any money, they become less interested in pursuing the case.
Finally, make sure that you can tell them that you will make this process as annoying and as painful and as difficult as possible for them. Now this is a tactic that patent trolls are supposed to use on people to get their way. It turns out, because they're paid on contingency, it works really, really well in reverse. Don't forget that.
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那麼,這一切意味著什麼?好,總之,將它歸結為一句話:別與恐怖分子協商。(掌聲)專利蟑螂每年對美國經濟造成的損害,比史上任何國內外恐怖組織還多。他們用這些錢來做什麼?他們用它來進行更多的專利蟑螂訴訟。
現在,演講進行到此,我該提出一些針對專利制度的解決方案。其中的問題在於,有兩個相當大的產業集團對專利制度有不同的想法。醫療保健產業想為發明者提供更強而有力的保護,高科技產業想為製造者提供更強而有力的保護。這些目標並非完全對立,但卻不同調,因此專利蟑螂多少可以在其中的夾縫間生存。
不幸的是,我不夠聰明,無法提出解決專利蟑螂問題的方法。然而,我確實有個想法,還蠻不錯的。我想,「我應該為這個想法申請專利。」(笑聲)瞧,透過行動裝置來侵犯專利-它的定義是一台可移動的電腦。我的解決方法是:給我這個專利,我會將專利蟑螂一掃而空。
謝謝。
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So what does all this mean? Well to sum up, it boils down to one thing: Don't negotiate with terrorists. (Applause) Patent trolls have done more damage to the United States economy than any domestic or foreign terrorist organization in history every year. And what do they do with that money? They plow it right back into filing more troll lawsuits.
Now this is the point in the Talk where I'm supposed to come up with some kind of a solution for the patent system. And the problem with that is that there are two very large industry groups that have different outcomes in mind for the patent system. The health care industry would like stronger protections for inventors. The hi-tech industry would like stronger protections for producers. And these goals aren't necessarily diametrically opposed, but they are at odds. And as a result, patent trolls can kind of live in the space in between.
So unfortunately I'm not smart enough to have a solution for the patent troll problem.However, I did have this idea, and it was kind of good. And I thought, "I should patent this."(Laughter) Behold, patent infringement via mobile device -- defined as a computer which is not stationary. My solution: award me this patent and I will troll them out of existence.
Thank you.