For smaller companies and orgs, or individual software developers, I wonder if it now makes sense to pay into some sort of common "patent troll insurance pool" (I'm sure someone's suggested this already). If any member of the pool gets sued, the pool puts out patent invalidation bounties on the troll's entire portfolio and (for an additional premium) covers part of the legal defense in case there's a trial.
a) it can be structured like a credit union or something and owned by its members (reduces incentives for it to grow beyond what's necessary)
b) make it retroactive i.e. you don't have to already be a member to get protection. you can choose to buy in after you've been sent a letter
c) a protection pool of sufficient size and resources might do enough to invalidate so many patents that trolling simply becomes unprofitable. EDIT: Especially if suing a pool member poses an existential threat to the troll in the form of invalidating their entire portfolio. As Cloudflare have shown, you only need one party to stand up for themselves and contest the patents. In that case, premiums go down long-term
This is obviously different from patent pooling and cross-licensing agreements companies use to defend themselves against other practicing entities.
> So why would anyone buy in before they get a letter,
Plenty of people have already gotten a letter; if they all pooled their resources they'd have a decent defense fund already.
> , or maintain their membership once they're no longer in court?
This one, I agree, is harder. Best I can propose is a minimum 5 year membership once you've been sued. Or tweak it some other way so that membership is slightly cheaper, or about as much as, settling.
Yeah it's a fine line between "insurance" and "protection".
The key distinguishing factor here is the protection pool actively seeks to invalidate bad patents. It could also lobby for patent reform. By doing so, it makes patent trolling less profitable and thereby, reduces the need for itself in the future. It's like a health insurance company funding research into perfect health and immortality (but more achievable).
What you're (more or less) describing is a combination of defensive patent infringement insurance and a patent pool. Both are things that exist, but patent infringement insurance is crazy expensive, and patent pools are hard for small companies to enter into.
> patent pools are hard for small companies to enter into.
Per my understanding, patent pools also don't offer any protection against non-practicing entities, correct? Since patent trolls don't use any patents themselves, a defendant in a patent suit can't assert any of the pool's patents against the troll in a countersuit.
a) it can be structured like a credit union or something and owned by its members (reduces incentives for it to grow beyond what's necessary)
b) make it retroactive i.e. you don't have to already be a member to get protection. you can choose to buy in after you've been sent a letter
c) a protection pool of sufficient size and resources might do enough to invalidate so many patents that trolling simply becomes unprofitable. EDIT: Especially if suing a pool member poses an existential threat to the troll in the form of invalidating their entire portfolio. As Cloudflare have shown, you only need one party to stand up for themselves and contest the patents. In that case, premiums go down long-term
This is obviously different from patent pooling and cross-licensing agreements companies use to defend themselves against other practicing entities.