Praise, Questions, and Doubts after Vermont’s Actions to Take on Trolls

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Reaction to Vermont’s passage of first-in-the-nation legislation to curtail bad-faith assertions of patent infringement and Vermont Attorney General Bill Sorrell’s lawsuit against a notorious patent troll have earned largely positive reactions, but questions and doubts remain as to prospects of the law surviving federal preemption challenges and the success of Sorrell’s suit.

Vermont Businesses are Certain Applauding It's Elected Officials

Vermont Businesses are Certainly Applauding It’s Elected Officials

Many commentators have been pleasantly surprised that at least some congressional body is taking the issue of abusive patent practices seriously.  For example, Adi Kamdar and Daniel Nazer at the Electronic Frontier Foundation write:

There is exciting news out of the Green Mountain State this week: folks in Vermont are so fed up with patent troll abuse that they are taking matters into their own hands. With trolls filing thousands of lawsuits every year and blanketing the country in threat letters, states are looking for ways to protect victims—especially small entities that lack the resources to defend against a patent suit.

Others note that the success of Vermont’s strategy will be closely followed to see how it plays out.  For example, Joe Mullin at ARS Technica notes that

It’s a groundbreaking legal strategy, to be sure. Whether it will be successful remains to be seen. Patent trolling is a well-established business that’s been around in its modern form for more than a decade and has been accepted as legitimate by federal courts.

And still others almost seem to fault Vermont for trying.  Eric Goldman opines at

even if [Vermont’s] law isn’t preempted by federal patent law, I don’t favor state-by-state development of intellectual property doctrines for numerous reasons: it would be troublesome if states adopt inconsistent or different legal standards for threats actions; it becomes exponentially more expensive for IP owners to enforce their rights when they have to research and comply with multitudinous state laws; and business activities routinely cross state borders (especially with respect to the Internet), making it hard to determine which state’s laws apply.

Mr. Goldman’s critique is accurate – we would be better off with a federal solution to a federal problem.  I’ve discussed the current piecemeal attempts circulating through congress currently and here is another that just popped up.  Unfortunately, congress doesn’t have the inclination or ability to enact a comprehensive scheme to combat this activity.  Thus, a comprehensive approach involving state, federal, and private activities is going to have to suffice, and kudos to Vermont for taking a step in the right direction.