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Comment by rayiner | Hacker News Reader

> In actuality, it is a bit more complicated. Our dealings with this particular troll reach back to December 2010 when IP Navigation Group (IP Nav), as agent for a supposedly secret patent owner, now known as Parallel Iron, accused Rackspace of patent infringement. IP Nav told us that they could not divulge the details of their infringement claims – not even the patent numbers or the patent owner – unless we entered into a “forbearance agreement” – basically, an agreement that we would not sue them. IP Nav was worried that as soon as we found out what their patents and claims actually were, Rackspace would sue to invalidate their patents or for a declaration that Rackspace does not infringe. We were unwilling to enter into such a one-sided agreement, so we negotiated a mutual forbearance agreement that required either party to give 30 days’ notice before bringing suit.

That's some shady shit right there.

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It's worth noting that it's very very close to the same tactic Microsoft pursued in targeting Android OEMs. Basically forcing them to sign non-disclosure agreements before letting them even know which patents they violated. Then when Barnes and Noble finally refused and forced (some of) the patents into the open something like 90% of them were found to be bogus. But this was after dozens of OEMs were extorted into licensing these dodgy patents based on the up front NDA.

This one act of Microsoft's has made it very hard for me to buy any of their products. I feel like I'm funding a patent extortionist (I would call them a "troll" but I know many people would nitpick the definition of that).

>something like 90% of them were found to be bogus

Reference?

Partly, Microsoft themselves since they withdrew significant parts their patent claim pretty much as soon as they were forced to make them public:

http://www.zdnet.com/blog/microsoft/microsoft-withdraws-one-...

But you can judge for yourself:

"Loading status in a hypermedia browser having a limited available display area":

http://www.google.com/patents?id=DwEJAAAAEBAJ

"Remote retrieval and display management of electronic document with embedded images":

http://www.google.com/patents/about/5778372_Remote_retrieval...

"System provided child window controls":

http://www.google.com/patents/about/5889522_System_provided_...

"Selection handles in editing electronic documents"

http://www.google.com/patents/about/6891551_Selection_handle...

Take the "loading status" one for instance: the entire patent consists of displaying an animated graphic while a page loads and then removing the animated graphic afterwards. That's supposed to be an invention worthy of protection because otherwise Microsoft might keep its implementation secret, thus the public should wait 20 years to use it. In my view, that is exactly the kind of patent that makes a mockery of the patent system.

"something like 90% of them were found to be bogus. But this was after dozens of OEMs were extorted into licensing these dodgy patents"

No, what happens is

Most of the company directors/managers doesn't know much about patents. They think it's a magical thing and that if MS is saying that we violate them it's better to pay them because MS invented computers or something.

I'm not making this up.

So then came B&N that apparently knows a bit more about patents and call their BS.

I can't understand why anyone would sign away their right to counter-sue in order to obtain information on something which can't possibly damage them until the information is disclosed anyway (IANAL)

It might be the plaintiffs way of identifying targets that don't have the will or money to litigate. A larger company isn't going to sign one of these--it doesn't buy you barely anything.

So does it by you a lot of something, or nothing?

Maybe b/c they do not believe that such an agreement is enforceable. The majority of States have "anti-slapp" laws that in limited circumstances protect the Freedom of speech over agreements/contracts (generally one has the right to contract confidentiality which is enforceable).

For example I had a case where I represented a plaintiff suing over breach of a confidential settlement, b/c I attached the confidential settlement as an exhibit the defendant counter-sued for disclosing the confidential settlement. I got their counter-suit dismissed as a matter of law b/c the anti-slapp protected the freedom of speech to disclose the confidential agreement to the court for the purpose of enforcement.

At this time the Federal Government does not have a anti-slapp equivalent, and most IP cases are federal; therefore, it might be actionable to disclose confidential information in Federal Court for enforcement, maybe under seal...if a Federal practitioner happens to have experience with this issue, please shed some light.

People will do a lot of dumb stuff without talking to an attorney. They'll think,"OMG, lawyers are saying they'll put me out of business," or "OMG, the IRS/SEC/FBI have told me I did something bad," and they call the number on the letterhead. People want to believe that other people are reasonable.

I wouldn't advise this for the latter group, but it is quite enjoyable to wind up time saying a lot of nothing (except maybe a nice description of your bowel movements) to the legal firm, who then charge their client for writing it down and telling them what was said.

In general, keep your effing mouth shut. It's generally safe to ignore "scary letters" (and especially emails) if you're not actually served, because it's inexpensive to carpet bomb potential suckers. Once they legally act against you (such as the IRS telling you they have started auditing your returns), break out your rainy day retainer fund. There are good attorneys out there and they're not hard to find.

Is there even a reasonable situation where a one-sided "forbearance agreement" is ever appropriate? Or even remotely fair? That seems like basically writing up a contract that says "By signing this you owe me $100" but entrenching and obfuscating it in 75 pages of legalese.

An acquaintance told me a story where a neighbour in his condominium complex (who lived directly under him) asked for a right of first refusal for nothing in return if/when she eventually put her unit on the market...

http://en.wikipedia.org/wiki/Right_of_first_refusal

If the right of first refusal only applies to the asking price, there isn't much downside except if the market is hot and/or you have a highly sought-after place where multiple bidders push the price above the asking price. If that's not the case, set the asking price at an amount you're confident the market won't pay, and the psychological pressure of the neighbor having wanted right of first refusal might make them buy at your inflated price.

Did they intend for it to be a formal contract?

I feel that for every major, an introduction to business/contract law unit should be undertaken if only to educate people on the formal rules that surround the contracts everyone enters in to during their lives.

I heard this used as an example against the legal uselessness of disclaimers on emails - they can't force you into a contract without your consent, and to be clearer, the example was given: "By reading this you agree to pay me $100 immediately"....

That wouldn't be a valid contract for several reasons. What's the consideration, acceptance?

Sure, that's the point of the example. Phrased that way, this kind of contract is clearly one-sided and unenforceable.

Well, it's not exactly news that patents are an extortion racket. And where there's a racket, you will find someone to use it, be it the mafia or a patent troll.

I don't see this as shady. Suing and defending being sued is expensive enough to worry even medium sized companies. Exploring other options first seems like good business practice to me.

The part that seems sketchy to me isn't the agreement itself, but not disclosing what you're threatening to sue for. Plaintiffs usually come at you with a litany of grievances. You can hash them out in court or settle, but you know up front what you're fighting about.

Oh sure, I agree totally with you on that.

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