"Much of the problem with the current U.S. patent system
involves haze. Whether it is ambiguity regarding what the patent
covers or murkiness about whether the technology covered by the
patent is actually new, patent plaintiffs regularly use this
uncertainty to their advantage. This ambiguity–often
planned–allows plaintiffs to leverage settlements against
businesses that are forced to either pay their own lawyers or
opportunistic plaintiffs, or take their chances in court where
judges and juries are often unsympathetic to companies.
"This haze is particularly pronounced with software patents.
Unlike electrical patents, in which the electrons of an accused
circuit either move in the way described by the patent or they
don't, software patents can be manipulated to cover "inventions"
far removed from the patent's description or any intent of the
"An important area of "haze" frequently exploited by plaintiffs
regards the calculation of damages. Most often, damages "models"
are arrived at by a damages "expert" (paid by the plaintiff)
picking a number (recommended by the plaintiff or its counsel) and
then–after the fact–generating support for this number.
Such "support" is often hazy in itself, relying on self-serving
opinions on market trends, ultimately including only arguments that
support a huge damages award."
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