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David Toback, Attorney at Law
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Businesses Should Be Aware of Florida’s New Patent Laws

Florida has a new law to deal with a relatively new phenomena: patent trolls. The law is intended to curtail frivolous patent claims, and to allow businesses to operate with more freedom and less concern that they may be violating someone’s patent.

The New Patent Troll Laws

Patent trolls are generally people who obtain patents with no intention of using them, but rather with an intention just to sue others who infringe upon them. Many obtain patents that are overly broad, thus guaranteeing that others will infringe. For example, a patent obtained on a brown bar over a white background could allow the patent holder to sue every candy bar company that shows their chocolate bar on a white background.

Trolls usually aren’t seeking to protect their patent, but rather to coerce money out of the supposedly infringing business.

Florida’s new patent troll act, which was apparently designed to discourage patent trolls, (1) bans people from making false or bad faith patent claims or infringement claims; (2) creates criteria that will be considered to see if bad faith existed; (3) requires that anyone who does make a patent infringement claim post a bond; and (4) allows someone who was sued in bad faith for patent infringement to make a claim for damages against the person suing.

Concerns Businesses May Have About the New Law

The new bond requirement can be significant. Someone who may have a legitimate infringement claim could be required to pay a significant amount in a court registry in order for the claim to continue. For many smaller businesses or individuals with legitimate patents, the bond hurdle could prevent them from enforcing their patent.

Also of concern to small businesses is the ability to be sued themselves if they try to enforce a patent and end up losing the case. The specter of having a huge company come after them if it turns out that a court disagrees with them about a patent could discourage individuals and small businesses from pushing forward with patent claims. That’s especially true because patent issues often aren’t black and white, and often depend on a judge or jury’s opinion after hearing evidence.

Many smaller businesses may have unknowingly and innocently filed incomplete patents. When they seek to enforce the patent and lose, they could owe a lot of money, even though they had no intention to troll and were trying to protect a patent they believed was valid.

Another big change is in infringement letters, which are demand letters sent from patent owners to alleged infringers demanding cessation of the infringement, and often damages. Under new Florida law, these letters will now need the blame of the patent owner and a list of how the person believes the patents are being infringed upon.

Small mistakes can cost your business big money. Business litigation can be murky waters. Make sure you’re safe while you protect your business and its property. Contact Tampa business attorney David Toback to discuss your needs and protect your business interests.

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