I agree that it is extortion in spirit. But I wonder if patent trolls can be prosecuted on current extortion laws, as their defense would be "We're just trying to enforce our lawful patents." If prosecutors would not want to try, then I wonder how we could change extortion laws to include this practice.
IANAL but wouldn't it be easier to convict on mail fraud first. Corporate "accounts receivable" type scams have been convicted before of mail fraud. The scammers send an invoice to a corporation, and if it looks routine, it gets paid without a second thought.
Sooner or later, some patent troll is going to be dumb enough to send out "Unpaid License Fee" letters and set a precedence on the extortion charge.
Most important to keep in mind is that this activity is targeted toward businesses (and for that matter not exactly "mom" and "pop" types either). It's more difficult getting someone to prosecute this type of borderline activity against business then the same thing against individuals. Especially if they have a leg to stand on and are being operated by attorneys who know how to word things to avoid potential problems.
I agree with you on what their defense would likely be. But with something like this, there is no real way of knowing for sure if companies are infringing on their patents without knowledge of their network and what devices they have. It is entirely possible that they sent this to companies who haven't used these features. The problem is that I can't see prosecutors taking these companies on. I would imagine that a Federal prosecutor would be the one taking them on, which to me, makes it even less likely that it will happen.
Agreed. Sending out these demand letters without a good faith belief of actual infringement, especially bulk-mail form, which could be considered as evidence of not taking reasonable care in preparation, should be considered extortion.
IANAL but one option might be a federal civil RICO suit, and see if the DoJ will get involved.
