In one sense, this suggestion is as good or better than any I've heard. Let the defendant raise the possible issue with a judge - let a (presumably impartial and intelligent) judge look at it on a case-by-case basis, and let the plaintiff know in selected cases "this one's going to cost you lots if you lose". I guess there's then be a danger of a "reverse class action" thing, where someone like the scan-to-email patent holder sends out hundreds or thousands of legal threats, and some law firm decides to try and run up half million dollar costs for each and every defendant.
As long as the judge is aware when the suing party is a shell company vs. an actual small business and requires some sort of monetary escrow only for the former.
I don't know if "danger" is the word you are looking for :) I'd love to see a "reverse class action" happen to an intellectual vulture; the only way it would be better would be if the judge allowed the "defendants" to pierce the veil when it came time to collect.
In one sense, this suggestion is as good or better than any I've heard. Let the defendant raise the possible issue with a judge - let a (presumably impartial and intelligent) judge look at it on a case-by-case basis, and let the plaintiff know in selected cases "this one's going to cost you lots if you lose". I guess there's then be a danger of a "reverse class action" thing, where someone like the scan-to-email patent holder sends out hundreds or thousands of legal threats, and some law firm decides to try and run up half million dollar costs for each and every defendant.