Patent Trolls To Everyone Else: “Sticks And Stones, People!”

Remember that little song and dance your Mother used to give you when you were a kid and the brat across the street told you to stick a rubber hose up your nose?  What, that never happened to you?  Anyway… “Sticks and stones may break your bones, but words can never hurt you” is how it went.  To this day, I’m unsure if she was telling me to suck it up, buttercup, or that I was about to be assaulted by a group of kids with baseball bats and rocks. I deserved both neither, I assure you.

There have been a fair amount of synonyms for “patent troll” bandied about in my day, and it seems the trolls have taken that little ditty to heart, for they do not appear in any way hurt by the insults hurled at them. (Unless you count one of the two five-gallon hat wearing guys down in EDTX.  Right, Ray?) Nevertheless, the Moms of patent trolls must’ve dug that lesson in deep because dayum, can they take it or what?

Topping my list of insults used to be Rackspace’s use of “the world’s most notorious patent troll” when referring to IP Nav.  Can anyone over the age of 19 get away with saying “BUUUURN!!“?  No?  Then I’ll just smile sweetly and say “Good one!”

I dare say it, but they have been outdone.  In a case against IWS, none other than Cisco Systems has filed for declaratory judgment and to add insult to injury, has said that they are part of “the most recently recurring plague on this country’s patent system”, according to a quote from a post on the Essential Patent Blog.  Let’s say it together one more time, shall we?  Just for giggles:

the most recently recurring plague on this country’s patent system

If I were IWS I’d be all “Did anyone get the license on that bus that just smooth ran us over?”  Someone call the WWE because that is one pretty hot smackdown.

Truth is, I love those words because they are perfectly descriptive of the problem.  Patent trolls stifle innovation and threaten start-ups and drain R&D money from corporations, all of those things are true to one degree or another.  But at the heart of the matter, they are indeed a plague on the country’s patent system, a slick workaround to the alternative of working hard and using patents to build rather than tear down.

It’s refreshing to see these companies coming out swinging, all “We’re mad as hell, and we’re not gonna take it anymore!”  It really does have to be an all out (or all in, as it were) approach with these guys.  The first time you roll over and let them pat your belly, you’re forever in the one-down position.  They may hit the tickle spot the first time, but before you know it they’ve collared you and are leading you around by your nose.  Hierarchy is very important to bullies so you have show them who’s boss each time, every time.

Both the Cisco motion (which I see that HP has copied)  and Rackspace’s against Parallel Iron are in the Western District of Texas but we might soon just call it the Wild Wild West(ern) District of Texas.

You can’t see it from here, but that cowboy totally just
tossed a patent troll off that cliff. True story.

I’m not not sure what’s in the water out there, but I want some of it shipped to my doorstep toot sweet.

Just sayin’,

IPTT

{note:  image above found at http://tripwow.tripadvisor.com/slideshow-photo/wild-wild-west-monument-valley-united-states.html?sid=10071272&fid=upload_12769675532-tpfil02aw-20674}

For Sale: Oceanfront Property In Arizona

Bonus?  From the front porch you can see the sea.  Now, if you’ll buy that I’ll throw the Golden Gate in free!

I know, it’s not the Golden Gate.
$20 goes to whoever can tell me what it is, and
where I was standing when the picture was taken. No joshin’.

This is, I think, what IP Nav is telling us here.  No no…I’m sure that’s what they’re telling us in their little ditty about how much they’re (almost) completely for all of the new laws and proposed laws to stop patent trolling .

When a patent troll comes out in support of the recent spate of congressional attempts to win favor with high-powered constituents proposed legislation, it seems as though they are using the argument to indicate that “Look, we cannot possibly be a troll because would a troll agree with the laws to curb trollish behavior?  Certainly not.  Ergo, we are not trolls.”

Guys?  I may have been born at night, but it wasn’t last night.

Before taking a dive at the actual substance of the article, I’d like to call out this statement:

None of the 12 proposals are what anyone would call “bold.” They are mostly relatively minor, or in some cases strictly cosmetic.  But they should be enough to convince big company supporters in the Valley that the Administration is doing something about the patent litigation problem.

Please look out your window to confirm that pigs aren’t flying, but I couldn’t agree more.  I’ve banged the drum enough so I won’t pull a Frazier Crane again (oh, the irony) but to me, the gov’t is the last place you want to go to solve the problem.  I would not and do not activelydiscourage support of the legal proposals, but I don’t think supporting them shows anyone you’re serious about anything other than the standard DC rhetoric.  It’s all for show folks, nothing to see there.  Now here?  There’s totally something to see here at That Patent Tool, like a place to enter demand letters.  {Ahem}

But anyway, that’s kinda my point with this whole IP Nav blog post:  if you think the proposals are all smoke and mirrors, why dignify them with a response at all?  Unless your point was to entertain in which case you succeeded because this?  This made me laugh (re: disclosing the “Real Party-in-Interest.”):

We support this, with one proviso: it has to be easy to comply with, and clear what needs to be done to be in compliance.

Let’s dig out the old PTT (Patent Troll Translator):

We would support this if you would make it so easy that it requires no effort at all.  Because if there’s anything we can’t stand, it’s having to work harder to hide what we’re trying to do.

Oh, brother.

I don’t suppose there’s a need for repeated cut and paste examples, but if you read carefully, or at all, you’ll notice that for every sentence agreeing with one of the proposals there’s a second sentence giving a caveat or a “we support it if…”.  So, you know, not exactly the “10 out of 12″ ringing endorsements their blog post promised us.

Which is how we circle back to the title of this post because their title sold us something that evidently doesn’t exist.

Just sayin’,

IPTT

President Obama Clearly Has No Regard For My Schedule

As if I didn’t have enough to do this week, it being the last day of school and all, the President has to go all freak nasty on patent trolls and talk about a demand letter registry.  Does he care at all that my oldest is going to walk to the pizza parlor (I totally just said “pizza parlor” in the year 2013) after school, alone, for the first time, to meet his “friend-that’s-a-girl-but-not-his-girlfriend” and that it makes me feel afraid and proud and sad at the same time?  Does he care that I still have end of year teacher gifts to buy because I’m exactly like this lady and couldn’t be bothered to do it ahead of time?  Or that I have a major system upgrade for a client due by Friday and it includes an inventory module, something I haven’t coded for in probably eight years?

Evidently, he does not.

I now feel obliged to launch this slightly sooner than I had planned, and with that lead in, you should expect nothing less than something completely spectacular.  What you will receive, however, is a link to a National Demand Letter Registry, a little something I like to call That Patent Tool.

As the front page explains, my  goal with this site is to do three things:

1. Alert the business world of Patent Assertion Entity activity, prior to litigation, with an eye towards predicting future targets.
   
2. Expose the process that assertion entities use by posting their demands.
3. Build a community surrounding these threats and create the potential for synergistic response.

It’s that last item that I’m the most excited about, because if we can get the flow of information moving, people will be able to go to a single destination to find out who’s going after who, and connect with others who’re similarly situated.  They can talk response strategies, potentially share counsel…there are any number of ways to join forces with other victims and form a collective action to thwart the efforts of the patent trolls.

This is an idea that has been discussed before, most recently by Professor Colleen Chien in an exchange on Twitter with Dennis Crouch.  Lenny Kravets has also talked about it, and I believe others have mentioned it as well.  And then there’s the guy in the White House, who may or may not have called for it as recently as yesterday.  (Hint:  he did.)

I’m all for talk, obviously, but at some point someone’s got to throw the net out there and see what they can catch.  I’m hoping to catch me a whole heaping lot of trolls, y’all!  The site is completely free to use…there’s no fee to sign up and enter your data, and no fee to search the database.

If you’ve ever been sent a demand letter, GO FORTH AND ENTER IT IN. It doesn’t matter if you don’t have all the information, or if you are unable or unwilling to disclose all the parties.  Put in as much as you’re willing and able to disclose.

This is as much a moral fight for me as it is anything else; if you read through the archives, you’ll see that theme repeated time and time again.  It’s personal!  In fact, I’ll be attending the Developer Patent Summit in Austin on Thursday night, put on by the Application Developer’s Alliance, and am sorely tempted to show up like this guy:

Image courtesy of the Braveheart movie people. I didn’t take it, am not claiming to have.

If you see a lady walking around spouting off about That Patent Tool, face painted in blue and white, who occasionally screams out “FREEDOM!!”, then come up and shake my hand.  There’s a good chance it’ll be me.

Just sayin’,

IPTT

It Was The Apostrophe’s Fault, Officer!

I purposely didn’t read Techdirt’s write up on NPR’s “When Patents Attack – Part II” until after I’d had a chance to listen to it myself.  It’s kind of like waiting until I finish all my vegetables before digging into the M&Ms.  I like to reward myself for good behavior because I’m really a 10 year old who needs that sort of motivation.

The idea of this second installment from NPR was to sort of prove up their case that Intellectual Ventures is a patent troll.  I imagine that among the {insert number of IV employees here} people who still believe it isn’t, that’s a worthy goal.  To someone like, say, me, just for example, it was completely unnecessary.  I knew before listening to either installment exactly what these guys are all about.

Nevertheless, it was fun to listen to the testimony of Peter Detkin once again because is this guy for real or what? It was like having  a conversation with my 12 yr old son who is extremely adept at circumventing all attempts to nail him for bad behavior that we actually witnessed so it’s not as if we didn’t catch him red-handed yet he will argue to the death with you.  You gotta wonder what kind of lawyer that kid will make some day, though I shan’t encourage that career path.

image: http://www.extremetech.com/wp-content/uploads/2011/12/patent_troll.jpg

The upshot was that one Chris Crawford patented an idea that wasn’t totally his, and Peter Detkin at IV bought that patent and accused a whole host of people (under the cloak of a shell company, as trolls are wont to do) of infringing, only on account of the fact that he’s a terrible grammarian and a few good eggs (named Carbonite and EMC) refused to pay up when given a shake-down notice, that patent was invalidated and Oopsies!  He done been outed as a nefariously-acting patent troll.

Image: http://www.intellectualventures.com/index.php/about/leadership/peter-detkin

I was asked just this morning what I thought distinguished a true patent troll from an NPE, or a company who acts on behalf of inventors who just can’t get in the door at a company who might want to use, or may already be using, their patented idea.  My response, in part, was that you have to look at both intent and outcome.   What is the intent of the party who is acting on behalf of the patent holder?  Is the intent to take a legitimate fee for finding a patent licensee and getting the inventor in the door?  Or is the intent to wield that patent as a hacksaw, going after anyone and everyone who might remotely have considered using anything like it?

Further, what is the outcome of the relationship?  Is it a fair price for the inventor?  A better product for the licensee, and therefore (albeit presumably) a better product for the consumer? When you look at the behavior of patent trolls, you have to consider that IV took 90% of the profits from the licensing of Chris Crawford’s patent.  Never mind that Mr. Crawford was a tad shady himself in that he didn’t exactly share credit as he should have, is taking 90% of his money really in his best interests?  Of course not.  But it IS in the best interests of Oasis Intellectual Ventures.  So, you know, troll.

There’s an old axiom that I turn to when life gets complicated for me in any particular area.  It’s this:

Pluralitas non est ponenda sine necessitat

What?  You don’t read Latin, like Dan?  Here it is again:

Plurality is not to be posited without necessity.

You may recognize that from the movie Contact as Occam’s Razor:  All things being equal, the simplest explanation tends to be the correct one.  So when you find a man reduced to arguing over the use of grammar, you know he’s reaching.  It’s called a smoke screen.  A deflection.  While you’re disoriented by the flash-bang over here, the real story is over there, underneath the pile of cash being extorted earned with bad patents.

Just sayin,

IPTT

Hold On To Your (White) Hat, I Partially Agree With Barry At IPNav

A few summers ago, I decided to adopt a Doctrine of Reasonableness to follow in all aspects of my life.  This allows me to say things like “It’s reasonable that I should go for a jog at least three days a week.” or “It’s unreasonable to expect that anyone in this household will remember to turn off a light when exiting a room.” or “It’s reasonable to treat people with whom I hold diametrically opposing views as human beings worthy of my respect in spite of the differences.”

It’s that last one that permits me to come forth and say, without a hint of contradictoryness, that I agree with Barry Leff on his liking of this blog post over at IP Nav.  Well, parts of it anyway.  OK, only this one part, but still:

Government’s knee-jerk reaction to a problem is to pass a law. It makes it look like the government is responsive. Never mind if the law is flawed, or doesn’t properly address the issue that was the stimulus for the law.

You can’t see me (can you??), but if you could, you’d see a normally mild mannered individual jumping up and down, fist-pumping the air.  Barry, this is exactly the point I made when discussing Schumer’s new law.  The fact that the Government is standing up and taking notice of the problem of patent trolls and their patent trolling ways can’t ever be considered a bad thing, but we have to remember that it was, in fact, a government agency (hello, USPTO) that started this whole racket in the first place by issuing poor patents, among other missteps.  So to go back to that watering hole and expect a solid solution is just…well, kinda dumb.

He goes on to say

The law, however, is a mess, and we wonder whether the legislature had anyone with experience in patent litigation actually look at it before they approved it.

Ok that right there is funny.  Funny “ha ha”, as well as funny because you can’t seriously expect a government that doesn’t even read it’s own bills before signing them into law to make any effort whatsoever at having any particular bill reviewed by experts at any point in the process.   Because that?  That would make sense.  (Points for the most repeated use of the word “any” in a single sentence go to:  IPTT.)

Sadly, my trip on the I {Heart} IP Nav train was quickly derailed when I read this:

… if a company sees that another company is infringing one of its patents, in its first letter to the offending company it has to reveal many details about the case, including which patents are being infringed, who owns the patent, and how the patent is being infringed.

followed by this:

In patent litigation there are tactical advantages to being the first one to file a lawsuit.  If a company is being threatened with patent litigation it can file a declaratory judgment, in essence “heading the patent owner off at the pass” and taking the initiative. As a result, first letters from patent owners may intentionally be vague, and may request a forbearance agreement, meaning that the allegedly infringing company agrees not to sue first unless certain conditions are met – before the details are revealed.

Here’s where the VT law differs from what the G-men on Capital Hill are doing:  The word you’re looking for here is “exposure”.  I’m not a lawyer, and that sort of legal maneuvering may well be strategically sound, but I can say this: if you’re hiding something, there’s a problem.  If I’m being sued I ought to be able to know who’s really suing me and what for.  Right?  I mean, isn’t that what truth, justice, and the American way is all about?  Besides being Superman’s rally cry, I mean.

It’s just like Han Solo said to Luke in that famous exchange before they all got sucked into the rebellion full scale:

Luke: “You know, between his howling and your blasting everything in sight, it’s a wonder the whole station doesn’t know we’re here.”

Han: “Bring ‘em on! I prefer a straight fight to all this sneaking around.”

Howlers to the left of me, blasters to the right.
Stuck in the middle with you.

If you’re not doing anything wrong, if suing people for patent infringement over legitimate patents that are actually being infringed is what you’re doing, then SAY THAT and quit sneaking around.  Let people know what you’re after and let the chips fall where they may, law-wise.  Let a judge and jury decide because that’s kind of what the court system is for.  It is, as every complaint I’ve ever read says, a “prayer for relief”.

That’s what we’re looking for…relief from the scourge that is the patent troll.    As has been noted here before, I don’t think going to the Government for help is the solution.  I use a big “G” here for the  feds…what VT is doing is different, and takes a bigger and better sized chunk out of the trolls than what the SHIELD act and Schumer are doing.  The fact that the “most notorious patent troll” out there is complaining about it says something, no?  Perhaps they’re a little concerned that their style may start to get a little cramped.

But hey…for a few sentences there, we had a good thing going, IP Nav!  Thank you for the dinner and nice bottle of wine, but I’m not holding out hope for a second date.

Just sayin’,

IPTT

Techrights.org Thinks Lawyers Are In It For The Money, Is 3/4 Right

When I first read this article by the folks at Techrights.org I thought I had been accused of being a lawyer. Now I’m no shrinking violet and I like to think I can take it as well as I dish it out, but to call me a lawyer? Oh no no no. No you did not just go there.

Turns out? They didn’t, it wasn’t I to whom the author referred when he talked about “The aforementioned patent lawyers’ blog” so I went right ahead and told my people to stand down. Which I did, “I” being the only people that I call upon to defend myself and I. Wait, what?

Anyhoo, I understand the point that Roy is making and you’d be hard pressed to get me to disagree that lawyers are a problem in the troll game. I would go look up all the times I’ve been critical of lawyers here but I have a business to run and breakfast to make buy and I’m lazy.  But suffice it to say that one of the biggest issues with patent troll litigation is that the only ones who really make any money are the attorneys.  I hear you, Roy!

He says further that the major stakeholders in the patent industry have a vested interest in keeping the status quo, which is to say that they don’t really want patent reform so much as they want a scapegoat, and lo they have chosen the mighty Patent Troll for the role. This is an argument similar to one made by Gene Quinn at ipwatchdog…that the C-levels at that Big Tech Firm are all golfing and lunching together with the patent trolls and scheming to keep the fight going so that no true reform ever comes to the actual patent process. And also, as Gene intimates, Big Tech is actually selling off some of their patents to the trolls themselves (possibly and potentially Google and definitely Ericsson).  Egads!

So, yeah. I see that point and probably all big businesses have made use of that great Despair.com quote about consulting, which is to say that “If you can’t be part of the solution, there’s money to be made in prolonging the problem.”

If patent trolls were only targeting the deep pockets, then I would be much more apt to agree wholeheartedly with Roy’s premise. But as we’ve seen with Ditto and with the cloak-and-dagger-ish post over at Techdirt where the developer at a start up in NYC with the blurred-out face talked about how he has more attorneys than he does staff, the scope of the problem has expanded to target those very companies that are the backbone of America. More Americans work for small businesses than work for larger corporations and if those small companies are going to start getting attacked by trolls over bogus, nefarious, and spurious patents then that is a problem that goes beyond the lawyers involved.

The key problem is not the trolls but the patents themselves. Lawyers-run sites don’t want us to limit the scope of patenting (their bread and butter).

I think the first statement is true, the second one not quite so much. There’s clearly room for reform with respect to the patents being issued, no one can argue otherwise. But just because the lawyer-authored blogs are hammering the trolls doesn’t mean that’s all they see as the problem. It’s just the most pressing one and the one that ‘s eating up all their time and all their clients’ resources.  Not to mention, patent trolls are all over the news because several congressmen have decided to come forward and proffer some relief in the form of some new laws…the lawyer blogs are simply writing about what’s relevant.

Besides all that, lets face it: trolls are sometimes cute, and evidently even huggable:

Image found here:
http://i298.photobucket.com/albums/mm271/tlcohio/FjordHuggingTroll.jpg

Where’re you going to get a picture of a patent itself that’s as cute as that?

Just sayin’,

IPTT

Vermont’s AG Is The Patent World’s Luke Skywalker

And the cast of characters grows.

So by now we’ve all heard about the this story, wherein the Attorney General of the great state of Vermont has gone after the scanner dudes:

MPHJ and its principals may have gone too far. They’re now the subject of a government lawsuit targeting patent trolling—the first ever such case. Vermont Attorney General William Sorrell has filed suit in his home state, saying that MPHJ is violating Vermont consumer-protection laws.

William Sorrell, lightsaber in hand (and how ironic is that because lightsabers use light and scanners use light so it’s pretty much exactly the same thing, is what I’m saying), has gone on a troll hunt.

I didn’t take this picture.
Disney now owns it.
George Lucas? I hope you didn’t make a big mistake.

In just the same way that our farm boy hero jumped on the rebellion bandwagon to try and take down Lord Darth Vader, that empty shell of a man machine who was nothing more than a puppet for Emperor Palpatine,  Mr. Sorrell has lept into the patent fray to try and take down the other “most notorious troll” in the  game.  And boy, did he pick a winner.  The cast of characters in this party?  Don’t that beat all.

Jay Mac Rust, from 2006 magazine cover of Super Lawyers Texas “Rising Stars.”

There’s a saying in Texas that I think best suits this image:  ”All hat, no cattle.”  Ahem.  Read all about them folks here in the Arstechnica write up by Joe Mullin.

I don’t know what’s in the water in Vermont, but evidently they grow some serious investigative skills up there:

But Vermont investigators were able to get additional information not available to defense lawyers (or journalists). For instance, they discovered that there were forty different shell companies sending out the letters, all under the control of MPHJ.

Giddyup.  Forty different shell companies?  What’re you trying to do, MPHJ, compete with Intellectual Ventures?  You’ve got a long, long, long, long, long  way to go, but I admire your efforts so far.

The thing is, the actual merits of the case (they’re going for violation of consumer protection laws) don’t really matter.  What really matters is that Vermont is bringing the party to the trolls, going on the offense.   And they’re doing it on two fronts:  this lawsuit as well as a new bill that, if made law, will allow for penalties for “bad faith” lawsuits.  Like that doesn’t cover 99.9% of all patent litigation, am I right?

Joining the ranks of the Braveheart guy, Vermont is tackling this issue head on.  Which of course makes them a de facto Patent Superhero:

This one I can claim. Totally photoshopped this bad boy.

Awwwww  yeah, baby!!!

Just sayin’,

IPTT