Idaho Comes Out Of Left Field, Takes Its Turn At Bat Against Trolls

Idawho?  What?  Man, you gotta be awful quick around here not to miss something major.  The State of Idaho, under the governance of one Butch Otter has stepped up and passed Demand Letter legislation to attempt to thwart patent trolls.  Here’s a link to the actual bill that passed, and here’s a picture of Idaho:

Idaho, land of...waterfalls??

I’m not even kidding you, this is Idaho. I want to move there yesterday.

 

So it all goes swimmingly until we hit section 48-1703, which is of course the heart(land) of the matter.  Is Idaho considered the heartland, or is that parenthetical assuming too much?  Never mind.  I think a), b), and c) are very nice and reasonable and for Pete’s sake, trolls, if you can’t at least divulge that then you’re the pond scum we think you are.  But at section d), the ball seems to roll a little left of the foul line:

The demand letter demands payment of a license fee or response within an unreasonably short period of time.

You know what I can’t stand?  Imprecision.  Unprecise-ness.  When people don’t give a specific timeline.  An “unreasonably short period of time” is relative.  If I’m starving, a 90-120 minute wait is an eternity.  If I’m waiting on an appointment for a root canal, 90-120 minutes is coming up on me WAY too soon.  Why not scope it out fully?

The person offers to license the patent for an amount that is not reasonably based on the value of a license to the patent.

This has been argued before, I can’t remember where but I will hunt it down and find it.   Ah yes, here it is:  the idea was that you can’t charge more for a license to the patent than the patent itself costs.  Huh?  Of course you can.  It’s called “market value”.  I don’t think you can legislate patent market value,  besides which you used that non-specific “reasonable” word again.  If trolls were reasonable, we wouldn’t be in this position, now would we?

And really, why spell it out at all if this is the case:

Any other factor the court finds relevant.

So essentially, if we say you are trolling, you’re trolling.  Which you would think, given the level of…frustration?  Anger? Incredulity?  that I have had over the years for patent trolls that this would be a good thing to me.

But there’s this small voice in the back of my head, the part that really likes the idea of free speech and market-driven solutions, that says we ought to have stopped with just this part:

(a) The person sends a demand letter to a target without first conducting an analysis comparing the claims in the patent to the target’s products, services or technology.

(b) The demand letter does not contain the following information:

(i) The patent number;

(ii) The name and address of the patent owner or owners and assignee or assignees, if any; and

(iii) The factual allegations concerning the specific areas in which the target’s products, services and technology infringe the patent or are covered by the claims in the patent.

(c) The demand letter does not identify specific areas in which the product , services and technology are covered by the claims in the patent.

Anyone demanding anything to do with patent infringement ought to logically and transparently produce that information.  That’s reasonable.  So while I commend Idaho for being Idaho and being so pretty and being about so much more than just potatoes like we’ve all been taught since the third grade, I do think this oversteps a little bit.

I like the trend though, the trend of getting involved in the issue and trying to go at it on the state level (v. monolithic Federal reform).  Just to beat the dead horse again, I don’t like the idea of legislation to solve this problem, but when it’s smart and lays out expectations like sections a), b) and c) in the Idaho law do then I’m surprisingly for it.

And to that end, well (partially) done, Idaho!

JustSayin_small_New

IPTT

{Awesome Idaho image found here.}

Demand Letters And The Entry (Or Not) Of Such Into A Repository

Almost a year ago, because President Obama has no regard for my schedule, I launched an online patent assertion/demand letter repository called That Patent Tool.  It’s been well received, and lots of people, really really cool people to boot, have signed up.  There’s data in the system, and for that I am most humbly grateful!

I had a discussion with Julie Samuels just before she left EFF.  I have to admit that I was kind of upset when I saw that they came out with trollingeffects.org because, like the Highlander, I was thinking “There can be only one.”  THE WORLD CANNOT HANDLE TWO DEMAND LETTER REPOSITORIES, PEOPLE!!  I think I may have even given the folks at the Application Developer’s Alliance some {ahem} feedback for throwing their weight behind Trolling Effects rather than behind me.  Ah, the insecurity foibles of youth.  Sorry, ADA!!

therecanbeonlyone

 

Only Julie’s point, which she made ever so calmly and with much less drama than I myself am prone to, was “Um, no I don’t think so.  If people are willing to put the information in one repository, that almost makes them more likely to put it in another.”  Well Bob’s your uncle, I never thought of it that way.

But you know what?  People are not flocking to enter demand letter information at nearly the rate either of us expected.  I mean, the President himself said we needed a Demand Letter Registry.  Right there out in the open, he said that.   The President said you should do it and yet hordes of people have consistently not done it which means someone’s getting sent to bed without supper tonight.

As serendipity would have it, this article by Megan M. La Belle was posted on Twitter by @PatentWire  It includes a lot of things I personally hadn’t thought about in terms of the effects of settlement (either through the use of demand letters or settlements after a lawsuit has been filed) on the patent industry in general.  While the entire article is worth a full and focused read, I think the very best summary of the issue is right at the beginning:

Not only are patent settlements frequently coerced, they also come at the expense of judicial precedent, which is particularly valuable in the patent context since an invalidity judgment estops the patentee from ever asserting that patent again.18 A related concern is that patent settlements may achieve peace between the parties, but not justice. When patent litigants settle, the accused infringer usually agrees to pay the patent owner, stipulates to the patent’s validity, and promises not to challenge the patent in the future.19 Even assuming such an agreement is in the best interests of the parties, it may undermine the public·s interest by allowing a potentially invalid patent to remain intact.20

Note:  footnotes are left in the quote, but you’ll need to refer to the original article, linked above, to view them.

Let’s pull out a quote from a quote: “A related concern is that patent settlements may achieve peace between the parties, but not justice.”  Peace is what demand letters are designed to achieve, if only for the asserter and through a very Reagan-esque “through strength” approach.  The trolls don’t want justice, they want money, they want their toll.  They know that going to trial is not only expensive for them as well as the defendant, but it means the potential for loss, either on invalidity or non-infringement.   By exposing what they are asking for and who they’re asking it of, other recipients can get a lock on how to respond.  This is the primary goal of collecting the letters: exposure.

What the article seems to indicate is that in some cases, going to trial (or “adjudicating”, because that’s a much fancier word) is better for the public good because it will remove bad patents from the system, the data indicating that when patent suits go to trial, invalidity is a very likely outcome.  I won’t go into all the details of which cases the author feels are better going to trial vs. settling because that would be plagiarism.

What I’d like to touch on is that those companies in the Patent Troll Fighter Heroes Gallery believe in this mantra, that it is better to fight (litigate) than settle with the trolls.  To me and to them, it is about the moral issue and how you should never not ever let the bully win.  According to the article, there is empirical data to back that approach up, suggesting that not settling is the better way to both justice and more effective patents.  With all the talk about “bad patents” out there, and there are many (hint: mostly software), I wonder if part of the reason is that so few patent cases actually get litigated?

Here’s another issue with demand letters and settlements:

Another reason scholars have denounced settlement is because it is shrouded in secrecy.73 Unlike adjudication, the outcome of which is available to the general public, settlements are usually confidential, so that only the parties know the terms of the agreement.74

And again, this is why I and others have created an online demand letter repository.  It’s a way to de-shroud settlement requests, which is what a demand letter is, if we are wanting to use the most euphemistic term possible.  I do realize that, in order to avoid declaratory judgment or venue issues, many trolls no longer put all the information into a demand letter that they used to.  But a surprising amount of trolls still do, as you can tell by both my data and EFF’s data.

donotfeedthetrolls

I’m working on a post about why recipients are reticent to upload letters, because I’ve spoken with a lot of people about their fears which are frequently summed up in two words:  “outside counsel”.  As in, my outside counsel won’t let me.  We’ll get to that faulty lawyer logic in due time.  The most common response people give so far is the age-old “What’s in it for me?”

I’ve been looking since the beginning for ways to incentivize or entice or coerce or somehow get people to provide this data.  Recognizing that settlement may not always  be in the public’s best interest in patent litigation, when it comes to dealing with trolls I think that exposure of those “settlement” demand letters actually is in the public’s best interest.

Now all I have to do is convince the rest of you…

 

JustSayin_small_New

IPTT

{Meme found here. Incredibly awesome troll sign found here.}

On The Definition Of A ‘Patent Troll’: Let’s Get Personal Once Again

Despite this review, I actually love Love Actually.  Mostly because of the wicked moves Hugh Grant pulls of to the Pointer Sisters, but also because of the way he defends Natalie, who’s ex evidently felt she was a little thick in the middle:

Oooooo, would we call her chubby?

The point is, of course, that he loves her and doesn’t see her that way, even though his staff and others totally do.

Hugh Grant Love Actually Dance

“I’ll take you down, I’ll take you down… where no one’s ever been before!”

 

I don’t love Jim Logan (no offense, but I’m a one man woman!) or Personal Audio.  But what I do feel is the need to break from my buddies over at EFF and examine once again if they, and by “they” I mean Jim, can truly and rightly be labeled a troll.

After suffering  through about 25 million ads sliding in and out at random locations (and the alliterative title), I was able to get through this article at The Economist.  I also read the comments, which is usually where the most fun is.  Also at Techdirt. If you don’t read the comments there then you’re missing 95% of the story.

The article talks about the most outspoken recipient of Mr. Logan’s attention, one Adam Carolla.  If I were Marc Maron, I would be a little irked that his fight is getting more play than mine, but whatever.  I don’t have a beef with Adam at all, and I’m sure he’s right irritated at having to deal with a lawsuit.  But let’s take a look at what we can really call a “troll”, because I don’t think the definition holds water in this situation.

From the article:

his company, ACE Broadcasting Network,being sued a year ago by Personal Audio, a non-practicing patentholding entity (a “patent troll”)

Hold on just a second.  I am at this very moment listening to an NPR podcast (how ironic) where they are playing a cassette tape of what they called the “very first podcast”.  If one of the main definitions of a patent troll is that they are non-practicing entities who don’t produce anything and simply sue over patents, and Jim Logan produced a cassette tape podcast, then how does that not immediately negate at least that part of the troll litmus test?

Now, Mr. Logan’s behavior should be analyzed because as I’ve said before and others have too, you have to look at a pattern of behavior to determine if someone is a troll.  It’s really not a hard and fast definition no matter how much my OCD brain would like for it to be.  The fact of the matter is that Personal Audio is indeed going around suing a lot of people.   Some have settled/taken a license and some are barking about it.  LOUDLY.  (Adam, I’m looking at you.)

While the suit does not detail a specific financial demand, Mr Carolla tells Babbage that he was asked for $3m, a sum he finds laughable based on his network’s revenue (which he does not disclose).

adamcarolla

Your season of Celebrity Apprentice was nuts. Aubrey O’Day? Really?

 

So, the suit didn’t detail a specific demand but Adam was asked for $3M.  That’s…inconsistent.  But the second half of that statement speaks to what I said in a previous post about this:

If Jim Logan had put it all out there in the demand letter and made a reasonable demand for a licensing fee by realizing that Adam Carolla, for all his funny, is not going to have the same resources as an Apple or Microsoft maybe he wouldn’t be so vilified?

I don’t know what Adam’s revenues are and I don’t know what Jim would think a reasonable license fee would be.  But I think that there has to be a somewhere in the middle on this kind of thing.  You cannot argue that Jim Logan didn’t try to monetize his patent with a product when it was issued, something troll are rightly accused of, even though the author of the article tries to do just that in both the above quote and this one:

First, Personal Audio fits the definition of a “patent troll”, or an entity formed for the basis of prosecuting patent lawsuits and licensing without manufacturing products or services.

You could, however, argue that he was ahead of his time, that the technology that would have made his idea more successful hadn’t gotten there yet.

This is why Personal Audio is now saying, “Look, I invented this.  I sunk $1.6* million of my own resources into trying to make it work but the timing wasn’t right.  Now it is, and I would like a cut of what you’re doing because it piggybacks off of what I was doing and oh by the way, I patented it and I have the right to exclude you from doing it unless you pay me a license.  That’s how patenting works.”

*I had incorrectly put a $4M figure here, thank you to my friend for the correction!

{Just to interject here, my beef is with the calling of Personal Audio a troll.  Arguments about prior art on the patent or whether or not the patent should ever have been issued are not the subject here.  Those are different and good arguments and I suppose we’ll see in May what the results of the IPR filed by EFF are.}

You know what would have helped both sides in this sort of thing?  A company like idealAsset, the “match.com for IP”.  If Jim had had a repository in which to place his IP asset, a searchable database with buyers and sellers hooked into it, he might not have had to go around suing.  And if Adam’s lawyers (and other podcaster’s lawyers) had a place where they could go looking to see if there was any IP surrounding what they were trying to do, they could have been matched up, gone on a date, and checked to see if there were any sparks flying that might lead to a permanent engagement or, dare I say it, marriage.

Maybe Jim did ask for decent terms in his original demand letters (if he sent them vs. just straight up suing).  I don’t know, he hasn’t entered any of them into That Patent Tool so we can see, and neither have any of the recipients.

All I know is this is one case where I feel it necessary to channel my inner Hugh Grant/Prime Minister and say:

“Ooooo, would we call him a troll?”

JustSayin_small_New

IPTT

{Adorable Hugh Grant image found here. All business-y image of Adam Carolla found here.}

Top Five Things I Learned From The Fortune Article On RPX

I don’t usually pick up Fortune magazine because my nightstand is already covered in InStyle and Vogue and Elle on account of I’m a fashion icon in my dreams.  But I was tipped off (thank you!!) about the recent issue with this article about RPX. You and I both know that I can’t not get involved in this kind of thing, right?

Read it I did and boy oh boy oh boy, were there some nuggets in there!  To wit:

1.  John Amster plays guitar?  I did not see that coming.

AmsterGuitarMindblown

Mind? Blown.

2.  People (besides me) have hated Intellectual Ventures from the very beginning.  Commerce One’s bankruptcy, as the article explains, was the catalyst for the secondary patent market in that their GC Paul Warenski said “Hey, let’s not just sell our assets as one package, lets split off the IP and sell it separately.”  Kind of a Gordon Gecko-ish move, but I mean that in a nice way because Paul was a visionary kind of asset splitter-upper, not the nasty kind.

From the get go, it seems that the most important outcome of the auction was not that the patents fetch a high price, but that the winner had better not be IV.  That’s interesting, since purportedly, they were the early RPX:  the mission was to find and buy up patents to keep them “out of the hands of hostile NPEs”.

I suspect their business model got in the way…acting as a hedge fund and being expected to fetch a high rate of return for investors meant that IV going freak nasty and litigating to get that return was a forgone conclusion.  Nathan’s idea that all he had to do was “[price] his licensing demands correctly, [and] he would never need to sue anyone” was all well and good, but then the big players got more than a little sick and tired of the demand letter game and it all went to seed.  They stopped responding or starting fighting and then as we all know, in late 2010 the chickens came home to roost and IV began filing lawsuits.

It’s just interesting to me that Myhrvold has been a nemesis for so many for so long.

3.  Nathan Myhrvold was an original partner in ThinkFire.  ThinkFire was headed by Dan McCurdy, of none other than Patent Freedom and Allied Security Trust fame.  At the time of the Commerce One auction, in which ThinkFire and IV were bidders, Nathan was in cahoots with both IV and ThinkFire, which means he was bidding against himself.  See?  Evidently, even Nathan doesn’t like Nathan! Anyway, this was news to me, despite the quote in the article that it was “a spectacle the press gleefully highlighted.”  You can be rest assured of my gleefulness as I now re-highlight this information.

4.  The idea of idea theft is no longer relevant to John Amster, as evidenced by this quote from the article:

In Amster’s world, patent suits against tech companies no longer turn on quaint moral issues like, “Did Company X steal from Inventor Y”  For the most part, they don’t even turn on legal issues like, Is patent Z valid, and if so, is it infringed by Company X’s product?

What counts today are probabilities, statistics, and most of all, transaction costs.

I guess then that RPX’s business model is less “if you subscribe, we’ll invest your funds in buying patents that the trolls will use against you” than it is “statistically speaking, our data that we collected and collated ourselves shows that you will be hit by a patent troll unless you pay us a yearly fee, after which point we will protect you from an unspecified number of those suits and save you an amount of money that we arrived at using our own data.”

Hmmm.

5.  RPX divests it’s portfolios to trolls from time to time.  Which, I guess if you realize that they are “friends with them” and “take them to dinner”, it’d be like me selling my stroller to my newly pregnant friend after my kids are older. I mean, it’s not as if RPX thinks those patents aren’t troll-worthy or they wouldn’t have bought them in the first place.  It looks like they’re buying patents off the open market to snag new clients by telling them “Look!  We hath thwarted the Evil Empire and if you sign up, you shall not be subject to suit by this portfolio!”  And when that usefulness has been outlived and they’ve gotten a few years’ worth of subscription fees, they sell them back out to the open market.  And then use the fact that those patents are now once again at play to bring in more new clients.   Cue merry-go-round.

MerryGoRound

For the first time in a long time, this was an article that didn’t just restate the by now obvious facts about what patent trolls are.  And they didn’t touch lightly on the RPX business model either; I was kind of surprised at the tone they took and wondered if Amster’s camp was happy with the final print version of the article.

I think the original strategy of RPX, to get patents that the trolls could use off the market, was and is a good one.  I’ve praised them as one of the market-based solutions to patent trolling, something that was started by people who had a desire to stop bad behavior.  The only problem is that if they “solve” the troll problem, why does anyone need them?

Maybe that’s what they’re figuring out, and why the divestitures now (occasionally) involve re-selling back to trolls?

All I know is, whenever I read about RPX in the future, I’m going to picture a guy on a sofa with a vintage guitar.

JustSayin_small_New

IPTT

{John Amster image found here. Guitar image found here. Russell Brand mind blown found here.}

Should IBM’s Watson Be Patent Eligible: An Essay By An Idealogue Without A Clue

Just in case the subtitle isn’t clear, I’ll invite you to review the twitter conversation where Gene said I was not worth arguing with, then proceeded to engage in the conversation with five more tweets.  I’m not sure if he can’t count, or if he just can’t help himself?  The point was, he asked me if I wanted to debate whether IBM’s Watson should be patent eligible and I told him that I was far too wordy to do that on Twitter but that I’d be happy to respond on the blog.

And here we are.

I’m coming at this issue of patentability of Watson and of software in general not as an attorney, not as an engineer, not as a patent agent, nor as a government official.  In fact, other than making good on a Twitter promise, I don’t have a dog in this fight.  I’m just a girl, standing in front of a boy, asking him to love her.  Wait, what?

Notting-H-Julia-Roberts_l

I look exactly like Julia Roberts, only with brown hair,
blue eyes, and much less height.
True story.
(Hint: not really)

I see this issue from a business standpoint, and as someone who has a background in computer programming/software development.  I’ve been doing it for over 20 years now so I think I have more than a passing understanding of what computer software is and does, and how it’s created.  I spent the better part of my 20’s in little hidey holes banging out line after line of code.  It isn’t as if I’m coming completely out of left field here, is my point.

The question of should Watson be patent eligible is moo…IBM does in fact own several patents for the technology behind the service.  So the question is more rhetorical in nature.  Scholars at every level have been tackling this question for in excess of two decades so the idea that I can work this out in a blog post or twitter conversation is hugely unlikely.

Nevertheless, you asked (and so nicely, too!) and I will proffer my answer.

Lines of code or algorithms are not, in and of themselves, useful.  From the US Constitution, Patents are issued:

to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

To promote the “useful arts”, not to promote “really cool code” or “computers that can win Jeopardy”.  No, the intent as I read it was to protect those who spend their time and money developing something new, non-obvious, and useful.  Yet how useful is Microsoft Word if no one ever creates a document with it?  See where I’m going with this?

Using patented technology, IBM is promoting the useful arts.  They’re giving away some of the information that Watson’s powerful computing has generated from an article here :

In a demonstration of its power, Watson has 4.7 million patents and 11 million scientific journals published between 1976 and 2000.  In each article Watson carefully identified any previously unseen chemical compounds (in pictures or text), grabbed any related diagrams, grabbed relevant keywords, and lastly scooped up the author and company names.

The result was a database of 2.5 million compounds, which are thought by Watson to be unique.  For each of these compounds Watson discovered the earliest patentee.  IBM donated its superbot’s work — the “open chemistry” database — to the U.S. National Institute of Health (NIH), allowing scientists all over the world to dig into it.

But again, it isn’t the lines of code or the circuitry or the machine itself that makes Watson useful.  It’s what comes out of it.  This is why I don’t like patent trolls, incidentally.  They don’t make anything, they just buy patents and extort money from people by threatening to sue for infringement even, and especially, when there’s no true evidence that any such infringement took place.  But I digress.

I’ve spent the better part of a week reading all about Alice Corp vs. CLS Bank and the numerous briefs (brilliantly curated here by Dennis Crouch) surrounding it.  I’ve read countless articles about Watson itself (himself?) and this one is the best.  And in all my reading and Googling do you know what I discovered?  This is a multi-layered and complicated question with no clear answer.  Hell, if this statement via Wikipedia is any indication:

The fractured panel of ten judges issued seven different opinions, with no opinion supported by a majority. Seven of the ten judges upheld the district court’s decision that Alice’s method claims and computer-readable-medium claims were not patent-eligible, but they did so for conflicting and incompatible reasons. Five of the ten judges upheld the district court’s decision that Alice’s computer-systems claims were not patent-eligible. The panel did not agree on a standard to determine whether a computer-implemented invention is a patent-ineligible, abstract idea.

then there is not much hope that I can add thoughtfully to the discourse except to say this:  I think figuring out what is patentable and what is not has become so unbelievably complicated because complications mean lawyers who are necessary to decipher what’s going on and we all know that in any dispute, patent or otherwise, the real and clear winner is always the attorney.  They didn’t do it on purpose.  I think complication is a natural offshoot of people who are, by nature of their vocation, extremely risk averse and also?  Happen to bill by the hour.  They spend all their time looking for any loophole to any given statement (either on the loophole creation side or the loophole avoidance side) so they dream up crazy tests and rules and talk their clients into suing each other over them.

suits_charactergallery_harvey_09

Lawyerus billalotus.

But just as an aside, regarding Alice Corp v. CLS Bank, what kind of crazy-making is this, anyway?  Alice Corp creates “a computer-implemented, electronic escrow service for facilitating financial transactions”.  From their own website:

An Alice Market enables end-users and investors to create flexible contracts that meet their hedging and investment needs in a real-time, secure and anonymous electronic market. It also ensures that participants are not exposed to the possible failure of the parties with whom they contract.

Is it possible to “ensure that participants are not exposed to the possible failure of the parties with whom they contract” without an Alice Market?  If what CLS Bank was doing uses the exact same methodology and code that your patented software does, then I suppose you’ve got them on infringement.  It doesn’t seem that hard to me to figure out…CLS is either using your software methodologies and code and algorithms or they aren’t.  As a coder, it’s pretty easy to figure that out so honestly, I don’t get what all the fuss is about in terms of whether or not they’re infringing.  Or maybe I’m stupid and am missing something really obvious, in which case I have zero doubt that Gene someone will let me know.

Either way, this isn’t really what the case is about anymore, it’s about can you patent software?  Nee’, is IBM’s Watson patent-elibible?

My answer?  Like I said on Twitter…code that simply replicates business rules should not be patentable.  But for the broader question of all software in general, I don’t honestly know.

You can bet, though, that I’ll be waiting on the Supreme Court’s answer to the question like some people wait for a shoe sale at Nordstrom’s.

JustSayin_small_New

IPTT

{Image of Julia Roberts’ front and Hugh Grant’s back from Notting Hill found here. Image of Harvey Specter found here.}

About Those Proposed Government Demand Letter Requirements

This is sort of old news, in that the original story came out last year after a series of Senate hearings on patent trolls.  The government has proposed a set of rules that they want patent holders and their legal counsel to follow when sending out demand letters.  I don’t think they can make those requirements stick legally, nor would I necessarily want them to.

You’re shocked, I can tell.

Here’s my reasoning.  Well, wait a sec….first of all, here’s a cut and paste of what new legislation would require, from the EFF write up about it:

  • Require that demand letters contain certain basic information, such as a description of the patent at issue, a description of the product or service that allegedly infringes it, the names and contact information for the patent’s owners, and disclosures of ongoing reexaminations or litigations involving that patent.
  • Define as an illegal unfair or deceptive practice certain egregious behaviors, such as sending letters threatening litigation without a real intent to file litigation or sending letters that lack a reasonable basis in the law.
  • Explicitly give state attorneys general the power to to target similar bad behavior in their own states.
  • Allow the Federal Trade Commision to enforce these rules by levying penalties of $16,000 per each violation.

You know what all that information that sounds like?  That sounds like a lawsuit filing to me.  Demand letters are not lawsuits, and they shouldn’t be treated as such.  Now, I think that it would be wise to force trolls to include the patent number, you got me there.

The issue for me is that patent trolls are bullies, plain and simple.  I just happen to feel, very much like Elie Mystal over at Above the Law, that bullies ought to be handled by the bully-ee (and his posse, as necessary) rather than by the authorities.

It’s about information and education to me.  Teaching the general public how to handle these letters by a) collecting them in order to get research and report on the troll modus operandi and b) providing resources for companies when they do receive one.  The White House launched a website (complete with 1980′s clip art icons!) where people can go for resources when that happens.  That’s awesome and the appropriate response because it puts the power to decide if and how they will respond in the people’s hands where it belongs.

Let me tell a personal story here…my 5th grader was recently called a fata$$ on the playground.  It was during a pickup game of rugby (rugby?  wth??) wherein my guy landed on another guy during what all the witnesses say was a legitimate play.

rugbymud438

This is what the scene looked like in my head.

Well the guy he landed on didn’t think so and started with the hurling of insults.  My son, God love him, did not go running to the teacher.  He did not demand a hearing before a jury of his 11 yr old peers. He did not call me up from the nurse’s office in obvious emotional distress and demand that I sue the parents of the potty mouthed hooligan.  He did not start a petition to hang signs in the school yard, warning that trash-talk is illegal.  He simply stood up, said “WHAT’D YOU CALL ME??!!”, and proceeded to handle his business.  I’m not going to explain how because I don’t want a bunch of hate mail about how I taught my son to fight, even though it wasn’t really me so much as it was Peter Brady when he took out Buddy Hinton on behalf of Cindy.  Thanks, Brady Bunch reruns.

My point is, I think that the demand letters the trolls send are designed to be threatening and in many cases deceptive (and I do love that some of the states Attorneys General are going after the senders for it, because it’s after the letter’s been sent and completely appropriate).

I’m not as sure though, that the government ought to come in and tell people what they can and can’t put in a private letter to another company or individual.  Barring libelous statements, companies are within their rights to be a jerk and make threats.  And we, as citizens, are within our rights to build and deploy software solutions to combat those threats.  I don’t think that federal time and resources ought to  be spent on the problem at that stage of the game.

This post came out of a retweet by @GCToGo of a tweet by Cisco’s Mark Chandler (@ChandlerCisco).  Limiting myself to Twitter’s 144 characters is always at times painful for me, so this was one of those times it had to go to the blog.

Plus, what else is there to do on a cold, rainy Sunday but write about patent trolls?

That’s what I thought you’d say.

JustSayin_small_New

IPTT

{Fantastic rugby image found here.}

Cory Doctorow Is Spot On, Even If You’ve Never Heard Of Him

Probably everyone else has heard of Cory Doctorow, but I hadn’t until I came across a piece that was so brilliant (in large part because he agrees with me, of course) that I had to read it several times and then find a copy of the movie so I could watch it.  His article is about The Magnificent Seven business model and how it applies to patent trolls (and copyright trolls too, but we’ll leave those to Ali.)

the-magnificent-seven-sharp-shooter

Got you in our sights, trolls.

I’ve banged the drum loudly for almost three years now that one surefire way to beat the trolls is to use collective action, preferably prior to litigation.  There are a number of offerings that help once you’ve been sued (IP litigation insurance, RPX’s Collaborative Defense™), but by then the money’s already flowing in the wrong direction, which is to say out of your bank account and into to some attorney’s.  A little too late in the game if you ask me.

That’s one reason I and others have put up tools to collect patent demand letters.  As Cory states in his article:

Since the victims are spread out and don’t know each other, it’s hard to fight back together.

That’s what the trolls count on.  But what if there was a place to input information about which trolls are asking for how much regarding which patents before they actually sue?  Hello?  We have that here (MINE!) and here (THEIRS!).  Cory’s exactly right when he says:

the relatively small profits from being a jerk are concentrated, the much larger effects are diffused, which means that the jerks can afford better lawyers and lobbyists than any one of their victims.

But what if those victims got together?  What if they created a fund for defense, like I suggested in this prior blog post:

In other words, if that’s too subtle for you, why don’t you guys do the same thing?  Coordinate a response.  It looks like some of you did in this case by filing an amicus  brief or two, but seriously?  That all you got?

Open up your wallets, find a bank somewhere (I know!  I know!  Make it Switzerland, since you’re already there!), get an account, and FUND A MASS DEFENSE.  The only thing evil people understand are lawyers, guns, and money.  You have two out of the three, and that ain’t bad.  In fact, it’s enough.  Get some lawyers and some money, and you won’t even need the guns.

This really, truly isn’t rocket science.

Cory’s saying the same thing, only he suggests a Kickstarter campaign.  There’s another option, Defense Mob, that is getting off the ground as well.  There’s a particular brilliance to the way he puts it that you have to read and read until you fully ingest it and let it spur you to action:

Once a troll is worried about a pushback from his victims, he’ll need to raise a war-chest, and since the only thing a troll makes is lawsuits, he’ll start sending more threats. Those threats will attract more people to the kickstarter [or other collaboration effort], raising its profile and its search-rank. The more the troll wriggles, the more stuck he becomes.

DING DING DING, we have a winner, folks.

Give-That-Man-A-Medal-Obama_Facebook_photo_comment

This is exactly what demand letter registries are all about.  Getting the word out and forcing the trolls’ filthy, dirty, long-fingernailed little hands.  And actually, if users will collaborate and talk to one another about what’s going on, you may not need a war chest after all.  All you really need is information.  A collection of data that you can query and find out who else is on the trolls’ hit list.  Once you do that, you can talk to one another and then all of the victims can simply refuse to play the game.

If every person that a troll sends a demand letter to says “NO”, how’s that going to play out?  They’re going to take it to the next level and sue everyone they sent a demand letter to?  OK, they might.  But now go back and re-read Cory’s quote:

The more the troll wriggles, the more stuck he becomes.

I read this article back in November and it still excites me today because I lead a very boring life I love a good plan to take down the bad guys and I’ve advocated doing this since day one.  If I had any smarts at all I’d have tagged all the relevant posts with something like “collaboration idea” and link to them here, but alas, you’ll have to take my word for it.

You want to rid the patent landscape of bottom-feeder trolls?  Then round up your posse, seek out and find your Magnificent Seven, then take the banditos out.

JustSayin_small_New

IPTT

{Magnificent Seven screenshot found here. Obama finger point found here.}