A Rare Friday Evening Post

Or, as I like to call it these days, “a rare post”.

I’m not typically given to personal posts because I prefer to let everyone assume my life is as fabulous as possible.  Which of course it is because I’m me.  But since it’s been so long, I thought I’d jump in and update with a few bullet points:

  • WTH is up with eDekka??  That one company is driving a lot of traffic so I’m going to spend my Friday night reading up on what’s going on instead of eating cake icing out of a plastic tub relaxing in the bath.
  • There’s a troll that is after a friend of mine (and I do consider him a friend) and that’s the next post up.  Also?  Please don’t unfriend me, friend, because I haven’t written that press release.  Yet.
  • I completely forgot to finish my Q3 Quarterly Troll Report for this year like I said I would do.  I’m only telling you this because #vulnerability.  I hear that’s a thing now?  If so, then I’m on fleek.  If not, then I’m off fleek.  Which is totally a thing.

Have a great weekend, everyone!



…And For Our Next Patent, A Portal To Narnia!

Twitter debates are my favorite, and I fell sideways into one last week, as opposed to starting one jumping in with both feet like I normally do.   It began with a simple tweet from Mike Masnick (of TechDirt):


It was in reference to a long, tall, beast of a tube that will put space craft and their inhabitants closer to orbit before launch, being built by a company named Thoth.  Thoth is a Canadian company whose website is not thoth.com, but thothx.com.  Interesting, because that’s kind of like the suffix of another space company.

IP Troll Tracker

Anyway, all I did (she said innocently, while batting her eyes) is retweet it which caught the attention of my colleague Nick Gross.  The reply tweets that ensued are referenced below, and as you can see it escalated quickly:


I’ll not post the rest of the exchange because male posturing ensued and we all know that means denigrating each other’s…colleges.  There was jail time mentioned, federal crimes, it got kinda ugly and all over what?  The fact that companies sometimes patent stuff they never intend to build.

Why might a company do that, you ask?  Well, there’s the option that Intellectual Ventures takes, which is to patent stuff so they can go sue people.  I wondered to myself if that’s what Thoth had in mind…maybe they should patent their technology because Space Tube Elevator Lift Kit technology is sure to be a hot thing these days and they had better protect their “innovation” lest someone beat them to the atmosphere.

I expected to come up with a goose egg when I search for competition on this particular space race, but low and behold it seems that building a a giant corrugated tube up to the sky is, indeed, a “thing”, as this Kickstarter intimates.  Then there’s this page, which is straight out of 1990, but talks nonetheless about a space elevator.  There were a few others, enough to make me think that maybe this was a defensive patenting move.

Maybe it’s a licensing play?  Patent the technology, never intending to build such an unwieldy beast, and just license it to others to fund your existing products (none of which, by the way, are on anywhere near this scale)?

The point of the argument on Twitter was that Thoth did indeed secure funding to build, though strangely the article linked by @JNGross only talks about how much it would cost, not the source of the money, so that meant that they weren’t just another company patenting something for the other reasons I listed above. And OK, you have a point there, but seriously?  You’re going to blow someone else’s $5-10 Billion on a 30% reduction in rocket fuel costs and possible gains in efficiency?

I’m not a rocket scientist because I didn’t go to CalTech or MIT, but good golly, Miss Molly…that’s a pretty low ROI.



{Church lady meme found here, and obviously ©SNL}

I Know Who The Pixelated-Faced Troll Victim Is (Probably)

Do you get into debates on LinkedIn?  I kinda do, but then again I tend to get into debates everywhere I go.  You should see me at the grocery store, what with the whole “paper or plastic” nonsense.  Seriously?  JUST.GIVE.ME.A.BAG.

Anyway, this morning my frienemy Paul Morinville posted a link to a story about a man who’s company was shut down by a patent troll, despite not believing that patent trolls exist.  He did a cursory search and found that the individual in the article didn’t even own a patent (!) and therefore could not have been sued for it (!!) which means he is obviously a liar and his pants are certainly aflame (!!!). Not being one to take anyone’s Paul’s word for anything it, I did a little searching of my own and would you believe it?  I came up with a completely different result.

I’ll pause while you recover from that revelation.

The article that was posted was this one, about a man named David Bloom.  He co-founded a technology start up called Ordrx (probably pronounced “Order X”, and not “OR-drix”, like I originally said it in my head) and the software centered around the restaurant business and the electronic ordering process.  Or something like that.

It’s not relevant anymore because he’s out of business on account of patent trolls. What was so interesting is that those who think patent trolls aren’t a problem immediately dismissed this man’s case because he didn’t have one.  There was no lawsuit filed, and that meant “Hey, dude, what’re you barking about?  Like, you didn’t even get sued, maaaan!  Why don’t you grow up and quit whining already?”

banner big lebowski copy

Update, 5:57 pm CDT:  Of course there was a lawsuit, I missed that when I read the article the first time.  While some still wish to believe there weren’t, it is clear that OrdrX (dba Ordr In) was sued in the S. District of California, by the patent-holder’s own admission in a press release because why not brag about being a troll?  So while I was wrong to say that David Bloom didn’t say he was sued, Paul, et al were wrong to say that he wasn’t sued.  But for different reasons.  I think?  Anyway, he was sued just like he said he was.

Further, Paul and his minions were all “I can’t even find a patent!”  Really?  Because I did, and it took all of three searches.  I found this link on the Application Developer’s Alliance which led me to this link on something called trollfighters.com (note to self: that would have been a good domain to go ahead and buy) where it appears that Mr. Brown is, in fact, the pixel-headed CEO who was so worried about other companies trying to troll him that he refused to even show his face.

Not only couldn’t they find the patent that I found, they claimed the whole thing was a lie because he said he got sued (he never said that he totally said that) and he didn’t get actually sued (again, he never said that OK fine, he did say he was hit with a “frivolous lawsuit”) because if he got sued then where’s the lawsuit????

What actually happened, for those of us who read the article, was that he was forced out of business on account of the threat of a suit from a patent troll. Patent litigation defense costs a lot of money.  How much will always be in dispute, but it doesn’t matter because when you’re starting your own company, anything not related to your business that costs you more than $50 is “a lot”.  Patent infringement litigation defense usually costs more than $50.  I feel very safe in asserting that fact.

The dissenters also claimed that if a (non-existent) patent troll was coming after them and they were Google-backed, why wouldn’t Teh Googs just swoop in and lay waste to the (non-existent) troll?  Yeah, it doesn’t work that way.  First of all, I don’t think they were Google-backed so much as they participated in a start-up contest that was sponsored by Google.  Not quite the same thing, even in the made-up land where Paul lives and the trolls don’t exist.

Second of all, Google would rather shutter the venture than try and fend off the lawsuit, unless the Ordrx software were already pulling in mountains of money.  It’s the only sensible thing to do unless you’re a badass like Lee Cheng or Drew Curtis or Todd Moore and make the call to fight the good fight every time someone brings it to you. What kills me is the speed with which the “trolls don’t exist” camp went after David Bloom without even a quick search.  All they did was look for a patent in his name and a lawsuit, both of which couldn’t be found.

What’s so funny is, finding out the details didn’t even take me that long, I did it while on hold waiting for an online class to start because multitasking is my specialty. I’m glad I did though, because it solved an age-old mystery for me, which is “who was that pixelated man?”


Tell me I’m right, David.



Side note:  In the Twitter exchange that followed the LinkedIn debate, it was mentioned that I may be a paid shill for lobbying groups.  If nothing else is clear, let it this be: I write this blog for me and for those who are taken advantage of by the black hat, bad-guy, patent-wielding thugs who go after people for infringement just because they can.  I do not take anything from anyone for it.  Not a single penny, from a single person.  #independent

{Big Lebowski image found here. Pixelated image found here. David Bloom image found here.}

More Preposterous Patent Pending Poppycock

Just a little Monday morning frivolity for you…

It’s bad enough that L’Oreal just assumed that women would buy their cosmetics because of Patent Pending stamp (they won’t), but now I’m seeing those words virtually everywhere I look. It’s kind of like when you buy a new car and think you’re all that and a bag of chips because it’s not really a popular model, and then you look around and you see tons of them, and usually in cooler colors/trim lines than the one you bought.  Not that this just happened to me.  But whatever.

Officially, the term for that type of thing is the Baader-Meinhof Phenomenon.  You’re welcome.  Unofficially, it’s called “people patent stupid stuff, and the USPTO lets them”.

Last Christmas, I gave you my heart bought a puppy.  He’s a silver lab, and you can argue all you want that they are or are not an “official” breed but then you can go right ahead and stuff your arguments in a sack, Mister, because I don’t give a rat’s.  Robert DeNiro is awesome and I love him.  He has two sets of identical plumbing (inside and out, which is super fun to explain to children as we walk him around the neighborhood), an extra vertebrae where his tail connects to his rumpus, and a head that is so huge it almost needs its own zip code.  He also has to wear diapers in the house as a result of some other anatomical malformations, and I’m totally fine with the extra $200/month expense because can you even believe how adorable this guy is??


Robert DeNiro, silver lab, at your service.

My fellow dog-lovers will understand that with the puppy comes all the puppy stuff, one item of which is a container to hold RobbieD’s dry food.  I bought this one from a company called Gamma2, and just this morning noticed something on the scoop that comes with it:

Scoop copy

What you are seeing here is a measuring cup with a handle.  How, on any planet anywhere, is that patentable?  You can’t throw a dead cat without hitting something similar-looking.  I mean, honestly.

Besides which, dog owners care less about patent pending food scoops than women care about patent pending cosmetics because all we really care about is “will it make me look younger?”, yes or no?  That’s not women-bashing is it because OMG do I not want to get on the bad side of either Katy Perry or Taylor Swift.  But seriously…I have a dog, I feed it.  Why does it need a patented scoop from which to have its food dispensed?

That’s right, it doesn’t.

Which proves unequivocally that the entire patent system is a mess and in need of serious fixing.

There.  I said it and I’m glad.


{All images mine.  For once.}






Xerox Takes A Page From Dr. Seuss And Creates A Nonsensical Entity

Remember when we talked about privateering?  About how older, establish companies start selling off their near-expiration patents to third party companies who commence to trolling for dollars with them?  No?  How’s about taking a quick trip down memory lane here.

{Hums Jeopardy theme in head.}

All set?

There’s a new character in town, and unlike the adorable emotions in that really cool Pixar movie that totally made me cry because I was also moved across country at the age of 11 and only processed the associated emotions while sitting in a theater of other 40 30-something women trying not to ugly cry in front of their kids, this new character is a hideous, horrible beast wreaking havoc on insurance companies and airlines and financial institutions.  And let me just say this:  you know I hate patent trolls when I am on the side of an insurance company because I think they are all pretty much the spawn of Satan.

The company’s name is Loramax, and one cannot help but picture this:


Isn’t he cute?  He is.  The company?  Not so much.  They’ve filed over 50 lawsuits since being assigned two patents from Xerox on May 4.  Which is really and truly my birthday so not only May the Fourth be with me, but May Xerox Be Damned For Privateering.

You know that Quarterly Troll Report I do, the links to previous issues of which are off to the right in the side bar?  The one for Q3 2015 is going out the first week of August and Loramax LLC is the “Troll of the Quarter”.  Boy, has it been interesting reading up on them.  And by interesting I mean I had to wash my eyes out with soap after reading about how blatantly they’re abusing sad, old patents.

Which is, by the way, one of the tests for whether or not a Non-Practicing Entity (NPE) is a troll (from the definition here):

2/ A company set up to act as a cover for large corporations who try to breathe new life into older patents which they would ordinarily let expire but, as a result of greed and/or pressure from Wall Street, have decided are ripe for assertion or litigation.

Someone I used to know had a saying:

“If you can’t Xerox it, it doesn’t exist.”

With the advent of the personal home computer and printers and email, it’s much less applicable in 2015.  It’s just sad that a once-great company with a name synonymous with “photo copying” has gone the Lora(ma)x route.

Which is kind of ironic, because The Lorax is about conservation and keeping the earth from being depleted.  I guess in a way, Xerox is doing just that:  preventing its financial coffers from being depleted by abusing the patent system.



{Adorable, original Lorax image found here.}

Trolls Are A Nightmare Dressed Like A…Nightmare

Timing, as they say, is everything.  Following the CBM (covered business methods) challenge between Versata and SAP and their trial verdict is like watching Memento.  Did this happen?  Will it have happened?  Did it going to happen?  Man, my head’s spinning and it’s not even cocktail hour.

IPTT - Casamigos Tequila

Best tequila ever, no matter what you mix it with. Disclaimer: Will not make you look like Rande Gerber, Cindy Crawford, George Clooney, or Amal Alamuddin. Sorry.

Basically what we have here is a patent having been found infringed and then subsequently having been found lacking validity on a few claims.  But because of the order of operations, the infringement verdict stuck.

Let’s bust out the crayons and draw a picture, shall we?


If we take that PTAB challenge and move it back a bit, we are probably golden.


Now, I would argue that if you take the challenge back even further to, say, when you receive a demand letter, you’ll have even more success.  This is the stick I’ve been saying we should beat trolls with for almost four years now.  While they will never tell you what claims you’re infringing, you can do some homework on the patent work and towards IPR or a petition for a covered business method review.  Kill the patent before they come after you in earnest.

The Versata v. SAP case is being compared to another case where the infringement judgment was put aside because the patent was found invalid.  (I’m over simplifying, but that’s the gist of it.)  The issue was the timing and here’s the key takeaway:

For patent litigation where the district court does not stay the case in favor of an AIA trial, the Versata and Fresenius decisions may mean that depending on the speed of the litigation and the ultimate entry of judgment, a finding of unpatentability in an AIA trial may or may not trump a district court’s finding of patent validity.

(Emphasis mine.)

There’s your way around the PTAB/CBMR:  Judges, who are sometimes partial to trolls, rush the cases through and enter the judgement.   Then it doesn’t matter if the patent is subsequently invalidated, the judgment will stick.

Future litigation with the patent is moot, but that suddenly no longer matters when you’re sitting on $391 Million, now does it?



{Incredibly delicious looking Casamigos tequila cocktail, which I’ve been drinking for months now and still don’t look like Cindy Crawford, dammit,   found here.}




Justice Antonin Scalia Said What From The SCOTUS Bench??

“Patent trolls”, that’s what he said.

Scalia Patent Troll


Saw this blurb the other day via a post from a colleague on LinkedIn, which is sadly where I get some of my news when I’m in a hurry.  In Commil USA LLC v. Cisco, Justice Scalia had this to say, right there on page 20 in his dissenting opinion:

I may add, however, that if the desirability of the rule we adopt were a proper consideration, it is by no means clear that the Court’s holding, which increases the in terrorem power of patent trolls, is preferable. The Court seemingly acknowledges that consequence in Part III of its opinion.


(Emphasis mine.) It’s a two-fer, folks!  Not only did Scalia acknowledge such a beast as a patent troll, but threw in my second-most favorite Latin phrase of all time, in terrorem which means “into or about fear”.

Spot on.  Fear is what patent trolls are all about.  They willfully, intentionally, and on purpose induce fear in demand letter recipients by requiring a payout in the form of a license or else they’ll sue you.  But it’s also about the trolls themselves being afraid…I’m involved behind the scenes right now in a bit of a situation with a company that is going after competitors with patents out of fear that their product isn’t quite as good as they think it is.  Don’t feel like competing on the open market?  Worried your invention might not actually be all that and a bag of chips?  Sue people for patent infringement and hope they go away!  It’s frightening and infuriating, especially if you’re the target.

I’m sorry I missed the Twittersphere back and forth on this one because seriously, I AM?  You’re going with the tired “…but did he define what ‘patent troll’ means? Did he?  Huh, huh??  Did he??” line?  There are not enough eye rolls for that stupid, tired line.

meryl streep

Give it a rest on that, folks.  Patent trolls are real.  You know it, I know it, and at least one of the Supreme Court Justices of the United States knows it.  #legitimacy

Finally, I thought this (from the dissenting opinion) was pretty funny:

Next, the Court says that “invalidity is not a defense to infringement, it is a defense to liability.” Ante, at 11. That is an assertion, not an argument. Again, to infringe a patent is to invade the patentee’s right of exclusivity. An invalid patent confers no such right. How is it possible to interfere with rights that do not exist?

If a patent is invalid, you can’t infringe, proving that even the US Supreme Court has its own “Well, duh!” moments.

It also led me down an entire evening’s worth of study on argument vs. assertion and I missed 1/2 of America’s Got Talent with that little time suck, so thanks for that, Justice Scalia.



{Awesome Scalia image found here.  Meryl Streep eyeroll found here.}