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.

JustSayin_small_New

IPTT

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

The Kind Of Behavior That Only Cousins In Kentucky Should Get Away With

I would apologize to Kentuckians but, as I’ve mentioned before, I lived there for a time during my formative years so I’m allowed to pick on my one-time home state.  Also?  Drew Curtis, Patent Troll Slayer, for Governor.  Vote, y’all.

In another alarming chapter of the “saved from a troll by a troll” play book, Jump Rope misses the rope itself and jumps straight into bed with Erich Spangenberg.  Like Ditto before him, Mr. Braxton of Jump Rope found himself in the unfortunate position of having to take investment money from one of the founders of the business model that put his company in jeopardy to begin with.

It seems a little “Munchausen by proxy”-ish to create a problem and then try to rescue people from it, Erich.  It’s like marrying your cousin, which is only allowed, if I’m not mistaken, in Kentucky.

IP Troll Tracker

In reading a little more background to the story, it looks a lot like personality comes into play here, on the Smart Options side (Smart Options is the company that sued Mr. Braxton and Jump Rope).  It looks to me like what you have is a very small man, in mind if not in physical stature, who didn’t like that Braxton wouldn’t play.

“It’s not clear-cut whether our patents cover what Peter Braxton is doing,” [the attorney for Smart Options] said. “What’s clear-cut is that he chose to say ‘no’ to more than half a dozen reasonable relationships we laid out for him.”

First of all, “reasonable” is in the eye of the beholder so don’t make it out like you’re being generous.  Secondarily, as Braxton pointed out,

But why should Mr. Braxton strike any deal with Smart Options, given that a judge had found that his software didn’t infringe its patent?

(Emphasis mine.)  The answer is because, as we’ve seen over and over again with patent trolls, they want you to pay up (or just disappear, in another sick and twisted plot theme I’ll be exploring in the coming weeks) and won’t stop harassing you until you do.

I wonder what happens in a person’s life as children that they feel the need to throw their weight around as adults? What galls me the most is this white hat status that the likes of IP Nav are trying to throw around.

 

Here he comes to save the daaaayyy!!

Here he comes to save the daaaayyy!!

Whatever.  It’s opportunistic and you know it.  As Mike Masnick at TechDirt puts it:

The story tries to play this out like a “patent troll done good,” but it’s horrifying. It’s one patent troll beating up on a startup, and then allowing a second one to come in and vulture up the leftovers. It’s certainly not good for innovation in any way.

I feel for Mr. Braxton and for Kate Endress of Ditto who were so backed into a corner that they had to choose from two really bad options:  shutter the company or deal with the devil.

I’m not as convinced as Mike is that patent reform at the national level will take care of the problem without creating a bigger mess down the road.  But there has to be a better way than what just happened here.

JustSayin_small_New

IPTT

{Mullet-headed man meme found here.  Mighty Mouse image found, inexplicably, here. Base for Mighty Mouse/Spangenberg morph found here.}

UCLA Is Making Bad Choices, Someone Tell Its Mother

I don’t like to be a tattle tale, but someone needs to run this up the chain of command out there in La La land because UCLA is making a poor choice, and one poor choice leads to another and then the next thing you know they’re choosing rock music over easy listening and putting purchases on credit cards and driving over the speed limit and going to 6th street and…

Wait, what?

austin_sixth_street IP Troll Tracker

I’ve never been to 6th street and I’ll never go again.

 

UCLA has chosen our esteemed sous-to-be Chef Nathan Mhyrvold as its 2015 commencement speaker.

Nathan Myhrvold, an inventor, entrepreneur, author and UCLA alumnus, will be the keynote speaker for the UCLA College commencement ceremonies on Friday, June 12. He will speak at both the 2 p.m. and 7 p.m. ceremonies in Pauley Pavilion.

First of all, you missed an adjective or two.  It should read like this:

Nathan Myhrvold, an inventor, entrepreneur, author, patent troll, Sous Chef, and UCLA alumnus, will be the keynote speaker …

Also?  You spelled “renowned” wrong.  It’s “infamous”.

“Nathan exemplifies the unbounded spirit of a Bruin,” said Joseph Rudnick, senior dean of the UCLA College and dean of physical sciences

If by “unbounded spirit” you mean “boundary-less money monger spirit”, then OK.  What has he done to deserve such a place of honor among the alumni?  Behold:

Under his leadership, Intellectual Ventures manages one of the largest and fastest-growing intellectual property portfolios in the world, with more than 40,000 assets and over $6 billion in total committed capital from many of the world’s most innovative companies and renowned academic and research institutions.

I didn’t understand a word of that, but PTT™ did:

Under his leadership, Intellectual Ventures and its myriad subsidiaries has amassed one of the largest and fastest-growing collections of trollable patents in the world, with over $6 billion in total extorted capital from many of the world’s most innovative companies, some of whom can no longer afford to be in business because of the threat of lawsuits.  Also, he wants to be a chef.

(Sorry about that last sentence, sometimes PTT gets punchy on Mondays.)

The coolest thing about this is that at least one student on campus has heard of Mr. Mhyrvold’s goings on and took the opportunity to say “Duuude, we need to vet these speakers before y’all go off bringing in trolls and stuff.”  Or something like that.

What he actually said is spot on:

He is the cofounder [sic] of Intellectual Ventures, the worlds biggest “patent troll,” a company that exploits the loopholes in the patent-granting system by collecting patents and suing other companies, both big and small, hoping to get a piece of their revenue.

Welcome to the side with the white hats, Ari.

I only wish I had taken myself up on my dreams of attending UCLA so I could write a scathing letter to the Alumni Association, letting them know how I felt about this bad apple choice of a speaker.

JustSayin_small_New

IPTT

 {Image from 6th street from my personal collection here.}

L’Oreal “Patent Pending” Influence: Survey Says?

Yesterday, we learned that L’Oreal claims having “patent pending” on packaging influences women to buy more of their products, proving that they don’t understand patents or women.  They almost get a pass on that second one, because we don’t make it easy on men, do we?

crazy-women-bizarre-16

Anyway, maybe they didn’t claim that per se, but that’s the reason they gave for making their intellectual property lawyers file a crazy-stupid amount of patents each year.  I took their little hypothesis to the streets and graphed the results.  The data can get complicated at times, so I’ve explained each chart type for you so that the conclusion is clear (click image to load larger):

IP Troll Tracker

I have to wonder if L’Oreal did any sort of focus group study to determine if it actually mattered to real women if they were patenting their products?  Because what I knew in my heart of hearts, and what the survey results bear out, says “Nope, doesn’t matter at all.”

To recap:  you’re spending money on IP attorneys and USPTO fees and office action fees and clogging up the patent system for people with real things to patent and getting virtually nothing in return, except for a lawsuit from an attorney who thought the process was so ridiculous he quit doing it?

Awesome.

JustSayin_small_New

IPTT

{Meme image found virtually everywhere on The Internets.}

L’Oreal Understands Neither Women Nor Patents

I don’t wear much make up on a account of lazy, and the fact that, while I live in Texas now, my formative years were spent in Connecticut where girls are not taught from the age of six to slather foundation and eye shadow and mascara all over themselves before leaving the front door to retrieve the paper.  It just never became a habit for me, is what I’m saying.  But what I do do, on occasion, is color my hair at home and it’s always done using L’Oreal products because who doesn’t want to look like Heather Locklear?  I mean, if she’s worth it, certainly I am?

IP Troll Tracker

That said, I may have to abandon that ship and set sail for Camp Clairol because of the patent abomination I just read about.  According to a suit filed in New Jersey, L’Oreal decided that they’d require their IP attorneys to file a certain number of patents each year, not to promote the progress of science and useful arts, but so that customers would be persuaded to buy their products because of a “patent pending” stamp on them:

Steven Trzaska said in a complaint filed April 16 in Newark, New Jersey, that L’Oreal ordered him to apply for at least 40 patents last year to help fill a company-wide global quota of 500 applications. The company sought to post on its cosmetics packaging that the contents were “patent pending,” thus increasing their allure to consumers, according to the lawsuit.

L’Oreal?  Let me explain something to you…unless you’re a member of ChIPs or Lori Greiner, you don’t even know what a patent is, never mind what “pending” means, and how it applies to the tackle box of products you store under your bathroom sink.  Rather, you care that the boxed color will hide your grays, and that the skin products will magically erase all those summers you spent laying out on your friend Tiffany’s drive way, listening to Richard Marx and hoping one of the Carpenter boys would call so you could hang out and show off your incredible tan.  In addition to making a mockery of the patent system, you don’t even understand women.  #fail

I don’t have a problem with a cosmetics company wanting to innovate because I’m going to turn 45 pretty soon (May the 4th be with me!) and if I could make any of the crows feet around my eyes less noticeable?  Yes, please.  But taking your research and development and clogging up the USPTO with it is buffoonery.

Even as L’Oreal was pursuing quantity in patents, Trzaska claims the company had an internal initiative to improve the quality of its applications. A review by an outside organization had found “the vast majority of its inventions were of low or poor quality,” Trzaska said in the suit.

After the external review, researchers were submitting fewer pitches for potential applications, and more were getting rejected, Trzaska says. As a result, there were “urgent messages from top management” that the “global patent quotas were in danger of not being met.”

It sounds like L’Oreal IP attorneys took the external reviews to heart, yet inexplicably, the company retained the quota.  That seems…silly.  As does this:

The lawsuit claims he was fired “for his refusal to draft and file patent applications for proposed inventions which were not patentable” and for refusal to let his team members file such applications.

What?  He was fired because he refused to try and patent inventions that were not patentable. I really do hope that sentence is not part of any official legal response to Mr. Trzaska’s lawsuit because if so, someone needs to get their money back on that law degree.  And lots of someones at L’Oreal need to exam their motives…the real crime is abuse of Patent Law, not “failure to meet a quota”.

I honestly don’t know who should win this case because on the one hand, if your job is to hit a quota of patents and you don’t hit it, then the company should be able to fire you.  But on the other hand, if your company is asking you to do something hugely stupid and other people besides you have told them that and you’re just trying to follow the laws set forth by Article I, Section 8, Clause 8 of the US Constitution, should you really be able to be fired?  I very, very rarely wish I were an attorney but it would come in handy here because as a layman, I have no clue how this should end.

What I do know, however, is that L’Oreal’s policy highlights what I’ve been saying in pretty much every post.  People who want to do something will find a way to do it, law or no law.  Trolls want to extort money, so no matter how many laws you try and come up with to stop them, they’ll abuse the system again.  Here we have a case of a different kind of patent troll, a company who floods the system with applications hoping something will stick so that they can then try and dupe a bunch of women into buying their product for it’s magically delicious, patent-pending concoctions that will allow them to restore their youth.

Women, you know what makes you look like you’re 20?  Being 20.

L’Oreal?  You should be ashamed of yourselves.  I’m glad it’s getting harder for you to get patents and I hope you lose the lawsuit.

 

JustSayin_small_New

IPTT

{Heather Locklear image found here, because no way am I swiping a shot from a L’Oreal ad.  Have you even heard of how mean their lawyers can be?}

Choose To Chance The Rapids, Dare To Dance The Tide

No matter how I feel about his policy not to sell on iTunes, and I feel fairly strongly about it, you gotta love Garth Brooks.  Or at least the 58 bagillion people at the ACM Awards this past Sunday night do.

So.  Let’s just come right out with my point…the “podcasting patent” is no more.  I’m not quite sure how to feel about it because I never really saw Personal Audio as a troll (as evidenced here and here).  Why?  Well, chiefly because the company’s owner actually patented something himself rather than buying a patent on the open market for the sole purposes of extorting payments from (alleged) infringers, or, worse, purporting to be “inventor friendly” and convincing people to “innovate” for him and then monetizing whatever crap he can manage to patent out of the process.  You know, like Intellectual Ventures does.  Further, Mr. Logan spent his own money trying to commercialize the idea, something a troll would never do because the idea isn’t to add value of any kind, it’s to add volume to their wallets.

IP Troll Tracker

Joe Mullin puts it this way:

The history of Personal Audio dates to the late 1990s, when Jim Logan created a company seeking to create a kind of proto-iPod digital music player. But his company flopped. Years later, Logan turned to lawsuits to collect money from those investments. He sued companies over both the “episodic content” patent, as well as a separate patent, which Logan and his lawyers said covered playlists, that wrung verdicts or settlements from Samsung and Apple.

I’m not inside Mr. Logan’s head, but I’m imagining that it was less “turning to lawsuits to collect money from investments” as it was “Daaaang, those dudes are doing what I tried to do, and I even paid to patented the idea, and I think I’m owed something for my trailblazing.”  I love you anyway Joe, even though I disagree with you on this.

But as I said in prior posts on this topic, the issue for me in this particular case was never “should the patent have been issued”, it was “the patent was issued and I felt he had a right to assert it”.  Plus, I don’t have any first-hand knowledge that his tactics in trying to get licenses was trollish-like.  We’d know if it was, if anyone who received such a letter would be willing to upload it to That Patent Tool.  (HUGE HINT. PLEASE TAKE IT.)

I feel a little sheepish that it was EFF that took the patent down because I like those guys.  I was a total and complete bumbling idiot fangirl when I met Julie Samuels in person that one time.  I know, she’s not there anymore but she was when I met her and went all Kristen Bell and a Sloth.  In my mind, of course.

What would have saved us all this heartache would be if the USPTO actually did a better job of vetting patent applications and quit issuing stupid ones.  But there again, I’m not even sure this one qualifies as stupid, though the cases of prior art would seem that it was, at least in part, not non-obvious.  <— Double negative, FTW.  You’re welcome, Mrs. Fritchy my Junior English teacher.

Mr. Logan, through Personal Audio, chose to chance the rapids.  He patented an idea and tried to use it in a product in the market place using his own money, and then made an effort to capitalize when technology brought forth the right tools to make it all work.

And because I am incapable of not completing my lyric reference, he didn’t sit along the shoreline and say he was satisfied, he danced the tide until the music was stopped.

I had to get it out, y’all and now feel as though my next post must have quadruple the snark to offset the maudlin tone of this one!

JustSayin_small_New

IPTT

{Oh no you didn’t picture found here.}

Who Talked About The Law Of Unintended Consequences? Oh Yeah, Me.

Last Wednesday I had the honor of speaking (via Skype) at the Nordic IPR conference in Stockholm, Sweden. The title of my presentation was “Non-Practicing Entities and You: How To Define and Defend Against The Dark Arts”, which means that at any moment now J.K. Rowling will beat down my door, copyright infringement lawsuit in hand and I will be forced to charm her into not only not suing me for the use of her cool phrase but also persuade her to give me an autograph so that my kids will love me because y’all? I am totally not above bribing my offspring.

Wait, what was I saying?

Right, the presentation.  One of the points that I made was that there are a lot of different legislative solutions floating around in the US in an attempt to curb and/or eradicate the scourge of the Patent Troll.  Lest the EU fall victim to the same idea that the government is the best way to solve this issue (it isn’t), I wanted to point out one of the main reasons why:  The Law of Unintended Consequences.

Fresh off that opportunity, I read this article over yonder at Bloomberg and was so frightened that I had to actually cover my eyes for parts of it and read through my hands, similar to the way I watched Jurassic Park all those years ago because velociraptors.  {shudder} 

Sam-Neill-encounters-velo-001 IP Troll Tracker

MY WORST NIGHTMARE. (after patent trolls, obviously)

 

This is the part I’m talking about:

Taking advantage of new rules created by Congress three years ago, hedge funds have increasingly been filing challenges to pharmaceutical patents. Some may be angling for payouts to drop their claims, while others are shorting the stock, betting that the manufacturers’ shares will plummet.

Using the new Post Grant Review and Inter Partes Review procedures in the America Invents Act, hedge funds are extorting money from pharmaceutical companies by either filing or threatening to file for re-exam.  I’m no genius (I totally am) but I’m thinking that’s not quite what Smith and Leahy had in mind.  Looks like someone else thinks so too:

“When we developed these proceedings, we never thought people would use them this way, in an effort to move stock or as an investment vehicle,” said Bernard Knight, the former general counsel for the patent office, who was there when new rules for challenging patents were written.

This is the whole problem with making changes to laws to solve a very specific market problem. People/companies/lawyers will always find ways around whatever laws you put in their way.  Clearly, we can’t have no laws, that would be like living in back woods West Virginia.  (I can say that because I lived in West Virginia at one point time. That’s how that works, people.) The point though is that when you use the law to try and prevent one or two specific bad apples from playing the game, you end up with side effects that weren’t quite what you had in mind.  I mean, it’s right there in the article, for Pete’s sake:

The legislation had an unexpected consequence: Hedge funds, which didn’t have the right to challenge patents in court, now had a venue to bring such cases.

Giddyup.

Yes, we have been through this before. With the AIA.

 

These hedge funds are going around the court system straight to the PTAB (Patent Trial and Appeals Board) and using that process to get better deals. That’s pretty sick and twisted, no?  Or, as Hans Sauer, deputy general counsel for the Biotechnology Industry Organization, put it, “illustrative of something that’s out of kilter”.

“Out of kilter”??  Oh Hans, you diplomat, you.

This is the point I’m trying to make about legislation designed solely, or so it seems, to prevent patent trolling.  One of the points that I made in my conference presentation was that trolls are shifty and will find their way around whatever crafty laws you’re crafty enough to create.  The Hedge Fund Gods are already doing it with the last round of “necessary changes to patent law”, the AIA.

For those of you drafting new legislation, I’d ask simply: do we want to go back to that well to have more water thrown in our faces?

JustSayin_small_New

IPTT

{Scary dino pic found here. Slick beer/car chart found here.}