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.}

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.



{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.



 {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?


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?




{Meme image found virtually everywhere on The Internets.}