The Best Post on Patent Reform (Not Written By Me, I Mean)

For years now, people have been screaming for patent reform, most notably to help get rid of, or at least neuter, patent trolls.  But then as soon as that happens, we know it will be temporary because the trolls will invent “neuticals for trolls” (and patent it) and they’ll be hard at work all over again which is why I’ve never been a huge fan of letting the government fix a problem that they created to begin with.  I think the market is the best place to kick a troll’s ass and companies like Newegg are taking that to whole new levels and OMG how hard was it to write about patent reform, and an excellent blog post about it, before jumping on that bandwagon?  VERY HARD, that’s how.

whoopass IP Trolltracker

Can of Whoop Ass appearing courtesy of Newegg.

The post in question was written by one Florian Mueller and it had me hootin’ and hollerin’ and  fist pumping so hard throughout that I kid you not, my neighbor saw me through the window of my home-office and thought something was wrong, came over and rang my doorbell, set my silver labrador retriever off in a fit of barking, and cost me an hour of productivity while we all wound down.  Thanks for that, Florian.

There’s so much gold in this post I’m finding that even after sifting, my pan is full of the good stuff.  But I’ll start with this quote, because I think it’s genius:

In all those congressional hearings on patent reform that I watched, each and every politician repeated the mantra of the U.S. patent system being key to innovation and allegedly being the envy of the world, when the reality is that it’s the laughing stock of patent and industry professionals in the rest of the world.

First off, I’m not convinced that, anymore, the patent system is the key to innovation.  Why?  Because you can innovate without patents.  You can be successful, you can launch a product (with or without funding), you can win at life without a patent.  True story.

To continue the quote:

…and no one believes that U.S. juries are qualified to determine infringement and validity issues, no one has ever disagreed with me that the Federal Circuit is generally too patent-holder-friendly, and no one has ever disagreed with me that the quality of USPTO-granted patents is generally even lower than that of European patents.

Exactly.  I said the exact same thing in October of 2012 and again in December of 2013.   I’m not knocking Joey Bag-o-donuts.  I’m saying that patent law is tricky and sneaky and full of all kinds of techno-speak that finding a “jury of your peers” in that space would require visiting Stanford or Harvard or South Texas College of Law and plucking students out of the sessions in law school that deal with IP, not sending a letter in the mail to people who live within a ten mile radius of the court house in Marshall, Texas.

Courthouse_Marshall IP Trolltracker

So pretty. Too bad the shot didn’t include the ice skating rink that Samsung built. Zzzing!

Continuing, I want to put this quote on a sandwich board and wear it on Capital Hill (when it warms up, of course):

It must be said that the correlation between patents and innovation in a country is hardly a causation of patents promoting innovation, that patents increasingly serve as a substitute rather than an incentive for innovation, and that studies linking patents to innovation are often based on circular logic, considering each patent an innovation.

See statement above.  Patents NEQ Innovation.

The whole point of Mr. Mueller’s post is, after correctly identifying the problem, to point out ways to use the governmental process to fix what’s wrong.  I don’t agree with everything on his list because that would be way boring.  But I do think he’s got a couple of points that the dialogue should start addressing if we’re to solve the problem:

  1. Don’t blame it all on the trolls.  I blame a LOT on patent trolls (mostly global climate warming change because I can tell by looking that they’re the reason for all the snow this year), and I think the behavior of using patents in sneaky and underhanded ways is deplorable and I’ll keep writing about it until they’ve all gone the way of the horse and buggy.  But we can’t ignore the fact that the USPTO gave them the stick with which to beat that drum.
  2. One size does not fit all.  Different industries require different approaches to protecting intellectual property.  Realize that, and make the necessary changes to the law to account for it.
  3. Meritocracy.  So, I can’t really paraphrase what he said here because I can’t get the words to come out right.  But go read what he says in that section of his blog post, nod your head in agreement, and come back here and thank me for calling it out.  You’re welcome.

One thing I didn’t see on his list is venue reform.  As we all know, I’m not a fan of letting the government solve the problem of patent trolls per se.  To some, that’s what “patent reform” is, killing the likes of Intellectual Ventures and Uniloc, et al.  I don’t like that definition.  If we broaden it to include Florian’s list and add venue reform so that Marshall, Texas and the judges and claims construction experts and jurors who live there are taken down a notch or ten, then I’m all about that hashtag.

Creating the patents system didn’t happen overnight, and fixing it won’t happen that fast either.  Figuring out how to start the dialog that will yield the best results is half the battle, I think.

Thank you, Mr. Mueller, for articulating it so well.

JustSayin_small_New

IPTT

{Courthouse image found here.  Can of whoop-ass found on every pantry shelf in the state of Texas.}

 

 

Besides Which, Don’t You *Want* The Blades To Wear Out?

In the shot heard round the last remnant of beard-free men in the world, Gillette took a swipe at Dollar Shave Club using a patent as the bullet. Surprise, surprise! A patent being used as a weapon to beat down the competition.

Gillette? Despite my dependance on the Fusion (the men’s version, at that, but don’t tell Gloria Steinem) razor and blades, you disappoint. You’re a stalwart, a centuries-old American Icon. When an upstart challenged your delivery model and offered a product that may or may not actually be better than yours in a more convenient way, you came out swinging with a patent-bat rather than hunker down and focus on the real problem: disruption.

kennedy_terry2, IP Troll Tracker

Here’s where I reveal my love for baseball, in the form of Terry Kennedy, former catcher for the San Diego Padres and San Francisco Giants. Took me four years to work this in, so I hope you appreciate it.  (You do get it, right?  Batter? Bat? Patent-bat?)

 

Yeah, I went there with the 2015 Word of the Year because the year’s almost over and I want to get a piece of that action.

The rub is over blades that have a coating on them, a patent for which was issued in 2004, that prevents the blades from getting dull as quickly. Now, I’m no razor mogul and I don’t even have an MBA, but I use razors and know that when one gets dull, I have to go buy more. Putting a coating on the end of a razor to make it last longer actually seems counter-productive to the whole “sell them the refill razors” philosphy, or am I missing something?

That notwithstanding, now Dollar Shave Club has to stop what it’s doing and fight a patent war. The idea on Gillette’s end is to slow DSC’s roll until their own “day late and a dollar (snicker) short” entry into the razor delivery club takes off.

To wit:

“But here’s the rub: Gillette launched a subscription service last year that took direct aim at Dollar Shave Club and largely replicated its business model. While online retailers like Amazon and Target have offered subscriptions to Gillette’s disposable razors for years, the brand took a long time to launch its own product and lost considerable market share to rivals like Dollar Shave Club and Harry’s.”

So the 400 lb gorilla on the block got beat at its own game by an upstart and they don’t like it. Fair enough. No one likes a copycat. But you know what people like even less? A 400 lb gorilla that stamps its feet and holds its breath until it gets its way.

Jill Greenberg, IP Troll Tracker

Image copyright Jill Greenberg.

 

What I also don’t get is this: do the razors offered through the subscription service differ substantially from what I am buying in the store? Why couldn’t I just put a standing re-order in for the blades I’m already buying and have them delivered to me every X months? I’m failing to understand why Gillette couldn’t have done what DSC did, sooner and better.

Oh, wait.

DSC has Michael Dubin and Gillette has…I dunno. And that’s the issue. People love funny and viral and goofy CEOs who clown around hawking their product. Hipster doofuses, of which there are a veritable plethora these days, identify way more with those types of antics than they do with an old American company that is the same one their decidedly non-hipster doofus Dads used. Personality matters, folks.

No, I am not calling Gillette a troll, Paul. But they’re acting awfully trollish by going after the competition like this. As if we all can’t see what’s going on here, right?

C’mon, Gillette. You’re better than that.

JustSayin_small_New

IPTT

{Image of a young Terry Kennedy found here, whiney baby image from Jill Greenberg, found here}

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!

JustSayin_small_New

IPTT

…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):

OriginalTweet_Thoth

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:

ReplyTweets_Thoth

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.

JustSayin_small_New

IPTT

{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?”

DavidBloom_PixelGuy_new

Tell me I’m right, David.

JustSayin_small_New

IPTT

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??

Mar252015_4275

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.

JustSayin_small_New

{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:

lorax_2

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.

JustSayin_small_New

IPTT

{Adorable, original Lorax image found here.}