SAWS? What SAWS? Nothing To See Here (Anymore), Folks…

In such a time as this, it helps to have a translator so that We The People can understand what just happened here.  Thankfully, IPTT is on the job with the PTT™ (Patent Troll Translator), which can be used not only to translate patent troll-speak, but USPTO-speak as well.

And here we go…

“Upon careful consideration, the USPTO has concluded that the SAWS program has only been marginally utilized and provides minimal benefit,” the post, which was published Monday night, reads.

Translation?

“By ‘marginally utilized’ we mean ‘arbitrarily utilized, depending on who offered to pay us the most’, and by ‘provides minimal benefit’, we mean ‘Oh, hell, you caught us!’

Further, upon being asked by Dennis Crouch (and probably others that it’s too early in the morning for me to go dig up) to provide statistical data surrounding our Sensitive Application Warning System, we decided that we’d better kill it before FOIA makes us disclose even more information, that will make us look stupid at best and devious at worst.”

Here’s the beef:  the USPTO had a system that allowed the examiners to flag certain applications for extended review and they didn’t have to tell anyone they did it.  Eeps.  Here’s how the process is supposed to work:

Usually, when you submit a patent application, it requires the approval of one or two examiners who work with the office. Those applications can take anywhere from 22 to 29 months to be issued, depending on fees you pay to speed up the process or the lawyers you have representing you.

Emphasis mine.  Oh good grief.  Ms. Lee?  This is something you need to fix.  You shouldn’t be able to pay your way to the head of the line, and you need to have examiners who are lawyers so that they are on a level playing field with the people submitting the applications for the inventors.  I said all this once before after interviewing a former examiner.

“The patent office has a tremendous latitude in making these illegal practices, whether it’s by SAWS or other processes,” Hyatt told Yahoo Tech in January.

That’s not the 1/2 of it, if anything my interviewee has to say about it is true.  I’m really hoping that Michelle Lee is able to make some changes in the examination process for two reasons:

  1. It will improve the quality of patents.
  2. It will take that bat out of the hands of inventors who want to gripe that the process is the problem.

Because as for #2 right now, they’re right.

<digression>

Beyond the fact that the program wasn’t publicized and the people stuck in it may or may not have known (did they, can anyone confirm?), there’s this bit that sticks in my craw worse than line jumpers:

So, say you’re an inventor who has founded a startup. You’re waiting for your patent to be issued, so you can start your company. In fact, some of your funding may depend solely on your ability to secure the rights to that innovation. If you were placed in the SAWS program, you could be potentially dragged along for years. Meanwhile, you might lose funding or face additional competition.

WHY does funding depend on a patent being issued?  I can’t get over that.  If a patent is all you have, you need to rethink your pitch deck.  Besides which, to the point of that last sentence, competition is good!  We all get better by playing against someone who’s better than us, right Gene Quinn? I dunno, like I said about the Fuzzibunz lady: are you an entrepreneur or a patent-preneur?

</digression>

In the end, there’s two ways to look at the death of SAWS, the first being this quote by Kate Gaudry:

“This is a good indication that they’re willing to objectively step back and look at their programs and efforts, and listen to their stakeholders,” Kate Gaudry, an associate at Kilpatrick Townsend & Stockton LLP, told Yahoo Tech. “And change what needs to be changed.”

Um, okay.  Let’s see if Thomas Franklin, also of Kilpatrick Townsend has a better take:

“I’m not sure this is a win for transparency to say: you found this program so we’re shutting it down,” he told Yahoo Tech.

Yeah, the second one.

JustSayin_small_New

IPTT

 

 

Patents Haven’t Fostered Innovation For Years, Is How I Read This

I’m fond of saying that I hope to live long enough to go back and read everything I’ve favorited on Twitter.  That’s how I use the favorite button: to bookmark things so I’ll go back and read them when I have time.  Sometimes it’s because I actually agree with what was tweeted, but that’s not a solid guarantee.

This weekend I had time to peruse some stuff I’d bookmarked because it was cold and rainy which meant i couldn’t mow and weed the yard that’s looking pretty pathetic, virtually guaranteeing a letter from the Home Owner’s Association telling me I need to step up my landscaping game, and that’ll be a shame because then I’ll have to point out to them that it took 15 years to get a “No Soliciting” sign put up in my neighborhood and if they get 15 years to solve a problem then so do I.  #BecauseChildish

To the point (y’all know I always get there eventually), I read this Newsweek article about How Patents Kill Innovation And Hold Companies Back and was struck immediately by a couple of things:

1.  The citation of this article from 2012 by Lenny Kravetz that pointed out that “Over the past several years, the average popularity of patents has steadily declined among funded technology start-ups.” So we’ve known for almost three years then that arming yourself with a stable of patents didn’t equal success and/or innovation?

2.  Ditto this Michele Boldrin and David K. Levine study, put out the following year, which also indicates that it’s getting harder and harder to tie patents to actual innovation.  (I smell a trend, and it wasn’t started by the Stanford study.)  Tying them to litigation and lawyer incomes however, is not such a stretch.

I don’t understand why people are barking so loudly now about the Stanford study that says essentially the same thing?  Is it news, really?  Because it looks to me like a strikingly similar conclusion has already been reached.  Twice.

3.  This quote:

This brings us to IBM, which is such a patent hoarder it could inspire its own A&E TV show. The company recently announced that in 2014 it received arecord 7,534 patents, marking the 22nd straight year IBM has topped the list of most patents by a company. Over those 22 years, the company’s inventors have won more than 81,500 U.S. patents, swamping the total of any other company. Clearly, IBM spends a lot of time and resources seeking and securing patents, believing it’s the path to industry dominance.

Well played on the hoarder comment, lol.  Whenever I need inspiration to purge stuff from my house, which is almost never because I run a pretty tight ship, I watch a single episode and I’m spurred to give away anything that isn’t nailed down, living or not.

Mine

I disagree with the last sentence though…IBM may well spend time and resources building a patent arsenal, but it is it because they think it’s a path to industry dominance?  Or is it because they need a war chest to defend themselves, against trolls and other threats?  The best defense is a good offense, as they say.

4. Another quote:

And then some ancient patent circles back in the form of a troll with a bite—a patent that wouldn’t exist if nobody thought it was worth filing in the first place—and CEOs complain.

I don’t think troll patents “wouldn’t exist if nobody thought [they were] worth filing”.  I think in many cases they shouldn’t even have been issued in the first place, not least due in part to the issues with the USPTO examiner process.  Additionally, lawyers who excel at wordsmithing can go back and make any patent apply to any successful industry.  It’s what they are paid to do by patent troll companies who have no other way to be profitable but to sue other people.

I’m still not at the tipping point where we say patents are stupid and we shouldn’t even issue them anymore.  But despite the fact that the first words out of any of the Shark Tank mouths is “do you have a patent?”, thus perpetuating the now-dying notion that they equal innovation, I don’t think they’re serving the same purpose as originally intended: To promote the useful arts and sciences.

JustSayin_small_New

IPTT

{Pile of junk image found here?.}

The Dire Straits And Stanford Weigh In On Patent Trolls

Something about Stanford University says “totally legit” to me.  Why is that?  I’m not even sure, because I’m not a California college kinda gal.  It just seems like anything that comes out of that neck of the woods is a good thing, and the recent article about the US patent system is no exception.

Jeff John Roberts, who wins the prize for “Most First Names in a Row”, wrote a piece last week about the current state of patent affairs, and how patents actually do little to facilitate technology transfers, his comments based on a study done by a couple of Stanford guys.  In said study, they found out that patents purchased from trolls are old and useless and amounted to nothing more than a tax on innovation.

I’m not sure how this is news, because a while back I took the top 10 most litigated patents right out of the NPE Litigation playbook that Goodwin Proctor cooked up and did a little bit of Tableau magic on it:

Top10LitigatedPatents

I was stunned to find that the average age of those patents was over 11 years.  (Hint: I was totally not stunned.)  So, yeah, that part isn’t news, particularly when so many of the patents are technology-related and therefore they age at an accelerated rate.  One year in technology is like 15 years in any other industry, on account of how quickly things change.  I taught a class recently with a student who mentioned a Zip drive.  Zip.Drive.  Raise your hand if you even know what that is anymore, and then harken back to the days when it was the bees knees as it topped out at 750 megs of storage space.  OMG, I can now fit that on a thumb drive the size of my…thumb.

ZIP_Drive_100,_2

Connect it using a parallel port. Oh, for cute!!

 

But what is news, according to Jeff and the study, is that Universities are singing the same song, and just as badly out of tune:

The paper also notes that the same phenomenon, in which licensees pay money for nothing, is also pervasive when universities are the ones wielding the patents. Instead, as with the trolls, university patent deals rarely lead to meaningful tech transfer or innovation. The findings could have important implications at a time when more universities, including MIT and Boston University, are using decades-old patents to demand money from Apple and other big companies.

Dire Straits, IP Troll Tracker

What confuses me is why on earth Universities are allowed to patent any of the things anywayIt seems a little bit desperate for Universities to try and be hangers-on to the brilliance of their students and professors if their stated goal is to advance knowledge for its own sake.

It’s interesting though that they have the same track record that patent trolls do in terms of using old patents to extort new money from companies.  And here I used to argue that they were the purest form of NPE:  they weren’t trying to extort money!  They were simply taking all that Sheldon and Leonard-ish knowledge and selling it so as to fund more and more cool stuff and to further innovation.  Survey says?  Not so much, lesson learned.

This quote from the study is key to me, and it’s something that I want to say to all of the inventors on Twitter with whom I routinely engage on the idea of how to get paid for their innovation.

A critical factual assumption that underlies this debate is whether patent licensing is in fact a mechanism for technology transfer to the licensees and the creation of new products, or whether a request for a patent license is simply a means of collecting money in exchange for agreeing not to sue.

Inventors routinely claim that they can’t make any money off their invention without patent trolls (which many claim don’t exist, Paul Morinville I’m looking at you), willing to fight dirty to get them the royalties they deserve.  First of all, do you get those royalties?  Really?  Let’s take a look at another quote:

Further, studies suggest that such rewards are not flowing. In what economists are calling the “leaky bucket,” only an estimated 20% of the payments to NPEs get back to the original inventor or into internal research and development by the NPE.

Whether the troll is an NPE or a university, you’re not really going to get your money it would seem.  Just go read how Yale handles its patents.  They start out getting 50% of the royalties, though it does go down slightly on a sliding scale.  Blech, how is that of any good to an inventor?

That’s not the whole point of the article though, getting money for your invention.  The point is to answer the question, which I’ve paraphrased because I can, “Do patents further innovation anymore, or do they just cause the exchange of money from one company/individual to another, often under duress as in the case of patent trolls?”

Great question, given that the original intent of patents was, and I quote from the US Constitution, Article I, Section 8, Clause 8:

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

Is that even what patents are doing anymore?

Or are they just money for nothing?

JustSayin_small_New

IPTT

{Dire Straits image found here. Zip drive image found here.}

Dear Michelle Lee: I Hope You Win, Plus A Couple Of Things

Dear Michelle,

Happy Monday!  I listened with rapt attention to your interview at the Brookings Institution last Thursday the way some people listen to Taylor Swift.  I wrote quite a few things down, because I never read a book or listen to an interview without a pen and paper handy lest I forget something important, and plus my 9th grade English teacher Ms. Fritchey (oh, you betcha we had fun with that name and also? Sorry Ms. Fritchey) would kill me if I didn’t.  The first thing I wrote down was this:

Deputy Commissioner for Patent Quality coming from the ? Step in the right direction…

I wrote that down on paper and on Twitter because I think it’s such a great idea.  When I interviewed a patent examiner (Part I, Part II, and Part II), s/he said

While I was employed at the USPTO, there were two search systems, called East and West.  Examiners would choose which one they wanted to use.   These systems searched only the patent database.  Now days, most examiners use Google Patent Search, but again that searches only the universe of existing patents.

Prior art search then is 99% patent literature.  So that is a huge lesson learned after leaving…technical manuals and publications need to be searched too.

charlie_brown_thumb[3]

“Oh, brother!” is right.

Emphasis mine, and it speaks to the issue of patent quality directly because good googely woogely, how on earth can you know if an idea is unique if you don’t search in more than one place?  To say nothing of the fact that some people couldn’t come up with decent search terms if their very life depended on it.  I may know one or five of those people, who can’t even find an address for the nearest pizza shop because they search The Googles for something like “italian pie” or “round thing college kids like to eat” and may I suggest you don’t google that second one from a government computer?  I have my reasons.

Quality is a real issue, is what I’m saying, and only partly because the examiners themselves don’t have the tools to do the job.  While there are market solutions to this problem, like the studs at Article One Partners, don’t you think it’s time the USPTO upped its game a little on that front?  Clearly you do, which is why you suggested a Patent Quality Czar.  You can totally steal that title because between you and me, it’s way cooler than “Deputy Commissioner for Patent Quality”.

Not to belabor the point even though I’m totally going to, have you seen this?  Where Exxon has patented selling energy, because that’s never been done before and is a completely non-obvious idea?  This is exactly the sort of crap the PQC has to stop letting through.  His or her first job out to be to check out the flaws in SAWS:

Sensitive Application Warning System (SAWS) that is supposed to flag applications that if issued could be controversial and subject the USPTO to undesired calumny and scorn,

It is highly unlikely that the USPTO wishes to bring calumny and scorn upon itself, that first one especially, now that I looked it up and know what it means.  SAWS should have have flagged this application from the get go but it didn’t and someone needs to understand why.

If one of your goals is to reduce nuisance patent litigation, even if you don’t want to call out patent trolls by name, then I think requiring that patent examiners be attorneys is a good first step.  Maybe not all of them, but somewhere along the path to a patent there should be a step where an attorney for the USPTO goes head to head with the attorney for the inventor.  You need to two people who speak the same language talking before the patent is ever issued.  Lawyers for inventors have only one goal:  GET THE PATENT.  Maybe it’s a good goal and maybe the invention is awesome and patent-worthy.  Or?  Maybe the lawyer’s just a wordsmith and out-maneuvers the examiner with legalese and wears them down with all.the.words far too often.  Just a thought.

Finally, I heard you mention that there might be an event of some kind in the near future, maybe something akin to the Patent Stakeholders Meeting almost a year ago?   Having attended that event, might I make a suggestion or two?  Like, maybe bring in some hors d’oeuvres?  Cheese plate?  Cash bar?  On that last one, I’d like to heartily recommend the bartenders from Lincoln because can they make a 1931 Mai Tai or what?  

mai_tai

It’s 5 o’clock somewhere…

 

All kidding aside, it sounds like a great step forward to bring some stakeholders back in and reprint the road map.  The way to find out what people want and need, in this and any arena, is to actually talk to them.

I wish you the best of luck in the confirmation process, and hope that you’re able to accomplish all that you set out do!

JustSayin_small_New

IPTT

{Charlie Brown image found here, delicious Monday morning mai tai found here, complete with recipe.  You’re welcome.}

 

Sasquatch Makes A Friend In The Pacific Northwest

I hate to think of poor Sasquatch, tall and hairy as he is, spending his life all alone.  Everybody needs somebody sometimes, didn’t one of the old crooners sing about that back in the day?  Not my day, but in really old people days?

Well, old buddy, you’ve finally found your match, as it seems that the far less rare beast named Patent Troll has found his way to your neck of the woods.  Tim Wilson posted this link about it…here’s some more info:

Homebuilders in Washington say they are being inundated with letters claiming patent infringement for the simple process of using fans and dehumidifiers to dry out a home after it has been framed.

OK first of all, if you would build homes someplace where it didn’t rain all the time, you might not be in this predicament to begin with.  (I’ll pause while everyone who loves Seattle gets out their poisoned pen to write me a nasty letter.)

BigFootMap

Yes, Virginia, there is a Bigfoot Field Researchers Organization. No lie.

 

Nevertheless, there you are and you’re being targeting like so many before you by

…one large patent troll alone [who] has recently sent letters demanding payment to more than 16,000 businesses in the U.S. and 313 in Washington.

While there isn’t one litmus test to determine if someone is a troll even though Paul Morinville thinks I have one, this is a key element of trollish behavior:  lots of letters blanketing lots of businesses in lots of places.  That makes you a patent troll.

It’s not just the homemakers getting hit…

Mark Allen from the Washington State Association of Broadcasters said that in the 48 hours before his testimony [before the State legislature], more than a dozen small radio stations had received angry letters. Some had taken angry, threatening phone calls.

Emphasis mine.  This is where personality comes in.  Maybe it’s just a Southern thing, but don’t people understand that you get more flies with honey?  Oh, the irony.

I’d like to see the history on both the “drying out a home after framing” and “hard drive storage of music” patents.  What are the patent numbers? When were they issued, which goes back to my question on Twitter about the average age of a troll’s patents.  Lex Machina, where is my email with that data?  Kidding, I haven’t officially asked you for it BUT I AM ASKING NOW.  We can visualize that and fill in another piece of the puzzle.

Y’all know I’m not a fan of the government solving this problem.  I’ll tell you what I want to do about it after this last quote, because it succinctly isolates the issue with trolls:

“It’s that kind of legal threat that comes at small business that leaves them handcuffed, frustrated with what could be a legal exposure and what they’re going to do to try and run their business,” said Bill Stauffacher, a lobbyist for the Pacific Printing Industries Association during a House hearing on a bill aimed at curbing trolls.

Handcuffed is a good word.  Businesses are beholden to these kids of threats because they don’t realize that a letter is not a legally binding “thing”, for lack of a better term.  You are obligated to do exactly nothing if you receive a demand letter!  If we could put these letters someplace, like That Patent Tool, then instead of being worried it would turn into the inevitable lawsuit because Mr. Whiney-baby Troll didn’t get the reaction he was looking for, we could build a consortium of other recipients and come up with a collective defense!

If you have kids, then you’ve probably heard of the book What If Everybody Did That?  The basic premise is to teach kids that, look, if one of you leaves a piece of trash on the playground it’s not earth-shattering.  But if everybody did, you’d be playing in a landfill and that’s gross and unhygienic, not to mention it’s a crime to Mess With Texas.  We don’t do litter here, y’all.  Anyway, why not apply that same principle to demand letters?  If everyone who received one tracked it somewhere where everyone else could find it, it would open up the lines of communication and promote a common defense.

This sounds familiar so I’m sure I’ve said this before even if I do a horrible job of tagging my posts and can’t self-reference like I should.  If every single person who got a threatening letter refused to answer it, they’d have to up their game.  They’d have to make the decision to actually sue, rather than just threaten to.  Divide and conquer, folks.  You can’t fight a battle on a million fronts.  I’m sure I can come up with another platitude here but you see the point.  The way to stop these guys can be summed up in two words: Exposure and Collaboration.  Exposure to the patent, the demands, and the companies making them.  Collaboration among recipients in an effort to either fund a common defense if a lawsuit is eventually filed, or to prevent that in the first place by putting strategies in place on the back end.  Use exposure and collaboration to target the trolls.

patent_troll_target

 

I suspect those tracking Sasquatch have had their share of exposure when people pull the monkey suit off the guy in the forest that they snapped a fuzzy photo of, claiming it was the mythical beast.  Unlike Sasquatch, patent trolls are real.

Tracking demand letters is not the only defense, I get that.  But if those who have been hit by trolls would expose the details then maybe, just maybe, we could build out own Troll Field Researchers Organization, graph the information, hunt them all down, and rid the business landscape of this plague.

JustSayin_small_New

IPTT

{Sasquatch viz found here.  Troll image found here and edited (poorly) by yours truly.}

Patent Litigation Down, Everyone Cheers! Turn Down For Whaaat??

Like everyone else on the internet, I went there.  It’s the only non-Taylor Swift song I’ve downloaded all year and frankly, I stand unashamed to admit that.  She speaks to my late-teens, early 20’s angst like no other.

{Wait, did I type that out loud?}

There’s been a lot of talk about how “patent litigation is down and look here, …don’t you know that means the patent troll problem (that people have been saying doesn’t exist) is over like clover?”  But a) are the number of patent litigation suits really going down, and b) does it matter if they are and c) how can you people continue to say things like “Behold, the patent troll problem is a thing of the past!” and “There’s no such thing as a patent troll!” at the same time?

Jackie Chan Confused

What is wrong with you people?

 

Lex Machina came out with a report that patent litigation filings were down 40%.  To wit:

Plaintiffs filed 329 new federal patent cases in September 2014, a 40% decrease from the 549 cases filed in September 2013.

Dennis Crouch over at Patently-O and I AM reported the same thing, citing Lex’s numbers because why not?  A 40% reduction in patent filings sounds all nice-like.

But if we take a look at what Unified Patents says, they tell a different story:

The number of 2014 patent litigation filings approached 5000, the third highest count ever.  Patent suits have risen dramatically since 2010, disproportionately impacting some sectors and technologies.

Say whaaat?  If you go back and look at what Lex’s numbers are reporting, you see that they’re taking Sept 2013 filings compared to Sept 2014 filings and saying “Look y’all, that’s a 40% decrease!!”  If you understand The Mathematics at all (or have a calculator handy), you’ll see that using standard arithmetic, they’re correct.  But while it makes for a good headline that everyone and their uncle likes to repeat, is it giving the whole story?

Just because you have numbers and can graph them doesn’t make what you’re saying true.  If that were the case, then we need to all but insist that Miss America candidates be no more than about 12 years old, lest those hot-vapor murderers kill us all:

badcorrelation

The thing is, it doesn’t even matter.  Whole numbers are nice, but it doesn’t mean that patent trolls haven’t caused unknown damage to small business and large businesses alike.  We all know what ‘they’ say:  There’s lies, damn lies, and statistics.

As I pointed out on Twitter, it’s not so much the number of suits that’s problematic, it’s who sues who and what it costs to defend.  If there were only three patent troll lawsuits in a single year, but those lawsuits shut down three companies, if those three lawsuits cost hundreds of people their jobs because company owners were forced to deflect funds to lawyers (the only true winners in any litigation), would we be better or worse off?

You can work the numbers to reach any conclusion you want, but it won’t mean there isn’t a problem with rogue companies taking their “patent rights” to the extreme and abusing the system to beat down either the competition or the little guy, who are sometimes one and the same.

To quote one of my favorite Harrison Ford movies:

Sometimes I sing and dance around the house in my underwear. Doesn’t make me Madonna. Never will.

JustSayin_small_New

IPTT

{Jackie Chan confusion image found here.  Spurious correlation graph found here.}

People Hate Monsanto For Reasons Other Than Their Patent Litigation Policies?

Happy New Year, everyone!  It’s good to be back in the saddle, even if the first post of the year isn’t truly about patent troll litigation and isn’t nearly as long-winded as my normal posts because I used up all my words trying to train my new puppy to quit eating my house shoes.  Look, I gotta mix it up now and then.  That’s what I almost never always say.

I came across an InfoWars post about Monsanto and that’s when it hit me that there’s a whole subculture around fighting GMO (Genetically Modified Organism, for those like me who were all ‘whaaaat??‘) foods and our friends at Monsanto are all about that bass.  You and I, of course, know them because they beat up on poor Mr. Bowman a while back because he grew soybeans with seeds from their soybeans because OMG, what else are you supposed to do with seeds?

picard-facepalm

 

I get that InfoWars has a bit of a dodgy, ‘out there’ following sometimes, but either way, I love it when a patent bully, official troll by my definition or not, gets their comeuppance.  LOVE.IT.

In other news, if you’re going to be anywhere near Stockholm, Sweden in late March, come by and see me at Nordic IPR.  I’ll be there with bells on, quite possibly in the literal sense.  YOU DON’T WANT TO MISS IT!  Topics and teasers forthcoming.

Finally, I’m going to be putting out a survey on Wednesday and I hope anyone and everyone with a vested interest in patents takes it.  So watch for that as well.

Looking forward to another great year here and elsewhere!

JustSayin_small_New

IPTT

{Picard facepalm image found pretty much anywhere.  Seriously, you could throw a dead cat in any direction and hit that meme.}