When a Troll Isn’t Necessarily (A Troll, That Is)

My friend and yours Zach Walton  has just posted an article about Windows 8 and how it’s “bringing out the trolls“.  Only here’s the thing…those of you who know me (Charles Arthur, this means you) know that I hate hate hate patent trolls.  If the question were ever posed to me in one of those standard survey formats where you have to choose on a scale of “Like Them Tremendously” down to “Strongly Dislike Them”, patent trolls would have me writing in a vote of “Very Strongly Dislike Them A Whole Lot”.  So if I have a chance to call one out and dump on them, by God I’m not missing out.

But here we’re in a bit of a gray area.  Which reminds me of a quote from one of the best movies ever  besides Star Wars which has incidentally been completely ruined by the sale of Lucasfilm to Disney. George?  WHAT WERE YOU THINKING?  At least you had the foresight to put Kathleen Kennedy – no relation – in charge of branding.  Anyway, the quote is:

FLETCH I have pictures of him. Dealing….

WALKER So let’s go! We run the pictures.

FLETCH He’s not the story! There’s a source behind him.

WALKER Who?

FLETCH Well, there we’re in a bit of a gray area.

WALKER How gray?

FLETCH Charcoal.

Are these guys trolls?  We’re in charcoal territory here…let’s don’t just toss that name out willy nilly, as it sullies the term and makes it less of a biting commentary on the real thing if it’s used inappropriately.  It looks like these guys have a decent patent, though it also looks like they haven’t brought an OS to market using the concept.  So in that respect, they meet the partial definition of a troll, something closer to the Non-Practicing Entity end of the range, I’d say.

True trolls sue repeatedly.  A quick search of my emails from PriorSmart  yields exactly one result for SurfCast, and that’s this suit.  One lawsuit against one company over a patent that seems valid does not a troll make.

What else you got on them, Zach?  Bring it on!

Just sayin’,

IPTT

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Top 5 Things Learned at the Article One Partners Webinar

This past Wednesday, Article One Partners hosted a webinar to introduce themselves to the European market.  I attended the one back in July and it was awesome so I was really looking forward to this one too.

The best thing about their online info sessions is the interaction…you can type in a question or comment to the host and people?  They actually read them.  Out loud.  To the whole audience.  VERY COOL.  Not always out loud, I mean, I’m sure they get far more questions than they can answer in the time allotted but the fact that they answer any of them (and in particular, because they answered mine!) makes you feel part of the party.  And I do love me a party, particularly a patent-related one.

As is always the case when you sign up for these things, you hope to learn something that you didn’t know before.  In my case, I learned five somethings, and here they are:

  1. AOP has about 25,000 registered researchers.  That’s about 24,950 more than I imagine the average patent research company has.  You’re getting your money’s worth here.
  2. Over half the researchers have an advanced degree of some kind (master’s or Ph. D., etc.)  These are some seriously educated folks (she says, as she sheepishly looks at her BBA on the wall.)
  3. The impact of non-patent literature is significant.  This one actually didn’t surprise me as much…if you look at the state of the patent system, why on earth would you look inside it?  It’s a mess.  It makes sense that out in the big, bad world itself is where you’re going to find prior art.  I thought it was neat that one study found something interesting in I think it was a product manual?  Do people actually read those things?  Evidently, AOP people do.
  4. They use a tiered offering.  You can pay for a full-on, all 25,000 hands on deck search, a smaller search, or a mini-search.  And the service names are pleasantly intimidating, too:  CrowdForce, MicroForce, and ExpertForce.   I’ve learned a little about the Use of Force Continuum from my ex-military husband and the first step is officer presence.  Or, you know, the use of the word “force”.  Not an accident, I’m sure.  Well played, AOP product namer people, well played!
  5. AOP is used for “gold-plating”.  I love that term, I’ve used it about 25 times since the webinar and I’m sure it made sense less often than I intended, but whatever.  It’s a cool term.  What it means for a company using AOP  is two things:  a) If the whole world, or at least 25,000 highly-educated members of it, can’t find prior art then it probably doesn’t exist and b) Look out!  We are using AOP so we’re fixin’ to give you the beat down in your little patent infringement suit there, Mr. Troll.

One bonus thing I learned is that you should mute your phone when on the call.  As the slide about the different offerings came up, I hollered out loud “Slickest thing ever”.  As God is my witness, I swear to you the host asked if someone had a question.  O.M.G., she heard me.

Never found a mute button on a phone so fast in entire my life.

Just sayin’,

IPTT

The Patent Bully Pulpit, James Dyson Need Not Apply

When last we left our hero, I had commented on an article by Charles Arthur (Hi Charles!) regarding the plethora of words required to explain the Smart Phone Patent Wars.  Charles volleyed with “DON’T FORGET JAMES DYSON, YOU BIG FAIL, YOU.  HE DOESN’T USE PATENTS AS A BULLY PULPIT!!”  and I returned fire with “Dude, I’m in America and I’m too tired to reply right now but James Dyson wasn’t who I was talking about.  So I’m going to ask that your “Fail” comment bounce off of me and stick onto you because I’m rubber and you’re glue.  And also I’m secretly a 10 yr old schoolyard bully.”

Short version reply:   Dyson doesn’t factor into the equation at all, as my comments and 17-word “Smart Phone Patent War manifesto” applied only to, as luck would have it, Smart Phone Patent Wars.  If you read that out loud, it doesn’t sound at all like “Bagless Cyclonic-action Vacuum Cleaner Wars”, even taking into account the differences between a British and a Texas accent.

But if we’re meant to take your comment in the spirit of the law rather than the letter, I do see your point that not everyone who sues over patent infringement is a) a troll and b) wrong to do so.  I have thus prepared a long version reply which commences starting…now!

Ah, James Dyson.  Can I be honest with you?  I mean, the vacuums suck really well, but the cord on the DC 24 is maddeningly too short.  Also?  The parts are made of “liquid steel”, which is to say “plastic”.  Not good for long-term use, in my home anyway.  Now, I will say that in comparison to the 24, DC 41 Animal is a different, ahem, animal.  I love that thing like I love my Dove chocolates.  But this isn’t really about vacuums, right?  I digress…

I took a moment to consult Dr. Google and came across a fair amount about Mr. Dyson.  First of all, does he give his brother a royalty on every Dyson Ball that he sells, since the idea to use a ball-shape was his, albeit for a different product?  I always find it interesting when people get all patent-y with their inventions but don’t talk about how much their ideas and “ah HA!” moments have borrowed from other people’s ideas.  Not a criticism necessarily, but it just doesn’t seem completely honest.

In that same spirit of honesty, I will admit to not having done a ton of research on who Mr.Dyson has sued and the validity of his patents.  What I did read led me to believe that he is a serial inventor and when he hit upon the Dyson Bagless Vacuum, it became his Holy Grail.  At that,  it took him a long time to go from the design of a vacuum that wouldn’t lose suction to a product that someone would actually manufacture.  Ten years, if his Wikipedia entry is to be believed.   I think Dyson vacuums are a slick product and I think that’s why people buy them.  They like the story that underdog Mr. Dyson was the first to bring this technology to market and all the other people who do anything remotely similar are charlatans who built off of his ideas (and didn’t! pay! him! for! the! privilege!).  Plus, let’s face it:  Pink.  Not Pink, but pink vacuums.  Sheer genius to the overworked Mom who just wants a little pretty in her domestic life, lol!

So whilst Dyson is indeed an example of maybe perhaps someone who might have grounds to sue over a particular technology and it’s practical application, again, he was not the target of my 17 words.  John Chambers actually put it a little better than I did, and used even fewer words:

He didn’t name names, but, speaking to the audience, he said for “his peers” in the room, “you shouldn’t be suing your peers.”

That’s six words, to my 17:  You shouldn’t be suing your peers.

So by my count we have serve, volley, return volley.  Your ball, Mr. Arthur!

Just sayin’,

IPTT

4,422 vs. 17: I Win!

Charles Arthur (Hi Charles!) has written a primer on the Smartphone Patent Wars.  Being the child of an accountant*, it was a foregone conclusion that I was going to cut and paste his blog entry into MS Word and get a word count. I wanted to see how many words it took him to explain the situation.  Here you  go:

Charles Arther Smartphone Patent War Primer

That’s 4,422 words to get people up to speed on what is basically a 17-word problem.  To wit:

People are greedy, think life is a zero-sum game, and use patents as a bully pulpit.

See how simple it is to just tell the truth?  That’s what’s really going on here.  Rather than focus on making their phones the best they can be, these companies spend shareholder’s money playing a schoolyard game of Red Rover, Red Rover, Send the Next Infringer Over.  The whole industry is clotheslining itself.  Or have you not seen this graphic?

It just seems patently () absurd for these guys to keep going at it.  Surely there’s a way to call a truce?  Even if not in the entirety of the patent space, at least in this one segment of it you’d think the pie was large enough for everyone to get a piece.  You can’t throw a dead cat without hitting someone with a cell phone, and those who don’t have one soon will.  Is there not enough to go around that you guys have to go at it tooth and nail over every little thing?  Geez o Pete.

Seventeen words, people, 17 words.

Just sayin’,

IPTT

* My father is such an accountant that he created a spreadsheet to track the license plates that he saw from different states on a cross country road trip.  Each state was a row and every time he saw a plate from a particular state, he’d increment the number by one.  My folks take this same trip numerous times a year, and he keeps a log of the states’ plates that he sees.  Why?  Accountants account for things.  Like license plates on other people’s cars and what state they were issued in.  Someday, I’m going to take that sheet and make charts and graphs and put them on t-shirts to sell to all his grandkids.

Ross Perot’s Giant Sucking Sound, Redux

First of all, Lodsys, are you bragging?  Are you intentionally trying to be obnoxious for attention?**

As of October 8, 2012, there are greater than 150 companies which obtained the rights to use the Lodsys Group patent portfolio, and more than 4 out of 5 of these companies have entered into licenses outside of the litigation process. These companies have realized significant savings by taking advantage of lower licensing rates. Lodsys Group has engaged the firm, IPMG AG to conduct a non-litigation licensing program.

Allow me to translate:

As of October 8, 2012, there are greater than 150 companies which we have bullied into purchasing rights to our patent portfolio, which we own for the sole purpose of harassing people.  Also?  More than 4 out of 5 of these companies have entered into licenses outside of the litigation process, because they were too small to mount a defense against us. These companies have realized that we are not going away and that the price of licensing is only slightly less than the price of litigating against us so either way they lose, but at least they will lose less if they take a license.  Lodsys Group has engaged the firm, (<– See how I left that comma splice in there?  You’re welcome.) IPMG AG to conduct our continued shake downs.

{shakes head} One of many negative effects of this kind of harassment and bullying, because really we ought to call a spade a spade, is that talent is leaving the US.  Ross Perot was right, even if things didn’t go South of the border, but across the pond instead.  Mike Lee, the original founder of a collaborative defense team called the Appsterdam Legal Defense team, makes an excellent point:

“Every non-American organization trying to unseat Silicon Valley as the world leader in technology production should be popping champagne” over Lodsys’ continued claims, Lee said. “More patent madness means more talent flowing into Europe, which is great, because it means we can start using our embassies to kick some of that over to countries like Greece and Italy who could definitely use the work.”

Is this really what we want?  You can argue, and many do, that the patents system should be dissolved altogether and I’m down with that in some ways.  I think rather than that you just alter it and turn to the Use It or Lose It approach, that would help out a lot.  But one thing that you simply MUST do is rid the landscape of companies like Lodsys.  You know,  NPEs, patent grabbers, Ne’er-do-wells…a Troll by any other name would smell as foul.

Just sayin’,

IPTT

**I felt compelled to use that phrase because it was used against moi in a recent Twitter direct message.  It was in response to a tweet I made about someone posting a link wherein followers were invited to caption a picture.  At least that’s how I understood it.  But when you click the link, you had to sit through an ad for a cold beverage that is not Coke, but the other guy.  I took exception to that and tweeted as such.  And I got direct messaged back and, I think, insulted.  You decide (hint:  it’s the first one):

I think I've been insulted.

NPR: Why Law Firms Should Not Create Subsidiary Businesses

Note:  NPR = Not Patent Related

From an article in Law.com, it seems that Drinker, Biddle, and Reath has decided to spin off its lit support group and create a subsidiary company that handles eDiscovery for its own clients in addition to anyone else’s business they can get.  The way I see it, the odds are four to one against that being successful, and here’s why.

1.  It is difficult, if not impossible, to mandate the compliance of firm partners on any issue.  Ever tried to put together an Approved Vendor List for a law firm?  How’d that work out for you?  I thought so. The partnership business model simply does not support such a beast.  If a partner has a problem with a production from your own subsidiary vendor, he’s not using you again and you can’t make him.   If a partner has a friend at another vendor, he’s not using you and you can’t make him.  If a partner’s client insists on using their own vendor or he’ll fire you, he’s not using you and you can’t make him.  See how that works?

2.  Along the “if there’s a problem with a production” lines, the client may fire you as both the vendor and the law firm.  When you’re using a true outside vendor, the  firm has a bit of wiggle room in that they can say “Dude, it wasn’t us!  It was the vendor’s problem!  Fire them!”  That just falls right smooth apart if you and the vendor are on the same payroll.

3.  It’s already been tried, and it failed.  This is my weakest argument in that I cannot find the name of the firm that did this.  They’re in NY or DC though, and it didn’t work.  If past performance is any indication of future performance, than Drinker, Biddle, and Reath would do well to find these folks and see what happened so it doesn’t happen to them.  Which it probably will, which is why this is on the list.

4.  Psst…law firms?  You’re in the business of providing legal services.  That is what you do.  Yeah, I know, you want to “recapture revenue lost to legal process outsource companies” and “own the technology”  but that’s not who you are.  You do the lawyering and let the experts collect, process, and produce the documents.  This is most definitely an industry where horizontal integration is very ill-advised.  Stick with what you know, people!

The only possible way this can end well is if the Managing Partner mandates that you always and only use your own subsidiary and that you never make a mistake ever.  See #1 and #2 above.

It’s like that old football analogy, that I attribute to Darryl Royal because I’m a longhorn, but that someone recently told me really came from some coach at Ohio State, but whatever:  “Only three things can happen when you throw the ball, and two of them are bad.”

This decision to spin off eDiscovery as a subsidiary is equally positioned.  The conditions that will make it successful are highly unlikely to occur, and the bad things that out-weigh it are very likely to occur.

To say nothing of the fact that Drinker is using Autonomy:

After reviewing a number of software options, Lidbury said the firm decided on Autonomy, which is an HP company.

Huh?  How is this “owning the technology”?  You’re not owning it, Autonomy is.  What am I missing here…?

I think Leonard Deutchman, GC of LDiscovery Solutions is right when he says “creating an eDiscovery vendor model requires a large investment of time and expertise.”

Good luck.

Just sayin’,

IPTT

Why Companies Settle With Patent Trolls

Subtitle:  Velvin Hogan, We’re Looking at You.

Probably there are many reasons that companies settle with patent trolls, but honestly I think the fear of a jury trial is at the top of the list.  Look what happened in the Samsung/Apple vendetta by Steve Jobs trial.  Turns out, the jury foreman would have been good friends with Steve, in that he too behaves out of spite.  You get one guy on there who doesn’t disclose his history in voir dire, and you’re sunk.  Which begs the question in my mind that, hey, isn’t that juror misconduct or contempt of court or something?  Can you really omit relevant facts before you serve on a jury?  I don’t think you can.  This specific problem with a juror is an anomaly, but it points to one potential issue avoided if you just settle out of court.

Then there is the problem of putting very technical arguments in front of the general public.  That’s not a slam on the general public, for I are one of them.   Patent infringement trials are fraught with all manner of industry-speak and jargon and terms that people have to look up in order to understand.  Or worse, they need the lawyers to explain it them and we all know how that is likely to end up.  (Hint:  lawyers are terribly partisan explainers, in that they explain only the part of the definition they want you to know, the part that will tip the verdict in their favor.)  Unless you just enjoy spending your time reading about the ins and outs of your newest gadget, all that stuff is going to fly over your head.  And if you buy into the rhetoric that corporations are E.V.I.L. and don’t deserve to make money, then you’re almost always going in with the attitude that Deep Pockets is wrong and the Patent Troll is right.  It’s an easy assumption that is difficult to overcome no matter how good your lawyer is.

The way you stay out of court, the solution the trolls are banking on, is that you’ll settle for their outrageous licensing fees.  Increasingly, we see companies go after invalidating the patent with prior art, which is a step in the right direction.  I still claim the best solution is coming back at the trolls with all the firepower you can amass via collaborative defense.  There is a whole slew of people being sued in Central California by Digitech:

IP Lawsuits

** data via PriorSmart, email them to sign up.

Every single one of those companies ought to pool their resources and fight them.  Get in bed with the enemy long enough to defeat the bigger enemy, and see what happens.  I’m telling you, you stop bullies by punching them in the nose.  Time to take a swing, folks.  Or, go to court and hope you don’t end up with someone like Velvin Hogan on your panel.

Irwin M. Fletcher, you choose.  (I love that movie.)

Just sayin’,

IPTT