Mr. Smith Goes To Washington, Patent Edition

So it wasn’t Mr. Smith so much as it was Ms. Chien.  Off to congress is more like it, to discuss patent trolls and what the government can do to stem the tide.  What does it say about a problem that you have to ask congress for help?  I’m no Einstein but I”m pretty sure that’s not a good sign.

While most people were content to simply watch a group of 4th graders pummel each other on the football practice field, I dragged ye old laptop with me and spent my time reading Ms. Chien’s testimony.  I appreciated the sneak peek via Twitter and was excited to read the full thing.  Don’t judge.  We all have our vices.

I was sorely disappointed in Ericsson a while back, but you can see why they are taking the approach they are via this quote from the transcript:

Following their lead, large companies are monetizing and asserting their patents at a greater rate as well, e.g. through the smartphone wars.  Those who aren’t are being pressed to think about making money off their patents by their CFOs, including by partnering with PAEs.

I wonder if they’re itching yet?  You know, from all the fleas on the dogs they’re now lying down with.  Sad sad sad that operating companies feel squeezed to behave like trolls.

In offering suggestions about how the government can help stem the tide of troll behavior, there’s this:

Congress should reduce the duplication that results, by immunizing or limiting liability for innocent end-users or implementers that use the invention as intended and notice the suppliers of the use.

SAP is doing this by filing a declaratory judgment on behalf of it’s resellers and users.  Indemnification:  It’s what’s for breakfast.  Other companies could do the same and force the trolls to deal with the big guy, who, with deeper pockets and resources, won’t be as easy to shove around as the little guy.

This is where it gets good, this next bit.  I love this idea:

Even a basic fact sheet from a trusted source explaining that the receipt of a demand letter or even suit does not legally obligate the recipient to pay the demander could help.

Here we’re talking about standard legal language that the average citizen has no idea he hasn’t got to pay attention to. A demand letter and a court order are not the same. A demand letter typically obligates the recipient to do absolutely nothing if they don’t want to. It’s a threat. It’s the class bully sending his mouthpiece to say he’s gonna meet you at 3:00 by the bike rack and beat you up. If you instead go home after school like your Mother told you to, what’s the guy at the bike rack gonna do? Beat up…who?

But the problem is, people who get threatened by the trolls don’t understand that’s an option. There’s an information gap that needs to be plugged. Whether or not that is the government’s job is up for debate. I happen to like the market approach. I like for Uncle Sam to build me an army and build me some roads so I can get to Colorado for Spring Break. Beyond that, I’d like the old man to take his hands out of my back pocket and let me be.

I’ve said it before and because I’m afflicted with redundancy disease, I’ll say it again:  the best solution to the troll problem is going to come from the market.  We see this in the variety of patent risk management business models currently proffered, and there will be more sprouting up.

Putting information out there and driving targets to it is a great way to promote the common defense.  Trolls count on the fear factor just like the schoolyard bully.  We have to tell targets when it’s OK to skip the bike rack scene, and when to show up with your posse to fight back.

Hey trolls?  The troops are rallying.  Your days are numbered.

Just sayin’,


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