I don’t recall that being an option available to me as a kid, when Schoolhouse Rock reigned supreme. But evidently, one can take the word “private”, turn it into an intransitive verb, and use it in a sentence as “privateering”. As in:
Dern those silly operating companies! They done gone and sold them’s patents to some trolls and started privateering!
This is what I was talking about, unbeknownst to me because I don’t regularly make up words (shut.up.), when I posted about Ericsson lying down with dogs by selling a portion of their portfolio to a troll.
Tom Matikainen, a 1L at Washington College of Law explains it much better in his article for American University Intellectual Property Brief. It seems that privateering could be synonymous with Cubaning, which is to say joining with the patent trolls because you can’t beat them.
It’s a little different because that Sneaky Cuban, Mark invested in trolls, hoping that would make them steer clear of his companies. (How’s that working out for you? Not pulling a Dr. Phil, I sincerely want to know.) What privateers are doing is transferring valid patents to trolls but retaining a license, and letting them fight a proxy war with anyone else who wants to use the technology. If the trolls win, they get a cut of the profits.
I must object at this point by saying that I dispute the use of the word “profit” here. Profit to me is the result of hard work. What the trolls get when they win a patent suit is ill-gotten gain. Blood money, of a sort. Not profits.
But returning to the story, what’s super sad is to see the big players thinking they have to be a part of the problem:
Yet while privateering is seen as an unsavory business practice, many companies see it as a strategic opportunity to oust their competitors.
Call me old fashioned, but what happened to hard work and ingenuity to “oust [your] competitors”? Must we play dirty just because everyone else is? Is it naive to think you have to join this type of ne’er-do-well strategy to remain relevant and profitable in today’s technology world?
I don’t think so. I think enough attention is being paid to the trolling practice that someone, somewhere is going to neuter these guys. Companies are springing up all over to fight the battle in real ways, like buying up the patents at play (RPX, AST), pairing little guys with big guys to build a micro-system of alerts and warnings (Unified Patents), invalidating patents based on prior art (Article One Partners)…that’s how you beat these guys! Or, you can whip out your blue paint and sword and fight back like the badasses* at Rackspace and Newegg and Fark. And if all else fails, you can get Uncle Sam involved if you absolutely feel you must.
But what you must never do is become a part of the problem. It doesn’t matter if everyone else is doing it. Did your mothers teach you nothing, Ericsson? Look, here’s the deal:
Patents are not simply a right to the spoils of one’s work, but are assets that collectively can become a dangerous weapon.
This has, indeed, become a Patent Arms Race. And what did the 80’s teach us, besides that Madonna wants us to think she can sing? That this sort of tactic results in mutually assured destruction.
*Sorry! Not normally a cusser but darn if that word didn’t just fit perfectly!