Rackspace Is The Patent World’s Braveheart Guy

As a matter of fact, I am a Rackspace fangirl, why do you ask?  And also, I know that the movie Braveheart was about William Wallace, but if I say that “Rackspace Is The Patent World’s William Wallace”, are as many people going to get that?  My guess was no, so “Braveheart Guy” it is.  Onward, then!

It just keeps getting better and better.  SO much to like about this blog post from Alan Schoenbaum.

As patent settlements go, that is very cheap. We also believe it is completely unacceptable.

Right and super right.  Completely unacceptable is the phrase everyone needs to stand behind.  I use it a lot with the kids and they know whatever it is they just did isn’t gonna fly.  You have to meet these trolls where they live:  in their adolescence.

When it comes to fighting this particular troll, we believe an IPR is our best option to have this patent abolished at its source – eliminate the root, destroy the weed.

Image courtesy of the Braveheart movie people.  I didn't take it, am not claiming to have.

Image courtesy of the Braveheart movie people. I didn’t take it, am not claiming to have.

Bolded line?  Best.rally.cry.ever.  Begs to be immortalized on a t-shirt.  Someone with creative t-shirt making skills should get on that toot sweet.  That person is not me.

But this, this final closing salvo, is the most brilliant of all:

IPRs [Inter Partes Review] can be risky and costly. We know this IPR will cost us more than the $75,000 that Rotatable wanted to extort from us. But we are not just fighting for us; we are fighting for all the app developers who are also in the line of fire. As the noted software engineer and blogger Joel Spolsky wrote, “Life is a bit hard sometimes, and sometimes you have to step up and fight fights that you never signed up for.”

This is what I’m talking about.  Someone has to lead the charge and say enough is enough. It takes exposure, Rackspace airing their grievances in a public forum, dollar amounts and all, to make it happen.  If more companies being hit by these trolls would do as much, the whole troll ecosystem would disintegrate.  Businesses would once again have safe passage over the technological bridges needed to really innovate!

That they’re willing to take one for the whole team is also just what the doctor ordered.

Sic ’em, Alan.

Just sayin’,

IPTT

Girdlegate 2013: Hell Hath No Fury Like a Spanx Scorned

What is so funny about this case is that what used to be Grandma Mima’s best-kept secret is now a household term.  Sure, it’s called “shapewear” instead of a girdle, but the idea is still the same: to make people think you’re thinner than you are.  Personally, I’d rather run a few more miles or do a few more sit-ups than squeeze myself into any one of those torture devices, but maybe I’m just not as sado-masochistic as most women?

Girdlegate began when a Real Housewife, as opposed to, you know, the fake kind, got her knickers chuffed because the Spanx lady copied her design for a camisole that sucks in…whatever it’s supposed to suck in.  The case, dubbed by Forbes as Fashion’s Apple v. Samsung, hinges on a design patent.

Design patents differ from utility patents in that they cover what a product looks like v. what it does.  That’s good since in this case both products do the same thing.   It’s interesting that Heather Thomson went the patent route, and not surprising at all that Sarah Blakely countersued.  From what I read on Techdirt, usually the fashion types hit people up for trademark infringement.  This case will be watched by everyone out there who wants to make a red-soled shoe, that’s my bet.

This is also going to be one to watch because cat fight! women tend to duke things out in ways that men simply don’t.  It’s going to get really ugly, really quickly.  Further, this lends credence to my prior posts that personality matters.

Thomson has come out swinging against Spanx’s billionaire founder Sara Blakelytelling trade titleWomen’s Wear Daily that she hopes the shapewear mogul is “ready for war.”  She claims three of Spanx’s slimming tank tops are Yummie Tummie knock-offs, and wrote a letter to Blakely in January asking for the company to cease and desist production.

So in this corner, we have Heather, all “You’re a copycat!  Bring your army, beotch,” which prompted this:

Spanx filed a declaratory judgment action, essentially asking a judge to step in and decide whether they’ve infringed on any patents. Thomson has since filed her own complaint (in early April, for patent infringement).

…which is to say “Oh no you di-in’t just call me out. And by the way, you’re the copycat so step off!”

I don’t know who Michael Lasky is but he’s got this one nailed:

Patent lawyer Michael Lasky, who works out of Spanx’s hometown of Atlanta, concedes that the dispute is “a bit of a grudge match”, with Thomson’s ego driving the case.

Emphasis mine, as usual.  I hate to “go there” and use the phrase “go there” (ugh) but men get all the credit for having the big egos and boy do we have it wrong sometimes.  (As an aside, can you just imagine a couple of men putting up their dukes because they each designed a golf shoe that looks similar?  Or worse, fighting over the design of manx, which I can only presume is what male spanx would be called if it weren’t already a type of cat?  Please.  Never going to happen.)  Ms. Thomson’s going to take this one to the courts, to the press, and now, thanks to the AIA, possibly also to the USPTO.

It matters who you’re dealing with and how they deal with others.  Something tells me, and I really don’t know the players involved beyond what’s available via a web search, that this one could have been settled out of court if either party had a different personality type.

Honestly though, I’m probably not qualified to comment on any of this really, because under no circumstances can I see two women comparing their underthings and one remarking “Nice Spanx!” and the other replying “As if!  Girl, this is a Yummie Tummies!”  They’re called unmentionables for a reason, is what I mean by that.

Just sayin’,

IPTT

Wherein IP Nav Does Not State The Number or Type of Pickled Peppers Picked

When last we left our hero, IPTT had called out IP Nav on their fairly recent comments on Patent Assertion Entities by stating that there are two kinds (only two!) and that they could be placed in the categories of “white hat” and “black hat” PAEs.  Care to wager a bet on which they claimed to be?  Hint:  not the black one.

It seems the author of the paper, who is actually their PR guy, read the article and now has come forth to set IPTT straight.  Before we delve into the particulars, Barry’s job is, in fact, to polish a turd.  Whether he thinks he has a turd or thinks he works for one, it is his job to debunk negative press so we should all keep that in mind whilst reviewing his come-backers.  He’s just doing his job, folks.

So to his comments we go:

1) By definition NPEs are patent owners. PAEs — Patent Assertion Entities — on the other hand may or may not be patent owners. The terms are not identical. IPNav is a PAE, but we are NOT an NPE.

Duly noted is the use of shouty capitals on the “NOT”.  It has been my experience that the more vehemently one denies a statement, the greater the likelihood that the statement is true.  See: Shakespeare’s Hamlet.  (“Methinks the lady doth protest too much” is the relevant quote here, for those who don’t remember their Junior English class.)  Nevertheless, I am acquainted with both terms but I do thank you for the refresher.  Point: Barry.

2) My point with the black hat/white hat analogy was most definitely NOT “but they did it too.” My point was that black hat SEO is a scam, and deserves to be taken down. “Black hat” patent enforcement is likewise a scam that deserves to be taken down.

So we do agree then that “black hat” (can we stop putting that in quotes yet, or is the term still too new?) PAEs/Patent Trolls need to be taken down.  Progress!  I contend though, and this was my point, that when you start pointing out what other people are doing wrong in an effort to a) deflect from your own nefariousness or b) compare your nefariousness to something much more nefarious, you’ve lost your high ground, if in fact you had any to begin with.

Why not instead focus on the positive things that you’ve done for your  inventors who surely could not find their way through the patent system were it not for you?  This is what I had asked IP Nav to do.  Show the world how good you are, instead of pointing to someone else and how bad they are!  Point:  IPTT.

Moving on:

3) Yes, patent owners are entitled to wave their patent around and threaten to sue people if they don’t want to take a license. People who us a patent without paying for it are thieves. You are not allowed to steal stuff. The patent is a right to exclude — the only thing you can do with it is stop other people from making the patented thing without your permission. That’s the only permission it grants you — the right to sue other people.

Sure, people who use a patent without paying are thieves.  So are people who target inventors and smaller companies who are cash strapped and negotiate deals for their dubious patents, only to turn around and “monetize” them against companies for a price only slightly less than the threatened litigation that surely comes if they don’t pay up.  These companies don’t want a knock down drag out court case, or can’t afford one, so they pay for a license.  For a patent they don’t need.  That’s not thievery of time and resources that could be spent on actual R&D and bringing products to market?  Sorry, not buying it.  Point: IPTT.

But wait, there’s more:

4) The percentage of revenue from licensing versus litigation would not prove anything. “Black hat” patent trolls get almost all of their money from licensing, because they often set the fee low enough that it’s nuisance value compared with litigation.

I disagree.  I think it would show that you have made a good faith effort to try and get legitimate patents, should you have any, licensed in a straight-forward way.  If you’re making the effort outside of litigation more often than you are simply filing cases, then that’s saying something.  Yes, patent trolls often set the license fee just shy of the litigation pain point, as I stated above.  But if you pony up those numbers too…show the data on what you license patents for then you can prove me wrong.  Point:  IPTT

There are many companies out there that take a “we’ll pay for it when they come after us” attitude toward infringing patents. I know. I used to work for a company like that, and it’s one reason I left the company. I disagreed with that approach.

I’m sorry that you had a bad experience with a company who stole intellectual property.  It’s easy to see why that would drive a person to right some wrongs.  But is that really what IP Nav is doing?  If so, lets see some examples.  Let the world know who you’ve helped, showcase the companies you’ve helped secure patents for and what they’re doing now that you’ve stepped in with your white hat!

What shows that IPNav is “white hat” and not “black hat” is that we are perfectly happy with a true “loser pays” system — we only enforce strong patents where there is real infringement. The scam artists would never go for such a proposal, because their model is based on never going to court.

No Barry, that IP Nav is perfectly happy with a true “loser pays” system shows only that you don’t intend to ever lose.   It’s a straw man.

This is all about transparency, and I think if someone were accusing me of something that I was not, I would do everything within my power to show legitimacy, to show that I was not what others were claiming I was.  This is why my “alter egos” side bar links to my online resume.  Sure, there’s some things that I won’t talk about or share, like the fact that I am absolutely petrified of spiders and the fact that I  don’t eat vegetables are both closely guarded secrets.  Oh, drat.  Were closely guarded secrets.  *sigh*

But if I expect to be taken seriously despite my propensity to make a joke out of almost anything, I need to show my relevant cards.  When companies such as IP Nav hide behind rhetoric and refuse to answer direct questions with anything but standard-issue turd polishing, that’s a problem.

Final point tally:  IPTT 3, Barry, 1.

Just sayin’,

IPTT

Rackspace Sues Parallel Iron/IP Nav; Also, Peter Piper Was Not Forthcoming

In patents, as in comedy, timing is everything.  How serendipitous to receive news of a certain lawsuit a day after examining a black hat PAE who claims to be sporting a hat of a different hue.  Lovely.

My second most favorite thing in the world behind sticking my hand in the bag of chocolate chips only to find the people I live with have eaten all but two of them, which is totally not enough chocolate to satisfy anyone on the planet, never mind yours truly,  is when I ask someone a question (usually it’s my oldest son, but we’ll leave the parallels between the behavior of 12-yr-old boys and patent trolls to the reader’s imagination) and they reply with everything but an actual answer to my question.  Ah, good times.

And so that very thing has thusforth and somesuch (you didn’t know I could speak lawyer, did you?) occurred right there in the comments to yesterday’s post.  Fear not, for that shall surely get addressed, but not before discussing the bigger thing that is now afoot.

Rackspace (holla!!) has sued Parallel Iron, a shell company for none other than IP Nav.  {Pretends to pick jaw up off the  floor in mock surprise at that little shell company revelation there.}

Remember this quote?

We are NOT a “non-practicing entity” (NPE) in that we do not take title to patents, although in some cases we will assist clients in selling their patents to an NPE.

Hold on a sec while I step out to get out my PTT™ (Patent Troll Translator).  Ah, there it is:

We ARE a “non-practicing entity” (NPE) because, while we don’t always take title to the patents we intend to nefariously wield against industry, we have absolutely no problem farming them out to other people who will sue the pants off of you.  Because, you know, being one step removed from the process makes it alllll better.

I love the Rackspace folks because they don’t roll over and play dead.  As I’ve advocated countless times, the only way to beat these guys is to fight them every single time.  I meant that to mean defensively, as in when the trolls come after you.  But Schoenbaum et al are taking it to a whole new level of awesome by approaching the net and going on the offensive.

I, for one, hope they ram a shot right down the center of the court so fast it makes these guys’ heads spin.

Just sayin’,

IPTT

If Peter Piper Picked A Peck of Pickled Peppers…

…Where’s the peck of pickled peppers Peter Piper picked?

Is anyone else unable to recite that nursery rhyme without being taken back to their high school days when the Run DMC version was king?  All I can ever remember to say when asked if Peter Piper Picked Peppers is “…and Run rocked rhyme.  Humpty Dumpty fell down, that’s his hard time…”  Ah, the memories associated with that song…the drumbeat of the band as the football players ran out on the field, the cheerleaders jumping all over the place, jockeying for seats in the stands and accidentally (that’s my story and I’m sticking to it) knocking over my best friend so I could sit next to that really cute Freshman…

Wait, what just happened there?

Anyway, here’s the thing.  If you want to distinguish between “white hat” and “black hat” NPE’s, as Barry Leff with IP Nav has, then you will need to be able to prove that your hat is, in fact, not black.  The way you do that is to show the peck of pickled peppers that Peter picked. Or, alternatively, show us what products you’ve helped your clients bring to market that they wouldn’t have been able to do without you.  And your white hat.

iStock_000022105233Small

From the article, Mr. Leff says:

PAEs such as IPNav play an essential role in providing inventors a mechanism to receive compensation for their inventions which could otherwise be misappropriated by large companies with impunity.

(Emphasis mine.)  Their inventions, or their patents?  I don’t want to go all NPR v. Intellectual Ventures on you, but show me the money.  What inventions have you helped “the little guy” bring to the market?  That’s what I think of when I think of someone who wears a white hat.  He’s there to help you.  Providing money to patent an idea is helpful, sure, but don’t act like it’s the end all.  You get your cut and the way you do it is to go after people for infringing, not just by helping an inventor navigate (tee hee) the patent process and secure his intellectual property rights.

Riddle me this:  What percentage of your monetization money is from patent licensing vs. patent assertion?  That would be a terrific way of letting the world know how many pecks were picked, no?  I think the former can be construed as “white hat”, but the ol’ lid there turns a few shades darker when you start sending out assertion letters as a way of bringing home the bacon.

And then there’s this gem:

We are NOT a “non-practicing entity” (NPE) in that we do not take title to patents, although in some cases we will assist clients in selling their patents to an NPE.

I didn’t know that there was a rule with NPEs that they are required to be the actual title-holders of the patents they were asserting.  Did I miss that?  It must have been in Appendix B of the NPE Manual.  No one ever reads Appendix B, people, you should know that.  But can’t you hire a patent assertion company to file lawsuits on your behalf?  I’m no lawyer, so maybe I’m wrong on that.  But what difference does it make anyway given the second half of that sentence?  “I didn’t take the cookies from the cookie jar, Mom!  I just ate the ones that Michael stole.”  Doesn’t work for kids, doesn’t work for adults trying to pretend their hat is white when it’s really black.

In the American system, consumers determine which businesses are worthwhile – by voting with their dollars.

That’s all well and good because I guess under this guise the “consumer” is the guy with the idea that you’re exploiting helping to get patented, is that it?  Um, okay.

HybridHat

Here’s where Mr. Leff really jumps the shark:

Cheng seems to be suffering from a too-common view that committing intellectual property piracy is somehow a “right” and that pirates should be protected against lawsuits by IP owners. The misconception is that as an intangible, intellectual property cannot be “stolen” because the owner of the IP suffers no “actual harm” from the theft. That’s simply not true. Ask the software, music, or movie industries how much they have suffered “actual harm” because people stole their IP.

Or ask Mike Masnick at Techdirt.  He’ll be more than happy to show you how much non-harm those industries are actually suffering.  And that’s copyright anyway, not patents.  There’s only one such beast (so far) as a Copyright Troll – Big shout-out to Righthaven! – so that’s a total red herring.  Commendable attempt to shift the argument, but us troll trackers are quicker on the draw than that.

Here he invokes the morality clause:

Patent owners are under no obligation, moral or legal, to manufacture whatever product or idea is covered by their patent.

You know, I’m not the morality police (unless you’re my child and then I totally am) but this kind of statement really galls me.  Patent owners may well be under no obligation to create a product or add value to society, you’re right.  But does that mean that they have the right to go around using their patent as a bully pulpit, a big giant bat with the words “TAKE A LICENSE OR WE’LL SUE YOU” burned into it?  If that’s your idea of morality, count me out.

And now, taking us back to our childhood once again, we have this lovely logic:

“White hat” SEO businesses work with their clients to do what the search providers want: they add quality content, make content search-friendly, find quality websites that should link to them, etc.

“Black hat” SEO businesses try and scam the system. Google wants links? They hire cheap labor in India or the Philippines to spam comments on blogs with links. Google likes websites that have more fresh content? They hire armies of people, again in cheap labor locations, to crank out “content” that no one in his right mind would want to read, often stuffed with so many keywords as to be unreadable.

Did a grown adult just use the “But they did it too!” excuse?  You’re now showing your true color.

Black Hat

Just sayin’,

IPTT

Elon Musk Is Not a Perfume From Avon?

Just to clear up that misconception for anyone else who thought so, Elon Musk is the creator of Tesla Motors, and makes the kind of car that I will likely never own. It’s not the price tag or availability, you see, it’s the lack of cup holders. If I don’t have a place to put my Big Gulp, it ain’t happenin’.

He’s been in the press lately because Iron Man 3 is coming out and he was the prototype for the Tony Stark character. Kidding. He’s been in the news because his space transport company, SpaceX, has made the decision not to patent any of the technology associated with it. Here’s one reason he gives:

“Our primary long-term competition is in China—if we published patents, it would be farcical, because the Chinese would just use them as a recipe book.”

This is one section of the patent area where I’ve always been a little fuzzy. In order to patent your idea, you have to describe it in painstaking detail. This by definition gives other people the “recipe” they need to do exactly the same thing.  Of course, the patent gives you the right to prevent them from doing it, one giant flaw being that the onus is on the creator to go out and find the infringers, or, you know, pay someone to do it for them.

Instead of going that route, SpaceX has decided to just put their product out there. In cases where the idea is very complex or the investment capital needed is large, it’s not an unsafe bet. By the time anyone else reverse engineers his rocket technology, Mr. Musk will be (wait for it) light years ahead of the competition. He’ll have captured enough market share that it will be hard(er) for anyone to come in and start taking over, unless they build a better mousetrap. In which case he’d get beat fairly and squarely. No patent required.

Except whoops! We live in a very litigious society. This may come as a surprise, but there are whole companies devoted to sniffing around trying to figure out if anyone is infringing on anything even modestly resembling their spurious patents. So even though you don’t feel the need to patent your stuff, other people can still come after you if they think you stole their stuff.

Further, having not patented anything, you can’t threaten to counter-sue anyone who comes after you. This is what makes the trolls so dangerous: they have far less incentive to settle because they don’t make anything that you can counter sue them for infringing on.  Likewise, if SpaceX has no stable of patents of its own to draw on, you’re exposed. This is why I think Google bought Motorola, or at least part of the reason.

Cheryl Milone of Article One Partners makes this point very eloquently:

“Simply eliminating one area of IP protection is risky because, regardless of whether or not you participate in the patent system, you are subject to its obligation,”

You have to play the game the way it’s currently set up, and work in the background to change the rules if you don’t like them.  But just like when your toddler puts his hands up over his own eyes and says “You can’t see me!!”, he’s only fooling himself.  Just because he can’t see you, doesn’t mean you can’t see him.

My mind is kinda split on this one, because I’m with Elon all the way, even though I’m sort of disappointed I can’t order his bath salts from the Avon World Sales Leader.  I think he’s focusing on just the right thing and if I were in his position I would do exactly what he’s doing.

But the other half of me is in the camp that says just because you want something to be true doesn’t make it so.  My mom used to have this saying when we were little:

Want in one hand, spit in the other and see which one fills up first.

In Elon’s case, I really do hope it’s the “no patents required” hand.

Just sayin’,

IPTT