Highlights From The 6/27 Article One Webinar, Which Sadly Did Not Include A Fist Fight

Having missed the first two parts as a result of my lack of savvy with a calendar scheduling issues, I managed to make Part 3 in Article One Partners’ series on the Rise of NPEs entitled NPE Risk Mitigation and Emerging Solutions.  As usual, they put on a great show!  It was a little disappointing that Rob Sterne and Jeff Ostrow didn’t bust out the Socker Boppers, but we can’t have everything we want in life, now can we?

SockerBoppers

Here’s my rundown of take-aways:

  1. The focus of the fight against patent trolls, according to Cheryl Milone (CEO of Article One) is on “conduct and patent quality”.  I love this.  It’s what I was talking about the other day re: how do you determine who a patent troll is.  It’s a pattern of behavior, their conduct over time.  And of course at the root of it all is patent quality.  As the AOP tag line says:  Patent Quality Matters.
  2. Rob Sterne pointed out the same thing I did with respect to Schumer’s proposal, putting at least one of us in good company, which is to say “How is the USPTO going to review all patent litigation cases?  They can’t possibly.  To say nothing of the fact that when you spend the time in review with the USPTO, you don’t get that time added back on to the life of the patent.”  That latter part is an interesting point I hadn’t thought of.
  3. Jeff Ostrow pointed out that the AIA’s new Inter Partes Review option shouldn’t be something that companies rush into.  It’s expensive and the smaller operating companies are likely unable to pay for it unless they collaborate, and it takes time and other resources.  That’s all true, but my take on this is that companies who use IPR are behavior and personality driven, a la Rackspace and Neiman Marcus.  They’re doing it to go on the offensive against patent trolls, notorious or not, and are happy to spend the money.
  4. One reason that Jeff and Rob might have been tempted to take it outside to the bike racks is that one of them who shall remain nameless {ahem, MR. STERNE, ahem} is amenable to working with NPEs and Mr. Ostrow isn’t.  I really like the idea of standing on principle, of saying “Hey, we’re just not about this and aren’t going to alter our way”.  High admirability rating in my books.  The other approach says “Why should patents not be as available later as they were right after the initial R&D that generated them?”  In other words, why shouldn’t Kodak and Ericsson and other bigger players who spent a bazillion years and dollars developing a technology and patenting it not be able to go out and monetize that after their core business dies off?  Well, I’ll tell you why.  Times?  They change.  Things that were patentable and useful and necessary 15, 20 years ago are not as much now.  So when you try to enforce licensing for those patents now, or sell them off to trolls to do your bidding for you, it just looks shady and greedy and, well, troll-ish.

There were two quotes from the webinar that I wrote down to put on my bulletin board so that I could see them every  day.  One was from Jeff Ostrow:

Be thoughtful, not reactive.

That is totally a lesson that applies to patent litigation as well as pretty much my entire life.  It’s tempting to jump in with solutions and answers to everything that comes up, but without that first “thoughtful” step, you end up reacting instead of responding.

The second quote was from Cheryl and I really do love it, being a bit of a data geek myself:

People should continue to be in the data flow so that you’re not a victim.

What she meant, in my opinion, is to stay abreast of options.  Understand what responses you have available to you when and if you’re sued for patent infringement, and what options are available to you as a party seeking a patent so that you can be assured you’re going to end up with a good quality outcome.  There’s a lot of noise out here in the patent space now.  Stay informed about what’s going on, stay in the “flow”.  Love that.

I’ve been a fangirl of Article One Partners for a very long time now.  These webinars are a great way to get information and give companies and individuals a forum to discuss what’s going on. Thanks y’all for another hour (or so) of awesomeness, can’t wait for the next one whenever it is!

Just sayin’,

IPTT

{Image:  http://90schildhood.tumblr.com/page/3}

Intellectual Ventures (Might Be) Tied To Lodsys: Wait, What?

By show of hands, who actually thought this wouldn’t happen?  Anyone?  Bueller?  I figured as much.

Over at Groklaw where you can read threaded comments like a 1990’s boss because there definitely isn’t better forum commenting software out there, there’s some serious gold to be found.  This is always the case it seems.  In fact, were I a professor at a business school I would make certain blogs and 100% of the comments on each entry required reading.  Anyway, after recently writing about 12 yr olds Mr. Detkin, I found this particularly hoot-worthy:

Mr. Detkin is a lawyer who IV sent to represent it, and it’s his deposition extracts that are sealed. What we do know is that he has claimed that the email sent from Dr. Myhrvold’s account was actually drafted by him and another attorney, and he testified at length at his deposition about the email.

Oh, this is rich.  Are we to  believe that Mr. Detkin, he who doesn’t understand basic grammar, is being  completely transparent here?  Really?  Okay

The whole issue can be summed up in one or seven paragraphs, a la an anonymous commenter:

So while we would like IV to get scrutinized by a proctologist, in this situation it seems that Lodsys is desperate bc [sic] their cases aren’t going so well?

Lodsys wants the deposition that might or might not help their case. Specifically, Lodsys wants to know more about MS contracts with IV, to know if the MS/IV licenses support Apples claims or not, hoping that they won’t.

So as much as I/We dislike IV, the deposition could hurt the iOS and Android developers.

My non factual estimation of events:

IV got MS, Apple, and all the big players to sign up for licenses. IV knew they themselves couldn’t try to sue their licensees’ developers bc it might not be legal and would ruin their relationships with the big players. IV didn’t want to try to double dip.

IV sold the patents to others, hinting that the new patent owners “might” have a chance to sue the developers.

Lodsys wants to question IV about these licenses, bc the patents may now be worthless if all the developers for the big players are covered by the IV license.

How can you not love an industry that elicits such comments?  I mean, “as much as we would like IV to get scrutinized by a proctologist”?  I’d like to point out that we’ve already gotten them down to their underwear so it is, after all, a logical next step.

It looks like what happened here, to paraphrase the above, is that IV was using Lodsys (via a middleman named Webvention) to eek out even more money from their patent.  Only oopsies…things are not going so well in troll-land for Lodsys.  Looks like they were sold a bill of goods when our pal Nathan (indirectly) said “We already sold the Big Daddies the rights but you can totally go after all the kids if you want.  Also?  You can pay us a percentage off the top of whatever you get.  Because we’re nice that way.”

It’s a proxy fight, and if Lodsys is successful in getting Mhyrvold to testify, something to that effect will surely come out.  No wonder he’s fighting it so hard, he’s trying to avoid exposure.  Trolls?  This is what happens when you garner FTC attention.

In closing, I’d like to give a huge shout out to USA Network for their casting of Daniel Hardman for their summer hit Suits:

mhyrvoldhardman

Just sayin’,

IPTT

Images:  http://www.intellectualventures.com/assets_profile_photos/Preferred_Nathan_Myhrvold.JPG and http://www.tumblr.com/tagged/caps:midnight%20road@lj

Something’s Fishy Here, Must Be The Red Herring

Remember a hundred years ago (give or take) when the Supreme Court was trying to define “obscenity” and this was before The Internet really took off so we couldn’t just look up a picture of a woman wearing white shoes before Memorial Day and be done with it?  I believe the official definition went something like this:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Methinks we’ve been snookered here re: the debate about what is and is not a patent troll.  I am way too lazy to go look up all the blog posts about how to properly define a troll, which would help demonstrate how much back and forth there is about the topic, but rest assured the debate abounds.  And truth be told, I think it’s fair and good and right to try and define the terms used in the patent litigation industry because they’re helpful to people who are just starting to be affected by it (re: targets who’ve received their first demand letter).  I’ve even written about it myself.

But here’s the problem:  there are so many definitions and too many cases where any given definition only fits some of the time.  As soon as you define what trolling is, narrowly or broadly, a troll is going to come back and say “But we don’t do that all the time, that was just that one time and it’s not our core business” or “that is just a very small part of our business and we had to do it because everyone else is” or  “look at all the ways that we don’t fit that definition!” or my personal favorite “We didn’t go after anyone for that patent, we just sold it to someone else…how do we know what they’re going to do with it?!”   It’s becoming a huge red herring, something the trolls can watch us dicker over while they continue their assault on innovation right there in plain site.

ARedHerring_edit

This is why Rachael Lamkin’s point in her dialog with IP Watchdog is so important:  “we know a troll when we see it”, just like Justice Potter Stewart said from the SCOTUS bench lo those many years ago.  I think this is very true, and I think the trolls count on people jumping on the label bandwagon trying to figure out how to fit each and every bad guy into a column on a spreadsheet, all the while they’re out there shape-shifting and changing their business model to fit their ultimate goal:  extortion of fees for patents.  (Which, incidentally, is why I think the government’s new law proposals and Presidential edicts aren’t going to matter in the end:  the trolls will always find a way around the legalities of it, the same way they find ways to avoid being labelled as one of the synonyms for “Patent Troll”.)

What’s going on is, as the issue of patent trolling attracts more and more attention in the mainstream media, the message is getting diluted and the waters are getting muddied.  Good thing that herring is red or we might’ve missed him.  The way you determine whether a company is a patent troll is not by a single definition, it’s by a pattern of behavior over time, by looking at the results of that behavior and ascertaining “Is this behavior that is good for American businesses or is this behavior that gets in the way of progress?”  In a lawsuit it’s the stage where you “prove up” your case.

So how do we do that with trolls?  I’ll tell you how: we enter demand letter data and over time, the question of what is a troll, never mind who is a troll, will all but answer itself.  We build a community around how these guys behave…what they ask for in settlements, what they demand in their initial leaflet drop from their G-5’s, how they handle their claims construction when things get to litigation, the list goes on.  By looking at behavior over time we will be able to tell which companies are the real villains, and which are just victims of circumstance.

Rachael makes a great point in her discussion with Gene:

we know that these Trolls work in waves with these cease and desist letters and most people who get these cease and desist letters figure they’ll just keep quiet. The problem with that is they’re giving up key advantages like forum choice so they can all talk with each other without talk — speaking publically you might be able to figure out how to pull funds and go have one company step forward or find the best DJ Jurisdiction and have that company step forward and bate the Troll into giving him another correspondence to trigger DJ Jurisdiction, right? That’s one way where you might really start to push back on these 8 Symmetries, but there’s no way, there’s no forum, there’s no secret forum for the recipients of these letters to even speak with each other.

This is my field of dreams, what That Patent Tool is trying to become.  That place where people can enter in the demand letter data and build a community around it.  It’s not perfect yet, some of the features are still being built out, but it’s coming.

This is where we should be focusing efforts right now.  I love me a good debate about the terms and conditions that warrant the use of the term Patent Troll, I can’t deny that.  But let’s not get so hooked into the school of fish that will lead us straight out into an ocean of meaningless banter that we aren’t able to do some fishing of our own.

Just sayin’,

IPTT

{image found here: http://dickstrawser.blogspot.com/2010/04/lost-chord-red-herrings-in-verdi-square.html}

All too easy.

Just read an article tweeted by Patent Freedom (Hi Chris!  Hi Dan!)

Intellectual Ventures?  You really should make it a little harder to pick on you.  {whips out Patent Troll Translater™}

IV says:

These infringements complaints are a necessary step in protecting our patent rights and fulfilling our commitments to our investors, inventors and licensees

PTT™ says:

These vexatious litigations are a necessary step when our shakedown letters fail to garner the monetary response we were expecting.  Hello?  We have investors to pay back and if you won’t pay up outright, we’ll sue you for our dividends.

Like I said, all too easy.

Just sayin’,

IPTT

Lying, Cheating, And Other Sleazebaggery: From Caveat Emptor To Caveat Venditor

Reading this post over at Patent Progress and juxtaposing it with the first part of Daniel Pink’s To Sell Is Human, I was struck by something.  No, it wasn’t a bolt of lightening, much to some people’s dismay.  It was the thought that you can sometimes tell how worried someone is about something by how much they deny they’re worried about it.  The old “hide in plain sight” modus operandi.  That’s what it seems like is going on with all the troll apologetics we have going on since the President decided to completely disregard my schedule and talk about the patent trolling problem and how the government plans to solve it.

I think the real problem is this:  now that there’s Teh Interwebs and Twitter, information about trollish behavior is much easier to find and dissemble than it was back in the early 2000’s when the dust docket dried up companies began to really form their business strategy around patent litigation.  We’ve moved, as Mr. Pink says, from an era of buyer beware to seller beware.

There’s clearly a case of one (or 5 or 10) bad apple(s) spoils the bunch going on, I get it.  There are legitimate NPE’s out there who are working with true inventors who have a fantastic idea but no money to build or sell a product using it, or no desire to do either.  They need an intermediary and that’s OK because I said it was OK right here and we all know that if you read it on the internet it has to be true.  But what they don’t need is a patent troll using them, buying their patent and then using it as a stick to beat industry with.  The seller really does need to be more aware.

Imagine a world a world not of information asymmetry, but of something closer to information parity, where buyers and sellers have roughly equal access to information.  What would happen then?

This is the question asked in the book, and it’s a good one.  When people are made aware of what the patent trolls are doing, they tend not to like it.  The way to combat that opinion, and the trolls should listen up here, is with information.  If you’re truly in existence to help the little guy and bring inventors their due recompense for all that inventing that they’re doing, SPILL THE BEANS.  I asked IP Nav to do that and ended up holding a bag of my own marbles when Barry* up and took his on home with him after playing a few rounds.  NPR asked Intellectual Ventures to do that and they couldn’t wouldn’t do it either.  So what’s that telling you?

This is why the idea of a place to track troll activity is a good one.  There’s lots of information to track, but one of the first things is demand letter information.  Let’s build a picture of what these guys look like before they show themselves to the public via an actual lawsuit.  Yeah, I know.  They hide behind shell companies.  Well, guess what?  I happen to know a few folks with mad data mining skillz who can prove up the data behind the scenes.  Cross reference locations, patents asserted, law firms used to send the shakedown letter, etc. and use a little heat mapping and investigative skills to triangulate who these people are and who they’re going after and how to best mitigate against the threat.  It will take time, and it will take patent demand letter data.

field-of-dreams-2
src: http://bplusmovieblog.files.wordpress.com/2011/03/field-of-dreams-2.png

What I want to do is build a little field of dreams here, a community of people who have been hit with a patent demand letter and need help fighting it off and need a place to go to enter information and research.  People who want to know who else their particular troll is going after. People who can then get together and promote a common defense against the Dark Arts!  What I want is for people to talk about a tool, that patent tool, that helps them in this war against the twisting of the American dream into something sinister like the privateering of patents.  Yes, what I really want is to end the practice of patent trolling altogether by using good old ingenuity and new business models and the private sector.  We the People, people!  {It’s OK if you want to stand up and sing God Bless America and wave the flag at this point.  No one will poke fun at you and it most certainly probably won’t be me.}

To sell, Mr. Pink would have us believe, is human.  What am I selling?  A place enter patent demand letter data only it’s not really selling even because it’s free to use.  What you have to ask yourself, my dear patent trolls, is what are you selling?  I think you’re selling yourself a bill of goods, which is the idea that you’re “helping the little guy” when the reality is very different.  You’re lying, cheating, and sleezebaggery-ing.

Just sayin’,

IPTT

*Just a note to say that I “internet know” Barry and like him and harbor no ill will towards him at all.  In fact, just the opposite.  Because though we disagree vehemently on the morality of patent trolling, he at least does not hide his views.  Just keepin’ it real, folks.

Patent Trolls To Everyone Else: “Sticks And Stones, People!”

Remember that little song and dance your Mother used to give you when you were a kid and the brat across the street told you to stick a rubber hose up your nose?  What, that never happened to you?  Anyway… “Sticks and stones may break your bones, but words can never hurt you” is how it went.  To this day, I’m unsure if she was telling me to suck it up, buttercup, or that I was about to be assaulted by a group of kids with baseball bats and rocks. I deserved both neither, I assure you.

There have been a fair amount of synonyms for “patent troll” bandied about in my day, and it seems the trolls have taken that little ditty to heart, for they do not appear in any way hurt by the insults hurled at them. (Unless you count one of the two five-gallon hat wearing guys down in EDTX.  Right, Ray?) Nevertheless, the Moms of patent trolls must’ve dug that lesson in deep because dayum, can they take it or what?

Topping my list of insults used to be Rackspace’s use of “the world’s most notorious patent troll” when referring to IP Nav.  Can anyone over the age of 19 get away with saying “BUUUURN!!“?  No?  Then I’ll just smile sweetly and say “Good one!”

I dare say it, but they have been outdone.  In a case against IWS, none other than Cisco Systems has filed for declaratory judgment and to add insult to injury, has said that they are part of “the most recently recurring plague on this country’s patent system”, according to a quote from a post on the Essential Patent Blog.  Let’s say it together one more time, shall we?  Just for giggles:

the most recently recurring plague on this country’s patent system

If I were IWS I’d be all “Did anyone get the license on that bus that just smooth ran us over?”  Someone call the WWE because that is one pretty hot smackdown.

Truth is, I love those words because they are perfectly descriptive of the problem.  Patent trolls stifle innovation and threaten start-ups and drain R&D money from corporations, all of those things are true to one degree or another.  But at the heart of the matter, they are indeed a plague on the country’s patent system, a slick workaround to the alternative of working hard and using patents to build rather than tear down.

It’s refreshing to see these companies coming out swinging, all “We’re mad as hell, and we’re not gonna take it anymore!”  It really does have to be an all out (or all in, as it were) approach with these guys.  The first time you roll over and let them pat your belly, you’re forever in the one-down position.  They may hit the tickle spot the first time, but before you know it they’ve collared you and are leading you around by your nose.  Hierarchy is very important to bullies so you have show them who’s boss each time, every time.

Both the Cisco motion (which I see that HP has copied)  and Rackspace’s against Parallel Iron are in the Western District of Texas but we might soon just call it the Wild Wild West(ern) District of Texas.

You can't see it from here, but that cowboy totally just tossed a patent troll off that cliff.  True story.

You can’t see it from here, but that cowboy totally just
tossed a patent troll off that cliff. True story.

I’m not not sure what’s in the water out there, but I want some of it shipped to my doorstep toot sweet.

Just sayin’,

IPTT

{note:  image above found at http://tripwow.tripadvisor.com/slideshow-photo/wild-wild-west-monument-valley-united-states.html?sid=10071272&fid=upload_12769675532-tpfil02aw-20674}

For Sale: Oceanfront Property In Arizona

Bonus?  From the front porch you can see the sea.  Now, if you’ll buy that I’ll throw the Golden Gate in free!

GoldenGate_Not

I know, it’s not the Golden Gate.
$20 goes to whoever can tell me what it is, and
where I was standing when the picture was taken. No joshin’.

This is, I think, what IP Nav is telling us here.  No no…I’m sure that’s what they’re telling us in their little ditty about how much they’re (almost) completely for all of the new laws and proposed laws to stop patent trolling .

When a patent troll comes out in support of the recent spate of congressional attempts to win favor with high-powered constituents proposed legislation, it seems as though they are using the argument to indicate that “Look, we cannot possibly be a troll because would a troll agree with the laws to curb trollish behavior?  Certainly not.  Ergo, we are not trolls.”

Guys?  I may have been born at night, but it wasn’t last night.

Before taking a dive at the actual substance of the article, I’d like to call out this statement:

None of the 12 proposals are what anyone would call “bold.” They are mostly relatively minor, or in some cases strictly cosmetic.  But they should be enough to convince big company supporters in the Valley that the Administration is doing something about the patent litigation problem.

Please look out your window to confirm that pigs aren’t flying, but I couldn’t agree more.  I’ve banged the drum enough so I won’t pull a Frazier Crane again (oh, the irony) but to me, the gov’t is the last place you want to go to solve the problem.  I would not and do not activelydiscourage support of the legal proposals, but I don’t think supporting them shows anyone you’re serious about anything other than the standard DC rhetoric.  It’s all for show folks, nothing to see there.  Now here?  There’s totally something to see here at That Patent Tool, like a place to enter demand letters.  {Ahem}

But anyway, that’s kinda my point with this whole IP Nav blog post:  if you think the proposals are all smoke and mirrors, why dignify them with a response at all?  Unless your point was to entertain in which case you succeeded because this?  This made me laugh (re: disclosing the “Real Party-in-Interest.”):

We support this, with one proviso: it has to be easy to comply with, and clear what needs to be done to be in compliance.

Let’s dig out the old PTT (Patent Troll Translator):

We would support this if you would make it so easy that it requires no effort at all.  Because if there’s anything we can’t stand, it’s having to work harder to hide what we’re trying to do.

Oh, brother.

I don’t suppose there’s a need for repeated cut and paste examples, but if you read carefully, or at all, you’ll notice that for every sentence agreeing with one of the proposals there’s a second sentence giving a caveat or a “we support it if…”.  So, you know, not exactly the “10 out of 12” ringing endorsements their blog post promised us.

Which is how we circle back to the title of this post because their title sold us something that evidently doesn’t exist.

Just sayin’,

IPTT