From The Archives: Inc Joins The Troll Party Late

I’m spending the next few days working on my tan upgrading That Patent Tool instead of using my poison pen to attack patent trolls.  Since it’s no fun to go to a blog and see nothing, I thought I’d link to a favorite older post of mine.

Inc. Joins The Patent Troll Party:  Once More, With Feeling was originally posted on February 15, 2013.

SevenMileBeachGrandCayman

If I *were* to work on my tan, I would do it here.

JustSayin_small

IPTT

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Jones Day Names Names, Markets Themselves As Defenders Against Intellectual Ventures

Well lookie here, this is the first time I’ve seen something like this.  Law firms frequently market their experience with patent trolls and frivolous, nefarious patent litigation in general, but Jones Day puts on their Big Boy Pants and goes right after Intellectual Ventures by name.  I’m not prone to the use of foul language (all that Ivory soap in my mouth as a kid cured me of that…thanks, Mom!), but dayum.

From the article,

Jones Day has significant experience litigating against IV, and we are currently representing a major bank in one of the lead patent suits filed by IV in its assault on the banking industry.

Love it.  “Assault on the banking industry”, indeed.  They also warn of the future, indicating that they expect another wave of demand letters is about to go out:

IV has also sent pre-suit notices to additional banks, and in view of the monetization strategies IV has employed in the past, we expect that this first wave of enforcement activities against financial institutions is part of a broader enforcement effort against the entire banking sector.

As an aside, are we now calling patent demand letters “pre-suit notices”?  This industry’s propensity towards euphemisms is admirable.  Personally, the term I like best is “nastygram”, but let’s not split hairs.  A shake-down notice is a shake-down notice no matter what you call it.  I’m pretty sure that line is in a Shakespeare play but if not, it certainly ought to be.

What’s frightening is how long IV sat on their stash and claimed they were just “helping innovators” and “furthering the field of science” by amassing all those patents.  No one believed you, IV.  

IV has a history of aggregating a significant number of patents relating to a particular industry and then initiating aggressive litigation and licensing efforts against companies in that industry. IV has sufficient size and substantial resources to pursue its enforcement campaign and poses a considerable economic threat to its target industries, including financial services.

IV may have sufficient size and substantial resources, but Jones Day’s not exactly a shrinking violet.  I don’t have the AMLaw 100 memorized anymore since I’m not working at a law firm, but aren’t they, like, somewhere near the top?  They’re not exactly a firm to trifle with, is what I’m saying.

And what they seem to be saying, right out there in front of God and everybody, is this:

Intellectual Ventures?  Game on.

JustSayin_small

IPTT

(With a very special thank you and shout out to my friend and colleague who alerted me of this!)

How To Pronounce ‘Patent Troll’: It’s NYE-row, Not NEE-row

I don’t know whether to get on my hands and knees and thank Gene Quinn for giving me so much to write about or get on my hand and knees and beg him to quit giving people like Ray Niro a forum.  While I wait for my left brain to decide, I’ll let the right brain write.

In an exclusive interview given to Mr. Quinn, Ray points out that we shouldn’t require people to actually manufacture something in order for a patent to be valid, taking the Non-Practicing Entity synonym for “Patent Troll” to task:

But, [the Wright Brothers] didn’t have the resources and talent, maybe, to manufacture it. So a guy named Curtis came along and he started manufacturing the airplane using their ideas. Using their inventions and they brought patent suits for, I don’t know, eight or nine years before they ultimately prevailed. The Wright Brothers prevailed.

This is wholly different from what the troll-variety of NPE is doing, and you know it.  The Wright Brothers went after a company who was using their patented technology.  What they did not do is send threatening demand letters to every six year old boy who jumped off the backyard roof with a pillowcase tied around his neck as a cape, trying to fly like a Superhero.  Or, similar to our friends the Scanner Dudes, send a letter to every small business who’s ever bought a scanner and used it to email something.  THAT?  That’s troll behavior, that’s what we’re talking about.  You know that.  Nice smoke screen but we see right through it.

smokescreen_ray

Next, he says this:

We’re an idea-driven society, period. We don’t have the factories that we once had. We don’t have the businesses that we once had. What we have are ideas. And we better encourage innovation.

Ideas and innovation are not the same thing.  I personally hate this whole “idea-driven” society because it allows IP lawyers to line their pockets people to get lazy.  Having an idea is nice.  For example, the idea of reading a book is nice.  But actually reading the book and doing the report will get you the grade.  So which is the real innovation?  The idea of reading the book, or the report produced from reading it?  I argue the latter because that requires real work, and that is what I think should be rewarded, not just ideas.  Not that this is a conversation I have had recently about required summer reading assignments or anything…

That said, I get it, sometimes you have a great idea and you can’t make the product.  This is why they’re called “Post-It Notes” from 3M and not “Steph’s Stickies”.  True story.  (OK, not really, I  totally stole that from Romy & Michelle’s High School Reunion.)  But you can’t just stop with the idea and go around suing other people who also had the idea and then executed when you didn’t.  And especially you can’t do that when you didn’t even have the idea to begin with, but bought it on the open market for a whole lot less than you’re  going to sue others for.  THAT’s what trolls do.  And again, you know this.

The topic moved to current legislation and how that will hurt innovators more than help them which is what we would expect someone on his side of the fence to say.  And it’s in this part of the conversation that the rubber met the road:

And, hopefully, we will tune out these special interest groups, like Cisco, et al., that are creating the hysteria. At least that’s my hope.

And there it is, folks.  Ray’s still fighting a 10 year old battle against Cisco because he and his ilk were called out on the original Troll Tracker blog.  Don’t remember that?  If memory serves, and I think it does, the final few posts involved the filing of an infringement lawsuit before the patent even issued.  Pssst…Mr. Albritton?  The cart goes after the horse.

cart and horse1

Anyway, Ray Niro offered up a bounty to find out who an anonymous blogger was because he’d been called out on his poor behavior.   Offered up a bounty.  On a blogger.  ??

Maybe it means something, maybe it doesn’t.  But what it isn’t is a surprise that Raymond Niro would be a staunch defender of the practice of patent trolling, and adverse to any legislation that may seek to curb such behavior.

JustSayin_small

IPTT

{smokescreen image found here: http://www.louimbriano.com/wp-content/uploads/2011/04/smokescreen.jpg}

{horse and cart image found here: http://hcrenewal.blogspot.com/2010/10/cart-before-horse-again-institute-of.html}

Someone Needs A Refresher On The Definition Of Troll

Carmel Deamicis, I’m looking at you.  Well, not at you so much as at your article.

First of all, trolls and elves aren’t even in the same fairy tale so the summer would be a good time to brush up on your Grimm’s.  Trolls are from Three Billy Goat’s Gruff, as you correctly identified, but elves are from the North Pole.  You know, where Santa lives?  So unless trolls have a really thick skin and know how to barbeque reindeer meat to survive the constant winter, I don’t think they’ll be encountering trolls anytime soon.

But that notwithstanding, I have to take issue with a few of your placements.

First up, RPX as troll.  Seriously?  Let’s draw a picture of how trolls work, just for giggles:

TrollScenario1_blog

See how the troll comes up from under the bridge?  What you’re asking us to believe with RPX is that this is what’s happening instead:

TrollScenario2_blog

Now, I’m not going to say that RPX never does anything wrong, these people certainly seem to think they’re not playing on the up and up, but that’s a topic for another day.  Tomorrow or Wednesday, specifically, but who’s counting.

RPX probably wouldn’t consider itself a troll at all, but it’s certainly profiting on the current broken patent system.

I’m quite sure they wouldn’t, lol.  Because here’s the thing: they’re not so much profiting on the current broken patents system as they are profiting from trying to thwart those who are profiting on the current broken patent system.  It’s not at all the same thing.

As far as putting that sneaky Cuban, Mark on the elves list, I am going to ask you to go ahead and read this.  If you’re feeding the trolls, then you’re part of the problem.  It doesn’t really get a whole lot simpler than that.

But hey, three out of four (twice!) ain’t bad!

JustSayin_small

IPTT

If I’ve Told You Once, I’ve Told You 100 Times

Aww, blogs grow up so fast these days.  One day you’re logging in to WordPress and trying to figure out what theme to use then *WHAM!*: you’re 100 posts into it and you can’t account for 1/2 the time in between.  It was only two years ago that I started mouthing off about trolls.  Either there’s a whole lot going on with patent trolls or I talk a lot.  (Hint: the first one.  Definitely the first one.)

When I first starting writing, the Nortel Auction had just occurred and boy were those fun times.  Those patents cost “the consortium” 4.5 Billion-with-a-‘B” dollars and helped ignite a Patent War that rages on.  Writing about it was the last thing Joe Mullin did before moving over to Ars Technica, and I love that his last post on The Prior Art is still up there.

What’s interesting is to see that some of the things I prattled on about back in July of 2011 are still in vogue, like Lodsys going after developers and my picking on Intellectual Ventures, in comic form.  Literally.

Just for fun and because I broke with my usual M.O. and completed a project one hour ahead of time instead of one minute ahead of time, I went back and re-read some older posts.  My goal was to make sure that I was consistent with whatever it is I’m saying.  I like that term way better than integrity because it’s more descriptive.  One’s actions should be consistent with one’s words should be consistent with one’s values.

To that end, I thought it might serve to list out what the whole patent troll issue boils down to for me:

  1. The business model of purchasing broadly written and poorly enforceable patents and suing anyone and everyone who might even remotely possibly be anywhere close to infringing is not just bad for business or bad for the economy or bad for small inventors or bad for larger businesses.  It may not be illegal, but it is WRONG.  The difference between those two is the difference between a person with character and a person without it.  You don’t see the word “wrong” very often because people don’t like to call a spade a spade for whatever reason.  I, however, have no problem with that.  Obviously.
  2. The patent system itself needs to focus on the execution of good ideas rather than the idea itself.  Ideas are like buses, according to Richard Branson:  A new one comes along every minute.  So have your idea, but do something with it!  Don’t just pay to have the government hand you a “Granted” stamp and wait for the money to start rolling in.
  3. Not all who are labeled patent trolls are.  One way to distinguish the white hats from the black hats is to ask Barry Leff track troll behavior via a demand letter registry like That Patent Tool.  By tracking who the trolls send shakedown notices to, we can build a picture of what’s going on.  We can put two and two together and introduce people who are under attack from the same troll and see if there might be a way to join forces and either go on the offensive, or make the process so much harder for the troll that the demand either goes away altogether or is reduced to pennies on the patent. We can build a community and expose the real trolls for who they are:  PEOPLE WHO ARE DOING SOMETHING WRONG.

I want to see the patent troll problem go away.  And I want to see it  go away because good ol’ American ingenuity has made it happen, not because the government stepped in to save anyone.  New laws and enforcement of existing ones can be a good thing, but I think the solution lies with the people to make this issue go away.

Even though it would put me out of a writing gig, I still want that to happen.

JustSayin_small

IPTT

Dear Companies That I Think Are Infringing: Don’t Make Me Go Thug! Love, IP Nav

There’s something just so endearing about a grown man using language normally reserved for the youngsters of a generation.  Personality, as we know from the Monsanto v. Bowman seed stealing case, matters and that is no more apparent than in this article in the New York Times about Erich Spangangberg, he of IP Nav um…fame?  Notoriety? Infamy?  You pick.

Herein lies the rub:

“Erich saved our bacon,” said Steve Dodd, a patent holder with a client company called Parallel Iron. “We were more than $1 million in debt and I was getting ready to file for bankruptcy.”

I have no intimate knowledge of what Parallel Iron does or what Steve Dodd’s patent is for so I’m going to just go right ahead and speak out of turn by saying that if you’re having to file for bankruptcy, might there be a reason beyond “I haven’t monetized my IP correctly?”  Something along the lines of tough competition, a failed new product release, a global recession, I hired my sister to do my books and she stole me blind…you know, things like that?  And really, Steve, how much of what Erich got in the patent shakedown licensing that he did for you did you get to keep?  It’s been said that

only about $6 billion of that money wound up in the hands of inventors,” said James Bessen, a co-author of the study and a professor at the Boston University School of Law.

I know that study has come under question, by me as well as few others, but if the numbers are in fact to be believed, then 6 billion out of the 23 billion that was spent on these lawsuits is {pulls up calculater} is 20.68%.  So all those inventors that companies like IP Nav are claiming to help are getting roughly 21 cents on the dollar.  Well, that seems fair.  I realize that Parallel Iron managed to come out of their negotiations with 42.5% of any settlement revenue so they’re beating the average.  But that’s still less than 50%, which tells me what we all already know:  IP Nav and their ilk have no true interest in helping the small inventor, they have an interest in helping their own bottom line, and the bottom line on their bottom line is this:  “…[they are] profiteering from a flawed and creaky legal system.”

This little nugget was fascinating:

He stands about 5-foot-6 and was bullied as a child because of his height. He always fought back, he says, and he usually lost; his nose has been broken by an assortment of fists. This has given him a lifelong hatred of bullies, which explains, he says, why he wound up in a job where he often stands with a small company assailing a larger one.

The irony just drips off that last sentence no?  Maybe the reason his phone is “ringing with new business” despite the public humiliation that should have accompanied a couple of Judge’s smackdowns (which you can read about in the link to the NY Times article) is because these inventors seeking his services were also bullied as children, and are now performing some sort of sick and twisted retaliation in the form of being a bully-by-proxy and hiring Spangenberg.  I don’t fully understand the psychology of bullying, but something weird is going on here.  Maybe I should send Erich my therapist’s number.  If I had one, I mean…

“Love, fear or greed,” he says, citing the key human motivations that are his leverage when he approaches any company. “I always start with love.”

That usually means an assertion letter, which may not sound very loving to recipients. In 2011, a judge in Wisconsin — not the one who mauled him — quoted from an IPNav assertion letter that included this sentence: “We are focused on addressing these issues without the need for costly and protracted litigation.”

I’m no expert on love, but I’m pretty sure that veiled threats is not one of the forms it takes.  Call me crazy, but it probably also doesn’t entail “going thug” on people.  IP Nav isn’t using love here, they’re being a bully.  The only way you can make a bully stop is to take away his power by standing up to him, like Rackspace and Neiman Marcus and NewEgg and others are starting to do.

There’s no app for that, but here’s a few visuals to get you all fired up again!

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.

Superheroes

Rackspace to the left of trolls, Neiman Marcus to the right!

I don’t care how much money Mr. Spangenberg has or how many cars he has or where he lives.  I care about what he’s doing, and that it’s wrong.

Just sayin’,

IPTT

Personal Audio Gets Personal, Survives The Lion’s Den

Talk about jumping into the lion’s den.  Jim Logan, founder of Personal Audio of “I’m suing all you podcasters, so git ready!” fame, agreed to participate in a forum on Slashdot.  And he’s still alive after the experience, which tells you that programmers and nerds really need to learn how to aim are just normal people at the end of the day. After reading the write-up on I AM Magazine’s blog, I have a better understanding of the issue here.  Jim Logan is the original inventor and holds the patent to the technology himself.  This puts him in a different category than your run of the mill IP Navs and Intellectual Ventures and other patent trolls in that he didn’t go out and bogart a stupid patent and haul off threatening everyone and their uncle with infringement. This is a great point here, made by yours truly and many other patent industry pundits:

For me the Personal Audio story is just another example of why a great deal of care is needed when debating trolls/NPEs/PAEs. Although it is tempting to see them as all the same, they are not.

No, they are not all the same.  I haven’t seen any of the demand letters that Personal Audio has sent out so either I’m not looking hard enough or they’re not posted anywhere.  But the I AM article makes an interesting point:

Increased transparency is also being mooted as a way to stop trolls. But Personal Audio is perfectly clear about what it is and who owns it; so new rules on that front will change nothing.

Did he explain his story in the demand letter the way the I AM blog did, or the way he did on Slashdot?  Maybe he did.  And this is one more thing that a national database of demand letters like I’m building at That Patent Tool would do:  it would expose not only the tactics of the true trolls by allowing me and others to triangulate information, it would also help those accused of being a troll by letting others see the full story. If Jim Logan had put it all out there in the demand letter and made a reasonable demand for a licensing fee by realizing that Adam Carolla, for all his funny, is not going to have the same resources as an Apple or Microsoft maybe he wouldn’t be so vilified? One of the things I want to do with That Patent Tool is build a community around the recipients.  In the case of Personal Audio, it would allow recipients to log on to the forums and talk about what’s going on, maybe form a loose consortium of buyers who can split the cost of a license?  You know, gather the smaller podcasters together, pool resources, and talk to Mr. Logan about a license that they could all take.  It’d be win-win:  Personal Audio gets to quit paying their counsel to send out letter after letter, recipients don’t feel like they’re being snatched by a beast from under a bridge and shaken down for an exorbitant fee: everyone’s happy.  Hugs? hug a troll It’s OK with me if you sing Kumbaya now. Just sayin’, IPTT {image found here: http://ultimategerardm.blogspot.com/2011/03/dealing-with-internet-trolls-cognitive.html}