G’day, Mark Summerfield! (Disclaimer: I am not Australian, I’m just pretending to be.)
I often bring conversations from comments in other blogs to my own because apparently? Blog commenting software typically tops out at, say, 100 words and I can totally use that up just stating my name, rank, and serial number, even if I don’t overuse commas which I do tend to do. The phrase “runs around the block to cross the street?” Totally written for me.
So Mark, that’s why I’m continuing our conversation here rather than replying again, so I do apologize in advance if that steals thunder from your awesome post because while I may be a little bit mouthy, one thing I like to think I’m not is a thunder thief.
Just to take exception to one thing in your post, Vringo? I think it’s not that big of a risk to call them an actual Patent Troll, even in Australia. Here’s a great source from my friend Dr. Roy Schestowitz, who’s sort of Australian by association since he’s British, who also quotes Groklaw so I think he’s in good company with this assessment.
As a quick aside, does anyone else think of that Johnny Depp/chameleon movie when they hear the name Vringo? It’s the bug-eyes that remind me of a patent troll, I think.
The resemblance is uncanny.
I really do like this point, and made it myself in the Backgrounder link:
The advantage of there being a market for IP is that it decouples the value-creation step from the production step. Good ideas can come from anywhere, but very few people have the capacity to successfully bring a product to market.
Exactly, totally see the point there. But is that really what Vringo is doing? Are they taking someone’s IP and making something useful out of it, because that person/company cannot? Or are they taking patents that were sold to them by, oh, I dunno, Microsoft just for instance, and using them as a bully stick with which to beat other companies who have already manufactured something of good use and likely didn’t even infringe but will settle so they don’t have to litigate? That’s what would be a bad thing, right?
This is gold right here:
We need to look beyond patent systems for solutions to the troll problem. Weakening patents is not the solution. Instead, we need to strengthen the ability of victims to fight back before a shakedown attempt can get anywhere near a court.
Yes, yes, a thousand times yes! However (there’s always a “however”, isn’t there?)
Regulations could make certain terms in IP licences illegal, e.g. any term tying a settlement, or a payment amount, to the desire to avoid the cost of litigation, rather than an agreed value of the IP. Attempts to impose such clauses should be exempt from confidentiality and immediately reportable to the regulator.
“Regulations” is one of those those words that leaves a bad taste in my mouth, similar to the word “vegetables”. Or “Bond Election”. I’ve trained my kids that anytime they see a “bond election” on the ballot that they are to make no mistake about it: it’s a tax. Taxes are bad. Ergo, the vote on any bond is an automatic “No”. But then, I live in a high-tax area in a state where the money goes into the school districts so that Johnny can play four years of football in a high school stadium that rivals most collegiate setups rather than sinking that money into better teachers and year-round P.E. so maybe I’m jaded? Whoa…where did all that come from?
Anyhoo, my reaction to the word “regulations” is to immediately translate it in my mind as “government intervention”. Sometimes, that’s needed. Most times, it makes things much worse. Rather, I would like to advocate that the market find ways to correct the problem of patent trolling. Here in the land of the free and the home of the brave, that’s starting to happen with companies like Article One Partners, RPX Corp, Allied Security Trust, Unified Patents, and a little start up run by yours truly called That Patent Tool.
That last one, if I do say so myself and I think I just might, would handle the problem of secrecy and cloaking their actions. If we could get people to enter demand letter information to “fight back before a shakedown attempt can get anywhere near a court”, then I think we’d be getting somewhere. Even if portions of the information is confidential, the basics entered into a nationwide database would give this data miner a good start at tracking these guys.
I want to end on this note, because I really could not agree more:
However, a bigger problem seems to be the incentive for patent warfare in the first place. Long patent terms create rich spoils and devastating weapons that are disproportionate to and decoupled from the process of invention.
That’s exactly right. We need to take away the incentive for the trolls to go trolling, and take those devastating weapons right smooth out of their hands. Giddyup!