OMG Lodsys, You Don’t Want To Go There With Martha Stewart

So first off Lodsys, you’re aware that Martha Stewart has been to jail, right? Oh I know, I know, it was a “white collar prison” but seriously, woman served time.   It’s not enough that TM Soft and Todd Moore put the beat-down on you, you’re going back for more and you’re picking on, like, the most notorious bitch this side of me when the kids have eaten all my chocolate.

Be afraid.  BE VERY AFRAID.

Via The Verge’s article:

Unlike the small app developers that Lodsys typically preys on, however, Stewart’s company isn’t interested in playing ball.

See, I would argue that they are, only Lodsys?  You’re the ball.  MSLO is going to bat you around until there’s nothing left.

Cat_batting_ball_lg

“Come here, my pretty little Lodsys…”

To add insult to some pretty serious injury that’s likely to occur, they continue:

Furthermore, it goes a step further and asks the court to declare that all of the patents indicated in the suit are invalid — a ruling that could help other companies dealing with Lodsys.

Oh boy oh boy oh boy oh boy.  That’s gotta sting.

If you thought Girdlegate had potential, just wait.  This woman eats insubordinate underlings for lunch.

MarthaStewart-1

If looks could kill, the suit’d be over already.

Predicted outcome?  You’re gonna get creamed.

JustSayin_small

IPTT

{Cat image found here, Martha image found here.}

Interview With A Patent Examiner, Part III

Note:  This is the third and final in a series of posts about my interview with a former Patent Examiner, who worked for the USPTO from 2000-2008.  Read Part I here, and Part II here.

Despite suffering wicked withdrawals from a lack of black and whites, it’s good to be back home.  Texas and I are going to have to talk about this 95 degrees in September thing, however, now that I spent time again in a place that has all four seasons instead of just two (hot and hotter).  New York CIty?  I love your Fall!

Back to work we go…it’s time to finish up the series from my interview with a former USPTO Patent Examiner with the most timeliest topic we discussed: software patents.

The sixth and tenth of my 10 questions were these:

6.  What is your opinion on software patents, and the mantra that “computers do math and math is not patentable”?

10.  Any general comments?

Software patents are all the rage now, or at least raging against them is.  Your friend and mine Gene Quinn recently had a conniption fit wrote a blog post about how “intellectually dishonest” we all are for thinking that software patents are a problem at all, which was kind of odd.  It was a fairly technical post and long about the time people start inserting pictures of computer guts, my attention span tends to fade.  Nevertheless, I’m certain he has valid points, I just don’t know what they are.

The majority of the patent blogosphere and Twittosphere (which is to say “Twitter”) has major issues with software patents, and my examiner was no different.  He laid the blame at the feet of patent claims, where he said

Software patents are for a processor with instructions and you can have the instructions to be anything.  Because the process is intangible you can write anything into the claims.  It becomes a word-smithing exercise.  It’s based upon elements which I don’t think should be patented.

It’s too difficult to ask an examiner, because of the limitations on them including that they only search the database and not, for example, technical manuals, to make that call.  It’s a lot harder for the claims to be examined.

The second paragraph goes back to his statement that the corpus of knowledge that patent examiners search for prior art is too limited. And that’s an issue…patents are slipping through the process because people aren’t looking in the right place for prior art, or because the filing attorneys have done such a good job with the wording of the claims that it’s just different enough to exiting patents that it will not get any direct hits when the patent database is searched.  That’s a problem that has solutions (hello, Article One Partners!)

As for the first part, I agree with him that it’s a word-smithing game.  When you look at some of the patents that are being litigated, the “auto-complete” patents, for example, how is that not obvious?  One of the points my examiner made was that something may be non-obvious based on the fact that it hasn’t been patented before, or based on the fact that the applicant’s high-dollar attorney is telling you it’s a novel idea and not obvious because that’s what he’s been hired to do, or because you just didn’t talk to the right people.

My point being that particularly in the case of software patents, one conversation with a programmer and you’ll learn that, seriously?  Auto-complete has been around in one form or another since 1991 because why?  It’s obviously a useful feature.  So how is it all of a sudden now a patent that anyone who writes websites has to have a license for or they’ll get thugged out of existence?

That’s just dumb.  Legal, but stupid.

pbs-software-patents

If you don’t know who Martin Goetz is, watch this.  What you’ll see is that the whole idea of software patents was born out of the fact that one company was giving away for free what another company wanted to charge for.  I’d love to tie this into Mike Masnick’s thoughts on industry disruption, and how companies that write software could have found other ways to monetize what they’re doing rather than sue IBM and cause a ripple effect that years later, would bring start ups to their knees.

With regard to the tenth and final question of the interview, my patent examiner’s comments were a recap:  give examiners access to a wider range of prior art search options to prevent bad patents from being issued, and find a way to draw attorneys into the job so that they can match wits and intellect with the applicants’ hired guns.  He suggested that putting together a database of the text of technical manuals would be a good use of increased funding, and mentioned that Google was working on a project like that, or so he’d heard.

There you have it, straight from the horse’s mouth.  The single biggest thing I learned is that Julie Andrews was right.

Let’s start at the very beginning, it’s a very good place to start.  When you read you begin with A-B-C.  When you sing you begin with Do-Re-Mi.

Issue good quality patents by having the right prior art search tools and the right mindset about what should be patentable and what shouldn’t (hint: not software), and you create an atmosphere where innovators can feel safe spending their years and their dollars dreaming up new products.  The patent system was set up to encourage people to create something new and give them a time frame to be successful without the fear of others piggy-backing off their hard work.

Somewhere along the way, we lost sight of this basic idea, and it became all about the money and the weaponry employed by modern companies as they seek to wipe out the competition using any means available.  I’m no kum-bye-ya (and hello? exactly how many ways are there to spell that??) hippie chick, I know that companies are not all going to just get along.  But if we can fix some of the things that are going wrong at the USPTO, we can at least force a little bit of disarmament, no?

JustSayin_small

IPTT

How To Track Patent Trolls In NYC

Honestly, I wouldn’t have a clue because I am too busy tracking the supplier of black and whites for the gift shop at Sloan Kettering on the Upper East Side.  Been sequestered here since Saturday and seriously, the gift shop inventory manager is about to get a “visit” from me because good God in heaven, man, YOU RAN OUT OF MY FAVORITE COOKIE.

Fail.

Regular blogging, and Part III of my interview with a (former) Patent Examiner shall commence late this week or early next, depending on when I can hitch a ride back to God’s Country which of course translates to “Texas”.

There’s a Starbucks near the hospital, and can I just say a big Thank You to whoever planned NYC because it could not be eaisier to get around in this town, what with all your numbered streets and such, on I think 2nd Ave? For anyone who wants to talk trolls and patents, I will be there at 10:00 Wed a.m. eating pumpkin bread which is a very poor substitute for the black and whites that I have a feeling will still not be restocked by then.

Just sayin’,

IPTT

{For those who are not fortunate enough to have tasted the deliciousness that is a black and white, read here:  en.wikipedia.org/wiki/black_and_white_cookies}

I Really Want To Take Back My Dittos, DITTO

Background:  DITTO is a company that lets you try on glasses virtually via an online app, so that you can see what they look like before you buy them.  Some other players in the glasses industry, notably 1-800-Contacts, didn’t like this young padawan learner getting all up in its Jedi business, so they bought a patent and sued DITTO for infringement, the net effect being that DITTO ran out of money to fight and the owners were forced to either sell at less than optimal value or get outside help.  They chose to get outside help from the devil himself a company called IP Nav.

I’ll be honest, I’m hurt.  My feelings were genuinely and inexplicably hurt when I read that DITTO sought help from IP Nav.  At the end of the day, I don’t have a dog in this fight.  Oh, I have a dog alright, but he’s too stupid to care about patent trolls and the fact that a promising start up was just forced to make a deal with the devil to survive.

Well, wait a minute…that’s not entirely true.  I do have $30 worth of dog in this fight, in that I contributed the minimum amount to DITTO’s Indiegogo campaign and got a t-shirt.  There are a few theories I have about why this campaign may not have reached it’s goal (notice my artful avoidance of the word “failed”), not the least of which is the fact that people don’t like to wear purple, even if you try to disguise its purpleishness by calling it “raspberry”.

Nevertheless, it doesn’t matter now.  DITTO has sold out to the worst bidder in the game.  From people that I know who are in the know, I understand that what Mr. Go-thug himself wants more than anything is legitimacy.  He wants to be seen as someone wearing the white hat who swoops in and saves the little guy, and DITTO served that up on a silver platter for him.  They are the little guy he once was himself who just needed someone to help fight off the bullies who’re stealing his lunch money.

spangenberg_thug

Mr. “Go Thug”

You can blame the patent system, and the Wired article does to a certain degree:

For casual observers who don’t follow intellectual property disputes, the whole idea of a system that enables patent trolling is still astonishing. … Patent-trolling seems to directly violate the basic premise of inventing: People who don’t make anything suing people who do.

Fair enough, even given the caveat that all trolls are Non-Practicing Entities (NPEs), but not all NPEs are trolls.  But here’s the crux of the issue:  the small companies that get hit with these suits need a place to go for protection.  Not everyone can be a Rackspace or a Newegg or a Fark (and thank God for that one…you know I love you, Drew!!), all of whom have fought back against the trolls and had success.  This is what Julie Samuels was getting at:

Under such duress, no one should fault any single business or individual for the choices they make in a patent fight, says Julie Samuels, a staff attorney at the Electronic Frontier Foundation. “To ask someone who’s facing a patent troll to do what’s best for the world, which is to fight back or make a lot of noise, is often asking them to do something that’s against their short-term interest,” Samuels says. “The systemic problem is different than the problem that any one company finds itself facing.”

That last sentence bears repeating:  “The systemic problem is different than the problem that any on company finds itself facing.” 

I can’t pretend to know what it’s like to be in fear of losing a business the size of DITTO.  I’m not in Kate Endress’s shoes (though she seems way more fashionable than me so I’m betting I’d like them if I were and I’m a ladies size 7 narrow so send some my way and we’ll talk) so, you know, there but for the grace of God go I.   I have owned a company before and own one now, but have never had the kind of pressure that comes with having to lay four people off at once because of pending litigation.  She’s doing what she has to do to survive, we all make choices.

I just wish her choices weren’t between “Lay off the rest of my employees and shutter the  company” and “Lie down with dogs, wake up with fleas.”

JustSayin_small

IPTT

{Erich Spangenberg image found via The Dallas Observer.}

Interview With A Patent Examiner, Part II

Note:  This is the second in a series of posts about my interview with a former Patent Examiner, who worked for the USPTO from 2000-2008.  Read Part I here.

In the first part of the series, the focus was on questions 1, 2, 4, and 5 which dealt mostly with the whole process of what happens to a patent application when it arrives in it’s cute little envelope at the USPTO, how the examiners are organized into coffee clatches groups, how the chain of command works, that sort of thing.  Now it’s time to put your waders on for a deeper dive into the topics of Prior Art and examiner skill set, including salary information direct from the horse’s mouth.  The horse, of course, being the publicly available government website that lists salary information.  <— Answer to Question 9?  Done and done.

The topic of most interest to me was that of prior art and the question I posed was this:

3.  What tools do you use to search for prior art? Is a prior art search even really a major part of a patent application review, or is that expected to have taken place before the inventor files?

The answer provides a lot of insight into how those problem patents that the trolls exploit came into existence to begin with.

In answer to the first part of the question, my patent examiner said this, and I quote here just to make his answer stand out, it is not a verbatim direct quote but rather my piecing together of notes of the conversation, emphasis mine:

While I was employed at the USPTO, there were two search systems, called East and West.  Examiners would choose which one they wanted to use.   These systems searched only the patent database.  Now days, most examiners use Google Patent Search, but again that searches only the universe of existing patents.

Prior art search then is 99% patent literature.  So that is a huge lesson learned after leaving…technical manuals and publications need to be searched too.

Did you catch the bolded part?

Russell-Brand-Mind-Blown

My mind, like Russel Brand’s (if he has one?), is blown.

He did add that there is a “USPTO Library” of sorts where you can put in a request to have more searches done, outside the scope of existing patent literature.  But that can take up to two weeks and is often done by people who are not well-versed in the area.  Meaning, they are not experts in the subject matter like the examiners in a particular Art Unit are.  Often the results that you’ve waited a few weeks for, potentially dinging you on your on-time deliverable metrics, are not worth it.

And speaking of those metrics again, this was interesting to note, again, not a verbatim quote:

One thing that is nice about only searching patent literature using existing systems is that the results are standardized.  It is very easy then for the Primary Examiner or Supervisory Primary Examiner to review work done by less experienced examiners.

Convenience outweighs knowledge in this case: the USPTO would rather have the results be uniform than thorough.  My paraphrasing, he didn’t actually say that.  That’s what our tax dollars are paying for, right?  Right.  I guess?

With regard to the second part of the question about how much prior art search work is done before the application is sent in, there’s a little bit of politico going on there as well.  The lawyers who submit these applications on behalf of their clients know that if they do a prior art search that is thorough and they find something, there goes the application (and the associated client fees).  BUT, if they do only a cursory  “good faith” review so that they can say they did it without being called liars, then the application has the possibility of getting approved because you can betcha dern tootin’ those attorneys know that the USPTO’s prior art search is really a prior patent search and won’t turn up much.

And we wonder why the patent system is in disarray.

The conclusion that my examiner came to was that finding prior art is not difficult.  But what is difficult once a patent has been issued, is taking that prior art to the patent office and getting it to be reviewed to invalidate a patent.  Which tells me that the prior art searching before the patent is even issued is where the USPTO needs to step up it’s game.

BAD patent-image034534534

I have no idea what this is but 1) it’s gotta be a bad patent and
2) I wish I had one in college.
(#2 makes sense, think about it.)

Let’s circle back to the lawyers here for just a second, because it helps answer my Questions 7 and 8, which were as follows:

7. What would you change about the USPTO as it pertains to the number of examiners and their skill set?

8.  Would more funding solve any of the problems that you now see at the USPTO

What my examiner said was this (my compilation from my notes once again):

Being on the outside now, when I have interviews with examiners I see that there is  an intellectual drop off.  They are smart engineering-type people but are not as well-spoken or persuasive as the lawyers arguing on behalf of the application.  It would level the playing field to have examiners be lawyers.

To directly answer Question 8, he said that more funding to pay a higher salary to examiners with law degrees might help in the quest for better patent quality.  They’d be able to speak the foreign language that is “lawyer”and therefore be less susceptible to the high-pressure tactics that patent lawyers sometimes use to push an application through.

They’d also be more aware, and this is my own personal perspective, of the prior art search capabilities that exist in the world outside the USPTO bubble.  Look, it’s no secret that working for a government agency leads to tunnel vision.  If you put some financial incentives in place for all those EE/JDs out there to transfer in from their God-awful 5th year “not-partner-material” Big Law position as a patent examiner, you might get someone with some real smarts behind the wheel of the patent issuing machine.  Someone get Above the Law on the phone, I think I just solved their problem of so many disgruntled attorneys writing in to bellyache.  You’re welcome.

Questions 7 and 8?  Now also done and done.

I found this part of our conversation the most enlightening, because it really does speak to the lowest common denominator which is bad patents.  Now, I will always contend that patent trolls will take patents and use them as a stick to beat people with no matter how good or bad any one patent is, because they get their kicks going thug on the little guy; they’re going to extort higher fees than necessary using those patents and do it from people who aren’t even infringing but can’t fight the charges.  So don’t think for one second that I’m going soft on what the trolls’ business model really is.

But because there are so many patents out there that should never have been issued to begin with, it makes absolute sense to take a look at how that happened and what potential preventative solutions are out there.

In the final installment, we’ll tackle the subject of software patents.  There are those who would contend that they are not a problem at all (Gene Quinn, I’m looking at you), but many would disagree.  In Part III, we’ll let my former patent examiner weigh in!

JustSayin_small

IPTT

{Russell Brand’s mind blowing gif found here, crazy toilet thingy patent image found here.}

Interview With A Patent Examiner: Part I

Admit it, you thought I was going to say “Interview With A Vampire”, didn’t you?  Well, here’s some news for you:  I don’t do vampires.  Or spiders.  Or Tom Cruise movies, but I digress.  As usual.

But what I do do, or rather did, is interview a patent examiner.  Actually, he is a former examiner, having worked in the USPTO from 2000-2008.  I had a list of questions prepared, and we spoke on the phone for over an hour, and this and probably at least one other post is the result of our discussion.

With all the talk of patent quality right now, it occurred to me that other than purchasing Patents For Dummies lo those many moons ago (and then not actually reading it), I had never done much to understand how something comes to be patented in the first place.  Turns out, what I learned was every bit as life-changing as when I discovered that I could teach my kids could to fix me my dinner.  Goodbye, in-home chef!  (Kidding, he lived in the garage.) I think it’s crucial to understand what happens when a patent is applied for, and the circumstances surrounding when that application comes in, because it matters.

It’s fortunate that the time frame my subject was employed was during the time that software patents became en vogue.  Sometimes, I’m lucky that way and all the stars align.

Although the A’s don’t corrolate exactly with the Q’s because it was a fairly free-flowing conversation, here are the questions I asked:

  1. What does a typical day look like for a patent examiner? Do you arrive at the office with a queue of patents and just churn through them?
  2. Are you given a quota of patents that you have to review? Are there percentages that are expected to be granted vs. rejected that you must adhere to, similar to what people think goes on with cops and traffic tickets?
  3. What tools do you use to search for prior art? Is a prior art search even really a major part of a patent application review, or is that expected to have taken place before the inventor files?
  4. What is your opinion on software patents, and the mantra that “computers do math and math is not patentable”?
  5. What would you change about the USPTO as it pertains to the number of examiners and their skill set?
  6. Would more funding solve any of the problems that you now see at the USPTO?
  7. Any general comments
  8. Are your results vetted by other examiners, meaning do you ever work in groups to review an application or is it always just one on one, one examiner per application?
  9. In a standard work month (i.e. no holidays), how many patent applications did you review on average during your tenure?
  10. Are you paid a salary, or paid by the number of applications you review and/or approve?

Without further ado, lets get to the meat and potatoes.  Questions 1, 2, 4, and 5 were sort of lumped together in our discussion and a picture began to emerge about how the USPTO is set up.

What you have is an “intake office”, where the applications are initially received.  They are given a precursory review, and lumped into categories, or Art Units.  Art Units are groups of 10-12 examiners who review applications that cover a specific subject matter area.  The Art Unit my examiner belonged to dealt with biomedical devices and technologies, things like the machine used to cauterize errant electrical pathways in the heart for people with Wolff-Parkinson-White syndrome.  Like my 10 yr old son who just went through this procedure and boy am I glad those patents were approved because Holla!  The boy is fine now.

Aaaaanyway, each Art Unit is headed up by a Supervisory Primary Examiner.  This is the person responsible for the work of all Primary and Junior examiners in his or her Unit.  To back track a little, when you first arrive at your new job as a Patent Examiner, you are essentially given the title of “Junior Patent Examiner”.  You’re assigned to an Art Unit and for the first six months or so of employment, your work is reviewed by a Primary Examiner.  (This becomes important in later parts of the interview because it matters who you go to. )  Here’s a graphic for you visual learners out there:

PatentExaminerInterview_Graphic1

Each examiner, Junior or Primary, as the Primary Examiners have their own docket of applications in addition to the ones they review and sign off on for the Junior Examiners, has a queue of 6-12 months worth of applications.   You work your queue based on what stage the application is in, and when it’s due date is.  So for example you might have a few applications where you need more information from the applicant, or you need to do some research on the technology, etc.  As a matter of work flow practice, the examiner I interviewed would work on those items together.  In other words, it’s not a process where an examiner sticks with one application all the way through the process and only when it is stamped GRANTED or REJECTED does he/she move on to the next one.  It’s a very iterative process and examiners sort of set their own pace to work through the queue and meet the individual deliverable deadlines.

To that end, my interview subject pointed out that there is not a lot of interaction amongst the examiners.  Each sort of works in a bubble, coming out when they need to get approval for something and then move on.  Additionally, many are working on their law degrees at night…this is not a party office environment where people are discussing their applications, going over claims and sharing knowledge with others.  It’s a silo farm.  This isolation, if you will, was increased when the USPTO began a work-from-home initiative (I can feel Marissa @ Yahoo rolling her eyes) and  the examiners rarely occupied the same physical space.

Each examiner may have 5-6 deadlines within a two-week period, but no actual quota of applications that have to be completed within a given time frame.  And to that point, there is no metric that says a specific percentage of applications in your queue must be granted or rejected.  Performance is judged not as much on the quality of the work, as it is on the percentage of available work performed on  time.  It is a deliverables-based metric, essentially, and you get points for each deliverable that you meet.  If the percentage of earned points available in a given time period falls below the acceptable range (95 to 110% of available points kept you out of trouble) then you are visited by the Supervisory Primary Examiner.  Note: in the South, we use the word “visit” as a euphemism for ass-whooping, as in “Frank? I need to visit with you about your internet usage on company time…”

The Art Units convene every six weeks or so to review processes and go over any procedural issues and discuss the productivity of the unit as a whole.  I’m not sure if there’s competition between Art Units, but if I were an SPE I would totally use my powers of motivation by saying “Seriously guys?  Those people in Heavy Farming Equipment are eating our lunch.  We’re Biomedical Devices, y’all…let’s show ’em what we’re made of!!”  But I have no confirmation from my source that that sort of thing ever actually happened.  The meetings were probably more about the TPS reports and who brings the best donuts.  Nevertheless, regular meetings were part of the process, is the point I was making.

I don’t think it would be fair to say that quality work doesn’t matter at all to the USPTO, I want to be clear on that.  But from the conversation I had, it appeared that it was more about  getting acceptable work done in an acceptable range of time.  This is a point I’ll address in the next installment when we answer questions 3, 6, and 7.

Now that we understand the background of what a USPTO examiner does and how the process of approval works at a 10,000 foot level, we can move on to things like patent quality, software patents, and what changes could potentially be made that would make the most difference in the fight against patent trolls.  The goal for me in understanding this process was to figure out if there was something awry, something that was aiding and abetting these patent trolls as they go about wreaking havoc on American businesses.  I think the next few installments coming this week will shed some light  on that.

Y’all come back now, y’hear?

JustSayin_small

IPTT

Paper On Predatory PAE Practices Practically Perfect

Much like myself Mary Poppins, this paper by Erik Hovenkamp on the economics of patent trolling is practically perfect in every way.  It breaks down the problem to the very root, which is of course the almighty dollar, but it does it in a way that makes sense.  Except for that one section where there were way too many sigma symbols and equations for this non-math loving girl, it was perfect.  Hello?  There’s a reason I stopped taking math at differential equations, OK?

Mary-Poppins-mv03

Note: This is not me. But I could totally rock an umbrella and a scarf if necessary.

The point of the paper in my mind was to clearly define the differences between Patent Assertion Entities (PAEs) and Predatory Patent Assertion Entities which is to say patent trolls, to show the economic harm that they do and the economics behind why they do it, and to proffer a solution.

There’s a lot of chatter in the news and on blogs about how to properly define a patent troll.  One need look no further, as Mr. Hovenkamp has nailed it (I’m paraphrasing here):

Patent trolls are no more or less than the prison bully who beats other prisoners up, provoked or not, so the entire cell block will know to say the hell away from him.

OK, OK, so he didn’t really say it like that.  What he said was actually this, but who’s  counting (emphasis mine):

In this paper, we argue that some patent assertion entities may use
an analogous strategy to monetize low quality patents: the fi rm aggressively litigates when its licensing demands are rejected (despite expecting to lose money on the suit) in order to injure the defendant and build a litigious reputation that intimidates future defendants into accepting its licensing terms.  We refer to this practice as predatory patent litigation because, like predatory pricing, it involves a short run loss that is recouped in the long run through supra-competitive pricing.

So, you know, bullying and outright thuggery.  This definition needs to be pasted into every single IP Litigation manual the world over as a reminder of what kind of people we’re dealing with when we call someone a “patent troll”.

He further goes on to show us what the right kind of PAE is, because as we all know and I have myself mentioned in the Backgrounder link, there is a time and place for patent assertion entities to help the crazy old Uncle Farnsworth out in the barn monetize his idea so Aunt Gertrude can buy one of them fancy ol’ clothes-washer thingies.  Here’s the White Hat/Black Hat comparison:

Proponents of these firms [the “white hats”] contend that they enhance welfare by providing a vehicle for small inventors to monetize their ideas, and by improving patent market liquidity. By contrast, opponents argue the [predatory] PAEs [the “black hats”] inflate social costs, and inhibit innovation by creating a more contentious competitive environment for inventors, subjecting them to licensing “shakedowns” that erode the profi tability of their new ideas.

Exactly right.

I totally skipped over the technical sections because, as noted above, math.  But once the words started again, this stuck out as a reason why patent trolling needs to be stopped:

How, then, does the practice of predatory patent litigation affect the behavior of practicing entities? The most obvious effect is that it gives firms an incentive to do a lot more patenting, particularly in situations where the resulting patents are of low quality and would otherwise possess little resale value. Indeed, even patents that are almost certainly invalid are now valuable to a PAE, giving firms an incentive to supply them whenever this value exceeds the cost of patenting. And, importantly, this increase in patenting need not coincide with an increase in socially valuable innovation; it may even serve as a substitute for inventive activity.

The bolded section is what is most harmful overall, in my never-to-be-humble opinion.  It gives rise to people like the Fuzzibunz lady who I have written about here and here, and who thinks that just because she has a great idea and has patented it she can write her own ticket to the golden palace.  It matters not whether she has a lick of business sense or whether her idea, patented or not, has market value, she has a patent, dammit!  Now where are those profits??

This is such a harmful thing for the American Way.  It’s not the idea that matters, it’s what you do with it.  Just like with smarts.  There are a lot of really smart people behind bars and on skid row for many different reasons but the point is that smarts alone are not enough.  Patents alone should not be enough to ensure anything other than a temporary competitive advantage for taking risks associated with needed or wanted innovation.  That is what they are for.

But because of patent trolls who are turning patents into a weapon, they’ve helped foster an environment where everyone has to “patent up” or risk being unable to defend themselves.  Or worse, everyone wants a patent so that they can get rich quick.  Terrible.  Terrible for the economy and terrible for free enterprise that makes this country such a great place to live.

The only thing that I would take issue with in the article is the suggestion that something akin to Collaborative Defense (service mark to RPX) to fight trolls is a good idea.  It’s currently being tried by RPX and isn’t, as I understand it, working out too well.  You know why?  Lawyers.  They don’t like to share, it’s really as simple as that.  Asking lawyers to go in on a defense is like asking two little boys to share popsicles:  highly unlikely unless you’re these two.

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Lawyers would never do this. Just sayin’.

He makes all the similar points in favor that RPX makes and they seem really good on paper.  But the free rider problem is always going to be lurking, as is the idea of any single law firm being able to represent a host of companies at the same time due to conflicts.  To say nothing of the companies who decide mid-suit, for some reason or another, to settle out.  You can penalize members of a Litigation Cost Sharing Agreement (LCSA) for this, but they may well be prepared to take that hit to just get out cleanly.  And they will not be willing to or even able to disclose their reasons for settling out, so the idea of a collective group of people fighting the same enemy which is dependent on shared information all of a sudden has no sharing of information.

It seems like such a great idea and I do hope that someone’s able to make it work.  I’m just not convinced yet that it can.

What CAN work is the idea of crowd-funding the Defense Against the Dark Arts of patent trolling.  DefenseMob is a start-up offering just such a solution, and it’s funds can be used for more than just litigation, for things like funding Inter Partes Review or prior art searches.  What makes this solution so good is that contributors  can send money anonymously (I’m assuming).  Rather than having competing entities who are being shaken down by the same troll have to (here’s that icky word again) share, they can each contribute monetarily to the other’s campaign without anyone even knowing.  This allows for them to fund a (potential) proxy win against the troll in the hopes he will stay under the bridge where he belongs and not come after them.

As Mr. Hovenkamp’s paper indicates, because of the economics involved we know the predatory trolls are willing to move all the way to litigation even in the face of a certain loss, and I’m pretty sure it has something to do with all those fantastical calculations he showed.  But if they are forced to go to court much more often, and lose much more often, and their rubbish patents are invalidated much more often…that?

That will sting.

JustSayin_small

IPTT

{Mary Poppins image found here: http://images.starpulse.com/Photos/Previews/Mary-Poppins-mv03.jpg, John and Michael with ice cream cones courtesy of my own collection, and also for sale at iStockPhoto.com)