Remember when Article One Partners hosted that Webinar series on NPE Risk Mitigation and Emerging Solutions? And remember that the last in the series didn’t turn into a brawl between Mr. Sterne and Mr. Ostrow like I
hoped thought it might? Well, that got me to thinkin’…is it time to pick sides in the patent troll war? Can one pick a side?
Robert Sterne of Sterne Kessler Goldstein & Fox is on record stating that his firm will handle transactions with companies who are known patent trolls because their money is green. I’m sure it’s more complicated than that but honestly, is it ever? Mr. Ostrow, on the other hand, has stated that his firm, Simpson Thatcher, will only represent operating companies and steer clear of trolls. He’s made the decision that the principle of the thing is, in fact, principles and he has them and won’t sell out to companies who’ve made a business model of extortion and thuggery and running small businesses out of town.
What’s happened as a result of the trolls’ success, however, is that operating companies are becoming more and more trollish in their behavior because they’ve seen that it is profitable. So either they become an actual troll and go after people for infringement over patents they’re not using, or a troll-by-proxy like Ericsson, who sold off it’s patents to Unwired Planet to do the dirty work for them. Does that make Ericsson, and the many others who’ve done the same thing but we just haven’t found out about it yet, a troll or an operating company? Muddy waters, you see.
Unified Patents, a new player in the NPE game, launched this past Spring with the idea of using micro-pools to “deploy a host of defensive and offensive strategies to deter NPEs from a protected technology”. One of those strategies is IPR, or Inter Partes Review and Unified Patents just filed their first one on behalf of their cloud storage micro-pool. The full text of the filing is in the link.
When you scroll down, you’ll see the firm they retained is Oblon Spivak. If you read the line above that, you’ll see that the attorney is none other than one Michael L. Kiklis. Wait, was that guy The Commish? No, hmm…Kiklis. Why does that ring a bell? Oh, yeah: Michael Kiklis. He was the attorney sued by SAS for breach of contract. While working as an attorney for Akin Gump who was retained by SAS for IP work, or more specifically strategies to deal with patent litigation, Mr. Kiklis evidently also represented JuxtaComm who, SHAZAAM!, sued SAS for infringement. (SAS won summary judgment in the infringement case just yesterday and the patent at issue was invalidated, so that’s a total win for SAS. The suit against Akin/Kiklis is still pending.)
Maybe the time has come to pick sides: If you say, as Mr. Ostrow has, that you’re not going to work with trolls then you have to find a way to mean that. If you’re going to take a stand against trolls, you have to dig deep and figure out who you’re really dealing with.
And you thought by the title that this was going to another Lodsys/Martha Stewart post, didn’t you?
Muddy Waters image found here.