What Kinds Of Patents Do Trolls Sue Over And Who Do They Sue?

I don’t know that either of those questions is answerable to a degree of 100% certainty, but a little light reading a few days ago got me to thinkin’.  Serendipity is one of those words that I love sneaking into conversations with people because I am under some grand delusion that it makes me sound smart to use big words.  Overcompensate much?  Why yes, yes I do.

Dictionary.com, defines the word as follows:

an aptitude for making desirable discoveries by accident.

I’m not sure it’s an accident or even, in fact, a discovery, but I read  this blog post and then I noticed an interesting search term used to find my own blog:

IPTTSeachTermsWhatKindOfPatent

So I thought “Trask –> Radio”

(If you don’t get the reference, please pretend for my sake?  The movie it’s from stars Harrison Ford and is therefore by definition on the list of Best Movies in the World.)

han-solo-badass-harrison-ford

What Brian Wassom seems to think, and I wholeheartedly agree, is that increasingly patent trolls are going after companies who are not in the technology sector, such as retailers:

Patent trolls actually sue more non-tech companies over software patents nowadays than they do tech companies, with retail being among the hardest hit of all.

And what’s more, his reasoning is sound:

That’s because the companies behind the software have a vested interest in defending it, while retail clients–who likely just licensed the technology as a one-off experiment–are much more keen to simply pay a nuisance settlement to get rid of the litigation, which the troll then uses to fund the next round of litigation.

The troll in question in this case is Lennon Image Technologies, of “we sued Ditto and then IP Nav ruined it for us with all their thuggery” fame infamy.   They have a patent on an AR technology (AR = augmented reality, such as the ability to try on a pair of virtual glasses) which is currently under ex parte re-examination.  We don’t know by whom, as Mr. Wassom points out:

 It was submitted by an attorney, but the party for whom he did it is allowed to remain anonymous.

The fact that he used the terminology “…is allowed to remain…” makes me think he thinks it shouldn’t be allowed.  And frankly, transparency is something that is sorely lacking in the whole patent space anyway, so I’m inclined to agree.  I guess the feeling from the other side is “if we tell you who we’re asking for a re-exam on behalf of, you’ll know we’re scared of you coming after us, Mr. Troll.”  A valid angle.

Addressing the question of what patents the trolls go after, it’s an easy call:  crappy ones.   Ambiguous ones.  Patents that never should have been issued.

In terms of who they sue, I think this guy’s on to something.  As the true definition of a patent troll includes, but is not limited to, the phrase “does not manufacture anything” they by definition always go after people who can’t counter sue for infringement.  But what Mr. Wassom hits on is that in going after retailers, they’re going after people who have no reason to sue them back anyway.  They don’t own the technology (or manufacture the product) themselves, they just use it (or sell it).  Retailers are in the business of retailing and are therefore more likely to settle because they don’t care about the technology itself or being able to use it in other products.

I mentioned in my Quarterly Troll Review that at some point, the target of technology companies is going to be played out.  Retail is someplace I think the trolls will head, though I envisioned the focus being more towards RFID technology.

Mr. Wassom has schooled me, and I’ll gladly take the lesson.

JustSayin_small_New

IPTT

{Awesome Harrison Ford image found here.}

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