Troll Talk 11/26, And A (Partial) Concession

First off, I have had my hat handed to me via Twitter  by one Andy Pitchford.  Well, not entirely because hello?  Like I would even let that happen.

The war of words disagreement was over the fact that he asked “Has anyone ever been sued out of business by a troll?”  I threw out my poster child of Ditto because they were, in fact, dangerously close to shuttering before selling out to IP Nav and being able to fend off the lawsuits from 1-800-Contacts and Lennon Image Technologies.  But dangerously close and actually being shut down are not, in fact, synonymous.  Ugh.  Some people are such sticklers for detail, no?

So I have vowed to find a company who’s been shut down by the threat of a troll lawsuit and if one doesn’t exist, I freely admit that I will then contend it doesn’t matter anyway.  You don’t have to be shut down to be affected by patent trolling, as start ups so often are, for patent trolling to be a problem.  That’s like saying robbery is only an issue if you’re robbed completely blind. They left your fridge and stove, even though they walked away with your TV, X-Box, three laptops, DVR, 60-inch flat panel, a four-wheeler from your garage, and the wheels off your car?  Well then, what are you complaining about?

See?  That argument doesn’t really work for me.  But whatever.  I said I’d find a company shut down by a troll and I aim to please and also like to not be a sore loser even though I totally am because growing up my father ingrained in me the phrase “Show me a good loser and I’ll show you a loser.”

Anyway, allll that said and to tie this post to the title which is sometimes a challenge for me, I’ll be in New Orleans over a portion of the US Thanksgiving holiday this upcoming week.  Tomorrow afternoon, in fact, I will be at the Hilton New Orleans/St. Charles Avenue in the lobby from 4-6pm waiting to pick a fight with someone discuss patent trolling with anyone who’s similarly inclined.  Troll Talk, we’ll call it.

If you’re near the area and are looking to get out of the freezing rain that seems to be all over the Gulf Coast right now, join in the fun!

And of course, to all the other troll trackers out there just looking to make a difference, may I say that I hope we all have a very Happy Thanksgiving!

IPTT

Troll Lobbyists Go To Washington + Goodlatte Gets Cold Feet = Coincidence?

There are a couple of interrelated things going on here which may require me to use the bulletted list feature (why does WordPress insist that bulletted is not a word?) and I’m not generally predisposed to that so this should be an interesting Wednesday.  Nevertheless, here we go:

• Senator Goodlatte introduces a bill that yours truly doesn’t quite like.
• A whole heap of lobbyists for patent trolls, Nathan Myhrvold and the Innovation Alliance (which may or may not be redundant, you decide)  included, show up in town and start shopping their sob story to whoever will listen which is to say they took Senator Goodlatte for a round of golf, let him win, and paid the after-round bar tab.
• Goodlatte amends his bill to take out one of the biggest things the sorry group of whiners was crying over, namely the extension to the covered business methods provision that would have allowed defendants to request re-exam over non-financial based patents in infringement cases, specifically putting software patents in the crosshairs.

Let me ask a question:  How is it a good thing to allow the USPTO to take another look at software patents when this is the agency that granted them in the first place?  And, correct me if I’m wrong, but don’t those folks take a bazillion years to get anything done now?  Putting more things on their potential “to do” list would…speed them up?  Maybe I’m not getting it but this was a suggestion in the Schumer patent reform bill as well.  I didn’t like it then and I don’t like it now.

But at the same time, to IBM/Microsoft/Apple, all you big players bellyaching about it, I say a big fat “Are you kidding me??  You realize that by not wanting to open your software patents up to re-exam you’re effectively saying ‘it’s because they’re bad’, right?  You get that, don’t you?” Ai-yi-yi-yi-yi!

I understand the frustration at the fact that the big players, either as individuals or as part of a lobbying group, have stormed The Hill and stamped their little troll feet and boohooed until the thing they didn’t like was removed.  It’s awful.  But it’s also allowed  by law.  Lobbyists are a scourge, but not illegal and sometimes a necessary evil.

Patent trolling is like this as well, except for the “necessary evil” part of course.  A moral scourge but not an illegal one based on current laws.  Many of the efforts to make their behavior a matter of breaking federal law will serve only to either reduce the problem temporarily while the trolls find a way to skirt said new laws (they’re already searching Teh Google for ways to undermine the Schumer law) or it will have an as-now unforeseen affect on another part of the population that uses patent litigation legitimately and those poor saps will get lost in the shuffle.  This is why, in my never-to-be-humble opinion, broad legislation to fix the patent troll problem will create more strife than it alleviates.

Of course there are some changes to the laws that would be helpful, I don’t mean to throw the baby out with the bathwater.   Holding off on discovery, a huge cost, until after any motions to dismiss are heard, would be a great thing.  Requiring full transparency as to the owner, all assignees, and all parties-in-interest to a patent would also be good.  Force these folks to be on the up and up about who they are.  Thumbs up on that!

But going too much further to bend and shape American laws to ward off the trolls seems ill-advised.  There are things in the market like Article One Partners and their prior art searching, efforts at collecting demand letter data so that victims and targets of trolls can collaborate…those are great things.

And they’re great mostly because they don’t require government intervention and new laws and votes and lobbying.

IPTT

{Image of Ricky going bananas over Lucy found here.  And on a t-shirt, no less!}

Rosetta Stone For Patent Transactions: Unwired Planet Edition

OK, first of all, does Al Gore know about these guys?  I mean, Al invented the internet but these guys have evidently one-upped the former Veep by claiming thusly:

Unwired Planet invented the mobile internet

You can just take your piddly little Interwebs and go on home now, Al.

“I’ll get you, my pretties. And your stupid patents, too!”

Unwired Planet is a patent troll former operating company that decided to start waging war with patents rather than make anything anymore because they could no longer compete.  They’re publicly traded, albeit with low prices and low volume.  Ericsson sold over 2,000 patents to them a while back, adding to their arsenal.  Never thought a company like Ericsson would wage a proxy war, but then I also never thought 80’s mall bangs would go out of style so what do I know?

Time to resurrect the Patent Troll Translator (PTT™) and go to work on their PR drivel, first from this article:

“We continue to aggressively pursue licensing opportunities while managing our operating costs,” said Eric Vetter, president and chief administrative officer of Unwired Planet. “We have created an optimized partnership with some of the leading intellectual property law firms to cost efficiently drive our patent protection initiatives.”

PTT™ says?:

“We continue to look for opportunities to troll companies using our crappy patents,” said Eric Vetter, president and chief enforcement of stupid patents officer of Unwired Planet.  “We have created a partnership with some leading intellectual law firms, ones that don’t mind being on the morally bankrupt side of this battle, to efficiently drive our patent extortion initiatives and line all of our pockets.”

Since PTT™ did such a good job there, I thought we’d run this link through as well:

“Square generates substantial revenues from mobile payment technology that relies on the intellectual property that Unwired Planet developed and patented many years ago. We are seeking reasonable compensation for continued use of this technology. While our first choice is to reach a licensing arrangement without litigation, we have determined that enforcement is necessary in this instance,” said Phil Vachon, chairman of Unwired Planet.

And again we hear from PTT™:

“Square generates substantial revenue and we don’t like that.  We think they need to share their hard-earned profits with us because we did something mobile payment-related a bazillion years ago and they have to pay up now, dammit.  We are seeking as much money as we can possibly get for continued use of technology that probably doesn’t even infringe because our patents are old and yucky.  While our first choice was to have them respond to threatening letters and phone calls, we have determined that they think we’re joking so we are taking it to the judge, beotchez.” said Phil Vachon, chairman of Unwired Planet, inventor of the mobile internet.

And there you have, the translated version of what Unwired Planet is really up to.  When will these folks learn that you can’t put lipstick on a pig and make it pretty?

IPTT

{Fabulous Al Gore finger-pointing image found here.}

Captain Kirk Is A Patent Troll, Is What I Think Just Happened

Do you know who Jay Walker is?  I’m not going to ask if you know who Captain Kirk is because I don’t want to embarrass you on a international national local large small stage if you don’t because holy cow, that’s some huge rock you live under if you don’t know and I say that as a Star Wars fan and not a Star Trek fan.  (Monthly quota for run on sentences?  Met. )

Jay Walker is the guy who founded Priceline back in 1998.  That was just on the cusp of the Internet’s Big Bang, and he saw a way to sell all those unsold airline seats and hotel rooms at the last minute by providing a way for users to simply go online and name your price.  One William Shatner, of aforementioned Captain Kirk fame, was and remains the company’s spokesperson.

“Call me a Patent Troll again, and I’ll ninja you, woman!”

Short history:  Mr. Walker decided to leverage his patent portfolio from the development of Priceline, among I’m sure a great many other ventures, with a company called Walker Digital.  He put the portfolio up for sale but when he didn’t get the bites he wanted, got in bed with Erich Spangenberg at IP Nav and has been asserting his patents since.  Walker Digital sued five people in October of 2011 (heavy hitters like Google and Amazon), three more in February of 2012, and three more in January of this year.  That’s just from what I saw when doing a quick search of my emails from PriorSmart.  According to this article, however, they’ve sued a whole lot more.

Jay Walker (meet him here, he has TED talks so the has to be one of the good guys, right?) is the original patent holder for the portfolio that Walker Digital owns, so I will give him props for at least having something to do with the inventions, as it were, rather than buying off the shelf and then enforcing.  That reduces the ick factor by 1/4, I suppose.  But the fact remains that he uses broad patents issued years ago that can now be shoe-horned into the definition of most of the internet today and he’s taking advantage of that and suing everyone and their Mother.  And while that’s true, it’s also true that he pulled an ESN and filed a lawsuit just as the ink dried on a more recent patent (story via Techdirt here).

Recently Walker Digital merged with GlobalOptions Group which is a forensics company that used to provide services to law enforcement agencies.  So, you know, a natural pairing for a patent assertion entity.  Um, what?  Evidently, Walker needed a way to get on the stock market and that’s why they went all in with Global.   You wonder how the principals of the two companies got together.  Golf?  Their wives knew each other from the Bunco circuit?  We may never know.

Anyway, the companies are now one and will trade under the name Patent Properties Inc., and I do give them props for their understated logo.  They thought completely inside the box on that one. What they’ll do is disrupt the patent market with a new licensing model that “serves the commercial interests of all parties.”  He says that he’s been on all sides of the table when it comes to patent litigation, and he doesn’t like it.  Only oops?  Here’s the sides he’s been on:

He and his companies have sat in every seat around the patent table, as inventor, licensor, licensee and plaintiff.

Maybe my glasses prescription needs updating, but do you see defendant on that list?  To say nothing of the fact that he broke the Oxford comma rule.

Nevertheless, Mr. Walker’s speech here at this link is rather stirring.  He says a lot of the right things, at least where I’m concerned.  But he doesn’t go into enough detail, which is to say that he goes into no detail, about how his innovative licensing system works and what it will entail.  One guess it that he’s product-mapped the patents that are most at play.  This is something that would be a huge data-entry undertaking so maybe that’s why, but how come there’s no big list of patents and the products their used in?  Can we not get that information on any kind of reliable basis?

I guess we’ll just have to wait and see what this new Patent Properties, Inc. and it’s licensing system entails.  But until then, I know that I will never watch another Priceline commercial again without thinking about patents.

And that, my friends, is how you tie Captain Kirk to patent trolls.  I did it with a big derriere, I can do with with science fiction.

IPTT

{Ninja William Shatner found here.}

About That Hearing On Capital Hill Yesterday…

I learned something very valuable yesterday regarding this hearing:  I learned that if I have my cell phone on mute, I won’t hear calendar reminders.  Can you even believe that?? As a result I was only able to catch the last 10 or so minutes but thankfully, I have Twitter and a list of hashtags to peruse, courtesy of Ali Sternburg at Patent Progress.  (If you don’t want to take the jump, they’re #trollhearing, #patentreform, #fixpatents.)  For those of you who are likewise smart-phone impaired, or who didn’t know about it in advance, you can view the archived hearing here.

The point a lot of the panelist seemed to be making, save for poor Mr. Mossoff who seemed woefully alone in his defense of the Dark Arts, is that there must be some sort of government mandate surrounding the demand letters that patent trolls send out.  They should be required to contain certain information, and they should be entered into a national database so that others can see them.

Negative, Ghost Rider.  The pattern is full.

The idea that there should be some sort of mandate on sharing the letters, either by forcing the assertion entity to register it or (worse) requiring the recipient to do so, is silly, not to mention unenforceable. It puts too big of a target on the backs of the smaller companies to admit when they got a letter because then they’re fair game for more trolls. The bigger companies don’t need to share because, unless they’re going to fight publicly, they just pay and it goes away.  Still, they have the same fear of transparency and becoming an even bigger target.  Besides which, as the letters are pre-lawsuit, they’re not now, and shouldn’t be in the future, public information.

The whole idea is that people should want to share, in whole or in part, redacted or not, so that it benefits the collective good. What companies get out of sharing is access to all the other collected information so that they can contact other recipients and collaborate on defense.  Or, at a bare minimum, get a read on the MO of the trolls in aggregate and figure out their own individual plan of counter-attack.  Also, there’s the idea that just simply seeing the demand amount offered to other victims gives any other recipient a little bit of leverage:  “Hello, Scanner Dudes?  You’re extorting $1500 from me but only asked for $500 from Victor Victim #2.  What the hell?”

But it can’t be forced. You have to show people the value, first for themselves and then for others, of sharing and shining a light on these trolls or they won’t do it.  You can’t coerce them with some scary new law that will undoubtedly have a horrible unforeseen side effect that you’ll then have to make yet another law to clean up.  We don’t need more laws, we have trouble enough enforcing the current ones, for heaven’s sake.

Just to give the dead horse one last beating, I am not a fan of the government stepping in, really at all on this issue. I admit to liking a lot of the Goodlatte bill, and surely there is something to be done about the glut of bad software patents (which, who are we kidding, really don’t need the “bad” qualifier) and that is a government area for sure. But beyond that, the Feds will only screw this up.

Having said that, I think the State Attorneys General position on this issue is exactly the correct use of the government. Hit them with consumer protection laws, which are already on the books!  And as part of the process, require that they disclose their letters in discovery.  That I can get behind, and it’s why all three states that are taking this approach made it into the Patent Troll Fighters Heroes Gallery.

I have a website called That Patent Tool that was set up to collect information about demand letters.  It also allows users to create a unique and un-identifying forum user name with which to post questions and ask for feedback in a secure forum.  The whole idea is to get people to put information in, as much or as little as they’re comfortable with, and then start digging into the data and see what we find.  I’ve posted twice now (here and here) about what’s been entered so far.

It’s not a huge data set yet, but I still believe that individuals and companies will become more comfortable with sharing information over time, particularly when they’re able to get with other recipients as a result and see how they can best attack the trolls.

It’s exciting that the dialog about patent trolls has reached such a fevered pitch that Capital Hill has noticed.  I’m just not convinced that making demands about demand letters isn’t too demanding of an approach.

IPTT

{Cute little Schoolhouse Rock bill image found here.}

comScore’s CEO Goes Thug, Sadly Does Not Win Case Using Either Fists Or Lawyers

OK, you got me.  Not “sadly” because WOO HOO, a troll lost!!  But sadly for them, I guess, if you’re the sort that feels sorry for loser trolls.  I’m not that sort, in case it wasn’t clear from every word I’ve ever written on the subject.

The background goes that comScore very deplorably sued three well-funded start-ups over software that shows you how many people saw your ad, clicked through to your ad, or skipped it altogether like I do 100% of the time.  First off, there were eight patents in the suit and several were many years old and very broad.  Really?

So, wait just a minute.  You’re saying that a company bought a group of old, nebulous patents and then sued small companies for infringement knowing full well that they were just funded enough to pay you a huge extortion fee license but not enough to fight you in court?  Hold up, isn’t there a name for companies like that?

By George, there is!  What you have here is the textbook definition of a Patent Troll.  A troll that evidently ripped a page from the playbook of Mr. Go-Thug himself and nearly got into a fisticuffs with opposing counsel because working for a troll lends itself to all manner of savory behavior, she said sarcastically.  Did Magid Abraham’s mother not teach him to use his words?  Good grief, Charlie Brown.

But then Oops!!  One of the three companies they sued, Moat, fought back.

“Oops?! Don’t say ‘oops’!!”

Here’s the crux of the issue, and we saw this as a possibility with Ericsson when they sold off their portfolio as well (quote from this pando article):

When a company is suing based on these grounds [i.e., old useless patents], it’s not about protecting IP, it’s about protecting one’s own ass. ComScore’s stock has been in a steady decline since it reported a loss in March. In its latest quarterly earnings report last week, the company’s loss widened to $6.6 million, and it lowered its revenue outlook for the full year. The company is struggling and this move reeks of desperation.  (A ComScore rep wasn’t immediately available for comment.)

Desperation is not a good business model.  Trolling, as we’ve all seen, is.  Or rather can be unless people fight back like Moat did.   And especially when they fight back and win, well, that’s even worse for the trolls.

And that leads me to this, the unveiling of a new feature here at IPTT called the Heroes Gallery:

Patent Troll Fighter Heroes Gallery

Here you will find a listing of companies who’ve fought back against trolls.  These are the people and companies we need to be celebrating and teaming up with and using as a resource for how to play the game and come out on the side of the guys with the white hats.  The list is evergreen, and will hopefully continue to grow as companies find ways to rid the patent landscape of the scourge that the trolls are.  I hope to make it a little flashier as soon as the kids stop asking me to feed and clothe them I get some free time, but it’ll do for now.

If you’ve fought a troll and won and don’t see yourself on the list, give me a shout and I’ll add you in.  As for Moat, welcome to the club, guys!!

IPTT

With a very special thanks to my friend Tim who came up with the idea for the gallery.  Muchas gracias!

{Image from the best move ever made after the Star Wars franchise found here.}

That Big Sonic Boom Late Last Week? That Was Rockstar, Getting The Party Started

First of all, I feel not unlike Rodney Dangerfield these days, what with the President’s lack of regard for my schedule and now the reports of Rockstar Consortium’s decision to file a lawsuit that came on Halloween night when I’m busy trying to ferret out all the Reece’s Peanut Butter Cups from the candy my kids got.  Thanks, Rockstar.

So here’s my question for the consortium members:  At what point do you spend your time improving your own products and innovating instead of hiring people to deconstruct the success of others?

I don’t know the going rate for cell phone reverse engineers is these days, but I know that it’s probably a pretty penny especially since Rockstar reportedly hired 10 of them.  Ten people.  To spend all day and night ripping apart a product to see if it infringes on one of 4,000 patents.

Haystack, meet the needle.

It took you a little over two years to do it but low and behold, you feel as though you’ve gotten the smoking gun, the holy grail that will do…what?  Tie your money up in litigation for years?  And in that time span, your hope is that the Android share of the cell phone market will decline, right?  That the man on the street is going to go “ZOMG!  My Android-based phone was made by a company who infringed on a patent!!  I simply must change platforms now, for I cannot be a party to this madness.”

Yeah, I’m sure that’s exactly what’s going to happen.

What is so disconcerting about this whole thing is this:

“The principals have plausible deniability,” said Thomas Ewing, an IP attorney who spoke to Wiredabout Rockstar. “They can say with a straight face: ‘They’re an independent company. We don’t control them.’ And there’s some truth to that.”

“Plausible deniability”?  What is this, the movie Independence Day?  We’re not talking about some alien holed up in Area 51 which is (probably) fictional and no one told the President so that if the aliens ever did attack, the public wouldn’t go crazy saying he knew all about it which is pretty much the whole plot of the movie so I totally just saved you a Netflix rental, you’re welcome.

What we’re talking about is heads of the major smart phone manufacturers getting beat into the ground by phones using an operating system that is, whether better than theirs or not, out-selling them so they have stamped their little feet and said “Fine.  We can’t beat you fair and square?  We’ll have our consortium sue you.”

Again, “plausible deniability?”  Please do not pee on my leg and tell me it’s raining.  Any deniability on the facts surrounding what is really going on here is completely implausible.  When it  comes to Google specifically, there’s this:

Rockstar may want to keep the patent conflict as a kind of “proxy war” between Google and its competitors. But Google has plenty of patents, and this new attack seems assured to bring a counterattack.

Right?  I mean, in what world does Microsoft and Apple and the other 10%-ers believe that Google won’t retaliate?

Here’s the final kicker, from this article by Seth Fitzgerald:

One of the most intriguing aspects of the lawsuit is that Google had tried to buy the Nortel patents for $900 million but lost when Rockstar put up a significantly larger bid. Google went on to counter Rockstar by acquiring Motorola Mobility for $12 billion. Despite losing the chance to acquire Nortel’s patents, Rockstar claims Google went about using Nortel’s ideas anyway.

I maintained back then and still do now that Google didn’t want those patents (read here and here).  What they wanted to do was drive the price way up, and they did.  Fast forward to now, and while Rockstar has spent two years and lots of money digging for their “Ah ha!” moment so they could come out swinging, Google went right on with their bad self and put their money into innovations such as Google Glass.  I’m not all up in Google’s financial business but I can only presume that since they weren’t paying off that $4.5 Billion bill, they also instead used their money to buy an actual operating company that comes with a whole set of patents that they can now pull out of their back pocket and use.

When I was in the 4th grade with Mrs. Unger, she had us all draw a picture of a nuclear warhead.  Each picture represented X number of weapons that the US had.   Then, a certain sub group of students was asked to draw a warhead that represented X number weapons that the USSR had.  The whole point was to show us that really, after a certain point, it didn’t matter how much fire power each side had because the minute one country or the other fired off, we were all assuredly going to be dead.

Mutually assured destruction, I think is what she called it.

Right.

IPTT

{Harvey Spector eye roll found here. Chart of smartphone market share found here.}