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.

JustABill_Nope

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.

JustSayin_small_New

IPTT

{Cute little Schoolhouse Rock bill image found here.}

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3 thoughts on “About That Hearing On Capital Hill Yesterday…

  1. I think its very simple: you don’t need a registry of letters; instead, make a voluntary national “registry” where patent owners can register patents that they ARE or INTEND to enforce against relevant products, classified by some topic. The incentive is, absent this registration, there is no possibility of past damages or an injunction, regardless of the type of patent (method, apparatus) by the PO. In exchange however there is no DJ jurisdiction against the PO simply for listing the patent in the registry – otherwise, no one will register for fear of being sued prematurely. There must be some other overt threat.

    This way everyone would know where to go and look at IP that is believed to be valuable, by the folks who know best: the owners. At least it would be a lot more manageable.

    IMO McCaskil’s suggestion today that they should induce employees of “patent firms” to squeal on clients is both unethical and impossible given client privileges.

    • Hi J Nicholas Gross!

      But see, if you do that, then all those companies who make money consulting on the value of IP for their clients will go out of business. 🙂

      The list of patents that companies ARE enforcing already exists. It can be found on PACER or by signing up for PriorSmart alerts (no affiliation with them, just pointing out the resources but if you want to give me kickbacks @DataKyle, I’m in need of some new Jimmy Choos so g’head!)

      Since patent assertion that’s reached litigation is already publicly available, you’d just need folks to sign up and say that they’re *about* to sue and if they don’t tell this registry in advance, they can’t collect damages. I dunno…

      I still like my idea better: collect the demand letters voluntarily (shameless self plug coming) at http://www.thatpatenttool.com, and build a community around information and common defense.

      Just sayin’,

      IPTT

  2. Greetings!

    as you know the cases on “Pacer” only represent those that are being enforce, not those being license; “enforced” is just a tiny tip of the iceberg… so there is still a lot more value in a registry

    that’s not to say that there isn’t independent value in a demand letter registry – I think they serve complementary purposes

    but the reality is, all the hype about “trolls” misses most of the underlying context of how…we got here – its like looking at the carcass of an old car and thinking “Damn the RUST got it” when in fact it was a car wreck 10 years before

    in this instance the STM holding – which, by the way, was brought about by aggressive DEFENSE counsel, as is typically the case – made it impossible to “negotiate” licenses; you could no longer send a letter inviting someone to discuss something rationally, and then proceed to have a reasonable discussion

    instead the Court sanctioned an approach whereby any contact is effectively grounds… for a lawsuit – that, my friend, pretty much killed all the patent dialogue

    if you are a patent owner, you have no choice but to sue first and ask questions later – that ALONE is the main reason why patent “lawsuits” by “NPEs” has exploded – all the other reasonable options were taken away – and take it from someone who has to pay lawyers and fees in this game, this is not a positive environment for a productive discussion, and doesn’t make sense for patent owners either

    in closing, if you are lacking for work I suspect its because pretty soon defense counsel will get their wish and kill the goose thats laying them golden eggs – the STM holding has been a bonanza for defense counsel but in their excitement to hype everyone against “trolls” they will soon find themselves without their best … customers

    Good luck!

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