“Then I Looked At Twitter And There Was A Tweet Saying It Was Dead”

And that’s how patent reform ended last week:

On Wednesday morning, tech sector lobbyists thought they were in the final stages of pushing through a hard-fought compromise on patent reform. “Tuesday night it was moving forward, Wednesday morning it was moving forward,” said Julie Samuels, director of Engine, a group that lobbies for startups. “Then I looked at Twitter and there was a tweet saying it was dead. What the hell?”

That quote from Julie Samuels in Joe’s article pretty much sums it all up, no?  Well, as it happens, probably no.

Tech sector lobbyist should know by now that it’s never over until the fat lady sings, and she hadn’t even opened her mouth yet on this one.  Not only has there been push-back on patent reform legislation from inventors and patent trolls, it seems the real bugaboo was the pharmaceutical companies and (*gasp*, can it be??) trial lawyers.  That certainly came out of left field…or did it?  < — That links to a post about how  the tech sector as a target will eventually burn out and the trolls will start going after oil and gas and pharmaceutical companies, in case you don’t want to make the jump.

fat-lady-sings

 

Here’s where it gets interesting for me personally, referencing this quote:

Leahy’s public statement saying that the two sides “couldn’t compromise” isn’t true. There was a compromise draft, hashed out mainly by Senators Chuck Schumer (D-NY) and John Cornyn (R-TX), that was expected to move forward and be marked up by the committee.

So Chuck Schumer, he of the bill that was never a good idea, and my hometown boy John Cornyn were working behind the scenes.  Let’s fill in a gap here…

Friday, May 9th, I was in an airport in Philadelphia awaiting my flight  back to my lovely family of teenagers whose angst and disgust with life in general I didn’t miss at all was longing to rejoin, when I received an email asking if I knew anyone in the Houston area who’d been hit by a patent troll.  I’m pretty darn organized if I do say so myself, but  didn’t have my spreadsheet handy so I agreed to look up some companies and reply when I had more info.   It seems that Mr .Cornyn was organizing a local press event and wanted someone who’d been a victim of a patent troll on hand to make it personal.  Always a good plan to have people tell their story in their own words.

Only before I could research who might be a good front for the soiree, I received a second email saying “Oopsies, never mind.  Not needed now.”

I’m no conspiracy theorist because all that over-thinking eats into my social life,  but I do wonder if maybe the signs of a crack in the process weren’t already showing?  Here’s my thinking…you set up press events to hail good news, to indicate that you’ve won something.  It takes a while to set up a press event.  You have to find a venue, line up speakers, alert the press, buy a new suit for yourself, make sure who ever you’ve lined up to talk has time to clean up for the cameras, all of that.  If you think a bill is going to come to a vote and pass towards the end of May and you want to trot out reps from a company that it will directly affect, then you better start getting that house in order.  Say, around the 9th of May.

Did John Cornyn have a whiff of Harry Reid’s move back then?  Was there some other conflict in his schedule that made a public forum undesirable?  Not sure, but the timing does strike me as interesting.

There are those who think that patent trolling was born out of tort reform during the Age of Asbestos, and this quote from the Ars Technical article makes reference to that:

Many law firms working in traditional plaintiffs’ areas like personal injury or securities class actions have added patent work as other sources have dried up. In Texas, there has been talk about how tort reform in that state had a hand in creating the patent litigation hotspots like the Eastern District of Texas, as lawyers went “from PI to IP.”

The story goes like this:  trial lawyers were building entire practices out of suing companies who’d used asbestos in their building materials, even before it was shown to be a carcinogen, by trolling for victims and exacting huge settlements, most of which they themselves retained because that’s how they roll.  When tort reform became a reality and punitive damages were capped, they had to go somewhere else.  Patent infringement became their next big stick.

And this is why I think legislation is the wrong way to handle the patent troll problem.  Why?  Because people who want to game the system will always find a way.  If you want to stop them, you have to play the game differently.  Or, in the case of our Patent Troll Fighter Heroes, refuse to play at all.  Running to Uncle Sam and those on Capital Hill won’t help you, and if it does it will come at a too high a lobbying price and won’t last long anyway.

This first great attempt at patent troll legislation is dead for now.  Who know when and in what form it will resurface, but I hope that the good guys have learned a good lesson out of the process.

I’ll let them decide what that is.

JustSayin_small_New

IPTT

{Opera singer image found here.}

 

 

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Dear Patent Reform Haters…

If the supposed mantra from the anti-patent troll camp is that “anyone who sues for patent infringement is a troll”, then the view from the other side must be “all patent reform will drive inventors into the ground and kill us all and OMG the sky is falling!!!”  That sentence is totally worthy of three exclamation points.

Why do I over-exaggerate?   Because of articles like this by Louis Foreman from The Hill.  Oh, brother.  They are highly critical of the troll haters and I think they even said that there’s no such thing as a troll, unlike leprechauns which are of course very real and probably living in my closet as I type.  The article begins with this gem, wherein they take exception with the very term “troll”:

First, there’s the name—no one wants to be associated with something that sounds like the evil cousin of a leprechaun.

leprechaun_final_a_by_giovanikososki-d5v0q46

Zoinks! Maybe they *are* cousins?

 

Opening with a funny?  Who do you people think you are, me?  Anyway, Louis moves on to say:

For one thing, the issue of so-called patent trolls isn’t as all-encompassing as one might believe to hear the talk from Congress (not to mention the barrage of advertisements addressing the issue).  In fact, an overwhelming majority of patent infringement lawsuits from 2007-2011 were brought by operating companies.

‘So-called’ patent trolls?  Dear Innovation Alliance and all of you who retweeted the link to this article, please let me introduce you to eDekka. Yeah, I’d call them trolls and you should too if you want to be taken seriously.  From the Matt Levy article at Patent Progress:

The most prolific filer was a patent troll called eDekka, which filed 87 separate patent infringement suits. In this latest flood of suits, eDekka sued companies like the NFL, Etsy, FTD.com, GameFly, and 1–800-Flowers. (eDekka had previously sued another 70 or so companies, including Apple, Lowe’s, Walgreens, and JCPenney.)

Eighty-seven separate patent infringement suits and these guys aren’t a troll?  Look y’all, I’m on record many many times stating that I don’t think this is a problem that major federal legislation will resolve, except where it relates to lawsuits/demand letters and the things that the trolls should be required to put in.  And I don’t even think it should go too far.  But requiring that a plaintiff explain at least where infringement is alleged to occur, on what patent and in what product, is not too much to ask.  Why?  Because mounting a defense costs money, and much more so if you don’t know what you’re defending yourself against.  It is not unreasonable to expect that if someone’s suing you, you should be able to decipher why.

In other words, just because eDekka is allowed to file a uselessly vague complaint, companies like B & H are going to have to waste tens of thousands of dollars on these lawsuits.

This is the problem with trolls:  once they file a lawsuit, you’ve already lost.  Even if you win, it will come at too high a price for some companies (mostly startups) to bear.  It’s insidious and it’s mean and abberation of what patent law was created for.

Heightened pleading requirements would increase eDekka’s costs substantially, because it couldn’t simply reuse one complaint 87 times.

Why would anyone complain about this?  I keep thinking to myself “Self?  If I were so convinced that someone had infringed on my patent I would be all up in that business and list out every single instance of infringement and find a way to prove it was willful if I could (and snag those treble damages).”  Why don’t the trolls like to explain what they’re suing over?  Ooh ooh, I know this one!  THEIR CLAIMS ARE BOGUS.

Patent reform haters say

We simply want to be part of the discussion and make sure that we are not the collateral damage from a rushed and not-so-well-thought-out legislative process.

If that’s the case, then quit pretending there isn’t really a troll problem.  I’m constructing my Q&A with an inventor right now, it’s not like you guys don’t have a forum.  Just be smart about how you use it, and not say things like ‘so-called’ trolls.

Some companies are ‘so-called’ because they so are.

JustSayin_small_New

IPTT

 {Creepy trollechaun image found here.}