Dear Michelle Lee: I Hope You Win, Plus A Couple Of Things

Dear Michelle,

Happy Monday!  I listened with rapt attention to your interview at the Brookings Institution last Thursday the way some people listen to Taylor Swift.  I wrote quite a few things down, because I never read a book or listen to an interview without a pen and paper handy lest I forget something important, and plus my 9th grade English teacher Ms. Fritchey (oh, you betcha we had fun with that name and also? Sorry Ms. Fritchey) would kill me if I didn’t.  The first thing I wrote down was this:

Deputy Commissioner for Patent Quality coming from the ? Step in the right direction…

I wrote that down on paper and on Twitter because I think it’s such a great idea.  When I interviewed a patent examiner (Part I, Part II, and Part II), s/he said

While I was employed at the USPTO, there were two search systems, called East and West.  Examiners would choose which one they wanted to use.   These systems searched only the patent database.  Now days, most examiners use Google Patent Search, but again that searches only the universe of existing patents.

Prior art search then is 99% patent literature.  So that is a huge lesson learned after leaving…technical manuals and publications need to be searched too.

charlie_brown_thumb[3]

“Oh, brother!” is right.

Emphasis mine, and it speaks to the issue of patent quality directly because good googely woogely, how on earth can you know if an idea is unique if you don’t search in more than one place?  To say nothing of the fact that some people couldn’t come up with decent search terms if their very life depended on it.  I may know one or five of those people, who can’t even find an address for the nearest pizza shop because they search The Googles for something like “italian pie” or “round thing college kids like to eat” and may I suggest you don’t google that second one from a government computer?  I have my reasons.

Quality is a real issue, is what I’m saying, and only partly because the examiners themselves don’t have the tools to do the job.  While there are market solutions to this problem, like the studs at Article One Partners, don’t you think it’s time the USPTO upped its game a little on that front?  Clearly you do, which is why you suggested a Patent Quality Czar.  You can totally steal that title because between you and me, it’s way cooler than “Deputy Commissioner for Patent Quality”.

Not to belabor the point even though I’m totally going to, have you seen this?  Where Exxon has patented selling energy, because that’s never been done before and is a completely non-obvious idea?  This is exactly the sort of crap the PQC has to stop letting through.  His or her first job out to be to check out the flaws in SAWS:

Sensitive Application Warning System (SAWS) that is supposed to flag applications that if issued could be controversial and subject the USPTO to undesired calumny and scorn,

It is highly unlikely that the USPTO wishes to bring calumny and scorn upon itself, that first one especially, now that I looked it up and know what it means.  SAWS should have have flagged this application from the get go but it didn’t and someone needs to understand why.

If one of your goals is to reduce nuisance patent litigation, even if you don’t want to call out patent trolls by name, then I think requiring that patent examiners be attorneys is a good first step.  Maybe not all of them, but somewhere along the path to a patent there should be a step where an attorney for the USPTO goes head to head with the attorney for the inventor.  You need to two people who speak the same language talking before the patent is ever issued.  Lawyers for inventors have only one goal:  GET THE PATENT.  Maybe it’s a good goal and maybe the invention is awesome and patent-worthy.  Or?  Maybe the lawyer’s just a wordsmith and out-maneuvers the examiner with legalese and wears them down with all.the.words far too often.  Just a thought.

Finally, I heard you mention that there might be an event of some kind in the near future, maybe something akin to the Patent Stakeholders Meeting almost a year ago?   Having attended that event, might I make a suggestion or two?  Like, maybe bring in some hors d’oeuvres?  Cheese plate?  Cash bar?  On that last one, I’d like to heartily recommend the bartenders from Lincoln because can they make a 1931 Mai Tai or what?  

mai_tai

It’s 5 o’clock somewhere…

 

All kidding aside, it sounds like a great step forward to bring some stakeholders back in and reprint the road map.  The way to find out what people want and need, in this and any arena, is to actually talk to them.

I wish you the best of luck in the confirmation process, and hope that you’re able to accomplish all that you set out do!

JustSayin_small_New

IPTT

{Charlie Brown image found here, delicious Monday morning mai tai found here, complete with recipe.  You’re welcome.}

 

Sasquatch Makes A Friend In The Pacific Northwest

I hate to think of poor Sasquatch, tall and hairy as he is, spending his life all alone.  Everybody needs somebody sometimes, didn’t one of the old crooners sing about that back in the day?  Not my day, but in really old people days?

Well, old buddy, you’ve finally found your match, as it seems that the far less rare beast named Patent Troll has found his way to your neck of the woods.  Tim Wilson posted this link about it…here’s some more info:

Homebuilders in Washington say they are being inundated with letters claiming patent infringement for the simple process of using fans and dehumidifiers to dry out a home after it has been framed.

OK first of all, if you would build homes someplace where it didn’t rain all the time, you might not be in this predicament to begin with.  (I’ll pause while everyone who loves Seattle gets out their poisoned pen to write me a nasty letter.)

BigFootMap

Yes, Virginia, there is a Bigfoot Field Researchers Organization. No lie.

 

Nevertheless, there you are and you’re being targeting like so many before you by

…one large patent troll alone [who] has recently sent letters demanding payment to more than 16,000 businesses in the U.S. and 313 in Washington.

While there isn’t one litmus test to determine if someone is a troll even though Paul Morinville thinks I have one, this is a key element of trollish behavior:  lots of letters blanketing lots of businesses in lots of places.  That makes you a patent troll.

It’s not just the homemakers getting hit…

Mark Allen from the Washington State Association of Broadcasters said that in the 48 hours before his testimony [before the State legislature], more than a dozen small radio stations had received angry letters. Some had taken angry, threatening phone calls.

Emphasis mine.  This is where personality comes in.  Maybe it’s just a Southern thing, but don’t people understand that you get more flies with honey?  Oh, the irony.

I’d like to see the history on both the “drying out a home after framing” and “hard drive storage of music” patents.  What are the patent numbers? When were they issued, which goes back to my question on Twitter about the average age of a troll’s patents.  Lex Machina, where is my email with that data?  Kidding, I haven’t officially asked you for it BUT I AM ASKING NOW.  We can visualize that and fill in another piece of the puzzle.

Y’all know I’m not a fan of the government solving this problem.  I’ll tell you what I want to do about it after this last quote, because it succinctly isolates the issue with trolls:

“It’s that kind of legal threat that comes at small business that leaves them handcuffed, frustrated with what could be a legal exposure and what they’re going to do to try and run their business,” said Bill Stauffacher, a lobbyist for the Pacific Printing Industries Association during a House hearing on a bill aimed at curbing trolls.

Handcuffed is a good word.  Businesses are beholden to these kids of threats because they don’t realize that a letter is not a legally binding “thing”, for lack of a better term.  You are obligated to do exactly nothing if you receive a demand letter!  If we could put these letters someplace, like That Patent Tool, then instead of being worried it would turn into the inevitable lawsuit because Mr. Whiney-baby Troll didn’t get the reaction he was looking for, we could build a consortium of other recipients and come up with a collective defense!

If you have kids, then you’ve probably heard of the book What If Everybody Did That?  The basic premise is to teach kids that, look, if one of you leaves a piece of trash on the playground it’s not earth-shattering.  But if everybody did, you’d be playing in a landfill and that’s gross and unhygienic, not to mention it’s a crime to Mess With Texas.  We don’t do litter here, y’all.  Anyway, why not apply that same principle to demand letters?  If everyone who received one tracked it somewhere where everyone else could find it, it would open up the lines of communication and promote a common defense.

This sounds familiar so I’m sure I’ve said this before even if I do a horrible job of tagging my posts and can’t self-reference like I should.  If every single person who got a threatening letter refused to answer it, they’d have to up their game.  They’d have to make the decision to actually sue, rather than just threaten to.  Divide and conquer, folks.  You can’t fight a battle on a million fronts.  I’m sure I can come up with another platitude here but you see the point.  The way to stop these guys can be summed up in two words: Exposure and Collaboration.  Exposure to the patent, the demands, and the companies making them.  Collaboration among recipients in an effort to either fund a common defense if a lawsuit is eventually filed, or to prevent that in the first place by putting strategies in place on the back end.  Use exposure and collaboration to target the trolls.

patent_troll_target

 

I suspect those tracking Sasquatch have had their share of exposure when people pull the monkey suit off the guy in the forest that they snapped a fuzzy photo of, claiming it was the mythical beast.  Unlike Sasquatch, patent trolls are real.

Tracking demand letters is not the only defense, I get that.  But if those who have been hit by trolls would expose the details then maybe, just maybe, we could build out own Troll Field Researchers Organization, graph the information, hunt them all down, and rid the business landscape of this plague.

JustSayin_small_New

IPTT

{Sasquatch viz found here.  Troll image found here and edited (poorly) by yours truly.}

Patent Litigation Down, Everyone Cheers! Turn Down For Whaaat??

Like everyone else on the internet, I went there.  It’s the only non-Taylor Swift song I’ve downloaded all year and frankly, I stand unashamed to admit that.  She speaks to my late-teens, early 20’s angst like no other.

{Wait, did I type that out loud?}

There’s been a lot of talk about how “patent litigation is down and look here, …don’t you know that means the patent troll problem (that people have been saying doesn’t exist) is over like clover?”  But a) are the number of patent litigation suits really going down, and b) does it matter if they are and c) how can you people continue to say things like “Behold, the patent troll problem is a thing of the past!” and “There’s no such thing as a patent troll!” at the same time?

Jackie Chan Confused

What is wrong with you people?

 

Lex Machina came out with a report that patent litigation filings were down 40%.  To wit:

Plaintiffs filed 329 new federal patent cases in September 2014, a 40% decrease from the 549 cases filed in September 2013.

Dennis Crouch over at Patently-O and I AM reported the same thing, citing Lex’s numbers because why not?  A 40% reduction in patent filings sounds all nice-like.

But if we take a look at what Unified Patents says, they tell a different story:

The number of 2014 patent litigation filings approached 5000, the third highest count ever.  Patent suits have risen dramatically since 2010, disproportionately impacting some sectors and technologies.

Say whaaat?  If you go back and look at what Lex’s numbers are reporting, you see that they’re taking Sept 2013 filings compared to Sept 2014 filings and saying “Look y’all, that’s a 40% decrease!!”  If you understand The Mathematics at all (or have a calculator handy), you’ll see that using standard arithmetic, they’re correct.  But while it makes for a good headline that everyone and their uncle likes to repeat, is it giving the whole story?

Just because you have numbers and can graph them doesn’t make what you’re saying true.  If that were the case, then we need to all but insist that Miss America candidates be no more than about 12 years old, lest those hot-vapor murderers kill us all:

badcorrelation

The thing is, it doesn’t even matter.  Whole numbers are nice, but it doesn’t mean that patent trolls haven’t caused unknown damage to small business and large businesses alike.  We all know what ‘they’ say:  There’s lies, damn lies, and statistics.

As I pointed out on Twitter, it’s not so much the number of suits that’s problematic, it’s who sues who and what it costs to defend.  If there were only three patent troll lawsuits in a single year, but those lawsuits shut down three companies, if those three lawsuits cost hundreds of people their jobs because company owners were forced to deflect funds to lawyers (the only true winners in any litigation), would we be better or worse off?

You can work the numbers to reach any conclusion you want, but it won’t mean there isn’t a problem with rogue companies taking their “patent rights” to the extreme and abusing the system to beat down either the competition or the little guy, who are sometimes one and the same.

To quote one of my favorite Harrison Ford movies:

Sometimes I sing and dance around the house in my underwear. Doesn’t make me Madonna. Never will.

JustSayin_small_New

IPTT

{Jackie Chan confusion image found here.  Spurious correlation graph found here.}

People Hate Monsanto For Reasons Other Than Their Patent Litigation Policies?

Happy New Year, everyone!  It’s good to be back in the saddle, even if the first post of the year isn’t truly about patent troll litigation and isn’t nearly as long-winded as my normal posts because I used up all my words trying to train my new puppy to quit eating my house shoes.  Look, I gotta mix it up now and then.  That’s what I almost never always say.

I came across an InfoWars post about Monsanto and that’s when it hit me that there’s a whole subculture around fighting GMO (Genetically Modified Organism, for those like me who were all ‘whaaaat??‘) foods and our friends at Monsanto are all about that bass.  You and I, of course, know them because they beat up on poor Mr. Bowman a while back because he grew soybeans with seeds from their soybeans because OMG, what else are you supposed to do with seeds?

picard-facepalm

 

I get that InfoWars has a bit of a dodgy, ‘out there’ following sometimes, but either way, I love it when a patent bully, official troll by my definition or not, gets their comeuppance.  LOVE.IT.

In other news, if you’re going to be anywhere near Stockholm, Sweden in late March, come by and see me at Nordic IPR.  I’ll be there with bells on, quite possibly in the literal sense.  YOU DON’T WANT TO MISS IT!  Topics and teasers forthcoming.

Finally, I’m going to be putting out a survey on Wednesday and I hope anyone and everyone with a vested interest in patents takes it.  So watch for that as well.

Looking forward to another great year here and elsewhere!

JustSayin_small_New

IPTT

{Picard facepalm image found pretty much anywhere.  Seriously, you could throw a dead cat in any direction and hit that meme.}