What Made The Trolls Trolls, Anyway?

I know what it was…they were mistreated as children.  Their Mommies wouldn’t let them eat ice cream for breakfast, and made them make their beds and bring their laundry down each morning.  When the Look of Death failed to frighten her into submission, they packed up their marbles and went in search of better living accommodations where they soon realized that they actually couldn’t do much better out on their own and maybe, just maybe, Mom knew what she was talking about but out of spite, settled under bridges and scared passersby into paying them a toll to cross over to the other side.

Actual Look of Death from my actual child.
Be afraid. Be very afraid.

 

But if we’re talking about patent trolls, the road to perdition is a little less clear.  There are lots of different reasons, the way I see it, that the problem has  gotten out of hand.  Here’s a list of where I think things went wrong.  These are just my opinions, of course.

Lack of Court Competition – It’s been posited to me on Twitter that perhaps it isn’t the Federal Circuit, as this article by Timothy B. Lee suggests, that has been a factor.  I disagree.  I think that whenever there’s a lack of competition for something, be it a consumer product or justice, that’s not good and it breeds advantage-taking.  From the article:

 The Federal Circuit Court of Appeals enjoys a monopoly over patent appeals, and it has used that power to shift patent law in a direction more favorable to patent holders, including trolls. Taking away the Federal Circuit’s monopoly over patent law would be a big step toward bringing balance back to the patent system.

Now, maybe they didn’t use their power to shift patent law to favor patent holders.  Patents themselves favor the holder!  But when there’s no check or balance built in, this is a risk you run. That’s an issue, and something that trolls are wont to take advantage of because that’s how trolls roll.

Further, there’s the idea of “pay to play”:

They don’t just hear patent lawyers’ arguments in their courtrooms, they also mingle with them at conferences and social events.

This is what Gene Quinn at IP Watchdog was getting at when he talked about the big corporations rubbing elbows with lawmakers, and about how they didn’t really care about patent trolls so much as they were in bed out playing golf with them.  Timothy Lee makes a similar argument, only with troll lawyers and judges.  If there’s only one circuit of appeals (Supreme Court notwithstanding because we all know very little makes it that far) and those judges are hobnobbing with the lawyers who appear before them, then how impartial are they, really?  This is why I think the Federal Circuit is a part of the problem.

The Death of the ‘Dust Docket’ – Whether it was a result of tort reform or people having had enough of the huge judgments against companies as a result of shady personal injury trial lawyers, the dockets for things like asbestos poisoning began to dry up.  So where’s a sneaky lawyer to go?  Hmmm…patents.

The barriers to entry to file a patent infringement suit, or better yet, simply send out a bagillion demand letters, are low.  All it takes is an attorney with some free time and pretty (or not) letterhead, and there you go.  Some patent attorneys are complicit in the problem, is my point, and I’ve written about that.

Bad Patents – Patent quality matters.  When patents that are overly broad and cover obvious claims are issued by the USPTO, it creates the perfect scenario for troll tactics.  Article One Partners chose an excellent tag line, and they’re going after the problem at the very lowest common denominator.  You have a host of patents related to business methods and software that should never have been issued.  But now that the genie is out of the bottle, how do you put it back in?

Very expensively.  You either file an IPR, fight full-on in court, seek declaratory judgement…whatever you do is going to cost you something.  And that’s just what the trolls are counting on when they seek to buy up these rogue patents and throw them around like daggers.

The issue of bad patents is partially a result of patent examiner practices, which you can read about here, here, and here.  It’s a related problem, and it helps feed the trolls.

Lack of Desire to Fight– Not all companies that are hit with a demand letter or an infringement suit are going to fight.  They have their reasons that they don’t want to be on the Patent Troll Fighter Heros Gallery, and that’s OK.  (It’s not, really, it’s very hurtful to me personally but I recognize that it’s not about me even though it totally should be.)  But every time someone rolls over, it makes the trolls stronger.  It reinforces their business model and they learn that if they just keep trolling, the money will keep rolling in.

Sometimes, victims of troll-ish tactics actually approach another troll for help.  This makes zero sense to me, but I’m not trying to save my company so I try hard not to put on my Judgy McJudgesteron pants.  Although it is very difficult.

It may not be so much a lack of desire to fight as it is a lack of funds to fight.  I do recognize that.  And then there are the companies that just don’t give a rat’s.  They have the money to fight but it’s not really a big deal to them.  If they can pay a license fee, even if it’s higher than it should be because trolls are greedy and awful, then so be it.  It keeps their in-house counsel focused on other issues more germane to the bottom line, so they cut the check and move on.  I hate it when that happens, because it sends exactly the wrong message to the trolls, which is that trolling works.

patent-troll-graphic-final

Image by Alan Schoenbaum.
Awesome.

 

Just like there’s not a single, reliable litmus test for who’s a troll and who’s not, there’s not just one reason that patent trolls troll.  I think these are the most obvious ones, and what started me off on this topic was the push back on Twitter regarding Timothy’s article about the Federal Circuit.

I wasn’t able to articulate my response in Twitter’s 140 characters because, and you may have noticed this, I tend towards verbosity.

No really, it’s true.

JustSayin_small_New

IPTT

{Image of Michael, now age 11 and still scowling like a madman, by me.  Troll drawing by Alan Schoenbaum of Rackspace.}

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Vermont’s AG Is The Patent World’s Luke Skywalker

And the cast of characters grows.

So by now we’ve all heard about the this story, wherein the Attorney General of the great state of Vermont has gone after the scanner dudes:

MPHJ and its principals may have gone too far. They’re now the subject of a government lawsuit targeting patent trolling—the first ever such case. Vermont Attorney General William Sorrell has filed suit in his home state, saying that MPHJ is violating Vermont consumer-protection laws.

William Sorrell, lightsaber in hand (and how ironic is that because lightsabers use light and scanners use light so it’s pretty much exactly the same thing, is what I’m saying), has gone on a troll hunt.

Luke Skywalker, Star Wars Hero

I didn’t take this picture.
Disney now owns it.
George Lucas? I hope you didn’t make a big mistake.

In just the same way that our farm boy hero jumped on the rebellion bandwagon to try and take down Lord Darth Vader, that empty shell of a man machine who was nothing more than a puppet for Emperor Palpatine,  Mr. Sorrell has lept into the patent fray to try and take down the other “most notorious troll” in the  game.  And boy, did he pick a winner.  The cast of characters in this party?  Don’t that beat all.

mac-rust

Jay Mac Rust, from 2006 magazine cover of Super Lawyers Texas “Rising Stars.”

There’s a saying in Texas that I think best suits this image:  “All hat, no cattle.”  Ahem.  Read all about them folks here in the Arstechnica write up by Joe Mullin.

I don’t know what’s in the water in Vermont, but evidently they grow some serious investigative skills up there:

But Vermont investigators were able to get additional information not available to defense lawyers (or journalists). For instance, they discovered that there were forty different shell companies sending out the letters, all under the control of MPHJ.

Giddyup.  Forty different shell companies?  What’re you trying to do, MPHJ, compete with Intellectual Ventures?  You’ve got a long, long, long, long, long  way to go, but I admire your efforts so far.

The thing is, the actual merits of the case (they’re going for violation of consumer protection laws) don’t really matter.  What really matters is that Vermont is bringing the party to the trolls, going on the offense.   And they’re doing it on two fronts:  this lawsuit as well as a new bill that, if made law, will allow for penalties for “bad faith” lawsuits.  Like that doesn’t cover 99.9% of all patent litigation, am I right?

Joining the ranks of the Braveheart guy, Vermont is tackling this issue head on.  Which of course makes them a de facto Patent Superhero:

Superheroes

This one I can claim. Totally photoshopped this bad boy.

Awwwww  yeah, baby!!!

Just sayin’,

IPTT

Breaking News Out Of Fort Wayne, Indiana

If ever there were a series of words that no one in their right mind would ever think to string together, the title of this post is it.  Yet?  It be true.

Thanks to the power of WordPress’s front page that somehow manages to feed me patent troll stories that actually matter to me (how is no one else able to do this, Google?) I stumbled upon this little gem here from Mr. Brian Francisco at The Journal Gazette (www.journalgazette.net, say that 10 times fast for some fun.)

Evidently, the trolls are going after companies who put in and support networks responsible for the 911 system:

Mark Grady, founder and president of INdigital Telecom, said Wednesday that “the inappropriate assertion of poor-quality overly broad patents” threatens 911 networks provided by his company and others.

Love how he put that:  “inappropriate assertion of poor-quality overly broad patents”.  He must be part British because that’s exactly the type of understated language they use.  “Oh, Bother!  It seems as though we’ve been sent a notice of legal action, wherein we are assumed to be infringing on someone else’s intellectual property.  Let’s ring up the barrister and see if he’s got a spot of time to discuss…”

grady

Mr. Grady testifying.
Image via NTCA–The Rural Broadband Association

No matter how you put it, it appears the troll infestation has reached the low point of going after those who provide services that help ensure our very safety.  Niiice.  Thankfully, I’ve never had to avail myself of the services of 911, though I did have to call an emergency vet once when my dog ate a dead bird and I was sure he’d have Avian Flu within the hour.  (They laughed at me and told me I was being ridiculous, so thanks for that, Emergency Vet People.)  But how can they continue to innovate and find better ways to better serve the public if they’re fighting off trolls?

“It is simply unfair to burden small businesses like ours with patent allegations that are no more substantive than a TV commercial,” Grady said.

“No more substantive than a TV commercial.”  Ouch.  I’ve compared patent trolls to a lot of things in my life, but a TV commercial?  That’s just low, man.  Love it.

He also makes a great comment about the patent system in general:

“As a small business person, an innovator, an employer and a citizen, I believe this cannot be Congress’s intent for our patent system. The patent system should not be used to put Americans’ lives and property in jeopardy by delaying their access to new and innovative 911 public safety and homeland security services.”

Well said.  I don’t believe it’s Congress’s intent either.  I think it’s an aberration, a deliberate circumvention of the spirit of the law to use poorly-written patents to go after companies via extortionistic tactics.  And I think, much like Alan Schoenbaum at Rackspace has said, that it’s going to take an army of companies and solutions to combat the problem.

There are more and more solution opportunities out there, and eventually, we’re going to win the battle as more and more Mr. Grady’s stand up and demand action.

Go get ’em!

Just sayin’,

IPTT

Rackspace Is The Patent World’s Braveheart Guy

As a matter of fact, I am a Rackspace fangirl, why do you ask?  And also, I know that the movie Braveheart was about William Wallace, but if I say that “Rackspace Is The Patent World’s William Wallace”, are as many people going to get that?  My guess was no, so “Braveheart Guy” it is.  Onward, then!

It just keeps getting better and better.  SO much to like about this blog post from Alan Schoenbaum.

As patent settlements go, that is very cheap. We also believe it is completely unacceptable.

Right and super right.  Completely unacceptable is the phrase everyone needs to stand behind.  I use it a lot with the kids and they know whatever it is they just did isn’t gonna fly.  You have to meet these trolls where they live:  in their adolescence.

When it comes to fighting this particular troll, we believe an IPR is our best option to have this patent abolished at its source – eliminate the root, destroy the weed.

Image courtesy of the Braveheart movie people.  I didn't take it, am not claiming to have.

Image courtesy of the Braveheart movie people. I didn’t take it, am not claiming to have.

Bolded line?  Best.rally.cry.ever.  Begs to be immortalized on a t-shirt.  Someone with creative t-shirt making skills should get on that toot sweet.  That person is not me.

But this, this final closing salvo, is the most brilliant of all:

IPRs [Inter Partes Review] can be risky and costly. We know this IPR will cost us more than the $75,000 that Rotatable wanted to extort from us. But we are not just fighting for us; we are fighting for all the app developers who are also in the line of fire. As the noted software engineer and blogger Joel Spolsky wrote, “Life is a bit hard sometimes, and sometimes you have to step up and fight fights that you never signed up for.”

This is what I’m talking about.  Someone has to lead the charge and say enough is enough. It takes exposure, Rackspace airing their grievances in a public forum, dollar amounts and all, to make it happen.  If more companies being hit by these trolls would do as much, the whole troll ecosystem would disintegrate.  Businesses would once again have safe passage over the technological bridges needed to really innovate!

That they’re willing to take one for the whole team is also just what the doctor ordered.

Sic ’em, Alan.

Just sayin’,

IPTT

Rackspace Sues Parallel Iron/IP Nav; Also, Peter Piper Was Not Forthcoming

In patents, as in comedy, timing is everything.  How serendipitous to receive news of a certain lawsuit a day after examining a black hat PAE who claims to be sporting a hat of a different hue.  Lovely.

My second most favorite thing in the world behind sticking my hand in the bag of chocolate chips only to find the people I live with have eaten all but two of them, which is totally not enough chocolate to satisfy anyone on the planet, never mind yours truly,  is when I ask someone a question (usually it’s my oldest son, but we’ll leave the parallels between the behavior of 12-yr-old boys and patent trolls to the reader’s imagination) and they reply with everything but an actual answer to my question.  Ah, good times.

And so that very thing has thusforth and somesuch (you didn’t know I could speak lawyer, did you?) occurred right there in the comments to yesterday’s post.  Fear not, for that shall surely get addressed, but not before discussing the bigger thing that is now afoot.

Rackspace (holla!!) has sued Parallel Iron, a shell company for none other than IP Nav.  {Pretends to pick jaw up off the  floor in mock surprise at that little shell company revelation there.}

Remember this quote?

We are NOT a “non-practicing entity” (NPE) in that we do not take title to patents, although in some cases we will assist clients in selling their patents to an NPE.

Hold on a sec while I step out to get out my PTT™ (Patent Troll Translator).  Ah, there it is:

We ARE a “non-practicing entity” (NPE) because, while we don’t always take title to the patents we intend to nefariously wield against industry, we have absolutely no problem farming them out to other people who will sue the pants off of you.  Because, you know, being one step removed from the process makes it alllll better.

I love the Rackspace folks because they don’t roll over and play dead.  As I’ve advocated countless times, the only way to beat these guys is to fight them every single time.  I meant that to mean defensively, as in when the trolls come after you.  But Schoenbaum et al are taking it to a whole new level of awesome by approaching the net and going on the offensive.

I, for one, hope they ram a shot right down the center of the court so fast it makes these guys’ heads spin.

Just sayin’,

IPTT