Goodlatte Needs A Latte And A Talking-To Re: Patent Reform

Getting him a latte shouldn’t be hard, and he’s going to need one to stay awake for the discussion of how his proposed bill isn’t worth the disk drive space it takes up.   I don’t mean to say that patent law is boring but….zzzz….it’s lots of legal stuff and…*nod*..*snort*…then the sheep went over the fence….and…

Ho, hey, what just happened there?

latte

Because no one’s ever made this joke about his name 1000 times.
Also? Not Senator Goodlatte’s arm. As far as you know.

If you can manage to stay awake to read the Goodlatte Bill Proposal (or isn’t that what a bill is?  a proposed law?  I really should have paid attention to Schoolhouse Rock) then you’ll find loopholes and balderdash designed once again to make people think that the government actually cares to solve this problem.  (Hint: they don’t.)

Let’s start off with page three, lines one and two, emphasis mine:

1 cross-claim for patent infringement, unless the informa-
2 tion is not reasonable accessible, the following:

First off, typo.  Reasonably accessible.  Don’t I pay you enough taxes to hire a proofreader?  Either way, since when has anyone known a patent troll to be reasonable?  This is not just a loophole, it’s a giant gaping chasm you’ve left open to interpretation by a group of people who think nothing’s wrong with extorting money from Grandma Mimma who bought a printer/fax/scanner machine to use to run her quilt-selling store on Etsy.  “Reasonable”?  Not bloody likely.

This bill, like a few others out there, bangs the “Loser Pays” drum:

(a) AWARD.—The court shall award, to a prevailing
25 party, reasonable fees and other expenses incurred by that

1 party in connection with a civil action in which any party
2 asserts a claim for relief arising under any Act of Con-
3 gress relating to patents, unless the court finds that the
4 position of the nonprevailing party or parties was substan-
5 tially justified or that special circumstances make an
6 award unjust.

Here again, there’s a way out for the trolls.  They’ll argue all day long that there are “substantially justified” or “special circumstances” that prevent them from paying.  Besides which, as I’ve argued before, they’ll hide their assets and claim you can’t get blood from a turnip.   I like the theory of loser pays as it applies to trolls, but the reality will not bear out the way you want.  What will actually happen is it will prevent small inventors who are really truly being infringed on from taking the risk of a lawsuit.  Strike 1 1/2, Bob.

Why 1 1/2?  Well, because this is a pretty decent addendum:

‘‘(b) RECOVERY.—If a nonprevailing party is unable
8 to pay reasonable costs and other expenses awarded by
9 the court pursuant to subsection (a), the court may make
10 the reasonable costs and other expenses recoverable
11 against any interested party joined pursuant to section
12 299(d).’’

What I read here is that, since all interested parties would be required to be named, when Lodsys claims it can’t pay the bills on account of the high rent it has to pay for those swanky offices in Marshall, TX, the prevailing party can go after Intellectual Ventures.  That’s got some teeth.

_69312301_lodsy2

Swanky digs, Lodtellectual Venturesys!

Like so many of the other bills that’ve been proffered of late, it offers a lot of after-the-fact solutions.  I like what Jon Potter at the Application Developers Alliance says:

“Reform should include demand letter transparency …,”

Totally agree.  I realize the Goodlatte bill puts the hurt on long and drawn out discovery requirements, which is the stage that kills a lot of defendants.  But wouldn’t it be better to resolve some of this prior to the suit actually being filed?  If we can continue to gather information on the demands the trolls are making by tracking their threatening “pre-suit communications” at That Patent Tool, I maintain that we can rally the troops and shut these guys down.  All you need is a solid set of data and communication between recipients and you’ve got yourself a way to collaborate and refuse to let these trolls even get to the litigation stage.

It’s great (I think) that the government is all over the patent trolling problem because it’s real, and it’s costing people money and companies.  But what I remain unconvinced of is that these bills aren’t going to do more harm than good, and end up being repealed or modified in some way that’s going to cost us yet more money as taxpayers.

As always, I remain a fan of market-based solutions, though I commend Senator Goodlatte for a) trying and b) having a great name that I can poke fun at (even though it’s really pronounced “Goodlat“, and not “lottay” like the drink, which is a total bummer).

JustSayin_small_New

IPTT

{Latte image found here , Lodsys office image via Online News Corporation Unlimited, here.}

MythBusters: Patent (Troll) Litigation Explosion Edition

It’s always fun when something starts to get national attention after some of us (*cough* *cough*) have been banging the drum on that same issue for, oh, 12 years now.  Detractors and proponents seem to come out of the woodwork, citing studies and statistics as if any of it really means anything.  Adam Mossoff, he of the claim that there really isn’t $29 Billion in costs associated with patent trolling because how could there be, when the whole shebang is myth anyway, is at it again.  Hi Adam, long time, no blog post refuting pretty much everything you’ve said!  Hugs!

Mr. Mossoff would have us believe that the whole increase in patent troll litigation is a myth.  I was right there with him until the second sentence.  OK, ok, that’s mean.  The second paragraph, where he waxes poetic about the number of patents being issued because why? I’m not sure, and this quote doesn’t help:

A simple comparison to population growth, especially taking into account the explosive growth in the innovation industries in the past several decades, could as easily justify the claim that we haven’t got enough patents issuing today.)

Why would we compare the number of patents to the number of people?  Is there some magic number of patents per person that is right and  good for society and another number that isnt’?  I don’t get this.  I mean, yes, the number of patents would theoretically increase the number of potential patent infringement lawsuits in much the same way that number of cars on the road at rush hour increases the number of potential drivers I have to flip off honk at merge with.  But beyond that, huh?

Adam's Nirvana

An infographic of the mythical but precisely perfect mix of patents to population.

Moving along:

Unfortunately, the mythical claims about a “patent litigation explosion” have shifted in recent months (perhaps because the original assertion was untenable).  Now the assertion is that there has been an “explosion” in lawsuits brought by patent licensing companies.

Instead of just saying that patent litigation has exploded because that would be wrong, we are now hearing people say that there’s an explosion in patent litigation brought by trolls.  That feels an awful lot like a semantic red herring, but we’ll go with it for now.

This, however, is just poppycock:

’ll note for the record here that patent licensing companies are often referred to today by the undefined and nonobjective rhetorical epithet of “patent troll.”

You may claim that the terms used to negatively refer to patent licensing companies are complicated and don’t always apply across the board, or that they are at times ill-defined.  But you can’t claim that terms are undefined because hello?  I defined them.  Also, “rhetorical epithet”?  Nicely done.  Excellent wordsmithing there, 10 points in your favor!

I’m not going to cut and paste the next quote because it’s long I’m lazy but the gist of it is that with the America Invents Act, of course the number of patent litigation suits is going to go up.  Joinder clause, anyone?  We knew that, but I don’t think you can say that’s the whole reason that the numbers are higher because wait…didn’t you say the numbers weren’t higher?  That increased patent litigation is a myth?  Is that circular logic, is that why I’m getting dizzy?  “The numbers are not higher but when they are higher, it’s because of the AIA.”  Please step away from the merry-go-round, my friend.

MerryGoRound

If you didn’t play on one of these growing up, two things:
1. I hate you for being younger than me, and 2. You *totally* missed out.

The article also takes aim at “secret data” spouted by the likes of RPX and Patent Freedom, with regard to litigation statistics.  I really hope those guys are wearing their flak jackets, that’s a serious BOOM there.  I know the RPX folks are because they’re in San Francisco and OMG, how is it possible that you have to wear a fleece in July in that town?  A flak jacket is not heavyweight enough, I don’t think.  Still, he makes a valid point which is who’s funding their data collection efforts and what stake do they have in the outcome being very high?

The thing is, lawsuits are a matter of public record.  If you don’t trust the data from those sources, then go to  Lex Machina if you feel they are not funded by people with a vested interest, or commission a study of your own!  That’d work, no?  But it’s not quite fair to just shoot the messenger.

As has been discussed on this very blog in the past and right there in the Backgrounder link, it’s not a secret that the small-ish inventor in this country can have trouble monetizing their patent, especially in larger technological sectors.  Patent licensing companies do serve an unfilled need in the economy and no one I don’t think would argue that they don’t so yeah, we get that.  Likewise, we get that you don’t have to make a product to be considered a valid owner of a patent.  Over on IP Watchdog, Steve Moore makes a big “to do” about this.  Again, we get it.  And in fact, that’s one reason that the term NPE is not the same as the term Patent Troll.   All patent trolls are NPE’s, but not all NPE’s are patent trolls.

What articles like this do though, is negate that there really is a problem with companies going after business for the sole purpose of extracting licensing fees over patents that are either old and worthless or that the targets are not infringing on.  Those are the trolls we’re after, and they make up a significant portion of the increase in patent litigation in recent years.  If you believe there’s been an increase, I mean.

It’s fair to question statistics and the motives of those behind them.  It’s fair to criticize people who only want legislative relief of the problem in the form of more laws from Congress because they (incorrectly, in my view) believe that that is the only way out of the problem, or even a good way out.

But you can’t just throw the baby out with the bathwater and say that because a few statistics are misquoted or unfounded or skewed by the companies putting them out that there isn’t really a problem.  All you need to do to verify that there is is to ask the Dittos and the Farks and the TMSofts.

They’ll tell you that, increase in patent litigation or no, there IS a problem.

JustSayin_small

IPTT

{Merry go round image found here: http://www.webanswers.com/for-fun/what-was-your-favorite-playground-equipment-in-elementary-school-f1f9f9}

Everyone’s a Patentpreneur Now

Don’t you just love when people make up words?  I do.  Obviously.

Just today read this piece about the new First-to-File that the AIA ushered in.  I like this point the best:

At a time when we should be doing everything to help our future business leaders, we are ensuring that small startups and entrepreneurs will have to choose between designing great products and filing patents, just to win that “race to the Patent Office”.

It dovetails nicely with the piece that Andy Gibbs wrote on how IP Strategists should best advise their clients under the new rules.  He touched on a similar point, which would make the second time I’ve quoted this part of his post.  Can I do that, are there rules against multiples of the same quote in different blog entries?  Either way:

However, the elephant in the room is the client’s implicit desire not for a “patent”, but for a mechanism to deliver superior market position, protect competitive market share, and to create increased shareholder value. They believe the “patent” is their ticket.

The thing of it is, while patent trolls clearly hinder innovation, a patent itself does not equal innovation.  It does not equal creativity.  It does not equal profits (just ask the Fuzzibuns lady).  The post continues and boy is this fun:

I guess I have to accept that Congress in its infinite wisdom knows what it’s doing to help our economy recover, just like when it decided that the Sequester was the answer to our Federal budget woes.  You multi-millionaires who sit in seats of power must truly understand what this nation needs.

Strike one.

Maybe you are hoping to siphon off all of those extra filing fees to shore up social security.  Certainly all of the extra money spent on patent attorneys will help our sagging legal industry.

Yeowch!  Strike two.

But alas, I know this is not true.  I must face reality and live with your stupid, dumb-#@! attempts to fix a patent system that isn’t broken because solving the real issues that we face as a nation is just too #$@! difficult for you.

Aaaaand you’re out!

I think there are clearly issues with the patent system so saying it isn’t broken…well, I respectfully disagree.  (I can hear you scoffing…I can too be respectful!)  But it doesn’t matter because the salient point Kelli Proia is making is that “Do you have the patent on that?” is the new “Is that Spanx or Yummie Tummie?”  It’s the first question anyone asks when they see you on Oscar night something new comes along, rather than “Do you have a product that people want and need?” or “Do you have a Wharton MBA, or access to someone who does who can help you with the business end of your…business?”

Those are the kinds of questions we should be asking, but because of the patent wars the the trolls have exacerbated, patents are all the rage.  Even the Avon Guy is at risk by refusing to play the game.

So how do you fix it?

Shut down the trolls.

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

Girdlegate 2013: Hell Hath No Fury Like a Spanx Scorned

What is so funny about this case is that what used to be Grandma Mima’s best-kept secret is now a household term.  Sure, it’s called “shapewear” instead of a girdle, but the idea is still the same: to make people think you’re thinner than you are.  Personally, I’d rather run a few more miles or do a few more sit-ups than squeeze myself into any one of those torture devices, but maybe I’m just not as sado-masochistic as most women?

Girdlegate began when a Real Housewife, as opposed to, you know, the fake kind, got her knickers chuffed because the Spanx lady copied her design for a camisole that sucks in…whatever it’s supposed to suck in.  The case, dubbed by Forbes as Fashion’s Apple v. Samsung, hinges on a design patent.

Design patents differ from utility patents in that they cover what a product looks like v. what it does.  That’s good since in this case both products do the same thing.   It’s interesting that Heather Thomson went the patent route, and not surprising at all that Sarah Blakely countersued.  From what I read on Techdirt, usually the fashion types hit people up for trademark infringement.  This case will be watched by everyone out there who wants to make a red-soled shoe, that’s my bet.

This is also going to be one to watch because cat fight! women tend to duke things out in ways that men simply don’t.  It’s going to get really ugly, really quickly.  Further, this lends credence to my prior posts that personality matters.

Thomson has come out swinging against Spanx’s billionaire founder Sara Blakelytelling trade titleWomen’s Wear Daily that she hopes the shapewear mogul is “ready for war.”  She claims three of Spanx’s slimming tank tops are Yummie Tummie knock-offs, and wrote a letter to Blakely in January asking for the company to cease and desist production.

So in this corner, we have Heather, all “You’re a copycat!  Bring your army, beotch,” which prompted this:

Spanx filed a declaratory judgment action, essentially asking a judge to step in and decide whether they’ve infringed on any patents. Thomson has since filed her own complaint (in early April, for patent infringement).

…which is to say “Oh no you di-in’t just call me out. And by the way, you’re the copycat so step off!”

I don’t know who Michael Lasky is but he’s got this one nailed:

Patent lawyer Michael Lasky, who works out of Spanx’s hometown of Atlanta, concedes that the dispute is “a bit of a grudge match”, with Thomson’s ego driving the case.

Emphasis mine, as usual.  I hate to “go there” and use the phrase “go there” (ugh) but men get all the credit for having the big egos and boy do we have it wrong sometimes.  (As an aside, can you just imagine a couple of men putting up their dukes because they each designed a golf shoe that looks similar?  Or worse, fighting over the design of manx, which I can only presume is what male spanx would be called if it weren’t already a type of cat?  Please.  Never going to happen.)  Ms. Thomson’s going to take this one to the courts, to the press, and now, thanks to the AIA, possibly also to the USPTO.

It matters who you’re dealing with and how they deal with others.  Something tells me, and I really don’t know the players involved beyond what’s available via a web search, that this one could have been settled out of court if either party had a different personality type.

Honestly though, I’m probably not qualified to comment on any of this really, because under no circumstances can I see two women comparing their underthings and one remarking “Nice Spanx!” and the other replying “As if!  Girl, this is a Yummie Tummies!”  They’re called unmentionables for a reason, is what I mean by that.

Just sayin’,

IPTT