How Many Normal People Does It Take To Equal A Thug, Anyway?

From IP Nav’s comments about the recent Consumer Electronics Show, that ratio sits at about seven to one.  I always enjoy IP Nav‘s comments on things mostly because I think that Barry Leff writes them and I like him.  Never having met him in person, I do believe that he genuinely believes he’s on the right side of this debate, and I like that in a person.

Anyway, here’s a visual for you right-brainers out there:

ThugsVNormalPeople_updated

Evidently, Erich Spangenberg was unhappy that he was the only one on his side of the line up for a talk that was part of the CES Innovation Policy Summit.  Leaving aside the fact my opinion that patents do not equal innovation, it seems the summit drew a crowd, or at least the “Patent Litigation Reform: Who are You Calling a Troll?” panel did.  (For the record, the answer to the question is “You, Erich.”)

Barry’s blog post for IP Nav takes us on a trip down memory lane, because nothing holds one’s interest more than a story about how a troll became a troll.  But oops, wait just a second.  We shouldn’t call Mr. Spangenberg a troll because

He’s not uncomfortable with the term “troll,” as the term has come to mean anyone who files a patent lawsuit.

Don’t make me pull out the Harvey Specter eye roll so early on a Monday morning, please.  *sigh*

Not anyone who files a patent lawsuit is a troll.  You sound like J Nicholas Gross or Andy Pitchford now.  Further, definitely not everyone who files a patent lawsuit is a troll either, only those who behave like thugs are.  You know, like people who go after everyone and their uncle (and even the US Government, for crying out loud) because they have a crap patent that says you can’t scan and email without paying them to do it.  And oh, look!  You agree (emphasis mine):

Picking on app developers, tiny companies and sending letters with no justification is crazy—

Indeed.  But want to hear what’s even crazier?  Suing people using one of your shell companies and not even telling them what they infringed on.  (This is a good write up of those wanton antics, with a great quote from a Techdirt article on same.)  Oh, don’t throw out that tired line about it affecting declaratory judgment and venue.  What you’re trying to do is extract a settlement because taking it to court is more expensive.  That’s the troll MO, whether the troll uses base-less threatening letters or not.

One final quote from the article:

Bad behavior is not exclusively the province of patent owners.

No, it isn’t.  But it’s the province of companies like IP Nav, and there are at least seven normal people who can agree on that.

JustSayin_small_New

IPTT

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If I’ve Told You Once, I’ve Told You 100 Times

Aww, blogs grow up so fast these days.  One day you’re logging in to WordPress and trying to figure out what theme to use then *WHAM!*: you’re 100 posts into it and you can’t account for 1/2 the time in between.  It was only two years ago that I started mouthing off about trolls.  Either there’s a whole lot going on with patent trolls or I talk a lot.  (Hint: the first one.  Definitely the first one.)

When I first starting writing, the Nortel Auction had just occurred and boy were those fun times.  Those patents cost “the consortium” 4.5 Billion-with-a-‘B” dollars and helped ignite a Patent War that rages on.  Writing about it was the last thing Joe Mullin did before moving over to Ars Technica, and I love that his last post on The Prior Art is still up there.

What’s interesting is to see that some of the things I prattled on about back in July of 2011 are still in vogue, like Lodsys going after developers and my picking on Intellectual Ventures, in comic form.  Literally.

Just for fun and because I broke with my usual M.O. and completed a project one hour ahead of time instead of one minute ahead of time, I went back and re-read some older posts.  My goal was to make sure that I was consistent with whatever it is I’m saying.  I like that term way better than integrity because it’s more descriptive.  One’s actions should be consistent with one’s words should be consistent with one’s values.

To that end, I thought it might serve to list out what the whole patent troll issue boils down to for me:

  1. The business model of purchasing broadly written and poorly enforceable patents and suing anyone and everyone who might even remotely possibly be anywhere close to infringing is not just bad for business or bad for the economy or bad for small inventors or bad for larger businesses.  It may not be illegal, but it is WRONG.  The difference between those two is the difference between a person with character and a person without it.  You don’t see the word “wrong” very often because people don’t like to call a spade a spade for whatever reason.  I, however, have no problem with that.  Obviously.
  2. The patent system itself needs to focus on the execution of good ideas rather than the idea itself.  Ideas are like buses, according to Richard Branson:  A new one comes along every minute.  So have your idea, but do something with it!  Don’t just pay to have the government hand you a “Granted” stamp and wait for the money to start rolling in.
  3. Not all who are labeled patent trolls are.  One way to distinguish the white hats from the black hats is to ask Barry Leff track troll behavior via a demand letter registry like That Patent Tool.  By tracking who the trolls send shakedown notices to, we can build a picture of what’s going on.  We can put two and two together and introduce people who are under attack from the same troll and see if there might be a way to join forces and either go on the offensive, or make the process so much harder for the troll that the demand either goes away altogether or is reduced to pennies on the patent. We can build a community and expose the real trolls for who they are:  PEOPLE WHO ARE DOING SOMETHING WRONG.

I want to see the patent troll problem go away.  And I want to see it  go away because good ol’ American ingenuity has made it happen, not because the government stepped in to save anyone.  New laws and enforcement of existing ones can be a good thing, but I think the solution lies with the people to make this issue go away.

Even though it would put me out of a writing gig, I still want that to happen.

JustSayin_small

IPTT

Wherein IP Nav Does Not State The Number or Type of Pickled Peppers Picked

When last we left our hero, IPTT had called out IP Nav on their fairly recent comments on Patent Assertion Entities by stating that there are two kinds (only two!) and that they could be placed in the categories of “white hat” and “black hat” PAEs.  Care to wager a bet on which they claimed to be?  Hint:  not the black one.

It seems the author of the paper, who is actually their PR guy, read the article and now has come forth to set IPTT straight.  Before we delve into the particulars, Barry’s job is, in fact, to polish a turd.  Whether he thinks he has a turd or thinks he works for one, it is his job to debunk negative press so we should all keep that in mind whilst reviewing his come-backers.  He’s just doing his job, folks.

So to his comments we go:

1) By definition NPEs are patent owners. PAEs — Patent Assertion Entities — on the other hand may or may not be patent owners. The terms are not identical. IPNav is a PAE, but we are NOT an NPE.

Duly noted is the use of shouty capitals on the “NOT”.  It has been my experience that the more vehemently one denies a statement, the greater the likelihood that the statement is true.  See: Shakespeare’s Hamlet.  (“Methinks the lady doth protest too much” is the relevant quote here, for those who don’t remember their Junior English class.)  Nevertheless, I am acquainted with both terms but I do thank you for the refresher.  Point: Barry.

2) My point with the black hat/white hat analogy was most definitely NOT “but they did it too.” My point was that black hat SEO is a scam, and deserves to be taken down. “Black hat” patent enforcement is likewise a scam that deserves to be taken down.

So we do agree then that “black hat” (can we stop putting that in quotes yet, or is the term still too new?) PAEs/Patent Trolls need to be taken down.  Progress!  I contend though, and this was my point, that when you start pointing out what other people are doing wrong in an effort to a) deflect from your own nefariousness or b) compare your nefariousness to something much more nefarious, you’ve lost your high ground, if in fact you had any to begin with.

Why not instead focus on the positive things that you’ve done for your  inventors who surely could not find their way through the patent system were it not for you?  This is what I had asked IP Nav to do.  Show the world how good you are, instead of pointing to someone else and how bad they are!  Point:  IPTT.

Moving on:

3) Yes, patent owners are entitled to wave their patent around and threaten to sue people if they don’t want to take a license. People who us a patent without paying for it are thieves. You are not allowed to steal stuff. The patent is a right to exclude — the only thing you can do with it is stop other people from making the patented thing without your permission. That’s the only permission it grants you — the right to sue other people.

Sure, people who use a patent without paying are thieves.  So are people who target inventors and smaller companies who are cash strapped and negotiate deals for their dubious patents, only to turn around and “monetize” them against companies for a price only slightly less than the threatened litigation that surely comes if they don’t pay up.  These companies don’t want a knock down drag out court case, or can’t afford one, so they pay for a license.  For a patent they don’t need.  That’s not thievery of time and resources that could be spent on actual R&D and bringing products to market?  Sorry, not buying it.  Point: IPTT.

But wait, there’s more:

4) The percentage of revenue from licensing versus litigation would not prove anything. “Black hat” patent trolls get almost all of their money from licensing, because they often set the fee low enough that it’s nuisance value compared with litigation.

I disagree.  I think it would show that you have made a good faith effort to try and get legitimate patents, should you have any, licensed in a straight-forward way.  If you’re making the effort outside of litigation more often than you are simply filing cases, then that’s saying something.  Yes, patent trolls often set the license fee just shy of the litigation pain point, as I stated above.  But if you pony up those numbers too…show the data on what you license patents for then you can prove me wrong.  Point:  IPTT

There are many companies out there that take a “we’ll pay for it when they come after us” attitude toward infringing patents. I know. I used to work for a company like that, and it’s one reason I left the company. I disagreed with that approach.

I’m sorry that you had a bad experience with a company who stole intellectual property.  It’s easy to see why that would drive a person to right some wrongs.  But is that really what IP Nav is doing?  If so, lets see some examples.  Let the world know who you’ve helped, showcase the companies you’ve helped secure patents for and what they’re doing now that you’ve stepped in with your white hat!

What shows that IPNav is “white hat” and not “black hat” is that we are perfectly happy with a true “loser pays” system — we only enforce strong patents where there is real infringement. The scam artists would never go for such a proposal, because their model is based on never going to court.

No Barry, that IP Nav is perfectly happy with a true “loser pays” system shows only that you don’t intend to ever lose.   It’s a straw man.

This is all about transparency, and I think if someone were accusing me of something that I was not, I would do everything within my power to show legitimacy, to show that I was not what others were claiming I was.  This is why my “alter egos” side bar links to my online resume.  Sure, there’s some things that I won’t talk about or share, like the fact that I am absolutely petrified of spiders and the fact that I  don’t eat vegetables are both closely guarded secrets.  Oh, drat.  Were closely guarded secrets.  *sigh*

But if I expect to be taken seriously despite my propensity to make a joke out of almost anything, I need to show my relevant cards.  When companies such as IP Nav hide behind rhetoric and refuse to answer direct questions with anything but standard-issue turd polishing, that’s a problem.

Final point tally:  IPTT 3, Barry, 1.

Just sayin’,

IPTT

If Peter Piper Picked A Peck of Pickled Peppers…

…Where’s the peck of pickled peppers Peter Piper picked?

Is anyone else unable to recite that nursery rhyme without being taken back to their high school days when the Run DMC version was king?  All I can ever remember to say when asked if Peter Piper Picked Peppers is “…and Run rocked rhyme.  Humpty Dumpty fell down, that’s his hard time…”  Ah, the memories associated with that song…the drumbeat of the band as the football players ran out on the field, the cheerleaders jumping all over the place, jockeying for seats in the stands and accidentally (that’s my story and I’m sticking to it) knocking over my best friend so I could sit next to that really cute Freshman…

Wait, what just happened there?

Anyway, here’s the thing.  If you want to distinguish between “white hat” and “black hat” NPE’s, as Barry Leff with IP Nav has, then you will need to be able to prove that your hat is, in fact, not black.  The way you do that is to show the peck of pickled peppers that Peter picked. Or, alternatively, show us what products you’ve helped your clients bring to market that they wouldn’t have been able to do without you.  And your white hat.

iStock_000022105233Small

From the article, Mr. Leff says:

PAEs such as IPNav play an essential role in providing inventors a mechanism to receive compensation for their inventions which could otherwise be misappropriated by large companies with impunity.

(Emphasis mine.)  Their inventions, or their patents?  I don’t want to go all NPR v. Intellectual Ventures on you, but show me the money.  What inventions have you helped “the little guy” bring to the market?  That’s what I think of when I think of someone who wears a white hat.  He’s there to help you.  Providing money to patent an idea is helpful, sure, but don’t act like it’s the end all.  You get your cut and the way you do it is to go after people for infringing, not just by helping an inventor navigate (tee hee) the patent process and secure his intellectual property rights.

Riddle me this:  What percentage of your monetization money is from patent licensing vs. patent assertion?  That would be a terrific way of letting the world know how many pecks were picked, no?  I think the former can be construed as “white hat”, but the ol’ lid there turns a few shades darker when you start sending out assertion letters as a way of bringing home the bacon.

And then there’s this gem:

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.

I didn’t know that there was a rule with NPEs that they are required to be the actual title-holders of the patents they were asserting.  Did I miss that?  It must have been in Appendix B of the NPE Manual.  No one ever reads Appendix B, people, you should know that.  But can’t you hire a patent assertion company to file lawsuits on your behalf?  I’m no lawyer, so maybe I’m wrong on that.  But what difference does it make anyway given the second half of that sentence?  “I didn’t take the cookies from the cookie jar, Mom!  I just ate the ones that Michael stole.”  Doesn’t work for kids, doesn’t work for adults trying to pretend their hat is white when it’s really black.

In the American system, consumers determine which businesses are worthwhile – by voting with their dollars.

That’s all well and good because I guess under this guise the “consumer” is the guy with the idea that you’re exploiting helping to get patented, is that it?  Um, okay.

HybridHat

Here’s where Mr. Leff really jumps the shark:

Cheng seems to be suffering from a too-common view that committing intellectual property piracy is somehow a “right” and that pirates should be protected against lawsuits by IP owners. The misconception is that as an intangible, intellectual property cannot be “stolen” because the owner of the IP suffers no “actual harm” from the theft. That’s simply not true. Ask the software, music, or movie industries how much they have suffered “actual harm” because people stole their IP.

Or ask Mike Masnick at Techdirt.  He’ll be more than happy to show you how much non-harm those industries are actually suffering.  And that’s copyright anyway, not patents.  There’s only one such beast (so far) as a Copyright Troll – Big shout-out to Righthaven! – so that’s a total red herring.  Commendable attempt to shift the argument, but us troll trackers are quicker on the draw than that.

Here he invokes the morality clause:

Patent owners are under no obligation, moral or legal, to manufacture whatever product or idea is covered by their patent.

You know, I’m not the morality police (unless you’re my child and then I totally am) but this kind of statement really galls me.  Patent owners may well be under no obligation to create a product or add value to society, you’re right.  But does that mean that they have the right to go around using their patent as a bully pulpit, a big giant bat with the words “TAKE A LICENSE OR WE’LL SUE YOU” burned into it?  If that’s your idea of morality, count me out.

And now, taking us back to our childhood once again, we have this lovely logic:

“White hat” SEO businesses work with their clients to do what the search providers want: they add quality content, make content search-friendly, find quality websites that should link to them, etc.

“Black hat” SEO businesses try and scam the system. Google wants links? They hire cheap labor in India or the Philippines to spam comments on blogs with links. Google likes websites that have more fresh content? They hire armies of people, again in cheap labor locations, to crank out “content” that no one in his right mind would want to read, often stuffed with so many keywords as to be unreadable.

Did a grown adult just use the “But they did it too!” excuse?  You’re now showing your true color.

Black Hat

Just sayin’,

IPTT