Finally, A Diagnosis: Münchausen Syndrome by Proxy

Note:  This was drafted forever ago, and in reviewing old posts I came across it.  I liked it and, unsure of why I never actually published it way back when, hit publish on it yesterday.  I expected, and I have no earthly idea why because that’s not even remotely how the space/time continuum works, that it would publish under the date it was drafted, and slot nicely in between other relevant (at the time) posts.  Only not so much.

So, enjoy this blast from the past and pretend that it’s relevant to now.  

I new there was a word for this and if I couldn’t find it I was just going to have to make one up.  The definition of my word would be: “Companies who create a problem that they are the only ones who can solve.”  Patent trolls are not a whole lot unlike those door-to-door salesmen of 1950’s American folklore who knocked on the front door and when you opened it, they tossed in a handful of dirt and then tried to sell you the “only vacuum in the world” capable of cleaning it up.  Not surprisingly, people became a little leery of opening their door to strangers and so someone had to invent the “No Soliciting” sign and a whole new industry and set of laws was born.  Thank you, Kirby vacuum guys.

Let’s move this logic over the patent world where we have two recent examples of companies getting in bed with a troll to avoid…getting trolled.  Say what?  Exactly.

It’s no secret that Nest has built a really sexy thermostat.  Normally, I object strenuously to the use of the term “sexy” in business because blech and ewww??  Inappropriate.  But there’s just not another word that does justice to this piece of engineering:

Nest_Orange

This thing is awesome and would look particularly fetching in my front entryway, replacing the circa 1998 Honeywell electronic thermostat that hangs there now.  And therein lies the rub: Honeywell doesn’t like the new player on the block and so went after Nest for patent infringement.  What did Nest do?  Crawled right into the arms of Intellectual Ventures for some protection .  This is not wholly dissimilar from what Ditto had to do, selling out to IP Nav to get 1-800-Contacts off their back.

Oh, the irony.

Maybe this is exactly what the trolls had in mind to begin with?  First, you go after everyone and their dog for patent infringement, focusing in recent years on the young and weak like startups, and then when the problem has become so rampant in the industry, you offer a “solution” which is nothing more than protection from people like yourself.

As the title of this post suggests. we already have a name for this phenomenon:  Munchausen Syndrome by Proxy.  The reality of that particular psychiatric factitious disorder is far sadder because it involves children being harmed and as a Mom let me just tell you that stealing the idea of a girdle brings a microscopic portion of fury as compared to what you’d deal with if you hurt my kid.

But the theory is the same:  you’re “there for” people that are trying to get away from a problem that you created.

IPTT

Nest image found here.  (That is not an affiliate link, I don’t hawk thermostats.)

Advertisements

The Kind Of Behavior That Only Cousins In Kentucky Should Get Away With

I would apologize to Kentuckians but, as I’ve mentioned before, I lived there for a time during my formative years so I’m allowed to pick on my one-time home state.  Also?  Drew Curtis, Patent Troll Slayer, for Governor.  Vote, y’all.

In another alarming chapter of the “saved from a troll by a troll” play book, Jump Rope misses the rope itself and jumps straight into bed with Erich Spangenberg.  Like Ditto before him, Mr. Braxton of Jump Rope found himself in the unfortunate position of having to take investment money from one of the founders of the business model that put his company in jeopardy to begin with.

It seems a little “Munchausen by proxy”-ish to create a problem and then try to rescue people from it, Erich.  It’s like marrying your cousin, which is only allowed, if I’m not mistaken, in Kentucky.

IP Troll Tracker

In reading a little more background to the story, it looks a lot like personality comes into play here, on the Smart Options side (Smart Options is the company that sued Mr. Braxton and Jump Rope).  It looks to me like what you have is a very small man, in mind if not in physical stature, who didn’t like that Braxton wouldn’t play.

“It’s not clear-cut whether our patents cover what Peter Braxton is doing,” [the attorney for Smart Options] said. “What’s clear-cut is that he chose to say ‘no’ to more than half a dozen reasonable relationships we laid out for him.”

First of all, “reasonable” is in the eye of the beholder so don’t make it out like you’re being generous.  Secondarily, as Braxton pointed out,

But why should Mr. Braxton strike any deal with Smart Options, given that a judge had found that his software didn’t infringe its patent?

(Emphasis mine.)  The answer is because, as we’ve seen over and over again with patent trolls, they want you to pay up (or just disappear, in another sick and twisted plot theme I’ll be exploring in the coming weeks) and won’t stop harassing you until you do.

I wonder what happens in a person’s life as children that they feel the need to throw their weight around as adults? What galls me the most is this white hat status that the likes of IP Nav are trying to throw around.

 

Here he comes to save the daaaayyy!!

Here he comes to save the daaaayyy!!

Whatever.  It’s opportunistic and you know it.  As Mike Masnick at TechDirt puts it:

The story tries to play this out like a “patent troll done good,” but it’s horrifying. It’s one patent troll beating up on a startup, and then allowing a second one to come in and vulture up the leftovers. It’s certainly not good for innovation in any way.

I feel for Mr. Braxton and for Kate Endress of Ditto who were so backed into a corner that they had to choose from two really bad options:  shutter the company or deal with the devil.

I’m not as convinced as Mike is that patent reform at the national level will take care of the problem without creating a bigger mess down the road.  But there has to be a better way than what just happened here.

JustSayin_small_New

IPTT

{Mullet-headed man meme found here.  Mighty Mouse image found, inexplicably, here. Base for Mighty Mouse/Spangenberg morph found here.}

I’ve Been Cheating On You, Patent Troll Haters

Maybe that’s a slight over-exaggeration.  Which, what is that anyway?  One can exaggerate, so does “over” exaggerate mean you’re exaggerating your exaggeration?  See?  This is why you shouldn’t give people like me a blog.

My point is, I’ve been talking to the “other side” for a while now, sort of clandestinely behind the scenes.  Which is what clandestine means, for those of you who went to school here.  I’ve spoken to a few inventors who’ve been screaming VERY LOUDLY IN LARGE SHOUTY CAPITALS AND NOW YOU KNOW WHAT KIND OF BOOKS I READ about how patent reform will do more to hurt them than it will to tame the patent troll problem which, by the way, they claim doesn’t exist.  How’s that for fuzzy logic?

Don’t think for one minute that I’m going soft on trolls because that will never happen.  But I don’t think we can argue that the landscape hasn’t changed over the course of the last, say, three years.  And by “changed” let me just enumerate a few goings on in the patent litigation realm:

  1. The majors are getting smacked down with increasing frequency.  There are a few very well known trolls who’ve run up against some litigious resistance.  IV just lost a  big round in court.  MPHJ, despite suing the FTC (stifles laughter), has lost in NY regarding their demand letter tactics.
  2. States, even states like Kentucky (you’re welcome, Drew) are coming up with fairly decent ways to curtail the sending of demand letters.  See NY example in #1.
  3. IP Nav is trying to go legit by helping David Ditto fend off Goliath 1-800-Contacts.  One reason people try to switch sides is that they think they’ve done something wrong, and been on the wrong side and now they’ve seen the light and have switched. Other times, they just see an opportunity to make themselves look good in the press and so they take it.  I’m not sure which this is with IP Nav, but I get a feeling that Erich is tired of being the thug and wants a little love.  Either way, it was a telling move.
  4. The issue has gotten attention at the Federal level, which means that whether or not real action takes place (my opinion: it won’t come from legislation if it does) there’s much more visibility to the tactics of the bad players in the industry.  Just like roaches when you turn on the light in the summer camp cabin, patent trolls are scrambling to find a place to hide as a result of the exposure.

Back to what I’ve been doing a lot lately, which is talking to inventors. I like to think of myself as anti patent troll and I am.  I do not now and never have liked the underhanded bully tactics they use in their demand letters and I don’t like how they co-opt old, worthless patents and try to dummy up some value out of them, especially when said patents should never have been issued in the first place.

But as the abbreviated list above points out, things are changing.  So is it time to focus on other issues in the patent space?  Like accessibility to ideas if you’re an operating company and accessibility to buyers if you’re an inventor/patent holder?  Maybe, I dunno, a Match.com for IP?

As I wrote in the Backgrounder, inventors face a legitimate problem of how to get exposure to their ideas (nee’, patents) at the right levels.  They’re in a tough spot sometimes, and I see how they would turn to the nasty folks to get help.  Likewise, you could say that larger companies, operating companies, may be more than willing to license technology that they need but how do they know it’s out there?  They can commission a Prior Art search, and I know that many do because Article One Partners has a good thing going.  It’s a great start and a great market-based solution to the problem that gets us part of the way there.

What I hear when I talk to inventors is that they just want people to listen.  They want a forum for their ideas. They’re sick and tired of companies co-opting their stuff and shutting down negotiations and all but forcing them to go the litigation/PAE/troll route to get any kind of relief.  Inventors are a special breed of individual.  They live and breath this stuff and just want what’s coming to them.

BackToTheFuture

 

I am scheduling an interview with my favorite inventor (assuming he agrees, he doesn’t know yet because I haven’t asked him because I’m chicken I’ve been working a lot) and plan to address his take on the troll issue out in the light of day, instead of just whispering behind the scenes in email.  My goal here on IP Troll Tracker has always been to track the shenanigans and ballyhoo of the trolls in an effort to expose them, but as I say on the intro page at That Patent Tool, I also want to be a part of the solution.

Education about the “other side” of the troll issue, the inventors, is part of that for me.

JustSayin_small_New

IPTT

{Awesome 80’s movie image found here.}

 

Troll Talk 11/26, And A (Partial) Concession

First off, I have had my hat handed to me via Twitter  by one Andy Pitchford.  Well, not entirely because hello?  Like I would even let that happen.

The war of words disagreement was over the fact that he asked “Has anyone ever been sued out of business by a troll?”  I threw out my poster child of Ditto because they were, in fact, dangerously close to shuttering before selling out to IP Nav and being able to fend off the lawsuits from 1-800-Contacts and Lennon Image Technologies.  But dangerously close and actually being shut down are not, in fact, synonymous.  Ugh.  Some people are such sticklers for detail, no?

So I have vowed to find a company who’s been shut down by the threat of a troll lawsuit and if one doesn’t exist, I freely admit that I will then contend it doesn’t matter anyway.  You don’t have to be shut down to be affected by patent trolling, as start ups so often are, for patent trolling to be a problem.  That’s like saying robbery is only an issue if you’re robbed completely blind. They left your fridge and stove, even though they walked away with your TV, X-Box, three laptops, DVR, 60-inch flat panel, a four-wheeler from your garage, and the wheels off your car?  Well then, what are you complaining about?

See?  That argument doesn’t really work for me.  But whatever.  I said I’d find a company shut down by a troll and I aim to please and also like to not be a sore loser even though I totally am because growing up my father ingrained in me the phrase “Show me a good loser and I’ll show you a loser.”

Anyway, allll that said and to tie this post to the title which is sometimes a challenge for me, I’ll be in New Orleans over a portion of the US Thanksgiving holiday this upcoming week.  Tomorrow afternoon, in fact, I will be at the Hilton New Orleans/St. Charles Avenue in the lobby from 4-6pm waiting to pick a fight with someone discuss patent trolling with anyone who’s similarly inclined.  Troll Talk, we’ll call it.

TrollTalk_11262013

If you’re near the area and are looking to get out of the freezing rain that seems to be all over the Gulf Coast right now, join in the fun!

And of course, to all the other troll trackers out there just looking to make a difference, may I say that I hope we all have a very Happy Thanksgiving!

JustSayin_small_New

IPTT

What Kinds Of Patents Do Trolls Sue Over And Who Do They Sue?

I don’t know that either of those questions is answerable to a degree of 100% certainty, but a little light reading a few days ago got me to thinkin’.  Serendipity is one of those words that I love sneaking into conversations with people because I am under some grand delusion that it makes me sound smart to use big words.  Overcompensate much?  Why yes, yes I do.

Dictionary.com, defines the word as follows:

an aptitude for making desirable discoveries by accident.

I’m not sure it’s an accident or even, in fact, a discovery, but I read  this blog post and then I noticed an interesting search term used to find my own blog:

IPTTSeachTermsWhatKindOfPatent

So I thought “Trask –> Radio”

(If you don’t get the reference, please pretend for my sake?  The movie it’s from stars Harrison Ford and is therefore by definition on the list of Best Movies in the World.)

han-solo-badass-harrison-ford

What Brian Wassom seems to think, and I wholeheartedly agree, is that increasingly patent trolls are going after companies who are not in the technology sector, such as retailers:

Patent trolls actually sue more non-tech companies over software patents nowadays than they do tech companies, with retail being among the hardest hit of all.

And what’s more, his reasoning is sound:

That’s because the companies behind the software have a vested interest in defending it, while retail clients–who likely just licensed the technology as a one-off experiment–are much more keen to simply pay a nuisance settlement to get rid of the litigation, which the troll then uses to fund the next round of litigation.

The troll in question in this case is Lennon Image Technologies, of “we sued Ditto and then IP Nav ruined it for us with all their thuggery” fame infamy.   They have a patent on an AR technology (AR = augmented reality, such as the ability to try on a pair of virtual glasses) which is currently under ex parte re-examination.  We don’t know by whom, as Mr. Wassom points out:

 It was submitted by an attorney, but the party for whom he did it is allowed to remain anonymous.

The fact that he used the terminology “…is allowed to remain…” makes me think he thinks it shouldn’t be allowed.  And frankly, transparency is something that is sorely lacking in the whole patent space anyway, so I’m inclined to agree.  I guess the feeling from the other side is “if we tell you who we’re asking for a re-exam on behalf of, you’ll know we’re scared of you coming after us, Mr. Troll.”  A valid angle.

Addressing the question of what patents the trolls go after, it’s an easy call:  crappy ones.   Ambiguous ones.  Patents that never should have been issued.

In terms of who they sue, I think this guy’s on to something.  As the true definition of a patent troll includes, but is not limited to, the phrase “does not manufacture anything” they by definition always go after people who can’t counter sue for infringement.  But what Mr. Wassom hits on is that in going after retailers, they’re going after people who have no reason to sue them back anyway.  They don’t own the technology (or manufacture the product) themselves, they just use it (or sell it).  Retailers are in the business of retailing and are therefore more likely to settle because they don’t care about the technology itself or being able to use it in other products.

I mentioned in my Quarterly Troll Review that at some point, the target of technology companies is going to be played out.  Retail is someplace I think the trolls will head, though I envisioned the focus being more towards RFID technology.

Mr. Wassom has schooled me, and I’ll gladly take the lesson.

JustSayin_small_New

IPTT

{Awesome Harrison Ford image found here.}

Ditto/IP Nav Win A Round, IP Nav Gets Rebuffed When Trying To Send Flowers

I hate it when I’m right about something so wrong.  (If you’re not an Aggie, that sentence can totally make sense.)

When last we left our (potential) hero Ditto, they were being sued by 1-800-Contacts and a company called Lennon Image Technologies (I’d link to you their website but oopsies!  they’re a troll and don’t have one) for patent infringement.  Kate Endress and her co-founder started an Indiegogo campaign, to which I contributed and for which I received a raspberry (which is to say, “purple”) colored t-shirt and a very nice note on embossed stationary that looked not unlike those hard cardboard perfume samples you get bombarded with if you shop in person at Macy’s only the Ditto one didn’t, to my great disappointment, smell like  Drakkar.  I was so excited to see this young company come out against trolls and imagined their campaign not only reaching it’s goal of $30k, but exceeding it mightily.

Alas, that was not meant to be.  And I tried not to judge people for not helping her even though everyone, everywhere should want to beat these trolls into submission.

Out of what I can only assume was massive fear for her company’s life and panic at the thought of losing all she’d worked for, Kate chose to get in bed with Erich Spangenberg at IP Nav.

picard-facepalm_dittojpg

And now, in the worst of all scenarios for troll trackers and fighters, it appears that IP Nav was successful in fighting off Lennon.  Well well well, isn’t Mr. Go-Thug just so proud of himself?

spangenberg_thug

“I don’t stand accused [of being a troll].
I stand guilty.”

I do get it, I do.  I understand why Ditto needed an ally and this article at IndyStar,com explains:

not only has partnering with Spangenberg given Ditto more resources for its legal fights, but it has also freed the Dittos team’s time to actually focus on building the business (a site where shoppers can virtually try on eyeglasses) again.

But is the state of affairs on the Patent War front so dire that companies have so few options at defense?  Would Ditto have been better off fighting to invalidate the patent?  They tried other options, it seems:

She sought out lawyers who might charge a discount rate in return for a stake in Ditto. She also pleaded for help from techies in Silicon Valley, where Ditto is headquartered. She had no luck on either end.

Her luck, as it were, changed when she was seated next to Mr. Go Thug on a panel.  They struck up a conversation and out of a deep-seeded need for legitimacy and because helping Ditto would give him something positive to promote about his ne’er-do-well company, IP Nav cut a deal for equity in exchange for funding the lawsuits (both 1-800-Contacts and Lennon Technologies).

So now although Ditto has ostensibly been saved (the 1-800-Contacts suit is still pending, despite the pot of flowers sent to their parent company’s CEO by our favorite Spangenberg, which were summarily ignored), the means to get there sends exactly the wrong message, which is that partnering with a troll can save you from a troll.  How is that even logical?  Why does that work?

I dunno.

The article at the Indianapolis Star by Alex Campbell really does explain a lot of the back story, and it makes it hard not to sympathize with Ms. Endress’s plight.

What it does not do is make it hard to sympathize with Erich Spangenberg and IP Nav.  Once you go thug, you can’t go back.

JustSayin_small_New

IPTT

{Picard facepalm image found here.  Erich Spangenberg image courtesy of the Dallas Observer.}

I Really Want To Take Back My Dittos, DITTO

Background:  DITTO is a company that lets you try on glasses virtually via an online app, so that you can see what they look like before you buy them.  Some other players in the glasses industry, notably 1-800-Contacts, didn’t like this young padawan learner getting all up in its Jedi business, so they bought a patent and sued DITTO for infringement, the net effect being that DITTO ran out of money to fight and the owners were forced to either sell at less than optimal value or get outside help.  They chose to get outside help from the devil himself a company called IP Nav.

I’ll be honest, I’m hurt.  My feelings were genuinely and inexplicably hurt when I read that DITTO sought help from IP Nav.  At the end of the day, I don’t have a dog in this fight.  Oh, I have a dog alright, but he’s too stupid to care about patent trolls and the fact that a promising start up was just forced to make a deal with the devil to survive.

Well, wait a minute…that’s not entirely true.  I do have $30 worth of dog in this fight, in that I contributed the minimum amount to DITTO’s Indiegogo campaign and got a t-shirt.  There are a few theories I have about why this campaign may not have reached it’s goal (notice my artful avoidance of the word “failed”), not the least of which is the fact that people don’t like to wear purple, even if you try to disguise its purpleishness by calling it “raspberry”.

Nevertheless, it doesn’t matter now.  DITTO has sold out to the worst bidder in the game.  From people that I know who are in the know, I understand that what Mr. Go-thug himself wants more than anything is legitimacy.  He wants to be seen as someone wearing the white hat who swoops in and saves the little guy, and DITTO served that up on a silver platter for him.  They are the little guy he once was himself who just needed someone to help fight off the bullies who’re stealing his lunch money.

spangenberg_thug

Mr. “Go Thug”

You can blame the patent system, and the Wired article does to a certain degree:

For casual observers who don’t follow intellectual property disputes, the whole idea of a system that enables patent trolling is still astonishing. … Patent-trolling seems to directly violate the basic premise of inventing: People who don’t make anything suing people who do.

Fair enough, even given the caveat that all trolls are Non-Practicing Entities (NPEs), but not all NPEs are trolls.  But here’s the crux of the issue:  the small companies that get hit with these suits need a place to go for protection.  Not everyone can be a Rackspace or a Newegg or a Fark (and thank God for that one…you know I love you, Drew!!), all of whom have fought back against the trolls and had success.  This is what Julie Samuels was getting at:

Under such duress, no one should fault any single business or individual for the choices they make in a patent fight, says Julie Samuels, a staff attorney at the Electronic Frontier Foundation. “To ask someone who’s facing a patent troll to do what’s best for the world, which is to fight back or make a lot of noise, is often asking them to do something that’s against their short-term interest,” Samuels says. “The systemic problem is different than the problem that any one company finds itself facing.”

That last sentence bears repeating:  “The systemic problem is different than the problem that any on company finds itself facing.” 

I can’t pretend to know what it’s like to be in fear of losing a business the size of DITTO.  I’m not in Kate Endress’s shoes (though she seems way more fashionable than me so I’m betting I’d like them if I were and I’m a ladies size 7 narrow so send some my way and we’ll talk) so, you know, there but for the grace of God go I.   I have owned a company before and own one now, but have never had the kind of pressure that comes with having to lay four people off at once because of pending litigation.  She’s doing what she has to do to survive, we all make choices.

I just wish her choices weren’t between “Lay off the rest of my employees and shutter the  company” and “Lie down with dogs, wake up with fleas.”

JustSayin_small

IPTT

{Erich Spangenberg image found via The Dallas Observer.}