Choose To Chance The Rapids, Dare To Dance The Tide

No matter how I feel about his policy not to sell on iTunes, and I feel fairly strongly about it, you gotta love Garth Brooks.  Or at least the 58 bagillion people at the ACM Awards this past Sunday night do.

So.  Let’s just come right out with my point…the “podcasting patent” is no more.  I’m not quite sure how to feel about it because I never really saw Personal Audio as a troll (as evidenced here and here).  Why?  Well, chiefly because the company’s owner actually patented something himself rather than buying a patent on the open market for the sole purposes of extorting payments from (alleged) infringers, or, worse, purporting to be “inventor friendly” and convincing people to “innovate” for him and then monetizing whatever crap he can manage to patent out of the process.  You know, like Intellectual Ventures does.  Further, Mr. Logan spent his own money trying to commercialize the idea, something a troll would never do because the idea isn’t to add value of any kind, it’s to add volume to their wallets.

IP Troll Tracker

Joe Mullin puts it this way:

The history of Personal Audio dates to the late 1990s, when Jim Logan created a company seeking to create a kind of proto-iPod digital music player. But his company flopped. Years later, Logan turned to lawsuits to collect money from those investments. He sued companies over both the “episodic content” patent, as well as a separate patent, which Logan and his lawyers said covered playlists, that wrung verdicts or settlements from Samsung and Apple.

I’m not inside Mr. Logan’s head, but I’m imagining that it was less “turning to lawsuits to collect money from investments” as it was “Daaaang, those dudes are doing what I tried to do, and I even paid to patented the idea, and I think I’m owed something for my trailblazing.”  I love you anyway Joe, even though I disagree with you on this.

But as I said in prior posts on this topic, the issue for me in this particular case was never “should the patent have been issued”, it was “the patent was issued and I felt he had a right to assert it”.  Plus, I don’t have any first-hand knowledge that his tactics in trying to get licenses was trollish-like.  We’d know if it was, if anyone who received such a letter would be willing to upload it to That Patent Tool.  (HUGE HINT. PLEASE TAKE IT.)

I feel a little sheepish that it was EFF that took the patent down because I like those guys.  I was a total and complete bumbling idiot fangirl when I met Julie Samuels in person that one time.  I know, she’s not there anymore but she was when I met her and went all Kristen Bell and a Sloth.  In my mind, of course.

What would have saved us all this heartache would be if the USPTO actually did a better job of vetting patent applications and quit issuing stupid ones.  But there again, I’m not even sure this one qualifies as stupid, though the cases of prior art would seem that it was, at least in part, not non-obvious.  <— Double negative, FTW.  You’re welcome, Mrs. Fritchy my Junior English teacher.

Mr. Logan, through Personal Audio, chose to chance the rapids.  He patented an idea and tried to use it in a product in the market place using his own money, and then made an effort to capitalize when technology brought forth the right tools to make it all work.

And because I am incapable of not completing my lyric reference, he didn’t sit along the shoreline and say he was satisfied, he danced the tide until the music was stopped.

I had to get it out, y’all and now feel as though my next post must have quadruple the snark to offset the maudlin tone of this one!

JustSayin_small_New

IPTT

{Oh no you didn’t picture found here.}

Advertisements

Demand Letters And The Entry (Or Not) Of Such Into A Repository

Almost a year ago, because President Obama has no regard for my schedule, I launched an online patent assertion/demand letter repository called That Patent Tool.  It’s been well received, and lots of people, really really cool people to boot, have signed up.  There’s data in the system, and for that I am most humbly grateful!

I had a discussion with Julie Samuels just before she left EFF.  I have to admit that I was kind of upset when I saw that they came out with trollingeffects.org because, like the Highlander, I was thinking “There can be only one.”  THE WORLD CANNOT HANDLE TWO DEMAND LETTER REPOSITORIES, PEOPLE!!  I think I may have even given the folks at the Application Developer’s Alliance some {ahem} feedback for throwing their weight behind Trolling Effects rather than behind me.  Ah, the insecurity foibles of youth.  Sorry, ADA!!

therecanbeonlyone

 

Only Julie’s point, which she made ever so calmly and with much less drama than I myself am prone to, was “Um, no I don’t think so.  If people are willing to put the information in one repository, that almost makes them more likely to put it in another.”  Well Bob’s your uncle, I never thought of it that way.

But you know what?  People are not flocking to enter demand letter information at nearly the rate either of us expected.  I mean, the President himself said we needed a Demand Letter Registry.  Right there out in the open, he said that.   The President said you should do it and yet hordes of people have consistently not done it which means someone’s getting sent to bed without supper tonight.

As serendipity would have it, this article by Megan M. La Belle was posted on Twitter by @PatentWire  It includes a lot of things I personally hadn’t thought about in terms of the effects of settlement (either through the use of demand letters or settlements after a lawsuit has been filed) on the patent industry in general.  While the entire article is worth a full and focused read, I think the very best summary of the issue is right at the beginning:

Not only are patent settlements frequently coerced, they also come at the expense of judicial precedent, which is particularly valuable in the patent context since an invalidity judgment estops the patentee from ever asserting that patent again.18 A related concern is that patent settlements may achieve peace between the parties, but not justice. When patent litigants settle, the accused infringer usually agrees to pay the patent owner, stipulates to the patent’s validity, and promises not to challenge the patent in the future.19 Even assuming such an agreement is in the best interests of the parties, it may undermine the public·s interest by allowing a potentially invalid patent to remain intact.20

Note:  footnotes are left in the quote, but you’ll need to refer to the original article, linked above, to view them.

Let’s pull out a quote from a quote: “A related concern is that patent settlements may achieve peace between the parties, but not justice.”  Peace is what demand letters are designed to achieve, if only for the asserter and through a very Reagan-esque “through strength” approach.  The trolls don’t want justice, they want money, they want their toll.  They know that going to trial is not only expensive for them as well as the defendant, but it means the potential for loss, either on invalidity or non-infringement.   By exposing what they are asking for and who they’re asking it of, other recipients can get a lock on how to respond.  This is the primary goal of collecting the letters: exposure.

What the article seems to indicate is that in some cases, going to trial (or “adjudicating”, because that’s a much fancier word) is better for the public good because it will remove bad patents from the system, the data indicating that when patent suits go to trial, invalidity is a very likely outcome.  I won’t go into all the details of which cases the author feels are better going to trial vs. settling because that would be plagiarism.

What I’d like to touch on is that those companies in the Patent Troll Fighter Heroes Gallery believe in this mantra, that it is better to fight (litigate) than settle with the trolls.  To me and to them, it is about the moral issue and how you should never not ever let the bully win.  According to the article, there is empirical data to back that approach up, suggesting that not settling is the better way to both justice and more effective patents.  With all the talk about “bad patents” out there, and there are many (hint: mostly software), I wonder if part of the reason is that so few patent cases actually get litigated?

Here’s another issue with demand letters and settlements:

Another reason scholars have denounced settlement is because it is shrouded in secrecy.73 Unlike adjudication, the outcome of which is available to the general public, settlements are usually confidential, so that only the parties know the terms of the agreement.74

And again, this is why I and others have created an online demand letter repository.  It’s a way to de-shroud settlement requests, which is what a demand letter is, if we are wanting to use the most euphemistic term possible.  I do realize that, in order to avoid declaratory judgment or venue issues, many trolls no longer put all the information into a demand letter that they used to.  But a surprising amount of trolls still do, as you can tell by both my data and EFF’s data.

donotfeedthetrolls

I’m working on a post about why recipients are reticent to upload letters, because I’ve spoken with a lot of people about their fears which are frequently summed up in two words:  “outside counsel”.  As in, my outside counsel won’t let me.  We’ll get to that faulty lawyer logic in due time.  The most common response people give so far is the age-old “What’s in it for me?”

I’ve been looking since the beginning for ways to incentivize or entice or coerce or somehow get people to provide this data.  Recognizing that settlement may not always  be in the public’s best interest in patent litigation, when it comes to dealing with trolls I think that exposure of those “settlement” demand letters actually is in the public’s best interest.

Now all I have to do is convince the rest of you…

 

JustSayin_small_New

IPTT

{Meme found here. Incredibly awesome troll sign found here.}

On The Definition Of A ‘Patent Troll’: Let’s Get Personal Once Again

Despite this review, I actually love Love Actually.  Mostly because of the wicked moves Hugh Grant pulls of to the Pointer Sisters, but also because of the way he defends Natalie, who’s ex evidently felt she was a little thick in the middle:

Oooooo, would we call her chubby?

The point is, of course, that he loves her and doesn’t see her that way, even though his staff and others totally do.

Hugh Grant Love Actually Dance

“I’ll take you down, I’ll take you down… where no one’s ever been before!”

 

I don’t love Jim Logan (no offense, but I’m a one man woman!) or Personal Audio.  But what I do feel is the need to break from my buddies over at EFF and examine once again if they, and by “they” I mean Jim, can truly and rightly be labeled a troll.

After suffering  through about 25 million ads sliding in and out at random locations (and the alliterative title), I was able to get through this article at The Economist.  I also read the comments, which is usually where the most fun is.  Also at Techdirt. If you don’t read the comments there then you’re missing 95% of the story.

The article talks about the most outspoken recipient of Mr. Logan’s attention, one Adam Carolla.  If I were Marc Maron, I would be a little irked that his fight is getting more play than mine, but whatever.  I don’t have a beef with Adam at all, and I’m sure he’s right irritated at having to deal with a lawsuit.  But let’s take a look at what we can really call a “troll”, because I don’t think the definition holds water in this situation.

From the article:

his company, ACE Broadcasting Network,being sued a year ago by Personal Audio, a non-practicing patentholding entity (a “patent troll”)

Hold on just a second.  I am at this very moment listening to an NPR podcast (how ironic) where they are playing a cassette tape of what they called the “very first podcast”.  If one of the main definitions of a patent troll is that they are non-practicing entities who don’t produce anything and simply sue over patents, and Jim Logan produced a cassette tape podcast, then how does that not immediately negate at least that part of the troll litmus test?

Now, Mr. Logan’s behavior should be analyzed because as I’ve said before and others have too, you have to look at a pattern of behavior to determine if someone is a troll.  It’s really not a hard and fast definition no matter how much my OCD brain would like for it to be.  The fact of the matter is that Personal Audio is indeed going around suing a lot of people.   Some have settled/taken a license and some are barking about it.  LOUDLY.  (Adam, I’m looking at you.)

While the suit does not detail a specific financial demand, Mr Carolla tells Babbage that he was asked for $3m, a sum he finds laughable based on his network’s revenue (which he does not disclose).

adamcarolla

Your season of Celebrity Apprentice was nuts. Aubrey O’Day? Really?

 

So, the suit didn’t detail a specific demand but Adam was asked for $3M.  That’s…inconsistent.  But the second half of that statement speaks to what I said in a previous post about this:

If Jim Logan had put it all out there in the demand letter and made a reasonable demand for a licensing fee by realizing that Adam Carolla, for all his funny, is not going to have the same resources as an Apple or Microsoft maybe he wouldn’t be so vilified?

I don’t know what Adam’s revenues are and I don’t know what Jim would think a reasonable license fee would be.  But I think that there has to be a somewhere in the middle on this kind of thing.  You cannot argue that Jim Logan didn’t try to monetize his patent with a product when it was issued, something troll are rightly accused of, even though the author of the article tries to do just that in both the above quote and this one:

First, Personal Audio fits the definition of a “patent troll”, or an entity formed for the basis of prosecuting patent lawsuits and licensing without manufacturing products or services.

You could, however, argue that he was ahead of his time, that the technology that would have made his idea more successful hadn’t gotten there yet.

This is why Personal Audio is now saying, “Look, I invented this.  I sunk $1.6* million of my own resources into trying to make it work but the timing wasn’t right.  Now it is, and I would like a cut of what you’re doing because it piggybacks off of what I was doing and oh by the way, I patented it and I have the right to exclude you from doing it unless you pay me a license.  That’s how patenting works.”

*I had incorrectly put a $4M figure here, thank you to my friend for the correction!

{Just to interject here, my beef is with the calling of Personal Audio a troll.  Arguments about prior art on the patent or whether or not the patent should ever have been issued are not the subject here.  Those are different and good arguments and I suppose we’ll see in May what the results of the IPR filed by EFF are.}

You know what would have helped both sides in this sort of thing?  A company like idealAsset, the “match.com for IP”.  If Jim had had a repository in which to place his IP asset, a searchable database with buyers and sellers hooked into it, he might not have had to go around suing.  And if Adam’s lawyers (and other podcaster’s lawyers) had a place where they could go looking to see if there was any IP surrounding what they were trying to do, they could have been matched up, gone on a date, and checked to see if there were any sparks flying that might lead to a permanent engagement or, dare I say it, marriage.

Maybe Jim did ask for decent terms in his original demand letters (if he sent them vs. just straight up suing).  I don’t know, he hasn’t entered any of them into That Patent Tool so we can see, and neither have any of the recipients.

All I know is this is one case where I feel it necessary to channel my inner Hugh Grant/Prime Minister and say:

“Ooooo, would we call him a troll?”

JustSayin_small_New

IPTT

{Adorable Hugh Grant image found here. All business-y image of Adam Carolla found here.}

About Those Proposed Government Demand Letter Requirements

This is sort of old news, in that the original story came out last year after a series of Senate hearings on patent trolls.  The government has proposed a set of rules that they want patent holders and their legal counsel to follow when sending out demand letters.  I don’t think they can make those requirements stick legally, nor would I necessarily want them to.

You’re shocked, I can tell.

Here’s my reasoning.  Well, wait a sec….first of all, here’s a cut and paste of what new legislation would require, from the EFF write up about it:

  • Require that demand letters contain certain basic information, such as a description of the patent at issue, a description of the product or service that allegedly infringes it, the names and contact information for the patent’s owners, and disclosures of ongoing reexaminations or litigations involving that patent.
  • Define as an illegal unfair or deceptive practice certain egregious behaviors, such as sending letters threatening litigation without a real intent to file litigation or sending letters that lack a reasonable basis in the law.
  • Explicitly give state attorneys general the power to to target similar bad behavior in their own states.
  • Allow the Federal Trade Commision to enforce these rules by levying penalties of $16,000 per each violation.

You know what all that information that sounds like?  That sounds like a lawsuit filing to me.  Demand letters are not lawsuits, and they shouldn’t be treated as such.  Now, I think that it would be wise to force trolls to include the patent number, you got me there.

The issue for me is that patent trolls are bullies, plain and simple.  I just happen to feel, very much like Elie Mystal over at Above the Law, that bullies ought to be handled by the bully-ee (and his posse, as necessary) rather than by the authorities.

It’s about information and education to me.  Teaching the general public how to handle these letters by a) collecting them in order to get research and report on the troll modus operandi and b) providing resources for companies when they do receive one.  The White House launched a website (complete with 1980’s clip art icons!) where people can go for resources when that happens.  That’s awesome and the appropriate response because it puts the power to decide if and how they will respond in the people’s hands where it belongs.

Let me tell a personal story here…my 5th grader was recently called a fata$$ on the playground.  It was during a pickup game of rugby (rugby?  wth??) wherein my guy landed on another guy during what all the witnesses say was a legitimate play.

rugbymud438

This is what the scene looked like in my head.

Well the guy he landed on didn’t think so and started with the hurling of insults.  My son, God love him, did not go running to the teacher.  He did not demand a hearing before a jury of his 11 yr old peers. He did not call me up from the nurse’s office in obvious emotional distress and demand that I sue the parents of the potty mouthed hooligan.  He did not start a petition to hang signs in the school yard, warning that trash-talk is illegal.  He simply stood up, said “WHAT’D YOU CALL ME??!!”, and proceeded to handle his business.  I’m not going to explain how because I don’t want a bunch of hate mail about how I taught my son to fight, even though it wasn’t really me so much as it was Peter Brady when he took out Buddy Hinton on behalf of Cindy.  Thanks, Brady Bunch reruns.

My point is, I think that the demand letters the trolls send are designed to be threatening and in many cases deceptive (and I do love that some of the states Attorneys General are going after the senders for it, because it’s after the letter’s been sent and completely appropriate).

I’m not as sure though, that the government ought to come in and tell people what they can and can’t put in a private letter to another company or individual.  Barring libelous statements, companies are within their rights to be a jerk and make threats.  And we, as citizens, are within our rights to build and deploy software solutions to combat those threats.  I don’t think that federal time and resources ought to  be spent on the problem at that stage of the game.

This post came out of a retweet by @GCToGo of a tweet by Cisco’s Mark Chandler (@ChandlerCisco).  Limiting myself to Twitter’s 144 characters is always at times painful for me, so this was one of those times it had to go to the blog.

Plus, what else is there to do on a cold, rainy Sunday but write about patent trolls?

That’s what I thought you’d say.

JustSayin_small_New

IPTT

{Fantastic rugby image found here.}

Cory Doctorow Is Spot On, Even If You’ve Never Heard Of Him

Probably everyone else has heard of Cory Doctorow, but I hadn’t until I came across a piece that was so brilliant (in large part because he agrees with me, of course) that I had to read it several times and then find a copy of the movie so I could watch it.  His article is about The Magnificent Seven business model and how it applies to patent trolls (and copyright trolls too, but we’ll leave those to Ali.)

the-magnificent-seven-sharp-shooter

Got you in our sights, trolls.

I’ve banged the drum loudly for almost three years now that one surefire way to beat the trolls is to use collective action, preferably prior to litigation.  There are a number of offerings that help once you’ve been sued (IP litigation insurance, RPX’s Collaborative Defense™), but by then the money’s already flowing in the wrong direction, which is to say out of your bank account and into to some attorney’s.  A little too late in the game if you ask me.

That’s one reason I and others have put up tools to collect patent demand letters.  As Cory states in his article:

Since the victims are spread out and don’t know each other, it’s hard to fight back together.

That’s what the trolls count on.  But what if there was a place to input information about which trolls are asking for how much regarding which patents before they actually sue?  Hello?  We have that here (MINE!) and here (THEIRS!).  Cory’s exactly right when he says:

the relatively small profits from being a jerk are concentrated, the much larger effects are diffused, which means that the jerks can afford better lawyers and lobbyists than any one of their victims.

But what if those victims got together?  What if they created a fund for defense, like I suggested in this prior blog post:

In other words, if that’s too subtle for you, why don’t you guys do the same thing?  Coordinate a response.  It looks like some of you did in this case by filing an amicus  brief or two, but seriously?  That all you got?

Open up your wallets, find a bank somewhere (I know!  I know!  Make it Switzerland, since you’re already there!), get an account, and FUND A MASS DEFENSE.  The only thing evil people understand are lawyers, guns, and money.  You have two out of the three, and that ain’t bad.  In fact, it’s enough.  Get some lawyers and some money, and you won’t even need the guns.

This really, truly isn’t rocket science.

Cory’s saying the same thing, only he suggests a Kickstarter campaign.  There’s another option, Defense Mob, that is getting off the ground as well.  There’s a particular brilliance to the way he puts it that you have to read and read until you fully ingest it and let it spur you to action:

Once a troll is worried about a pushback from his victims, he’ll need to raise a war-chest, and since the only thing a troll makes is lawsuits, he’ll start sending more threats. Those threats will attract more people to the kickstarter [or other collaboration effort], raising its profile and its search-rank. The more the troll wriggles, the more stuck he becomes.

DING DING DING, we have a winner, folks.

Give-That-Man-A-Medal-Obama_Facebook_photo_comment

This is exactly what demand letter registries are all about.  Getting the word out and forcing the trolls’ filthy, dirty, long-fingernailed little hands.  And actually, if users will collaborate and talk to one another about what’s going on, you may not need a war chest after all.  All you really need is information.  A collection of data that you can query and find out who else is on the trolls’ hit list.  Once you do that, you can talk to one another and then all of the victims can simply refuse to play the game.

If every person that a troll sends a demand letter to says “NO”, how’s that going to play out?  They’re going to take it to the next level and sue everyone they sent a demand letter to?  OK, they might.  But now go back and re-read Cory’s quote:

The more the troll wriggles, the more stuck he becomes.

I read this article back in November and it still excites me today because I lead a very boring life I love a good plan to take down the bad guys and I’ve advocated doing this since day one.  If I had any smarts at all I’d have tagged all the relevant posts with something like “collaboration idea” and link to them here, but alas, you’ll have to take my word for it.

You want to rid the patent landscape of bottom-feeder trolls?  Then round up your posse, seek out and find your Magnificent Seven, then take the banditos out.

JustSayin_small_New

IPTT

{Magnificent Seven screenshot found here. Obama finger point found here.}

About That Hearing On Capital Hill Yesterday…

I learned something very valuable yesterday regarding this hearing:  I learned that if I have my cell phone on mute, I won’t hear calendar reminders.  Can you even believe that?? As a result I was only able to catch the last 10 or so minutes but thankfully, I have Twitter and a list of hashtags to peruse, courtesy of Ali Sternburg at Patent Progress.  (If you don’t want to take the jump, they’re #trollhearing, #patentreform, #fixpatents.)  For those of you who are likewise smart-phone impaired, or who didn’t know about it in advance, you can view the archived hearing here.

The point a lot of the panelist seemed to be making, save for poor Mr. Mossoff who seemed woefully alone in his defense of the Dark Arts, is that there must be some sort of government mandate surrounding the demand letters that patent trolls send out.  They should be required to contain certain information, and they should be entered into a national database so that others can see them.

JustABill_Nope

Negative, Ghost Rider.  The pattern is full.

The idea that there should be some sort of mandate on sharing the letters, either by forcing the assertion entity to register it or (worse) requiring the recipient to do so, is silly, not to mention unenforceable. It puts too big of a target on the backs of the smaller companies to admit when they got a letter because then they’re fair game for more trolls. The bigger companies don’t need to share because, unless they’re going to fight publicly, they just pay and it goes away.  Still, they have the same fear of transparency and becoming an even bigger target.  Besides which, as the letters are pre-lawsuit, they’re not now, and shouldn’t be in the future, public information.

The whole idea is that people should want to share, in whole or in part, redacted or not, so that it benefits the collective good. What companies get out of sharing is access to all the other collected information so that they can contact other recipients and collaborate on defense.  Or, at a bare minimum, get a read on the MO of the trolls in aggregate and figure out their own individual plan of counter-attack.  Also, there’s the idea that just simply seeing the demand amount offered to other victims gives any other recipient a little bit of leverage:  “Hello, Scanner Dudes?  You’re extorting $1500 from me but only asked for $500 from Victor Victim #2.  What the hell?”

But it can’t be forced. You have to show people the value, first for themselves and then for others, of sharing and shining a light on these trolls or they won’t do it.  You can’t coerce them with some scary new law that will undoubtedly have a horrible unforeseen side effect that you’ll then have to make yet another law to clean up.  We don’t need more laws, we have trouble enough enforcing the current ones, for heaven’s sake.

Just to give the dead horse one last beating, I am not a fan of the government stepping in, really at all on this issue. I admit to liking a lot of the Goodlatte bill, and surely there is something to be done about the glut of bad software patents (which, who are we kidding, really don’t need the “bad” qualifier) and that is a government area for sure. But beyond that, the Feds will only screw this up.

Having said that, I think the State Attorneys General position on this issue is exactly the correct use of the government. Hit them with consumer protection laws, which are already on the books!  And as part of the process, require that they disclose their letters in discovery.  That I can get behind, and it’s why all three states that are taking this approach made it into the Patent Troll Fighters Heroes Gallery.

I have a website called That Patent Tool that was set up to collect information about demand letters.  It also allows users to create a unique and un-identifying forum user name with which to post questions and ask for feedback in a secure forum.  The whole idea is to get people to put information in, as much or as little as they’re comfortable with, and then start digging into the data and see what we find.  I’ve posted twice now (here and here) about what’s been entered so far.

It’s not a huge data set yet, but I still believe that individuals and companies will become more comfortable with sharing information over time, particularly when they’re able to get with other recipients as a result and see how they can best attack the trolls.

It’s exciting that the dialog about patent trolls has reached such a fevered pitch that Capital Hill has noticed.  I’m just not convinced that making demands about demand letters isn’t too demanding of an approach.

JustSayin_small_New

IPTT

{Cute little Schoolhouse Rock bill image found here.}