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.}

Trolls Set Their Beady Little Eyes On A Couple Of New Targets

Tech patents have been the trolls’ bailiwick for a long time now and don’t you think they’re getting a little sick of the same ol’, same ol’?  I mean, even trolls get bored sometimes and need to spice things up. Plus, the tech industry fights itself often enough that the trolls don’t really need to stoke that fire anymore.  (Hello, smart phone patent wars spaghetti graph.)

What’s the next ambulance to chase?  Meghana Keshavan  and Jay Nuttall seems to think that it’s Big Pharma, and I agree.  They actually say “life sciences”, which includes more than just pharmaceutical companies, but I think pharma will be part of the crowd.  So who’s doing the hitting?  You’ll see a lot of familiar faces on this list:

The recent Steptoe paper, titled “The Patent Trolls Are Coming… To Medtech,” outlines what it views the most egregiously trollish NPEs in the life sciences space. These include Acacia Research Corp., WiLan Inc., Intellectual Ventures Inc., IPNav, My Health Inc. and DE Partners Golden Rule LLC.

Do you mean to tell me that the life sciences industry sees Intellectual Ventures and IPNav as patent trolls?  Will wonders never cease.

The article upon which Mehgana Keshavan based her write-up is found here, and it should be required reading for a number of reasons:

1. The side-bar box on Page four provides a list of secret weapons used by trolls.  The first one is key: “Trolls don’t care what you think.”  Some of them even encourage you to think of them as thugs.  Not that I’m talking about anyone specifically like Erich Spangenberg because I’m totally not even though I linked to his article and posted his picture.  Make no association between those two things.

spangenberg_thug

 2.  He correctly points out on page 3 that trolls follow the money.  That’s why they went with tech first.  Once that’s played out, they’ll head to the next big thing: biomedical devices and pharmaceuticals. Then I think they’ll head to oil, but we’ll get to that.

3.  Jay says on page 4 that one way to anti-troll yourself is to be a strong defendant.  How do you be a strong defendant?  He has his ways, but I say one way is to know how the trolls have asserted their patents in the past.  You can get that information by looking it up on PACER, or paying the likes of Lex Machina or RPX to provide it for you.  That will tell you where they’ve already litigated.  Or, you can encourage demand letter recipients to enter them in That Patent Tool.  The sooner we start tracking pre-litigation movement on these guys, the bigger our advantage will be!

It’s great to see a law firm partner willing to step out, similar to the way Goodwin | Procter did with their Guide to NPE Litigation.  Steptoe & Johnson LLP is throwing their hat in the ring with this paper, and they hit the mark.  We’ve also had Intellectual Ventures threatened with getting the Jones Day-lights beaten out of them.  I think it’s cool that firms are taking the problem on rather than just playing to the side that will pay them the most.  It’s a start, considering that lawyers, after all, always the win no matter what.

imalawyer

No shame in my game. I {heart} TMZ.

There are lots of reasons why biomedical and other life sciences companies will be patent troll targets, no question. But I think now, like I did then, that oil companies will have a target on their back as well.  Why?  Let’s spell it out:

  • When the price of oil goes lower, companies invest fewer resources in trying to get it out of the ground because their profit margins are directly related.  So they turn more to technology to help, rather than roughneck boots on the ground, which are more expensive.  This technology results in patents, and patents make them vulnerable to trolls.
  • Big Oil is increasingly driven by software.  They use it to analyze their tool usage and get equipment out of the ground before it hits the MTBF (Mean Time Between Failures) hour mark, they use it to price jobs, they use it to predict where the next big find will be, they use it create specialty invoicing systems…lots of things.  The Alice decision hurt the trolls’ ability to beat people up with software patents, but the decision wasn’t the “kill all software patents forever” edict some hoped it would be.  Since trolls seem to think they can apply spurious patents to software of all kinds, this is a hole they could worm through.
  • Seeing the way other industries have been hit, they have started buying up patents, possibly as a defensive move as I pointed out in the Q4 2013 Quarterly Troll Review.

oil-gas-industry_target

It’s hard to fully predict where the trolls will go.  Did anyone see patent litigation as the next big thing, once actual ambulance chasing went out of vogue, and then tort reform killed the dust docket?  Problably not.  But there’s one thing we can predict with 100% accuracy:

Trolls will go somewhere.  They always do.

JustSayin_small_New

IPTT

{Harvey Levin image found here. Erich’s picture courtesy of #thuglife. Cool silhouette image of oil wells 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.}

 

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

On Patent Infringement Trials And Their Jurors

Newegg lost their lawsuit with TQP Development Erich Spangenberg before the Thanksgiving break.  How does such a bad decision come out of such a pretty courthouse, is what I want to know!

historic.courthouse1-640x302

from Joe Mullins’ Ars Technica post. Did you take that photo? Lovely!

And you know what?  I do know.  I know exactly how this stuff happens, and because I’m cool like that I’ll go ahead and share the love.

Follow me along the trail here, if you will:

  • The people who file patents, by and large, have law degrees.
  • The people who issue patents, examiners at the USPTO, have engineering degrees.
  • The people who send out demand letters threatening an infringement suit are lawyers or self-described thugs.
  • The people who argue patent infringement cases have law degrees.
  • Yet, inexplicably, the people who decide patent infringement cases are…butchers?  Bakers? Candlestick makers?

Does anyone else see a problem here?

This is why, as I wrote about well over a year ago, so many companies settle with patent trolls.  Not only do the not have the money to fight a lawsuit, they don’t want to take their chances with a jury if they do.  You could end up with Velvin Hogan as your foreman, for heaven’s sake!  This is what I said then, and it’s apropos now:

Then there is the problem of putting very technical arguments in front of the general public.  That’s not a slam on the general public, for I are one of them.   Patent infringement trials are fraught with all manner of industry-speak and jargon and terms that people have to look up in order to understand.  Or worse, they need the lawyers to explain it them and we all know how that is likely to end up.  (Hint:  lawyers are terribly partisan explainers, in that they explain only the part of the definition they want you to know, the part that will tip the verdict in their favor.)  Unless you just enjoy spending your time reading about the ins and outs of your newest gadget, all that stuff is going to fly over your head.  And if you buy into the rhetoric that corporations are E.V.I.L. and don’t deserve to make money, then you’re almost always going in with the attitude that Deep Pockets is wrong and the Patent Troll is right.  It’s an easy assumption that is difficult to overcome no matter how good your lawyer is.

It’s probably not fair for me to blame this verdict on the jury, when the blame squarely belongs on poor patents and companies that abuse them like IP Nav.  But good grief, Charlie Brown.  This is not a situation where a “jury of your peers” applies.  If I’ve been mugged or my neighbor’s septic tank has overflowed into my backyard and they refused to pay for the resulting damage (not that that happened to my family as a child and has forever scarred me and now I can’t live in homes where there’s a septic tank) or if I were to spill hot coffee on myself and try to get money out of McDonalds then things would be different.  In those cases?  I need my peers.  People like me who live similar lives, and who do and experience similar things that I do and experience.

good-grief-charlie-brown_edited

Patent infringement is so not a mainstream “thing” that any of my peers get.  You want to know how I know this?  Because when I tell people that I write about patents and patent trolls and lawsuits and such their eyes glaze over they respond with a head-tilt and a very polite “Well.  That’s…interesting.” And then they nod off to sleep and their heads bob forward and slam onto the table at the little cafe where we’re having lunch, the cafe that I will never get invited back to because I talk about boring things like patent trials.  That?  That’s how I know.

I don’t have a solution for who should determine verdicts in patent infringement cases.  I know that outside of the patent troll issue there is certainly plenty of legitimate disagreement over patents and those disagreements need to be heard and vetted by a group of someones.  I’m just not sure it should be a group of someones who live in Marshall, Texas.

Which, by the way, does anyone track juror service up there?  I mean, there’s not but 67,000 people in the whole darn county.  My freshman English class at UT had that many,  (OK, not really.  It had 350 which is pretty much exactly the same.)  and probably only about 1/4 of those are even eligible for service.  How do we know that the same people aren’t being dragged into the courtroom every two weeks for another stint?

We don’t, but it doesn’t matter.  They would still have made the wrong decision in this case.

I’m glad Newegg’s going to appeal and I hope that they win and it’s not just because that’ll mean a loss for IP Nav/Erich Spangenberg/TQP Development.

Actually?  It’s totally because of that.

JustSayin_small_New

IPTT

{Charlie Brown image found here. I’ll cop to the (super simple) photoshopping.}

Captain Kirk Is A Patent Troll, Is What I Think Just Happened

Do you know who Jay Walker is?  I’m not going to ask if you know who Captain Kirk is because I don’t want to embarrass you on a international national local large small stage if you don’t because holy cow, that’s some huge rock you live under if you don’t know and I say that as a Star Wars fan and not a Star Trek fan.  (Monthly quota for run on sentences?  Met. )

Jay Walker is the guy who founded Priceline back in 1998.  That was just on the cusp of the Internet’s Big Bang, and he saw a way to sell all those unsold airline seats and hotel rooms at the last minute by providing a way for users to simply go online and name your price.  One William Shatner, of aforementioned Captain Kirk fame, was and remains the company’s spokesperson.

WilliamShatner_PricelineNinja

“Call me a Patent Troll again, and I’ll ninja you, woman!”

Short history:  Mr. Walker decided to leverage his patent portfolio from the development of Priceline, among I’m sure a great many other ventures, with a company called Walker Digital.  He put the portfolio up for sale but when he didn’t get the bites he wanted, got in bed with Erich Spangenberg at IP Nav and has been asserting his patents since.  Walker Digital sued five people in October of 2011 (heavy hitters like Google and Amazon), three more in February of 2012, and three more in January of this year.  That’s just from what I saw when doing a quick search of my emails from PriorSmart.  According to this article, however, they’ve sued a whole lot more.

Jay Walker (meet him here, he has TED talks so the has to be one of the good guys, right?) is the original patent holder for the portfolio that Walker Digital owns, so I will give him props for at least having something to do with the inventions, as it were, rather than buying off the shelf and then enforcing.  That reduces the ick factor by 1/4, I suppose.  But the fact remains that he uses broad patents issued years ago that can now be shoe-horned into the definition of most of the internet today and he’s taking advantage of that and suing everyone and their Mother.  And while that’s true, it’s also true that he pulled an ESN and filed a lawsuit just as the ink dried on a more recent patent (story via Techdirt here).

Recently Walker Digital merged with GlobalOptions Group which is a forensics company that used to provide services to law enforcement agencies.  So, you know, a natural pairing for a patent assertion entity.  Um, what?  Evidently, Walker needed a way to get on the stock market and that’s why they went all in with Global.   You wonder how the principals of the two companies got together.  Golf?  Their wives knew each other from the Bunco circuit?  We may never know.

Anyway, the companies are now one and will trade under the name Patent Properties Inc., and I do give them props for their understated logo.  They thought completely inside the box on that one. What they’ll do is disrupt the patent market with a new licensing model that “serves the commercial interests of all parties.”  He says that he’s been on all sides of the table when it comes to patent litigation, and he doesn’t like it.  Only oops?  Here’s the sides he’s been on:

He and his companies have sat in every seat around the patent table, as inventor, licensor, licensee and plaintiff.

Maybe my glasses prescription needs updating, but do you see defendant on that list?  To say nothing of the fact that he broke the Oxford comma rule.

Nevertheless, Mr. Walker’s speech here at this link is rather stirring.  He says a lot of the right things, at least where I’m concerned.  But he doesn’t go into enough detail, which is to say that he goes into no detail, about how his innovative licensing system works and what it will entail.  One guess it that he’s product-mapped the patents that are most at play.  This is something that would be a huge data-entry undertaking so maybe that’s why, but how come there’s no big list of patents and the products their used in?  Can we not get that information on any kind of reliable basis?

I guess we’ll just have to wait and see what this new Patent Properties, Inc. and it’s licensing system entails.  But until then, I know that I will never watch another Priceline commercial again without thinking about patents.

And that, my friends, is how you tie Captain Kirk to patent trolls.  I did it with a big derriere, I can do with with science fiction.

JustSayin_small_New

IPTT

{Ninja William Shatner found here.}

comScore’s CEO Goes Thug, Sadly Does Not Win Case Using Either Fists Or Lawyers

OK, you got me.  Not “sadly” because WOO HOO, a troll lost!!  But sadly for them, I guess, if you’re the sort that feels sorry for loser trolls.  I’m not that sort, in case it wasn’t clear from every word I’ve ever written on the subject.

The background goes that comScore very deplorably sued three well-funded start-ups over software that shows you how many people saw your ad, clicked through to your ad, or skipped it altogether like I do 100% of the time.  First off, there were eight patents in the suit and several were many years old and very broad.  Really?

So, wait just a minute.  You’re saying that a company bought a group of old, nebulous patents and then sued small companies for infringement knowing full well that they were just funded enough to pay you a huge extortion fee license but not enough to fight you in court?  Hold up, isn’t there a name for companies like that?

By George, there is!  What you have here is the textbook definition of a Patent Troll.  A troll that evidently ripped a page from the playbook of Mr. Go-Thug himself and nearly got into a fisticuffs with opposing counsel because working for a troll lends itself to all manner of savory behavior, she said sarcastically.  Did Magid Abraham’s mother not teach him to use his words?  Good grief, Charlie Brown.

But then Oops!!  One of the three companies they sued, Moat, fought back.

Fletch_Oops

“Oops?! Don’t say ‘oops’!!”

Here’s the crux of the issue, and we saw this as a possibility with Ericsson when they sold off their portfolio as well (quote from this pando article):

When a company is suing based on these grounds [i.e., old useless patents], it’s not about protecting IP, it’s about protecting one’s own ass. ComScore’s stock has been in a steady decline since it reported a loss in March. In its latest quarterly earnings report last week, the company’s loss widened to $6.6 million, and it lowered its revenue outlook for the full year. The company is struggling and this move reeks of desperation.  (A ComScore rep wasn’t immediately available for comment.)

Desperation is not a good business model.  Trolling, as we’ve all seen, is.  Or rather can be unless people fight back like Moat did.   And especially when they fight back and win, well, that’s even worse for the trolls.

And that leads me to this, the unveiling of a new feature here at IPTT called the Heroes Gallery:

Patent Troll Fighter Heroes Gallery

Here you will find a listing of companies who’ve fought back against trolls.  These are the people and companies we need to be celebrating and teaming up with and using as a resource for how to play the game and come out on the side of the guys with the white hats.  The list is evergreen, and will hopefully continue to grow as companies find ways to rid the patent landscape of the scourge that the trolls are.  I hope to make it a little flashier as soon as the kids stop asking me to feed and clothe them I get some free time, but it’ll do for now.

If you’ve fought a troll and won and don’t see yourself on the list, give me a shout and I’ll add you in.  As for Moat, welcome to the club, guys!!

JustSayin_small_New

IPTT

With a very special thanks to my friend Tim who came up with the idea for the gallery.  Muchas gracias!

{Image from the best move ever made after the Star Wars franchise 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.}

When Patent Trolls React To Being Called A Troll, You Know You’ve Hit A Nerve

Can I just say that the people at http://www.tinyurl.com must love me for my titles.  If brevity is the soul of wit, then I must be the un-funniest person around because in case you haven’t noticed?  I like to talk.  I’m constantly having to shrink down my own URLs for posting on Twitter, an app that by the way is sheer torture for someone afflicted with verbosity.  144 characters?  Oh, the humanity.

Anyhoot, you can tell a lot about a man by what makes him angry.  I’m not sure who said that but the older I get the more I see that truism played out.  Which is why it’s always so interesting to me when a company gets called out on their behavior and they immediately send their PR guys in to comment on your blog posts (Hi Barry!!) or follow you on Twitter (Hi Erich/IP Nav!).

Remember Treehouse Avatar Technologies who went after gamers?  A quick search on Gamepolitics.com will get you up to speed.  The gist of it is, you know, patent trolling.  Treehouse sent out form letters to game app developers hoping to score big.  Bad Pug sent an epic response and I haven’t seen anything more on that story so if you have, let me in on it.  What a slam.  I mean, how embarrassed are you if you’re Treehouse’s attorneys?

Turns out?  Not very.  Here’s how they respond to accusations of patent trolling:

Thank you for contacting us. We represent Treehouse Avatar Technologies in its efforts to enforce its patents, including U.S. Patent No. 8,180,858. The letter we sent to Bad Pug Games is not a form letter. Our letter was directed to the particular game system of Bad Pug, and demonstrated the applicability of the technology in the ‘858 Patent.

As you know, developers of online games commonly seek to prevent the unauthorized use of their creations by registering copyrights and trademarks. In like manner, the developers of the subject game technology sought to protect their rights in their invention by securing a patent. We are now seeking, on behalf of our client, to enforce those patent rights and to thereby secure just compensation for the unauthorized use of this patented technology. We do not seek to prevent the use of this invention by those who wish to do so. Licenses are available on a fair and nondiscriminatory basis.

While your readers may have preconceived beliefs as to the enforcement of patent rights, it is important to remember that the entire video game industry is based on the technological revolution of the last few decades, which would have not occurred without the hard work and creativity of inventors like those we represent.

We are proud to represent Treehouse Avatar Technologies and hope this assists your readers in fully understanding the legal process.

Stephen Roth

Let’s have a little fun with this and fire up the Patent Troll Translater™:

Thank you for contacting us. We represent Treehouse Avatar Technologies in its efforts to extort money from game developers who can’t afford to hire a decent attorney.  The letter we sent to Bad Pug Games is totally a form letter. Our letter was directed to anyone who collects information on how someone plays a game to then upsell them on in-app purchases.  Which applies to every game on every platform.

As you know, developers of online games commonly seek to prevent the unauthorized use of their creations by registering copyrights and trademarks. In like manner, the developers of the subject game technology sought to protect their rights in their invention by securing a patent because we advised them on how the USPTO works, including the likelihood that such a stupid patent would get issued.  We are now demanding, on behalf of our client, to enforce those patent rights and to thereby secure completely outrageous licensing fees for the unauthorized use of this stupidly patented technology. W’re not trying to stop you from using our technology because if you did then you’d get off on non-infringement.  No, we would love for you to keep using it because then we can shake you down.

While your readers may be sharp enough to recognize a troll when they see one, it is important to remember that unless they can fight us off in court, we sort of have all these developers over a a barrel.

We are proud to represent Treehouse Avatar Technologies because we have no shame and hope this letter assists your readers in fully understanding the legal process.  And also, calling us a troll is just mean.  We respectfully request that you stop.  Waaaah.

Stephen Roth (paraphrased)

According to his law firm bio, Mr. Roth “conducted psychological research on human perception”.  That explains why he was bothered by the perception reality that his client is a patent troll.  He’s also “actively involved in the training of the firm’s litigation associates”, which totally makes him the Louis Litt of his firm.

StephenRothLouisLittMashup

I’ll always contend that if these trolls think what they’re doing is OK and there’s nothing wrong with sending out a bazillion letters (give or take) trying to sham money out of people then they shouldn’t feel the need to defend themselves.  Just own what you’re doing and call it day, because when you write letters like that it only goes to show people that deep down inside, maybe, just maybe, you think what you’re doing is wrong.

JustSayin_small

IPTT

{Louis Litt image found here, Stephen Roth image found here.}

Welcome To Art Class: Time To Draw Some Conclusions

Since President Obama, who still has no regard for my schedule, decided to ramp up the rampage against patent trolls which forced me to put out That Patent Tool a smidge earlier than I’d planned to, there’s been a lot of activity on the site and I thought it high time we sit and visit about it, “visit” being a Southern way to say “We need to talk about our relationship.”  (You can send my prize for the longest opening sentence ever to:  Erich Spangenberg, 2515 McKinney Ave, Suite 1000, Dallas, TX 75201…I hear he needs the money.)

It’s fascinating what you can determine based on a set of data surrounding a patent troll.  Let’s take the MPHJ group, also known as the Scanner Dudes.  These are the folks Joe Mullin over at Ars wrote about in April, and a little over 30 of their letters have been entered into the system.  Here’s what we know:

  • There are at least three different demand amounts being requested
  • Not all demand letters from these guys even contain a requested amount
  • January and February were busy months for letter-sending
  • Of their crazy named subsidiaries/shell companies, the ones that begin with “F” seem to be the most prolific

Now, what can we learn from this? Here are my thoughts:

  • Demand amounts depend on the recipient of the letter.  Most trolls are smart enough not to ask Mr. and Mrs. John Doe, purveyors of fine goods at Uncle John’s Corner Store in Deluth, MN for a gigantic fee because guess what?  Mom and Pop stores aren’t as profitable as major corporations.  But they can ask for something and get it because John is not fond of lawyers and just wants the problem to go away.
  • Timing is everything…what makes one month more desirable than another?  Is it tax-related somehow?  Related to shopping seasons?  Like, you send more demand letters in Jan/Feb to people who bought scanners for Christmas, because nothing says “I love you” like “Honey, will you scan and email this for me?”
  • There’s something going on alphabetically with these MPHJ guys.  It would be fascinating to take all the six-letter combinations they come up with and feed them into IBM’s Watson as a Service and see what they spell.  My guess is something like “Patent Infringers Are The Devil” or “We Own You, Beotchez”.

All of which is the point behind gathering the data to begin with.  When you see it in black and white, certain patterns emerge.  Any one who’s been hit by these guys can take a look at what’s been sent  before and use that to fight back with.  That’s collaboration, folks.  That’s taking what we know and building a community around it to solve the problem ourselves.

The more data we get, the more patterns will emerge and the more we can use those patterns to form a proper line of defense against the Dark Arts patent trolls.  That Patent Tool was meant to be just what the name implies:  A tool for tracking trolls and taking them down.

As more and more letters come in, the tool becomes more and more useful, so if you’ve got ’em share ’em!

JustSayin_small

IPTT