Should IBM’s Watson Be Patent Eligible: An Essay By An Idealogue Without A Clue

Just in case the subtitle isn’t clear, I’ll invite you to review the twitter conversation where Gene said I was not worth arguing with, then proceeded to engage in the conversation with five more tweets.  I’m not sure if he can’t count, or if he just can’t help himself?  The point was, he asked me if I wanted to debate whether IBM’s Watson should be patent eligible and I told him that I was far too wordy to do that on Twitter but that I’d be happy to respond on the blog.

And here we are.

I’m coming at this issue of patentability of Watson and of software in general not as an attorney, not as an engineer, not as a patent agent, nor as a government official.  In fact, other than making good on a Twitter promise, I don’t have a dog in this fight.  I’m just a girl, standing in front of a boy, asking him to love her.  Wait, what?

Notting-H-Julia-Roberts_l

I look exactly like Julia Roberts, only with brown hair,
blue eyes, and much less height.
True story.
(Hint: not really)

I see this issue from a business standpoint, and as someone who has a background in computer programming/software development.  I’ve been doing it for over 20 years now so I think I have more than a passing understanding of what computer software is and does, and how it’s created.  I spent the better part of my 20’s in little hidey holes banging out line after line of code.  It isn’t as if I’m coming completely out of left field here, is my point.

The question of should Watson be patent eligible is moo…IBM does in fact own several patents for the technology behind the service.  So the question is more rhetorical in nature.  Scholars at every level have been tackling this question for in excess of two decades so the idea that I can work this out in a blog post or twitter conversation is hugely unlikely.

Nevertheless, you asked (and so nicely, too!) and I will proffer my answer.

Lines of code or algorithms are not, in and of themselves, useful.  From the US Constitution, Patents are issued:

to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

To promote the “useful arts”, not to promote “really cool code” or “computers that can win Jeopardy”.  No, the intent as I read it was to protect those who spend their time and money developing something new, non-obvious, and useful.  Yet how useful is Microsoft Word if no one ever creates a document with it?  See where I’m going with this?

Using patented technology, IBM is promoting the useful arts.  They’re giving away some of the information that Watson’s powerful computing has generated from an article here :

In a demonstration of its power, Watson has 4.7 million patents and 11 million scientific journals published between 1976 and 2000.  In each article Watson carefully identified any previously unseen chemical compounds (in pictures or text), grabbed any related diagrams, grabbed relevant keywords, and lastly scooped up the author and company names.

The result was a database of 2.5 million compounds, which are thought by Watson to be unique.  For each of these compounds Watson discovered the earliest patentee.  IBM donated its superbot’s work — the “open chemistry” database — to the U.S. National Institute of Health (NIH), allowing scientists all over the world to dig into it.

But again, it isn’t the lines of code or the circuitry or the machine itself that makes Watson useful.  It’s what comes out of it.  This is why I don’t like patent trolls, incidentally.  They don’t make anything, they just buy patents and extort money from people by threatening to sue for infringement even, and especially, when there’s no true evidence that any such infringement took place.  But I digress.

I’ve spent the better part of a week reading all about Alice Corp vs. CLS Bank and the numerous briefs (brilliantly curated here by Dennis Crouch) surrounding it.  I’ve read countless articles about Watson itself (himself?) and this one is the best.  And in all my reading and Googling do you know what I discovered?  This is a multi-layered and complicated question with no clear answer.  Hell, if this statement via Wikipedia is any indication:

The fractured panel of ten judges issued seven different opinions, with no opinion supported by a majority. Seven of the ten judges upheld the district court’s decision that Alice’s method claims and computer-readable-medium claims were not patent-eligible, but they did so for conflicting and incompatible reasons. Five of the ten judges upheld the district court’s decision that Alice’s computer-systems claims were not patent-eligible. The panel did not agree on a standard to determine whether a computer-implemented invention is a patent-ineligible, abstract idea.

then there is not much hope that I can add thoughtfully to the discourse except to say this:  I think figuring out what is patentable and what is not has become so unbelievably complicated because complications mean lawyers who are necessary to decipher what’s going on and we all know that in any dispute, patent or otherwise, the real and clear winner is always the attorney.  They didn’t do it on purpose.  I think complication is a natural offshoot of people who are, by nature of their vocation, extremely risk averse and also?  Happen to bill by the hour.  They spend all their time looking for any loophole to any given statement (either on the loophole creation side or the loophole avoidance side) so they dream up crazy tests and rules and talk their clients into suing each other over them.

suits_charactergallery_harvey_09

Lawyerus billalotus.

But just as an aside, regarding Alice Corp v. CLS Bank, what kind of crazy-making is this, anyway?  Alice Corp creates “a computer-implemented, electronic escrow service for facilitating financial transactions”.  From their own website:

An Alice Market enables end-users and investors to create flexible contracts that meet their hedging and investment needs in a real-time, secure and anonymous electronic market. It also ensures that participants are not exposed to the possible failure of the parties with whom they contract.

Is it possible to “ensure that participants are not exposed to the possible failure of the parties with whom they contract” without an Alice Market?  If what CLS Bank was doing uses the exact same methodology and code that your patented software does, then I suppose you’ve got them on infringement.  It doesn’t seem that hard to me to figure out…CLS is either using your software methodologies and code and algorithms or they aren’t.  As a coder, it’s pretty easy to figure that out so honestly, I don’t get what all the fuss is about in terms of whether or not they’re infringing.  Or maybe I’m stupid and am missing something really obvious, in which case I have zero doubt that Gene someone will let me know.

Either way, this isn’t really what the case is about anymore, it’s about can you patent software?  Nee’, is IBM’s Watson patent-elibible?

My answer?  Like I said on Twitter…code that simply replicates business rules should not be patentable.  But for the broader question of all software in general, I don’t honestly know.

You can bet, though, that I’ll be waiting on the Supreme Court’s answer to the question like some people wait for a shoe sale at Nordstrom’s.

JustSayin_small_New

IPTT

{Image of Julia Roberts’ front and Hugh Grant’s back from Notting Hill found here. Image of Harvey Specter found here.}

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What Made The Trolls Trolls, Anyway?

I know what it was…they were mistreated as children.  Their Mommies wouldn’t let them eat ice cream for breakfast, and made them make their beds and bring their laundry down each morning.  When the Look of Death failed to frighten her into submission, they packed up their marbles and went in search of better living accommodations where they soon realized that they actually couldn’t do much better out on their own and maybe, just maybe, Mom knew what she was talking about but out of spite, settled under bridges and scared passersby into paying them a toll to cross over to the other side.

Actual Look of Death from my actual child.
Be afraid. Be very afraid.

 

But if we’re talking about patent trolls, the road to perdition is a little less clear.  There are lots of different reasons, the way I see it, that the problem has  gotten out of hand.  Here’s a list of where I think things went wrong.  These are just my opinions, of course.

Lack of Court Competition – It’s been posited to me on Twitter that perhaps it isn’t the Federal Circuit, as this article by Timothy B. Lee suggests, that has been a factor.  I disagree.  I think that whenever there’s a lack of competition for something, be it a consumer product or justice, that’s not good and it breeds advantage-taking.  From the article:

 The Federal Circuit Court of Appeals enjoys a monopoly over patent appeals, and it has used that power to shift patent law in a direction more favorable to patent holders, including trolls. Taking away the Federal Circuit’s monopoly over patent law would be a big step toward bringing balance back to the patent system.

Now, maybe they didn’t use their power to shift patent law to favor patent holders.  Patents themselves favor the holder!  But when there’s no check or balance built in, this is a risk you run. That’s an issue, and something that trolls are wont to take advantage of because that’s how trolls roll.

Further, there’s the idea of “pay to play”:

They don’t just hear patent lawyers’ arguments in their courtrooms, they also mingle with them at conferences and social events.

This is what Gene Quinn at IP Watchdog was getting at when he talked about the big corporations rubbing elbows with lawmakers, and about how they didn’t really care about patent trolls so much as they were in bed out playing golf with them.  Timothy Lee makes a similar argument, only with troll lawyers and judges.  If there’s only one circuit of appeals (Supreme Court notwithstanding because we all know very little makes it that far) and those judges are hobnobbing with the lawyers who appear before them, then how impartial are they, really?  This is why I think the Federal Circuit is a part of the problem.

The Death of the ‘Dust Docket’ – Whether it was a result of tort reform or people having had enough of the huge judgments against companies as a result of shady personal injury trial lawyers, the dockets for things like asbestos poisoning began to dry up.  So where’s a sneaky lawyer to go?  Hmmm…patents.

The barriers to entry to file a patent infringement suit, or better yet, simply send out a bagillion demand letters, are low.  All it takes is an attorney with some free time and pretty (or not) letterhead, and there you go.  Some patent attorneys are complicit in the problem, is my point, and I’ve written about that.

Bad Patents – Patent quality matters.  When patents that are overly broad and cover obvious claims are issued by the USPTO, it creates the perfect scenario for troll tactics.  Article One Partners chose an excellent tag line, and they’re going after the problem at the very lowest common denominator.  You have a host of patents related to business methods and software that should never have been issued.  But now that the genie is out of the bottle, how do you put it back in?

Very expensively.  You either file an IPR, fight full-on in court, seek declaratory judgement…whatever you do is going to cost you something.  And that’s just what the trolls are counting on when they seek to buy up these rogue patents and throw them around like daggers.

The issue of bad patents is partially a result of patent examiner practices, which you can read about here, here, and here.  It’s a related problem, and it helps feed the trolls.

Lack of Desire to Fight– Not all companies that are hit with a demand letter or an infringement suit are going to fight.  They have their reasons that they don’t want to be on the Patent Troll Fighter Heros Gallery, and that’s OK.  (It’s not, really, it’s very hurtful to me personally but I recognize that it’s not about me even though it totally should be.)  But every time someone rolls over, it makes the trolls stronger.  It reinforces their business model and they learn that if they just keep trolling, the money will keep rolling in.

Sometimes, victims of troll-ish tactics actually approach another troll for help.  This makes zero sense to me, but I’m not trying to save my company so I try hard not to put on my Judgy McJudgesteron pants.  Although it is very difficult.

It may not be so much a lack of desire to fight as it is a lack of funds to fight.  I do recognize that.  And then there are the companies that just don’t give a rat’s.  They have the money to fight but it’s not really a big deal to them.  If they can pay a license fee, even if it’s higher than it should be because trolls are greedy and awful, then so be it.  It keeps their in-house counsel focused on other issues more germane to the bottom line, so they cut the check and move on.  I hate it when that happens, because it sends exactly the wrong message to the trolls, which is that trolling works.

patent-troll-graphic-final

Image by Alan Schoenbaum.
Awesome.

 

Just like there’s not a single, reliable litmus test for who’s a troll and who’s not, there’s not just one reason that patent trolls troll.  I think these are the most obvious ones, and what started me off on this topic was the push back on Twitter regarding Timothy’s article about the Federal Circuit.

I wasn’t able to articulate my response in Twitter’s 140 characters because, and you may have noticed this, I tend towards verbosity.

No really, it’s true.

JustSayin_small_New

IPTT

{Image of Michael, now age 11 and still scowling like a madman, by me.  Troll drawing by Alan Schoenbaum of Rackspace.}

Interview With A Patent Examiner, Part III

Note:  This is the third and final in a series of posts about my interview with a former Patent Examiner, who worked for the USPTO from 2000-2008.  Read Part I here, and Part II here.

Despite suffering wicked withdrawals from a lack of black and whites, it’s good to be back home.  Texas and I are going to have to talk about this 95 degrees in September thing, however, now that I spent time again in a place that has all four seasons instead of just two (hot and hotter).  New York CIty?  I love your Fall!

Back to work we go…it’s time to finish up the series from my interview with a former USPTO Patent Examiner with the most timeliest topic we discussed: software patents.

The sixth and tenth of my 10 questions were these:

6.  What is your opinion on software patents, and the mantra that “computers do math and math is not patentable”?

10.  Any general comments?

Software patents are all the rage now, or at least raging against them is.  Your friend and mine Gene Quinn recently had a conniption fit wrote a blog post about how “intellectually dishonest” we all are for thinking that software patents are a problem at all, which was kind of odd.  It was a fairly technical post and long about the time people start inserting pictures of computer guts, my attention span tends to fade.  Nevertheless, I’m certain he has valid points, I just don’t know what they are.

The majority of the patent blogosphere and Twittosphere (which is to say “Twitter”) has major issues with software patents, and my examiner was no different.  He laid the blame at the feet of patent claims, where he said

Software patents are for a processor with instructions and you can have the instructions to be anything.  Because the process is intangible you can write anything into the claims.  It becomes a word-smithing exercise.  It’s based upon elements which I don’t think should be patented.

It’s too difficult to ask an examiner, because of the limitations on them including that they only search the database and not, for example, technical manuals, to make that call.  It’s a lot harder for the claims to be examined.

The second paragraph goes back to his statement that the corpus of knowledge that patent examiners search for prior art is too limited. And that’s an issue…patents are slipping through the process because people aren’t looking in the right place for prior art, or because the filing attorneys have done such a good job with the wording of the claims that it’s just different enough to exiting patents that it will not get any direct hits when the patent database is searched.  That’s a problem that has solutions (hello, Article One Partners!)

As for the first part, I agree with him that it’s a word-smithing game.  When you look at some of the patents that are being litigated, the “auto-complete” patents, for example, how is that not obvious?  One of the points my examiner made was that something may be non-obvious based on the fact that it hasn’t been patented before, or based on the fact that the applicant’s high-dollar attorney is telling you it’s a novel idea and not obvious because that’s what he’s been hired to do, or because you just didn’t talk to the right people.

My point being that particularly in the case of software patents, one conversation with a programmer and you’ll learn that, seriously?  Auto-complete has been around in one form or another since 1991 because why?  It’s obviously a useful feature.  So how is it all of a sudden now a patent that anyone who writes websites has to have a license for or they’ll get thugged out of existence?

That’s just dumb.  Legal, but stupid.

pbs-software-patents

If you don’t know who Martin Goetz is, watch this.  What you’ll see is that the whole idea of software patents was born out of the fact that one company was giving away for free what another company wanted to charge for.  I’d love to tie this into Mike Masnick’s thoughts on industry disruption, and how companies that write software could have found other ways to monetize what they’re doing rather than sue IBM and cause a ripple effect that years later, would bring start ups to their knees.

With regard to the tenth and final question of the interview, my patent examiner’s comments were a recap:  give examiners access to a wider range of prior art search options to prevent bad patents from being issued, and find a way to draw attorneys into the job so that they can match wits and intellect with the applicants’ hired guns.  He suggested that putting together a database of the text of technical manuals would be a good use of increased funding, and mentioned that Google was working on a project like that, or so he’d heard.

There you have it, straight from the horse’s mouth.  The single biggest thing I learned is that Julie Andrews was right.

Let’s start at the very beginning, it’s a very good place to start.  When you read you begin with A-B-C.  When you sing you begin with Do-Re-Mi.

Issue good quality patents by having the right prior art search tools and the right mindset about what should be patentable and what shouldn’t (hint: not software), and you create an atmosphere where innovators can feel safe spending their years and their dollars dreaming up new products.  The patent system was set up to encourage people to create something new and give them a time frame to be successful without the fear of others piggy-backing off their hard work.

Somewhere along the way, we lost sight of this basic idea, and it became all about the money and the weaponry employed by modern companies as they seek to wipe out the competition using any means available.  I’m no kum-bye-ya (and hello? exactly how many ways are there to spell that??) hippie chick, I know that companies are not all going to just get along.  But if we can fix some of the things that are going wrong at the USPTO, we can at least force a little bit of disarmament, no?

JustSayin_small

IPTT

Interview With A Patent Examiner, Part II

Note:  This is the second in a series of posts about my interview with a former Patent Examiner, who worked for the USPTO from 2000-2008.  Read Part I here.

In the first part of the series, the focus was on questions 1, 2, 4, and 5 which dealt mostly with the whole process of what happens to a patent application when it arrives in it’s cute little envelope at the USPTO, how the examiners are organized into coffee clatches groups, how the chain of command works, that sort of thing.  Now it’s time to put your waders on for a deeper dive into the topics of Prior Art and examiner skill set, including salary information direct from the horse’s mouth.  The horse, of course, being the publicly available government website that lists salary information.  <— Answer to Question 9?  Done and done.

The topic of most interest to me was that of prior art and the question I posed was this:

3.  What tools do you use to search for prior art? Is a prior art search even really a major part of a patent application review, or is that expected to have taken place before the inventor files?

The answer provides a lot of insight into how those problem patents that the trolls exploit came into existence to begin with.

In answer to the first part of the question, my patent examiner said this, and I quote here just to make his answer stand out, it is not a verbatim direct quote but rather my piecing together of notes of the conversation, emphasis mine:

While I was employed at the USPTO, there were two search systems, called East and West.  Examiners would choose which one they wanted to use.   These systems searched only the patent database.  Now days, most examiners use Google Patent Search, but again that searches only the universe of existing patents.

Prior art search then is 99% patent literature.  So that is a huge lesson learned after leaving…technical manuals and publications need to be searched too.

Did you catch the bolded part?

Russell-Brand-Mind-Blown

My mind, like Russel Brand’s (if he has one?), is blown.

He did add that there is a “USPTO Library” of sorts where you can put in a request to have more searches done, outside the scope of existing patent literature.  But that can take up to two weeks and is often done by people who are not well-versed in the area.  Meaning, they are not experts in the subject matter like the examiners in a particular Art Unit are.  Often the results that you’ve waited a few weeks for, potentially dinging you on your on-time deliverable metrics, are not worth it.

And speaking of those metrics again, this was interesting to note, again, not a verbatim quote:

One thing that is nice about only searching patent literature using existing systems is that the results are standardized.  It is very easy then for the Primary Examiner or Supervisory Primary Examiner to review work done by less experienced examiners.

Convenience outweighs knowledge in this case: the USPTO would rather have the results be uniform than thorough.  My paraphrasing, he didn’t actually say that.  That’s what our tax dollars are paying for, right?  Right.  I guess?

With regard to the second part of the question about how much prior art search work is done before the application is sent in, there’s a little bit of politico going on there as well.  The lawyers who submit these applications on behalf of their clients know that if they do a prior art search that is thorough and they find something, there goes the application (and the associated client fees).  BUT, if they do only a cursory  “good faith” review so that they can say they did it without being called liars, then the application has the possibility of getting approved because you can betcha dern tootin’ those attorneys know that the USPTO’s prior art search is really a prior patent search and won’t turn up much.

And we wonder why the patent system is in disarray.

The conclusion that my examiner came to was that finding prior art is not difficult.  But what is difficult once a patent has been issued, is taking that prior art to the patent office and getting it to be reviewed to invalidate a patent.  Which tells me that the prior art searching before the patent is even issued is where the USPTO needs to step up it’s game.

BAD patent-image034534534

I have no idea what this is but 1) it’s gotta be a bad patent and
2) I wish I had one in college.
(#2 makes sense, think about it.)

Let’s circle back to the lawyers here for just a second, because it helps answer my Questions 7 and 8, which were as follows:

7. What would you change about the USPTO as it pertains to the number of examiners and their skill set?

8.  Would more funding solve any of the problems that you now see at the USPTO

What my examiner said was this (my compilation from my notes once again):

Being on the outside now, when I have interviews with examiners I see that there is  an intellectual drop off.  They are smart engineering-type people but are not as well-spoken or persuasive as the lawyers arguing on behalf of the application.  It would level the playing field to have examiners be lawyers.

To directly answer Question 8, he said that more funding to pay a higher salary to examiners with law degrees might help in the quest for better patent quality.  They’d be able to speak the foreign language that is “lawyer”and therefore be less susceptible to the high-pressure tactics that patent lawyers sometimes use to push an application through.

They’d also be more aware, and this is my own personal perspective, of the prior art search capabilities that exist in the world outside the USPTO bubble.  Look, it’s no secret that working for a government agency leads to tunnel vision.  If you put some financial incentives in place for all those EE/JDs out there to transfer in from their God-awful 5th year “not-partner-material” Big Law position as a patent examiner, you might get someone with some real smarts behind the wheel of the patent issuing machine.  Someone get Above the Law on the phone, I think I just solved their problem of so many disgruntled attorneys writing in to bellyache.  You’re welcome.

Questions 7 and 8?  Now also done and done.

I found this part of our conversation the most enlightening, because it really does speak to the lowest common denominator which is bad patents.  Now, I will always contend that patent trolls will take patents and use them as a stick to beat people with no matter how good or bad any one patent is, because they get their kicks going thug on the little guy; they’re going to extort higher fees than necessary using those patents and do it from people who aren’t even infringing but can’t fight the charges.  So don’t think for one second that I’m going soft on what the trolls’ business model really is.

But because there are so many patents out there that should never have been issued to begin with, it makes absolute sense to take a look at how that happened and what potential preventative solutions are out there.

In the final installment, we’ll tackle the subject of software patents.  There are those who would contend that they are not a problem at all (Gene Quinn, I’m looking at you), but many would disagree.  In Part III, we’ll let my former patent examiner weigh in!

JustSayin_small

IPTT

{Russell Brand’s mind blowing gif found here, crazy toilet thingy patent image found here.}

MythBusters: Patent (Troll) Litigation Explosion Edition

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

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

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

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

Adam's Nirvana

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

Moving along:

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

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

This, however, is just poppycock:

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

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

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

MerryGoRound

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

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

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

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

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

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

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

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

JustSayin_small

IPTT

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

How To Pronounce ‘Patent Troll’: It’s NYE-row, Not NEE-row

I don’t know whether to get on my hands and knees and thank Gene Quinn for giving me so much to write about or get on my hand and knees and beg him to quit giving people like Ray Niro a forum.  While I wait for my left brain to decide, I’ll let the right brain write.

In an exclusive interview given to Mr. Quinn, Ray points out that we shouldn’t require people to actually manufacture something in order for a patent to be valid, taking the Non-Practicing Entity synonym for “Patent Troll” to task:

But, [the Wright Brothers] didn’t have the resources and talent, maybe, to manufacture it. So a guy named Curtis came along and he started manufacturing the airplane using their ideas. Using their inventions and they brought patent suits for, I don’t know, eight or nine years before they ultimately prevailed. The Wright Brothers prevailed.

This is wholly different from what the troll-variety of NPE is doing, and you know it.  The Wright Brothers went after a company who was using their patented technology.  What they did not do is send threatening demand letters to every six year old boy who jumped off the backyard roof with a pillowcase tied around his neck as a cape, trying to fly like a Superhero.  Or, similar to our friends the Scanner Dudes, send a letter to every small business who’s ever bought a scanner and used it to email something.  THAT?  That’s troll behavior, that’s what we’re talking about.  You know that.  Nice smoke screen but we see right through it.

smokescreen_ray

Next, he says this:

We’re an idea-driven society, period. We don’t have the factories that we once had. We don’t have the businesses that we once had. What we have are ideas. And we better encourage innovation.

Ideas and innovation are not the same thing.  I personally hate this whole “idea-driven” society because it allows IP lawyers to line their pockets people to get lazy.  Having an idea is nice.  For example, the idea of reading a book is nice.  But actually reading the book and doing the report will get you the grade.  So which is the real innovation?  The idea of reading the book, or the report produced from reading it?  I argue the latter because that requires real work, and that is what I think should be rewarded, not just ideas.  Not that this is a conversation I have had recently about required summer reading assignments or anything…

That said, I get it, sometimes you have a great idea and you can’t make the product.  This is why they’re called “Post-It Notes” from 3M and not “Steph’s Stickies”.  True story.  (OK, not really, I  totally stole that from Romy & Michelle’s High School Reunion.)  But you can’t just stop with the idea and go around suing other people who also had the idea and then executed when you didn’t.  And especially you can’t do that when you didn’t even have the idea to begin with, but bought it on the open market for a whole lot less than you’re  going to sue others for.  THAT’s what trolls do.  And again, you know this.

The topic moved to current legislation and how that will hurt innovators more than help them which is what we would expect someone on his side of the fence to say.  And it’s in this part of the conversation that the rubber met the road:

And, hopefully, we will tune out these special interest groups, like Cisco, et al., that are creating the hysteria. At least that’s my hope.

And there it is, folks.  Ray’s still fighting a 10 year old battle against Cisco because he and his ilk were called out on the original Troll Tracker blog.  Don’t remember that?  If memory serves, and I think it does, the final few posts involved the filing of an infringement lawsuit before the patent even issued.  Pssst…Mr. Albritton?  The cart goes after the horse.

cart and horse1

Anyway, Ray Niro offered up a bounty to find out who an anonymous blogger was because he’d been called out on his poor behavior.   Offered up a bounty.  On a blogger.  ??

Maybe it means something, maybe it doesn’t.  But what it isn’t is a surprise that Raymond Niro would be a staunch defender of the practice of patent trolling, and adverse to any legislation that may seek to curb such behavior.

JustSayin_small

IPTT

{smokescreen image found here: http://www.louimbriano.com/wp-content/uploads/2011/04/smokescreen.jpg}

{horse and cart image found here: http://hcrenewal.blogspot.com/2010/10/cart-before-horse-again-institute-of.html}

Something’s Fishy Here, Must Be The Red Herring

Remember a hundred years ago (give or take) when the Supreme Court was trying to define “obscenity” and this was before The Internet really took off so we couldn’t just look up a picture of a woman wearing white shoes before Memorial Day and be done with it?  I believe the official definition went something like this:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Methinks we’ve been snookered here re: the debate about what is and is not a patent troll.  I am way too lazy to go look up all the blog posts about how to properly define a troll, which would help demonstrate how much back and forth there is about the topic, but rest assured the debate abounds.  And truth be told, I think it’s fair and good and right to try and define the terms used in the patent litigation industry because they’re helpful to people who are just starting to be affected by it (re: targets who’ve received their first demand letter).  I’ve even written about it myself.

But here’s the problem:  there are so many definitions and too many cases where any given definition only fits some of the time.  As soon as you define what trolling is, narrowly or broadly, a troll is going to come back and say “But we don’t do that all the time, that was just that one time and it’s not our core business” or “that is just a very small part of our business and we had to do it because everyone else is” or  “look at all the ways that we don’t fit that definition!” or my personal favorite “We didn’t go after anyone for that patent, we just sold it to someone else…how do we know what they’re going to do with it?!”   It’s becoming a huge red herring, something the trolls can watch us dicker over while they continue their assault on innovation right there in plain site.

ARedHerring_edit

This is why Rachael Lamkin’s point in her dialog with IP Watchdog is so important:  “we know a troll when we see it”, just like Justice Potter Stewart said from the SCOTUS bench lo those many years ago.  I think this is very true, and I think the trolls count on people jumping on the label bandwagon trying to figure out how to fit each and every bad guy into a column on a spreadsheet, all the while they’re out there shape-shifting and changing their business model to fit their ultimate goal:  extortion of fees for patents.  (Which, incidentally, is why I think the government’s new law proposals and Presidential edicts aren’t going to matter in the end:  the trolls will always find a way around the legalities of it, the same way they find ways to avoid being labelled as one of the synonyms for “Patent Troll”.)

What’s going on is, as the issue of patent trolling attracts more and more attention in the mainstream media, the message is getting diluted and the waters are getting muddied.  Good thing that herring is red or we might’ve missed him.  The way you determine whether a company is a patent troll is not by a single definition, it’s by a pattern of behavior over time, by looking at the results of that behavior and ascertaining “Is this behavior that is good for American businesses or is this behavior that gets in the way of progress?”  In a lawsuit it’s the stage where you “prove up” your case.

So how do we do that with trolls?  I’ll tell you how: we enter demand letter data and over time, the question of what is a troll, never mind who is a troll, will all but answer itself.  We build a community around how these guys behave…what they ask for in settlements, what they demand in their initial leaflet drop from their G-5’s, how they handle their claims construction when things get to litigation, the list goes on.  By looking at behavior over time we will be able to tell which companies are the real villains, and which are just victims of circumstance.

Rachael makes a great point in her discussion with Gene:

we know that these Trolls work in waves with these cease and desist letters and most people who get these cease and desist letters figure they’ll just keep quiet. The problem with that is they’re giving up key advantages like forum choice so they can all talk with each other without talk — speaking publically you might be able to figure out how to pull funds and go have one company step forward or find the best DJ Jurisdiction and have that company step forward and bate the Troll into giving him another correspondence to trigger DJ Jurisdiction, right? That’s one way where you might really start to push back on these 8 Symmetries, but there’s no way, there’s no forum, there’s no secret forum for the recipients of these letters to even speak with each other.

This is my field of dreams, what That Patent Tool is trying to become.  That place where people can enter in the demand letter data and build a community around it.  It’s not perfect yet, some of the features are still being built out, but it’s coming.

This is where we should be focusing efforts right now.  I love me a good debate about the terms and conditions that warrant the use of the term Patent Troll, I can’t deny that.  But let’s not get so hooked into the school of fish that will lead us straight out into an ocean of meaningless banter that we aren’t able to do some fishing of our own.

Just sayin’,

IPTT

{image found here: http://dickstrawser.blogspot.com/2010/04/lost-chord-red-herrings-in-verdi-square.html}