Patent Litigation Down, Everyone Cheers! Turn Down For Whaaat??

Like everyone else on the internet, I went there.  It’s the only non-Taylor Swift song I’ve downloaded all year and frankly, I stand unashamed to admit that.  She speaks to my late-teens, early 20’s angst like no other.

{Wait, did I type that out loud?}

There’s been a lot of talk about how “patent litigation is down and look here, …don’t you know that means the patent troll problem (that people have been saying doesn’t exist) is over like clover?”  But a) are the number of patent litigation suits really going down, and b) does it matter if they are and c) how can you people continue to say things like “Behold, the patent troll problem is a thing of the past!” and “There’s no such thing as a patent troll!” at the same time?

Jackie Chan Confused

What is wrong with you people?


Lex Machina came out with a report that patent litigation filings were down 40%.  To wit:

Plaintiffs filed 329 new federal patent cases in September 2014, a 40% decrease from the 549 cases filed in September 2013.

Dennis Crouch over at Patently-O and I AM reported the same thing, citing Lex’s numbers because why not?  A 40% reduction in patent filings sounds all nice-like.

But if we take a look at what Unified Patents says, they tell a different story:

The number of 2014 patent litigation filings approached 5000, the third highest count ever.  Patent suits have risen dramatically since 2010, disproportionately impacting some sectors and technologies.

Say whaaat?  If you go back and look at what Lex’s numbers are reporting, you see that they’re taking Sept 2013 filings compared to Sept 2014 filings and saying “Look y’all, that’s a 40% decrease!!”  If you understand The Mathematics at all (or have a calculator handy), you’ll see that using standard arithmetic, they’re correct.  But while it makes for a good headline that everyone and their uncle likes to repeat, is it giving the whole story?

Just because you have numbers and can graph them doesn’t make what you’re saying true.  If that were the case, then we need to all but insist that Miss America candidates be no more than about 12 years old, lest those hot-vapor murderers kill us all:


The thing is, it doesn’t even matter.  Whole numbers are nice, but it doesn’t mean that patent trolls haven’t caused unknown damage to small business and large businesses alike.  We all know what ‘they’ say:  There’s lies, damn lies, and statistics.

As I pointed out on Twitter, it’s not so much the number of suits that’s problematic, it’s who sues who and what it costs to defend.  If there were only three patent troll lawsuits in a single year, but those lawsuits shut down three companies, if those three lawsuits cost hundreds of people their jobs because company owners were forced to deflect funds to lawyers (the only true winners in any litigation), would we be better or worse off?

You can work the numbers to reach any conclusion you want, but it won’t mean there isn’t a problem with rogue companies taking their “patent rights” to the extreme and abusing the system to beat down either the competition or the little guy, who are sometimes one and the same.

To quote one of my favorite Harrison Ford movies:

Sometimes I sing and dance around the house in my underwear. Doesn’t make me Madonna. Never will.



{Jackie Chan confusion image found here.  Spurious correlation graph found here.}

Big Data v. Intuition: And The Tie Goes To…

Is there a lot of data coming out about patent troll litigation these days or what?  Entire companies are built around the collection, analysis, and packaging of NPE litigation data so there’s clearly a market for it.

Reading this article from Wired about Big Data and what it does to the concept of a SME (which, when pronounced “smee”, is almost as much fun to say as “nastygram”), I’m struck by the balance of how much of the litigation data can be taken at face value v. how much of what we think about these guys is just pure personality driven.  For example, I don’t care much for Nathan Myhrvold.  The main reason is that he refuses to come out and say what he’s doing, even though we all know.  You just want to walk up to him and say “We can see you, Karl.  C’mon man, you’re the King of the Jungle!  You’re better than this…”  Besides which, he looks just like Daniel Hardman, the antagonist in USA Network’s brilliant legal show Suits.  Strike two, if you’re counting.

The Big Data op-ed was online, but in the current print edition of Wired, there’s an article on page 24 entitled “What If Your Gut is (Gasp) Wrong?”  I thought this was a particularly salient point, though I don’t necessarily find it applicable:

There’s so much information that it’s easy to build a case for what we wanted to do all along.

In the troll-o-sphere, I don’t think we can say that the data doesn’t point to the conclusion that there are companies out there extorting money for patents, from big and little guys alike.  So it’s not like we’ve come to that conclusion and genned up data that matched it.  But I think Colleen Chien is right, and it’s a point I’ve made as well, that litigation data does not, as her point #10 indicates, tell the whole story.  The award for the sentence with the most commas goes to:  IPTT.

I agree that Big Data can prove right over gut feelings.  Though I haven’t seen it because it is not likely to make me laugh and does not star Harrison Ford, my two criteria for any movie I’m going to spend two hours of my life on, Moneyball evidently makes this point re:  The Oakland A’s in 2002, who used pure statistics to drive player decisions and won the pennant.  Having raw data and numbers in front of your face does lead to more informed decision-making.  Point made.

But what if you can have both?  What if you can take the raw numbers and then match that with gut feelings that have been data-fied?  (When there’s not a word for what I want to say, I just make one up. That’s how I roll.)  I think you can take the raw data about litigations and you can take raw data about what happens prior to litigation and you can take softer, more gut-level data about the personalities running the trolls (and the legal teams defending them) and you can paint a very nice picture of what needs to be done to solve the problem.  By codifying  relationships in the industry you can put those gut reactions into a form that can be queried back out.

What I’m saying is that I don’t think we’re getting all the data points we need.  Start collecting the points you’re not catching now and put the screws to the data and see if you can come up with a different set of solutions to fight these guys than we have now.

I’ll end with one of my favorite quotes, and why I think Big Data v. Intuition ends in a tie:

You can lead a man to knowledge, but you can’t make him think.

Getting the data you need is only 1/2 the battle.  What you do with it is the other 1/2.

Just sayin’,


Comic-Con: No Crazy Costumes Required (NPR)

NPR = Not Patent Related

My first exposure to Comic-Con was the year that KOTCS came out.  (For those of you who are not ultimate Indiana Jones fans, a) why not?, b) shame on you for not knowing, c) it stands for Kingdom of the Crystal Skull, and d) it was 2008.)  That’s where they first announced that Karen Allen would be back to reprise her roll as the Indiana Whisperer, Marion Ravenwood.  *sigh*  She was the best of all the Jones girls, bar none.

Around these parts, however, Comic-Con stands not for that fan convention out on the left coast, but for the Comic Constitution.  The Comic Constitution was born out of a need for a certain group of then nine-year-old boys to prevent each other from stealing ideas for comic book characters.   As was the practice at that time, a group of boys would get together and draw comics during class when they should have been paying attention recess and it so happened that the creator of the Chicken Hawk and Rooster Hawk characters, a little boy we’ll call “Michael” because that’s his name, became disenfranchised with his buddies when one of them deigned to include his character in their comic.  Without asking first.  And they drew the characters ALL.WRONG because don’t you know that Chicken Hawk would never be seen holding a bow and arrow?  You don’t know that?  Oh, the humanity.

Not content to simply go ask the offender (or possibly offenders, I never quite got the whole story) to knock it off because isn’t that what nine year old boys do?  They just go up and punch each other’s lights out until the issue is resolved and then buy each other a beer, or possibly a shot of tequila?  No?  No.  That is not at all what happened here.

Evidently, Michael took it upon himself to write up a Comic Constitution.  Something akin to third grade Copyright Law, that outlines what you can and cannot do with regard to writing comics.  To wit:

The Comic Constitution

Here’s the text, verbatim:

There shall be no stealing Ideas/Characters from other peope’s comix.  The creator of the comic does not have to let it go, he/she can rip up the comic if they do not aprove.  And they have to write the owner of the comic name on the title, if they don’t they have to throw away/tear the title and writer has to write a knew one.

It’s so simple, it’s brilliant:  If you use my character without telling me, I don’t have to just ignore your gross malfeasance, I can rip your comic all to hell.  Or, you can use my character, but my name had better be on the title, bitchez.

Ask me how many times those kids got in another fight about comic strips?  It’s less than one, just to put a number on it.  And they did it all without lawyers!

So what’s the point of this little anecdote?  The point is that these people in Maryland are completely crazy when they say that the school gets to own the stuff the kids who attend there create.  Nine year olds in Texas figured out a year ago that that ain’t so.

What’s wrong with you, Maryland?

Just sayin’,


Wherein I Quote The Remake of Sabrina

I’m not generally a fan of remakes, but the updated version of Sabrina stars Harrison Ford, which is the only other reason than to laugh that I go to see a movie though I must make an exception to that for Cowboys and Aliens.  Harrison?  There is not enough tequila on the planet to have convinced you to make that movie. Ditto Daniel Craig.  For shame, on both of you.
My favorite line from the 1995 Sabrina is

“Do I look stupid?  You know, I never thought of myself as stupid, but maybe I am.”

David Larabee’s mother says it to Linus because David really thought we didn’t know he was out to get the chauffer’s daughter.  Please.  That’s kinda how I’m feeling about Friday’s Shark Tank episode with the FuzziBunz lady. By about ten minutes into her spiel it was crystal clear that she was there for one reason only:  to bitch about people stealing her idea.  “IP Squatters”, she called them.  Very soundbyte-ish and you could tell she couldn’t wait to use her $10 phrase.  Never mind everything else that was wrong with her business, she was all furious because she’d sent the plans to a manufacturer in China who *GASP* stole them, made a similar product, and sold it for (presumably) cheaper.  THAT HAS NEVER EVER HAPPENED BEFORE TO ANYONE IN THE HISTORY OF EVER.  That’s all I can assume she was thinking, the way she got all super-indignant about it.

First of all, let me just say that about 12 years ago Attachment Parenting was all the rage (in fairness, it may still be…my kids are long past the slinging age so it’s far less relevant to me now than it ever was) and there was a sub-part of a message board I belong to devoted to the practice.  I have half a mind to go do a search and recall all the threads about cloth diapering.  Fuzzibunz, while highly regarded, was but one of many nearly identical alternatives.  It’s not all that unique an idea, and I really need to go look up what exactly about it she has patented because that’s a whole bucket of stupid right there, that the USPTO would consider patenting something that’s been in existence pretty much since babies were invented.  So Tereson Dupuy really needs to take up her fight with Adam and Eve, is what I’m saying.

I’m a little surprised the Sharks didn’t attack her for the smoke screen she threw up.  Her appearance was a vendetta.  And for the sake of authenticity and the fact that I am reading Daring Greatly so I have to open up here, I myself have operated out of spite from time to time.  But spite and bitterness don’t grow a business.  Patents shouldn’t either.  What should grow a business is a sound idea well executed.  What has happened to Tereson is that she had only the first half of that equation.  Her business is not profitable twelve years into it.  According to her Shark pitch, she’s at $3.9 Million in sales, but $20k in profits.  Wait, what?  That’s pretty sad to be at that point so many years into it.  She admitted that she had a bad patent attorney so OK, everyone makes a mistake.  But once the super-secret diapering plans were out, you have to change your game.  Litigation is not a business plan.  Oh, wait

It would appear that she didn’t do that, and her business is suffering and she needs help.  She intended to use Shark money to fight the patent battle.  The Sharks didn’t bite, and well done on them.  Like Maude Larabee, they aren’t stupid.  I have a lot of ideas for how to grow her business, but so does she.  She knows.  She just got caught up in the patent wars, another victim of the “Intellectual Property as King” mindset created when the trolls took over the industry.

It’s a shame.

Just sayin’,