Professors At Stanford Do Not Have Coffee Together, Study Shows

A few weeks ago (was it days ago? I can’t remember..between all the rain and gloomy clouds in the Houston area for the past FOREVER AND A DAY and the time change and Robert DeNiro being sick, I can’t figure out which way is up these days) some guys at Stanford published a paper about how patents <> innovation.  For the un-mathed among us, “<>” is equivalent to “not equal to”.  <– See, that’s pretty funny if you think about it.

RobbieD

Allow me to introduce Robert DeNiro, my (now) 11 week old labrador retriever, who is a bit of a hot-house flower and gets very sick if you so much as look at him cross-eyed.

But then this morning on The Twits (if we can call it The Googs, we can call it “The Twits”, amiright?) I found this article by another guy at Stanford.   Mr. Haber, we’ll call him, because that’s his name, posits that patent trolls not only exist, in stark contrast to the opinion of many inventors and people wont to disavow us of the notion of patent reform, but that they are good for innovation.

<blink, blink>

So I have a question…do you people at Stanford ever talk to one another?  Ever get together over coffee or a game of Jenga?  Do you vet your theories with one another before you spout off at the study/blog post and completely contradict one another?  Just askin’.

Mr. Haber says that not only do patent trolls exist, but that they:

may actually benefit inventors and the innovation economy,

by

[offering] insurance and liquidity [to inventors],

Is this news?  Because, honestly, didn’t someone (ahem) and probably other people say this exact same thing long about three, four years ago?  Yes, yes she did (queue quote from backgrounder):

Now, it could be argued that the purpose of an NPE is altruistic, in that they provide a way for inventors to both obtain a patent in the first place, and to seek compensations for their use by the Big Guns of industry.  This happens in two ways:  Firstly, Bob the Inventor from Boise, Idaho is not very wealthy.  The patent process is long and expensive and confusing (hello? It’s the government we’re talking about here) and he will need help getting his invention in front of the patent examiners and that nice big GRANTED stamp he needs on the final paperwork.  NPE’s help people do this.  They provide the money up front plus a little extra for Bob, in exchange for either owning the patent outright at the end of the process, or taking a license to it.

You can tell how long ago this was written because back then, PAE was NPE.  So there’s that.  If the Gaye’s can get money out of Pharrel and Thicke for what they did, I oughta be able to pay off the house with what Mr. Haber just said because it’s the same thing I, and many others, have already said.  The idea of a patent holder needing an intermediary is not new or even particularly loathsome.  It’s not even the same thing as a patent troll, it’s sort of in a way, the opposite.

In patent trolling (try and follow me here), the PAE proactively seeks out the patent, usually an old and bad one, and litigates with it.

Top10LitigatedPatents

How is that the same thing as a PAE who’s helping an inventor get his idea into a product?  Jiminy Cricket, folks, it’s not.

Harvey Spector eyeroll

Besides which, didn’t we just learn from Robin Feldman & Mark A. Lemley that patents don’t equal innovation anyway?  So why would you say that we need PAEs (which you mistakenly, in this case, equate to patent trolls) to help people with their patents if patents aren’t going to help us innovate?

Seriously, you all should introduce yourselves.  I can help, I’m a bit of a matchmaker in my spare time…just ask all my unmarried friends.  Oh wait, I don’t have any.  See? I’m that good!  I can hook you all up, gimme a call.

Before I go, I have to call out one more quote from the Haber article:

As he said, “It not like someone puts a gun to someone’s head and says, ‘Sell me your patent.'”

Getting serious for a moment, which y’all know is super hard for me, I disagree.  I think that companies like Intellectual Ventures and IP Nav do exactly that on occasion.  They prey on inventors who don’t understand the system or who have no where else to turn (like to Ideal Asset, for example) and they take them for all they’ve got.

I like Stanford because it’s cool and nothing but smart people abound, but ya’ll should really sync up on your patent position.

JustSayin_small_New

IPTT

{Image of RobbieD from me.  Image of Top 10 Litigated Patents also from me.}

 

 

 

 

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

That Big Sonic Boom Late Last Week? That Was Rockstar, Getting The Party Started

First of all, I feel not unlike Rodney Dangerfield these days, what with the President’s lack of regard for my schedule and now the reports of Rockstar Consortium’s decision to file a lawsuit that came on Halloween night when I’m busy trying to ferret out all the Reece’s Peanut Butter Cups from the candy my kids got.  Thanks, Rockstar.

So here’s my question for the consortium members:  At what point do you spend your time improving your own products and innovating instead of hiring people to deconstruct the success of others?

I don’t know the going rate for cell phone reverse engineers is these days, but I know that it’s probably a pretty penny especially since Rockstar reportedly hired 10 of them.  Ten people.  To spend all day and night ripping apart a product to see if it infringes on one of 4,000 patents.

Haystack, meet the needle.

It took you a little over two years to do it but low and behold, you feel as though you’ve gotten the smoking gun, the holy grail that will do…what?  Tie your money up in litigation for years?  And in that time span, your hope is that the Android share of the cell phone market will decline, right?  That the man on the street is going to go “ZOMG!  My Android-based phone was made by a company who infringed on a patent!!  I simply must change platforms now, for I cannot be a party to this madness.”

Yeah, I’m sure that’s exactly what’s going to happen.

Harvey Spector eyeroll

What is so disconcerting about this whole thing is this:

“The principals have plausible deniability,” said Thomas Ewing, an IP attorney who spoke to Wiredabout Rockstar. “They can say with a straight face: ‘They’re an independent company. We don’t control them.’ And there’s some truth to that.”

“Plausible deniability”?  What is this, the movie Independence Day?  We’re not talking about some alien holed up in Area 51 which is (probably) fictional and no one told the President so that if the aliens ever did attack, the public wouldn’t go crazy saying he knew all about it which is pretty much the whole plot of the movie so I totally just saved you a Netflix rental, you’re welcome.

What we’re talking about is heads of the major smart phone manufacturers getting beat into the ground by phones using an operating system that is, whether better than theirs or not, out-selling them so they have stamped their little feet and said “Fine.  We can’t beat you fair and square?  We’ll have our consortium sue you.”

Smartphone_marketShare_macRumors

Again, “plausible deniability?”  Please do not pee on my leg and tell me it’s raining.  Any deniability on the facts surrounding what is really going on here is completely implausible.  When it  comes to Google specifically, there’s this:

Rockstar may want to keep the patent conflict as a kind of “proxy war” between Google and its competitors. But Google has plenty of patents, and this new attack seems assured to bring a counterattack.

Right?  I mean, in what world does Microsoft and Apple and the other 10%-ers believe that Google won’t retaliate?

Here’s the final kicker, from this article by Seth Fitzgerald:

One of the most intriguing aspects of the lawsuit is that Google had tried to buy the Nortel patents for $900 million but lost when Rockstar put up a significantly larger bid. Google went on to counter Rockstar by acquiring Motorola Mobility for $12 billion. Despite losing the chance to acquire Nortel’s patents, Rockstar claims Google went about using Nortel’s ideas anyway.

I maintained back then and still do now that Google didn’t want those patents (read here and here).  What they wanted to do was drive the price way up, and they did.  Fast forward to now, and while Rockstar has spent two years and lots of money digging for their “Ah ha!” moment so they could come out swinging, Google went right on with their bad self and put their money into innovations such as Google Glass.  I’m not all up in Google’s financial business but I can only presume that since they weren’t paying off that $4.5 Billion bill, they also instead used their money to buy an actual operating company that comes with a whole set of patents that they can now pull out of their back pocket and use.

When I was in the 4th grade with Mrs. Unger, she had us all draw a picture of a nuclear warhead.  Each picture represented X number of weapons that the US had.   Then, a certain sub group of students was asked to draw a warhead that represented X number weapons that the USSR had.  The whole point was to show us that really, after a certain point, it didn’t matter how much fire power each side had because the minute one country or the other fired off, we were all assuredly going to be dead.

Mutually assured destruction, I think is what she called it.

Right.

JustSayin_small_New

IPTT

{Harvey Spector eye roll found here. Chart of smartphone market share found here.}

Bullies: Weighing in on The Verdict

This is a rarity for me, because I’m not going to link to or quote anyone else’s blog or news article in this blog post.  Can you even stand how original that will force me to be??  I think I feel a nervous tic coming on…

The thing that has always fascinated me about the patent realm, and it’s red-headed step-siblings copyright and trademark, is the personalities involved.  How much do you have to think of yourself to want to trademark the phrase “You’re Fired!”?  Donald Trump, I’m looking at you.  I’m a huge fan of The Donald, read The Art of the Deal when I was 13 and his personality has fascinated me ever since.  Same is true of the people involved in this blog’s namesake fiasco.  The very idea that two grown men can get so out of sorts for being called exactly what they are is just nuts.  Niro and Albritton went all batcrap crazy when Frenkel called them out for filing a lawsuit on behalf of ESN against Cisco for a patent that had yet to be issued.  Ooopsies.  So Frenkel labels ESN a troll and Niro and Albritton as their allies and they go freak nasty.  Again, personalities are cuhRAZY in this business.  Guys?  How about not doing stuff like that if you don’t want the label?  Or, if what you’re doing (i.e., being a Patent Troll) is nothing to be ashamed of, then why the lawsuits for defamation of character?  I’m no math whiz but something doesn’t add up.

So back to The Verdict, it’s public knowledge in IP circles that Steve Jobs had a personal issue with Samsung.  He was going to make them pay for stealing his design of the iPhone come hell or high water.  And he did.  And in the process do you want to know who really won?  The same people who always do in litigation:  THE LAWYERS.  I mean, don’t you guys watch television?  Harvey Spector’s suits don’t buy themselves, you know.  CLIENTS  (and by extension, customers) PAY FOR THEM.

You can take the Mark Cuban route and complain ad nauseum via twitter that you shouldn’t be able to patent a rounded-corner rectangle and that would be one angle (ha!) to take.  But it’s much more interesting to look at the whole picture, for me anyway.  You have a man who’s clearly a design genius.  If you look at the trial demonstratives that Apple put up vs. what Samsung put up Apple is the winner.  Don’t think that didn’t factor into the jury’s decision…patent law is confusing and if you don’t make it as easy as possible to understand then you’re behind the curve.

But my point is that a man who actually buys about $10 billion (it may be million, but again I promised myself no linking to other stories on this one)  in parts from Samsung was so burned by the fact that they designed a phone that looks similar that he dragged them into court and beat them to a pulp.  ??

If you can prove to me that someone who wanted an iPhone accidentally bought a Samsung phone and didn’t march immediately back to the store and exchange it then I’d be a little more OK with it.  But the fact is that if you want an Apple item you’re going to buy one, regardless of how similar-looking or similar-operating a competing product is.  Even if, and in some cases, for some people, especially if, it’s more expensive.  Why?  Because that’s the legacy that Steve Jobs built.  By suing Samsung he’s effectively saying “I don’t trust the company I built and  I don’t trust my customers to come to my stores if something else out there looks remotely similar.  So I’m not going to let anyone else come close.”

What are you so afraid of, Apple?  We love you.  I have two iMacs and three iPhones and if you made a DSLR I’d buy that too.  You don’t need to be a bully and knock everyone out of the game.  Just be who you are and build what you build.  People want it.  They will come.

Just sayin’,

IPTT