The Best Post on Patent Reform (Not Written By Me, I Mean)

For years now, people have been screaming for patent reform, most notably to help get rid of, or at least neuter, patent trolls.  But then as soon as that happens, we know it will be temporary because the trolls will invent “neuticals for trolls” (and patent it) and they’ll be hard at work all over again which is why I’ve never been a huge fan of letting the government fix a problem that they created to begin with.  I think the market is the best place to kick a troll’s ass and companies like Newegg are taking that to whole new levels and OMG how hard was it to write about patent reform, and an excellent blog post about it, before jumping on that bandwagon?  VERY HARD, that’s how.

whoopass IP Trolltracker

Can of Whoop Ass appearing courtesy of Newegg.

The post in question was written by one Florian Mueller and it had me hootin’ and hollerin’ and  fist pumping so hard throughout that I kid you not, my neighbor saw me through the window of my home-office and thought something was wrong, came over and rang my doorbell, set my silver labrador retriever off in a fit of barking, and cost me an hour of productivity while we all wound down.  Thanks for that, Florian.

There’s so much gold in this post I’m finding that even after sifting, my pan is full of the good stuff.  But I’ll start with this quote, because I think it’s genius:

In all those congressional hearings on patent reform that I watched, each and every politician repeated the mantra of the U.S. patent system being key to innovation and allegedly being the envy of the world, when the reality is that it’s the laughing stock of patent and industry professionals in the rest of the world.

First off, I’m not convinced that, anymore, the patent system is the key to innovation.  Why?  Because you can innovate without patents.  You can be successful, you can launch a product (with or without funding), you can win at life without a patent.  True story.

To continue the quote:

…and no one believes that U.S. juries are qualified to determine infringement and validity issues, no one has ever disagreed with me that the Federal Circuit is generally too patent-holder-friendly, and no one has ever disagreed with me that the quality of USPTO-granted patents is generally even lower than that of European patents.

Exactly.  I said the exact same thing in October of 2012 and again in December of 2013.   I’m not knocking Joey Bag-o-donuts.  I’m saying that patent law is tricky and sneaky and full of all kinds of techno-speak that finding a “jury of your peers” in that space would require visiting Stanford or Harvard or South Texas College of Law and plucking students out of the sessions in law school that deal with IP, not sending a letter in the mail to people who live within a ten mile radius of the court house in Marshall, Texas.

Courthouse_Marshall IP Trolltracker

So pretty. Too bad the shot didn’t include the ice skating rink that Samsung built. Zzzing!

Continuing, I want to put this quote on a sandwich board and wear it on Capital Hill (when it warms up, of course):

It must be said that the correlation between patents and innovation in a country is hardly a causation of patents promoting innovation, that patents increasingly serve as a substitute rather than an incentive for innovation, and that studies linking patents to innovation are often based on circular logic, considering each patent an innovation.

See statement above.  Patents NEQ Innovation.

The whole point of Mr. Mueller’s post is, after correctly identifying the problem, to point out ways to use the governmental process to fix what’s wrong.  I don’t agree with everything on his list because that would be way boring.  But I do think he’s got a couple of points that the dialogue should start addressing if we’re to solve the problem:

  1. Don’t blame it all on the trolls.  I blame a LOT on patent trolls (mostly global climate warming change because I can tell by looking that they’re the reason for all the snow this year), and I think the behavior of using patents in sneaky and underhanded ways is deplorable and I’ll keep writing about it until they’ve all gone the way of the horse and buggy.  But we can’t ignore the fact that the USPTO gave them the stick with which to beat that drum.
  2. One size does not fit all.  Different industries require different approaches to protecting intellectual property.  Realize that, and make the necessary changes to the law to account for it.
  3. Meritocracy.  So, I can’t really paraphrase what he said here because I can’t get the words to come out right.  But go read what he says in that section of his blog post, nod your head in agreement, and come back here and thank me for calling it out.  You’re welcome.

One thing I didn’t see on his list is venue reform.  As we all know, I’m not a fan of letting the government solve the problem of patent trolls per se.  To some, that’s what “patent reform” is, killing the likes of Intellectual Ventures and Uniloc, et al.  I don’t like that definition.  If we broaden it to include Florian’s list and add venue reform so that Marshall, Texas and the judges and claims construction experts and jurors who live there are taken down a notch or ten, then I’m all about that hashtag.

Creating the patents system didn’t happen overnight, and fixing it won’t happen that fast either.  Figuring out how to start the dialog that will yield the best results is half the battle, I think.

Thank you, Mr. Mueller, for articulating it so well.

JustSayin_small_New

IPTT

{Courthouse image found here.  Can of whoop-ass found on every pantry shelf in the state of Texas.}

 

 

…And For Our Next Patent, A Portal To Narnia!

Twitter debates are my favorite, and I fell sideways into one last week, as opposed to starting one jumping in with both feet like I normally do.   It began with a simple tweet from Mike Masnick (of TechDirt):

OriginalTweet_Thoth

It was in reference to a long, tall, beast of a tube that will put space craft and their inhabitants closer to orbit before launch, being built by a company named Thoth.  Thoth is a Canadian company whose website is not thoth.com, but thothx.com.  Interesting, because that’s kind of like the suffix of another space company.

IP Troll Tracker

Anyway, all I did (she said innocently, while batting her eyes) is retweet it which caught the attention of my colleague Nick Gross.  The reply tweets that ensued are referenced below, and as you can see it escalated quickly:

ReplyTweets_Thoth

I’ll not post the rest of the exchange because male posturing ensued and we all know that means denigrating each other’s…colleges.  There was jail time mentioned, federal crimes, it got kinda ugly and all over what?  The fact that companies sometimes patent stuff they never intend to build.

Why might a company do that, you ask?  Well, there’s the option that Intellectual Ventures takes, which is to patent stuff so they can go sue people.  I wondered to myself if that’s what Thoth had in mind…maybe they should patent their technology because Space Tube Elevator Lift Kit technology is sure to be a hot thing these days and they had better protect their “innovation” lest someone beat them to the atmosphere.

I expected to come up with a goose egg when I search for competition on this particular space race, but low and behold it seems that building a a giant corrugated tube up to the sky is, indeed, a “thing”, as this Kickstarter intimates.  Then there’s this page, which is straight out of 1990, but talks nonetheless about a space elevator.  There were a few others, enough to make me think that maybe this was a defensive patenting move.

Maybe it’s a licensing play?  Patent the technology, never intending to build such an unwieldy beast, and just license it to others to fund your existing products (none of which, by the way, are on anywhere near this scale)?

The point of the argument on Twitter was that Thoth did indeed secure funding to build, though strangely the article linked by @JNGross only talks about how much it would cost, not the source of the money, so that meant that they weren’t just another company patenting something for the other reasons I listed above. And OK, you have a point there, but seriously?  You’re going to blow someone else’s $5-10 Billion on a 30% reduction in rocket fuel costs and possible gains in efficiency?

I’m not a rocket scientist because I didn’t go to CalTech or MIT, but good golly, Miss Molly…that’s a pretty low ROI.

JustSayin_small_New

IPTT

{Church lady meme found here, and obviously ©SNL}

Choose To Chance The Rapids, Dare To Dance The Tide

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

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

IP Troll Tracker

Joe Mullin puts it this way:

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

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

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

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

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

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

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

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

JustSayin_small_New

IPTT

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

Chris Hull of Life360 Beats AGIS, Necessitating A Second ‘Dear Piece of Shit’ Letter

I know the Life 360 app because my husband installed it on my iPhone prior to a trip to NYC.  I went there because first of all, New York City is the best place ever for short visits where you don’t mind not seeing the sky and are comfortable standing out like a sore thumb because you’re from Texas and bring your boot bling with you everywhere.

bootbling

Secondly, I was there to support my in laws through my Father-in-law’s cancer scare.  The city is built on a grid and the streets and avenues are all numbered and the street signs are very clear so pretty much?  If you get lost in NYC there is something seriously amiss with your internal GPS.  Nevertheless, all parties involved (read: elderly in-laws from Alabama) felt it might be best if I had some way to check in from the mean streets of mid-town Manhattan when I would venture out after dark to get my Subway sandwich and black and white cookie.  Fair enough.

I know the app, is my point.  I “internet met” the owner, Mr. Chris Hull, when he potty-mouthed a reply to a supposed patent troll and I wrote about it here.  Today, Joe Mullin (Hi Joe!) wrote up the end of the story and boy are there some gold nuggets here, my friends.

The issue I had back then was that under my definition, AGIS didn’t look or feel like a patent troll to me.  They had built a product using their patented technology (LifeRing) for one, as opposed to just buying up old stodgy patents and trying to litigate them.  They only have a portfolio of 11 patents, which is somewhere south of the 500 bagillion that, say, Intellectual Ventures has.  Still, I understood Chris’s frustration, as he had been sued a few times in the past by legitimate trolls and was smooth fed up with it.

I predicted then, and it looks like I was right, that he wouldn’t get the patents invalidated (they weren’t).  But what he did do is spend a fair amount of money fighting infringement.  He won there, but that’s not why I’m adding him to my Patent Troll Fighter Heroes Gallery.

Chris Hull, you and Life360 are hereby officially inducted into the Gallery because you and your attorneys succinctly nailed one of the underlying problems in the patent industry, and were not afraid to say it:

[AGIS’s] lawyers sold him a bill of goods, that he invented this very well-known concept.”

Sometimes the trolls collect old patents and go out and hammer everyone for them, a business model IP Nav and Intellectual Ventures and Marathon Group espouse.

This isn’t the case here.  Mr. Beyer (CEO of AGIS) had attorneys who saw an opportunity, thanks to the likes of the real and larger trolls, to try and capitalize on patents when they weren’t able to capitalize as well as they’d like to on actual products.

That’s a true shame, because I think in the absence of the patent trolling industry the outcome of this would have been completely different.  The dialogue on the front end would have gone differently and perhaps resulted in, if not a patent licensing agreement, some sort of synergy between Life360 and AGIS.

Because his lawyers are jerks and took a page from the trolls, Mr. Beyer is also a victim here:

Beyer, reached by telephone yesterday, said he “resents Mr. Hull characterizing me as a troll.” His company has sold software for 10 years, and won one contract in 2015 already.

“I also resent him dragging AGIS and me through the mud because of ads,” he said, referring to the Stop AGIS and malcomkbeyer.com websites. “I’ve never said anything bad about Mr. Hull and I don’t intend to. I’m exhausted, and I’m going to have to take time to think about life, and this in general.”

What Mr. Beyer needs to think about, in addition to life in general, is sending a “Dear Piece of Shit” letter of his own to his attorneys for getting him into this mess.

JustSayin_small_New

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.}

 

 

 

 

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.}

 

If Patent Trolls Don’t Exist, Why Do We Need A Playbook To Defend Against Them?

I know, I know.  The Goodwin Proctor tome explicitly states that it’s a Tactical Guide to NPE litigation, be we all know they mean patent trolls.  Otherwise, they’d have just called it “Patent Litigation:  A Tactical Guide for Practitioners”.

Alas, they did not.  I know because I signed up for my copy of said book which arrived by Federal Express and nearly scared me to death because the dude rang my doorbell at 5:00 on an afternoon that I couldn’t remember having ordered anything.  First thing I noticed?  Y’all, this thing is huge.  Like, really big.  It’s about four inches thick and GBC-bound and could double as a kettle ball if I were at all interested in doing anything exercise-related right now.  I dove right into it because nothing says “Happy Hour!” like a Cuba Libre and a book on how to defend against the dark arts of patent trolls.  Am I right?  Of course, yes.

The fun begins on page one, as fun is wont to do, with the Alliteration Award for this sentence:

NPE Litigation is a controversial subject shrouded by shrill, simplistic sound-bites.

Ah, I love me some word-smithing.

The Guide, as it shall heretofore and thereafter be referred to as, starts with a definition of NPE that takes up about four pages.   Man, that’s a lot of words.   They talk on page two about R&D firms, which would include, in my opinion and as a result of technology transfer programs, Universities.  My notes in the margin read something to the effect of “it’s really who companies go after and how that helps define a patent troll, and it matters because the point of being an NPE is that you avoid the risk of counter-suits since you’re not actually manufacturing anything.”  I’m not sure they made that point anywhere and it’s a salient one.  There’s a reason some entities that hold patents are non-practicing, and the lack of counter-suit risk is it.  That’s a big thing and how come y’all didn’t harp on it like I’m doing?

Anyway, by the time we get to the section on Licensing/Litigation Techniques The Guide has started using the watered-down “patent troll” term known as the PAE, or Patent Assertion Entity because calling companies what they do is somehow…bad?  I dunno, but people who aren’t me don’t like to do it so they call them PAE’s.  I suppose if you’re going to do that, I’d like to see the middle word changed to Aggressive, rather than Assertion because trolls are aggressive.  They don’t pop out from under the bridge and say “I’d like some money, please, for my nefariously bogus patent over here if you don’t mind, please.”

No, they instead start out with a threatening letter (which you should totally track here if you get one!) and when that doesn’t work they get aggressive and sue you.  See?  PAE should equal Patent Aggressive Entity.  You’re welcome.

The Guide talks about how, when PAE suits are tried on the merits, our little aggressive friends have a pretty low win rate.  In my head when I read that I’m all “Merits?  What are those to a troll?”  They don’t care about the merits, because they don’t really ever intend to get to court.  They try their demand latter tactics first and when those don’t work they sue, all the while knowing that the likelihood of actually going to trial is slim because lawyers are risk-averse and would rather just pay up.  Merits?  Phpppppppft.

Uncle Eddie Phhhht

“And YOU…you’re going to jail!”
“Phpppppppft!”

One point The Guide made that I hadn’t really written about or explored in depth is the timing of troll/PAE lawsuits.  Typically, they wait until the technology (supposedly) covered by their (loosely constructed) patent is in full use and they can go after a lot of people, or a few big-named people for big money.  The Guide contrasts this with producing/practicing firms who tent to sue early in the patent term.  Great point!

On page four we get into something that really sticks in my craw, shell companies.  Dude, if you have to bury your acts deep in paperwork and incorporate in weird places and plan at any time in your future to use the phrase “I have no knowledge of that subsidiary’s actions” then listen up:  You’re doing something wrong.  If you’re not, why hide?  Don’t give me that malarkey about “tax advantages”.  Not buying it.  It’s to hide what you’re doing.  That’s why companies like Ericsson sell off patents to trolls.  When litigation hits the fan, the general populous isn’t likely to dig up the information on who really owns a patent. Ericsson maintains its reputation while still monetizing its patents.  It’s all kinds of slim shady and I don’t like it.

RealSlimShady

The Guide makes a really good point about shell companies which is this:  Because a shell company doesn’t bear the more recognizable name of its parent, by design, it may be assumed when you receive a demand letter (that you immediately go and enter into That Patent Tool) from one of these nobodies that there’s no teeth to it.  Well, there isn’t in a sense because a demand latter does not require any action at all.  DEMAND LETTERS ARE NOT EQUIVALENT TO LAWSUITS.  Nevertheless,

 If you receive a complaint from a company you have never heard of, or for which there is little public information, do not assume it does not have the resources required for patent litigation.

By ‘complaint’ they may mean an actual lawsuit, in which case yep.  That’s exactly right and a fantastic point.

As previously mentioned, The  Guide is a four-incher and therefore may engender more than one post…I haven’t even read the whole thing yet though in fairness to me, the last five sections are texts of the bills brought before Congress and/or Congressional record transcriptions so, you know, yawn.  But I bring it up now for three reasons:

  1. Goodwin Proctor seems to be going the way of Jones Day, who advertised that they can handle IV in patent litigation. The Guide is a marketing tool for Goodwin Proctor, and I think they’re smart to distribute it.
  2. There’s a great chart on page 16 about legislative initiatives. Concisely done.
  3. I’m not 100% sure I’m on board with their final definition of NPE by tying it to percentage of revenue earned. I don’t care how much revenue you earn from asserting your patents.  I care how and when and upon whom you assert because that’s what matters when defining trollish behavior.

When well respected and large firms start putting together playbooks like they’re NFL teams and advertise that they can beat IV at their own patent game, its further proof that patent trolling is a problem.  Frankly, I like that law firms are coming out with this kind of thing because as private entities, I think this is exactly where the problem needs to be solved.

And yes, I do see the irony that lawyers are saying they can solve a problem that they themselves started.  Not lost on me, folks.

JustSayin_small_New

IPTT

{Uncle Eddie phhtt found hereEminem pic found here.}