Finally, A Diagnosis: Münchausen Syndrome by Proxy

Note:  This was drafted forever ago, and in reviewing old posts I came across it.  I liked it and, unsure of why I never actually published it way back when, hit publish on it yesterday.  I expected, and I have no earthly idea why because that’s not even remotely how the space/time continuum works, that it would publish under the date it was drafted, and slot nicely in between other relevant (at the time) posts.  Only not so much.

So, enjoy this blast from the past and pretend that it’s relevant to now.  

I new there was a word for this and if I couldn’t find it I was just going to have to make one up.  The definition of my word would be: “Companies who create a problem that they are the only ones who can solve.”  Patent trolls are not a whole lot unlike those door-to-door salesmen of 1950’s American folklore who knocked on the front door and when you opened it, they tossed in a handful of dirt and then tried to sell you the “only vacuum in the world” capable of cleaning it up.  Not surprisingly, people became a little leery of opening their door to strangers and so someone had to invent the “No Soliciting” sign and a whole new industry and set of laws was born.  Thank you, Kirby vacuum guys.

Let’s move this logic over the patent world where we have two recent examples of companies getting in bed with a troll to avoid…getting trolled.  Say what?  Exactly.

It’s no secret that Nest has built a really sexy thermostat.  Normally, I object strenuously to the use of the term “sexy” in business because blech and ewww??  Inappropriate.  But there’s just not another word that does justice to this piece of engineering:

Nest_Orange

This thing is awesome and would look particularly fetching in my front entryway, replacing the circa 1998 Honeywell electronic thermostat that hangs there now.  And therein lies the rub: Honeywell doesn’t like the new player on the block and so went after Nest for patent infringement.  What did Nest do?  Crawled right into the arms of Intellectual Ventures for some protection .  This is not wholly dissimilar from what Ditto had to do, selling out to IP Nav to get 1-800-Contacts off their back.

Oh, the irony.

Maybe this is exactly what the trolls had in mind to begin with?  First, you go after everyone and their dog for patent infringement, focusing in recent years on the young and weak like startups, and then when the problem has become so rampant in the industry, you offer a “solution” which is nothing more than protection from people like yourself.

As the title of this post suggests. we already have a name for this phenomenon:  Munchausen Syndrome by Proxy.  The reality of that particular psychiatric factitious disorder is far sadder because it involves children being harmed and as a Mom let me just tell you that stealing the idea of a girdle brings a microscopic portion of fury as compared to what you’d deal with if you hurt my kid.

But the theory is the same:  you’re “there for” people that are trying to get away from a problem that you created.

IPTT

Nest image found here.  (That is not an affiliate link, I don’t hawk thermostats.)

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The Kind Of Behavior That Only Cousins In Kentucky Should Get Away With

I would apologize to Kentuckians but, as I’ve mentioned before, I lived there for a time during my formative years so I’m allowed to pick on my one-time home state.  Also?  Drew Curtis, Patent Troll Slayer, for Governor.  Vote, y’all.

In another alarming chapter of the “saved from a troll by a troll” play book, Jump Rope misses the rope itself and jumps straight into bed with Erich Spangenberg.  Like Ditto before him, Mr. Braxton of Jump Rope found himself in the unfortunate position of having to take investment money from one of the founders of the business model that put his company in jeopardy to begin with.

It seems a little “Munchausen by proxy”-ish to create a problem and then try to rescue people from it, Erich.  It’s like marrying your cousin, which is only allowed, if I’m not mistaken, in Kentucky.

IP Troll Tracker

In reading a little more background to the story, it looks a lot like personality comes into play here, on the Smart Options side (Smart Options is the company that sued Mr. Braxton and Jump Rope).  It looks to me like what you have is a very small man, in mind if not in physical stature, who didn’t like that Braxton wouldn’t play.

“It’s not clear-cut whether our patents cover what Peter Braxton is doing,” [the attorney for Smart Options] said. “What’s clear-cut is that he chose to say ‘no’ to more than half a dozen reasonable relationships we laid out for him.”

First of all, “reasonable” is in the eye of the beholder so don’t make it out like you’re being generous.  Secondarily, as Braxton pointed out,

But why should Mr. Braxton strike any deal with Smart Options, given that a judge had found that his software didn’t infringe its patent?

(Emphasis mine.)  The answer is because, as we’ve seen over and over again with patent trolls, they want you to pay up (or just disappear, in another sick and twisted plot theme I’ll be exploring in the coming weeks) and won’t stop harassing you until you do.

I wonder what happens in a person’s life as children that they feel the need to throw their weight around as adults? What galls me the most is this white hat status that the likes of IP Nav are trying to throw around.

 

Here he comes to save the daaaayyy!!

Here he comes to save the daaaayyy!!

Whatever.  It’s opportunistic and you know it.  As Mike Masnick at TechDirt puts it:

The story tries to play this out like a “patent troll done good,” but it’s horrifying. It’s one patent troll beating up on a startup, and then allowing a second one to come in and vulture up the leftovers. It’s certainly not good for innovation in any way.

I feel for Mr. Braxton and for Kate Endress of Ditto who were so backed into a corner that they had to choose from two really bad options:  shutter the company or deal with the devil.

I’m not as convinced as Mike is that patent reform at the national level will take care of the problem without creating a bigger mess down the road.  But there has to be a better way than what just happened here.

JustSayin_small_New

IPTT

{Mullet-headed man meme found here.  Mighty Mouse image found, inexplicably, here. Base for Mighty Mouse/Spangenberg morph found here.}

I’ve Been Cheating On You, Patent Troll Haters

Maybe that’s a slight over-exaggeration.  Which, what is that anyway?  One can exaggerate, so does “over” exaggerate mean you’re exaggerating your exaggeration?  See?  This is why you shouldn’t give people like me a blog.

My point is, I’ve been talking to the “other side” for a while now, sort of clandestinely behind the scenes.  Which is what clandestine means, for those of you who went to school here.  I’ve spoken to a few inventors who’ve been screaming VERY LOUDLY IN LARGE SHOUTY CAPITALS AND NOW YOU KNOW WHAT KIND OF BOOKS I READ about how patent reform will do more to hurt them than it will to tame the patent troll problem which, by the way, they claim doesn’t exist.  How’s that for fuzzy logic?

Don’t think for one minute that I’m going soft on trolls because that will never happen.  But I don’t think we can argue that the landscape hasn’t changed over the course of the last, say, three years.  And by “changed” let me just enumerate a few goings on in the patent litigation realm:

  1. The majors are getting smacked down with increasing frequency.  There are a few very well known trolls who’ve run up against some litigious resistance.  IV just lost a  big round in court.  MPHJ, despite suing the FTC (stifles laughter), has lost in NY regarding their demand letter tactics.
  2. States, even states like Kentucky (you’re welcome, Drew) are coming up with fairly decent ways to curtail the sending of demand letters.  See NY example in #1.
  3. IP Nav is trying to go legit by helping David Ditto fend off Goliath 1-800-Contacts.  One reason people try to switch sides is that they think they’ve done something wrong, and been on the wrong side and now they’ve seen the light and have switched. Other times, they just see an opportunity to make themselves look good in the press and so they take it.  I’m not sure which this is with IP Nav, but I get a feeling that Erich is tired of being the thug and wants a little love.  Either way, it was a telling move.
  4. The issue has gotten attention at the Federal level, which means that whether or not real action takes place (my opinion: it won’t come from legislation if it does) there’s much more visibility to the tactics of the bad players in the industry.  Just like roaches when you turn on the light in the summer camp cabin, patent trolls are scrambling to find a place to hide as a result of the exposure.

Back to what I’ve been doing a lot lately, which is talking to inventors. I like to think of myself as anti patent troll and I am.  I do not now and never have liked the underhanded bully tactics they use in their demand letters and I don’t like how they co-opt old, worthless patents and try to dummy up some value out of them, especially when said patents should never have been issued in the first place.

But as the abbreviated list above points out, things are changing.  So is it time to focus on other issues in the patent space?  Like accessibility to ideas if you’re an operating company and accessibility to buyers if you’re an inventor/patent holder?  Maybe, I dunno, a Match.com for IP?

As I wrote in the Backgrounder, inventors face a legitimate problem of how to get exposure to their ideas (nee’, patents) at the right levels.  They’re in a tough spot sometimes, and I see how they would turn to the nasty folks to get help.  Likewise, you could say that larger companies, operating companies, may be more than willing to license technology that they need but how do they know it’s out there?  They can commission a Prior Art search, and I know that many do because Article One Partners has a good thing going.  It’s a great start and a great market-based solution to the problem that gets us part of the way there.

What I hear when I talk to inventors is that they just want people to listen.  They want a forum for their ideas. They’re sick and tired of companies co-opting their stuff and shutting down negotiations and all but forcing them to go the litigation/PAE/troll route to get any kind of relief.  Inventors are a special breed of individual.  They live and breath this stuff and just want what’s coming to them.

BackToTheFuture

 

I am scheduling an interview with my favorite inventor (assuming he agrees, he doesn’t know yet because I haven’t asked him because I’m chicken I’ve been working a lot) and plan to address his take on the troll issue out in the light of day, instead of just whispering behind the scenes in email.  My goal here on IP Troll Tracker has always been to track the shenanigans and ballyhoo of the trolls in an effort to expose them, but as I say on the intro page at That Patent Tool, I also want to be a part of the solution.

Education about the “other side” of the troll issue, the inventors, is part of that for me.

JustSayin_small_New

IPTT

{Awesome 80’s movie image found here.}

 

How Many Normal People Does It Take To Equal A Thug, Anyway?

From IP Nav’s comments about the recent Consumer Electronics Show, that ratio sits at about seven to one.  I always enjoy IP Nav‘s comments on things mostly because I think that Barry Leff writes them and I like him.  Never having met him in person, I do believe that he genuinely believes he’s on the right side of this debate, and I like that in a person.

Anyway, here’s a visual for you right-brainers out there:

ThugsVNormalPeople_updated

Evidently, Erich Spangenberg was unhappy that he was the only one on his side of the line up for a talk that was part of the CES Innovation Policy Summit.  Leaving aside the fact my opinion that patents do not equal innovation, it seems the summit drew a crowd, or at least the “Patent Litigation Reform: Who are You Calling a Troll?” panel did.  (For the record, the answer to the question is “You, Erich.”)

Barry’s blog post for IP Nav takes us on a trip down memory lane, because nothing holds one’s interest more than a story about how a troll became a troll.  But oops, wait just a second.  We shouldn’t call Mr. Spangenberg a troll because

He’s not uncomfortable with the term “troll,” as the term has come to mean anyone who files a patent lawsuit.

Don’t make me pull out the Harvey Specter eye roll so early on a Monday morning, please.  *sigh*

Not anyone who files a patent lawsuit is a troll.  You sound like J Nicholas Gross or Andy Pitchford now.  Further, definitely not everyone who files a patent lawsuit is a troll either, only those who behave like thugs are.  You know, like people who go after everyone and their uncle (and even the US Government, for crying out loud) because they have a crap patent that says you can’t scan and email without paying them to do it.  And oh, look!  You agree (emphasis mine):

Picking on app developers, tiny companies and sending letters with no justification is crazy—

Indeed.  But want to hear what’s even crazier?  Suing people using one of your shell companies and not even telling them what they infringed on.  (This is a good write up of those wanton antics, with a great quote from a Techdirt article on same.)  Oh, don’t throw out that tired line about it affecting declaratory judgment and venue.  What you’re trying to do is extract a settlement because taking it to court is more expensive.  That’s the troll MO, whether the troll uses base-less threatening letters or not.

One final quote from the article:

Bad behavior is not exclusively the province of patent owners.

No, it isn’t.  But it’s the province of companies like IP Nav, and there are at least seven normal people who can agree on that.

JustSayin_small_New

IPTT

Hodgepodge And Sundry Developments

Lots of doings in the patent arena last week.  I’m not a “weekly recap” kind of gal because I’m way too lazy other people do it so much better than me, but there are a lot of little things going on that I can’t drag out into a full blog post, even as verbose as I am, so I figured I’d just hit them all in one post and call it a hodgepodge.  Plus, I get to use the word hodgepodge and delight the over-70 crowd so win-win!

  • GO NEWEGG.  These guys are already in the Patent Troll Fighter Heroes gallery, and this just proves why.  They are all over the troll take-down M.O. and it’s awesome.  The supreme court said “No, thankyouverymuch” to Soverain, which means their no longer sovereign over the online shopping cart world.  Obviousness, thou art quite the slayer.  Lee Cheng is a National Treasure, to be sure.
  • Next up, we’ve got PTAB (Patent Trial and Appeals Board) news. It seems IP Nav is not happy ever with Polly Patent Owner not getting her (ill-gotten) infringement award in due time because someone that she didn’t sue found prior art.  If your patent is as solid as you claim it is, then shouldn’t it hold up under any and all scrutiny?  That’s kind of how I look at this.
  • The Scanner Dudes have completely jumped the shark and are now suing (are you ready for it?) The Government.  Wait, what?  Oh yes, yes they did.  And by “they” we mean Jay Mac Rust, who is behind the entire company and all of it’s 101 six-letter named subsidiaries.  This one actually deserves its own write up and it will get one as soon as I clear some other work off the desk.
mac-rust_mustang

Just one man. All those companies and it’s just one guy.

  • From the “that’ll learn ya, dern ya!” files we have Nintendo who, in addition to sucking more money from me than I care to admit and turning my kids into consummate gamers, has won the ultimate victory over a troll in that they bought it’s patent portfolio after squashing them in court.  Well, uh, played, Nintendo.  They got the patents at a fire sale, held because Nintendo was awarded legal fees to be paid by IA LAbs only Shazaam!  IA Labs couldn’t pay.  Which is interesting because a judge decided, all on his/her own, to make the loser pay.  So, really, as an aside to this bullet point, do we need a new federal law mandating this?  If the judges can decide on a case-by-case basis to do this anyway, what’s all the huffing and puffing about it being an official law?  And besides which, this case illustrates how that really won’t work anyway because in the end, the loser didn’t so much pay as the winner.  At the auction.  To buy the trolls’ patents.

There you have it:  hodgepodge and sundry developments because that’s just how we roll.  And be “we” I mean “I”.  Hey, if Jac Mac Rust can pretend to be a lot of people, why can’t I?

JustSayin_small_New

IPTT

{Jay Mac Rust image via Ars Technica.}

Universal Problem, Universal Solution

If you follow me on Twitter which you totally should because there’s lots of talk about patents and the trolls thereof and also?  I live with no less than three pre-teen children and a husband and a Texas Blue Lacy so really, is there a better place to find snarky comments or sarcasm?  Probably not, that’s the answer you’re looking for.

Mayday

Mayday the blue lacy, enjoying the mountains of Colorado.
Great dog. Very stubborn. Just like his someone else we know.
(Hint: totally not me.)

This blog post totally just jumped the shark…

If you follow me on Twitter (trying this lead-in sentence again since I got off track the first time), you’ll note that there’s been a bit of a back and forth between myself and one Andy Pitchford and J Nicholas Gross about this whole troll problem.  The problem is that trolling isn’t an exact science.  Sometimes a company can act like a troll and sometimes not.  Some companies always act like trolls, even if they proclaim to be helping the little guy.  I’ve said before that identifying a patent troll is kind of like defining obscenity:  I can’t tell you what it is, but I know it when I see it.

I think the patent troll problem is pretty big, if not completely universal just yet.  Some people (*cough, cough* Andy and J Nicholas) aren’t convinced there’s a problem at all.  Some people are proud there’s a problem.  (Looking squarely at you, IP Nav).

The point is this: not everything is a universal problem and can be solved with a universal solution.  With patent litigation and patent trolls, there are very specific criteria that I think can be used to narrow the field of players even if a singular litmus test doesn’t (yet) exist.  But even when that field is narrowed, I think the solution for the problem is not so simple.  I think it will take many different combined approaches to stop the trolling behavior:  exposure of demand letters, legislation (though it’s my least favorite option), companies with business models that combat the problem, Ninjas, and the eventual burn-out of the trolls when the market is able to exploit some other issue with another sector of the economy beyond Intellectual Property.

So what does this have to do with Christmas?  Need I remind you that I was able to successfully link Charles Barkley’s derriere to patents so tying patents to Christmas is pretty much a slam dunk for me.  <– See what I did there?

What it has to do with it is this:  some problems are universal, and they require a universal solution.  Something to bridge the gap that was formed when men decided to go their own way.  To be the once and for all answer to the problems that separate us from the love we so desperately need.

What is the solution?  A baby.

What child is this, who, laid to rest,
On Mary’s lap is sleeping?
Whom angels greet with anthems sweet,
While shepherds watch are keeping?
This, this is Christ the King,
Whom shepherds guard and angels sing:
Haste, haste to bring Him laud,
The Baby, the son of Mary.

So bring him incense, gold, and myrrh,
Come, peasant, king, to own him.
The King of kings salvation brings,
Let loving hearts enthrone him.
Raise, raise a song on high,
The virgin sings her lullaby
Joy, joy for Christ is born,
The baby, the Son of Mary.

“Come peasant, king, to own him”.  In any station we may find ourselves, we all need and can own a solution to our problems.

What child is this?  Just a savior, that’s all.

I wish one and all a very, very Merry Christmas, even if you’re a patent troll.

JustSayin_small_New

IPTT

On Patent Infringement Trials And Their Jurors

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

historic.courthouse1-640x302

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

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

Follow me along the trail here, if you will:

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

Does anyone else see a problem here?

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

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

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

good-grief-charlie-brown_edited

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

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

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

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

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

Actually?  It’s totally because of that.

JustSayin_small_New

IPTT

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