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.

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

Advertisements

Two Things About The NetApp Victory Over Acacia Media

Two things struck me immediately when I read Joe’s article over at Ars about the recent victory of NetApp over Acacia:

A.  Acacia Media is the country’s largest patent troll?  What?  When did they usurp the throne from my favorite CEO-turned-world-infamous-chef Nathan Mhyrvold, et al at Intellectual Ventures?

and it’s sometimes considered the largest “patent troll,” since its various subsidiaries have filed more patent lawsuits than any other single company.

How can they have more subsidiaries than IV?  Or rather, how can their fewer-than-IV-subsidiaries have filed more lawsuits than IV’s?  It’s possible and highly likely because Joe’s a very thorough guy and wouldn’t say that if it weren’t true.  It’s just surprising that I didn’t know that because I pride myself on knowing all the things about all the trolls.

Joe 1, Pride 0.

2.  Judge Gregory Sleet should get an award for nailing down the troll problem with a single paragraph.  I, of course, did it in 17 words but who’s counting?  Anyway, what he said regarding this case needs to be spliced up, put on a series of sandwich boards, and paraded in front of every Federal District Court every single day until it has been memorized by all of the judges and regurgitated verbatim every time a troll files a lawsuit:

The facts of this case demonstrate that Summit pursued an action against NetApp without any basis for infringement, delayed disclosing the existence of the Licensing Agreement for eighteen months, extracted settlements from co-defendants worth a fraction of what it would actually cost them to defend the lawsuit, and then voluntarily dismissed its claims with prejudice prior to the court issuing a ruling on the merits… The claims were frivolous—Microsoft’s initiator software [was] licensed, so no system employing it could infringe the asserted patents. Summit’s motivation was to extract quick settlements that were dwarfed by the costs to litigate. Summit was objectively unreasonable in bringing a lawsuit against NetApp mere months after executing the Licensing Agreement that effectively eliminated its theory of infringement. Finally, the court is convinced that an award of attorneys’ fees in this case is necessary to deter this sort of reckless and wasteful litigation in the future.

We have a winner, folks.

_38891263_bingo_b203

B-I-N-G-O!

 

Also, this quote here from Acacia subsidiary Summit’s “expert” is pretty telling:

Summit’s expert said that Microsoft users infringe the patents, but he couldn’t determine whether Linux or UNIX systems infringed because he “didn’t have time.”

Let’s run that through the Patent  Troll Translator™, shall we?

“Seriously?  You expect me to dig through and find out if these people have actually infringed?  Please.  Just pay up, dude, and it all goes away.”

One last thing that’s curious…the article states that RPX took licenses to the two patents in the suit (7,392,291 and 7,428,581) and that NetApp therefore (as an assumed subscriber of RPX’s) already had a license.  RPX purchased PriorSmart which sends out a daily recap of recently filed patent litigation.

I can’t find Summit or Acacia Media listed in any of their emails as having sued NetApp.

JustSayin_small_New

IPTT

{Shot of British bingo winner found here.}

So Where Are You Taking Me To Dinner With Your $450,000, Adam Carolla?

Just read this update from Joe Mullin on the Adam Carolla whiney-baby fight against the “podcasting troll”.

We all know by reading this and this that I disagree with Joe on the labeling of Personal Audio as a patent troll in the general sense of the word.  As previously stated, he differs in my mind from the standard troll because he a) actually created a “product”, if you will, using the patented idea and sank his own money into it, and b) he sues people who are actually in the same line of business that his patent covers (as opposed to, say, people who have never come close to infringing on anything in their lives).

Adam’s a funny man, and I like his comedy but I don’t like when people are disingenuous.  So you’re telling me that Personal Audio moved to dismiss their case, and Camp Carolla said…no?  Whaaaaat?

What the Ars Technica article doesn’t state is when Personal Audio backed off. Their statement released yesterday is pretty ouchy, though:

“Adam Carolla’s assertions that we would destroy podcasting were ludicrous on their face,” said Personal Audio CEO Brad Liddle. “But it generated sympathy from fans and ratings for his show. Getting his fan base to continue to donate to his legal fund is a cynical exploitation of the publicity power he enjoys as an entertainer.”

cars-adam-carolla-top-gear-ko

 

If you want material for your comedy show Adam, I invite you to spend a day in Texas.  The funny just writes itself in the Lone Star State.  I’m wondering if it embarrassed you to have the suit dropped, because of this:

When Personal Audio first began its litigation, it was under the impression that Carolla, the self-proclaimed largest podcaster in the world, as well as certain other podcasters, were making significant money from infringing Personal Audio’s patents. After the parties completed discovery, however, it became clear this was not the case. As a result, Personal Audio began to offer dismissals from the case to the podcasting companies involved, rather than to litigate over the smaller amounts of money at issue.

Oooh.  It’s the “small amounts of money at issue” thing that got you, no?  Look, I get it.  I’d like to think we could all make bazillions of dollars off Teh Interwebs but not everyone can be a Goop.  Personal Audio is no longer coming after you though, so you’re swinging for the fences and no one’s even pitching to you.  Your site is still up, and there’s been no update letting contributors know that their funds aren’t needed anymore.

You’re behaving like the man in line at Sonic who got tots instead of fries and no matter how many times the clerk tells you she’ll gladly swap them out for what you ordered, you insist upon a lifetime of free slushies just because YOU WAS WRONGED, MAN!!

You got what you wanted, Personal Audio dropped the suit.  You’re now the one who’s wrong by leaving your crowdfunding site up and collecting money for something you no longer need.

 

JustSayin_small_New

 

IPTT

{Adam Carolla punch image found here.}

Oh, Intellectual Asset Management Magazine, You Silly Thing, You!

You slay me, I AM.  A while back you published this article about a study that came out, touting the damage that patent trolls do to start ups.  OK, not necessarily start ups, but “entrepreneurial activity”.  And not necessarily “patent trolls”, but NPEs/PAEs/Euphamisms-of-the-Month.  But whatever, we all know what we’re talking about here and if you don’t, I have no idea what would land you on this blog other than a search for Big Derrieres.  And if that’s the case, well then let me introduce you to Mr. Charles Barkley.

Disclaimer: Mr. Barkley is not a patent troll and even if he was I wouldn't call him one because dude is huge.

Note: Mr. Barkley is not a patent troll and even if he was I wouldn’t call him one because dude is huge, and I value my life.

 

Back to the article, Mr. Joff Wild says the following:

I am not going to argue with the idea that VCs would have ploughed more money into certain companies if they had not been hit with lawsuits by PAEs. That seems pretty self-evident to me – VCs, like any other kind of investor, dislike uncertainty.

So we’re on the same page then, right?

Only no.  No we are not, because he goes on to say:

However, what I did not see in the study is any evaluation of the merits of the cases brought by the PAEs Tucker writes about. Instead, I saw a few anecdotes about what seem like egregious cases, but nothing that demonstrated these were typical. It seems inarguable to me that PAEs willing to spend millions of dollars taking their cases to court when they cannot get someone to take a licence believe that their patents are being infringed and that they have a good chance of convincing the court to agree. Thus, it could just be that Tucker has spent her time and the CCIA’s money discovering that VCs are unlikely to sink money into companies whose products infringe patents.   I could be wrong, of course; but we don’t know because Tucker does not look into it.

You’re forgetting something:  With patent trolls, the merits of the case don’t matter.  That’s sort of the whole point of all the railing against them.  Whether the patent is invalid or infringement occurred matters not to the entrepreneur looking for money:  once you’re sued by a troll you have to respond, and that eats time and resources that would have been better spent on things like growing a business and hiring employees.  Tucker didn’t spend her time deconstructing the cases?  Probably because she likes to spend it doing something worthwhile.  Like making the point that patents can be used as a weapon to slow down start ups and innovation.

As for the patents themselves, Mr. Wild notes:

Furthermore, the patents that PAEs seek to license and are sometimes forced to litigate do not just appear out of the ether.

No they don’t.  They appear out of the USPTO, who has clear issues with their patent examiners.  See my three-parter here:  Interview With a Patent Examiner Series.  Sorry it sorts them Part III first.  Dunno what’s up with WordPress on that…

I do agree with Mr. Wild on one thing though:

All in all, therefore, this study does not come close to making a case for legislative patent reform.

Right.  Well, “right” in the sense that I don’t think patent reform is going to solve the patent troll problem.  Certainly things are ripe for updating in the grand ol’ US of A patent system, like how examiners are vetted and hired and what skill sets they have and by that I mean you need to hire lawyers at the USPTO so they can fight off the lawyers that the companies hire to get their client’s stuff patented.  I think we can agree on this.

Finally, I want to address this comment:

It might not be ideal, but it is a whole lot better than passing sledgehammer laws based on anecdotes and flawed research.

I’m aware that the plural of anecdote is not “data”.  I’m also aware that all research is inherently flawed, if it’s done by humans, that is.  We all bring a sense of bias to our research, I’m not sure that will ever not be the case.  That doesn’t mean you throw it out and decide unilaterally not to make decisions based on it.  Again,  I agree that “sledgehammer laws” are stupid and ineffective but articles like Catherine Tucker’s highlight that the problem does in fact exist, even if it doesn’t delve into every level of detail that I AM would like to see.

In closing, though I like to make great sport of people who do not completely agree with me, I do want to say thank you for this:

None of this is to say that there are not problems and issues to address with regards to abusive patent litigation in the US, clearly there are.

There are real problems and real issues with patent litigation today.

I happen to think Ms. Tucker’s article does a great job of highlighting a specific one, even if you and Barry don’t agree with me.

JustSayin_small

IPTT

{Sir Charles image found here.}

“Then I Looked At Twitter And There Was A Tweet Saying It Was Dead”

And that’s how patent reform ended last week:

On Wednesday morning, tech sector lobbyists thought they were in the final stages of pushing through a hard-fought compromise on patent reform. “Tuesday night it was moving forward, Wednesday morning it was moving forward,” said Julie Samuels, director of Engine, a group that lobbies for startups. “Then I looked at Twitter and there was a tweet saying it was dead. What the hell?”

That quote from Julie Samuels in Joe’s article pretty much sums it all up, no?  Well, as it happens, probably no.

Tech sector lobbyist should know by now that it’s never over until the fat lady sings, and she hadn’t even opened her mouth yet on this one.  Not only has there been push-back on patent reform legislation from inventors and patent trolls, it seems the real bugaboo was the pharmaceutical companies and (*gasp*, can it be??) trial lawyers.  That certainly came out of left field…or did it?  < — That links to a post about how  the tech sector as a target will eventually burn out and the trolls will start going after oil and gas and pharmaceutical companies, in case you don’t want to make the jump.

fat-lady-sings

 

Here’s where it gets interesting for me personally, referencing this quote:

Leahy’s public statement saying that the two sides “couldn’t compromise” isn’t true. There was a compromise draft, hashed out mainly by Senators Chuck Schumer (D-NY) and John Cornyn (R-TX), that was expected to move forward and be marked up by the committee.

So Chuck Schumer, he of the bill that was never a good idea, and my hometown boy John Cornyn were working behind the scenes.  Let’s fill in a gap here…

Friday, May 9th, I was in an airport in Philadelphia awaiting my flight  back to my lovely family of teenagers whose angst and disgust with life in general I didn’t miss at all was longing to rejoin, when I received an email asking if I knew anyone in the Houston area who’d been hit by a patent troll.  I’m pretty darn organized if I do say so myself, but  didn’t have my spreadsheet handy so I agreed to look up some companies and reply when I had more info.   It seems that Mr .Cornyn was organizing a local press event and wanted someone who’d been a victim of a patent troll on hand to make it personal.  Always a good plan to have people tell their story in their own words.

Only before I could research who might be a good front for the soiree, I received a second email saying “Oopsies, never mind.  Not needed now.”

I’m no conspiracy theorist because all that over-thinking eats into my social life,  but I do wonder if maybe the signs of a crack in the process weren’t already showing?  Here’s my thinking…you set up press events to hail good news, to indicate that you’ve won something.  It takes a while to set up a press event.  You have to find a venue, line up speakers, alert the press, buy a new suit for yourself, make sure who ever you’ve lined up to talk has time to clean up for the cameras, all of that.  If you think a bill is going to come to a vote and pass towards the end of May and you want to trot out reps from a company that it will directly affect, then you better start getting that house in order.  Say, around the 9th of May.

Did John Cornyn have a whiff of Harry Reid’s move back then?  Was there some other conflict in his schedule that made a public forum undesirable?  Not sure, but the timing does strike me as interesting.

There are those who think that patent trolling was born out of tort reform during the Age of Asbestos, and this quote from the Ars Technical article makes reference to that:

Many law firms working in traditional plaintiffs’ areas like personal injury or securities class actions have added patent work as other sources have dried up. In Texas, there has been talk about how tort reform in that state had a hand in creating the patent litigation hotspots like the Eastern District of Texas, as lawyers went “from PI to IP.”

The story goes like this:  trial lawyers were building entire practices out of suing companies who’d used asbestos in their building materials, even before it was shown to be a carcinogen, by trolling for victims and exacting huge settlements, most of which they themselves retained because that’s how they roll.  When tort reform became a reality and punitive damages were capped, they had to go somewhere else.  Patent infringement became their next big stick.

And this is why I think legislation is the wrong way to handle the patent troll problem.  Why?  Because people who want to game the system will always find a way.  If you want to stop them, you have to play the game differently.  Or, in the case of our Patent Troll Fighter Heroes, refuse to play at all.  Running to Uncle Sam and those on Capital Hill won’t help you, and if it does it will come at a too high a lobbying price and won’t last long anyway.

This first great attempt at patent troll legislation is dead for now.  Who know when and in what form it will resurface, but I hope that the good guys have learned a good lesson out of the process.

I’ll let them decide what that is.

JustSayin_small_New

IPTT

{Opera singer image found here.}

 

 

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.}

FTC Asks, Intellectual Ventures Answers (Hint: Probably A Satirical Post)

Just like a Wendy interview, the FTC is about to get all up in the patent trolls’ business.  The full list of questions can be found on the FTC site and boy do they get specific.   Like, seven appendices worth of specificity, which on the official Specificity Scale is pretty much an F5.  So, seriously specific.

SpecificityGraph

Thankfully, they’ve posted a summary of the types of answers they’re after as well, and this is much easier to digest:

  • How do PAEs organize their corporate legal structure, including parent and subsidiary entities? (Request B)
  • What types of patents do PAEs hold, and how do they organize their holdings? (Request C & D)
  • How do PAEs acquire patents, and how do they compensate prior patent owners?  (Request E)
  • How do PAEs engage in assertion activity (i.e. demand, litigation, and licensing behavior)? (Request F)
  • What does assertion activity cost PAEs? (Request G); and
  • What do PAEs earn through assertion activity? (Request H)

Intellectual Ventures has likely received their personalized FTC Troll Expose’ Kit and are busy cutting and pasting their standard PR rhetoric preparing their answers.  Don’t tell anyone, but what follows is an advanced copy of their reply.  Remember, shhhh.  You didn’t get this from me, OK?

*********** SUPER SECRET INTERNAL RESPONSE TO FTC QUESTIONS ***************

1.  How do PAEs organize their corporate legal structure, including parent and subsidiary entities?

We’re a private company.  We take money from investors and on occasion, actually pay them back.  That’s not going so well for us right now, though.  What’s a subsidiary?  We don’t have any, and Lodsys certainly isn’t one of them, whatever they are.  From a legal structure perspective yes, we have lawyers.  Is that what you’re asking?

2.  What types of patents do PAEs hold, and how do they organize their holdings?

The kind that we can extort money for, of course.  My cooking lessons aren’t going to pay for themselves, you know!  We organize our holdings into file folders by patent number.  ??  Geez, what a stupid question.

3.  How do PAEs acquire patents, and how do they compensate prior patent owners?

Well, sometimes we go through brokers.  Other times, we send our henchmen to all those nifty little incubator meet ups and convince first-time inventors to let us help them file and obtain a patent for whatever they’re doing that could be even remotely similar to something that we can sue people for infringing on.   As far as compensation goes, we spring for dinner at the local taco wagon after we have their signatures.  Because seriously, nothing says “We value your contribution to our monolithic patent coffers” like some ground beef and beans wrapped in a week-old tortilla.  Yeah, baby!

4.  How do PAEs engage in assertion activity (i.e. demand, litigation, and licensing behavior)?

“Yes” to the first two, “Aggressive” to the third.

5.  What does assertion activity cost PAEs?

Money.  Wampum went out of style when all the beaches on the Atlantic seaboard eroded.

6.  What do PAEs earn through assertion activity?

Money.  While I’d like to be paid in solid gold bars, it just never seems to work out that way, you know? Besides which, we also earn a reputation that we’re not to be messed with which is actually worth way more than money.  You pick on enough of the people enough of the time, and word gets around.  All of a sudden, it only takes one or two meetings to get the signature you need.  Holla!

*********** END OF SUPER SECRET INTERNAL RESPONSE TO FTC QUESTIONS ***************

Right now, this is all just a bad dream for the trolls, who have 60 days to send in comments about this proposal that questions their livelihood.  They’ll not go down quietly, so we should all be on the lookout for complaints from all the usual suspects.  From the FTC’s site:

If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).6 Your comment will be kept confidential only if  the FTC General Counsel grants your request in accordance with the law and the public interest.

Considering how far under the hood they’re willing to dig, I’d be surprised if any of the responses were actually kept confidential.

In a way, I’m sad to see the gov’t having to get so involved in this problem because I remain of the opinion that if we let the market ferret these guys out by doing things like tracking the demand letters they send (at That Patent Tool, come on and join in the fight!!) we can solve this issue on our own.  It always worries me when law-makers set out to bring down one rogue section of an industry because the effects are almost always more far-reaching than initially thought.  The “Law of Unintended Consequences”, and all that.

That said, I get a fiendish delight thinking of how much these trolls are squirming right now, just reading the list of questions.

JustSayin_small

IPTT