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.}

“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.}

 

 

Demand Letters And The Entry (Or Not) Of Such Into A Repository

Almost a year ago, because President Obama has no regard for my schedule, I launched an online patent assertion/demand letter repository called That Patent Tool.  It’s been well received, and lots of people, really really cool people to boot, have signed up.  There’s data in the system, and for that I am most humbly grateful!

I had a discussion with Julie Samuels just before she left EFF.  I have to admit that I was kind of upset when I saw that they came out with trollingeffects.org because, like the Highlander, I was thinking “There can be only one.”  THE WORLD CANNOT HANDLE TWO DEMAND LETTER REPOSITORIES, PEOPLE!!  I think I may have even given the folks at the Application Developer’s Alliance some {ahem} feedback for throwing their weight behind Trolling Effects rather than behind me.  Ah, the insecurity foibles of youth.  Sorry, ADA!!

therecanbeonlyone

 

Only Julie’s point, which she made ever so calmly and with much less drama than I myself am prone to, was “Um, no I don’t think so.  If people are willing to put the information in one repository, that almost makes them more likely to put it in another.”  Well Bob’s your uncle, I never thought of it that way.

But you know what?  People are not flocking to enter demand letter information at nearly the rate either of us expected.  I mean, the President himself said we needed a Demand Letter Registry.  Right there out in the open, he said that.   The President said you should do it and yet hordes of people have consistently not done it which means someone’s getting sent to bed without supper tonight.

As serendipity would have it, this article by Megan M. La Belle was posted on Twitter by @PatentWire  It includes a lot of things I personally hadn’t thought about in terms of the effects of settlement (either through the use of demand letters or settlements after a lawsuit has been filed) on the patent industry in general.  While the entire article is worth a full and focused read, I think the very best summary of the issue is right at the beginning:

Not only are patent settlements frequently coerced, they also come at the expense of judicial precedent, which is particularly valuable in the patent context since an invalidity judgment estops the patentee from ever asserting that patent again.18 A related concern is that patent settlements may achieve peace between the parties, but not justice. When patent litigants settle, the accused infringer usually agrees to pay the patent owner, stipulates to the patent’s validity, and promises not to challenge the patent in the future.19 Even assuming such an agreement is in the best interests of the parties, it may undermine the public·s interest by allowing a potentially invalid patent to remain intact.20

Note:  footnotes are left in the quote, but you’ll need to refer to the original article, linked above, to view them.

Let’s pull out a quote from a quote: “A related concern is that patent settlements may achieve peace between the parties, but not justice.”  Peace is what demand letters are designed to achieve, if only for the asserter and through a very Reagan-esque “through strength” approach.  The trolls don’t want justice, they want money, they want their toll.  They know that going to trial is not only expensive for them as well as the defendant, but it means the potential for loss, either on invalidity or non-infringement.   By exposing what they are asking for and who they’re asking it of, other recipients can get a lock on how to respond.  This is the primary goal of collecting the letters: exposure.

What the article seems to indicate is that in some cases, going to trial (or “adjudicating”, because that’s a much fancier word) is better for the public good because it will remove bad patents from the system, the data indicating that when patent suits go to trial, invalidity is a very likely outcome.  I won’t go into all the details of which cases the author feels are better going to trial vs. settling because that would be plagiarism.

What I’d like to touch on is that those companies in the Patent Troll Fighter Heroes Gallery believe in this mantra, that it is better to fight (litigate) than settle with the trolls.  To me and to them, it is about the moral issue and how you should never not ever let the bully win.  According to the article, there is empirical data to back that approach up, suggesting that not settling is the better way to both justice and more effective patents.  With all the talk about “bad patents” out there, and there are many (hint: mostly software), I wonder if part of the reason is that so few patent cases actually get litigated?

Here’s another issue with demand letters and settlements:

Another reason scholars have denounced settlement is because it is shrouded in secrecy.73 Unlike adjudication, the outcome of which is available to the general public, settlements are usually confidential, so that only the parties know the terms of the agreement.74

And again, this is why I and others have created an online demand letter repository.  It’s a way to de-shroud settlement requests, which is what a demand letter is, if we are wanting to use the most euphemistic term possible.  I do realize that, in order to avoid declaratory judgment or venue issues, many trolls no longer put all the information into a demand letter that they used to.  But a surprising amount of trolls still do, as you can tell by both my data and EFF’s data.

donotfeedthetrolls

I’m working on a post about why recipients are reticent to upload letters, because I’ve spoken with a lot of people about their fears which are frequently summed up in two words:  “outside counsel”.  As in, my outside counsel won’t let me.  We’ll get to that faulty lawyer logic in due time.  The most common response people give so far is the age-old “What’s in it for me?”

I’ve been looking since the beginning for ways to incentivize or entice or coerce or somehow get people to provide this data.  Recognizing that settlement may not always  be in the public’s best interest in patent litigation, when it comes to dealing with trolls I think that exposure of those “settlement” demand letters actually is in the public’s best interest.

Now all I have to do is convince the rest of you…

 

JustSayin_small_New

IPTT

{Meme found here. Incredibly awesome troll sign found here.}

About That Hearing On Capital Hill Yesterday…

I learned something very valuable yesterday regarding this hearing:  I learned that if I have my cell phone on mute, I won’t hear calendar reminders.  Can you even believe that?? As a result I was only able to catch the last 10 or so minutes but thankfully, I have Twitter and a list of hashtags to peruse, courtesy of Ali Sternburg at Patent Progress.  (If you don’t want to take the jump, they’re #trollhearing, #patentreform, #fixpatents.)  For those of you who are likewise smart-phone impaired, or who didn’t know about it in advance, you can view the archived hearing here.

The point a lot of the panelist seemed to be making, save for poor Mr. Mossoff who seemed woefully alone in his defense of the Dark Arts, is that there must be some sort of government mandate surrounding the demand letters that patent trolls send out.  They should be required to contain certain information, and they should be entered into a national database so that others can see them.

JustABill_Nope

Negative, Ghost Rider.  The pattern is full.

The idea that there should be some sort of mandate on sharing the letters, either by forcing the assertion entity to register it or (worse) requiring the recipient to do so, is silly, not to mention unenforceable. It puts too big of a target on the backs of the smaller companies to admit when they got a letter because then they’re fair game for more trolls. The bigger companies don’t need to share because, unless they’re going to fight publicly, they just pay and it goes away.  Still, they have the same fear of transparency and becoming an even bigger target.  Besides which, as the letters are pre-lawsuit, they’re not now, and shouldn’t be in the future, public information.

The whole idea is that people should want to share, in whole or in part, redacted or not, so that it benefits the collective good. What companies get out of sharing is access to all the other collected information so that they can contact other recipients and collaborate on defense.  Or, at a bare minimum, get a read on the MO of the trolls in aggregate and figure out their own individual plan of counter-attack.  Also, there’s the idea that just simply seeing the demand amount offered to other victims gives any other recipient a little bit of leverage:  “Hello, Scanner Dudes?  You’re extorting $1500 from me but only asked for $500 from Victor Victim #2.  What the hell?”

But it can’t be forced. You have to show people the value, first for themselves and then for others, of sharing and shining a light on these trolls or they won’t do it.  You can’t coerce them with some scary new law that will undoubtedly have a horrible unforeseen side effect that you’ll then have to make yet another law to clean up.  We don’t need more laws, we have trouble enough enforcing the current ones, for heaven’s sake.

Just to give the dead horse one last beating, I am not a fan of the government stepping in, really at all on this issue. I admit to liking a lot of the Goodlatte bill, and surely there is something to be done about the glut of bad software patents (which, who are we kidding, really don’t need the “bad” qualifier) and that is a government area for sure. But beyond that, the Feds will only screw this up.

Having said that, I think the State Attorneys General position on this issue is exactly the correct use of the government. Hit them with consumer protection laws, which are already on the books!  And as part of the process, require that they disclose their letters in discovery.  That I can get behind, and it’s why all three states that are taking this approach made it into the Patent Troll Fighters Heroes Gallery.

I have a website called That Patent Tool that was set up to collect information about demand letters.  It also allows users to create a unique and un-identifying forum user name with which to post questions and ask for feedback in a secure forum.  The whole idea is to get people to put information in, as much or as little as they’re comfortable with, and then start digging into the data and see what we find.  I’ve posted twice now (here and here) about what’s been entered so far.

It’s not a huge data set yet, but I still believe that individuals and companies will become more comfortable with sharing information over time, particularly when they’re able to get with other recipients as a result and see how they can best attack the trolls.

It’s exciting that the dialog about patent trolls has reached such a fevered pitch that Capital Hill has noticed.  I’m just not convinced that making demands about demand letters isn’t too demanding of an approach.

JustSayin_small_New

IPTT

{Cute little Schoolhouse Rock bill image found here.}