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.}

 

Sasquatch Makes A Friend In The Pacific Northwest

I hate to think of poor Sasquatch, tall and hairy as he is, spending his life all alone.  Everybody needs somebody sometimes, didn’t one of the old crooners sing about that back in the day?  Not my day, but in really old people days?

Well, old buddy, you’ve finally found your match, as it seems that the far less rare beast named Patent Troll has found his way to your neck of the woods.  Tim Wilson posted this link about it…here’s some more info:

Homebuilders in Washington say they are being inundated with letters claiming patent infringement for the simple process of using fans and dehumidifiers to dry out a home after it has been framed.

OK first of all, if you would build homes someplace where it didn’t rain all the time, you might not be in this predicament to begin with.  (I’ll pause while everyone who loves Seattle gets out their poisoned pen to write me a nasty letter.)

BigFootMap

Yes, Virginia, there is a Bigfoot Field Researchers Organization. No lie.

 

Nevertheless, there you are and you’re being targeting like so many before you by

…one large patent troll alone [who] has recently sent letters demanding payment to more than 16,000 businesses in the U.S. and 313 in Washington.

While there isn’t one litmus test to determine if someone is a troll even though Paul Morinville thinks I have one, this is a key element of trollish behavior:  lots of letters blanketing lots of businesses in lots of places.  That makes you a patent troll.

It’s not just the homemakers getting hit…

Mark Allen from the Washington State Association of Broadcasters said that in the 48 hours before his testimony [before the State legislature], more than a dozen small radio stations had received angry letters. Some had taken angry, threatening phone calls.

Emphasis mine.  This is where personality comes in.  Maybe it’s just a Southern thing, but don’t people understand that you get more flies with honey?  Oh, the irony.

I’d like to see the history on both the “drying out a home after framing” and “hard drive storage of music” patents.  What are the patent numbers? When were they issued, which goes back to my question on Twitter about the average age of a troll’s patents.  Lex Machina, where is my email with that data?  Kidding, I haven’t officially asked you for it BUT I AM ASKING NOW.  We can visualize that and fill in another piece of the puzzle.

Y’all know I’m not a fan of the government solving this problem.  I’ll tell you what I want to do about it after this last quote, because it succinctly isolates the issue with trolls:

“It’s that kind of legal threat that comes at small business that leaves them handcuffed, frustrated with what could be a legal exposure and what they’re going to do to try and run their business,” said Bill Stauffacher, a lobbyist for the Pacific Printing Industries Association during a House hearing on a bill aimed at curbing trolls.

Handcuffed is a good word.  Businesses are beholden to these kids of threats because they don’t realize that a letter is not a legally binding “thing”, for lack of a better term.  You are obligated to do exactly nothing if you receive a demand letter!  If we could put these letters someplace, like That Patent Tool, then instead of being worried it would turn into the inevitable lawsuit because Mr. Whiney-baby Troll didn’t get the reaction he was looking for, we could build a consortium of other recipients and come up with a collective defense!

If you have kids, then you’ve probably heard of the book What If Everybody Did That?  The basic premise is to teach kids that, look, if one of you leaves a piece of trash on the playground it’s not earth-shattering.  But if everybody did, you’d be playing in a landfill and that’s gross and unhygienic, not to mention it’s a crime to Mess With Texas.  We don’t do litter here, y’all.  Anyway, why not apply that same principle to demand letters?  If everyone who received one tracked it somewhere where everyone else could find it, it would open up the lines of communication and promote a common defense.

This sounds familiar so I’m sure I’ve said this before even if I do a horrible job of tagging my posts and can’t self-reference like I should.  If every single person who got a threatening letter refused to answer it, they’d have to up their game.  They’d have to make the decision to actually sue, rather than just threaten to.  Divide and conquer, folks.  You can’t fight a battle on a million fronts.  I’m sure I can come up with another platitude here but you see the point.  The way to stop these guys can be summed up in two words: Exposure and Collaboration.  Exposure to the patent, the demands, and the companies making them.  Collaboration among recipients in an effort to either fund a common defense if a lawsuit is eventually filed, or to prevent that in the first place by putting strategies in place on the back end.  Use exposure and collaboration to target the trolls.

patent_troll_target

 

I suspect those tracking Sasquatch have had their share of exposure when people pull the monkey suit off the guy in the forest that they snapped a fuzzy photo of, claiming it was the mythical beast.  Unlike Sasquatch, patent trolls are real.

Tracking demand letters is not the only defense, I get that.  But if those who have been hit by trolls would expose the details then maybe, just maybe, we could build out own Troll Field Researchers Organization, graph the information, hunt them all down, and rid the business landscape of this plague.

JustSayin_small_New

IPTT

{Sasquatch viz found here.  Troll image found here and edited (poorly) by yours truly.}

Patent Litigation Down, Everyone Cheers! Turn Down For Whaaat??

Like everyone else on the internet, I went there.  It’s the only non-Taylor Swift song I’ve downloaded all year and frankly, I stand unashamed to admit that.  She speaks to my late-teens, early 20’s angst like no other.

{Wait, did I type that out loud?}

There’s been a lot of talk about how “patent litigation is down and look here, …don’t you know that means the patent troll problem (that people have been saying doesn’t exist) is over like clover?”  But a) are the number of patent litigation suits really going down, and b) does it matter if they are and c) how can you people continue to say things like “Behold, the patent troll problem is a thing of the past!” and “There’s no such thing as a patent troll!” at the same time?

Jackie Chan Confused

What is wrong with you people?

 

Lex Machina came out with a report that patent litigation filings were down 40%.  To wit:

Plaintiffs filed 329 new federal patent cases in September 2014, a 40% decrease from the 549 cases filed in September 2013.

Dennis Crouch over at Patently-O and I AM reported the same thing, citing Lex’s numbers because why not?  A 40% reduction in patent filings sounds all nice-like.

But if we take a look at what Unified Patents says, they tell a different story:

The number of 2014 patent litigation filings approached 5000, the third highest count ever.  Patent suits have risen dramatically since 2010, disproportionately impacting some sectors and technologies.

Say whaaat?  If you go back and look at what Lex’s numbers are reporting, you see that they’re taking Sept 2013 filings compared to Sept 2014 filings and saying “Look y’all, that’s a 40% decrease!!”  If you understand The Mathematics at all (or have a calculator handy), you’ll see that using standard arithmetic, they’re correct.  But while it makes for a good headline that everyone and their uncle likes to repeat, is it giving the whole story?

Just because you have numbers and can graph them doesn’t make what you’re saying true.  If that were the case, then we need to all but insist that Miss America candidates be no more than about 12 years old, lest those hot-vapor murderers kill us all:

badcorrelation

The thing is, it doesn’t even matter.  Whole numbers are nice, but it doesn’t mean that patent trolls haven’t caused unknown damage to small business and large businesses alike.  We all know what ‘they’ say:  There’s lies, damn lies, and statistics.

As I pointed out on Twitter, it’s not so much the number of suits that’s problematic, it’s who sues who and what it costs to defend.  If there were only three patent troll lawsuits in a single year, but those lawsuits shut down three companies, if those three lawsuits cost hundreds of people their jobs because company owners were forced to deflect funds to lawyers (the only true winners in any litigation), would we be better or worse off?

You can work the numbers to reach any conclusion you want, but it won’t mean there isn’t a problem with rogue companies taking their “patent rights” to the extreme and abusing the system to beat down either the competition or the little guy, who are sometimes one and the same.

To quote one of my favorite Harrison Ford movies:

Sometimes I sing and dance around the house in my underwear. Doesn’t make me Madonna. Never will.

JustSayin_small_New

IPTT

{Jackie Chan confusion image found here.  Spurious correlation graph found here.}

MythBusters: Patent (Troll) Litigation Explosion Edition

It’s always fun when something starts to get national attention after some of us (*cough* *cough*) have been banging the drum on that same issue for, oh, 12 years now.  Detractors and proponents seem to come out of the woodwork, citing studies and statistics as if any of it really means anything.  Adam Mossoff, he of the claim that there really isn’t $29 Billion in costs associated with patent trolling because how could there be, when the whole shebang is myth anyway, is at it again.  Hi Adam, long time, no blog post refuting pretty much everything you’ve said!  Hugs!

Mr. Mossoff would have us believe that the whole increase in patent troll litigation is a myth.  I was right there with him until the second sentence.  OK, ok, that’s mean.  The second paragraph, where he waxes poetic about the number of patents being issued because why? I’m not sure, and this quote doesn’t help:

A simple comparison to population growth, especially taking into account the explosive growth in the innovation industries in the past several decades, could as easily justify the claim that we haven’t got enough patents issuing today.)

Why would we compare the number of patents to the number of people?  Is there some magic number of patents per person that is right and  good for society and another number that isnt’?  I don’t get this.  I mean, yes, the number of patents would theoretically increase the number of potential patent infringement lawsuits in much the same way that number of cars on the road at rush hour increases the number of potential drivers I have to flip off honk at merge with.  But beyond that, huh?

Adam's Nirvana

An infographic of the mythical but precisely perfect mix of patents to population.

Moving along:

Unfortunately, the mythical claims about a “patent litigation explosion” have shifted in recent months (perhaps because the original assertion was untenable).  Now the assertion is that there has been an “explosion” in lawsuits brought by patent licensing companies.

Instead of just saying that patent litigation has exploded because that would be wrong, we are now hearing people say that there’s an explosion in patent litigation brought by trolls.  That feels an awful lot like a semantic red herring, but we’ll go with it for now.

This, however, is just poppycock:

’ll note for the record here that patent licensing companies are often referred to today by the undefined and nonobjective rhetorical epithet of “patent troll.”

You may claim that the terms used to negatively refer to patent licensing companies are complicated and don’t always apply across the board, or that they are at times ill-defined.  But you can’t claim that terms are undefined because hello?  I defined them.  Also, “rhetorical epithet”?  Nicely done.  Excellent wordsmithing there, 10 points in your favor!

I’m not going to cut and paste the next quote because it’s long I’m lazy but the gist of it is that with the America Invents Act, of course the number of patent litigation suits is going to go up.  Joinder clause, anyone?  We knew that, but I don’t think you can say that’s the whole reason that the numbers are higher because wait…didn’t you say the numbers weren’t higher?  That increased patent litigation is a myth?  Is that circular logic, is that why I’m getting dizzy?  “The numbers are not higher but when they are higher, it’s because of the AIA.”  Please step away from the merry-go-round, my friend.

MerryGoRound

If you didn’t play on one of these growing up, two things:
1. I hate you for being younger than me, and 2. You *totally* missed out.

The article also takes aim at “secret data” spouted by the likes of RPX and Patent Freedom, with regard to litigation statistics.  I really hope those guys are wearing their flak jackets, that’s a serious BOOM there.  I know the RPX folks are because they’re in San Francisco and OMG, how is it possible that you have to wear a fleece in July in that town?  A flak jacket is not heavyweight enough, I don’t think.  Still, he makes a valid point which is who’s funding their data collection efforts and what stake do they have in the outcome being very high?

The thing is, lawsuits are a matter of public record.  If you don’t trust the data from those sources, then go to  Lex Machina if you feel they are not funded by people with a vested interest, or commission a study of your own!  That’d work, no?  But it’s not quite fair to just shoot the messenger.

As has been discussed on this very blog in the past and right there in the Backgrounder link, it’s not a secret that the small-ish inventor in this country can have trouble monetizing their patent, especially in larger technological sectors.  Patent licensing companies do serve an unfilled need in the economy and no one I don’t think would argue that they don’t so yeah, we get that.  Likewise, we get that you don’t have to make a product to be considered a valid owner of a patent.  Over on IP Watchdog, Steve Moore makes a big “to do” about this.  Again, we get it.  And in fact, that’s one reason that the term NPE is not the same as the term Patent Troll.   All patent trolls are NPE’s, but not all NPE’s are patent trolls.

What articles like this do though, is negate that there really is a problem with companies going after business for the sole purpose of extracting licensing fees over patents that are either old and worthless or that the targets are not infringing on.  Those are the trolls we’re after, and they make up a significant portion of the increase in patent litigation in recent years.  If you believe there’s been an increase, I mean.

It’s fair to question statistics and the motives of those behind them.  It’s fair to criticize people who only want legislative relief of the problem in the form of more laws from Congress because they (incorrectly, in my view) believe that that is the only way out of the problem, or even a good way out.

But you can’t just throw the baby out with the bathwater and say that because a few statistics are misquoted or unfounded or skewed by the companies putting them out that there isn’t really a problem.  All you need to do to verify that there is is to ask the Dittos and the Farks and the TMSofts.

They’ll tell you that, increase in patent litigation or no, there IS a problem.

JustSayin_small

IPTT

{Merry go round image found here: http://www.webanswers.com/for-fun/what-was-your-favorite-playground-equipment-in-elementary-school-f1f9f9}