Oh He’s An Idiot Alright, But That’s Not Why

In Gene O’Quinn’s diatribe, we find this hilarity:

Mark Cuban, the flamboyant owner of the Dallas Mavericks,

Flagrant use of a derogatory adjective in a blog post:  Fifty points!

That’s one way to describe Mr. Cuban, flamboyant is.  I prefer hypocrite, but that’s just me.  One cannot claim to hate patent trolls (and evidently, all lawyers who make money in the patent industry) and be invested in one as well.  It just doesn’t…what’s the word?  Jive.  The complaints don’t make sense to me when the blog maverick himself says “Yeah, those trolls are rotten!!  But if you can’t beat ’em, join ’em.  Just buy right into them that’ll take at least some of their patent bats out of the arsenal”  Holy Mother of God, what a bucket of stupid that is.

That’s why I think he’s an idiot.

Back to the blog post though, this is a great point:

Again, the only problem with what she says is that is it flat wrong! It is not nearly impossible to fight back. Choices are made — conscious choices — to pay extortion-like settlements of $25,000 rather than mount any kind of defense. Samuels wants the reader to believe that patent litigation defense costs many millions of dollars. That is true on average, but for those who cave and pay extortion the fees are substantially less.

I think it’s pretty well established that patent litigation defense does cost many millions of dollars so if Samuels wants the reader to believe that, she’s got a friend in me.  Gene’s right though when he says that those who pony up the coerced fees, as RPX’s chart shows, oftentimes pay less.  What I want to know though is this:  are the extortion payments as low as $25k?  I get the feeling that they are a lot more than that, on average.  Though the chart is, by their own admission, assumption-filled, I do tend to think that the average payment is minimum six figures.

So who is to blame? Aren’t those who complain about the system and say they will never settle and will fight to the death to blame for caving when they jump at that first, extortion-like settlement offer of $25,000?

I think this is spot-on part of the issue.  I have been advocating for a while now that you don’t ever settle, and that you bring the fight to the trolls.  I think it will take more than individual companies doing it though.  I think it needs to be a collaborative defense.  Once the suits are filed, it’s not like you don’t know who else got sued.  Pool your resources and force an all-out battle royale every time a troll sues.  Stamina, people!

Or, you round up the posse and meet the enemy in their own backyard.  This has to be done pre-litigation.  Find out who’s zooming who before it gets to the legal system. Then you’ve got some real leverage.

The thing is, what the patent trolls are doing is not illegal as Gene points out.  They are abusing an existing system and I think he’s right when he says that some of the judges are complicit in that they don’t do enough to toss out the most ridiculous of suits.  But the fact remains that the trolls are skirting existing laws and manipulating the system. And you think adding to that system by creating more patent laws (hello, ineffective SHIELD act) is going to help?  Haven’t these guys proven that they will worm their way around the laws, whichever ones you create?   It’s what they do.

Finally, this was something of which I was heretofore unaware:

Did you know that many of the so-called Silicon Valley elite play golf with patent trolls? Did you know that they go out to lunch and dine with patent trolls? Did you know that they are on first name basis? Many of the so-called Silicon Valley elite refer to those who they vilify in the halls of Congress as “my patent troll.” They believe that if they work together in a cordial way they will be able to get along better. Doesn’t sound like they are really all that upset about the phenomenon if you ask me, now does it?

He lost me at “play golf with patent trolls” because golf.  The only time golf was interesting was when that girl busted out her husband’s windshield with a nine iron.  That’s worth a Sunday afternoon inside to watch!  And I’m not sure you can substantiate that those kinds of back-room dealings are going on and even if they are, they are between the big players, the heavy hitters with access to lobbyists and to the daft morons congressmen and women on the hill.  The regular Joe patent troll target, the ones who are so hurt by the suits because they truly do hinder innovation by taking money out of their pockets that could be better spent bring a product to market, are not out on the green with anyone, troll or congressman.

But I’ll say this, I would really love to get me this “my patent troll” thing he speaks of.  I am imagining a little troll-doll wearing a sash that says “Patent” on it.  Someone should totally create that and sell it.  Ooh ooh, on The Shark Tank!  Mark Cuban would definitely invest in that.

Just sayin’,

IPTT

Inc. Joins The Patent Troll Party: Once More, With Feeling

Yeah yeah, I know, they joined last December when the article  was first published.  Late to the party much?  Don’t they know all the good hor d’oeuvres get eaten up within the first 1/2 hour?  That’s just common sense, folks.

Nevertheless, the article was brought to the surface again recently via a tweet by that Sneaky Cuban, Mark.  You know, maybe that old quote from Frazier applies to me more than I think:

Are you saying that I’m redundant?  That I repeat myself?  That I say things over and over?

I get it.  That’s me.  I keep saying it over and over again because it seriously rubs me the wrong way, but Mark Cuban funds trolls.  There’s no other way to look at this.  So for him to tweet this article is, how you say, ironic.  Dontcha think?

Anyway, onward and upward with some quotes:

Friedland isn’t sure how word of the settlement leaked to Troll Town, but he says that after he paid the fee, he was inundated with infringement letters from trolls.

I’ll tell you how it was leaked:  the trolls are networked.  They communicate.  Hell, for all we know they hold Illuminati-esque meetings once a month in a bunker in Lucerne, Switzerland with the sole purpose of formulating coordinated attacks.  Here’s a tip to Deep Pockets (that’s you, troll targets):  Your jets fly there too.

In other words, if that’s too subtle for you, why don’t you guys do the same thing?  Coordinate a response.  It looks like some of you did in this case by filing an amicus  brief or two, but seriously?  That all you got?

Open up your wallets, find a bank somewhere (I know!  I know!  Make it Switzerland, since you’re already there!), get an account, and FUND A MASS DEFENSE.  The only thing evil people understand are lawyers, guns, and money.  You have two out of the three, and that ain’t bad.  In fact, it’s enough.  Get some lawyers and some money, and you won’t even need the guns.

This really, truly isn’t rocket science.  We don’t need Leonard and Sheldon to help us here.  (As an aside, I cannot believe it took me so long to give Big Bang Theory a try.  That show is the Soft Kitty’s meow!) We just need a few big companies to pony up some money, let a few others buy in at whatever price point they can, and go to war with these trolls every.single.time. they sue you.  Make them hurt. Bleed them dry.  That’s what they’re trying to do to you, no?  So sleep with the enemy for a night or two for the sole purpose of getting back at your ex.  Wait, what?  For the sole purpose of beating a bigger enemy, that’s what I meant to say.  It may feel slimy, you may not like yourself in the morning, but it has the huge potential to work.

You can talk patent reform in general, software patent reform in particular, and those are excellent conversations to have.  You can go after invalidation via Prior Art searches.  You don’t abandon trying to fix the system; it’s broken and needs to be eliminated an overhaul at the very least.  But in the meantime, you can’t just tweet about it and complain.  How about some action?

Finally:

…Saving High-Tech Innovators From Egregious Legal Disputes (or SHIELD) Act, that would force NPEs to pay defendants’ legal costs if a judge determines that a patent lawsuit didn’t have a reasonable chance of succeeding.

I’m not a lawyer (though I do watch one on TV), but can’t judges assess court costs to the loser without there being a specific law that says they have to?  I mean, not that the SHIELD act is dumb, but is it necessary when, if judges would grow a pair do the right thing, we wouldn’t need it?

As I’ve said before (see Frazier quote…here I go again) this is all about money.  It’s about a business model that the patent system currently allows, if not outright encourages.  The way to beat the bully is to not back down.  How much money are the targets, big and small, spending on payola?  Has it stopped the lawsuits?  No.  If you feed the trolls, they come back.  That’s, like, what we all learned in Kindergarten when our Moms wouldn’t let us feed that poor sad little dog that showed up on the doorstep one night:  If you feed it, it will stay and since you already have a hamster, two goldfish, a chameleon, and three cats we cannot afford to keep this little dog.

Or something like that.

The problem isn’t going away and it isn’t getting better.  Isn’t it time for a new approach?

Just sayin’,

IPTT

Kicking it up a Notch

First off, the spelling error…Pssst, Uniloc? Minecraft, not Mindcraft.  {shakes head}

Digital Spy and a few hundred of our other favorite IP-watching news sources tell us that Notch, the hero behind the pixelated game my kids love to play, has been sued.  In the Eastern District of Texas.  By a Troll!

Will wonders never cease.

My favorite thing about Notch is that he’s from Sweden, ja.  How can you not love someone from the country that produced the golf-club wielding woman scorned who beat the daylights (or was it headlights?) out of her husband’s car after he was caught cheating on her?  I mean, she’s pretty much the international version of Miranda Lambert.  Hell hath no fury, indeed.

My second favorite thing is that he has the attitude of Mark Cuban, but with more smarts about patents.  A lot of his blog post in response to the suit makes sense.

A common argument for patents is that inventors won’t invent unless they can protect their ideas. The problem with this argument is that patents apply even if the infringer came up with the idea independently. If the idea is that easy to think of, why do we need to reward the person who happened to be first?

Part of my personal answer to that would be the same answer I would provide to a lot of life’s little questions: “So lawyers can make money”.  But that’s just the former law firm employee talking.  The reason this resonates is because he seems to be supporting the notion that an idea should not be the money-maker.  The execution of the idea, the result, the product, should be.  And this is why the “use it or lose it” idea feels so right.

If you are so afraid someone’s going to take your idea and execute on it before you do, then act like a grownup and set a deadline.  Or let the USPTO do it for you by conditioning patents to expire within 24 months of issue if no product is brought to market.  That way the inventor, who legitimate companies want to help and trolls want to exploit, will get his/her fair due but the rest of the world won’t  be prevented from using an idea that, as Notch also nicely points out, they may actually have already had themselves.

He loses me a bit on the medical patents:

I will say that there are areas which are very costly to research, but where the benefits for mankind long term are very positive. I would personally prefer it to have those be government funded (like with CERN or NASA) and patent free as opposed to what’s happening with medicine, but I do understand why some people thing patents are good in these areas.

There’s not much I would put on my “Do Not Want” list ahead of the government owning medical patents.  OMG, no.  But I do see his point that in some cases, the cost to develop a particular product is so incredibly high, and the stakes of it’s outcome so worth it for humans with diseases, that perhaps a forced non-compete in the form of a patent is OK.

From this post over at Techdirt:

On the bright side, as more such patent infringement suits are filed and more companies and individuals are harmed by the current patent system, perhaps we will see those in Washington take notice and implement some real reforms.

Though clearly the patent system is broken and needs elimination some reform, I don’t want Washington to solve the troll problem.  I still think that a consortium of companies being sued needs to form the equivalent of a Super PAC fund and fight these guys tooth and nail every single solitary time they sue.  One of my favorite quotes on parenting is this:  “The certainty of punishment is more important than the severity.”  If, every time a troll files a lawsuit the defendants fight back, they’ll eventually run out of money and energy and they’ll crawl back under their bridges.  Very similar to how you break down a kid who insists on forgetting to make his bed, hang up his towel, and turn his lights off when he leaves his room each morning.  The consequence for that is an 8:00 bedtime, no exceptions.  A week or two enforcing that rule and all of a sudden Jr. remembers what he needs to do.

I hope Notch makes good on his promise to throw money at these guys.  I’d happily donate to the cause, though I may already have in that I’ve bought more than my share of Minecraft merchandise over the last year or so.  For the the boys, of course.  I would never not ever play with that foam pick axe at night after everyone goes to bed.

Just sayin’,

IPTT

The Godfather (i.e., Nathan Mhyrvold)

Great article by Jeff John Roberts.

First up, I’d love to be the one to find the link between IV and Lodsys.  Talk about a bounty…why hasn’t someone issued one to the first intrepid reporter who can prove a link?  That’s how it’s done folks…although if I had the time and resources I’d do it just for the “I told you so” value.

Second, this sounds very Mark Cuban-ish:

Namely, before it began its suing spree, IV made sure that many of its potential critics became its investors.

Well played, IV.  And it’s exactly what people like Mark Cuban, who purports himself to be a patent expert, have decided to do.  “If you can’t beat ’em, join ’em.”  Bah, humbug.  You’re telling me the likes of Mark Cuban can’t find a way to beat the trolls without becoming (part owner of) one?  C’mon.  You disappoint.  Someone, somewhere has to find a better business model.  Oh wait, someone already did.  The problem is, that model only covers patents that are still at play.

Someone is going to have to solve the problem of the trolls who are suing over what they own.  I say you create a non-profit collaborative defense fund.  You reach out to each and every company that is sued by the trolls, and you know that information is available via either Patent Freedom, RPX, or, if you have to strip it yourself, from the US Court dockets, and get them to pony up some money.  Pool resources and every time the trolls fight, no matter who they fight, you fight back.  Get in bed with your enemies against a common goal.  These trolls are not bottomless pits of money.  They are individual companies that are suing Deep Pockets.  Well, guess what happens when Deep Pockets joins up with another Deep Pockets?  Follow the math here…DEEPER POCKETS.  Deeper than the trolls.

That’s how you beat them at their own game.  It’s what I tell my sons when the schoolyard bully picks on them.  Knock that sucker to the ground but good.  If you can’t do it alone?  Round up your posse, as we say in Texas, and git ‘er done that way.   But whatever you do, don’t ever, ever hand over your lunch money.

Third, there’s this gem from our buddy Nate:

Myhrvold this week portrayed his patent practices as simply another form of capital allocation. In his view, the company’s trolling is a good thing because it raises money for Intellectual Venture’s experiments which will, in turn, produce more patents.

How about producing products?  Inventing something new and, oh, I dunno, useful?  Producing more patents should not be the goal here, unless all you do is sue people for infringing on them.  Oh, wait…

And finally, there’s the understatement of the year forever:

The problem, of course, is that patents are not synonymous with value and innovation.

No.  No they are not.

Just sayin’,

IPTT

Back in the Saddle Again

I’m not sure who owns the copyright to that song, but I’m sure I’ll be hearing from their lawyer in 5, 4, 3…

After an eight month not-so-self-induced hiatus, it’s time to get back to it.

When last we left our hero, comments were being made about the patent arms race and whether it was over and what was Google doing and by the way, what ever happened to that girl who wrote comics that Techdirt published and then all of a sudden didn’t publish anymore?  Anway, it’s time to see where things stand, and I’m opening with an article about how the patent trolls ate all the tech jobs for breakfast, no thanks to patent reform laws, patents in general, and the real trolls of the world, the lawyers.

The article was written by one Vivek Wadhwa and probably I should know who that is but I don’t.  The first quote I want to pull is self-serving.  Transparency…I haz it:

Because of flaws in the patent system and government leaders’ misunderstandings, there is an arms race of sorts happening in the tech industry that is sapping billions out of the economy and crushing technology startups

I posted lo those many moons ago that the Nortel auction started the patent race, that Google artificially inflated the price of it, and that Google’s purchase of the Motorola patents for significantly more than the Nortel auction price,  didn‘t effectively end the patent arms race.  I see Vivek Wadhwa holds the same opinion.  So I’m in what…good company?  (I really must look this person up.)  I just like to be right sometimes, that’s all.  I live with three preteens and the neediest, most obstinant dog on the planet so it doesn’t happen very often.

So beyond being happy that my original statement has borne out, I really, really like this closing quote:

It’s time to go back to the old idea that patentees have rights over things they build, not over solving problems by any means

Until this happens, you won’t stop any of the shenanigans and ballyhoo that plague innovation.  Honestly, I think the first thing that plagues innovation is laziness:  people come up with an idea and they jump straight to charging a price for it without even building anything or showing, conclusively, that the idea can be used to add value.  But when people are able to create something that brings value and work tremendously hard to do so, and some company comes after them for a bogus infringement claim, they’re dead.  Who’s going to enter that game with the next big thing?  Not too many people.

I think that, in addition to moving the patent world back to rights over tangible objects and the process of building them, a move towards the “use it or lose it” system would be a HUGE step in the right direction.  Credit:  @ShawnWayne via Mark Cuban’s blog.

Just sayin’,

IPTT