Troll Lobbyists Go To Washington + Goodlatte Gets Cold Feet = Coincidence?

There are a couple of interrelated things going on here which may require me to use the bulletted list feature (why does WordPress insist that bulletted is not a word?) and I’m not generally predisposed to that so this should be an interesting Wednesday.  Nevertheless, here we go:

  • Senator Goodlatte introduces a bill that yours truly doesn’t quite like.
  • A whole heap of lobbyists for patent trolls, Nathan Myhrvold and the Innovation Alliance (which may or may not be redundant, you decide)  included, show up in town and start shopping their sob story to whoever will listen which is to say they took Senator Goodlatte for a round of golf, let him win, and paid the after-round bar tab.
  • Goodlatte amends his bill to take out one of the biggest things the sorry group of whiners was crying over, namely the extension to the covered business methods provision that would have allowed defendants to request re-exam over non-financial based patents in infringement cases, specifically putting software patents in the crosshairs.

Let me ask a question:  How is it a good thing to allow the USPTO to take another look at software patents when this is the agency that granted them in the first place?  And, correct me if I’m wrong, but don’t those folks take a bazillion years to get anything done now?  Putting more things on their potential “to do” list would…speed them up?  Maybe I’m not getting it but this was a suggestion in the Schumer patent reform bill as well.  I didn’t like it then and I don’t like it now.

But at the same time, to IBM/Microsoft/Apple, all you big players bellyaching about it, I say a big fat “Are you kidding me??  You realize that by not wanting to open your software patents up to re-exam you’re effectively saying ‘it’s because they’re bad’, right?  You get that, don’t you?” Ai-yi-yi-yi-yi!


I understand the frustration at the fact that the big players, either as individuals or as part of a lobbying group, have stormed The Hill and stamped their little troll feet and boohooed until the thing they didn’t like was removed.  It’s awful.  But it’s also allowed  by law.  Lobbyists are a scourge, but not illegal and sometimes a necessary evil.

Patent trolling is like this as well, except for the “necessary evil” part of course.  A moral scourge but not an illegal one based on current laws.  Many of the efforts to make their behavior a matter of breaking federal law will serve only to either reduce the problem temporarily while the trolls find a way to skirt said new laws (they’re already searching Teh Google for ways to undermine the Schumer law) or it will have an as-now unforeseen affect on another part of the population that uses patent litigation legitimately and those poor saps will get lost in the shuffle.  This is why, in my never-to-be-humble opinion, broad legislation to fix the patent troll problem will create more strife than it alleviates.

Of course there are some changes to the laws that would be helpful, I don’t mean to throw the baby out with the bathwater.   Holding off on discovery, a huge cost, until after any motions to dismiss are heard, would be a great thing.  Requiring full transparency as to the owner, all assignees, and all parties-in-interest to a patent would also be good.  Force these folks to be on the up and up about who they are.  Thumbs up on that!

But going too much further to bend and shape American laws to ward off the trolls seems ill-advised.  There are things in the market like Article One Partners and their prior art searching, efforts at collecting demand letter data so that victims and targets of trolls can collaborate…those are great things.

And they’re great mostly because they don’t require government intervention and new laws and votes and lobbying.



{Image of Ricky going bananas over Lucy found here.  And on a t-shirt, no less!}

That Big Sonic Boom Late Last Week? That Was Rockstar, Getting The Party Started

First of all, I feel not unlike Rodney Dangerfield these days, what with the President’s lack of regard for my schedule and now the reports of Rockstar Consortium’s decision to file a lawsuit that came on Halloween night when I’m busy trying to ferret out all the Reece’s Peanut Butter Cups from the candy my kids got.  Thanks, Rockstar.

So here’s my question for the consortium members:  At what point do you spend your time improving your own products and innovating instead of hiring people to deconstruct the success of others?

I don’t know the going rate for cell phone reverse engineers is these days, but I know that it’s probably a pretty penny especially since Rockstar reportedly hired 10 of them.  Ten people.  To spend all day and night ripping apart a product to see if it infringes on one of 4,000 patents.

Haystack, meet the needle.

It took you a little over two years to do it but low and behold, you feel as though you’ve gotten the smoking gun, the holy grail that will do…what?  Tie your money up in litigation for years?  And in that time span, your hope is that the Android share of the cell phone market will decline, right?  That the man on the street is going to go “ZOMG!  My Android-based phone was made by a company who infringed on a patent!!  I simply must change platforms now, for I cannot be a party to this madness.”

Yeah, I’m sure that’s exactly what’s going to happen.

Harvey Spector eyeroll

What is so disconcerting about this whole thing is this:

“The principals have plausible deniability,” said Thomas Ewing, an IP attorney who spoke to Wiredabout Rockstar. “They can say with a straight face: ‘They’re an independent company. We don’t control them.’ And there’s some truth to that.”

“Plausible deniability”?  What is this, the movie Independence Day?  We’re not talking about some alien holed up in Area 51 which is (probably) fictional and no one told the President so that if the aliens ever did attack, the public wouldn’t go crazy saying he knew all about it which is pretty much the whole plot of the movie so I totally just saved you a Netflix rental, you’re welcome.

What we’re talking about is heads of the major smart phone manufacturers getting beat into the ground by phones using an operating system that is, whether better than theirs or not, out-selling them so they have stamped their little feet and said “Fine.  We can’t beat you fair and square?  We’ll have our consortium sue you.”


Again, “plausible deniability?”  Please do not pee on my leg and tell me it’s raining.  Any deniability on the facts surrounding what is really going on here is completely implausible.  When it  comes to Google specifically, there’s this:

Rockstar may want to keep the patent conflict as a kind of “proxy war” between Google and its competitors. But Google has plenty of patents, and this new attack seems assured to bring a counterattack.

Right?  I mean, in what world does Microsoft and Apple and the other 10%-ers believe that Google won’t retaliate?

Here’s the final kicker, from this article by Seth Fitzgerald:

One of the most intriguing aspects of the lawsuit is that Google had tried to buy the Nortel patents for $900 million but lost when Rockstar put up a significantly larger bid. Google went on to counter Rockstar by acquiring Motorola Mobility for $12 billion. Despite losing the chance to acquire Nortel’s patents, Rockstar claims Google went about using Nortel’s ideas anyway.

I maintained back then and still do now that Google didn’t want those patents (read here and here).  What they wanted to do was drive the price way up, and they did.  Fast forward to now, and while Rockstar has spent two years and lots of money digging for their “Ah ha!” moment so they could come out swinging, Google went right on with their bad self and put their money into innovations such as Google Glass.  I’m not all up in Google’s financial business but I can only presume that since they weren’t paying off that $4.5 Billion bill, they also instead used their money to buy an actual operating company that comes with a whole set of patents that they can now pull out of their back pocket and use.

When I was in the 4th grade with Mrs. Unger, she had us all draw a picture of a nuclear warhead.  Each picture represented X number of weapons that the US had.   Then, a certain sub group of students was asked to draw a warhead that represented X number weapons that the USSR had.  The whole point was to show us that really, after a certain point, it didn’t matter how much fire power each side had because the minute one country or the other fired off, we were all assuredly going to be dead.

Mutually assured destruction, I think is what she called it.




{Harvey Spector eye roll found here. Chart of smartphone market share found here.}

SurfCast’s Suit Against MSFT Has Just Been Invalidated, Prior Art Found

I hate bait and switch, but hopefully anyone following the industry would realize that the subject isn’t really true.  The case is set to go to trial in September.

But if this isn’t the very definition of “live tiles”, I don’t know what is.

For those not able to see the link, here’s a screen shot:


Image courtesy of CBS. I didn’t take this image, am not claiming to have taken it, and linked to the original source above so step off, Jack.


This is a shot of the latest headlines, as shown in the windows (no, the irony is not lost on that one) of Brockton Enterprises, a newspaper in Brockton, MA in the 1940’s.  When a new headline comes in, they remove an old one and update that slot with the new data in real time.  As in “live”.  And they use a tile format, so, you know, live tiles.

If there was a DEV study looking for prior art in this case, then IPTT, FTW.

Just sayin’,


Patent Jeopardy: We Need Another Category, Alex

This whole SurfCast is suing Microsoft thing has been keeping me up at night in much the same way that a stiff drink and some Benadryl doesn’t.  Here’s the thing:  they are an NPE, a non-practicing entity.   They have a patent for something that they have never built a product on.  So, you know, the very definition.  But if I do say so myself, and I did, that alone does not make them a troll.  This guy thinks it does, and he’s entitled to his opinion no matter how wrong it is.  Besides which, their address is Maine, not Tyler,  TX.  To be a true troll, you have to own real estate in the Eastern District of Texas.  C’mon people, that’s Patent Trolling 101.  (Kidding.  Sort of.)

My heartburn with these folks comes in the form of intent.  What I want to know is, is did SurfCast approach MSFT with the idea of a license before they went and filed suit?  That goes a long way in telling me they are more of a “patent squatter” rather than an outright Troll wannabe.  And I don’t even like the squatter term for them either, though admittedly that’s pretty much based on the fact that the owner of Fuzzibuns got her fuzzibuns in a wad over a stolen idea and used that term with The Sharks.  I can’t get behind whiners.  Or the terms they use.  <– That’s petty, no?  Sorry.

What I am hoping happened, and maybe someone can confirm this, is that they developed this Live Tiling algorithm or whatever you want to call it and patented it and then ran out of steam.  Lost their mojo?  Couldn’t fund a company to actually build an OS around it?  Knew that if they did build an OS, it would never compete with Mac OS or Windows?  Who knows.  Maybe they never intended to build anything with it but knew they were on to something and were hoping that someone would pay them for a license at some point in the future.

This kind of thing happens all the time in business.  You start up a company in the hopes that some day someone bigger will buy you up and let you retire in style.  You put in a ton of work for 10-15 years and then sail softly down to your own private island on your buy-out parachute after you’re purchased.  That was the plan all along.  I’d love it if that’s what SurfCast was doing because that’s cool.  Even cooler if they’d get all authentic and vulnerable and admit it to the world.

Let’s face it, it’s not like they are actually running a company or anything, judging by their website.  SurfCast?  Get a new web designer because dayum, y’alls site is awful.  (And it evidently always has been.  Thank you, wayback machine.) I have a ton of beach pictures in my personal portfolio and probably some of them even have surfers in them so I can get you a better picture than a lady from the 50’s fishing off some random beach, and hereby offer to do so free of charge.  And hello?  Fishing is not the same as surfing.  I don’t get how your picture fits your company name at all, is what I am trying to say.  Back on point…companies who intend to make and/or sell something don’t have ugly static websites with pictures that do nothing to enhance their brand.  This helps my case.

As of this writing, I have emailed the company asking them if they asked Microsoft to take a license before suing.  I’m taking bets on whether or not they will reply.  My bet is no, as in “no”body, which is who I am to them. LOL!  Nevertheless, if I’m right about their intent, then we need a new category for companies/people who patent an idea knowing they’ll never build anything with it but rather fully intend to approach companies who may license it without them having to sue God and everyone else.  Which is not the same thing as purchasing a patent with the intent to shake people down.  Slightly nuanced difference there, but I see it.

Alex Trebek is the go-to guy for categories.  He’s my next email depending on how this plays out…

Just sayin’,


P.S.  At least one commenter on this site agrees with me.  Whoever it is, I want them to bequeath me their vocabulary when they pass on:

SurfCast Lawsuit Comment

And the Winner of the Best Alternative Name for a Patent Troll is…

Just saw this article re: Google accusing Nokia and MSFT of patent collusion, via Twitter (by @PatentWire).  This has got to be the best alternative definition of Patent Troll ever:

MOSAID Technologies Inc., a company that specializes in collecting royalties on intellectual property

You’re kidding me, right?  We don’t bully people, we don’t sue nefariously, we aren’t the modern day Mafia, we simply “collect royalties on intellectual property”.  Not.enough.belly-laughing.smilies.

And wouldn’t Mr. Cook appreciate this:

About 1,200 of the  transferred to MOSAID are considered to be essential elements in the operation of most mobile devices.

So as patents covering essential elements, they ought to be exempt from any lawsuits, right?  Isn’t that what Timmy Boy just told us? Man, I cannot find the link to the video where he basically said “If we own the patent for it, then you need to step back, Jack, and git outcher wallet*.  If someone else owns the patent for it, then it’s an essential element patent and everyone should get rights to it (for free?  I dunno, he didn’t say) and no one should sue over it.”  Tim Cook, CEO of Apple, it’s a good thing you’re so wealthy.  You have plenty of money to feed that ego.

I {heart} the world of patents.  You people gots the crazies.

Just sayin’,


*Texan for “PAY UP, PAL”

Google, honey, we need to talk…

Reading through this article on Google’s blog, I have to laugh at their title reference to the NPR bit that aired last week.  They’re talking about patents related to Android, of course. That, the nation’s heat wave, and the embarrassment that is our nation’s inability to balance a budget is all there is to talk about, really.

Here’s the quote that gets me:

They’re doing this by banding together to acquire Novell’s old patents (the “CPTN” group including Microsoft and Apple) and Nortel’s old patents (the “Rockstar” group including Microsoft and Apple), to make sure Google didn’t get them.

Google, if you were my friend’s boyfriend I’d label you a playah and tell her to dump you like a sack of concrete.  You have money and could have won that bid if you’d wanted to.  You chose to let those patents go and now expect us to believe that you’re mad about it? Please.

And I don’t think I buy this either:

Instead of competing by building new features or devices, they are fighting through litigation.

So, wait.  Apple doesn’t build new features or devices?  I may have been born at night but it wasn’t last night.  Not buying it.  Ditto Microsoft.  They may not be “Charlie Sheen Winning” at their new features and devices, but they are not foregoing all innovation in favor of litigation.  That’s just cooky-talk.

No, I think Google is trying to illustrate absurdity by being absurd.  I see what you’re saying and I think that ultimately, the system can’t continue to function as it is:  you’re 100% right about that.  But lets don’t go spouting off a bunch of nonsense in your blog that no one really believes.  Just come out and say “The patent system is broken and we don’t like it.”  Then come up with viable solutions instead of whining that someone beat you out on the Nortel patents and people are litigating instead of innovating.  Those things make you look stupid.

Just sayin’,


MSFT as Troll

I know, I know, not exactly news.  There are plenty of people out there who think they are already are a troll.  Me?  I don’t think they’re a troll so much as they are a bully, but one little sentence in this article gives me pause:

Apart from the novelty, it’s not clear why anyone would use such a service. There’s no indication that the company plans to bring anything like it to market. But Microsoft found it significant enough to apply for a patent on the technology in September 2008, and this week the U.S. Patent and Trademark Office deemed it worthy of one.

Let us ask IV, Acacia Media, Spangenberg, et al why someone would patents something with no intention of bringing anything to market.  Oh, wait

The best part is the part about the picture they used in the application.  The article does say that the image is “unattributed”, meaning it’s not something they stole from someone outright or pilfered from some poor soul’s Flickr or Pbase site (not that that’s happened to yours truly before) without giving credit.  And lo, they have apologized:

The use of the skywriting image in the patent was an error and Microsoft will immediately submit the patent for re-issue proceedings to correct the drawings. Microsoft regrets any confusion caused by getting busted for this error.

I suppose at the end of this day this quote makes the most sense:

Not that it’s the most consequential technology in the world, but accuracy in patent filings is an important principle at a time when Microsoft and others are pushing to reform the system.

True that.

Just sayin’,