People Hate Monsanto For Reasons Other Than Their Patent Litigation Policies?

Happy New Year, everyone!  It’s good to be back in the saddle, even if the first post of the year isn’t truly about patent troll litigation and isn’t nearly as long-winded as my normal posts because I used up all my words trying to train my new puppy to quit eating my house shoes.  Look, I gotta mix it up now and then.  That’s what I almost never always say.

I came across an InfoWars post about Monsanto and that’s when it hit me that there’s a whole subculture around fighting GMO (Genetically Modified Organism, for those like me who were all ‘whaaaat??‘) foods and our friends at Monsanto are all about that bass.  You and I, of course, know them because they beat up on poor Mr. Bowman a while back because he grew soybeans with seeds from their soybeans because OMG, what else are you supposed to do with seeds?

picard-facepalm

 

I get that InfoWars has a bit of a dodgy, ‘out there’ following sometimes, but either way, I love it when a patent bully, official troll by my definition or not, gets their comeuppance.  LOVE.IT.

In other news, if you’re going to be anywhere near Stockholm, Sweden in late March, come by and see me at Nordic IPR.  I’ll be there with bells on, quite possibly in the literal sense.  YOU DON’T WANT TO MISS IT!  Topics and teasers forthcoming.

Finally, I’m going to be putting out a survey on Wednesday and I hope anyone and everyone with a vested interest in patents takes it.  So watch for that as well.

Looking forward to another great year here and elsewhere!

JustSayin_small_New

IPTT

{Picard facepalm image found pretty much anywhere.  Seriously, you could throw a dead cat in any direction and hit that meme.}

Dear Companies That I Think Are Infringing: Don’t Make Me Go Thug! Love, IP Nav

There’s something just so endearing about a grown man using language normally reserved for the youngsters of a generation.  Personality, as we know from the Monsanto v. Bowman seed stealing case, matters and that is no more apparent than in this article in the New York Times about Erich Spangangberg, he of IP Nav um…fame?  Notoriety? Infamy?  You pick.

Herein lies the rub:

“Erich saved our bacon,” said Steve Dodd, a patent holder with a client company called Parallel Iron. “We were more than $1 million in debt and I was getting ready to file for bankruptcy.”

I have no intimate knowledge of what Parallel Iron does or what Steve Dodd’s patent is for so I’m going to just go right ahead and speak out of turn by saying that if you’re having to file for bankruptcy, might there be a reason beyond “I haven’t monetized my IP correctly?”  Something along the lines of tough competition, a failed new product release, a global recession, I hired my sister to do my books and she stole me blind…you know, things like that?  And really, Steve, how much of what Erich got in the patent shakedown licensing that he did for you did you get to keep?  It’s been said that

only about $6 billion of that money wound up in the hands of inventors,” said James Bessen, a co-author of the study and a professor at the Boston University School of Law.

I know that study has come under question, by me as well as few others, but if the numbers are in fact to be believed, then 6 billion out of the 23 billion that was spent on these lawsuits is {pulls up calculater} is 20.68%.  So all those inventors that companies like IP Nav are claiming to help are getting roughly 21 cents on the dollar.  Well, that seems fair.  I realize that Parallel Iron managed to come out of their negotiations with 42.5% of any settlement revenue so they’re beating the average.  But that’s still less than 50%, which tells me what we all already know:  IP Nav and their ilk have no true interest in helping the small inventor, they have an interest in helping their own bottom line, and the bottom line on their bottom line is this:  “…[they are] profiteering from a flawed and creaky legal system.”

This little nugget was fascinating:

He stands about 5-foot-6 and was bullied as a child because of his height. He always fought back, he says, and he usually lost; his nose has been broken by an assortment of fists. This has given him a lifelong hatred of bullies, which explains, he says, why he wound up in a job where he often stands with a small company assailing a larger one.

The irony just drips off that last sentence no?  Maybe the reason his phone is “ringing with new business” despite the public humiliation that should have accompanied a couple of Judge’s smackdowns (which you can read about in the link to the NY Times article) is because these inventors seeking his services were also bullied as children, and are now performing some sort of sick and twisted retaliation in the form of being a bully-by-proxy and hiring Spangenberg.  I don’t fully understand the psychology of bullying, but something weird is going on here.  Maybe I should send Erich my therapist’s number.  If I had one, I mean…

“Love, fear or greed,” he says, citing the key human motivations that are his leverage when he approaches any company. “I always start with love.”

That usually means an assertion letter, which may not sound very loving to recipients. In 2011, a judge in Wisconsin — not the one who mauled him — quoted from an IPNav assertion letter that included this sentence: “We are focused on addressing these issues without the need for costly and protracted litigation.”

I’m no expert on love, but I’m pretty sure that veiled threats is not one of the forms it takes.  Call me crazy, but it probably also doesn’t entail “going thug” on people.  IP Nav isn’t using love here, they’re being a bully.  The only way you can make a bully stop is to take away his power by standing up to him, like Rackspace and Neiman Marcus and NewEgg and others are starting to do.

There’s no app for that, but here’s a few visuals to get you all fired up again!

Image courtesy of the Braveheart movie people.  I didn't take it, am not claiming to have.

Image courtesy of the Braveheart movie people. I didn’t take it, am not claiming to have.

Superheroes

Rackspace to the left of trolls, Neiman Marcus to the right!

I don’t care how much money Mr. Spangenberg has or how many cars he has or where he lives.  I care about what he’s doing, and that it’s wrong.

Just sayin’,

IPTT

Play-uhs Gonna Play: Monsanto Wins Patent Battle, But Fails To Rock A Puffy Coat Like Bowman

I don’t know why it affected me so personally, but I was really sad to see Vernon Bowman lose the soybean case to Monsanto.  I guess he’s like the Grandpa I never had growing up because we lived 2000 miles away from either set of grandparents as a result of family feuds my father’s job.  But if I could have picked a grandpa to be mine, it would’ve been him, with his cool tractor and mustache, and even cooler dog.

Aaron P. Bernstein for The New York Times

Aaron P. Bernstein for The New York Times

Alas, Monsanto’s attorneys were able to convince the Supreme Court that my proxy Granddad is an intellectual property thief because he planted soybeans and they (*GASP*) grew in the ground, as seeds are wont to do.

I read about the decision and felt compelled to complain.   First of all, I need to get out more because I didn’t realize that Monsanto actually manufactured the RoundUp product and gave exclusive rights to sell it to Scott’s, who distributes the product.  So what you’re telling me is that you’ve made a pesticide, and then genetically engineered a soybean that is resistant to it?  Maybe I don’t understand science even though I watch The Big Bang Theory religiously, but why couldn’t you just have created a pesticide that only killed, you know, pests to begin with?  It seems a little double-dip-ish to create a solution to a problem that creates another problem that you then create another solution for.  (If you’re an Aggie or a patent troll, you might have to read that last sentence twice.)

Nevertheless, here’s what happened:

Vernon Bowman, an Indiana farmer, thought he had come up with a clever way of avoiding the cost of paying Monsanto’s licensing fee. Bowman bought soybeans that were sold to be consumed, not planted, from a grain elevator, planted them, sprayed them with Roundup Ready, and then planted the seeds from the surviving plants.  (Such seeds were of course from Roundup Ready plants, since they had survived the spraying of Roundup).

OK first of all?  Don’t talk about my proxy Granddad like that.  “Thought he had come up with a clever way of avoiding the cost of paying Monsanto’s licensee fee.”  Is that really what he did?  It was on purpose, what he did?

You know what?  Maybe it was.  But what I’d like to know is what are Monsanto’s damages from this guy?  Because I find it extremely difficult, if not impossible, to believe that My Granddad’s Mr. Bowman’s crops have hurt the sale of Monsanto’s RoundUp ready seeds in any substantial way.   Now, if he had planted the soybeans that were meant for consumption rather than actual seeds, spent the time to plant them and harvest derivative RoundUp ready seeds, and marketed and sold them as an alternative to Monsanto’s patented first-generation seeds, then I might be more willing to sit down with him over a glass of sweet tea and possibly a splash of whiskey and say “Grandpa?  You really shouldn’t do that.”

But for him to legally purchase soybeans, plant them, take seeds from those plants and plant them, and for those seeds to have inherited the RoundUp resistance of the original bean seems way on down the food chain and seriously, how much did it cost Monsanto to sue this guy anyway?  Did anyone but the lawyers even win any money?  Wait, don’t answer that.  The answer is always “NO.”

Either way, the personalities of both monolithic Monsanto and sweet farmer Bowman are what kept this case in the news.  We know it cannot possibly be about the details of the doctrine of patent exhaustion because OMG how boring can you get?  Who’s reading a bunch of articles about that?

No, it’s the whole Play-Uhs Gonna Play doctrine that kept this thing exciting.  Which brings me to the second main point of this whole post:  even though Monsanto won the war, no one rocks a puffy coat like Mr. Vernon Bowman:

BowmanMonstanto

Puffy coat, for the win.
(J. Scott Applewhite/AP)

Put that in your Supreme Court docket and smoke it, folks.

Just sayin’,

IPTT

Play-uhs Gonna Play

(Here I go again, repeating myself myself…)

I find the most interesting piece of the patent troll puzzle to be the players it brings out.  Taking a stroll down memory lane, you find this seriously outstanding dude.  If ever there was a time to bring out that infamous Jay-Leno-to-Hugh-Grant line, it’s now:  “What the hell were you thinking??”

Probably some of these details are wrong because  I am loathe to look them all up on a Wednesday morning I don’t have a fact checker, but basically Scott Harris held some patents.  While working as an attorney for Fish & Richarson, he licensed out these patents to trolls who would then assert them against clients of his own firm.  You need to be careful walking around after following that circular logic…dizziness leads to falls.

Somehow, I suspect he didn’t get a bonus for being a rainmaker.

Patent law appears to bring out the ugly in everyone.  And as I’ve mentioned before, it matters who the players are.  My new favorite person in this arena is one Mr. Bowman, of Monsanto v. Bowman fame.  Which, interestingly, seems to be styled in reverse half the time.  I don’t get it. ??

What you have here is a case about seeds.  Soybean seeds.  You know that RoundUp stuff you buy at Home Depot to spray on the weeds in the cracks on your driveway?  Well, Monsanto bred a resistance to it in their soybean seeds so that you can spray for the little buggers but not kill the soybean plant. And they have patented the…seeds?  The process of making them RoundUp resistant?  I’m not sure which, but I’m sure it doesn’t matter  because the point is that they sued, among others, a sweet farmer who bought second-generation seeds from a grain seller and has quickly found himself accused of patent infringement.  Take a look:

Aaron P. Bernstein for The New York Times

Aaron P. Bernstein for The New York Times

Who are we kidding here?  Look how adorable that man is, and he even has his dog with him.  A Grandpa and a dog, you’re going to sue that?  You are if you’re Monsanto.   You couldn’t get much drier subject matter if you combed the Sahara desert, yet this story is now everywhere.  I myself even said before that no one was hyping it because it’s about seeds and didn’t have a cool name associated with it.

Enter 70+ year old Bowman and you’ve got yourself a story.  Why?  The players involved.  It’s easy to care about who Monsanto sues when it’s a sweet farmer who defended himself by researching the law at a library because he doesn’t even have a computer.  Tell me that’s not good press!  And then he busts out the quotes like this and the story all but writes itself:

“I was prepared to let them run over me,” Mr. Bowman said, “but I wasn’t getting out of the road.”

Goliath, meet David.

So once again we have a situation where the people are what make it interesting.  What if Ray Niro was a sweet, kind, bespectacled man who had asked kindly could his name please not be used in vain when discussing non-practicing entities whom he happens to represent?  A certain blog still exists then, now doesn’t it?  Niro may or may not be bespectacled but he most certainly is not known for his kind demeanor so the fists started to fly and ZOINKS!  Houston, we have a problem.

What would be super terrific would be to track not only patent troll behavior at the company level, but to start naming names.  Build in a little personality profile of some of the biggest players working for the biggest trolls and see if you can’t use that information to make better informed decisions on how to handle nastygrams.  Also, take a look at the law firms on both sides of the aisle and profile the attorneys.

There’s personality gold in them thar hills, if only you track it and mine for it.

Just sayin’,

IPTT

Cause She’s Got {boom} Personality, {walk} Personality..

I commented on an attorney’s blog recently (Dan Pierron, here’s the link) that personality matters, and here’s yet another instance of that.

Newegg, God love them, took down a troll.  Get  those folks a beer, bar tend!!  What’s so interesting to me is this tiny little sentence:

Newegg’s Chief Legal Officer Lee Cheng says that the attitudes of the court officials had a lot to do with Newegg’s win, when they finally decided that enough was enough and gave Soverain what it deserved.

Bold emphasis mine.  It makes a difference who you go in front of to try these troll cases.  It matters who your counsel is.  It matters who the troll is.

This is particularly true in the technology industry, where personality plays such a huge role in decision-making.  I’ve seen it personally when I was told many years ago that I was not the best coder for the job (wait…what??), but that I was outgoing and responsive and, well, the client liked me better than the other guy.  Even though it cost them a little more over time because I wasn’t quite as efficient, they’d rather have dealt with me than the other guy.  Personality made the difference.

Anyway, that was the point I made in commenting on this blog.  Not very many people have heard of Monsanto.  More have heard of DuPont, but not nearly as many as have heard of let’s say Dell, Apple, Cisco, etc. as Dan points out.  Dan Pierron further makes this point:

What’s more, from my perspective, the findings of infringement in both the CMU v. Marvell and Monsanto v. DuPont cases will have much more significant effects in terms of impact on the consumer than the Apple v. Samsung suit

The papers (did I just type that?  I meant online news sources, most assuredly) don’t talk about what’s important, they talk about what sells.  People don’t want to know that some chip-maker will drive up the cost of their kid’s Nintendo DS, they’re going to buy it anyway so that they can have peace and quiet as they drive over the river and through the woods to Grandmother’s house.  Likewise, do people even know how much of what they eat contains soybeans and soybean by-products, over which Monsanto has a choke hold?  Not likely, or they wouldn’t actually eat them.  Soybeans?  Blech.

Here’s my comment on Dan’s entry, and I think it makes sense here as well, in that who you’re dealing with, individually and as a corporate entity, matters in terms of media coverage and what people think is important.

This is an interesting take…not only is the subject matter less interesting, the players are. Has anyone even heard of Monsanto? People outside of law firms, anyway, as you correctly pointed out? Not likely.

And yet, familiar as I thought I was with that case, I can’t think of a single name associated with it. In the troll world, however, you have the likes of Nathan Myhrvold who is by all accounts easy to hate. Steve Jobs is easy to love *and* hate. Then of course you have the original Troll Tracker issue with the shananigans and ballyhoo in EDTX and the ruffled feathers of poor Mr. Albritton.

The players really do make a difference, as does the industry they play in.

Well played, Mr. Dan.

Patent litigation is need of some seriously outrageous personalities on the bench.  From the opinion, which looks to have been written  by one Pauline Newman:

We conclude that the prior art CompuServe Mall system, by clear and convincing evidence, rendered obvious the “shopping cart” claims: claims 34 and 51 of the ’314 patent and claim 17 of the ’482 patent. These claims
are invalid; the district court’s contrary ruling is reversed.

I don’t know her but I like her already.  As Jesse James Dupree would say: “Puh POW!” Just say the words and make them stick.  That’s personality, folks.

Part of what it will take, in addition to more changes to the patent laws so that bogus patents are never even issued or moving to my favorite “use it or lose it” solution, is people with the type of personality to get stuff done and call it like it is.  Newegg’s corporate personality is one of “we’re not gonna take it” and the Judge’s is one of “yeah, you right!”

Just sayin’,

IPTT