Wherein The Fox Tells Us How To Guard The Hen House

I’m no chicken farmer, but I’ve watched enough Foghorn Leghorn to know that you don’t put the fox in charge of the hen house.  Nor, I submit, would it be wise to take advice on how to punish the real trolls from a real troll.

I must take a moment here and congratulation the author, Mr. Peter “I invented the troll term, y’all!!” Detkin on his vocabulary.  I love phrases like “feckless” and “assembly-line” when referring to lawsuits.  Looks like someone found his thesaurus over the weekend!

Among Peter’s advice on how to deal with “real” trolls is the following, with my comments in my favorite color blue following:

  • Look for companies that send dozens or even hundreds of identical, cut-and-paste “demand letters” at the same time.  Right there with ya, Pete.  That Patent Tool gets more and more of these every day.  But see, since this isn’t how you operate this piece of advice won’t affect you, now will it?  Great choice for a lock on the old coop door, there!  Strike One.
  • Look for companies that file lawsuits without attempting to enter into negotiations or doing any pre-filing analysis; Negotiations come in many forms.  There’s good faith negotiations where both sides have an interest in a mutually satisfying outcome, and then there’s what you guys do.  By virtue of the fact that you are Intellectual Ventures, funded heavily by your buddies at Microsoft, you’re the ultimate deep pockets.  Your negotiation can be tantamount to, oh, I dunno, showing up with the paperwork?  So once again, Mr. Fox, your attempts at protecting the  chickens falls flat.  Strike Two.
  • Look for companies that make big financial demands, without any attempt to justify the numbers. I‘m not sure how this is advice, because isn’t one of the problems with patent trolling the fact that they don’t disclose their settlement demands?  Many times, it’s not even in the threat demand letter…no, they use wording that’s much more generalized.  While we are trying to get that data, and actually do have a good chunk of it for those crazy Scanner Dudes, it’s not always available.  Besides which, justifications are like a**holes: everyone’s got one.  Trolls operate under the “ends justifies the means” most of the time, so no attempt or a stupid attempt to justify big demand numbers is irrelevant.  Strike three.

I’ll absolutely grant that the SHIELD Act is not going to do much good.  It’s rare that I agree with a troll, but I’m woman enough to admit it when it happens.  Kudos for recognizing that legislation isn’t the panacea (whose got a thesaurus now, huh?) we want it to be.

One thing I intensely dislike is when people use the “but the other guy is worse” excuse for their own poor behavior.  Bad behavior is rarely relative.  This is the approach IV is talking about here.  I believe it’s called “poor justification”…see third bullet point above:

Patent infringers can be as ruthless with frivolous litigation tactics as any alleged “trolls.” Some infringers even fire the first shot.

Just because the other guys are ruthless and use frivolous litigation tactics doesn’t mean it’s right.  That’s a lazy out, and I think you know it.

In life and in business, I tend to seek out advice from people who are honest and authentic.  People whose words match their actions.  Intellectual Ventures?  You fall into neither category.

When you are a company that owns tens of thousands of patents and portends to be a hotbed of innovation yet can’t bring a single innovative product to market, and when you are a company who has thousands of shell companies doing your dirty work for you, I don’t understand how you can write this stuff with a straight face.

foghorn_leghorn

What, I say WHAT are you tryin’ to pull, boy??

JustSayin_small

IPTT

{Foghorn Leghorn image courtesy of, and if this isn’t irony I don’t know what is, Looney Tunes.}

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How To Pronounce ‘Patent Troll’: It’s NYE-row, Not NEE-row

I don’t know whether to get on my hands and knees and thank Gene Quinn for giving me so much to write about or get on my hand and knees and beg him to quit giving people like Ray Niro a forum.  While I wait for my left brain to decide, I’ll let the right brain write.

In an exclusive interview given to Mr. Quinn, Ray points out that we shouldn’t require people to actually manufacture something in order for a patent to be valid, taking the Non-Practicing Entity synonym for “Patent Troll” to task:

But, [the Wright Brothers] didn’t have the resources and talent, maybe, to manufacture it. So a guy named Curtis came along and he started manufacturing the airplane using their ideas. Using their inventions and they brought patent suits for, I don’t know, eight or nine years before they ultimately prevailed. The Wright Brothers prevailed.

This is wholly different from what the troll-variety of NPE is doing, and you know it.  The Wright Brothers went after a company who was using their patented technology.  What they did not do is send threatening demand letters to every six year old boy who jumped off the backyard roof with a pillowcase tied around his neck as a cape, trying to fly like a Superhero.  Or, similar to our friends the Scanner Dudes, send a letter to every small business who’s ever bought a scanner and used it to email something.  THAT?  That’s troll behavior, that’s what we’re talking about.  You know that.  Nice smoke screen but we see right through it.

smokescreen_ray

Next, he says this:

We’re an idea-driven society, period. We don’t have the factories that we once had. We don’t have the businesses that we once had. What we have are ideas. And we better encourage innovation.

Ideas and innovation are not the same thing.  I personally hate this whole “idea-driven” society because it allows IP lawyers to line their pockets people to get lazy.  Having an idea is nice.  For example, the idea of reading a book is nice.  But actually reading the book and doing the report will get you the grade.  So which is the real innovation?  The idea of reading the book, or the report produced from reading it?  I argue the latter because that requires real work, and that is what I think should be rewarded, not just ideas.  Not that this is a conversation I have had recently about required summer reading assignments or anything…

That said, I get it, sometimes you have a great idea and you can’t make the product.  This is why they’re called “Post-It Notes” from 3M and not “Steph’s Stickies”.  True story.  (OK, not really, I  totally stole that from Romy & Michelle’s High School Reunion.)  But you can’t just stop with the idea and go around suing other people who also had the idea and then executed when you didn’t.  And especially you can’t do that when you didn’t even have the idea to begin with, but bought it on the open market for a whole lot less than you’re  going to sue others for.  THAT’s what trolls do.  And again, you know this.

The topic moved to current legislation and how that will hurt innovators more than help them which is what we would expect someone on his side of the fence to say.  And it’s in this part of the conversation that the rubber met the road:

And, hopefully, we will tune out these special interest groups, like Cisco, et al., that are creating the hysteria. At least that’s my hope.

And there it is, folks.  Ray’s still fighting a 10 year old battle against Cisco because he and his ilk were called out on the original Troll Tracker blog.  Don’t remember that?  If memory serves, and I think it does, the final few posts involved the filing of an infringement lawsuit before the patent even issued.  Pssst…Mr. Albritton?  The cart goes after the horse.

cart and horse1

Anyway, Ray Niro offered up a bounty to find out who an anonymous blogger was because he’d been called out on his poor behavior.   Offered up a bounty.  On a blogger.  ??

Maybe it means something, maybe it doesn’t.  But what it isn’t is a surprise that Raymond Niro would be a staunch defender of the practice of patent trolling, and adverse to any legislation that may seek to curb such behavior.

JustSayin_small

IPTT

{smokescreen image found here: http://www.louimbriano.com/wp-content/uploads/2011/04/smokescreen.jpg}

{horse and cart image found here: http://hcrenewal.blogspot.com/2010/10/cart-before-horse-again-institute-of.html}

Vermont’s AG Is The Patent World’s Luke Skywalker

And the cast of characters grows.

So by now we’ve all heard about the this story, wherein the Attorney General of the great state of Vermont has gone after the scanner dudes:

MPHJ and its principals may have gone too far. They’re now the subject of a government lawsuit targeting patent trolling—the first ever such case. Vermont Attorney General William Sorrell has filed suit in his home state, saying that MPHJ is violating Vermont consumer-protection laws.

William Sorrell, lightsaber in hand (and how ironic is that because lightsabers use light and scanners use light so it’s pretty much exactly the same thing, is what I’m saying), has gone on a troll hunt.

Luke Skywalker, Star Wars Hero

I didn’t take this picture.
Disney now owns it.
George Lucas? I hope you didn’t make a big mistake.

In just the same way that our farm boy hero jumped on the rebellion bandwagon to try and take down Lord Darth Vader, that empty shell of a man machine who was nothing more than a puppet for Emperor Palpatine,  Mr. Sorrell has lept into the patent fray to try and take down the other “most notorious troll” in the  game.  And boy, did he pick a winner.  The cast of characters in this party?  Don’t that beat all.

mac-rust

Jay Mac Rust, from 2006 magazine cover of Super Lawyers Texas “Rising Stars.”

There’s a saying in Texas that I think best suits this image:  “All hat, no cattle.”  Ahem.  Read all about them folks here in the Arstechnica write up by Joe Mullin.

I don’t know what’s in the water in Vermont, but evidently they grow some serious investigative skills up there:

But Vermont investigators were able to get additional information not available to defense lawyers (or journalists). For instance, they discovered that there were forty different shell companies sending out the letters, all under the control of MPHJ.

Giddyup.  Forty different shell companies?  What’re you trying to do, MPHJ, compete with Intellectual Ventures?  You’ve got a long, long, long, long, long  way to go, but I admire your efforts so far.

The thing is, the actual merits of the case (they’re going for violation of consumer protection laws) don’t really matter.  What really matters is that Vermont is bringing the party to the trolls, going on the offense.   And they’re doing it on two fronts:  this lawsuit as well as a new bill that, if made law, will allow for penalties for “bad faith” lawsuits.  Like that doesn’t cover 99.9% of all patent litigation, am I right?

Joining the ranks of the Braveheart guy, Vermont is tackling this issue head on.  Which of course makes them a de facto Patent Superhero:

Superheroes

This one I can claim. Totally photoshopped this bad boy.

Awwwww  yeah, baby!!!

Just sayin’,

IPTT