Interview With An Inventor, Part III

Slight delay in publication of Parts III and IV, which is why I try never to set a public schedule for these things.  The minute I do?  The universe says, “Nope.  Not happening.”  *sigh*

But here we go, Part III of my Q&A with an inventor will cover these three questions:

6.  Do you acknowledge the existence of Patent Trolls? If so, which company would you name as an example?

7.  Outside of legislation, what do you think can be done to update the patent system so that it is more inventor-friendly? This can include adjustments at the Federal level to do with the USPTO, or things at the local level, like educational events for kids.

8.  Do you think that “loser pays”-type litigation rules will hurt the small inventor? If such rules were universally adopted in the US, do you think it would make you less likely to sue a potential infringer?

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6.  Do you acknowledge the existence of Patent Trolls? If so, which company would you name as an example?

What I do acknowledge is that like a lot of different businesses, there are a small number of folks who operate on the margins and try to exploit small businesses by confusing them as to their coverage of the patent, don’t do any real due diligence to see if the company is using the technology, make unrealistic royalty demands, etc., with no real intention of ever enforcing the patent because it would be economically unproductive.  The only company that I know of that *might* fit that bill is MPHJ, but even there I am not sure what option they have to try and monetize their invention other than mass mailing, because there are so many potential infringers of their system(s).   The reality is that sometimes the nature of your invention is such that the value lies in its use by small users; if there are a million small users, how do you go about collecting a $1 from each?  When you embark on that campaign it causes a visceral reaction because you are targeting the little guy, and you are perceived worse than if you had asked for $1m from one large company.

IPTT Comments:  This is not quite the Yes or No that I was going for here.  It seems a bit hedge-y to me, like it’s not possible at all that there are bad guys out there.  It doesn’t make you one of them, or weaken your own patent, to say that there are companies acting totally beyond the pale.  I understand that it’s difficult to take a completely consistent line on this.  Not with companies like MPHJ or Intellectual Ventures though, for example.  They are trolls, and to call them anything else is just….wrong.

7.  Outside of legislation, what do you think can be done to update the patent system so that it is more inventor-friendly? This can include adjustments at the Federal level to do with the USPTO, or things at the local level, like educational events for kids.

The most recent “improvements” to the USPTO site, again, are very one-dimensional and biased. It is full of “helpful” information on how to respond to patent owners who ask to be compensated for use of their inventions.  Yet there is nothing there that helps patent owners find out how to see if their invention is being used in the first place.  Again there is no balance in the current IP rights environment: everything is being rigged in a way to make it easier and easier for big companies to take inventions.

At the same time I think patent attorneys *could* do a lot more to educate the public and especially young people on the nature and merits of patents.  When I was a big firm years ago we did exactly that: I would visit high schools and give short talks on IP rights, and help kids see that their ideas could be valuable and protectable.

8.  Do you think that “loser pays”-type litigation rules will hurt the small inventor? If such rules were universally adopted in the US, do you think it would make you less likely to sue a potential infringer?

There is no question that a “loser-pays” system would intimidate most small inventors.  Under their proposal if Google the company loses a patent lawsuit, their maximum downside is they pay the inventor a small royalty, amounting to a fraction of a fraction of a percent of their daily revenues. But if the little guy loses, and is forced to pay their big firm attorney fees, that person may lose their house!  This is the type of stifling scare tactic the big companies want in place, and forms part of the multipronged attack I mentioned earlier: 1) don’t let small inventors get patents by making the PTO process difficult; 2) even if they do get a patent, make it easy to kill that patent at the PTAB with an IPR challenge; 3) even if the inventor succeeds on all of this, make it impossible to enforce the patent because few would be willing to take that kind of risk.

IPTT Comments:  I’m with you on this one.  The theory behind it is that companies will think twice before suing if they might have to pay the full costs.  The problem is that litigation is always always always a risk.  You can have the most air-tight case in the world and you then you go and get some dufus on your jury who skews the whole thing.  To make anyone bear the full burden of Joey Bag-o-donuts being on the jury is completely unfair.  And here’s where I get email from all the Europeans who remind me that they’ve had this provision since Queen Elizabeth was knee-high to a grasshopper and then I have to respond with things like “Yeah, but there’s no way to count the cost of lost revenue for people who had a great invention and a solid patent but not the bankroll to try to enforce and and also?  We wrote a really badass Declaration of Independence and I’m reminded of that every time each of my kids has to memorize the first two paragraphs of it so you can just take your stupid little loser-pays rule and stuff it in your musket.”

Or something like that.

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Part IV goes up later this week…y’all come back now!

JustSayin_small_New

IPTT

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Hodgepodge And Sundry Developments

Lots of doings in the patent arena last week.  I’m not a “weekly recap” kind of gal because I’m way too lazy other people do it so much better than me, but there are a lot of little things going on that I can’t drag out into a full blog post, even as verbose as I am, so I figured I’d just hit them all in one post and call it a hodgepodge.  Plus, I get to use the word hodgepodge and delight the over-70 crowd so win-win!

  • GO NEWEGG.  These guys are already in the Patent Troll Fighter Heroes gallery, and this just proves why.  They are all over the troll take-down M.O. and it’s awesome.  The supreme court said “No, thankyouverymuch” to Soverain, which means their no longer sovereign over the online shopping cart world.  Obviousness, thou art quite the slayer.  Lee Cheng is a National Treasure, to be sure.
  • Next up, we’ve got PTAB (Patent Trial and Appeals Board) news. It seems IP Nav is not happy ever with Polly Patent Owner not getting her (ill-gotten) infringement award in due time because someone that she didn’t sue found prior art.  If your patent is as solid as you claim it is, then shouldn’t it hold up under any and all scrutiny?  That’s kind of how I look at this.
  • The Scanner Dudes have completely jumped the shark and are now suing (are you ready for it?) The Government.  Wait, what?  Oh yes, yes they did.  And by “they” we mean Jay Mac Rust, who is behind the entire company and all of it’s 101 six-letter named subsidiaries.  This one actually deserves its own write up and it will get one as soon as I clear some other work off the desk.
mac-rust_mustang

Just one man. All those companies and it’s just one guy.

  • From the “that’ll learn ya, dern ya!” files we have Nintendo who, in addition to sucking more money from me than I care to admit and turning my kids into consummate gamers, has won the ultimate victory over a troll in that they bought it’s patent portfolio after squashing them in court.  Well, uh, played, Nintendo.  They got the patents at a fire sale, held because Nintendo was awarded legal fees to be paid by IA LAbs only Shazaam!  IA Labs couldn’t pay.  Which is interesting because a judge decided, all on his/her own, to make the loser pay.  So, really, as an aside to this bullet point, do we need a new federal law mandating this?  If the judges can decide on a case-by-case basis to do this anyway, what’s all the huffing and puffing about it being an official law?  And besides which, this case illustrates how that really won’t work anyway because in the end, the loser didn’t so much pay as the winner.  At the auction.  To buy the trolls’ patents.

There you have it:  hodgepodge and sundry developments because that’s just how we roll.  And be “we” I mean “I”.  Hey, if Jac Mac Rust can pretend to be a lot of people, why can’t I?

JustSayin_small_New

IPTT

{Jay Mac Rust image via Ars Technica.}

Welcome To Art Class: Time To Draw Some Conclusions

Since President Obama, who still has no regard for my schedule, decided to ramp up the rampage against patent trolls which forced me to put out That Patent Tool a smidge earlier than I’d planned to, there’s been a lot of activity on the site and I thought it high time we sit and visit about it, “visit” being a Southern way to say “We need to talk about our relationship.”  (You can send my prize for the longest opening sentence ever to:  Erich Spangenberg, 2515 McKinney Ave, Suite 1000, Dallas, TX 75201…I hear he needs the money.)

It’s fascinating what you can determine based on a set of data surrounding a patent troll.  Let’s take the MPHJ group, also known as the Scanner Dudes.  These are the folks Joe Mullin over at Ars wrote about in April, and a little over 30 of their letters have been entered into the system.  Here’s what we know:

  • There are at least three different demand amounts being requested
  • Not all demand letters from these guys even contain a requested amount
  • January and February were busy months for letter-sending
  • Of their crazy named subsidiaries/shell companies, the ones that begin with “F” seem to be the most prolific

Now, what can we learn from this? Here are my thoughts:

  • Demand amounts depend on the recipient of the letter.  Most trolls are smart enough not to ask Mr. and Mrs. John Doe, purveyors of fine goods at Uncle John’s Corner Store in Deluth, MN for a gigantic fee because guess what?  Mom and Pop stores aren’t as profitable as major corporations.  But they can ask for something and get it because John is not fond of lawyers and just wants the problem to go away.
  • Timing is everything…what makes one month more desirable than another?  Is it tax-related somehow?  Related to shopping seasons?  Like, you send more demand letters in Jan/Feb to people who bought scanners for Christmas, because nothing says “I love you” like “Honey, will you scan and email this for me?”
  • There’s something going on alphabetically with these MPHJ guys.  It would be fascinating to take all the six-letter combinations they come up with and feed them into IBM’s Watson as a Service and see what they spell.  My guess is something like “Patent Infringers Are The Devil” or “We Own You, Beotchez”.

All of which is the point behind gathering the data to begin with.  When you see it in black and white, certain patterns emerge.  Any one who’s been hit by these guys can take a look at what’s been sent  before and use that to fight back with.  That’s collaboration, folks.  That’s taking what we know and building a community around it to solve the problem ourselves.

The more data we get, the more patterns will emerge and the more we can use those patterns to form a proper line of defense against the Dark Arts patent trolls.  That Patent Tool was meant to be just what the name implies:  A tool for tracking trolls and taking them down.

As more and more letters come in, the tool becomes more and more useful, so if you’ve got ’em share ’em!

JustSayin_small

IPTT