UCLA Is Making Bad Choices, Someone Tell Its Mother

I don’t like to be a tattle tale, but someone needs to run this up the chain of command out there in La La land because UCLA is making a poor choice, and one poor choice leads to another and then the next thing you know they’re choosing rock music over easy listening and putting purchases on credit cards and driving over the speed limit and going to 6th street and…

Wait, what?

austin_sixth_street IP Troll Tracker

I’ve never been to 6th street and I’ll never go again.

 

UCLA has chosen our esteemed sous-to-be Chef Nathan Mhyrvold as its 2015 commencement speaker.

Nathan Myhrvold, an inventor, entrepreneur, author and UCLA alumnus, will be the keynote speaker for the UCLA College commencement ceremonies on Friday, June 12. He will speak at both the 2 p.m. and 7 p.m. ceremonies in Pauley Pavilion.

First of all, you missed an adjective or two.  It should read like this:

Nathan Myhrvold, an inventor, entrepreneur, author, patent troll, Sous Chef, and UCLA alumnus, will be the keynote speaker …

Also?  You spelled “renowned” wrong.  It’s “infamous”.

“Nathan exemplifies the unbounded spirit of a Bruin,” said Joseph Rudnick, senior dean of the UCLA College and dean of physical sciences

If by “unbounded spirit” you mean “boundary-less money monger spirit”, then OK.  What has he done to deserve such a place of honor among the alumni?  Behold:

Under his leadership, Intellectual Ventures manages one of the largest and fastest-growing intellectual property portfolios in the world, with more than 40,000 assets and over $6 billion in total committed capital from many of the world’s most innovative companies and renowned academic and research institutions.

I didn’t understand a word of that, but PTT™ did:

Under his leadership, Intellectual Ventures and its myriad subsidiaries has amassed one of the largest and fastest-growing collections of trollable patents in the world, with over $6 billion in total extorted capital from many of the world’s most innovative companies, some of whom can no longer afford to be in business because of the threat of lawsuits.  Also, he wants to be a chef.

(Sorry about that last sentence, sometimes PTT gets punchy on Mondays.)

The coolest thing about this is that at least one student on campus has heard of Mr. Mhyrvold’s goings on and took the opportunity to say “Duuude, we need to vet these speakers before y’all go off bringing in trolls and stuff.”  Or something like that.

What he actually said is spot on:

He is the cofounder [sic] of Intellectual Ventures, the worlds biggest “patent troll,” a company that exploits the loopholes in the patent-granting system by collecting patents and suing other companies, both big and small, hoping to get a piece of their revenue.

Welcome to the side with the white hats, Ari.

I only wish I had taken myself up on my dreams of attending UCLA so I could write a scathing letter to the Alumni Association, letting them know how I felt about this bad apple choice of a speaker.

JustSayin_small_New

IPTT

 {Image from 6th street from my personal collection here.}

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Two Things About The NetApp Victory Over Acacia Media

Two things struck me immediately when I read Joe’s article over at Ars about the recent victory of NetApp over Acacia:

A.  Acacia Media is the country’s largest patent troll?  What?  When did they usurp the throne from my favorite CEO-turned-world-infamous-chef Nathan Mhyrvold, et al at Intellectual Ventures?

and it’s sometimes considered the largest “patent troll,” since its various subsidiaries have filed more patent lawsuits than any other single company.

How can they have more subsidiaries than IV?  Or rather, how can their fewer-than-IV-subsidiaries have filed more lawsuits than IV’s?  It’s possible and highly likely because Joe’s a very thorough guy and wouldn’t say that if it weren’t true.  It’s just surprising that I didn’t know that because I pride myself on knowing all the things about all the trolls.

Joe 1, Pride 0.

2.  Judge Gregory Sleet should get an award for nailing down the troll problem with a single paragraph.  I, of course, did it in 17 words but who’s counting?  Anyway, what he said regarding this case needs to be spliced up, put on a series of sandwich boards, and paraded in front of every Federal District Court every single day until it has been memorized by all of the judges and regurgitated verbatim every time a troll files a lawsuit:

The facts of this case demonstrate that Summit pursued an action against NetApp without any basis for infringement, delayed disclosing the existence of the Licensing Agreement for eighteen months, extracted settlements from co-defendants worth a fraction of what it would actually cost them to defend the lawsuit, and then voluntarily dismissed its claims with prejudice prior to the court issuing a ruling on the merits… The claims were frivolous—Microsoft’s initiator software [was] licensed, so no system employing it could infringe the asserted patents. Summit’s motivation was to extract quick settlements that were dwarfed by the costs to litigate. Summit was objectively unreasonable in bringing a lawsuit against NetApp mere months after executing the Licensing Agreement that effectively eliminated its theory of infringement. Finally, the court is convinced that an award of attorneys’ fees in this case is necessary to deter this sort of reckless and wasteful litigation in the future.

We have a winner, folks.

_38891263_bingo_b203

B-I-N-G-O!

 

Also, this quote here from Acacia subsidiary Summit’s “expert” is pretty telling:

Summit’s expert said that Microsoft users infringe the patents, but he couldn’t determine whether Linux or UNIX systems infringed because he “didn’t have time.”

Let’s run that through the Patent  Troll Translator™, shall we?

“Seriously?  You expect me to dig through and find out if these people have actually infringed?  Please.  Just pay up, dude, and it all goes away.”

One last thing that’s curious…the article states that RPX took licenses to the two patents in the suit (7,392,291 and 7,428,581) and that NetApp therefore (as an assumed subscriber of RPX’s) already had a license.  RPX purchased PriorSmart which sends out a daily recap of recently filed patent litigation.

I can’t find Summit or Acacia Media listed in any of their emails as having sued NetApp.

JustSayin_small_New

IPTT

{Shot of British bingo winner found here.}

Top Five Things I Learned From The Fortune Article On RPX

I don’t usually pick up Fortune magazine because my nightstand is already covered in InStyle and Vogue and Elle on account of I’m a fashion icon in my dreams.  But I was tipped off (thank you!!) about the recent issue with this article about RPX. You and I both know that I can’t not get involved in this kind of thing, right?

Read it I did and boy oh boy oh boy, were there some nuggets in there!  To wit:

1.  John Amster plays guitar?  I did not see that coming.

AmsterGuitarMindblown

Mind? Blown.

2.  People (besides me) have hated Intellectual Ventures from the very beginning.  Commerce One’s bankruptcy, as the article explains, was the catalyst for the secondary patent market in that their GC Paul Warenski said “Hey, let’s not just sell our assets as one package, lets split off the IP and sell it separately.”  Kind of a Gordon Gecko-ish move, but I mean that in a nice way because Paul was a visionary kind of asset splitter-upper, not the nasty kind.

From the get go, it seems that the most important outcome of the auction was not that the patents fetch a high price, but that the winner had better not be IV.  That’s interesting, since purportedly, they were the early RPX:  the mission was to find and buy up patents to keep them “out of the hands of hostile NPEs”.

I suspect their business model got in the way…acting as a hedge fund and being expected to fetch a high rate of return for investors meant that IV going freak nasty and litigating to get that return was a forgone conclusion.  Nathan’s idea that all he had to do was “[price] his licensing demands correctly, [and] he would never need to sue anyone” was all well and good, but then the big players got more than a little sick and tired of the demand letter game and it all went to seed.  They stopped responding or starting fighting and then as we all know, in late 2010 the chickens came home to roost and IV began filing lawsuits.

It’s just interesting to me that Myhrvold has been a nemesis for so many for so long.

3.  Nathan Myhrvold was an original partner in ThinkFire.  ThinkFire was headed by Dan McCurdy, of none other than Patent Freedom and Allied Security Trust fame.  At the time of the Commerce One auction, in which ThinkFire and IV were bidders, Nathan was in cahoots with both IV and ThinkFire, which means he was bidding against himself.  See?  Evidently, even Nathan doesn’t like Nathan! Anyway, this was news to me, despite the quote in the article that it was “a spectacle the press gleefully highlighted.”  You can be rest assured of my gleefulness as I now re-highlight this information.

4.  The idea of idea theft is no longer relevant to John Amster, as evidenced by this quote from the article:

In Amster’s world, patent suits against tech companies no longer turn on quaint moral issues like, “Did Company X steal from Inventor Y”  For the most part, they don’t even turn on legal issues like, Is patent Z valid, and if so, is it infringed by Company X’s product?

What counts today are probabilities, statistics, and most of all, transaction costs.

I guess then that RPX’s business model is less “if you subscribe, we’ll invest your funds in buying patents that the trolls will use against you” than it is “statistically speaking, our data that we collected and collated ourselves shows that you will be hit by a patent troll unless you pay us a yearly fee, after which point we will protect you from an unspecified number of those suits and save you an amount of money that we arrived at using our own data.”

Hmmm.

5.  RPX divests it’s portfolios to trolls from time to time.  Which, I guess if you realize that they are “friends with them” and “take them to dinner”, it’d be like me selling my stroller to my newly pregnant friend after my kids are older. I mean, it’s not as if RPX thinks those patents aren’t troll-worthy or they wouldn’t have bought them in the first place.  It looks like they’re buying patents off the open market to snag new clients by telling them “Look!  We hath thwarted the Evil Empire and if you sign up, you shall not be subject to suit by this portfolio!”  And when that usefulness has been outlived and they’ve gotten a few years’ worth of subscription fees, they sell them back out to the open market.  And then use the fact that those patents are now once again at play to bring in more new clients.   Cue merry-go-round.

MerryGoRound

For the first time in a long time, this was an article that didn’t just restate the by now obvious facts about what patent trolls are.  And they didn’t touch lightly on the RPX business model either; I was kind of surprised at the tone they took and wondered if Amster’s camp was happy with the final print version of the article.

I think the original strategy of RPX, to get patents that the trolls could use off the market, was and is a good one.  I’ve praised them as one of the market-based solutions to patent trolling, something that was started by people who had a desire to stop bad behavior.  The only problem is that if they “solve” the troll problem, why does anyone need them?

Maybe that’s what they’re figuring out, and why the divestitures now (occasionally) involve re-selling back to trolls?

All I know is, whenever I read about RPX in the future, I’m going to picture a guy on a sofa with a vintage guitar.

JustSayin_small_New

IPTT

{John Amster image found here. Guitar image found here. Russell Brand mind blown found here.}

It’s Going Down, I’m Yelling “Timber”!

Never let it be said that I don’t have a flair for the dramatic, because I totally do.  (I also have a highly embarrassing story about that song, but we’ll get to that later.)

Have y’all read this yet, re: Intellectual Ventures cutting 5% of it’s workers?  I’m no business school graduate (oh, wait…yes I am) but laying off employees is not generally considered a sign of corporate health.  Last October, Intellectual Ventures had to stop buying patents to beat people up with because they were out of funds to do so.  Prior to that, it had been reported that they were not exactly wowing their investors with dividends.

pitbull-600x450

Note: This is not Nathan Mhyrvold.

So what’s going on in Nathan’s world?  Are the kitchen fumes getting to him?

I think what’s happened is that with the increased noise about patent trolling, things aren’t going as easy for IV anymore.  It’s no longer enough to be a 400 lb gorilla and jump up and down insisting people pay you royalties or you’ll kneecap them.  No, the public narrative has made that path a little more difficult.  Plus, when you sue one of your original investors they probably tend not to like it and that certainly can’t be good for business.

Intellectual Ventures was founded in 2000.  Back then, the idea of a company investing in patents for the sole purpose of finding people who may potentially be infringing on it, or who operated in a space that was anywhere remotely close to a particular patent that they held, was just coming into vogue.  For a fairly long period of time, it worked, in part, I believe, because the approach was so novel that companies didn’t quite know how to react.  Couple that with corporate counsel, who tend to be extremely risk-averse, and most victims likely just said “pay the dude, make it go away”.

pitbull-600-1366027778

Not a corporate lawyer. Probably also not risk averse.

But starting a few years ago, lets say around 2007-8, people began to get all wise to that approach and even wrote about it online and tried to expose the trolls for their wretched behavior. And then all hell broke loose last year when President Obama scooped me and announced an initiative to reform the patents system and get a handle on these ne’er-do-wells.

If it were just that there were staff  cuts at IV, it would be one thing.  Companies sometimes need to trim the fat and eliminate duplicative positions and that can have nothing to do with their overall health.  It matters then, where within the company the layoffs are occurring:

IV has over 800 employees, according to its website, so a five percent reduction would impact at least 40 people. The bulk of the staff cuts involved attorneys and engineers who worked for IV’s large patent acquisition funds, three sources familiar with the company said.

IV also runs a laboratory which pursues inventions that the company itself can patent. That part of the business was not impacted by the job cuts, the sources said. Clouse declined to provide additional detail about the reductions.

  • Area of company that buys patents to sue people with:  cuts
  • Area of company that invents things to patent: no cuts

The (purported) location of the cuts speaks directly to the heart of their business model as a troll.

Like I said, “Timber!”

JustSayin_small_New

IPTT

{Pitbull image found here.  Second Pitbull image via Rolling Stone, found here.}

True Story:  As a reading class assignment, my 7th grader had to pick song lyrics and add stanzas of his own creation using whatever literary technique they were currently studying, which if memory serves was metaphors and similes.

He submitted the lyrics to Timber, by Pitbull.  Have you read the lyrics to Timber, by Pitbull?  I have.  Now.

And that is why I will never be able to look his teacher in the eye as long as we both shall live, why I assume that pretty much any song that is popular nowadays will have equally offensive lyrics, and why OMG, I’ve discovered to my horror that I have become the people I hated when I was 13: my parents.

The Godfather Goes To Washington

The singular best part about this article by Jeff John Roberts is the summary at the top:

The giant patent troll Intellectual Ventures decided to publish a partial list of the more than 40,000 patents it holds. Why is it doing this?

What’s so funny is, in today’s world where everything has to be over the top and choosing little-used but powerful adjectives is a journalistic sport, he chooses the word “giant”.  It struck me as very, very funny because it’s just so…true.

And then of course he includes the picture of Nathan Mhyrvold where he looks exactly like Daniel Hardman from Suits and I just have to say again what an incredible casting coup that was by USA Networks.  Spot.on.

mhyrvoldhardman

Mr. Roberts links to the page on IV’s site where they provide the as-noted partial list of patents.  Let’s drag out the Patent Troll Translator™ for it’s 2014 debut and run this page through, shall we?

At Intellectual Ventures, investing in invention is the core of our business. We routinely buy and sell patents, and are issued patents based on our in-house inventions. As part of managing our portfolio, we also prune patents that have expired, that do not meet our standards of quality, or are otherwise no longer valuable to our future plans. Since 2000, we have acquired more than 70,000 IP assets. Today, nearly 40,000 of those assets are in active monetization programs.

PTT™ says:

At Intellectual Ventures, extracting money from anyone who does business in America is the core of our business.  We routinely convince smaller entities to hand over their patents and “sell” patents (by which we mean we extort large licensing fees or exorbitant sales prices from unsuspecting victims), and are issued patents based on our in-house inventions, none of which have ever been brought to market but who’s counting? As part of managing our portfolio, we also prune patents that we don’t think will get us a big enough margin to afford the good stuff and are therefore no longer valuable to our future plans to take over the world.  Since 2000, we have acquired more than 70,000 IP assets.  Today, nearly 40,000 of those assets are actively being used as a stick to beat companies with until they comply and fork over our outrageous licensing fees.

If “investing in invention” is the “core of [your] business”, whey haven’t you actually invented anything?  Scratch that, I’m sure you’ve invented lots of things.  But why haven’t you actually brought a product to market using something you’ve invented and patented?  I mean, if I say that “bringing down patent trolls” is the core of my business, I ought to be able to show people what it is I’ve done to further that goal.  “The proof is in the pudding”, as my Mother used to say.  Where’s the pudding, IV?

Anyway, on to paragraph two on the Search Our Portfolio page:

We’ve made it convenient to search for assets by assembling the majority of our portfolio in one place. Customers interested in buying or licensing assets from our portfolio can search the database to find individual patents or whole technology areas of interest to them. Inventors looking to sell their patent assets to us can browse to better understand the technology areas of interest to us. Everyone can use the interactive tool to locate patent assets by number*, title, or country.

PTT™ says:

We’ve made it convenient to search for assets by assembling the parts of our portfolio that we don’t mind people knowing about.  Customers interested in determining if they’re next on our list of victims can search the database to find individual patents or whole technology areas of interest to them and their livelihood, after which they should immediately commence with lawyering up.  Inventors looking to team up with the giant patent troll that we are can browse to better understand how we might be able to pay you a pittance for what we will turn into a cash cow of litigation.  Everyone can use the interactive tool…see how generous we are?  Everyone can use it!!

It’s no secret these guys are trying to find ways to show the world that they’re on the up and up because of recent legislation seeking to derail the troll train.  To wit (from the Jeff John Roberts article):

In response to a question about the timing of the release, a spokesman said by email that, “this week was simply the week the list was ready.”

I’ll just let Harvey Spector reply to that:

Harvey Spector eyeroll

My Mother taught me many things growing up, one of which was “where there’s smoke, there’s fire.”  In this case, you’ve got Intellectual Ventures and it’s ilk coming under tremendous scrutiny by the Feds and that’s when they choose to send the Chief Cook* and Bottlewasher to Capital Hill to lobby, and that’s when they choose to “disclose” their (partial list of) patents?

We’re not stupid, IV.  The smoke signals are coming in loud and clear.

JustSayin_small_New

IPTT

*Raise your hand if you caught that.

Lodsys Takes One On The Chin, Pwned By Pro Bono Lawyers

Well well well, what have we here?   I haven’t looked yet for can’t find the name of the law firm that handled the case but wouldn’t you love to shake their hand, give ’em a big ol’ Texas Hug and say “Atta Boy!”?

I totally would.  First round of margaritas is on me!!

Background added:  Lodsys is a shell of Intellectual Ventures company that is going after app developers for using in-app purchases because they say they have a patent on that, and are demanding that developers rustle up some licensing fees but quick.  One app developer fought back with the help of some pro bono attorneys who gave up a $200k paycheck to help.  They brought Lodsys to its knees in a settlement that ended up putting money in the hands of a charitable organization.  Which is winning on every.single.front.

Forbes has their take on the story in this article, and I want to bring a few things to light, namely his main point, if I may be so bold as to disagree.  Ahem.

And the answer to killing the trolls while still allowing the legitimate patent assertion entities to flourish is to level that legal and financial playing field. Something that could be done very simply.

Actually, I do agree that it can be done simply, but not using his tactic, which is as follows:

Just move to loser pays all legal fees in patent cases.

That sounds super terrific on the surface, but the way the shell game works is that these entities who are doing the suing are playing funny money.  You can’t get blood out of a turnip, as my grandfather used to say.  Do you think that if a Lodsys/Intellectual Ventures (because let’s just call a quacking duck a quacking duck here, they’re one and same) does lose that they’ll pony up the fees?

I don’t think so.

I think they’ll do what they do best:  lie, cheat, hide, be nefarious, all of those things.  They’re going to make it all go *POOF*, all of their assets and bank accounts.  Besides which, not spending the money on a defense up front is always preferable to trying to get it back afterwards.  Once it’s out of your hands, money is really tough to get back under any circumstances.  (Don’t ask me how I know that because I totally do not have a bag of clothes in my closet that don’t fit/didn’t match/need to go back to the store for some reason but I haven’t made the time to take them. )

Same thing here: the money’s spent on the suit up front: whether or not the loser is required to pay, and really it should be called “loser pays back“, that money’s already left the defendant’s coffers. If nothing else, you lose the interest so supposing you do get it back, you’re still out the time value of money. You’re welcome for showing off the mad math skillz you taught me in 4th grade, Mrs. Unger.

I think a better approach, and I’ve said this many times, is a sort of crowd funding for these suits. Bring people together who have a vested interest in seeing this problem go away, and give them a place to put some funds.  I recently learned of DefenseMob, whose purpose is to crowdfund patent defense, which can include patent litigation.  It can also be used to fund things like re-exam, or inter partes review (IPR) requests which is how Rackspace is going after IP Nav.  I’m no genius, but isn’t that exactly what we need?  The beauty of it is that it allows the little guys a chance, and that’s who the trolls are increasingly going after because they tend to fight the least.  If there was a way to get the money fronted, even if it’s just a portion of it, you have to believe that more of them would fight, no?

This type of solution needs no government intervention.  It needs no legislation, no persuading of judges, no permission from anyone.  All it needs is people willing to solve the problem collaboratively using any amount of funds they’re willing to let go of for a common good.

And if that common good means someone like Nathan, who wants so terribly bad to be the next Cooking Channel celebrity, goes down in a blaze of glory like his henchmen Lodsys just did, doesn’t it make you want to do it even more?

mhyrvold_guy fieri mesh

Nathan Mhyrvold/Guy Fieri mashup.
In case that wasn’t obvious.

The answer is yes, Yes it does.

JustSayin_small

IPTT

{Guy image found here: http://theonefeather.com/2011/03/guy-fieri-bringing-his-food-tour-to-harrah%E2%80%99s-cherokee/  Nathan image found here: http://www.intellectualventures.com/index.php/about/leadership/nathan-myhrvold}

Big Data v. Intuition: And The Tie Goes To…

Is there a lot of data coming out about patent troll litigation these days or what?  Entire companies are built around the collection, analysis, and packaging of NPE litigation data so there’s clearly a market for it.

Reading this article from Wired about Big Data and what it does to the concept of a SME (which, when pronounced “smee”, is almost as much fun to say as “nastygram”), I’m struck by the balance of how much of the litigation data can be taken at face value v. how much of what we think about these guys is just pure personality driven.  For example, I don’t care much for Nathan Myhrvold.  The main reason is that he refuses to come out and say what he’s doing, even though we all know.  You just want to walk up to him and say “We can see you, Karl.  C’mon man, you’re the King of the Jungle!  You’re better than this…”  Besides which, he looks just like Daniel Hardman, the antagonist in USA Network’s brilliant legal show Suits.  Strike two, if you’re counting.

The Big Data op-ed was online, but in the current print edition of Wired, there’s an article on page 24 entitled “What If Your Gut is (Gasp) Wrong?”  I thought this was a particularly salient point, though I don’t necessarily find it applicable:

There’s so much information that it’s easy to build a case for what we wanted to do all along.

In the troll-o-sphere, I don’t think we can say that the data doesn’t point to the conclusion that there are companies out there extorting money for patents, from big and little guys alike.  So it’s not like we’ve come to that conclusion and genned up data that matched it.  But I think Colleen Chien is right, and it’s a point I’ve made as well, that litigation data does not, as her point #10 indicates, tell the whole story.  The award for the sentence with the most commas goes to:  IPTT.

I agree that Big Data can prove right over gut feelings.  Though I haven’t seen it because it is not likely to make me laugh and does not star Harrison Ford, my two criteria for any movie I’m going to spend two hours of my life on, Moneyball evidently makes this point re:  The Oakland A’s in 2002, who used pure statistics to drive player decisions and won the pennant.  Having raw data and numbers in front of your face does lead to more informed decision-making.  Point made.

But what if you can have both?  What if you can take the raw numbers and then match that with gut feelings that have been data-fied?  (When there’s not a word for what I want to say, I just make one up. That’s how I roll.)  I think you can take the raw data about litigations and you can take raw data about what happens prior to litigation and you can take softer, more gut-level data about the personalities running the trolls (and the legal teams defending them) and you can paint a very nice picture of what needs to be done to solve the problem.  By codifying  relationships in the industry you can put those gut reactions into a form that can be queried back out.

What I’m saying is that I don’t think we’re getting all the data points we need.  Start collecting the points you’re not catching now and put the screws to the data and see if you can come up with a different set of solutions to fight these guys than we have now.

I’ll end with one of my favorite quotes, and why I think Big Data v. Intuition ends in a tie:

You can lead a man to knowledge, but you can’t make him think.

Getting the data you need is only 1/2 the battle.  What you do with it is the other 1/2.

Just sayin’,

IPTT