The Best Post on Patent Reform (Not Written By Me, I Mean)

For years now, people have been screaming for patent reform, most notably to help get rid of, or at least neuter, patent trolls.  But then as soon as that happens, we know it will be temporary because the trolls will invent “neuticals for trolls” (and patent it) and they’ll be hard at work all over again which is why I’ve never been a huge fan of letting the government fix a problem that they created to begin with.  I think the market is the best place to kick a troll’s ass and companies like Newegg are taking that to whole new levels and OMG how hard was it to write about patent reform, and an excellent blog post about it, before jumping on that bandwagon?  VERY HARD, that’s how.

whoopass IP Trolltracker

Can of Whoop Ass appearing courtesy of Newegg.

The post in question was written by one Florian Mueller and it had me hootin’ and hollerin’ and  fist pumping so hard throughout that I kid you not, my neighbor saw me through the window of my home-office and thought something was wrong, came over and rang my doorbell, set my silver labrador retriever off in a fit of barking, and cost me an hour of productivity while we all wound down.  Thanks for that, Florian.

There’s so much gold in this post I’m finding that even after sifting, my pan is full of the good stuff.  But I’ll start with this quote, because I think it’s genius:

In all those congressional hearings on patent reform that I watched, each and every politician repeated the mantra of the U.S. patent system being key to innovation and allegedly being the envy of the world, when the reality is that it’s the laughing stock of patent and industry professionals in the rest of the world.

First off, I’m not convinced that, anymore, the patent system is the key to innovation.  Why?  Because you can innovate without patents.  You can be successful, you can launch a product (with or without funding), you can win at life without a patent.  True story.

To continue the quote:

…and no one believes that U.S. juries are qualified to determine infringement and validity issues, no one has ever disagreed with me that the Federal Circuit is generally too patent-holder-friendly, and no one has ever disagreed with me that the quality of USPTO-granted patents is generally even lower than that of European patents.

Exactly.  I said the exact same thing in October of 2012 and again in December of 2013.   I’m not knocking Joey Bag-o-donuts.  I’m saying that patent law is tricky and sneaky and full of all kinds of techno-speak that finding a “jury of your peers” in that space would require visiting Stanford or Harvard or South Texas College of Law and plucking students out of the sessions in law school that deal with IP, not sending a letter in the mail to people who live within a ten mile radius of the court house in Marshall, Texas.

Courthouse_Marshall IP Trolltracker

So pretty. Too bad the shot didn’t include the ice skating rink that Samsung built. Zzzing!

Continuing, I want to put this quote on a sandwich board and wear it on Capital Hill (when it warms up, of course):

It must be said that the correlation between patents and innovation in a country is hardly a causation of patents promoting innovation, that patents increasingly serve as a substitute rather than an incentive for innovation, and that studies linking patents to innovation are often based on circular logic, considering each patent an innovation.

See statement above.  Patents NEQ Innovation.

The whole point of Mr. Mueller’s post is, after correctly identifying the problem, to point out ways to use the governmental process to fix what’s wrong.  I don’t agree with everything on his list because that would be way boring.  But I do think he’s got a couple of points that the dialogue should start addressing if we’re to solve the problem:

  1. Don’t blame it all on the trolls.  I blame a LOT on patent trolls (mostly global climate warming change because I can tell by looking that they’re the reason for all the snow this year), and I think the behavior of using patents in sneaky and underhanded ways is deplorable and I’ll keep writing about it until they’ve all gone the way of the horse and buggy.  But we can’t ignore the fact that the USPTO gave them the stick with which to beat that drum.
  2. One size does not fit all.  Different industries require different approaches to protecting intellectual property.  Realize that, and make the necessary changes to the law to account for it.
  3. Meritocracy.  So, I can’t really paraphrase what he said here because I can’t get the words to come out right.  But go read what he says in that section of his blog post, nod your head in agreement, and come back here and thank me for calling it out.  You’re welcome.

One thing I didn’t see on his list is venue reform.  As we all know, I’m not a fan of letting the government solve the problem of patent trolls per se.  To some, that’s what “patent reform” is, killing the likes of Intellectual Ventures and Uniloc, et al.  I don’t like that definition.  If we broaden it to include Florian’s list and add venue reform so that Marshall, Texas and the judges and claims construction experts and jurors who live there are taken down a notch or ten, then I’m all about that hashtag.

Creating the patents system didn’t happen overnight, and fixing it won’t happen that fast either.  Figuring out how to start the dialog that will yield the best results is half the battle, I think.

Thank you, Mr. Mueller, for articulating it so well.

JustSayin_small_New

IPTT

{Courthouse image found here.  Can of whoop-ass found on every pantry shelf in the state of Texas.}

 

 

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I Know Who The Pixelated-Faced Troll Victim Is (Probably)

Do you get into debates on LinkedIn?  I kinda do, but then again I tend to get into debates everywhere I go.  You should see me at the grocery store, what with the whole “paper or plastic” nonsense.  Seriously?  JUST.GIVE.ME.A.BAG.

Anyway, this morning my frienemy Paul Morinville posted a link to a story about a man who’s company was shut down by a patent troll, despite not believing that patent trolls exist.  He did a cursory search and found that the individual in the article didn’t even own a patent (!) and therefore could not have been sued for it (!!) which means he is obviously a liar and his pants are certainly aflame (!!!). Not being one to take anyone’s Paul’s word for anything it, I did a little searching of my own and would you believe it?  I came up with a completely different result.

I’ll pause while you recover from that revelation.

The article that was posted was this one, about a man named David Bloom.  He co-founded a technology start up called Ordrx (probably pronounced “Order X”, and not “OR-drix”, like I originally said it in my head) and the software centered around the restaurant business and the electronic ordering process.  Or something like that.

It’s not relevant anymore because he’s out of business on account of patent trolls. What was so interesting is that those who think patent trolls aren’t a problem immediately dismissed this man’s case because he didn’t have one.  There was no lawsuit filed, and that meant “Hey, dude, what’re you barking about?  Like, you didn’t even get sued, maaaan!  Why don’t you grow up and quit whining already?”

banner big lebowski copy

Update, 5:57 pm CDT:  Of course there was a lawsuit, I missed that when I read the article the first time.  While some still wish to believe there weren’t, it is clear that OrdrX (dba Ordr In) was sued in the S. District of California, by the patent-holder’s own admission in a press release because why not brag about being a troll?  So while I was wrong to say that David Bloom didn’t say he was sued, Paul, et al were wrong to say that he wasn’t sued.  But for different reasons.  I think?  Anyway, he was sued just like he said he was.

Further, Paul and his minions were all “I can’t even find a patent!”  Really?  Because I did, and it took all of three searches.  I found this link on the Application Developer’s Alliance which led me to this link on something called trollfighters.com (note to self: that would have been a good domain to go ahead and buy) where it appears that Mr. Brown is, in fact, the pixel-headed CEO who was so worried about other companies trying to troll him that he refused to even show his face.

Not only couldn’t they find the patent that I found, they claimed the whole thing was a lie because he said he got sued (he never said that he totally said that) and he didn’t get actually sued (again, he never said that OK fine, he did say he was hit with a “frivolous lawsuit”) because if he got sued then where’s the lawsuit????

What actually happened, for those of us who read the article, was that he was forced out of business on account of the threat of a suit from a patent troll. Patent litigation defense costs a lot of money.  How much will always be in dispute, but it doesn’t matter because when you’re starting your own company, anything not related to your business that costs you more than $50 is “a lot”.  Patent infringement litigation defense usually costs more than $50.  I feel very safe in asserting that fact.

The dissenters also claimed that if a (non-existent) patent troll was coming after them and they were Google-backed, why wouldn’t Teh Googs just swoop in and lay waste to the (non-existent) troll?  Yeah, it doesn’t work that way.  First of all, I don’t think they were Google-backed so much as they participated in a start-up contest that was sponsored by Google.  Not quite the same thing, even in the made-up land where Paul lives and the trolls don’t exist.

Second of all, Google would rather shutter the venture than try and fend off the lawsuit, unless the Ordrx software were already pulling in mountains of money.  It’s the only sensible thing to do unless you’re a badass like Lee Cheng or Drew Curtis or Todd Moore and make the call to fight the good fight every time someone brings it to you. What kills me is the speed with which the “trolls don’t exist” camp went after David Bloom without even a quick search.  All they did was look for a patent in his name and a lawsuit, both of which couldn’t be found.

What’s so funny is, finding out the details didn’t even take me that long, I did it while on hold waiting for an online class to start because multitasking is my specialty. I’m glad I did though, because it solved an age-old mystery for me, which is “who was that pixelated man?”

DavidBloom_PixelGuy_new

Tell me I’m right, David.

JustSayin_small_New

IPTT

Side note:  In the Twitter exchange that followed the LinkedIn debate, it was mentioned that I may be a paid shill for lobbying groups.  If nothing else is clear, let it this be: I write this blog for me and for those who are taken advantage of by the black hat, bad-guy, patent-wielding thugs who go after people for infringement just because they can.  I do not take anything from anyone for it.  Not a single penny, from a single person.  #independent

{Big Lebowski image found here. Pixelated image found here. David Bloom image found here.}

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.}

On Patent Infringement Trials And Their Jurors

Newegg lost their lawsuit with TQP Development Erich Spangenberg before the Thanksgiving break.  How does such a bad decision come out of such a pretty courthouse, is what I want to know!

historic.courthouse1-640x302

from Joe Mullins’ Ars Technica post. Did you take that photo? Lovely!

And you know what?  I do know.  I know exactly how this stuff happens, and because I’m cool like that I’ll go ahead and share the love.

Follow me along the trail here, if you will:

  • The people who file patents, by and large, have law degrees.
  • The people who issue patents, examiners at the USPTO, have engineering degrees.
  • The people who send out demand letters threatening an infringement suit are lawyers or self-described thugs.
  • The people who argue patent infringement cases have law degrees.
  • Yet, inexplicably, the people who decide patent infringement cases are…butchers?  Bakers? Candlestick makers?

Does anyone else see a problem here?

This is why, as I wrote about well over a year ago, so many companies settle with patent trolls.  Not only do the not have the money to fight a lawsuit, they don’t want to take their chances with a jury if they do.  You could end up with Velvin Hogan as your foreman, for heaven’s sake!  This is what I said then, and it’s apropos now:

Then there is the problem of putting very technical arguments in front of the general public.  That’s not a slam on the general public, for I are one of them.   Patent infringement trials are fraught with all manner of industry-speak and jargon and terms that people have to look up in order to understand.  Or worse, they need the lawyers to explain it them and we all know how that is likely to end up.  (Hint:  lawyers are terribly partisan explainers, in that they explain only the part of the definition they want you to know, the part that will tip the verdict in their favor.)  Unless you just enjoy spending your time reading about the ins and outs of your newest gadget, all that stuff is going to fly over your head.  And if you buy into the rhetoric that corporations are E.V.I.L. and don’t deserve to make money, then you’re almost always going in with the attitude that Deep Pockets is wrong and the Patent Troll is right.  It’s an easy assumption that is difficult to overcome no matter how good your lawyer is.

It’s probably not fair for me to blame this verdict on the jury, when the blame squarely belongs on poor patents and companies that abuse them like IP Nav.  But good grief, Charlie Brown.  This is not a situation where a “jury of your peers” applies.  If I’ve been mugged or my neighbor’s septic tank has overflowed into my backyard and they refused to pay for the resulting damage (not that that happened to my family as a child and has forever scarred me and now I can’t live in homes where there’s a septic tank) or if I were to spill hot coffee on myself and try to get money out of McDonalds then things would be different.  In those cases?  I need my peers.  People like me who live similar lives, and who do and experience similar things that I do and experience.

good-grief-charlie-brown_edited

Patent infringement is so not a mainstream “thing” that any of my peers get.  You want to know how I know this?  Because when I tell people that I write about patents and patent trolls and lawsuits and such their eyes glaze over they respond with a head-tilt and a very polite “Well.  That’s…interesting.” And then they nod off to sleep and their heads bob forward and slam onto the table at the little cafe where we’re having lunch, the cafe that I will never get invited back to because I talk about boring things like patent trials.  That?  That’s how I know.

I don’t have a solution for who should determine verdicts in patent infringement cases.  I know that outside of the patent troll issue there is certainly plenty of legitimate disagreement over patents and those disagreements need to be heard and vetted by a group of someones.  I’m just not sure it should be a group of someones who live in Marshall, Texas.

Which, by the way, does anyone track juror service up there?  I mean, there’s not but 67,000 people in the whole darn county.  My freshman English class at UT had that many,  (OK, not really.  It had 350 which is pretty much exactly the same.)  and probably only about 1/4 of those are even eligible for service.  How do we know that the same people aren’t being dragged into the courtroom every two weeks for another stint?

We don’t, but it doesn’t matter.  They would still have made the wrong decision in this case.

I’m glad Newegg’s going to appeal and I hope that they win and it’s not just because that’ll mean a loss for IP Nav/Erich Spangenberg/TQP Development.

Actually?  It’s totally because of that.

JustSayin_small_New

IPTT

{Charlie Brown image found here. I’ll cop to the (super simple) photoshopping.}

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