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.




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.



{Shot of British bingo winner found here.}

5 Convenient Truths About How Intellectual Ventures Doesn’t Want Patent Reform

Alternate title:  “Rosetta Stone For Patent Transactions: Intellectual Ventures Edition”

I read this blog post by Peter Detkin and almost tripped over the dog, I was running so fast towards my Patent Troll Translater™.   This type of stuff just begs to be run through, no?

According to IV, there’s a list of five things you should or should not do when considering patent reform.  Which I’m not sure IV is actually considering because if the patent system were ever to be reformed?  Hello? You’d be out of a business model.  Duh.

Let’s take a look-see at what PTT™ says:

1.  Beware of Caricatures


I have no idea why I should “beware” of caricatures.
This one’s not scary at all. I don’t get you, IV.

Them:  “Critics invariably define “trolls” as companies that own and enforce patents but don’t make anything. Boston University – one of the oldest and largest private academic institutions in the country –recently filed a patent infringement lawsuit. Like other universities, it doesn’t make any products. Is it considered a troll?”

PTT™:  “People who hate us invariably define “troll” as Intellectual Ventures.  But you know what?  Boston University recently filed a lawsuit over a patent and no one is picking on them!  If they can do it so can we.  Wah!!!

Steph:  Allow me to interject on my own PTT™ here.  I’ve said it before regarding IP Nav and I’m going to say it again:  When you single out people who are doing things that are as bad as you or worse in order to make yourself look good, you have a problem.  Quit doing that.  It doesn’t work for children and it won’t work for you.

2.  Don’t Punish Inventors

Them:  “If a proposed reform makes it harder for inventors to reap rewards for their inventions, we should be very cautious. If reforms tip the scales to those with more resources (usually big companies), we may be hurting innovation.”

PTT™:  “Don’t punish inventors, we’ll do it for you.”


3.  Focus on the Real Problem

Them:  “The core issue isn’t with patents per se or even patent lawsuits. The problem is frivolous patent lawsuits that exploit the cost and uncertainty of litigation.”

PTT™:  “The core issue is that we like to make a lot of money off the backs of inventors and people who patent things.  We don’t give a rat’s about bringing a product to market or furthering actual innovation, we’ll just litigate until our coffers are overflowing.  The real problem is that we don’t have enough money yet.”

4.  Don’t discriminate against business models

Them: “Some people invent. Some people build businesses. Some people do both. The purpose of a patent is to reward innovators, regardless of how they bring their inventions to market.”

PTT™: “Some people invent.  Some people  build businesses to take advantage of people who invent, but who don’t have access to the kind of people who can do something productive with their invention.  The purpose of a patent is to sue other people as early, and often, and frivolously as we can.”

5.  Inventors benefit from a vibrant secondary market

Them:  “Patents are property, much like stocks, bonds or real estate. Trading deepens the pool of capital available for innovation because it brings together buyers, sellers and investors. We don’t attack people who buy and sell stocks. Why should we attack people who trade patents?”

PTT™:  “Patents are property, much like stocks, bonds, or real estate.  Threatening to sue people for infringing on our patents deepens the pool of cash reserves we have for innovation, even though innovating isn’t something we do, so much as it’s a smokescreen to make people think we’re altruistic instead of litigious.  And besides, you know, stock brokers tip each other off and do immoral stuff too and all they ever get is a coupla years in a cushy Connecticut prison.  So why y’all hatin’ on us, you…you…you haters?!?!!

And there you have it.  What Peter Detkin really meant to say.



{Tina Fey caricature found here:, original light bulb in vice found on the IV blog linked above.}

Rackspace Sues Parallel Iron/IP Nav; Also, Peter Piper Was Not Forthcoming

In patents, as in comedy, timing is everything.  How serendipitous to receive news of a certain lawsuit a day after examining a black hat PAE who claims to be sporting a hat of a different hue.  Lovely.

My second most favorite thing in the world behind sticking my hand in the bag of chocolate chips only to find the people I live with have eaten all but two of them, which is totally not enough chocolate to satisfy anyone on the planet, never mind yours truly,  is when I ask someone a question (usually it’s my oldest son, but we’ll leave the parallels between the behavior of 12-yr-old boys and patent trolls to the reader’s imagination) and they reply with everything but an actual answer to my question.  Ah, good times.

And so that very thing has thusforth and somesuch (you didn’t know I could speak lawyer, did you?) occurred right there in the comments to yesterday’s post.  Fear not, for that shall surely get addressed, but not before discussing the bigger thing that is now afoot.

Rackspace (holla!!) has sued Parallel Iron, a shell company for none other than IP Nav.  {Pretends to pick jaw up off the  floor in mock surprise at that little shell company revelation there.}

Remember this quote?

We are NOT a “non-practicing entity” (NPE) in that we do not take title to patents, although in some cases we will assist clients in selling their patents to an NPE.

Hold on a sec while I step out to get out my PTT™ (Patent Troll Translator).  Ah, there it is:

We ARE a “non-practicing entity” (NPE) because, while we don’t always take title to the patents we intend to nefariously wield against industry, we have absolutely no problem farming them out to other people who will sue the pants off of you.  Because, you know, being one step removed from the process makes it alllll better.

I love the Rackspace folks because they don’t roll over and play dead.  As I’ve advocated countless times, the only way to beat these guys is to fight them every single time.  I meant that to mean defensively, as in when the trolls come after you.  But Schoenbaum et al are taking it to a whole new level of awesome by approaching the net and going on the offensive.

I, for one, hope they ram a shot right down the center of the court so fast it makes these guys’ heads spin.

Just sayin’,