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.}

The Dire Straits And Stanford Weigh In On Patent Trolls

Something about Stanford University says “totally legit” to me.  Why is that?  I’m not even sure, because I’m not a California college kinda gal.  It just seems like anything that comes out of that neck of the woods is a good thing, and the recent article about the US patent system is no exception.

Jeff John Roberts, who wins the prize for “Most First Names in a Row”, wrote a piece last week about the current state of patent affairs, and how patents actually do little to facilitate technology transfers, his comments based on a study done by a couple of Stanford guys.  In said study, they found out that patents purchased from trolls are old and useless and amounted to nothing more than a tax on innovation.

I’m not sure how this is news, because a while back I took the top 10 most litigated patents right out of the NPE Litigation playbook that Goodwin Proctor cooked up and did a little bit of Tableau magic on it:

Top10LitigatedPatents

I was stunned to find that the average age of those patents was over 11 years.  (Hint: I was totally not stunned.)  So, yeah, that part isn’t news, particularly when so many of the patents are technology-related and therefore they age at an accelerated rate.  One year in technology is like 15 years in any other industry, on account of how quickly things change.  I taught a class recently with a student who mentioned a Zip drive.  Zip.Drive.  Raise your hand if you even know what that is anymore, and then harken back to the days when it was the bees knees as it topped out at 750 megs of storage space.  OMG, I can now fit that on a thumb drive the size of my…thumb.

ZIP_Drive_100,_2

Connect it using a parallel port. Oh, for cute!!

 

But what is news, according to Jeff and the study, is that Universities are singing the same song, and just as badly out of tune:

The paper also notes that the same phenomenon, in which licensees pay money for nothing, is also pervasive when universities are the ones wielding the patents. Instead, as with the trolls, university patent deals rarely lead to meaningful tech transfer or innovation. The findings could have important implications at a time when more universities, including MIT and Boston University, are using decades-old patents to demand money from Apple and other big companies.

Dire Straits, IP Troll Tracker

What confuses me is why on earth Universities are allowed to patent any of the things anywayIt seems a little bit desperate for Universities to try and be hangers-on to the brilliance of their students and professors if their stated goal is to advance knowledge for its own sake.

It’s interesting though that they have the same track record that patent trolls do in terms of using old patents to extort new money from companies.  And here I used to argue that they were the purest form of NPE:  they weren’t trying to extort money!  They were simply taking all that Sheldon and Leonard-ish knowledge and selling it so as to fund more and more cool stuff and to further innovation.  Survey says?  Not so much, lesson learned.

This quote from the study is key to me, and it’s something that I want to say to all of the inventors on Twitter with whom I routinely engage on the idea of how to get paid for their innovation.

A critical factual assumption that underlies this debate is whether patent licensing is in fact a mechanism for technology transfer to the licensees and the creation of new products, or whether a request for a patent license is simply a means of collecting money in exchange for agreeing not to sue.

Inventors routinely claim that they can’t make any money off their invention without patent trolls (which many claim don’t exist, Paul Morinville I’m looking at you), willing to fight dirty to get them the royalties they deserve.  First of all, do you get those royalties?  Really?  Let’s take a look at another quote:

Further, studies suggest that such rewards are not flowing. In what economists are calling the “leaky bucket,” only an estimated 20% of the payments to NPEs get back to the original inventor or into internal research and development by the NPE.

Whether the troll is an NPE or a university, you’re not really going to get your money it would seem.  Just go read how Yale handles its patents.  They start out getting 50% of the royalties, though it does go down slightly on a sliding scale.  Blech, how is that of any good to an inventor?

That’s not the whole point of the article though, getting money for your invention.  The point is to answer the question, which I’ve paraphrased because I can, “Do patents further innovation anymore, or do they just cause the exchange of money from one company/individual to another, often under duress as in the case of patent trolls?”

Great question, given that the original intent of patents was, and I quote from the US Constitution, Article I, Section 8, Clause 8:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

Is that even what patents are doing anymore?

Or are they just money for nothing?

JustSayin_small_New

IPTT

{Dire Straits image found here. Zip drive image found here.}

Sasquatch Makes A Friend In The Pacific Northwest

I hate to think of poor Sasquatch, tall and hairy as he is, spending his life all alone.  Everybody needs somebody sometimes, didn’t one of the old crooners sing about that back in the day?  Not my day, but in really old people days?

Well, old buddy, you’ve finally found your match, as it seems that the far less rare beast named Patent Troll has found his way to your neck of the woods.  Tim Wilson posted this link about it…here’s some more info:

Homebuilders in Washington say they are being inundated with letters claiming patent infringement for the simple process of using fans and dehumidifiers to dry out a home after it has been framed.

OK first of all, if you would build homes someplace where it didn’t rain all the time, you might not be in this predicament to begin with.  (I’ll pause while everyone who loves Seattle gets out their poisoned pen to write me a nasty letter.)

BigFootMap

Yes, Virginia, there is a Bigfoot Field Researchers Organization. No lie.

 

Nevertheless, there you are and you’re being targeting like so many before you by

…one large patent troll alone [who] has recently sent letters demanding payment to more than 16,000 businesses in the U.S. and 313 in Washington.

While there isn’t one litmus test to determine if someone is a troll even though Paul Morinville thinks I have one, this is a key element of trollish behavior:  lots of letters blanketing lots of businesses in lots of places.  That makes you a patent troll.

It’s not just the homemakers getting hit…

Mark Allen from the Washington State Association of Broadcasters said that in the 48 hours before his testimony [before the State legislature], more than a dozen small radio stations had received angry letters. Some had taken angry, threatening phone calls.

Emphasis mine.  This is where personality comes in.  Maybe it’s just a Southern thing, but don’t people understand that you get more flies with honey?  Oh, the irony.

I’d like to see the history on both the “drying out a home after framing” and “hard drive storage of music” patents.  What are the patent numbers? When were they issued, which goes back to my question on Twitter about the average age of a troll’s patents.  Lex Machina, where is my email with that data?  Kidding, I haven’t officially asked you for it BUT I AM ASKING NOW.  We can visualize that and fill in another piece of the puzzle.

Y’all know I’m not a fan of the government solving this problem.  I’ll tell you what I want to do about it after this last quote, because it succinctly isolates the issue with trolls:

“It’s that kind of legal threat that comes at small business that leaves them handcuffed, frustrated with what could be a legal exposure and what they’re going to do to try and run their business,” said Bill Stauffacher, a lobbyist for the Pacific Printing Industries Association during a House hearing on a bill aimed at curbing trolls.

Handcuffed is a good word.  Businesses are beholden to these kids of threats because they don’t realize that a letter is not a legally binding “thing”, for lack of a better term.  You are obligated to do exactly nothing if you receive a demand letter!  If we could put these letters someplace, like That Patent Tool, then instead of being worried it would turn into the inevitable lawsuit because Mr. Whiney-baby Troll didn’t get the reaction he was looking for, we could build a consortium of other recipients and come up with a collective defense!

If you have kids, then you’ve probably heard of the book What If Everybody Did That?  The basic premise is to teach kids that, look, if one of you leaves a piece of trash on the playground it’s not earth-shattering.  But if everybody did, you’d be playing in a landfill and that’s gross and unhygienic, not to mention it’s a crime to Mess With Texas.  We don’t do litter here, y’all.  Anyway, why not apply that same principle to demand letters?  If everyone who received one tracked it somewhere where everyone else could find it, it would open up the lines of communication and promote a common defense.

This sounds familiar so I’m sure I’ve said this before even if I do a horrible job of tagging my posts and can’t self-reference like I should.  If every single person who got a threatening letter refused to answer it, they’d have to up their game.  They’d have to make the decision to actually sue, rather than just threaten to.  Divide and conquer, folks.  You can’t fight a battle on a million fronts.  I’m sure I can come up with another platitude here but you see the point.  The way to stop these guys can be summed up in two words: Exposure and Collaboration.  Exposure to the patent, the demands, and the companies making them.  Collaboration among recipients in an effort to either fund a common defense if a lawsuit is eventually filed, or to prevent that in the first place by putting strategies in place on the back end.  Use exposure and collaboration to target the trolls.

patent_troll_target

 

I suspect those tracking Sasquatch have had their share of exposure when people pull the monkey suit off the guy in the forest that they snapped a fuzzy photo of, claiming it was the mythical beast.  Unlike Sasquatch, patent trolls are real.

Tracking demand letters is not the only defense, I get that.  But if those who have been hit by trolls would expose the details then maybe, just maybe, we could build out own Troll Field Researchers Organization, graph the information, hunt them all down, and rid the business landscape of this plague.

JustSayin_small_New

IPTT

{Sasquatch viz found here.  Troll image found here and edited (poorly) by yours truly.}

Wherein I Attempt To Define “Patent Troll” To Paul’s Satisfaction

There’s a gentleman who I “internet know” and we’ll call him Paul Morinville, mostly on account of that’s his name.  Paul is an inventor and holds at least one patent.  I do not have permission to share the exchanges we’ve had by email, and therefore I don’t feel comfortable getting into his whole story here.  I’ll leave that to you in the comments, Paul!

I can tell you that his concerns about patent trolls, which I’m fairly certain he believes do not even exist which is why there’s no formal definition that he will accept, stem from having his inventions used by big players in the market without regard to his actually having invented them.  From his perspective, Big Companies steal from inventors on a regular basis and therefore inventors need a way to go after them without being called patent trolls.  Even though no such thing exists.  According to him.

cover-your-ears-rapgenius

I get that, wrote about it, and didn’t bother printing t-shirts because is that even a thing anymore?  No one is arguing logically that small inventors need a way in the door to larger companies, or at least no one should be.  The Backgrounder has been a link on this blog since it began over three years ago, this is not news.  But you cannot say that because there is are legitimate businesses out there set up to help the little guy that some of those business aren’t started to help, oh, I dunno, themselves.  That’s what patent trolls are, and that’s part of what I would call an “official definition”.

Let’s not confuse “official definition” with “litmus test”.  I’ve talked with Lenny Kravets via twitter and we both agree that a single test does not exist to determine who is and is not a troll.  It would be super convenient if there were, but alas life is not that simple.  But I think that we can get pretty close to a definition of a patent troll that is acceptable to everyone, even Paul.

I’m going to give it a shot here, because that’s how I roll:

Patent Troll, n

1/  A company or individual who, using patents that either never should have been issued or are broadly constructed (intentionally for the purpose of misuse, or as a result of poor USPTO patent examination practices), sends letters to various and sundry companies and/or individuals that simultaneously request license fees and threaten legal action if the recipient fails to respond correctly by paying up and who will, in the face of inaction by a demand letter recipient, actually file suit in Federal District Court, the District of East Texas being the most popular venue.

2/ A company set up to act as a cover for large corporations who try to breathe new life into older patents which they would ordinarily let expire but, as a result of greed and/or pressure from Wall Street, have decided are ripe for assertion or litigation.

3/ Intellectual Ventures

What do we think?

I believe the reason that inventors are all up in arms about patent reform is that they think it will hurt their ability to go after larger corporations that steal their stuff.  Pulling out my broken record here, I’ll say that I once again agree that any reform out of Congress is going to have it’s butt handed to it by the Law of Unintended Consequences faster than a Thanksgiving turkey disappears.  Capital Hill is not the place to solve this problem, the market is.

There’s a recent thread over on TechDirt about how the trial lawyers are the ones who got to Harry Reid and killed patent reform in the Senate last session.  If you don’t read the comments on sites like TechDirt and Huffington Post and Ars Technica, then you’re literally only getting 1/3 of the story.  That’s where I found these gems:

Ideas can be stolen?! What next, someone will steal my feelings?! I’ll never feel again! – by Bengie

and

1) Coming up with your own idea independently is not stealing. (Even if you were not the first to ever think of it.)

2) Ideas are a dime-a-dozen, as any VC will be happy to explain, and de minimis non curat lex. (The law does not concern itself with trifles.)

Implementation and execution are what have value. – by OldMugwump

Right and right.

Though I think my attempt above is rather valiant, probably the best definition of a patent troll is similar, as I’ve previously pointed out, to the definition of obscenity:

 I’ll know it when I see it.

Maybe by using the definition above or parts of it, we can come to some agreement? Because as much as Paul would like to assert that they don’t exist, covering your ears and closing your eyes doesn’t make it all go away, my friend.  Trolls are out there, most assuredly.

Even so, having said all that, the point I made in my previous post on a definition of patent troll is still my favorite:

The way you determine whether a company is a patent troll is not by a single definition, it’s by a pattern of behavior over time, by looking at the results of that behavior and ascertaining “Is this behavior that is good for American businesses or is this behavior that gets in the way of progress?”  In a lawsuit it’s the stage where you “prove up” your case.

So how do we do that with trolls?  I’ll tell you how: we enter demand letter data and over time, the question of what is a troll, never mind who is a troll, will all but answer itself.  We build a community around how these guys behave…what they ask for in settlements, what they demand in their initial leaflet drop from their G-5′s, how they handle their claims construction when things get to litigation, the list goes on.  By looking at behavior over time we will be able to tell which companies are the real villains, and which are just victims of circumstance.

JustSayin_small_New

IPTT

{Cool red-headed ear plug image found here.}