My friend and yours Zach Walton has just posted an article about Windows 8 and how it’s “bringing out the trolls“. Only here’s the thing…those of you who know me (Charles Arthur, this means you) know that I hate hate hate patent trolls. If the question were ever posed to me in one of those standard survey formats where you have to choose on a scale of “Like Them Tremendously” down to “Strongly Dislike Them”, patent trolls would have me writing in a vote of “Very Strongly Dislike Them A Whole Lot”. So if I have a chance to call one out and dump on them, by God I’m not missing out.
But here we’re in a bit of a gray area. Which reminds me of a quote from one of the best movies ever besides Star Wars which has incidentally been completely ruined by the sale of Lucasfilm to Disney. George? WHAT WERE YOU THINKING? At least you had the foresight to put Kathleen Kennedy – no relation – in charge of branding. Anyway, the quote is:
FLETCH I have pictures of him. Dealing….
WALKER So let’s go! We run the pictures.
FLETCH He’s not the story! There’s a source behind him.
FLETCH Well, there we’re in a bit of a gray area.
WALKER How gray?
Are these guys trolls? We’re in charcoal territory here…let’s don’t just toss that name out willy nilly, as it sullies the term and makes it less of a biting commentary on the real thing if it’s used inappropriately. It looks like these guys have a decent patent, though it also looks like they haven’t brought an OS to market using the concept. So in that respect, they meet the partial definition of a troll, something closer to the Non-Practicing Entity end of the range, I’d say.
True trolls sue repeatedly. A quick search of my emails from PriorSmart yields exactly one result for SurfCast, and that’s this suit. One lawsuit against one company over a patent that seems valid does not a troll make.
What else you got on them, Zach? Bring it on!
Subtitle: Velvin Hogan, We’re Looking at You.
Probably there are many reasons that companies settle with patent trolls, but honestly I think the fear of a jury trial is at the top of the list. Look what happened in the Samsung/Apple
vendetta by Steve Jobs trial. Turns out, the jury foreman would have been good friends with Steve, in that he too behaves out of spite. You get one guy on there who doesn’t disclose his history in voir dire, and you’re sunk. Which begs the question in my mind that, hey, isn’t that juror misconduct or contempt of court or something? Can you really omit relevant facts before you serve on a jury? I don’t think you can. This specific problem with a juror is an anomaly, but it points to one potential issue avoided if you just settle out of court.
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.
The way you stay out of court, the solution the trolls are banking on, is that you’ll settle for their outrageous licensing fees. Increasingly, we see companies go after invalidating the patent with prior art, which is a step in the right direction. I still claim the best solution is coming back at the trolls with all the firepower you can amass via collaborative defense. There is a whole slew of people being sued in Central California by Digitech:
** data via PriorSmart, email them to sign up.
Every single one of those companies ought to pool their resources and fight them. Get in bed with the enemy long enough to defeat the bigger enemy, and see what happens. I’m telling you, you stop bullies by punching them in the nose. Time to take a swing, folks. Or, go to court and hope you don’t end up with someone like Velvin Hogan on your panel.
Irwin M. Fletcher, you choose. (I love that movie.)