Hold the Phone, Someone Put Out Bad Numbers?

It was bound to happen, and it finally did.  Someone is disputing the claim that patent trolls cost companies $29 Billion in damages.  I’ve used the claim myself so that makes me part of the spread of bad information.  I can see The Internets shaking it’s collective finger at me now, using it’s best “for shaaaaame!” voice. Adam Mossoff has done a pretty good job of ripping gigantic holes in the numerical claim, the people who helped create the number, their methodological failures, and, just to beat the dead horse a little harder, the SHIELD act.  It’s like he dropped a daisy cutter bomb on the whole party.  Ouch. Edit, 12:15 PM CDT:  Adam pointed out that the study of the numbers, linked here, was done by David Schwartz and Jay Kesan.  The article to which I linked is his analysis of it, and I’m glad to have the opportunity to add the link in to their original work.  Also, Adam?  I can one-up you on the geek-o-meter by saying that not only are trolls a hot-button issue now, some of us actually read this stuff for fun.  True story.  You may send my “Geek Goddess of All Time T-Shirt” to me at  505 E Travis St, Marshall, TX 75670.  (Kidding, that’s a Rick-Roll.) Totally with him on the SHIELD act, as we all know.  My reasons differ from his, but whatever, we’re on the same side of that particular battlefield. To the quotes:

The entire U.S. court system is an inefficient cost imposed on everyone who uses it.  Really?  That’s an assumption that reduces itself to absurdity—it’s a self-imposed reductio ad absurdum!

{Clutches pearls and looks around nervously.} ZOMG, did he just use a Harry Potter spell on the Internets?  My Latin is rusty but I think what he means is that we’re all going to get dizzy again trying to follow the logic that the people who drew the $29 Billion conclusion have a vested interest in the number being as high as it is.  Point: Mossoff. Next:

There are several reasons why the extremely broad definition of “NPE” or “patent troll” in the study is unusual even compared to uses of this term in other commentary or studies. First, and most absurdly, this definition, by necessity, includes every universityin the world that sues someone for infringing one of its patents, as universities don’t manufacture goods.  Second, it includes every individual and start-up company who plans to manufacture a patented invention, but is forced to sue an infringer-competitor who thwarted these business plans by its infringing sales in the marketplace.

To the first point in this quote, I’m baffled.  Do we not know the names of the Universities in the US, and can we not exclude them from the study?  I’m not going to do it because, well, it would just be showing off but my guess is that in three clicks or less someone could generate a list that would pretty much handle 90% of the institutions you’d want to exclude from a study like this.  You take this list, match it to the data you have, do a really delete quick query and voila!  They’re disappeared.  I’d love to know the logic behind not excluding them, if that’s in fact what happened. To his second point though, that’s a whole lot harder to quantify.  How do you really know what a company’s intentions are?  And further, what if those intentions change?  A company can, for all the world, “plan to manufacture” all sorts of things that they never get around to for reasons that are anywhere on the scale from Completely Troll-ish to Not At All Trollish.  So excluding companies like that may actually hurt you, if you can even get the names of them at all. Finally,

There are many other methodological flaws in the $29 billion cost study, such as its explicit assumption that patent litigation costs are “too high” without providing any comparative baseline for this conclusion.  What are the costs in other areas of litigation, such as standard commercial litigation, tort claims, or disputes over complex regulations?  We are not told.  What are the historical costs of patent litigation?  We are not told.  On what basis then can we conclude that $29 billion is “too high” or even “too low”?  We’re supposed to be impressed by a number that exists in a vacuum and that lacks any empirical context by which to evaluate it.

Some people, and I may or may not be one of them, contend that any litigation in this particular arena is bad.  That’s an over-simplification and one I freely admit, but I can see why the study labels costs “too high” regardless of the actual number. The question I have though, is does it matter?  Does it matter how much money the trolls have cost companies?  Is there even really a fair and methodologically unquestionable way to get at that information?  Pre-litigation settlement terms and even post-litigation terms are not always discoverable so really, any number that people throw out is going to be questioned, and rightly so. But just because this particular number can be proven to be falsely contrived doesn’t make the whole conclusion that patent trolls are a nuisance without merit.  They clearly are, even if, and especially if, all they cost companies is time.  Time to battle these guys, time to respond to nastygrams, time to consult with counsel, all of those things take resources away from a company’s core business.  Time is the one thing you cannot ever get back.  You can always earn more money…how many times has The Donald gone bankrupt?  And where is he now, besides firing people on Celebrity Apprentice (which, by the way Big D, Bret Michaels totally did not deserve that)?  That’s right: not bankrupt. My point, and I do have one, is that yeah we want all the numbers to be factually correct and all the research to be on the up and up with no bias and no flaws but it doesn’t really matter.  It does not take a genius or a flawless study to tell us what we already know:  trolls are bad for American business.  Full stop. Just sayin’, IPTT

Well Wouldya Lookie There, Search Terms Edition

I was feeling a little lucky today so I  took a look at the site stats page.  Normally, my fragile ego can’t handle it, but today was special (read:  I had Mexican food for dinner and that means margaritas…) so I clicked.

And what to my wondering eyes should appear, but the following search terms:

InterestingSearchTerms

In case you don’t have your reading glasses, it says:

how trolls can avoid the shield act

It’s not even law, and they’re already looking for ways to skirt it.  I’m not quite sure what it says about IPTT that they landed here, but it’s interesting nonetheless.

Just sayin’,

IPTT

Three Reasons the SHIELD Act Will Not Derail the Troll Train

In stark contrast to a few people in Congress who shall remain nameless (translation: ALL OF THEM) who don’t typically, you know, read the bills they sign, I actually sat down this weekend and read all four pages of the SHIELD act. All.four.pages. Man, it took me almost 20 minutes!! Twenty minutes, I might add, that could have been spent watching The Pioneer Woman make brisket because everyone knows that there is nothing on earth quite like coming home to the smell of a roast in the oven. But no, I sacrificed that time learning to better myself in the kitchen so that I could read the SHIELD act. You’re welcome.

Without further ado, here are the most obvious three flaws:

1. It came from the government. Beyond building decent roads and providing for the common defense (un-maned drones aimed at law-abiding citizens notwithstanding), is there really anything the government does well? Mind you, I’m not drinking the haterade but let’s be honest here. The realest solutions to the biggest problems in any industry tend to come from the industry itself. Lawyers on capital hill know what special interests tell them. Patents and the patent arena can be a complicated business, which as I’ve said before is why you don’t want anything going to a jury trial. It’s not that people can’t understand, it’s that they fall asleep midway through the explanation. Like Penny does when Sheldon talks. So although most capital hill-ers are very smart lawyers, that doesn’t mean they’re smart about this. I don’t think they are, and I think the government is the last place you want to go for this sort of thing, unless you change patent law to “use it or lose it”. That would be helpful and something real and tangible that the government can do to help remedy the situation that the trolls have put us in.  Which is probably why they’ll never do it, but I digress.

2. It doesn’t make the immoral behavior illegal. I can’t find the post where I said it, but someone talked about “leaving the morality of the issue aside”, something I find hard to do. What the trolls are doing is grossly aberrant to the spirit of patent law. Trolls are exploitative and opportunistic. While those are bad character traits it is not, in and of itself, illegal to be those things. This law doesn’t fix that. Which leads me to my last point, which is what the law *does* do…

3. This law fixes the problem after it has already occurred.  Holy Too Little Too Late, Batman!!  Once litigation starts the defendant has, for all intents and purposes, already lost. We’ve discussed that here on many occasions…once one of these cases goes to court the assert-ee is already a day late and a dollar (or three trillion) short. What? Too soon for sequester jokes? This law causes pain for the trolls only if they lose. What are the stats on that? Bueller? Anyone? How is that a preventative? When you are going after a ton of people all the time and exacting licensing fee after licensing fee *without* litigation, this law has only the smallest possibility of being consequential. And even at that, it’s “slap on the wrist” money when you consider that the trolls are a $29 Billion problem. Not helpful.

What we need to do is get trends on these guys at the earliest stage of the game, not wait until we’re in litigation, spend millions winning, and only then have the judge invoke the SHIELD law and slap the troll with a penalty.  Because if and when that ever happens, we’ll then sit and watch the money never come rolling in because there will be appeal after appeal, the trolls will cry bankruptcy or perform countless acts of ballyhoo and tomfoolery to avoid paying. What needs to happen is the good guys need to start tracking the trolls and calling them out, being able to predict where and when they’ll strike next, promoting a common defense (hmmm, interesting reuse of phraseology there)…this is the sort of thing that will make an impact.

When I was a about 9 or 10, I listened to 30,000 Pounds of Bananas by Harry Chapin probably 50 times a week using my parent’s Samsung hi-fi stereo. It was a live recording and towards the end of the song, he turns to his brothers for input on one of three proposed endings. They deftly steered him away from a particularly poor option with one simple phrase, that I can’t help but repeat here:

“Harry? It sucks.”

About this proposed law and the potential to derail the Troll Train?

“US lawmakers? The SHIELD law sucks.”

Just sayin’,

IPTT

Inc. Joins The Patent Troll Party: Once More, With Feeling

Yeah yeah, I know, they joined last December when the article  was first published.  Late to the party much?  Don’t they know all the good hor d’oeuvres get eaten up within the first 1/2 hour?  That’s just common sense, folks.

Nevertheless, the article was brought to the surface again recently via a tweet by that Sneaky Cuban, Mark.  You know, maybe that old quote from Frazier applies to me more than I think:

Are you saying that I’m redundant?  That I repeat myself?  That I say things over and over?

I get it.  That’s me.  I keep saying it over and over again because it seriously rubs me the wrong way, but Mark Cuban funds trolls.  There’s no other way to look at this.  So for him to tweet this article is, how you say, ironic.  Dontcha think?

Anyway, onward and upward with some quotes:

Friedland isn’t sure how word of the settlement leaked to Troll Town, but he says that after he paid the fee, he was inundated with infringement letters from trolls.

I’ll tell you how it was leaked:  the trolls are networked.  They communicate.  Hell, for all we know they hold Illuminati-esque meetings once a month in a bunker in Lucerne, Switzerland with the sole purpose of formulating coordinated attacks.  Here’s a tip to Deep Pockets (that’s you, troll targets):  Your jets fly there too.

In other words, if that’s too subtle for you, why don’t you guys do the same thing?  Coordinate a response.  It looks like some of you did in this case by filing an amicus  brief or two, but seriously?  That all you got?

Open up your wallets, find a bank somewhere (I know!  I know!  Make it Switzerland, since you’re already there!), get an account, and FUND A MASS DEFENSE.  The only thing evil people understand are lawyers, guns, and money.  You have two out of the three, and that ain’t bad.  In fact, it’s enough.  Get some lawyers and some money, and you won’t even need the guns.

This really, truly isn’t rocket science.  We don’t need Leonard and Sheldon to help us here.  (As an aside, I cannot believe it took me so long to give Big Bang Theory a try.  That show is the Soft Kitty’s meow!) We just need a few big companies to pony up some money, let a few others buy in at whatever price point they can, and go to war with these trolls every.single.time. they sue you.  Make them hurt. Bleed them dry.  That’s what they’re trying to do to you, no?  So sleep with the enemy for a night or two for the sole purpose of getting back at your ex.  Wait, what?  For the sole purpose of beating a bigger enemy, that’s what I meant to say.  It may feel slimy, you may not like yourself in the morning, but it has the huge potential to work.

You can talk patent reform in general, software patent reform in particular, and those are excellent conversations to have.  You can go after invalidation via Prior Art searches.  You don’t abandon trying to fix the system; it’s broken and needs to be eliminated an overhaul at the very least.  But in the meantime, you can’t just tweet about it and complain.  How about some action?

Finally:

…Saving High-Tech Innovators From Egregious Legal Disputes (or SHIELD) Act, that would force NPEs to pay defendants’ legal costs if a judge determines that a patent lawsuit didn’t have a reasonable chance of succeeding.

I’m not a lawyer (though I do watch one on TV), but can’t judges assess court costs to the loser without there being a specific law that says they have to?  I mean, not that the SHIELD act is dumb, but is it necessary when, if judges would grow a pair do the right thing, we wouldn’t need it?

As I’ve said before (see Frazier quote…here I go again) this is all about money.  It’s about a business model that the patent system currently allows, if not outright encourages.  The way to beat the bully is to not back down.  How much money are the targets, big and small, spending on payola?  Has it stopped the lawsuits?  No.  If you feed the trolls, they come back.  That’s, like, what we all learned in Kindergarten when our Moms wouldn’t let us feed that poor sad little dog that showed up on the doorstep one night:  If you feed it, it will stay and since you already have a hamster, two goldfish, a chameleon, and three cats we cannot afford to keep this little dog.

Or something like that.

The problem isn’t going away and it isn’t getting better.  Isn’t it time for a new approach?

Just sayin’,

IPTT