…And For Our Next Patent, A Portal To Narnia!

Twitter debates are my favorite, and I fell sideways into one last week, as opposed to starting one jumping in with both feet like I normally do.   It began with a simple tweet from Mike Masnick (of TechDirt):

OriginalTweet_Thoth

It was in reference to a long, tall, beast of a tube that will put space craft and their inhabitants closer to orbit before launch, being built by a company named Thoth.  Thoth is a Canadian company whose website is not thoth.com, but thothx.com.  Interesting, because that’s kind of like the suffix of another space company.

IP Troll Tracker

Anyway, all I did (she said innocently, while batting her eyes) is retweet it which caught the attention of my colleague Nick Gross.  The reply tweets that ensued are referenced below, and as you can see it escalated quickly:

ReplyTweets_Thoth

I’ll not post the rest of the exchange because male posturing ensued and we all know that means denigrating each other’s…colleges.  There was jail time mentioned, federal crimes, it got kinda ugly and all over what?  The fact that companies sometimes patent stuff they never intend to build.

Why might a company do that, you ask?  Well, there’s the option that Intellectual Ventures takes, which is to patent stuff so they can go sue people.  I wondered to myself if that’s what Thoth had in mind…maybe they should patent their technology because Space Tube Elevator Lift Kit technology is sure to be a hot thing these days and they had better protect their “innovation” lest someone beat them to the atmosphere.

I expected to come up with a goose egg when I search for competition on this particular space race, but low and behold it seems that building a a giant corrugated tube up to the sky is, indeed, a “thing”, as this Kickstarter intimates.  Then there’s this page, which is straight out of 1990, but talks nonetheless about a space elevator.  There were a few others, enough to make me think that maybe this was a defensive patenting move.

Maybe it’s a licensing play?  Patent the technology, never intending to build such an unwieldy beast, and just license it to others to fund your existing products (none of which, by the way, are on anywhere near this scale)?

The point of the argument on Twitter was that Thoth did indeed secure funding to build, though strangely the article linked by @JNGross only talks about how much it would cost, not the source of the money, so that meant that they weren’t just another company patenting something for the other reasons I listed above. And OK, you have a point there, but seriously?  You’re going to blow someone else’s $5-10 Billion on a 30% reduction in rocket fuel costs and possible gains in efficiency?

I’m not a rocket scientist because I didn’t go to CalTech or MIT, but good golly, Miss Molly…that’s a pretty low ROI.

JustSayin_small_New

IPTT

{Church lady meme found here, and obviously ©SNL}

The Kind Of Behavior That Only Cousins In Kentucky Should Get Away With

I would apologize to Kentuckians but, as I’ve mentioned before, I lived there for a time during my formative years so I’m allowed to pick on my one-time home state.  Also?  Drew Curtis, Patent Troll Slayer, for Governor.  Vote, y’all.

In another alarming chapter of the “saved from a troll by a troll” play book, Jump Rope misses the rope itself and jumps straight into bed with Erich Spangenberg.  Like Ditto before him, Mr. Braxton of Jump Rope found himself in the unfortunate position of having to take investment money from one of the founders of the business model that put his company in jeopardy to begin with.

It seems a little “Munchausen by proxy”-ish to create a problem and then try to rescue people from it, Erich.  It’s like marrying your cousin, which is only allowed, if I’m not mistaken, in Kentucky.

IP Troll Tracker

In reading a little more background to the story, it looks a lot like personality comes into play here, on the Smart Options side (Smart Options is the company that sued Mr. Braxton and Jump Rope).  It looks to me like what you have is a very small man, in mind if not in physical stature, who didn’t like that Braxton wouldn’t play.

“It’s not clear-cut whether our patents cover what Peter Braxton is doing,” [the attorney for Smart Options] said. “What’s clear-cut is that he chose to say ‘no’ to more than half a dozen reasonable relationships we laid out for him.”

First of all, “reasonable” is in the eye of the beholder so don’t make it out like you’re being generous.  Secondarily, as Braxton pointed out,

But why should Mr. Braxton strike any deal with Smart Options, given that a judge had found that his software didn’t infringe its patent?

(Emphasis mine.)  The answer is because, as we’ve seen over and over again with patent trolls, they want you to pay up (or just disappear, in another sick and twisted plot theme I’ll be exploring in the coming weeks) and won’t stop harassing you until you do.

I wonder what happens in a person’s life as children that they feel the need to throw their weight around as adults? What galls me the most is this white hat status that the likes of IP Nav are trying to throw around.

 

Here he comes to save the daaaayyy!!

Here he comes to save the daaaayyy!!

Whatever.  It’s opportunistic and you know it.  As Mike Masnick at TechDirt puts it:

The story tries to play this out like a “patent troll done good,” but it’s horrifying. It’s one patent troll beating up on a startup, and then allowing a second one to come in and vulture up the leftovers. It’s certainly not good for innovation in any way.

I feel for Mr. Braxton and for Kate Endress of Ditto who were so backed into a corner that they had to choose from two really bad options:  shutter the company or deal with the devil.

I’m not as convinced as Mike is that patent reform at the national level will take care of the problem without creating a bigger mess down the road.  But there has to be a better way than what just happened here.

JustSayin_small_New

IPTT

{Mullet-headed man meme found here.  Mighty Mouse image found, inexplicably, here. Base for Mighty Mouse/Spangenberg morph 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.}

On The Definition Of A ‘Patent Troll’: Let’s Get Personal Once Again

Despite this review, I actually love Love Actually.  Mostly because of the wicked moves Hugh Grant pulls of to the Pointer Sisters, but also because of the way he defends Natalie, who’s ex evidently felt she was a little thick in the middle:

Oooooo, would we call her chubby?

The point is, of course, that he loves her and doesn’t see her that way, even though his staff and others totally do.

Hugh Grant Love Actually Dance

“I’ll take you down, I’ll take you down… where no one’s ever been before!”

 

I don’t love Jim Logan (no offense, but I’m a one man woman!) or Personal Audio.  But what I do feel is the need to break from my buddies over at EFF and examine once again if they, and by “they” I mean Jim, can truly and rightly be labeled a troll.

After suffering  through about 25 million ads sliding in and out at random locations (and the alliterative title), I was able to get through this article at The Economist.  I also read the comments, which is usually where the most fun is.  Also at Techdirt. If you don’t read the comments there then you’re missing 95% of the story.

The article talks about the most outspoken recipient of Mr. Logan’s attention, one Adam Carolla.  If I were Marc Maron, I would be a little irked that his fight is getting more play than mine, but whatever.  I don’t have a beef with Adam at all, and I’m sure he’s right irritated at having to deal with a lawsuit.  But let’s take a look at what we can really call a “troll”, because I don’t think the definition holds water in this situation.

From the article:

his company, ACE Broadcasting Network,being sued a year ago by Personal Audio, a non-practicing patentholding entity (a “patent troll”)

Hold on just a second.  I am at this very moment listening to an NPR podcast (how ironic) where they are playing a cassette tape of what they called the “very first podcast”.  If one of the main definitions of a patent troll is that they are non-practicing entities who don’t produce anything and simply sue over patents, and Jim Logan produced a cassette tape podcast, then how does that not immediately negate at least that part of the troll litmus test?

Now, Mr. Logan’s behavior should be analyzed because as I’ve said before and others have too, you have to look at a pattern of behavior to determine if someone is a troll.  It’s really not a hard and fast definition no matter how much my OCD brain would like for it to be.  The fact of the matter is that Personal Audio is indeed going around suing a lot of people.   Some have settled/taken a license and some are barking about it.  LOUDLY.  (Adam, I’m looking at you.)

While the suit does not detail a specific financial demand, Mr Carolla tells Babbage that he was asked for $3m, a sum he finds laughable based on his network’s revenue (which he does not disclose).

adamcarolla

Your season of Celebrity Apprentice was nuts. Aubrey O’Day? Really?

 

So, the suit didn’t detail a specific demand but Adam was asked for $3M.  That’s…inconsistent.  But the second half of that statement speaks to what I said in a previous post about this:

If Jim Logan had put it all out there in the demand letter and made a reasonable demand for a licensing fee by realizing that Adam Carolla, for all his funny, is not going to have the same resources as an Apple or Microsoft maybe he wouldn’t be so vilified?

I don’t know what Adam’s revenues are and I don’t know what Jim would think a reasonable license fee would be.  But I think that there has to be a somewhere in the middle on this kind of thing.  You cannot argue that Jim Logan didn’t try to monetize his patent with a product when it was issued, something troll are rightly accused of, even though the author of the article tries to do just that in both the above quote and this one:

First, Personal Audio fits the definition of a “patent troll”, or an entity formed for the basis of prosecuting patent lawsuits and licensing without manufacturing products or services.

You could, however, argue that he was ahead of his time, that the technology that would have made his idea more successful hadn’t gotten there yet.

This is why Personal Audio is now saying, “Look, I invented this.  I sunk $1.6* million of my own resources into trying to make it work but the timing wasn’t right.  Now it is, and I would like a cut of what you’re doing because it piggybacks off of what I was doing and oh by the way, I patented it and I have the right to exclude you from doing it unless you pay me a license.  That’s how patenting works.”

*I had incorrectly put a $4M figure here, thank you to my friend for the correction!

{Just to interject here, my beef is with the calling of Personal Audio a troll.  Arguments about prior art on the patent or whether or not the patent should ever have been issued are not the subject here.  Those are different and good arguments and I suppose we’ll see in May what the results of the IPR filed by EFF are.}

You know what would have helped both sides in this sort of thing?  A company like idealAsset, the “match.com for IP”.  If Jim had had a repository in which to place his IP asset, a searchable database with buyers and sellers hooked into it, he might not have had to go around suing.  And if Adam’s lawyers (and other podcaster’s lawyers) had a place where they could go looking to see if there was any IP surrounding what they were trying to do, they could have been matched up, gone on a date, and checked to see if there were any sparks flying that might lead to a permanent engagement or, dare I say it, marriage.

Maybe Jim did ask for decent terms in his original demand letters (if he sent them vs. just straight up suing).  I don’t know, he hasn’t entered any of them into That Patent Tool so we can see, and neither have any of the recipients.

All I know is this is one case where I feel it necessary to channel my inner Hugh Grant/Prime Minister and say:

“Ooooo, would we call him a troll?”

JustSayin_small_New

IPTT

{Adorable Hugh Grant image found here. All business-y image of Adam Carolla found here.}

How Many Normal People Does It Take To Equal A Thug, Anyway?

From IP Nav’s comments about the recent Consumer Electronics Show, that ratio sits at about seven to one.  I always enjoy IP Nav‘s comments on things mostly because I think that Barry Leff writes them and I like him.  Never having met him in person, I do believe that he genuinely believes he’s on the right side of this debate, and I like that in a person.

Anyway, here’s a visual for you right-brainers out there:

ThugsVNormalPeople_updated

Evidently, Erich Spangenberg was unhappy that he was the only one on his side of the line up for a talk that was part of the CES Innovation Policy Summit.  Leaving aside the fact my opinion that patents do not equal innovation, it seems the summit drew a crowd, or at least the “Patent Litigation Reform: Who are You Calling a Troll?” panel did.  (For the record, the answer to the question is “You, Erich.”)

Barry’s blog post for IP Nav takes us on a trip down memory lane, because nothing holds one’s interest more than a story about how a troll became a troll.  But oops, wait just a second.  We shouldn’t call Mr. Spangenberg a troll because

He’s not uncomfortable with the term “troll,” as the term has come to mean anyone who files a patent lawsuit.

Don’t make me pull out the Harvey Specter eye roll so early on a Monday morning, please.  *sigh*

Not anyone who files a patent lawsuit is a troll.  You sound like J Nicholas Gross or Andy Pitchford now.  Further, definitely not everyone who files a patent lawsuit is a troll either, only those who behave like thugs are.  You know, like people who go after everyone and their uncle (and even the US Government, for crying out loud) because they have a crap patent that says you can’t scan and email without paying them to do it.  And oh, look!  You agree (emphasis mine):

Picking on app developers, tiny companies and sending letters with no justification is crazy—

Indeed.  But want to hear what’s even crazier?  Suing people using one of your shell companies and not even telling them what they infringed on.  (This is a good write up of those wanton antics, with a great quote from a Techdirt article on same.)  Oh, don’t throw out that tired line about it affecting declaratory judgment and venue.  What you’re trying to do is extract a settlement because taking it to court is more expensive.  That’s the troll MO, whether the troll uses base-less threatening letters or not.

One final quote from the article:

Bad behavior is not exclusively the province of patent owners.

No, it isn’t.  But it’s the province of companies like IP Nav, and there are at least seven normal people who can agree on that.

JustSayin_small_New

IPTT

An Open Letter To Martha Stewart And Eugene Kaspersky Re: Lodsys

Dear Mr. Kaspersky and Ms. Stewart,

You almost want to feel sorry for them, don’t you?  I mean, how bloodied and beat up are these Lodsys cats these days anyway, am I right?  From Joe Mullin over at Ars, we have the tale of the chicken:

Lodsys decided over the weekend to dismiss its case against Kaspersky with prejudice. Instead of facing a jury, Lodsys will slink away instead. It was an unconditional surrender.

Hello!

Even better, I woke up this morning to the whole story in your own words, Mr. Kaspersky, my favorites of which were:

The enemy is defeated, demoralized, and on the run! Churchill was right: “Never give up!” We’ve followed his advice in our fight against a particular troll. As a result the troll gave up and ran away with nothing and its tail between its legs.

tail_between_legs_Kaspersky

Defeated.  Demoralized.  On the run.

Hello!  Again!  Although I must take issue with the second adjective because how can you be “de”moralized when you have no morals to begin with, eh trolls?  But hey, I’ll forgive you that because how awesome is that picture of your team and also?  I hope you saved at least one bottle of Chivas to send to Martha.

From the “what-I’ve-been-saying-all-along” department (with acknowledgement to Techdirt), we see that Kaspersky Lab, like Todd Moore at TMSoft before you, has simply refused to roll over for the likes of these “vermin”.  That’s the only way to send a message that the bullies can’t have your lunch money, folks!

What I’m hoping these recent victories against Lodtellectual Venturesys* don’t mean is that you’ll back down, Ms. Stewart.  I watched every episode of The Apprentice: Martha Stewart and if memory serves (and it does), you don’t seem the type.  Nevertheless, there’s always the danger that, when the bully backs off one or two victims, the posse that’s been assembled to meet him at the bike racks the next afternoon and give him what-for will decide he doesn’t need it.

Rest assured, Lodsys needs and deserves the ass-whoopin’.

You’ve gone for the jugular here by filing for Declaratory Judgement on non-infringement and invalidity.  As we say in Texas, put a bullet in it.  Knock out this meager family of four piddly patents and be the hero to all the companies still in Lodsys’ path!  Don’t settle out because they’re down, go right ahead and kick ’em, no?  Crack open the can, baby!!

whoopass

I hate to say the troll tide is turning because there’s still a lot of bad going on out there.  But if we (and by “we” I mean “you”) see this one through, it’ll take a whole lotta steam out of the engine.

Just sayin’,

IPTT

*Intellectual Ventures + Lodsys = Lodtellectual Venturesys.  Try and follow along, people.

{Happless coyote image found here. Can of whoop-ass image found here, along with some decent advice.}