Choose To Chance The Rapids, Dare To Dance The Tide

No matter how I feel about his policy not to sell on iTunes, and I feel fairly strongly about it, you gotta love Garth Brooks.  Or at least the 58 bagillion people at the ACM Awards this past Sunday night do.

So.  Let’s just come right out with my point…the “podcasting patent” is no more.  I’m not quite sure how to feel about it because I never really saw Personal Audio as a troll (as evidenced here and here).  Why?  Well, chiefly because the company’s owner actually patented something himself rather than buying a patent on the open market for the sole purposes of extorting payments from (alleged) infringers, or, worse, purporting to be “inventor friendly” and convincing people to “innovate” for him and then monetizing whatever crap he can manage to patent out of the process.  You know, like Intellectual Ventures does.  Further, Mr. Logan spent his own money trying to commercialize the idea, something a troll would never do because the idea isn’t to add value of any kind, it’s to add volume to their wallets.

IP Troll Tracker

Joe Mullin puts it this way:

The history of Personal Audio dates to the late 1990s, when Jim Logan created a company seeking to create a kind of proto-iPod digital music player. But his company flopped. Years later, Logan turned to lawsuits to collect money from those investments. He sued companies over both the “episodic content” patent, as well as a separate patent, which Logan and his lawyers said covered playlists, that wrung verdicts or settlements from Samsung and Apple.

I’m not inside Mr. Logan’s head, but I’m imagining that it was less “turning to lawsuits to collect money from investments” as it was “Daaaang, those dudes are doing what I tried to do, and I even paid to patented the idea, and I think I’m owed something for my trailblazing.”  I love you anyway Joe, even though I disagree with you on this.

But as I said in prior posts on this topic, the issue for me in this particular case was never “should the patent have been issued”, it was “the patent was issued and I felt he had a right to assert it”.  Plus, I don’t have any first-hand knowledge that his tactics in trying to get licenses was trollish-like.  We’d know if it was, if anyone who received such a letter would be willing to upload it to That Patent Tool.  (HUGE HINT. PLEASE TAKE IT.)

I feel a little sheepish that it was EFF that took the patent down because I like those guys.  I was a total and complete bumbling idiot fangirl when I met Julie Samuels in person that one time.  I know, she’s not there anymore but she was when I met her and went all Kristen Bell and a Sloth.  In my mind, of course.

What would have saved us all this heartache would be if the USPTO actually did a better job of vetting patent applications and quit issuing stupid ones.  But there again, I’m not even sure this one qualifies as stupid, though the cases of prior art would seem that it was, at least in part, not non-obvious.  <— Double negative, FTW.  You’re welcome, Mrs. Fritchy my Junior English teacher.

Mr. Logan, through Personal Audio, chose to chance the rapids.  He patented an idea and tried to use it in a product in the market place using his own money, and then made an effort to capitalize when technology brought forth the right tools to make it all work.

And because I am incapable of not completing my lyric reference, he didn’t sit along the shoreline and say he was satisfied, he danced the tide until the music was stopped.

I had to get it out, y’all and now feel as though my next post must have quadruple the snark to offset the maudlin tone of this one!

JustSayin_small_New

IPTT

{Oh no you didn’t picture found here.}

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Trolls Set Their Beady Little Eyes On A Couple Of New Targets

Tech patents have been the trolls’ bailiwick for a long time now and don’t you think they’re getting a little sick of the same ol’, same ol’?  I mean, even trolls get bored sometimes and need to spice things up. Plus, the tech industry fights itself often enough that the trolls don’t really need to stoke that fire anymore.  (Hello, smart phone patent wars spaghetti graph.)

What’s the next ambulance to chase?  Meghana Keshavan  and Jay Nuttall seems to think that it’s Big Pharma, and I agree.  They actually say “life sciences”, which includes more than just pharmaceutical companies, but I think pharma will be part of the crowd.  So who’s doing the hitting?  You’ll see a lot of familiar faces on this list:

The recent Steptoe paper, titled “The Patent Trolls Are Coming… To Medtech,” outlines what it views the most egregiously trollish NPEs in the life sciences space. These include Acacia Research Corp., WiLan Inc., Intellectual Ventures Inc., IPNav, My Health Inc. and DE Partners Golden Rule LLC.

Do you mean to tell me that the life sciences industry sees Intellectual Ventures and IPNav as patent trolls?  Will wonders never cease.

The article upon which Mehgana Keshavan based her write-up is found here, and it should be required reading for a number of reasons:

1. The side-bar box on Page four provides a list of secret weapons used by trolls.  The first one is key: “Trolls don’t care what you think.”  Some of them even encourage you to think of them as thugs.  Not that I’m talking about anyone specifically like Erich Spangenberg because I’m totally not even though I linked to his article and posted his picture.  Make no association between those two things.

spangenberg_thug

 2.  He correctly points out on page 3 that trolls follow the money.  That’s why they went with tech first.  Once that’s played out, they’ll head to the next big thing: biomedical devices and pharmaceuticals. Then I think they’ll head to oil, but we’ll get to that.

3.  Jay says on page 4 that one way to anti-troll yourself is to be a strong defendant.  How do you be a strong defendant?  He has his ways, but I say one way is to know how the trolls have asserted their patents in the past.  You can get that information by looking it up on PACER, or paying the likes of Lex Machina or RPX to provide it for you.  That will tell you where they’ve already litigated.  Or, you can encourage demand letter recipients to enter them in That Patent Tool.  The sooner we start tracking pre-litigation movement on these guys, the bigger our advantage will be!

It’s great to see a law firm partner willing to step out, similar to the way Goodwin | Procter did with their Guide to NPE Litigation.  Steptoe & Johnson LLP is throwing their hat in the ring with this paper, and they hit the mark.  We’ve also had Intellectual Ventures threatened with getting the Jones Day-lights beaten out of them.  I think it’s cool that firms are taking the problem on rather than just playing to the side that will pay them the most.  It’s a start, considering that lawyers, after all, always the win no matter what.

imalawyer

No shame in my game. I {heart} TMZ.

There are lots of reasons why biomedical and other life sciences companies will be patent troll targets, no question. But I think now, like I did then, that oil companies will have a target on their back as well.  Why?  Let’s spell it out:

  • When the price of oil goes lower, companies invest fewer resources in trying to get it out of the ground because their profit margins are directly related.  So they turn more to technology to help, rather than roughneck boots on the ground, which are more expensive.  This technology results in patents, and patents make them vulnerable to trolls.
  • Big Oil is increasingly driven by software.  They use it to analyze their tool usage and get equipment out of the ground before it hits the MTBF (Mean Time Between Failures) hour mark, they use it to price jobs, they use it to predict where the next big find will be, they use it create specialty invoicing systems…lots of things.  The Alice decision hurt the trolls’ ability to beat people up with software patents, but the decision wasn’t the “kill all software patents forever” edict some hoped it would be.  Since trolls seem to think they can apply spurious patents to software of all kinds, this is a hole they could worm through.
  • Seeing the way other industries have been hit, they have started buying up patents, possibly as a defensive move as I pointed out in the Q4 2013 Quarterly Troll Review.

oil-gas-industry_target

It’s hard to fully predict where the trolls will go.  Did anyone see patent litigation as the next big thing, once actual ambulance chasing went out of vogue, and then tort reform killed the dust docket?  Problably not.  But there’s one thing we can predict with 100% accuracy:

Trolls will go somewhere.  They always do.

JustSayin_small_New

IPTT

{Harvey Levin image found here. Erich’s picture courtesy of #thuglife. Cool silhouette image of oil wells 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.}

Interview With An Inventor, Part IV

When last we left our inventor hero, he had answered all but two of my original 10 questions.  Question nine is really the heart of the matter to me in some ways.  As we all know, there’s not a definitive way to decide if a company is a patent troll, just like there’s no one right way to decide if an inventor is just out to stick it to the big guy or wants his just desserts for a lot of hard work.  This question helps with that.

And finally, I wanted to address all this governmental ballyhoo associated with patent troll legislation.  Not.a.fan.  But let’s see what our inventor says, shall we?

Here are the final two questions:

9.  How much time and effort do you put in to determining if infringement actually has taken place prior to filing suit/sending a demand letter? What resources do you use, meaning do you try and reverse-engineer products or technologies to see if competitors are infringing?  What’s your due diligence process, in other words?

10.  What are your feelings about the recent failure of the Senate to pass a patent reform bill? What would you like to see in a bill?

*******************************************

9.  How much time and effort do you put in to determining if infringement actually has taken place prior to filing suit/sending a demand letter? What resources do you use, meaning do you try and reverse-engineer products or technologies to see if competitors are infringing?  What’s your due diligence process, in other words?

The standard for sending someone a letter vs starting a lawsuit against them is quite different.  In both instances however I make it a mission to make sure that I am extremely confident that the target is using the patent in question.  I think it kills your credibility when you make accusations that are not substantiated, or your proof looks very thin or unreliable. 

Furthermore I can tell you from extensive interactions that no reputable litigation attorney on the planet is going to help you with a case on contingency unless they are 100% sold in their own mind on the merits.  Patent cases are just too expensive to make mistakes so counsel (that I deal with anyway) tend to be very discriminating.  Again I’m sure there are people out there gaming the system but I think they are outliers and can be dealt with conventional bad faith rules/tools.

The cost of ascertaining may be simple in some cases where my patent covers something that I can readily buy and assess without too much effort. In some instances I cannot get access to a real product because it is only distributed through specific channels, or infringement is impossible to determine without “insider” information because the product is relatively opaque. So we have to rely on indirect information such as user guides, instruction manuals, and similar technical literature from the company.  Generally speaking though we try to directly analyze, test the item in question.  In some instances we have had to resort to an expert to fill in some gap in data that we can’t seem to solve in some other way.

Even when we do this, sometimes innocent mistakes do occur. We find that someone has stopped selling the product for example, or that the literature does not correctly describe their product/service.

IPTT Comments:  Your point about lack of reliable proof is a good one, and that’s one of the problems with demand letters v. actual suits.  Agree completely that the standards are different, and that’s what allows the trolls to troll.  Sending a demand letter, you’re not legally bound (currently) to provide much more than idle threats.  But what so many people don’t realize, and the trolls count on, is that you are not obligated to respond to a demand letter.  Instead, you should go look on That Patent Tool and see if anyone else has received a similar letter on the same or a similar patent and get in touch with them.  Shameless self-promotion, I HAZ IT.

10.  What are your feelings about the recent failure of the Senate to pass a patent reform bill? What would you like to see in a bill?

As you can imagine I am not terribly upset that the bill failed because I think it was overly partisan and biased heavily against small inventors.  What I would like to see is a return to the prior “rational” environment where technical and business persons would exchange information freely about patents, products, licensing demands, etc., over the course of several months without automatically triggering a lawsuit.    The worst decision – in terms of its impact in the the patent world – was the Medimmune decision, which handed a victory to large patent defense firms, because it meant that they were now able to file a lawsuit against the patent owner pretty much anytime the latter sent a letter that requested a serious discussion about taking a license.  This opinion absolutely destroyed all the typical pre-lawsuit discussions that used to occur between parties. Patent lawsuits were rare because the interested parties had all the time in the world to discuss/argue the merits of the patents, and only when that process failed did a lawsuit (sometimes) occur.

Nowadays patent owners know there is no point in sending a letter to a company, because some underemployed large firm attorney looking for another payday will immediately initiate a lawsuit in some remote region against that patent owner to try and gain an advantage.  As a result of course now patent owners simply file their own lawsuits first to preempt the defendants’ filings.  The patent world has become a sue first negotiate later atmosphere.  The Medimmune decision is effectively the patent litigators perpetual employment act.

Imagine what would happen now if they had passed the “patent owner pays” provision!  It would be like throwing gasoline on a fire because defense counsel would know not only can they start their own lawsuits, they are guaranteed payment at the end.

IMO any new bill should include a provision that substantially tightens the requirements for initiating and filing a declaratory judgement against the patent owner and thus eliminates the incentive to engage in lawsuits to settle disputes.  There should be a real and verifiable threat from the patent owner to imminently sue the company on a specific patent, product, etc. – in other words, use the same standard that is being proposed to be imposed on patent owners initiating an infringement lawsuit.  This is why I say the majority of the provisions are one-sided and do not account for protecting patent owner rights.

Court rooms, judges and jurors are inefficient mechanisms for resolving the merits of a dispute. They should literally be the forum of last resort and restoring the prior balance would eliminate 50% or more of all lawsuits.  You can compare the number of patent filings in 2005-2007 and then compare 2008-2010 and see readily what effect the Medimmune decision had on the patent world. It blew up everything.

*************************************

The patent world has become a sue first negotiate later atmosphere.  

and

The Medimmune decision is effectively the patent litigators perpetual employment act.

Those are gold quotes, my friend.  And both destined to become blog topics at some point.

Thank you a million times over to my favorite inventor for taking the time to answer these questions and provide insight into “the other side”.  I like getting a different perspective now and then, even if, and especially if, I don’t agree with all of it.   That’s how one grows and learns, by seeking out the opposite of what they think is true.

Man, I better think of something snarky and off-color here, that sentence up there was almost like I’m…human or something.  Blerg.

This concludes this series.  Next up will be Interview With a Patent Attorney, one from both sides.  I had hoped that we’d get a fisticuffs going when Article One Partners did something similar on a webinar a summer ago but alas, it didn’t come to fruition.  Maybe this time?  One can hope…

JustSayin_small_New

IPTT

Something Awesome This Way Comes (on September 18th)!

For my last post, I was complaining about Adam Carolla and am sad to report that he has neither answered my question nor taken me to dinner.  Thanks for nothing, you crybaby, you!  I still think I’m on the right side of that one, ya’ll.  He’s just being stupid.

crybaby_02

Not lost on me, the photo is of a little girl…

 

Next up: you all remember your 9th grade English class and having to read Ray Bradbury, don’t you?  In a twisted take on the title (because alliteration, for the win!), today’s topic (!!) involves something very near and dear to me, which is exposing patent trolling behavior for the nastiness that it is.  There are a myriad of ways to do that, but the one I chose was to collect and report on demand letters, those pesky, threatening diatribes sent out en mass by companies who buy up nefarious and/or never-should-have-been-issued patents and set about antagonizing people into paying a license for them or face scary-expensive litigation.

In February of a couple of years ago, I was driving to The Woodlands, TX to pick up a check for some consulting work I was doing at the time and whilst sitting in my Ford F-150 it struck me:  If I can put up a website for people to enter in their demand letters, maybe we can build a database of information about who these trolls are, how and where they operate, what they’re asking for, and who they’re sending letters to.  This is pre-litigation information, and therefore it’s not obtainable through public resources like actual lawsuit information is.  If people would come and input information, we could get out ahead of litigation and, possibly, prevent it.

How?  Well, my thinking was (and remains) that if I provide a way for people to discuss these letters anonymously, maybe they can get together and form a proper defense.  I want That Patent Tool to be the first place someone goes when they receive a demand letter, a place they can do a search and find out if their patent has been at play before, see who else got a letter, and maybe log into the forum and start poking around.  See, the thing is, these guys work on anonymity and cloaking and being all secretive.  If I can get people to enter in information and expose, at the very least, the patents they’re threatening over and the amounts they’re asking for, that might clue others in.  Then, everyone who’s been sent a letter can stand up and say “Um, no.  We don’t think so.  You’re going to have to take us all to court if you want to see a dime.”

Imagine.  Imagine what that would do to the trolling business model.  They count heavily on being able to sneak in licensing requests that are either low enough for Mom & Pop to shell out for with a simple-interest loan from rich Uncle Bob, or just below the litigation cost threshold so bigger companies will sign over a check and have done with it.  They’re not stupid, these guys.

But if we can expose this model and get people searching a database and talking about it, we can force the trolls to take it to litigation every single time.  I’m no mathematician, but that’s gotta put a hurtin’ on a war chest, right?

So I created That Patent Tool in less than a week of coding.  I spent a day finding proper hosting and buying the domain and then six days and nights coding.  I may or may not have gone that entire week without showering and now you can never say I’m not transparent and authentic because that right there is keeping it real, folks.  I don’t even remember if I ate, it’s all a blur.  I know I busted out the rally cap a few times, because nothing says “I’m a legit coder” than wearing your husband’s baseball cap backwards and taking a selfie.

RallyCapCropped

Fun facts: This is one of two known selfies in existence because I’m neither a 12 yr old girl nor a Hollywood starlet (obviously), and oh look! Crumbs on my shirt, which means I ate at least *something* that week.  And now you know.

Anyway, here we are two-plus years later and what has the USPTO gone and done?  Set up a webinar to help business owners find relief from patent litigation.  It’s all right here in their flyer.  And if you’ll look closely on their list of resources for people who’ve been sued, you will find a familiar link.

The webinar takes place this Thursday, September 18th from noon-1:00 Eastern.  Login details in the flyer linked above.

I plan to attend and would encourage anyone and everyone to spread the word and join in!  If I can find a way to hack into the system and make myself presenter, I may even give some advice in person.  Just kidding, Uncle Sam!!  I’m not an attorney so I can’t give advice.

The hacking thing might happen though…

JustSayin_small_New

IPTT

{Hilarious crying baby photo taken by Jill “Like Candy From A Baby” Greenberg.  Check her out, she’s awesome.  Selfie by me because that’s what a selfie is.}

I’ve Been Cheating On You, Patent Troll Haters

Maybe that’s a slight over-exaggeration.  Which, what is that anyway?  One can exaggerate, so does “over” exaggerate mean you’re exaggerating your exaggeration?  See?  This is why you shouldn’t give people like me a blog.

My point is, I’ve been talking to the “other side” for a while now, sort of clandestinely behind the scenes.  Which is what clandestine means, for those of you who went to school here.  I’ve spoken to a few inventors who’ve been screaming VERY LOUDLY IN LARGE SHOUTY CAPITALS AND NOW YOU KNOW WHAT KIND OF BOOKS I READ about how patent reform will do more to hurt them than it will to tame the patent troll problem which, by the way, they claim doesn’t exist.  How’s that for fuzzy logic?

Don’t think for one minute that I’m going soft on trolls because that will never happen.  But I don’t think we can argue that the landscape hasn’t changed over the course of the last, say, three years.  And by “changed” let me just enumerate a few goings on in the patent litigation realm:

  1. The majors are getting smacked down with increasing frequency.  There are a few very well known trolls who’ve run up against some litigious resistance.  IV just lost a  big round in court.  MPHJ, despite suing the FTC (stifles laughter), has lost in NY regarding their demand letter tactics.
  2. States, even states like Kentucky (you’re welcome, Drew) are coming up with fairly decent ways to curtail the sending of demand letters.  See NY example in #1.
  3. IP Nav is trying to go legit by helping David Ditto fend off Goliath 1-800-Contacts.  One reason people try to switch sides is that they think they’ve done something wrong, and been on the wrong side and now they’ve seen the light and have switched. Other times, they just see an opportunity to make themselves look good in the press and so they take it.  I’m not sure which this is with IP Nav, but I get a feeling that Erich is tired of being the thug and wants a little love.  Either way, it was a telling move.
  4. The issue has gotten attention at the Federal level, which means that whether or not real action takes place (my opinion: it won’t come from legislation if it does) there’s much more visibility to the tactics of the bad players in the industry.  Just like roaches when you turn on the light in the summer camp cabin, patent trolls are scrambling to find a place to hide as a result of the exposure.

Back to what I’ve been doing a lot lately, which is talking to inventors. I like to think of myself as anti patent troll and I am.  I do not now and never have liked the underhanded bully tactics they use in their demand letters and I don’t like how they co-opt old, worthless patents and try to dummy up some value out of them, especially when said patents should never have been issued in the first place.

But as the abbreviated list above points out, things are changing.  So is it time to focus on other issues in the patent space?  Like accessibility to ideas if you’re an operating company and accessibility to buyers if you’re an inventor/patent holder?  Maybe, I dunno, a Match.com for IP?

As I wrote in the Backgrounder, inventors face a legitimate problem of how to get exposure to their ideas (nee’, patents) at the right levels.  They’re in a tough spot sometimes, and I see how they would turn to the nasty folks to get help.  Likewise, you could say that larger companies, operating companies, may be more than willing to license technology that they need but how do they know it’s out there?  They can commission a Prior Art search, and I know that many do because Article One Partners has a good thing going.  It’s a great start and a great market-based solution to the problem that gets us part of the way there.

What I hear when I talk to inventors is that they just want people to listen.  They want a forum for their ideas. They’re sick and tired of companies co-opting their stuff and shutting down negotiations and all but forcing them to go the litigation/PAE/troll route to get any kind of relief.  Inventors are a special breed of individual.  They live and breath this stuff and just want what’s coming to them.

BackToTheFuture

 

I am scheduling an interview with my favorite inventor (assuming he agrees, he doesn’t know yet because I haven’t asked him because I’m chicken I’ve been working a lot) and plan to address his take on the troll issue out in the light of day, instead of just whispering behind the scenes in email.  My goal here on IP Troll Tracker has always been to track the shenanigans and ballyhoo of the trolls in an effort to expose them, but as I say on the intro page at That Patent Tool, I also want to be a part of the solution.

Education about the “other side” of the troll issue, the inventors, is part of that for me.

JustSayin_small_New

IPTT

{Awesome 80’s movie image found here.}

 

Demand Letters And The Entry (Or Not) Of Such Into A Repository

Almost a year ago, because President Obama has no regard for my schedule, I launched an online patent assertion/demand letter repository called That Patent Tool.  It’s been well received, and lots of people, really really cool people to boot, have signed up.  There’s data in the system, and for that I am most humbly grateful!

I had a discussion with Julie Samuels just before she left EFF.  I have to admit that I was kind of upset when I saw that they came out with trollingeffects.org because, like the Highlander, I was thinking “There can be only one.”  THE WORLD CANNOT HANDLE TWO DEMAND LETTER REPOSITORIES, PEOPLE!!  I think I may have even given the folks at the Application Developer’s Alliance some {ahem} feedback for throwing their weight behind Trolling Effects rather than behind me.  Ah, the insecurity foibles of youth.  Sorry, ADA!!

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Only Julie’s point, which she made ever so calmly and with much less drama than I myself am prone to, was “Um, no I don’t think so.  If people are willing to put the information in one repository, that almost makes them more likely to put it in another.”  Well Bob’s your uncle, I never thought of it that way.

But you know what?  People are not flocking to enter demand letter information at nearly the rate either of us expected.  I mean, the President himself said we needed a Demand Letter Registry.  Right there out in the open, he said that.   The President said you should do it and yet hordes of people have consistently not done it which means someone’s getting sent to bed without supper tonight.

As serendipity would have it, this article by Megan M. La Belle was posted on Twitter by @PatentWire  It includes a lot of things I personally hadn’t thought about in terms of the effects of settlement (either through the use of demand letters or settlements after a lawsuit has been filed) on the patent industry in general.  While the entire article is worth a full and focused read, I think the very best summary of the issue is right at the beginning:

Not only are patent settlements frequently coerced, they also come at the expense of judicial precedent, which is particularly valuable in the patent context since an invalidity judgment estops the patentee from ever asserting that patent again.18 A related concern is that patent settlements may achieve peace between the parties, but not justice. When patent litigants settle, the accused infringer usually agrees to pay the patent owner, stipulates to the patent’s validity, and promises not to challenge the patent in the future.19 Even assuming such an agreement is in the best interests of the parties, it may undermine the public·s interest by allowing a potentially invalid patent to remain intact.20

Note:  footnotes are left in the quote, but you’ll need to refer to the original article, linked above, to view them.

Let’s pull out a quote from a quote: “A related concern is that patent settlements may achieve peace between the parties, but not justice.”  Peace is what demand letters are designed to achieve, if only for the asserter and through a very Reagan-esque “through strength” approach.  The trolls don’t want justice, they want money, they want their toll.  They know that going to trial is not only expensive for them as well as the defendant, but it means the potential for loss, either on invalidity or non-infringement.   By exposing what they are asking for and who they’re asking it of, other recipients can get a lock on how to respond.  This is the primary goal of collecting the letters: exposure.

What the article seems to indicate is that in some cases, going to trial (or “adjudicating”, because that’s a much fancier word) is better for the public good because it will remove bad patents from the system, the data indicating that when patent suits go to trial, invalidity is a very likely outcome.  I won’t go into all the details of which cases the author feels are better going to trial vs. settling because that would be plagiarism.

What I’d like to touch on is that those companies in the Patent Troll Fighter Heroes Gallery believe in this mantra, that it is better to fight (litigate) than settle with the trolls.  To me and to them, it is about the moral issue and how you should never not ever let the bully win.  According to the article, there is empirical data to back that approach up, suggesting that not settling is the better way to both justice and more effective patents.  With all the talk about “bad patents” out there, and there are many (hint: mostly software), I wonder if part of the reason is that so few patent cases actually get litigated?

Here’s another issue with demand letters and settlements:

Another reason scholars have denounced settlement is because it is shrouded in secrecy.73 Unlike adjudication, the outcome of which is available to the general public, settlements are usually confidential, so that only the parties know the terms of the agreement.74

And again, this is why I and others have created an online demand letter repository.  It’s a way to de-shroud settlement requests, which is what a demand letter is, if we are wanting to use the most euphemistic term possible.  I do realize that, in order to avoid declaratory judgment or venue issues, many trolls no longer put all the information into a demand letter that they used to.  But a surprising amount of trolls still do, as you can tell by both my data and EFF’s data.

donotfeedthetrolls

I’m working on a post about why recipients are reticent to upload letters, because I’ve spoken with a lot of people about their fears which are frequently summed up in two words:  “outside counsel”.  As in, my outside counsel won’t let me.  We’ll get to that faulty lawyer logic in due time.  The most common response people give so far is the age-old “What’s in it for me?”

I’ve been looking since the beginning for ways to incentivize or entice or coerce or somehow get people to provide this data.  Recognizing that settlement may not always  be in the public’s best interest in patent litigation, when it comes to dealing with trolls I think that exposure of those “settlement” demand letters actually is in the public’s best interest.

Now all I have to do is convince the rest of you…

 

JustSayin_small_New

IPTT

{Meme found here. Incredibly awesome troll sign found here.}