The Best Post on Patent Reform (Not Written By Me, I Mean)

For years now, people have been screaming for patent reform, most notably to help get rid of, or at least neuter, patent trolls.  But then as soon as that happens, we know it will be temporary because the trolls will invent “neuticals for trolls” (and patent it) and they’ll be hard at work all over again which is why I’ve never been a huge fan of letting the government fix a problem that they created to begin with.  I think the market is the best place to kick a troll’s ass and companies like Newegg are taking that to whole new levels and OMG how hard was it to write about patent reform, and an excellent blog post about it, before jumping on that bandwagon?  VERY HARD, that’s how.

whoopass IP Trolltracker

Can of Whoop Ass appearing courtesy of Newegg.

The post in question was written by one Florian Mueller and it had me hootin’ and hollerin’ and  fist pumping so hard throughout that I kid you not, my neighbor saw me through the window of my home-office and thought something was wrong, came over and rang my doorbell, set my silver labrador retriever off in a fit of barking, and cost me an hour of productivity while we all wound down.  Thanks for that, Florian.

There’s so much gold in this post I’m finding that even after sifting, my pan is full of the good stuff.  But I’ll start with this quote, because I think it’s genius:

In all those congressional hearings on patent reform that I watched, each and every politician repeated the mantra of the U.S. patent system being key to innovation and allegedly being the envy of the world, when the reality is that it’s the laughing stock of patent and industry professionals in the rest of the world.

First off, I’m not convinced that, anymore, the patent system is the key to innovation.  Why?  Because you can innovate without patents.  You can be successful, you can launch a product (with or without funding), you can win at life without a patent.  True story.

To continue the quote:

…and no one believes that U.S. juries are qualified to determine infringement and validity issues, no one has ever disagreed with me that the Federal Circuit is generally too patent-holder-friendly, and no one has ever disagreed with me that the quality of USPTO-granted patents is generally even lower than that of European patents.

Exactly.  I said the exact same thing in October of 2012 and again in December of 2013.   I’m not knocking Joey Bag-o-donuts.  I’m saying that patent law is tricky and sneaky and full of all kinds of techno-speak that finding a “jury of your peers” in that space would require visiting Stanford or Harvard or South Texas College of Law and plucking students out of the sessions in law school that deal with IP, not sending a letter in the mail to people who live within a ten mile radius of the court house in Marshall, Texas.

Courthouse_Marshall IP Trolltracker

So pretty. Too bad the shot didn’t include the ice skating rink that Samsung built. Zzzing!

Continuing, I want to put this quote on a sandwich board and wear it on Capital Hill (when it warms up, of course):

It must be said that the correlation between patents and innovation in a country is hardly a causation of patents promoting innovation, that patents increasingly serve as a substitute rather than an incentive for innovation, and that studies linking patents to innovation are often based on circular logic, considering each patent an innovation.

See statement above.  Patents NEQ Innovation.

The whole point of Mr. Mueller’s post is, after correctly identifying the problem, to point out ways to use the governmental process to fix what’s wrong.  I don’t agree with everything on his list because that would be way boring.  But I do think he’s got a couple of points that the dialogue should start addressing if we’re to solve the problem:

  1. Don’t blame it all on the trolls.  I blame a LOT on patent trolls (mostly global climate warming change because I can tell by looking that they’re the reason for all the snow this year), and I think the behavior of using patents in sneaky and underhanded ways is deplorable and I’ll keep writing about it until they’ve all gone the way of the horse and buggy.  But we can’t ignore the fact that the USPTO gave them the stick with which to beat that drum.
  2. One size does not fit all.  Different industries require different approaches to protecting intellectual property.  Realize that, and make the necessary changes to the law to account for it.
  3. Meritocracy.  So, I can’t really paraphrase what he said here because I can’t get the words to come out right.  But go read what he says in that section of his blog post, nod your head in agreement, and come back here and thank me for calling it out.  You’re welcome.

One thing I didn’t see on his list is venue reform.  As we all know, I’m not a fan of letting the government solve the problem of patent trolls per se.  To some, that’s what “patent reform” is, killing the likes of Intellectual Ventures and Uniloc, et al.  I don’t like that definition.  If we broaden it to include Florian’s list and add venue reform so that Marshall, Texas and the judges and claims construction experts and jurors who live there are taken down a notch or ten, then I’m all about that hashtag.

Creating the patents system didn’t happen overnight, and fixing it won’t happen that fast either.  Figuring out how to start the dialog that will yield the best results is half the battle, I think.

Thank you, Mr. Mueller, for articulating it so well.

JustSayin_small_New

IPTT

{Courthouse image found here.  Can of whoop-ass found on every pantry shelf in the state of Texas.}

 

 

L’Oreal “Patent Pending” Influence: Survey Says?

Yesterday, we learned that L’Oreal claims having “patent pending” on packaging influences women to buy more of their products, proving that they don’t understand patents or women.  They almost get a pass on that second one, because we don’t make it easy on men, do we?

crazy-women-bizarre-16

Anyway, maybe they didn’t claim that per se, but that’s the reason they gave for making their intellectual property lawyers file a crazy-stupid amount of patents each year.  I took their little hypothesis to the streets and graphed the results.  The data can get complicated at times, so I’ve explained each chart type for you so that the conclusion is clear (click image to load larger):

IP Troll Tracker

I have to wonder if L’Oreal did any sort of focus group study to determine if it actually mattered to real women if they were patenting their products?  Because what I knew in my heart of hearts, and what the survey results bear out, says “Nope, doesn’t matter at all.”

To recap:  you’re spending money on IP attorneys and USPTO fees and office action fees and clogging up the patent system for people with real things to patent and getting virtually nothing in return, except for a lawsuit from an attorney who thought the process was so ridiculous he quit doing it?

Awesome.

JustSayin_small_New

IPTT

{Meme image found virtually everywhere on The Internets.}

L’Oreal Understands Neither Women Nor Patents

I don’t wear much make up on a account of lazy, and the fact that, while I live in Texas now, my formative years were spent in Connecticut where girls are not taught from the age of six to slather foundation and eye shadow and mascara all over themselves before leaving the front door to retrieve the paper.  It just never became a habit for me, is what I’m saying.  But what I do do, on occasion, is color my hair at home and it’s always done using L’Oreal products because who doesn’t want to look like Heather Locklear?  I mean, if she’s worth it, certainly I am?

IP Troll Tracker

That said, I may have to abandon that ship and set sail for Camp Clairol because of the patent abomination I just read about.  According to a suit filed in New Jersey, L’Oreal decided that they’d require their IP attorneys to file a certain number of patents each year, not to promote the progress of science and useful arts, but so that customers would be persuaded to buy their products because of a “patent pending” stamp on them:

Steven Trzaska said in a complaint filed April 16 in Newark, New Jersey, that L’Oreal ordered him to apply for at least 40 patents last year to help fill a company-wide global quota of 500 applications. The company sought to post on its cosmetics packaging that the contents were “patent pending,” thus increasing their allure to consumers, according to the lawsuit.

L’Oreal?  Let me explain something to you…unless you’re a member of ChIPs or Lori Greiner, you don’t even know what a patent is, never mind what “pending” means, and how it applies to the tackle box of products you store under your bathroom sink.  Rather, you care that the boxed color will hide your grays, and that the skin products will magically erase all those summers you spent laying out on your friend Tiffany’s drive way, listening to Richard Marx and hoping one of the Carpenter boys would call so you could hang out and show off your incredible tan.  In addition to making a mockery of the patent system, you don’t even understand women.  #fail

I don’t have a problem with a cosmetics company wanting to innovate because I’m going to turn 45 pretty soon (May the 4th be with me!) and if I could make any of the crows feet around my eyes less noticeable?  Yes, please.  But taking your research and development and clogging up the USPTO with it is buffoonery.

Even as L’Oreal was pursuing quantity in patents, Trzaska claims the company had an internal initiative to improve the quality of its applications. A review by an outside organization had found “the vast majority of its inventions were of low or poor quality,” Trzaska said in the suit.

After the external review, researchers were submitting fewer pitches for potential applications, and more were getting rejected, Trzaska says. As a result, there were “urgent messages from top management” that the “global patent quotas were in danger of not being met.”

It sounds like L’Oreal IP attorneys took the external reviews to heart, yet inexplicably, the company retained the quota.  That seems…silly.  As does this:

The lawsuit claims he was fired “for his refusal to draft and file patent applications for proposed inventions which were not patentable” and for refusal to let his team members file such applications.

What?  He was fired because he refused to try and patent inventions that were not patentable. I really do hope that sentence is not part of any official legal response to Mr. Trzaska’s lawsuit because if so, someone needs to get their money back on that law degree.  And lots of someones at L’Oreal need to exam their motives…the real crime is abuse of Patent Law, not “failure to meet a quota”.

I honestly don’t know who should win this case because on the one hand, if your job is to hit a quota of patents and you don’t hit it, then the company should be able to fire you.  But on the other hand, if your company is asking you to do something hugely stupid and other people besides you have told them that and you’re just trying to follow the laws set forth by Article I, Section 8, Clause 8 of the US Constitution, should you really be able to be fired?  I very, very rarely wish I were an attorney but it would come in handy here because as a layman, I have no clue how this should end.

What I do know, however, is that L’Oreal’s policy highlights what I’ve been saying in pretty much every post.  People who want to do something will find a way to do it, law or no law.  Trolls want to extort money, so no matter how many laws you try and come up with to stop them, they’ll abuse the system again.  Here we have a case of a different kind of patent troll, a company who floods the system with applications hoping something will stick so that they can then try and dupe a bunch of women into buying their product for it’s magically delicious, patent-pending concoctions that will allow them to restore their youth.

Women, you know what makes you look like you’re 20?  Being 20.

L’Oreal?  You should be ashamed of yourselves.  I’m glad it’s getting harder for you to get patents and I hope you lose the lawsuit.

 

JustSayin_small_New

IPTT

{Heather Locklear image found here, because no way am I swiping a shot from a L’Oreal ad.  Have you even heard of how mean their lawyers can be?}

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.}

SAWS? What SAWS? Nothing To See Here (Anymore), Folks…

In such a time as this, it helps to have a translator so that We The People can understand what just happened here.  Thankfully, IPTT is on the job with the PTT™ (Patent Troll Translator), which can be used not only to translate patent troll-speak, but USPTO-speak as well.

And here we go…

“Upon careful consideration, the USPTO has concluded that the SAWS program has only been marginally utilized and provides minimal benefit,” the post, which was published Monday night, reads.

Translation?

“By ‘marginally utilized’ we mean ‘arbitrarily utilized, depending on who offered to pay us the most’, and by ‘provides minimal benefit’, we mean ‘Oh, hell, you caught us!’

Further, upon being asked by Dennis Crouch (and probably others that it’s too early in the morning for me to go dig up) to provide statistical data surrounding our Sensitive Application Warning System, we decided that we’d better kill it before FOIA makes us disclose even more information, that will make us look stupid at best and devious at worst.”

Here’s the beef:  the USPTO had a system that allowed the examiners to flag certain applications for extended review and they didn’t have to tell anyone they did it.  Eeps.  Here’s how the process is supposed to work:

Usually, when you submit a patent application, it requires the approval of one or two examiners who work with the office. Those applications can take anywhere from 22 to 29 months to be issued, depending on fees you pay to speed up the process or the lawyers you have representing you.

Emphasis mine.  Oh good grief.  Ms. Lee?  This is something you need to fix.  You shouldn’t be able to pay your way to the head of the line, and you need to have examiners who are lawyers so that they are on a level playing field with the people submitting the applications for the inventors.  I said all this once before after interviewing a former examiner.

“The patent office has a tremendous latitude in making these illegal practices, whether it’s by SAWS or other processes,” Hyatt told Yahoo Tech in January.

That’s not the 1/2 of it, if anything my interviewee has to say about it is true.  I’m really hoping that Michelle Lee is able to make some changes in the examination process for two reasons:

  1. It will improve the quality of patents.
  2. It will take that bat out of the hands of inventors who want to gripe that the process is the problem.

Because as for #2 right now, they’re right.

<digression>

Beyond the fact that the program wasn’t publicized and the people stuck in it may or may not have known (did they, can anyone confirm?), there’s this bit that sticks in my craw worse than line jumpers:

So, say you’re an inventor who has founded a startup. You’re waiting for your patent to be issued, so you can start your company. In fact, some of your funding may depend solely on your ability to secure the rights to that innovation. If you were placed in the SAWS program, you could be potentially dragged along for years. Meanwhile, you might lose funding or face additional competition.

WHY does funding depend on a patent being issued?  I can’t get over that.  If a patent is all you have, you need to rethink your pitch deck.  Besides which, to the point of that last sentence, competition is good!  We all get better by playing against someone who’s better than us, right Gene Quinn? I dunno, like I said about the Fuzzibunz lady: are you an entrepreneur or a patent-preneur?

</digression>

In the end, there’s two ways to look at the death of SAWS, the first being this quote by Kate Gaudry:

“This is a good indication that they’re willing to objectively step back and look at their programs and efforts, and listen to their stakeholders,” Kate Gaudry, an associate at Kilpatrick Townsend & Stockton LLP, told Yahoo Tech. “And change what needs to be changed.”

Um, okay.  Let’s see if Thomas Franklin, also of Kilpatrick Townsend has a better take:

“I’m not sure this is a win for transparency to say: you found this program so we’re shutting it down,” he told Yahoo Tech.

Yeah, the second one.

JustSayin_small_New

IPTT

 

 

Dear Michelle Lee: I Hope You Win, Plus A Couple Of Things

Dear Michelle,

Happy Monday!  I listened with rapt attention to your interview at the Brookings Institution last Thursday the way some people listen to Taylor Swift.  I wrote quite a few things down, because I never read a book or listen to an interview without a pen and paper handy lest I forget something important, and plus my 9th grade English teacher Ms. Fritchey (oh, you betcha we had fun with that name and also? Sorry Ms. Fritchey) would kill me if I didn’t.  The first thing I wrote down was this:

Deputy Commissioner for Patent Quality coming from the ? Step in the right direction…

I wrote that down on paper and on Twitter because I think it’s such a great idea.  When I interviewed a patent examiner (Part I, Part II, and Part II), s/he said

While I was employed at the USPTO, there were two search systems, called East and West.  Examiners would choose which one they wanted to use.   These systems searched only the patent database.  Now days, most examiners use Google Patent Search, but again that searches only the universe of existing patents.

Prior art search then is 99% patent literature.  So that is a huge lesson learned after leaving…technical manuals and publications need to be searched too.

charlie_brown_thumb[3]

“Oh, brother!” is right.

Emphasis mine, and it speaks to the issue of patent quality directly because good googely woogely, how on earth can you know if an idea is unique if you don’t search in more than one place?  To say nothing of the fact that some people couldn’t come up with decent search terms if their very life depended on it.  I may know one or five of those people, who can’t even find an address for the nearest pizza shop because they search The Googles for something like “italian pie” or “round thing college kids like to eat” and may I suggest you don’t google that second one from a government computer?  I have my reasons.

Quality is a real issue, is what I’m saying, and only partly because the examiners themselves don’t have the tools to do the job.  While there are market solutions to this problem, like the studs at Article One Partners, don’t you think it’s time the USPTO upped its game a little on that front?  Clearly you do, which is why you suggested a Patent Quality Czar.  You can totally steal that title because between you and me, it’s way cooler than “Deputy Commissioner for Patent Quality”.

Not to belabor the point even though I’m totally going to, have you seen this?  Where Exxon has patented selling energy, because that’s never been done before and is a completely non-obvious idea?  This is exactly the sort of crap the PQC has to stop letting through.  His or her first job out to be to check out the flaws in SAWS:

Sensitive Application Warning System (SAWS) that is supposed to flag applications that if issued could be controversial and subject the USPTO to undesired calumny and scorn,

It is highly unlikely that the USPTO wishes to bring calumny and scorn upon itself, that first one especially, now that I looked it up and know what it means.  SAWS should have have flagged this application from the get go but it didn’t and someone needs to understand why.

If one of your goals is to reduce nuisance patent litigation, even if you don’t want to call out patent trolls by name, then I think requiring that patent examiners be attorneys is a good first step.  Maybe not all of them, but somewhere along the path to a patent there should be a step where an attorney for the USPTO goes head to head with the attorney for the inventor.  You need to two people who speak the same language talking before the patent is ever issued.  Lawyers for inventors have only one goal:  GET THE PATENT.  Maybe it’s a good goal and maybe the invention is awesome and patent-worthy.  Or?  Maybe the lawyer’s just a wordsmith and out-maneuvers the examiner with legalese and wears them down with all.the.words far too often.  Just a thought.

Finally, I heard you mention that there might be an event of some kind in the near future, maybe something akin to the Patent Stakeholders Meeting almost a year ago?   Having attended that event, might I make a suggestion or two?  Like, maybe bring in some hors d’oeuvres?  Cheese plate?  Cash bar?  On that last one, I’d like to heartily recommend the bartenders from Lincoln because can they make a 1931 Mai Tai or what?  

mai_tai

It’s 5 o’clock somewhere…

 

All kidding aside, it sounds like a great step forward to bring some stakeholders back in and reprint the road map.  The way to find out what people want and need, in this and any arena, is to actually talk to them.

I wish you the best of luck in the confirmation process, and hope that you’re able to accomplish all that you set out do!

JustSayin_small_New

IPTT

{Charlie Brown image found here, delicious Monday morning mai tai found here, complete with recipe.  You’re welcome.}

 

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.}

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.}

What Made The Trolls Trolls, Anyway?

I know what it was…they were mistreated as children.  Their Mommies wouldn’t let them eat ice cream for breakfast, and made them make their beds and bring their laundry down each morning.  When the Look of Death failed to frighten her into submission, they packed up their marbles and went in search of better living accommodations where they soon realized that they actually couldn’t do much better out on their own and maybe, just maybe, Mom knew what she was talking about but out of spite, settled under bridges and scared passersby into paying them a toll to cross over to the other side.

Actual Look of Death from my actual child.
Be afraid. Be very afraid.

 

But if we’re talking about patent trolls, the road to perdition is a little less clear.  There are lots of different reasons, the way I see it, that the problem has  gotten out of hand.  Here’s a list of where I think things went wrong.  These are just my opinions, of course.

Lack of Court Competition – It’s been posited to me on Twitter that perhaps it isn’t the Federal Circuit, as this article by Timothy B. Lee suggests, that has been a factor.  I disagree.  I think that whenever there’s a lack of competition for something, be it a consumer product or justice, that’s not good and it breeds advantage-taking.  From the article:

 The Federal Circuit Court of Appeals enjoys a monopoly over patent appeals, and it has used that power to shift patent law in a direction more favorable to patent holders, including trolls. Taking away the Federal Circuit’s monopoly over patent law would be a big step toward bringing balance back to the patent system.

Now, maybe they didn’t use their power to shift patent law to favor patent holders.  Patents themselves favor the holder!  But when there’s no check or balance built in, this is a risk you run. That’s an issue, and something that trolls are wont to take advantage of because that’s how trolls roll.

Further, there’s the idea of “pay to play”:

They don’t just hear patent lawyers’ arguments in their courtrooms, they also mingle with them at conferences and social events.

This is what Gene Quinn at IP Watchdog was getting at when he talked about the big corporations rubbing elbows with lawmakers, and about how they didn’t really care about patent trolls so much as they were in bed out playing golf with them.  Timothy Lee makes a similar argument, only with troll lawyers and judges.  If there’s only one circuit of appeals (Supreme Court notwithstanding because we all know very little makes it that far) and those judges are hobnobbing with the lawyers who appear before them, then how impartial are they, really?  This is why I think the Federal Circuit is a part of the problem.

The Death of the ‘Dust Docket’ – Whether it was a result of tort reform or people having had enough of the huge judgments against companies as a result of shady personal injury trial lawyers, the dockets for things like asbestos poisoning began to dry up.  So where’s a sneaky lawyer to go?  Hmmm…patents.

The barriers to entry to file a patent infringement suit, or better yet, simply send out a bagillion demand letters, are low.  All it takes is an attorney with some free time and pretty (or not) letterhead, and there you go.  Some patent attorneys are complicit in the problem, is my point, and I’ve written about that.

Bad Patents – Patent quality matters.  When patents that are overly broad and cover obvious claims are issued by the USPTO, it creates the perfect scenario for troll tactics.  Article One Partners chose an excellent tag line, and they’re going after the problem at the very lowest common denominator.  You have a host of patents related to business methods and software that should never have been issued.  But now that the genie is out of the bottle, how do you put it back in?

Very expensively.  You either file an IPR, fight full-on in court, seek declaratory judgement…whatever you do is going to cost you something.  And that’s just what the trolls are counting on when they seek to buy up these rogue patents and throw them around like daggers.

The issue of bad patents is partially a result of patent examiner practices, which you can read about here, here, and here.  It’s a related problem, and it helps feed the trolls.

Lack of Desire to Fight– Not all companies that are hit with a demand letter or an infringement suit are going to fight.  They have their reasons that they don’t want to be on the Patent Troll Fighter Heros Gallery, and that’s OK.  (It’s not, really, it’s very hurtful to me personally but I recognize that it’s not about me even though it totally should be.)  But every time someone rolls over, it makes the trolls stronger.  It reinforces their business model and they learn that if they just keep trolling, the money will keep rolling in.

Sometimes, victims of troll-ish tactics actually approach another troll for help.  This makes zero sense to me, but I’m not trying to save my company so I try hard not to put on my Judgy McJudgesteron pants.  Although it is very difficult.

It may not be so much a lack of desire to fight as it is a lack of funds to fight.  I do recognize that.  And then there are the companies that just don’t give a rat’s.  They have the money to fight but it’s not really a big deal to them.  If they can pay a license fee, even if it’s higher than it should be because trolls are greedy and awful, then so be it.  It keeps their in-house counsel focused on other issues more germane to the bottom line, so they cut the check and move on.  I hate it when that happens, because it sends exactly the wrong message to the trolls, which is that trolling works.

patent-troll-graphic-final

Image by Alan Schoenbaum.
Awesome.

 

Just like there’s not a single, reliable litmus test for who’s a troll and who’s not, there’s not just one reason that patent trolls troll.  I think these are the most obvious ones, and what started me off on this topic was the push back on Twitter regarding Timothy’s article about the Federal Circuit.

I wasn’t able to articulate my response in Twitter’s 140 characters because, and you may have noticed this, I tend towards verbosity.

No really, it’s true.

JustSayin_small_New

IPTT

{Image of Michael, now age 11 and still scowling like a madman, by me.  Troll drawing by Alan Schoenbaum of Rackspace.}

Interview With A Patent Examiner, Part III

Note:  This is the third and final in a series of posts about my interview with a former Patent Examiner, who worked for the USPTO from 2000-2008.  Read Part I here, and Part II here.

Despite suffering wicked withdrawals from a lack of black and whites, it’s good to be back home.  Texas and I are going to have to talk about this 95 degrees in September thing, however, now that I spent time again in a place that has all four seasons instead of just two (hot and hotter).  New York CIty?  I love your Fall!

Back to work we go…it’s time to finish up the series from my interview with a former USPTO Patent Examiner with the most timeliest topic we discussed: software patents.

The sixth and tenth of my 10 questions were these:

6.  What is your opinion on software patents, and the mantra that “computers do math and math is not patentable”?

10.  Any general comments?

Software patents are all the rage now, or at least raging against them is.  Your friend and mine Gene Quinn recently had a conniption fit wrote a blog post about how “intellectually dishonest” we all are for thinking that software patents are a problem at all, which was kind of odd.  It was a fairly technical post and long about the time people start inserting pictures of computer guts, my attention span tends to fade.  Nevertheless, I’m certain he has valid points, I just don’t know what they are.

The majority of the patent blogosphere and Twittosphere (which is to say “Twitter”) has major issues with software patents, and my examiner was no different.  He laid the blame at the feet of patent claims, where he said

Software patents are for a processor with instructions and you can have the instructions to be anything.  Because the process is intangible you can write anything into the claims.  It becomes a word-smithing exercise.  It’s based upon elements which I don’t think should be patented.

It’s too difficult to ask an examiner, because of the limitations on them including that they only search the database and not, for example, technical manuals, to make that call.  It’s a lot harder for the claims to be examined.

The second paragraph goes back to his statement that the corpus of knowledge that patent examiners search for prior art is too limited. And that’s an issue…patents are slipping through the process because people aren’t looking in the right place for prior art, or because the filing attorneys have done such a good job with the wording of the claims that it’s just different enough to exiting patents that it will not get any direct hits when the patent database is searched.  That’s a problem that has solutions (hello, Article One Partners!)

As for the first part, I agree with him that it’s a word-smithing game.  When you look at some of the patents that are being litigated, the “auto-complete” patents, for example, how is that not obvious?  One of the points my examiner made was that something may be non-obvious based on the fact that it hasn’t been patented before, or based on the fact that the applicant’s high-dollar attorney is telling you it’s a novel idea and not obvious because that’s what he’s been hired to do, or because you just didn’t talk to the right people.

My point being that particularly in the case of software patents, one conversation with a programmer and you’ll learn that, seriously?  Auto-complete has been around in one form or another since 1991 because why?  It’s obviously a useful feature.  So how is it all of a sudden now a patent that anyone who writes websites has to have a license for or they’ll get thugged out of existence?

That’s just dumb.  Legal, but stupid.

pbs-software-patents

If you don’t know who Martin Goetz is, watch this.  What you’ll see is that the whole idea of software patents was born out of the fact that one company was giving away for free what another company wanted to charge for.  I’d love to tie this into Mike Masnick’s thoughts on industry disruption, and how companies that write software could have found other ways to monetize what they’re doing rather than sue IBM and cause a ripple effect that years later, would bring start ups to their knees.

With regard to the tenth and final question of the interview, my patent examiner’s comments were a recap:  give examiners access to a wider range of prior art search options to prevent bad patents from being issued, and find a way to draw attorneys into the job so that they can match wits and intellect with the applicants’ hired guns.  He suggested that putting together a database of the text of technical manuals would be a good use of increased funding, and mentioned that Google was working on a project like that, or so he’d heard.

There you have it, straight from the horse’s mouth.  The single biggest thing I learned is that Julie Andrews was right.

Let’s start at the very beginning, it’s a very good place to start.  When you read you begin with A-B-C.  When you sing you begin with Do-Re-Mi.

Issue good quality patents by having the right prior art search tools and the right mindset about what should be patentable and what shouldn’t (hint: not software), and you create an atmosphere where innovators can feel safe spending their years and their dollars dreaming up new products.  The patent system was set up to encourage people to create something new and give them a time frame to be successful without the fear of others piggy-backing off their hard work.

Somewhere along the way, we lost sight of this basic idea, and it became all about the money and the weaponry employed by modern companies as they seek to wipe out the competition using any means available.  I’m no kum-bye-ya (and hello? exactly how many ways are there to spell that??) hippie chick, I know that companies are not all going to just get along.  But if we can fix some of the things that are going wrong at the USPTO, we can at least force a little bit of disarmament, no?

JustSayin_small

IPTT