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Stop Patent Trolls

Stop Patent Trolls

Then they came for Adam Carolla

Via @MarkCuban:

Some background, Patent Troll Says It Owns Podcasting; Sues Adam Carolla, HowStuffWorks:

We’ve written a few times about a patent trolling operation called Personal Audio. Like so many patent trolling companies, who’s actually behind it is something of a mystery, but it does have an empty office in East Texas that no one ever goes to. It sued Apple and others claiming that it held patents on the concept of “playlists” and actually scored some victories. Amazingly, it sued Apple multiple times over the same patent, arguing that small changes to its products were new violations.

Well, the company is back with a “new” patent, 8,112,504, called a “System for disseminating media content representing episodes in a serialized sequence” and appears to be claiming that podcasting itself violates the patent — and has sued three podcasters, including Adam Carolla’s “ACE Broadcasting,” HowStuffWorks and Togi Entertainment.



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Coupla general ideas here…

1. patents are a TEMPORARY PROTECTED MONOPOLY that is granted to encourage invention/innovation

2. any good intellectual property practitioner will seek the BROADEST possible definition of an invention that the Patent Office will allow

3. when drafting a patent application, the rule is to “inversely telescope” the claims from the broadest to the most specific, hoping that the Patent Office will accept some claim that is very broad, indeed

4. Edison is credited with saying something like, “A patent is a license to sue”. Which is VERY true in LOTS of bad ways. You HAVE to defend a patent if you expect to get anything out of it

5. Patent litigation is one of the highest-paid specialties in legal practice, often seeing hourly fees of $600 or more per hour of attorney time

6. “Breaking” a patent is a time-honored and effective means of defending a patent suit, and many approaches are available for challenging a (especially broad) patent

7. as with other intellectual property lawsuits lodged against small business (copyright and trademark), most entrepreneurs are lawsuit averse, and will fold at the first demand letter rather than fight, regardless of the merit of any claims against them
How can they grant such patents?
Bet they won’t file suit over any TV series.

    Bruce Hayden in reply to genes. | April 20, 2014 at 1:00 pm

    Not sure how patents are relevant there. You need to be a bit more explicit. Copyright, sure. But patents?

      “Well, the company is back with a “new” patent, 8,112,504, called a “System for disseminating media content representing episodes in a serialized sequence” ”
      IOW a movie serial or TV series.

As a “patent practitioner” (patent attorney for almost 25 years), I don’t disagree with anything that Ragspierre said.

But, what is (intentionally) below the radar here is that this is part of an extremely well funded attempt going on right now, esp. in lobbying Congress, to make it much harder to sue companies for patent infringement that is, not in the least coincidentally, being funded by the biggest infringers and targets of infringement, led by Google, but also including the usual other subjects, such as Microsoft. We are talking about tens of millions of dollars being spent on lobbying right now, with new bills seemingly being proposed by people on the two Judiciary committees to severely limit patent “trolls” popping up a couple times a week right now. It is the hottest topic in IP right now, because so much money is being dumped into it (almost all on the anti-“troll” side). This whole push here is just battle space preparation for the push in Congress.

The more appropriate term for patent “troll” is NPE (non-practicing entity), meaning someone who isn’t building a product incorporating the patented technology. But, what the proponents of limits on patent litigation don’t want anyone to ask is why is the patentee not practicing the invention? And, one big reason, esp. here, given the proponents of the legislation, is that the infringer has driven the patent owner out of business with its massive financial might and marketing abilities. Ask yourself, what has, for example, Microsoft really invented? Dos? Spreadsheets? Windowing operating system? Word processing? Web browsers? Database management? Obviously, none of the above. Rather, they were inevitably the second (or later) comer, who had (for their later products) the financial muscle to squash the original inventors. My list of Microsoft “inventions” is really VB/VBA, and maybe C## (both in keeping with its original product – compilers). And, Google seems to be the up-and-comer, in terms of late comer dumping money into technology to crush the first inventors.

So, inevitably, under the proposed legislation, by the time that the inventor of a new technology can sue the companies that drove it out of business by appropriating their technology, and then massively out spending and out marketing them (thanks to their multibilions in revenues in other areas), they are now patent “trolls”, or NPEs.

Let me add that this isn’t a new fight – the last one (lost, after a $100+ million spent pushing the legislation) was the Leahy-Smith America (Dis)Invents Act, which moved the U.S. from its traditional first-to-invent to first-to-file system, effectively eliminated grace periods, and greatly increased the ability of potential or actual infringers to challenge patents in the USPTO, instead of the Courts (which they can later, of course, still do). In other words, giving infringers another couple bites at the apple in trying to invalidate patents.

One of the big things that the pending legislation would do would be to turn patent litigation into “lose pays”. What Ragspierre left out is that those $600 an hour patent litigators are most typically defense lawyers working for the alleged infringers. Plaintiffs’ lawyers are often on contingency. The perverse incentive here is that there would no longer be any financial disincentive for defendants not to bury plaintiffs in discovery. If they are successful in either bankrupting the plaintiffs and their attorneys, or can find anything to invalidate the asserted patents, they get the $600 an hour spent on burying their opponents back. And, if this is such a good idea, then why not implement it for other types of contingency fee litigation, some, like mass torts, that is much more susceptible to abuse? Why single out technology? The answer is that the effort is being funded (heavily) by patent infringers, led, as I noted above, by Google.

    Ragspierre in reply to Bruce Hayden. | April 20, 2014 at 12:31 pm

    Bruce, I agree…they’ve been screwing around with U.S. patent law over the last few decades, and not for the better, IMNHO. Some of the effort, as I understand, was to harmonize American patent law with that of other nations, which was not necessarily a good thing.

    Small inventors…which are kind of the ones we most want to encourage…are especially at a disadvantage. We want the guys and gals tinkering in their garage to reap the rewards of innovation.

    My advice has always been to sell an idea to a strong player, or gain such a strong market position with a really new concept that your patent is a secondary issue.

    Market power beats litigation any day!

      Bruce Hayden in reply to Ragspierre. | April 20, 2014 at 12:54 pm

      I think that there should be a middle ground. Right before we moved from 17 year from issue to 20 from application for patent term, I spoke a couple times on submarine patents. That was about the time that Lemelson got a patent issued approx 40 years from its priority date, essentially claiming technology not invented until several decades after his priority dates. There was something fundamentally wrong with that.

      And there really is a problem with patent trolls. I have worked on both sides of the issue. It is just that the fight in favor of squashing first inventors by huge multinational misappropriators is right now being camouflaged as being about patent trolls. It is intentional misdirection, as I noted, as battle space prep for the legislation percolating so briskly right now in Congress.

        Valerie in reply to Bruce Hayden. | April 20, 2014 at 1:14 pm

        I had a ringside seat to what a Fortune 100 company can do to a startup with a whole two PHds as key people, and one, fairly basic patent.

        The “strategy” was to dangle a sale at these people, attract their focus so that they ignored other potential negotiating partners (naive, I know, but a hazard of being so small), negotiate them past their funding deadlines, let them go bankrupt, and watch to see if somebody else bothered to pick up the patents. This scenario, was explained to me as a win for the Fortune 100 company, which never did commercialize the technology.

        I completely understand the view that “patent trolls” abuse the system and are pernicious, however, I am also well aware that abusive practices are not limited to trolls. Striking a fair legislative balance that does not discourage subsequent innovators will be complicated.

        1. And there really is a problem with patent trolls.

        This preempts what I logged in to suggest.

        2. It is just that the fight in favor of squashing first inventors by huge multinational misappropriators is right now being camouflaged as being about patent trolls. It is intentional misdirection…

        OT: Such intentional misdirection, which too often can be labeled “lying”, seems to have become business as usual for a spectrum of issues. More and more on public issues, I can trust neither the mainstream proponents nor the mainstream opponents.

        3. My nonexpert sense is that intellectual property is a legitimate, socially useful construct, but that the direction it’s moving in does more harm than good. I’m far from asserting that society would be better off without IP than with it…but in recent years the thought has begun to occasionally cross my mind.

        4. Thank-you to WAJ for a worthwhile post and to Ragspierre and BH for illuminating comments.

        Ragspierre in reply to Bruce Hayden. | April 20, 2014 at 1:43 pm

        I always loved the Lemelson stories. Now THERE was a guy who knew how to work the system! And his attorney was reputedly one of the best.

        “Concept patents” worked! Some argue they shouldn’t, but they still did.

        “I claim do-hicky, when linked to something not around just yet but which WILL do X, performing Y task.” Genius!

Patent troll? Someone, perhaps a large corp., who takes someone’s idea as to how to transmit information? Are we talking apps? Formats? Sequences? Intangibles or tangibles?

How do you patent an idea if it is not intrinsically linked to the material world?

As I understand it intellectual property must be tied to existing specifically coded software, art, music, etc.

Can you patent a monopolizing idea?

I would think that an inventor must, via confidentiality agreements, arrange to his idea marketed by a large firm, receiving all rights to its patent. Or, he must secure venture capitalists to go market w/o giving any notice to large vulture firms and do it w/patent in hand.

First to file, first to market makes the most sense to me. But what do I know?

One thing that typically goes unnoticed in “intellectual property” discussions is why there are such laws in the first place.

Before the US Constitution, there was little or no protection for inventors, authors, or artists. Once something was published, it was in the public domain. Writers like Dickens found it more profitable to serialize their novels through publications like newspapers and magazines because once the full book was published, anyone with a printing press could sell it without giving them a dime.

The poets of the Romantic and Victorian eras typically published poems only rarely, usually their volumes were available only to patrons and subscribers, who held their own copies close. And so on with the other arts. Inventors were just left unprotected altogether.

The entire object of our patent and copyright laws are NOT to protect or reward the holders of patents and copyrights or their heirs, but rather to ensure that more material should come into the public domain after a “short period” of exclusivity for the originator. How this squares with giving the great-grandchildren/heirs & successors of a dead artist the eternal right to his cartoon mouse is difficult to say.

scottinwisconsin | April 20, 2014 at 9:33 pm

“intellectual property” is theft. End all patent and copyright protections. Laws predicated on encouraging the production of intellectual property actually discourage it’s creation. Here’s how you know intellectual property isn’t property. If I take your car, I have it, you don’t. That’s property. Everything else is not.

    Bruce Hayden in reply to scottinwisconsin. | April 21, 2014 at 2:12 am

    Wishful thinking, but not reality. More and more, venture capital requires IP protection, because those venturing their capital don’t want Microsoft or Google to jump in, and squash them, once they have the business operational and starting to make money.

    Indeed, I lost a client the other day because the funders of an inventor didn’t think that my web site was substantial enough.

    Can you even name the creator of Dos? Spreadsheets? A Windows operating system? etc. (The answer to the first one was Gary Kildall, of Digital Research – and the public story about its theft by Microsoft and IBM is much too generous to those two companies, since, of course, history is written by the victors, and he is dead).

    Ragspierre in reply to scottinwisconsin. | April 21, 2014 at 9:55 am

    Color me appalled that anyone here would write something so libertine.

    So, Scott, it is your thesis that my time, genius, talent and skill are NOT mine and the products of them are YOURS to take, as opposed to the wreck of the 67 Beetle in your back yard?


PersonFromPorlock | April 20, 2014 at 11:20 pm

I have often wondered how a patent system that so signally fails “To promote the Progress of Science and useful Arts, by securing for limited Times to … Inventors the exclusive Right to their … Discoveries” can even be constitutional.

    Bruce Hayden in reply to PersonFromPorlock. | April 21, 2014 at 2:15 am

    Because the Supreme Court is a bit loose here. For example, they allowed the last copyright term extension to life+75 years, on the grounds that that was a “limited” period of time. Well beyond the point where it could plausibly be claimed that the extension (20 years) helped increase the incentive for creation of original expression (for copyright protection). (The net present value of the added 20 years is a mere couple of percent, since the additional payoff is so far in the future).