The patent system as it relates to software and the web and mobile apps is broken. It doesn’t work. It doesn’t protect the right people and it’s being used by the wrong people for what amounts to extortion.
Oh, I’m sorry — you didn’t know that? Just my opinion, you say? Yes. My opinion. And I’m not an attorney, so what do I know. Ask me in person and I’ll tell you some stories of what I know. But not on this blog.
And I don’t know diddly about patents and patent situations regarding real inventions, formulas, drugs, manufactured hard goods, or any of that. Do those people have trolls too? I don’t know.
But I really liked this quick (5 minutes or so) true story that I found over the weekend, browsing TED.com
What a shame. Although we all like neatly packaged stories — heroes and villains, good vs. evil, David vs. Goliath — it’s rarely that simple.
For example, late last year there was what seemed to be a great David vs. Goliath story about this inventor guy who teaches at Yale getting $625 million from Apple Computer for violating his patents. Or so it seemed to me, that is, until I read that this happened in Tyler, Texas. The world capital of patent trolls.
What’s up with that? Well you might want to read Apple Don’t Go to Court in Tyler, Texas from back in 2008. Or better yet, this description published last year by Tyler Directory, a local publication:
What happens is a company buys up some patents that they already know are being infringed upon with the express purpose of making income through litigation. These patent trolls do not wish to make something with the patent they bought but are looking to sue as many large corporations as they can.
This patent trolling makes millions and millions of dollars for these companies as well as their lawyers. Not only does the patent troll need to open up a business in Tyler or East Texas to pursue litigation here but their lawyer must be local counsel.
In this case, I’m afraid, whatever the merits of the case, the David took the Goliath to a drastically slanted playing field. You could read this 2006 piece in TechDirt on the same phenomenon. East Texas loves patent trolls.
The inventor in this case, David Gelernter, seems easy to like. He says it’s not about the money …
Before the verdict was announced Gelernter spoke to the blog BigThink about the case: “[It’s] not because of the money, but because of the deliberate failure to acknowledge work that we would have made freely available as academics. …. We’d like to see credit where credit is due.”
It all sounds good to me. Except then he went and set up an office in East Texas, pretty damn far from Yale, to sue in East Texas patent troll heaven.
But wait — is he wrong to do what optimizes his chances to win? After all, if I owned a patent, and I wanted payback from a large company, I’d go to East Texas with it too. I’d do what makes me most likely to win. But I’ve seem some horrifically unreasonable patent troll lawsuits win money. That, in my opinion, is money for nothing. And I assume the lawyers get huge chunks of it too. It seems ugly.
The four patents at issue allegedly cover basics of online commerce including recommending products to a user based on what they are currently looking at and allowing readers of a news story to see other stories based on the current one, while two others relate to showing other information on a web page such as news updates or stock quotes.
I am not one of those people who – quoting Joel Stein’s latest column in Time – “want everything to be free except what they happen to do to make a living.”
But I do think the patent system is broken. The system was unable to keep up with technology, so patents were issued that made no sense. And patent trolls take advantage.
Wikipedia defines patent troll:
a pejorative term used for a person or company that enforces its patents against one or more alleged infringers in a manner considered unduly aggressive or opportunistic, often with no intention to manufacture or market the patented invention.
Of course people should get to own their own work. If you invent something really useful, like a light bulb or a phonograph or a plane, or a disk drive or a new kind of scanner, you should get to make a ton of money with it.
But who issued these patents? Wasn’t this all fairly obvious? These are ideas, not inventions. And who the hell knows who was the first to have an idea? And do we reward the first to patent it, when it shouldn’t have been patented in the first place? That’s just dumb.
Disclosure: I’m biased. I’ve been close to two different stupid patent suits where somebody took obvious technology and connected it to some dumb old existing patent and sued. And it was cheaper to pay up than fight. So, business is business, the trolls won.
Also, I’m hoping Paul Allen is actually just intending to make a point. If I remember it right, amazon.com had a patent for one-click purchasing, and they brought it up, made their point, and then behaved like decent citizens (do I have that wrong? If so, please tell me.) And I think Compuserve had a claim on the GIF graphic format, and didn’t insist on pursuing it. Maybe that’s what’s happening here.
I hope so.
And I’d like to credit Read/Write Web and cartoonist Rob Cottingham for the cartoon here. It’s from Cartoon: So Sue Me on Read/Write Web.
(Image credit: from Read/Write Web: click here for that post.)
You could call this post the taxonomy of trolls. I thought there were fairy-tale creatures, ugly and mean, living under a bridge, interfering with innocent travelers. It turns out, though, they’re real. Just like in the three billy goats gruff fairy tale, they are hiding along the way, jumping out to cause trouble.
I like puns and I like the potential double meaning with trolls. First there’s the beast or character of the troll, like in the fairy tale. And then there’s the verb, trolling, which I think of from 50 years ago when my granddad took me fishing. We’d put the baited hook into the water and move the boat slowly, trolling for fish.
I’ve happened upon several kinds of trolls in business. Maybe you’ll recognize some of these. Better yet, maybe you can avoid them on your travels.
Patent trolls. They buy up rights to otherwise useless or abandoned patents and hoard them until they can spring them on unsuspecting businesses. The mere threat of legal action is worth lots of money these days. Do you think it’s coincidence that the vast majority of patent troll lawsuits are filed in a single county in Texas? I don’t. I think that county has developed a symbiotic relationship with patent trolls. Encourage the trolls, get the revenue. The problem is that technology overwhelmed the government so much that the patent system couldn’t keep up with it. A lot of bad patents were issued. They become opportunities to quasi-extort money from innocent companies. These are double trolls: troll creatures (noun) who troll (verb) for opportunities.
Idea trolls. Seth Godin posted Trolls last week, referring to people who “gain perverse pleasure in relentlessly tearing you and your ideas down.” It made me feel better to see that even he – because I so admire his work — gets attacked by trolls. He said:
trolls will always be trolling
critics rarely create
they live in a tiny echo chamber, ignored by everyone except the trolled and the other trolls
professionals (that’s you) get paid to ignore them. It’s part of your job.
Politics-as-business trolls. I don’t mind political opinions, particularly not in blogs, but I do get annoyed by people whose approach is as a small business expert who has dipped their business expert brand into political mudslinging. The right-wingers who object to everything the government does as bad for small business, or the left-wingers who applaud everything the government does as good for small business. I hate the way they hide their politics in business terms.
Social media trolls. Talk about explosive growth—how about the growth in social media trolls. These two are trolls as creatures, but they’re also trolling around, looking for opportunities. Like the people who use Twitter or Facebook as media for selling things to people they don’t know, who haven’t asked; now that we’ve interacted in Twitter, will you tell your company to buy my product? Not to mention the annoying recent development of people selling things by tweeting with my Twitter name “@timberry” with a Web address to go to. I hate to think what some unsuspecting person gets if they go to that link. And it’s not like they’ve interrupted my account or done it as me; they just put my name in the sentence. Bummer.
Trade-show trolls. This is another double-troll situation because these trolls troll the trade shows catching the poor people behind the tables, staffing the booths, making them exposed and unable-to-escape victims of unwanted sales pitches. And the double-troll-trouble gets doubled again –- maybe that’s cubed – because the companies who pay for exhibition space become victims of trolls who didn’t pay for space but troll for sales victims anyhow. My particular favorite (not!) are the ones who want to sell competing goods or services.
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