We've talked a lot about patent trolls so I thought I'd publish a best-practices guide for successful trolling. So, for anyone aspiring to be the next big troll, here are a few pointers.
Obviously I'm not being serious :)
1) Your primary business model is to acquire low-quality patents that can be exploited. You have no product. Assertions are your product. Therefore, assert hard and assert often.
2) It takes hundreds of thousands of dollars, if not millions, to properly handle a patent lawsuit. Target entities that can't do this; you'll win the fight before it even begins.
3) Also, attack big corporations. Companies like Apple, Google, Samsung, etc are likely to see you as a nuisance and distraction, therefore paying you to leave them alone rather than wasting precious resources fighting you.
4) Acquire patents that look complicated and legitimate, but are actually pretty ambiguous. As Uzi Aloush mentioned, a potential co-founder of SynPat made his living by asserting vaguely engineer-like patents. If you're lucky enough to get such a patent approved by the USPTO, good for you.
5) There's nowhere better to assert bad-quality patents than the Eastern District of Texas. The less educated the jury, the better.
Case Study:
TQP Development won a patent lawsuit against Newegg in the Eastern District of Texas by attacking the defendants' credibility in front of a clueless jury. Whit Diffie, inventor of public key cryptography, and Ron Rivest, the man who made it practically applicable, were cheated out of $2.3 million because TQP Development played the right cards. A committed patent troll, with the right legal team and favorable geographic conditions, can pull off even the most unreasonable of assertions.
* Most of the information was sourced from:
http://www.wired.com/2013/06/everything-you-need-to-know-about-trolls-the-patent-kind/
http://www.businessinsider.com/biggest-patent-holding-companies-2012-11?op=1
http://arstechnica.com/tech-policy/2013/11/jury-newegg-infringes-spangenberg-patent-must-pay-2-3-million/
https://www.youtube.com/watch?v=togkSqKAvkE
Thursday, April 10, 2014
Google's Open Patent Non-Assertion Pledge
In the last lecture, Duane Valz mentioned Google's fair practices in terms of intellectual property. I was curious about the specifics, so I found the Open Patent Non-Assertion Pledge online. I've summarized its provisions below.
Google promises not to attack anyone for using "Free or Open Source Software" or "Pledged Patents," which are Google patents that are usable by other entities. Entities are safe under Google's pledge as long as they agree to the conditions in writing and make subsequent transferees do the same. Additionally, Google reserves the right to "Defensive Termination" if an entity asserts or profits from asserting patents against Google or its affiliates. With "Defensive Termination," Google will act as if the pledge was never extended to the asserting party in the first place. However, if Google mistakenly initiates lawsuits against non-asserting entities, it promises to try to terminate legal proceedings within 60 days.
Full pledge: https://www.google.com/patents/opnpledge/pledge/
Google's Open Patent Non-Assertion Pledge seems like a very fair and reasonable way to handle intellectual property, and demonstrates Google's commitment to innovative creation above financial gain. Google could easily turn into the most powerful patent troll ever, hindering both technological and commercial progress for less powerful entities. Its policy, however, stresses a win-win concept that benefits everyone.
As I've written in past posts, innovation has outpaced patent reforms, necessitating some way of upholding intellectual property while preventing excessive aggression. Although it's easy to lose hope in this situation and assume the worst, Google's policy proves that the patent landscape is contingent on more than trolling, enforcement, and regulation. If the culture of intellectual property could be fostered in a way that promotes mutual respect and fairness, gray zones in the patent landscape will be less likely to be exploited.
https://www.youtube.com/watch?v=VcX-kUT3XF0
Google promises not to attack anyone for using "Free or Open Source Software" or "Pledged Patents," which are Google patents that are usable by other entities. Entities are safe under Google's pledge as long as they agree to the conditions in writing and make subsequent transferees do the same. Additionally, Google reserves the right to "Defensive Termination" if an entity asserts or profits from asserting patents against Google or its affiliates. With "Defensive Termination," Google will act as if the pledge was never extended to the asserting party in the first place. However, if Google mistakenly initiates lawsuits against non-asserting entities, it promises to try to terminate legal proceedings within 60 days.
Full pledge: https://www.google.com/patents/opnpledge/pledge/
Google's Open Patent Non-Assertion Pledge seems like a very fair and reasonable way to handle intellectual property, and demonstrates Google's commitment to innovative creation above financial gain. Google could easily turn into the most powerful patent troll ever, hindering both technological and commercial progress for less powerful entities. Its policy, however, stresses a win-win concept that benefits everyone.
As I've written in past posts, innovation has outpaced patent reforms, necessitating some way of upholding intellectual property while preventing excessive aggression. Although it's easy to lose hope in this situation and assume the worst, Google's policy proves that the patent landscape is contingent on more than trolling, enforcement, and regulation. If the culture of intellectual property could be fostered in a way that promotes mutual respect and fairness, gray zones in the patent landscape will be less likely to be exploited.
https://www.youtube.com/watch?v=VcX-kUT3XF0
Thursday, April 3, 2014
Response to Lecture about KSR v. Teleflex
KSR v. Teleflex was a huge event in patent law, not only because it showed a clear disconnect between the Supreme Court and lower courts, but because of the precedent that it overturned. The Graham v. Deere case of 1966 was an IP case in which the Teaching, Suggestion, Motivation (TSM) test was put into standard practice. Hindsight bias was supposed to be mitigated by screening patents for obviousness through a rigorous TSM test. In KSR v. Teleflex, the Supreme Court disagreed with the lower courts' opinion that the TSM test should be applied strictly.
The Supreme Court upheld common sense above the TSM test, which overturned a precedent of almost a half century. The problem was the overly rigid application of the TSM test; the Supreme Court asserted that people of ordinary skill are also people of ordinary creativity, and as such, allowed for more interpretation and implication in the test.
I think the implication of this decision will influence the way that patents are examined at the USPTO and the way that they are ruled on in court. Because we now apply the TSM test with more perspective and restraint, the opportunity arises for filers and holders of patents to create and exploit bad-quality patents. Such actions would lead to trolling, by allowing for a gray zone to exist, in which dangerous patents can emerge. However, the Supreme Court's ruling also allows for more flexibility and creative thinking in analyzing patents, which I believe is a great thing for modern times.
As we've seen, innovations in technology have outpaced reforms in IP regulations, which is the reason for gray zones in the patent war that are exploited by savvy lawyers. Additionally, it's what created the hostile environment in which technology firms seem to operate. In large part, IP regulations and the patent landscape dictate how industry players decide to engage each other; currently, it seems like companies are instinctively suspicious and defensive towards each other.
I think the Supreme Court's decision to value critical thinking and flexibility, by mandating a looser application of the TSM test, is a step in the right direction. When our laws and regulations don't complement technological innovations properly, it's necessary to allow for more case-by-case thinking.
https://www.youtube.com/watch?v=rJcoluK3_mc
The Supreme Court upheld common sense above the TSM test, which overturned a precedent of almost a half century. The problem was the overly rigid application of the TSM test; the Supreme Court asserted that people of ordinary skill are also people of ordinary creativity, and as such, allowed for more interpretation and implication in the test.
I think the implication of this decision will influence the way that patents are examined at the USPTO and the way that they are ruled on in court. Because we now apply the TSM test with more perspective and restraint, the opportunity arises for filers and holders of patents to create and exploit bad-quality patents. Such actions would lead to trolling, by allowing for a gray zone to exist, in which dangerous patents can emerge. However, the Supreme Court's ruling also allows for more flexibility and creative thinking in analyzing patents, which I believe is a great thing for modern times.
As we've seen, innovations in technology have outpaced reforms in IP regulations, which is the reason for gray zones in the patent war that are exploited by savvy lawyers. Additionally, it's what created the hostile environment in which technology firms seem to operate. In large part, IP regulations and the patent landscape dictate how industry players decide to engage each other; currently, it seems like companies are instinctively suspicious and defensive towards each other.
I think the Supreme Court's decision to value critical thinking and flexibility, by mandating a looser application of the TSM test, is a step in the right direction. When our laws and regulations don't complement technological innovations properly, it's necessary to allow for more case-by-case thinking.
https://www.youtube.com/watch?v=rJcoluK3_mc
Wednesday, April 2, 2014
Secondary Considerations of Obviousness
The initial checklist to detect obviousness is the scope and content of prior art, the differences between alleged innovation and prior art, and what constitutes ordinary skill in the art. However, the article linked below discusses secondary considerations.
http://www.the-business-of-patents.com/obviousness.html
1) Commercial success
2) Long-felt but unsolved needs
3) Failure of others
Commercial success points to the market demand for the alleged innovation, which validates both societal need and practicality. If many people are willing to pay for an invention, the invention clearly merits the appreciation and approval of the public.
Long-felt but unsolved needs refer to innovations that make life easier or better by addressing inconveniences and inefficiencies. An outstanding example is the folded cardboard holder for take-out coffees. Before it was invented, people had do deal with excessively hot cups with nothing to shield their hands from the heat. Cup holders were invented so that this unsolved problem could be addressed.
Failure of others refers to previous attempts at addressing some unsolved need. The guiding principle is that a new innovation, if it attempts to do what others failed to do before and benefits society, wouldn't be considered obvious. The problem might have been obvious but the solution was clearly innovative in some way, to distinguish itself from past failures.
https://www.youtube.com/watch?v=YQn32A_UgZY
http://www.the-business-of-patents.com/obviousness.html
1) Commercial success
2) Long-felt but unsolved needs
3) Failure of others
Commercial success points to the market demand for the alleged innovation, which validates both societal need and practicality. If many people are willing to pay for an invention, the invention clearly merits the appreciation and approval of the public.
Long-felt but unsolved needs refer to innovations that make life easier or better by addressing inconveniences and inefficiencies. An outstanding example is the folded cardboard holder for take-out coffees. Before it was invented, people had do deal with excessively hot cups with nothing to shield their hands from the heat. Cup holders were invented so that this unsolved problem could be addressed.
Failure of others refers to previous attempts at addressing some unsolved need. The guiding principle is that a new innovation, if it attempts to do what others failed to do before and benefits society, wouldn't be considered obvious. The problem might have been obvious but the solution was clearly innovative in some way, to distinguish itself from past failures.
https://www.youtube.com/watch?v=YQn32A_UgZY
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