Losing our patience with Patent Trolls

I originally wrote this piece back in 2011, I can sometimes date reference my blog posts due to content, such as talking about the iPhone 5, and recently there has been a larger discussion about the effect that Patent Trolls are having, especially in the tech industry. John Oliver’s fantastic Last Week With… show on HBO, again highlighted the issue that as entrepreneurs and startups face each and every day while thinking and creating new and interesting ideas that tackle an every day issue and apply 2015 technology to address this. Wether its IoT communication paths or how M2M communication could and should be utilized to maximum human effect, we are constantly looking over our shoulder for some lightweight, no substance patent that was simply a “brain fart” and then filed. There is and are no specifics or products that these trolls deliver, simply a “fart”

So with that said, here is my piece from September 2011, of which I’m sure still holds true and raises valid points 4 years on…

I like to think that I/ we innovate and instigate new thinking and evolution on the present, the here and now, the what is already there. Only by doing this, by pushing yourself and your thinking forward will we ever evolve. Compare this first mobile phones vs iPhone 5 — without pushing ourselves time and time again would we ever be where we are today!

For others, however, an idea or “bathroom idea” that they have a lightbulb moment while in quiet contemplation (come on admit it, we all have them!) they are NOT the foundation of innovation, that still does not stop them from scribbling down on some clean fresh paper an “idea” then off to the Patent office who’ll stamp it for a fee and there it remains in limbo until others continue their innovation curve to the point that it reaches utopia for the bathroom idealist — here we have the Patent Troll!

We normally call these type of technical voyeurs as TROLLS, as all they do is “troll” around other companies products, software, ideas and filed patents for any infringements that they can bully other companies and individuals by cease & desist orders or worse filing injunctions to bleed others from patent infringements.

Now if these companies were purveyors of innovation in technology, where something that they spent years creating, perfecting and releasing to the world, be that software, hardware, middleware or whatever’ware, and company X blatantly ripped of their product(s), then yes I agree that there is room for patent infringements and the litigation that ensues.

However, this falls flat when outside the controlling wall of the US — look at the recent, and blatant multiple disregard for anything to do with patents, copyright or any IP infringement or respect at all for a companies heritage and history.

The Top 3 countries around the world that hold no regard to Patents, IP or copyright infringement (according to a global study by ICC) are 1) China, 2) Russia and 3) India, probably no surprise, that Brazil is growing fast at #4.

As you would imagine #1 in Patent protection is… USA, of which 87% of their legal battles are internally within the US with other US companies, and rarely go after those in China, Russia or India, due to a number of reasons, but a lack luster approach to the fundamentals of infringement, so why spend money on expensive legal teams, that in the end, will have no real resolution or financial gain or outcome. You can imagine the reaction of the Chinese company that created the fake Apple stores and products to any writ or even awarded damages.

Back in the heyday of digital music, we all remember the blatant ALLOFMP3.com that ripped millions of songs from CDs (probably illegal copies) and sold them for half the price that other music stores sold them at. Numerous cease and desist cases came and went, and Russian government, turned a blind eye, until pressure from US government on trade agreements between US and Russia as well as Russia’s inclusion to the World Trade Organization, forced the company to close it website. RIAA (the same company that took American citizens to court for filesharing and fined millions of $) dropped their case against the Russian company (after being told that never would a single dime be paid to RIAA) Even today ALLOFMP3 is still trading, under a different name, using iTunes technology and no one is chasing them down…

So, onto Patents,and the Trolls, such as Intellectual Ventures and Lodsys LLC. that acquire, purchase and bid on Patents for the sole purpose of suing others that may have some kind of tenuous patent right. Looking at some of the patents that Lodsys actually hold, they do cross the line into the complete ridiculous, such as an idea on how you could capture data on customers — was granted a Patent, even though Lodsys don’t actually make or create anything! The recent Lodsys vs Adidas is a perfect example of where US Patent Law is so wrong and oppressive.

Any company in this faceless digital age wants to know what they are doing online meets the needs of it customers, potential customers and anyway they can gain an insight into this, the better they can refine their products, offers or most importantly the online experience. Adidas used the well known ForeSee, to capture data from their users. Tried and trusted method you may think, although the templates are fairly ubiquitous, its the Marketing team that look for specific areas that they are looking to address, possibly from their web analytics or feedback from their customers. So this is why my back goes up when Lodsys, then not only “attack” Adidas, Best Buy, Sams Club etc… but they attack them for using a software application that has been written by ForeSee. Is it really the retailers that are at fault here? They have in good faith signed a deal with ForeSee to use their application to gain better insight of their customers. Lodsys does NOT own a patent on companies understanding their customers better, it just common knowledge and good business practice. Heck I’m gaining insight from my blogs by comments, feedback and traffic analysis — but because I’m not using a “form factor” that Lodsys says it owns (BUT NEVER DESIGNED OR BUILT) but on a few pieces of paper decided that this is the best way to capture data…

Perhaps I’m being too harsh on Lodsys, and I’m willing to go head to head with its founder, Daniel Abelow, to discuss the true meaning of “innovation” and “invention” of which they have none of in both cases. But I also lay blame squarely at the doorstep of the US Patent office for not only issuing the patents in the first place, by allowing more patents to be approved where they are nothing more than an idea or “bathroom thought”. Now “just an idea” from a company like Apple, Microsoft, EMC, Google et al is absolutely fine in context as they companies ARE innovators, developers, manufacturers and we can make correlations to its products or services. For Abelow however he was smart enough to file a patent for something that is simple business sense, US Patent office was stupid enough to grant it.

Now here we are in a no win situation where my company along with others including Apple, EMC, Microsoft, Cisco & HP combined forces known as the “Rockstars” to bid on old patents to protect themselves from patent trolls like Lodsys and Intellectual Ventures to not only protect themselves from these insane litigations, but also their employees. So as we all continue to push forward innovation and invent new and interesting ways to consume, interact and deliver data and information — we are not at the mercy of the “bathroom idealist” that thinks they can make a quick buck on the back of a broken and perverse system that allows this type of bullying.

As with all blog writers, I had this drafted back in June / July after reading the initial case of Adidas vs Lodsys — since then President Obama has promised reform in the Patent world, and especially in the US — where the only real winners are lawyers and the trolls. The companies that invest billions in R&D, their employees and partnerships are the real victims here — and its such a shame that even now, I have friends that are making a living in developing for iOS, Android, RIM & Windows Phone — that are also now receiving legal bullying letters from Lodsys due to, in some cases, “in app purchase” If only Abelow was smart enough to actually conceive what the App store was going to be and develop it, along with the possibilities that this would produce from small entrepreneurial start ups and my friends that can make a reasonable living from developing apps such as Angry Birds then we may have an ounce of respect for him.

As we stand on the true next significant change in our industry with cloud / virtualization and with mobility now delivering what we predicted and hoped for all those years ago… the only thing that is stopping us from really moving forward is the ghosts of patents past. Let’s hope that Congress can pass the bill that outlaws and reforms patents based on tangible outcomes rather than whimsical ideology else we are doomed to be stuck in patent wars that will only ever amount to nothing but talk and litigation…