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Tuesday, September 3, 2013

Is This The Twilight of the Patent Trolls?

Posted By on Tue, Sep 3, 2013 at 10:21 AM


The patent trolls might have flown too close to the sun. If only they weren't so greedy, they might have been able to continue gliding about at lower latitudes, threatening to sue technology companies for no good reason, and collecting their shakedown money. But then, if they weren't greedy, they wouldn't be patent trolls.

So they expanded their activity, and now the general public -- as opposed to just the closed, insular world of Silicon Valley -- is becoming increasingly aware of their economically harmful, mercenary, sometimes sociopathic activities.

Many people became aware of patent trolls when This American Life took a look at them in 2011. Then many more were outraged one of them took on podcasters. But their dumbest move might have been to take on end users of technologies -- companies that have nothing to do with innovation, and that everyday consumers are intimately familiar with, like Macy's and McDonald's.

As the patent troll problem was growing, few civilians cared much. It was some wonky business dispute involving impossible-to-understand technology. And while the trolls were siphoning vast amounts of wealth out of the economy -- wealth that could have been directed toward worthy pursuits, like actual innovation, or hiring people -- that wasn't enough to get the general public exercised. But when you take on people's Big Macs, they're going to take notice.

That's the motivation behind a new set of radio and print ads from a consortium of lobbying groups: the Internet Association, National Restaurant Association, National Retail Federation and the Food Marketing Institute.

The radio spot begins: "Imagine you start the business of your dreams, that one store turns into 10. But then you get a letter -- from a patent troll. The troll claims to hold a patent on a common business practice like [and here, the voice switches from that of a normal-sounding woman to that of an evil troll] "the store-locator map on your website!"

There is basically no technology -- especially on the Internet -- that isn't ostensibly covered by some kind of patent. And a lot of those technologies aren't even really technologies, but rather simple processes, like showing a video, displaying a picture, linking to a downloadable file, or displaying the aforementioned store-locator map. And there are tons of trolls out there buying up those patents and threatening or filing lawsuits. They hope that threats are enough, and their victims will simply pay them. This is easy money. It's also one big reason why the idea of patenting software has been the subject of criticism for years. People saw this coming. It's one thing to copyright software -- the actual lines of code enabling particular kinds of processes. But it's another thing to patent the mere idea of something -- like the idea of displaying a picture.

That's one of the examples cited by the anti-troll campaign. Companies like Macy's, J.C. Penney, and Foot Locker have been threatened with lawsuits because they use JPEGs on their websites. They didn't create the technology behind JPEGs, they're simply posting pictures -- just like you do, all the time. Did you know that by so doing, you were violating someone's patent?

This all comes just after the issuance of a report from the Government Accountability Office stating that the number of defendants sued by patent trolls has tripled in four years.

Last week, Politico ran a Q&A with lawyer Peter Detkin, the protagonist-cum-antagonist in the "This American Life" story. He's the guy who invented the term "patent troll" when he was working for Intel, the victim of many troll attacks. As deftly revealed by the storytellers at This American Life, he's now a patent troll himself, working for the biggest troll firm around, Intellectual Ventures. That's the company founded by Nathan Myhrvold, the former technology chief at Microsoft.

Detkin's Politico interview wasn't much more than a media outfit allowing someone to spew a bunch of talking points, but one thing stood out: Detkin referred several times to the "business model" he's trying to protect. That right there nicely sums up the problem. Patents exists to encourage innovation -- and that's it. But thanks to trolls, software patents do nothing but stifle innovation. And stifling innovation, according to Detkin, is now a "business model."

He says stuff like that because Intellectual Ventures has piled a bunch of bullshit in front of its real business -- trolling. That bullshit consists of declarations that the company is helping "inventors." It even runs a lab (for media outfits to film and take pictures of) where people work on all kinds of new tech stuff. But the vast majority of Intellectual Ventures' revenue comes from trolling: it buys patents, many of them vague or irrelevant, and uses them to sue companies.

In his "business model" spiel, Detkin was making the point that he agrees with most of the aims of the Obama administration's new push to reform patent law. He just doesn't want his "business model" messed with.

There are several proposals in Congress addressing the problem -- but it's not an easy one. Many patents are legit, so lawmakers have to come up with ways to protect the legit ones while dissuading the nonsense claims and the nuisance suits. It seems likely that something will come out of Congress to eliminate the very worst practices (as with many technology issues, Democrats and Republicans have come together on this one), but that won't mean the problem will be entirely solved.

One thing they could do -- but won't -- is to eliminate software patents altogether. They clearly do way more harm than good.

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Dan Mitchell


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