One insider describes how trial lawyers killed patent reform
vox.com
vox.com
Is that a "description of how trial lawyers killed patent reform" or a "I can only guess?"
The article paints this picture that "trial lawyers" can kill whatever bill they want. But the narrative is facially implausible. You're supposed to believe that trial lawyers get their way by throwing a lot of money around. But they don't have the kind of money Silicon Valley companies have. If it were just a matter of lobbying and money, the companies interested in patent reform could steamroll over the trial lawyers and the trolls.
Ars had some good coverage of this that paints a clearer picture. http://arstechnica.com/tech-policy/2014/05/gridlock-strikes-.... Specifically, they note: "Early this morning, several groups opposing the bill denounced those provisions, promising they would be united in their opposition to any bill that included them. 'Many of the provisions would have the effect of treating every patent holder as a patent troll,' read a letter sent out by the Innovation Alliance, which was signed by the American Association of Universities and the biotechnology trade group BIO."
Meanwhile, this is the message that Apple, Microsoft, DuPont, Ford, IBM, and Pfizer endorsed just 10 days before the bill was killed: "According to these arguments, 'patent trolls' are bringing businesses to a complete halt and that software patents are a barrier to innovation. Some pundits even equate 'patent troll' litigation with the legitimate legal interests of inventors who are defending their intellectual property.
The same anecdotes and flawed studies are trotted out time and again to the delight of those who wish to substantially restrict the patent rights of operating companies in favor of their own narrow business interests. What these sound bites don’t tell you is that the cost of reducing or eliminating the incentives for innovation would be devastating for nearly all sectors of the U.S. economy. Worse, it could make slow growth permanent by ceding our position as a global high-tech leader to foreign competitors." See: http://partnershipforamericaninnovation.org/category/frompai
See also: http://wallstcheatsheet.com/technology/apple-microsoft-and-o...
If you think this is about money, follow the money. Companies with a trillion dollars of market cap come together to say "we think the patent system is great" weeks before the bill is killed. Companies like Qualcomm sign a letter opposing the bill the morning before its killed. Who do you think has the money?
So yes, Apple is not an NPE, but given that their lawyers selected their best patents for trial, I found their arguments in court rather trollish.
Trial lawyers have a different trick. When Pfizer or Qualcomm wants to know what impact proposed legislation will have on their business, who do you imagine they ask? I wonder how many firms disclosed the conflict of interest when furnishing the advice.
I'd imagine they ask their general counsel, who would be corporate lawyers? Not sure how much those'd overlap with (or be affected by) trial lawyers.
And that's assuming outside litigation counsel wouldn't offer it as unsolicited advice, as they have every incentive to do, particularly as it became more apparent that the legislation could pass.
That's exactly the job of in-house counsel. It would be very unusual for a big corporation to turn to "trial lawyers" (i.e. a plaintiff's firm) for advice of any sort. Big companies do not routinely deal with plaintiff's lawyers, for the simple reason that they're usually on the defendant side of litigation.
"TL: What triggered the decision to call the game off?
KG: I can only guess it was the trial lawyers. Why? Because they lost at every turn. If winning the debate wasn't an option, they were just going to call the game off. Which is apparently what they did."
Glueck may be right, but this is nothing but speculation. Moreover, it is speculation unaided by any more information than the general public has. We all know that trial lawyers would, logically, dislike patent reform, so of course they're a natural suspect when it gets scuttled.
My guess is that politicians will act then, but by then it will be too late.
In all that we keep forgetting again and again why patents exist: To protect an investment by granting a temporary monopoly.
It's not to make lawyers rich, nor is it to prevent newcomers entering an existing market; and they also don't exist to make money for entities that just purchased some random patent.
Of for some troll to file business patents around political fundraising and campaigning and then trolls to scoop up some of that campaign funding.
The question is to what extent they use their patents aggressively, and how good a case they have when they do so. I don't know the answer in Oracle's case (and I'm no great fan of the company) but again, mere numbers of patents won't tell you that.
2. That someone as litigious as Oracle was supporting this should tell you something: that this effort had little to do with "reforming patents" and more to do with "large corporations managing risk".
Apple and Microsoft have managed to turn that line thoroughly into mud by weaponizing patent trolling as a tool to wage proxy wars.
> Unfortunately, people frequently use the word as a derogatory term for "someone who uses patents in a way I don't like" (which often really means "someone who uses patents for their intended purpose, which I don't like on principle"), making it lack any real meaning.
Patent trolling as a practice has quite clear contours: The perpetrator alleges patent infringement and demands a license fee which is less than the cost of proving non-infringement or patent invalidity in court, leaving the victim having to either pay the troll the Danegeld regardless of infringement or pay even more to their own lawyers to prove otherwise.
> That someone as litigious as Oracle was supporting this should tell you something: that this effort had little to do with "reforming patents" and more to do with "large corporations managing risk".
Your explanation is belied by the number of patent nastygrams received by startups that can hardly be described as "large corporations." That we see Oracle on the side of reform next to the likes of Red Hat and the EFF only goes to the severity of the problem.
1. Apple and MS have historically sued competitors with their own patents, which typically they practice themselves.
2. The only conceivable "proxy" may be Rockstar, and they claim to operate independently. If they didn't, well, the DOJ and FTC would be mighty interested [1].
>Patent trolling as a practice has quite clear contours:...
And my point was, Oracle clearly don't fit the bill. Heck, even IV don't fit that bill, because they apparently ask for pretty large licensing fees.
>Your explanation is belied by the number of patent nastygrams received by startups that can hardly be described as "large corporations."
Outside of cherrypicked media reports, there is insufficient empirical evidence that trolls target startups. I've been tracking trolls for a while, and trolls that go after the little guys are actually rare. The moment they do, there's inevitably some media outrage, and the number of unique trolls so far have been few (lodsys, scanner trolls, WiFi trolls... Fotomedia / photo sharing trolls about 7 years back... Any more?) By and large these pick on larger companies, because that's where the big money is.
1. http://m.iam-magazine.com/blog/detail.aspx?g=2a10f894-6812-4... (ctrl-f "commitments")
So you can't be a patent troll if you weren't one three years ago?
> 2. The only conceivable "proxy" may be Rockstar, and they claim to operate independently. If they didn't, well, the DOJ and FTC would be mighty interested [1].
In much the same way as a toy soldier can "claim to operate independently" after you release it having wound it up and pointed it in the direction you want it to go.
> Heck, even IV don't fit that bill, because they apparently ask for pretty large licensing fees.
Compared to cost of trial and appeals + impact on customer opinion of company + impact on shareholder confidence + risk of pro-plaintiff East Texas court or pro-plaintiff Federal Circuit judges reaching an incorrect decision and product being taken off the market during further appeals? What are they asking, hundred million dollars + first born child?
> Outside of cherrypicked media reports, there is insufficient empirical evidence that trolls target startups.
Of course there isn't. For a startup fighting is equivalent to bankruptcy and the settlement comes with an NDA. Suppressing all the evidence you can and then claiming there isn't sufficient evidence is not a very strong argument.
Not sure where you got that. I meant if you don't exist for the sole purpose of asserting a patent, you can't be a troll.
> In much the same way as a toy soldier can "claim to operate independently" after you release it having wound it up and pointed it in the direction you want it to go.
1. Actually, Nortel was already hitting firms up for licensing those patents before they went down. It was already "wound up and pointed in the right direction." Everyone knew what was coming. The companies that bought them did so to manage their own risk. They are now simply going after the rest of the industry that failed to do so.
2. Rockstar is now suing giant corporations like Google and Samsung. You think they wouldn't get the FTC and DoJ involved if they could prove anything?
>Compared to cost of trial and appeals ...
Those are the only concrete costs. Everything else is handwavy (public opinion? Really? Impact on stock? The weather has more impact) or highly unlikely (injunctions). The companies IV goes after can certainly afford to take them on.
> pro-plaintiff Federal Circuit judges
I'd encourage you to lay off Timothy Lee's articles about the Federal Circuit and actually look up statistics about their decisions.
> Of course there isn't. For a startup fighting is equivalent to bankruptcy and the settlement comes with an NDA.
1. Absence of evidence is not evidence of absence, but it's not proof that evidence is being suppressed either. claiming something is a problem without sufficient evidence is not a very strong evidence either.
2. Evidence always leaks out. All those other trolls no doubt have NDAs, yet we hear of them. If so many startups are getting hit, where were the VCs in this whole thing?
Nonetheless, there's something in the works about making these "nastygrams" more trackable. That will give us enough data to see how much of a problem this really is. Until then all we have is a outrage driven by a media hungry for rageviews and informed by PR.
Which is why I favor calling them patent ogres, not patent trolls. What Apple and Microsoft (most notably among others) are doing is different, but similarly troubling.
1. http://m.iam-magazine.com/blog/detail.aspx?g=2a10f894-6812-4... (ctrl-f "commitments")