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Why Tech Vendors Fund Patent Trolls

timothy posted about 2 years ago | from the can't-leave-their-friends-behind dept.

Patents 58

Lucas123 writes "Major tech vendors are funding patent trolls, companies that derive the bulk of their income, if not all of it, from licensing huge libraries of patents they hold as well as by suing companies that use their patents without permission, according to an investigation by Computerworld. Tech companies — including Apple and Micron — have railed against patent 'nuisance' lawsuits, only to fund or otherwise support some of the patent trolls. Because of patent trolls, more politely called mass patent aggregators, patent litigation has in part increased by more than 230% over the past 20 years. 'Most of the major tech companies are backing a troll in some way, probably financially,' says Thomas Ewing, an attorney who has authored reports on what he calls 'patent privateering.'"

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58 comments

I like goat sex....FRISKY PORNSTAR (-1)

Anonymous Coward | about 2 years ago | (#39587197)

I also like anal. Will you sodomize me, Roblimo?

Laborless Capital (1)

Anonymous Coward | about 2 years ago | (#39587259)

This is what it looks like when you decide that labor is unnecessary and all you need is capital. Who needs to do real work, anyway? Viva la capitalism!

Re:Laborless Capital (2, Funny)

Sarten-X (1102295) | about 2 years ago | (#39587465)

Labor produces the research in the first place, and gets funded when the troll buys the resulting patent.

Re:Laborless Capital (1)

flaming error (1041742) | about 2 years ago | (#39587833)

Not really. In the context of trolling, the only labor was to file a patent application for something obvious, and the only thing funded by trolls is legal services.

Re:Laborless Capital (0)

Anonymous Coward | about 2 years ago | (#39596011)

Five easy steps to stop patent trolls overnight:

1. change patent law so that if you don't make it yourself then you can't charge others royalties/license fees.

2. ...

3. ...

4. ...

5. ...

Oh well, I guess it's only one easy step.

Re:Laborless Capital (1)

Sarten-X (1102295) | about 2 years ago | (#39603405)

Unfortunately, it also stops people like a close relative of mine, who invented a new and useful mechanism for a common device (involving optics and high temperatures), but had no interest in developing the business around it himself, or dealing with the cutthroat competition in that particular industry. He sold licenses to the major manufacturers, recouped what he spent developing the mechanism (because lenses aren't cheap), and went back to his normal life.

A genuine innovator, who advanced technology in a meaningful way, and yet to my knowledge he personally only made a single demonstration device.

Like Warren Zevon said... (1)

flaming error (1041742) | about 2 years ago | (#39587297)

Send lawyers, guns, and money.

Although industry best practices avoid the gunplay part, leaving that to surrogate enforcement agencies.

Re:Like Warren Zevon said... (0)

Anonymous Coward | about 2 years ago | (#39587363)

They'll get me out of this, HO!

Re:Like Warren Zevon said... (4, Funny)

peragrin (659227) | about 2 years ago | (#39587791)

You can defend yourself from guns. From lawyers all you can do is kill them and hope you dont run out of bullets before they run out lawyers.

What's the difference between a lawyer and a zombie? Zombies only want your brains

Re:Like Warren Zevon said... (0)

Anonymous Coward | about 2 years ago | (#39597663)

Don't blame the lawyers. They would go away if people stopped hiring them.

Financially backing? (1)

medcalf (68293) | about 2 years ago | (#39587307)

Does that just mean licensing some of their patents, or does it mean funding them directly?

Re:Financially backing? (2)

aiken_d (127097) | about 2 years ago | (#39589429)

The two are inseparable. Consider that you are Apple, or Google, or Microsoft, or really any big company. A patent troll comes to you and offers a chance to buy in to their patent pool -- you will gain a blanket license to their entire portfolio for only $500m, presented as an equity investment.

Your patent attorneys look through the pool and determine that, if they were to sue you on every patent they have a 50% chance of winning, the expected outcome is $750m. Even if you prevailed in every case, legal costs would be about $100m.

What do you do? Keep in mind that you're publicly traded and shareholders -- the board -- isn't going to look kindly on personal crusades that disregard best outcomes for your company.

The problem is obvious patents (2, Interesting)

Anonymous Coward | about 2 years ago | (#39587351)

The problem is obvious patents, not who owns and enforces those obvious patents. All big tech companies own and enforce obvious patents, so how is this worse than companies that produce nothing doing the same thing? We need a fix to obvious patents. Shorter time limits for (de facto) software patents, and peer review are the only workable solutions that have been proposed.

Re:The problem is obvious patents (5, Insightful)

ashtophoenix (929197) | about 2 years ago | (#39587565)

The problem is a lot more fundamental and deep-rooted than what you have described. The short time limits, lack of proper reviews are symptoms of the problem. The real problem is the people, the incentives and the fundamental lines on which our world operates. The majority of the world operates not based on the drive to create something, the passion for perfection but rather on making money and gaining fame. Also, we don't understand ideas very well. Where do ideas come from? Do they belong to the person who got them? What if multiple people had them at the same time, whether in close proximity of location or in different parts of the world. Who would they belong to then? To the person who gets the patent? Should they really belong to someone, or the person who happens to get the idea first should only get a small part of the attribution? Who is making the decision to fund patent trolls? The executives sitting in a boardroom. Who is supporting these decisions? Everyone who is a stakeholder - all top level execs as well as senior/middle mgmt as well as stock option holders. Again, incentives supplanting principles/values.

Re:The problem is obvious patents (4, Interesting)

HBI (604924) | about 2 years ago | (#39587641)

No, the problem is non-practicing entities holding and enforcing patents. A practicing entity - a real company - has an incentive to not troll with its patents. Trolling with its patents would be painting a big target on its ass, as Apple and Yahoo are starting to find out. What does a non-practicing entity have to fear from trolling? No liability at all. It doesn't do anything!

While I agree that obvious patents suck, it's much harder to separate obvious from non-obvious. The USPTO doesn't inspire me to believe that it could ever fix the problem adequately. In comparison, it would be rather easy to say that non-practicing entities cannot bring patent claims.

Re:The problem is obvious patents (3, Insightful)

tomhath (637240) | about 2 years ago | (#39587905)

Unfortunately there's no good way to define practicing versus non-practicing. Is a law firm that employs some pimply-faced script kiddie who writes phone apps now a practicing entity? I think the real solution is to eliminate software and business process patents, they're like an architect patenting the idea of putting a window in an office at a specific location. Big deal.

Re:The problem is obvious patents (0)

Anonymous Coward | about 2 years ago | (#39589487)

In your example they would only be "practicing" the patents that they hold that cover the apps they develop. They would not be practicing anything else, so their other patents - while valid - would not be useful in court. I don't think it is useful to define NPEs (non-practicing entities, colloquially "patent trolls") for this effort. It would be better to just ask the question, "which product that you sell (or are in serious, provable development of - no vapor) is covered by this patent". If they have a good answer, then they can enforce the patent. If they can't - tough shit; no enforcement. Is that a tough stance on the little guy who patented something in his garage? Yes. Yes it is. Would it leave a lot open to a court to decide if a company was actually practicing a patent? Sure it would. Would it help the situation? Abso-fucking-lutely.

Re:The problem is obvious patents (2)

Epimer (1337967) | about 2 years ago | (#39591491)

You've recognised yourself that that's an extreme solution to the problem, and I can't help but think that such a solution would do infinitely more harm than good.

One of the stronger arguments for the benefits of a patent system is the notion that it helps correct the market imperfection which would result in the absence of intellectual property rights, where (for non computer-implemented inventions) he who holds the manufacturing and distribution capabilities can effortlessly muscle out your little guy who patented something in his garage.

I don't think there's anyone - I'm even going to pre-empt the predictable "except rich lawyers LOL" comment - with an interest in the patent system who's actually fond of patent trolls, or finds their practices particularly palatable. But it would be enormously harmful to the current beneficial aspects of the patent system as it stands to restrict patents to practicing entities only.

And still it's a common viewpoint on Slashdot. I can't help but think it's a reflection of the core audience here with a software bias, where manufacturing/distribution/reproduction are significantly lesser hurdles to overcome than in other fields.

Re:The problem is obvious patents (1)

rsborg (111459) | about 2 years ago | (#39591777)

Unfortunately there's no good way to define practicing versus non-practicing. Is a law firm that employs some pimply-faced script kiddie who writes phone apps now a practicing entity? I think the real solution is to eliminate software and business process patents, they're like an architect patenting the idea of putting a window in an office at a specific location. Big deal.

I say, force the NPEs to do exactly that. It will a) force them to spend money - thus causing a slight but important barrier to trolling, b) increase employment (negligible but a worthy goal), and most importantly, c) if by some luck the troll actually creates an app/product that has sales, it would be put in exactly the position that practicing entities have - ie, having a stake and exposure to counter-litigation.

In short, forcing even a sham of practicing in the areas where they litigate will likely kill the whole practice of trolling - which is why the patent trolls will fight it tooth and nail... it voids their rent-seeking way of life.

Re:The problem is obvious patents (1)

soren.harward (1153) | about 2 years ago | (#39603719)

Unfortunately there's no good way to define practicing versus non-practicing.

Not at all. A patent owner that really is trying to "promote the useful arts and sciences" is either trying to bring an implementation of the claimed invention to market, or is offering the patent for licensing. Virtually all patent trolls could be taken care of by requiring the plaintiff to show that they have made a good faith effort to do one of these two before they can bring a suit for infringement.

Re:The problem is obvious patents (2)

chrb (1083577) | about 2 years ago | (#39588153)

A practicing entity - a real company - has an incentive to not troll with its patents.

That disincentive only works for large companies with similar patent warchests. Small companies, end users etc. can get just as screwed by a practicing entity, since they have no or few patents. What are you going to do when someone sues you for patent infringement if you use Facebook? [groklaw.net] What are you going to do if you really do invent some new technology, say a new graphics pipeline rendering technology? Do you think that Nvidia would hesitate to take you down with their patent warchest to take you down if your new technology posed a direct threat to their profits? And how would you stop non-practicing entities creating trivial examples of their patents - would they need to have some level of market share or product revenue before qualifying as practicing? What if they license out the patent, but don't directly sell a product?

Re:The problem is obvious patents (0)

Anonymous Coward | about 2 years ago | (#39588815)

I think Samsung and Motorola are finding that out too

Ever see: "Flash of Genius?" (0)

Anonymous Coward | about 2 years ago | (#39594189)

Since the guy who had his patent stolen was a non-practicing entity, I guess he would not have had any recourse.

Is that fair?

Do not play the lawyers game (1)

TheDarkMaster (1292526) | about 2 years ago | (#39590081)

If anyone accuse you of patent infringement, check the patent calmly. If the patent is something obvious like "I invented the rounded corners", shoot the lawyer (twice, for sure) and send his head (only the head) back to the owner of the "patent", and repeat this until the owner of the "patent" runs out of lawyers.

Math Check.... (5, Insightful)

Anonymous Coward | about 2 years ago | (#39587395)

"patent litigation has in part increased by more than 230% over the past 20 years."

Math check... a 4.2% increase, per year, over 20 years yields 230%.

Is 4.2% per year so much? Given the changes in technology in the past 20 years, that seems quite modest to me.

Re:Math Check.... (3, Insightful)

flaming error (1041742) | about 2 years ago | (#39587711)

That's a really good point - thanks for making it.

And if this rate of increase continues into the future, where it approximately doubles every ten years, in 2020 we'll be 400% higher than 1990 and in 2030 we'll be at 800% and by 2040 we'll be at 1600% ...

As far as math goes, that's all fine. But behind those numbers we have to put resources, and resources come from meatspace, where there are physical limits to growth. In the finite world, continuous growth is just not sustainable. And even if it were, is this where we want to dedicate our resources?

Re:Math Check.... (2)

the eric conspiracy (20178) | about 2 years ago | (#39589145)

A 4.2% compound growth rate is not a doubling every ten years. Simply just apply the rule of 70 and you find it's 16.7 years.

And even that math isn't that great because it doesn't factor in the overall US economic growth rate of 2.5% over the past 20 years or so. So really the excess patent rate is 1.7% per year compared to the overall economy. That's a doubling every 40 years.

And that's the overall growth rate, which is not as fast as the growth rate of the technological components of the US economy.

Once you figure in that I bet it isn't growing at a significant rate compared to the economy it's linked to at all.

And those who moderated the parent article up - WTF?

Re:Math Check.... (1)

flaming error (1041742) | about 2 years ago | (#39592807)

Thanks for the correction on doubling time.

I'm not sure I buy your adjusting the rate of litigation growth by the rate of economic growth or widget growth - doesn't seem mathematically legit to subtract dollars or widgets from # of court cases. But maybe a graph comparing such things would be interesting.

I think a better analysis than this thread is here: http://yro.slashdot.org/comments.pl?sid=2768395&cid=39587513 [slashdot.org]
From the limited data given it's not clear that we can assume continuous growth, nor a fixed rate, nor that the growth is primarily from trolls.

Re:Math Check.... (0)

Anonymous Coward | about 2 years ago | (#39588065)

You forgot to calculate "in part" and "over" (a bit like saying someone sometimes has over 8 visitors a day).

Re:Math Check.... (0)

Anonymous Coward | about 2 years ago | (#39588383)

When its constant over a long period of time, yes.

If theres a 4.2% increase in patent litigation in 1 year, big deal, the courts will go around to it.
If theres a 4.2% increase every year in patent litigation over 5 years, we'll probably have to expand the courts to clear things out and eventually cutback when things die down.
If theres a 4.2% increase every year in patent litigation over 10 years, those court expansions start to look permanent.
If theres a 4.2% increase every year in patent litigation over 20 years, we're gonna have to raise taxes/court fees/change the system cause you're never going to get rid of the court employees you hired 15 years ago.

Re:Math Check.... (0)

Anonymous Coward | about 2 years ago | (#39589097)

Yeah lets linearize and rationalize the trend with only two data points. You could probably extend the data and get like 300% in the past 50 years(not true data just trying to point out the flaw). Without more information your analysis is garbage.

Re:Math Check.... (0)

Anonymous Coward | about 2 years ago | (#39591557)

Math check of the math check....

Actually, if you have a 10% increase of say 100, you end up with 110, so a 230 procentage increase of 100 will give you 330. Meaning that the yearly procentage increase would be (330)^(1/20)-1 and not (230)^(1/20)-1 which is 6.2% and not 4.2%

Your conclusion stands, but your math is wrong.

MAD (0)

Anonymous Coward | about 2 years ago | (#39587457)

It's all part of a 'mutual assured destruction' strategy. A large corp has to have a lot of patent bombs available to use on competitors to discourage competitors from using patent bombs.

Patent litigation trends (4, Interesting)

Grond (15515) | about 2 years ago | (#39587513)

Because of patent trolls, more politely called mass patent aggregators, patent litigation has in part increased by more than 230% over the past 20 years

The number of patent cases has increased almost exactly in lock step with the number of patents granted [pwc.com] (see page 8). The growth rate for litigation since 1991 is 4.9%, whereas the rate for patents granted is 4.5%. There is not a lot of evidence that there are more patent cases because of non-practicing entities. For example, litigation rates have been relatively flat since about 2003, despite numerous patent aggregators only coming into existence in that timeframe (see page 8 again).

NPEs also tend to lose cases more often than practicing entities (see above, page 24 and 32). NPEs win about 23% of the time overall, and PEs win about 39%. When NPEs do win the awards are higher, but that's to be expected. The primary value of litigation for an NPE is to get money, either as a damage award or as a license agreement. The primary value of litigation for a practicing entity is to exclude a competitor. Damages are nice, but the real point is the injunction.

That loss rate is a good example of why more fee-shifting (i.e. loser pays the other side's attorney's fees) in patent cases would be beneficial in eliminating frivolous, "shakedown," and otherwise questionable patent suits brought by NPEs.

Re:Patent litigation trends (3, Insightful)

Khashishi (775369) | about 2 years ago | (#39588337)

NPEs win about 23% of the time overall, and PEs win about 39%

That's a very sad statistic for the patent office. It means they are rubber stamping far too many invalid patents. But you already knew that.

Re:Patent litigation trends (3, Insightful)

Epimer (1337967) | about 2 years ago | (#39589521)

That statistic tells you absolutely nothing about the validity (or otherwise) of the patents involved in litigation.

The numbers would include the successful bringing of an infringement action with respect to a perfectly valid patent, for example.

A declaration of invalidity is far from the only remedy available in patent litigation.

Re:Patent litigation trends (2)

Eivind Eklund (5161) | about 2 years ago | (#39589771)

Due to selection bias, such numbers say very little. If a case would be obviously won - in either direction - then it will most likely be settled instead of going to court.

Re:Patent litigation trends (1)

Grond (15515) | about 2 years ago | (#39591091)

Due to selection bias, such numbers say very little. If a case would be obviously won - in either direction - then it will most likely be settled instead of going to court.

"Would be obviously won" applies to very few pre-litigation patent disputes. One look at the reversal rates at the Federal Circuit would be enough to tell you that, to say nothing of the uncertainty created by Supreme Court decisions, Federal Circuit en banc cases, and the America Invents Act.

Anyway, are you suggesting that NPEs have caused a significant increase in out-of-court patent disputes all involving either obviously strong or obviously weak patents? If the patents are that obviously weak, then what's the problem? And if the patents are so obviously strong that the defendants don't bother going to court, then it sounds like there's not a problem with NPEs abusing weak patents.

And if there had been such an enormous swell in the number of out-of-court patent disputes one would expect significant spillover into the courts because of close cases. Remember that an alleged infringer can easily drag the patentee into court via a declaratory judgment action. In fact, it is almost impossible to discuss a license agreement without triggering declaratory judgment jurisdiction. So it's not like the NPEs have complete control over whether a dispute ends up in court; far from it, in fact.

Re:Patent litigation trends (1)

Eivind Eklund (5161) | about 2 years ago | (#39599497)

Due to selection bias, such numbers say very little. If a case would be obviously won - in either direction - then it will most likely be settled instead of going to court.

"Would be obviously won" applies to very few pre-litigation patent disputes. One look at the reversal rates at the Federal Circuit would be enough to tell you that, to say nothing of the uncertainty created by Supreme Court decisions, Federal Circuit en banc cases, and the America Invents Act.

These numbers can't be drawn conclusions from either; they have similar types of bias.

Anyway, are you suggesting that NPEs have caused a significant increase in out-of-court patent disputes all involving either obviously strong or obviously weak patents? If the patents are that obviously weak, then what's the problem? And if the patents are so obviously strong that the defendants don't bother going to court, then it sounds like there's not a problem with NPEs abusing weak patents.

And if there had been such an enormous swell in the number of out-of-court patent disputes one would expect significant spillover into the courts because of close cases. Remember that an alleged infringer can easily drag the patentee into court via a declaratory judgment action. In fact, it is almost impossible to discuss a license agreement without triggering declaratory judgment jurisdiction. So it's not like the NPEs have complete control over whether a dispute ends up in court; far from it, in fact.

I'm only suggesting not drawing conclusions from numbers that have significant bias in them. In this case, I think the conclusion is right but the inference is wrong.

In more depth:

I believe the quality of software patents is horrible; and I believe both PEs and NPE mostly play with patents that should never have been issued. However, agreeing with the conclusion doesn't make me agree with the way it is argued - I want my side to come with strong and rational arguments.

"Lots of cases are lost" by itself doesn't really indicate anything about the average quality of patents. Assuming equal resources on both sides and that the cost/benefit of licensing is evenly distributed, the naive equilibrium should be that 50% of the cases go in either direction; if the win looks more obvious in either direction, pre-litigation agreement should become more and more likely. If we have a disparity in the number of cases won, it should indicate either bad evaluation, unrealistic licensing requirements, or disparity in the value of enforcing/not enforcing the patent on the patent owner and patent target side.

The 39% (Practicing Entity) could be the result of companies fighting harder because otherwise they would be forced to shut down (compared to the patent owner getting some extra revenue), and the patent owner cutting their legal costs. My intuition is that the natural state with most patents being valid would be for the patent owner to win more than 50% of the cases, as they sometimes want to shut down a competitor, and that competitor then logically would fight even with bad odds - but the situation is complicated enough that there could easily be other confounding factors that I can't think of.

The 23% (Non-Practicing Entity) could be the result of the practicing entities keeping the best patents for themselves, leaving the NPEs with the few garbage patents that exists - but the NPEs still can make money off suing with garbage patents, so they do. Again, I don't believe that is what is happening - I believe patents are granted way too easily, and possibly should not be granted at all, for any field - but I don't think the win/loss numbers shed any light on the overall quality level.

Eivind.

Re:Patent litigation trends (1)

Grond (15515) | about 2 years ago | (#39590761)

"Winning" means that a patent is found valid, enforceable, and infringed. NPEs can lose not just because a patent is invalid but also because it was simply uninfringed. Fee-shifting could apply in either case, of course. Without more detailed statistics it's impossible to say whether the PTO is "rubber stamping" too many invalid patents.

Furthermore, "rubber stamping" is a pretty big overstatement. The PTO might not be doing a very good job of examination, but it's clearly not rubber stamping patent applications. The vast majority of patent applications receive at least one Office Action (i.e. a list of rejections that must be overcome before a patent can issue).

If there is indeed a serious problem with the PTO, then the answer is to eliminate or reduce the presumption of validity, which would make it easier to prove invalidity. In the long run the answer is to take steps to improve examiner retention: the vast majority of examiners have less than three years of experience, almost none have more than ten, and the PTO has trouble getting enough qualified examiners with computer science backgrounds. Opening an office on the west coast would probably go a long way toward fixing that.

Call for action! (1)

Anonymous Coward | about 2 years ago | (#39587549)

Someone should start a White House e-petition!

Re:Call for action! (0)

Anonymous Coward | about 2 years ago | (#39588249)

Let's not get carried away. I don't think it's time to bring out the big guns just yet!

Erecting Entry Barriers (0)

Anonymous Coward | about 2 years ago | (#39587595)

simple answer: it reduces competition by raising the costs to new entrants to impossible levels

Corrections (0)

Anonymous Coward | about 2 years ago | (#39587713)

...by suing companies that allegedly use their allegedly valid patents without permission.

Patent system broken (5, Insightful)

kipsate (314423) | about 2 years ago | (#39587717)

The way patents work almost forces companies to pursuit the aggregation of huge numbers of senseless patents. How else can a company defend itself against companies doing exactly the same and suing the shit out of them? The patent trolls are not the ones to blame - the problem is the legal framework around patents that allows "trolls" to exist in the first place and build a profitable business on it.

Patent trolls are also to blame (0)

Anonymous Coward | about 2 years ago | (#39594209)

The trolls chose to become extortionist.

they are trying to become the standards bodies (3, Interesting)

alen (225700) | about 2 years ago | (#39587985)

DVD, bluray, 3GPP, JEDEC, the list goes on. you write a check, send in your patents or agree to license them cheap to anyone who asks and you are part of a standard

the trolls or whatever you want to call them want to be the standards body. why let a non-profit collect membership checks when you can start a PAE and do the same?

why? (0)

Anonymous Coward | about 2 years ago | (#39588199)

because they are short sighted and stupid

Blackmail (3, Interesting)

PPH (736903) | about 2 years ago | (#39588581)

Either you pay them to fight on your side or they end up working for your competitor, working against you. Its basically a protection racket [wikipedia.org].

Patent trolls are get high damages in software (1)

oever (233119) | about 2 years ago | (#39591899)

Chart 6d on page 22 [pwc.com] shows that patent trolls (non practicing entities) receive vastly higher damages in software. The median for software is ~$143, while that for the runner-up (computer hardware) is ~$48.

Combine this with unavoidability of accidentally using obvious software patents and you can see why there are only a few big players that control the software market.

Chart 2c shows that the Lucent got awarded over $1500 million in damages from Microsoft for MP3 techology. I was not aware of this case from 2007 before. The damages are larger than the Eolas and i4i cases combined.

It's troll laundering! (0)

Anonymous Coward | about 2 years ago | (#39592583)

Say you're a manufacturer and you'd like to keep competition away. You could sue, but that would invite potentially damaging counter suits; it's like launching a nuclear missile. So you fund a terrorist organization to do what you need done. The counter suits are directed at them, not you. Profit!

Solution: companies should counter sue the funding source, not the troll. You don't deter terrorists, you deter their enablers. And legislators should facilitate this as needed with tweaks in the law, though fixing the PTO would be a better solution; there seem to be some serious adverse incentives there due to congress making them self funding through fees.

Only patent real inventions (0)

Anonymous Coward | about 2 years ago | (#39594223)

Stop patenting trivial, obvious, processes and the like.

Make a law that you have use your patent, or have a good reason why not.

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