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Fark Founder Drew Curtis Explains How Fark Beat a Patent Troll

timothy posted more than 2 years ago | from the righteous-chip-on-his-shoulder dept.

Patents 59

Velcroman1 links to this coverage of Drew Curtis's explanation of how his company, Fark, managed to beat a patent troll's lawsuit alleging infringement of a patent on distribution of news releases by email. From the article: "It boils down to one thing: don't negotiate with terrorists," Curtis said during a talk at the TED 2012 conference in Long Beach, Calif."

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59 comments

Nice Video (1)

TaoPhoenix (980487) | more than 2 years ago | (#39734451)

I watched it yesterday and a nice tip is to threaten to make their lives irritating so they can't get an easy win.

As much as I hate to say it.. (5, Funny)

mwfischer (1919758) | more than 2 years ago | (#39734469)

If Fox News' Derp-O-Sphere can label patent trolls as terrorists and inform the pitchfork and shotgun base.... that *might* actually be helpful.

Re:As much as I hate to say it.. (4, Funny)

jd2112 (1535857) | more than 2 years ago | (#39734587)

Tell Ted Nugent that they are a bunch of Democrats.

Re:As much as I hate to say it.. (2)

fafaforza (248976) | more than 2 years ago | (#39734647)

Instead, tell Ted Nugent they are wild turkeys.

Re:As much as I hate to say it.. (2)

jd2112 (1535857) | more than 2 years ago | (#39735227)

Not much difference really. Easier to get hunting permits for turkeys though.

Re:As much as I hate to say it.. (4, Informative)

davester666 (731373) | more than 2 years ago | (#39735301)

Actually, it's about the same because the guy selling the hunting permits is always a Republican.

Re:As much as I hate to say it.. (0)

Anonymous Coward | more than 2 years ago | (#39735533)

why not just tell Ted Nugent that they are a bunch of liberal, democratic, Obama-Supporting, grassroots hippie, greenpeace supporting, ACLU, Anchor-baby, obamacare supporting Turkeys that have been picketing American Funerals?

Re:As much as I hate to say it.. (1)

andydread (758754) | more than 2 years ago | (#39738493)

You missed Socialist, Communist, Marxist, Atheist Indonesian Madrasa attending Muslim from Kenya

Re:As much as I hate to say it.. (0)

Anonymous Coward | more than 2 years ago | (#39740597)

shhhhhh dont tell them about the Stealth Atheist Muslims!

Re:As much as I hate to say it.. (0)

Anonymous Coward | more than 2 years ago | (#39740537)

NONONO. Tell Ted Nugent they are feral cats...he shoots those almost daily and there's nothin illegal about it so he won't think twice(hah, as if he would have thought twice about shooting something.)

Re:As much as I hate to say it.. (1)

lennier1 (264730) | more than 2 years ago | (#39748089)

Next you'll be trying to invite them on a hunting trip with Dick Cheney ...

Re:As much as I hate to say it.. (0)

Anonymous Coward | more than 2 years ago | (#39734825)

Who ever was modding that offtopic needs to have their humor gage checked. Modded you +1 funny hoping it would fix it and it did :)

Re:As much as I hate to say it.. (1)

asylumx (881307) | more than 2 years ago | (#39734821)

Actually the tone I read from that article made it look more like they were not happy that he labeled patent trolls as "terrorists" -- they have a patent on labeling their enemies as "terrorists," you know.

Re:As much as I hate to say it.. (-1)

Anonymous Coward | more than 2 years ago | (#39734883)

And if the NBC derp-o-sphere can label patent trolls as racists and inform the liberal base... that *might* actually be helpful.

Re:As much as I hate to say it.. (5, Insightful)

Mr. Shotgun (832121) | more than 2 years ago | (#39734893)

If Fox News' Derp-O-Sphere can label patent trolls as terrorists and inform the pitchfork and shotgun base.... that *might* actually be helpful.

That would be nice as patent trolls care little for political affiliation and will happily shake down a republican as well as a democrat. But alas the comment section for this story on Foxnews is mostly filled with complaints about Fark, not the lesson from the story itself. People seem content to hate each other for their political leanings, and won't realize some issues transcend politics and need cooperation to root out.

Re:As much as I hate to say it.. (0)

Anonymous Coward | more than 2 years ago | (#39740787)

You're just saying that because you're a libertarian. (jk. Your point is sadly true, even among my friends and family who all lean the same way politically as I do.)

Re:As much as I hate to say it.. (0)

Anonymous Coward | more than 2 years ago | (#39734997)

Part of the reason no progress can be made on problems like this is that fools on here instantly turn them political. Can discussion actually be about the issue? Is Slashdot only read by know-it-all teenagers these days?

Re:As much as I hate to say it.. (0)

Anonymous Coward | more than 2 years ago | (#39735309)

Sir/Madam/Other... I take issue with your "know-it-all teenagers" comment, as it is quite clear that mostly, they know a lot less than "it-all".

Re:As much as I hate to say it.. (1)

mr1911 (1942298) | more than 2 years ago | (#39736081)

Or you could tell CNN that patent trolls are "the 1%" and get them "occupied".

Re:As much as I hate to say it.. (0)

Anonymous Coward | more than 2 years ago | (#39755605)

That would only work if CNN was the left-wing media outlet Fox paints it as.

How about... (-1)

Anonymous Coward | more than 2 years ago | (#39734477)

How about a non-Fox News link?

Re:How about... (4, Funny)

Surt (22457) | more than 2 years ago | (#39734575)

Why wouldn't you want the truth?

Re:How about... (0)

Anonymous Coward | more than 2 years ago | (#39734669)

The fox news audience has damaged reasoning facilities. Fact and logic aren't their truth, and you have to communicate with them with that in mind.

Saying "Patent lawsuit entities cause harm to the industry by filling lawsuits with vague patents, etc." Gets you nowhere.

Saying "Patent trolls are turrists!!!" Will.

Re:How about... (0, Insightful)

Anonymous Coward | more than 2 years ago | (#39735059)

As do Fox news bashers who don't watch enough to actually know what the hell they're talking about; it's mostly groupthink, and to a great many liberals, a different viewpoint is construed as a lie. You assign solely to FN those attributes which other news channels suffer from.

Re:How about... (0)

Anonymous Coward | more than 2 years ago | (#39735395)

I see enough fox news from fark and the daily show to know they're a joke.

Re:How about... (1)

Anonymous Coward | more than 2 years ago | (#39736539)

...a different viewpoint is construed as a lie.

Also a lie is construed as a lie. And lies is what what Fox News does. They even had to defend in court their right to broadcast lies and still call themselves "News". And since they cannot be called "news", please refrain from comparing them to "news channels".

Re:How about... (0)

Anonymous Coward | more than 2 years ago | (#39735101)

They more or less are economic terrorist. Now if we can get Obama to nuke them from orbit we'll get somewhere.

Re:How about... (0)

Anonymous Coward | more than 2 years ago | (#39735429)

Actually it was Drew Curtis who referred to them as terrorists.
Apparently your reasoning facilities were too damaged to RTFA, fact and logic aren't your truth and I have to communicate to you with that in mind.

Non Fox (Techdirt) link (5, Informative)

Anonymous Coward | more than 2 years ago | (#39734649)

Re:Non Fox (Techdirt) link (0)

Anonymous Coward | more than 2 years ago | (#39735009)

Read that, and some of the advice is good but some of it is like "stand up to the bully and he'll leave you alone"-level stuff which may or may not work but when it doesn't work, it can backfire hard.

We went through point-by-point of one of our troll's patents and outlined exactly how we didn't infringe on it (it's pretty clear-cut, their patent specifically refers to operations performed by software on the database server, but since we're a multi-tier architecture, those operations are performed by software on the application server which is and always has been a separate device). They came back with a letter that they don't care and their previous offer of licensing it for 2% of revenue was off the table but we can license it for 4% plus a few thousand bucks to pay for their lawyer's time reading our letter, or for $sixfigures we can explain it to the judge and hope the judge and/or jury understands what a server is.

Re:Non Fox (Techdirt) link (1)

jedidiah (1196) | more than 2 years ago | (#39735057)

You should have recorded that conversation and had it played to the jury.

In East Texas there might have even been a lynch mob afterwards.

Re:Non Fox (Techdirt) link (1)

MickLinux (579158) | more than 2 years ago | (#39735195)

Umm, how do you record a letter and play it back later?

Re:Non Fox (Techdirt) link (0)

Anonymous Coward | more than 2 years ago | (#39735343)

Camera
Video recorder
Scanner
Fax
Read into a mic

SANE and CUPS (4, Funny)

tepples (727027) | more than 2 years ago | (#39735665)

Umm, how do you record a letter

SANE [wikipedia.org]

and play it back later?

CUPS [wikipedia.org]

Re:Non Fox (Techdirt) link (1)

budgenator (254554) | more than 2 years ago | (#39739783)

That's normally considered an illegal wiretap, now when the answering machine says "This call maybe monitored for quality control purposes" I hang up and call back with the recorder running so I have a recording of them giving me permission to monitor, electronically, with my recorder; check with your lawyer in your jurisdiction.

Re:Non Fox (Techdirt) link (1)

gstrickler (920733) | more than 2 years ago | (#39735187)

At which point, you have a malicious prosecution claim, and reason to request censure of their Atty.

Re:Non Fox (Techdirt) link (0)

Anonymous Coward | more than 2 years ago | (#39736099)

Those don't really work in practice. The court is NOT going to tell people to stop going to court. He may have a claim, but all the lawyer has to do is smile and shrug at the judge, the judge smiles and shrugs back and then tells you "This is a civil proceeding. Blah blah blah blah blah burden of proof." All the prosecutor has to do is say "We really did believe it applied to our patent!" and the malicious prosecution claim flies out the window.

Re:Non Fox (Techdirt) link (0)

Anonymous Coward | more than 2 years ago | (#39737905)

In this case all they have to do is babble something about doctrine of equivalents, which basically says "all patents cover everything possible as long as you can convince the jury that two completely different things are the same".

Re:Non Fox (Techdirt) link (1)

Scarletdown (886459) | more than 2 years ago | (#39737253)

They came back with a letter that they don't care and their previous offer of licensing it for 2% of revenue was off the table but we can license it for 4% plus a few thousand bucks to pay for their lawyer's time reading our letter, or for $sixfigures we can explain it to the judge and hope the judge and/or jury understands what a server is.

Sounds like this should be changed from a civil case to criminal, with charges of extortion and racketeering. The patent trolls and their lawyers in this case need to do some hard federal prison time for this.

Re:Non Fox (Techdirt) link (1)

budgenator (254554) | more than 2 years ago | (#39739863)

Since it costs $2 million to defend one of these cases, seems like sooner or later somebody is just going to hire a hit, it has to be cheaper.

Re:Non Fox (Techdirt) link (1)

Scarletdown (886459) | more than 2 years ago | (#39748465)

Yes, that is another option. At times, it does seem like the only magic bullet for this trend may be the thing called real bullets.

Re:Non Fox (Techdirt) link (1)

Forever Wondering (2506940) | more than 2 years ago | (#39737917)

Without knowing the specific patent in question, it's difficult to provide accurate non-legal advice. However, from the TED/talk article, a few points come to mind:

---

- While tacking on a fee of a few thousand to read your response might be reasonable, going from 2% to 4% seems like harassment. The "triple reverse legal fees" argument might apply.

- Also, if the original 2% figure was just, why would a simple letter from you be a reason to up it to 4%? Either somebody's manic or your letter showed [to them] that you're not infringing and they're now just trying to bluff you into settling [because they fear the same argument will be made to a judge].

- Is the patent "obvious" or is their prior art? While a literature search in support of prior art can be expensive, it may be less expensive than alternatives. Requesting a reexamination at the USPTO might be appropriate [filing fees are modest].

- Contact the EFF. They might not want to take up your cause, but they might be able to point you in the right direction.

- What are the patent claims? Reexamination might strike some of the claims and reduce the burden.

Re:Non Fox (Techdirt) link (0)

Anonymous Coward | more than 2 years ago | (#39735497)

Thanks!

For those of us who are reading at work, this is helpful (I'd rather not have to explain foxnews.com traffic to the network / management folks if they happen to spot it).

A Fox Link? (1, Funny)

Tator Tot (1324235) | more than 2 years ago | (#39734739)

Finally! An unbiased, true American news source! Bout time we got some real news instead of some LAMEstream media "facts".

Why use Fox "News", rather Fark.com itself? (5, Informative)

Theaetetus (590071) | more than 2 years ago | (#39735247)

The original posting of the TED talk and subsequent discussion is at http://www.fark.com/comments/7055377/Drews-TED-talk-is-up-How-I-Beat-a-Patent-Troll [fark.com] .

Re:Why use Fox "News", rather Fark.com itself? (0)

Anonymous Coward | more than 2 years ago | (#39739519)

Because the ./ editors are retards, especially the one who posted this story. And no-one reads TFA anyway.

Best defense against a true patent troll (5, Interesting)

Anonymous Coward | more than 2 years ago | (#39735413)

"The patent troll realized we were going to fight them instead of settle, so they asked for our best offer. I said, how about you get nothing and drop the lawsuit? They accepted" - Drew Curtis

True patent trolls, entities that solely exist to acquire patent portfolios and weaponize them for profit, do not know anything about the content of the actual patent. I mean, sure, they might read one or two and quote whichever small pieces they understand of them, but just like we techies struggle with legalese, lawyers struggle with technical documentation. If the case is strong enough, or has a very high earning potential, they will enlist the help of a technical consultant. This is a guy like you and I who will interpret and vulgarize the patent's claims into lay-speak. Now, most lawyers are pretty sharp, but they're not engineers. Their skills are honed differently, to such a degree that even a lawyer that specialized in tech IP cases will have a very hard time truly understanding the subtleties of why X database is different from Y. Since we techies aren't always favorable to lawyers and their destructive pursuits, they have to incentivize with money. The tech expert will be paid an hourly consulting fee, often supplemented with a settlement bonus if they win, as further incentive to provide competitive insight to benefit the troll.

The thing to remember about patent suits is they often are carried out by people who didn't write the patent application, don't understand it, don't even have the slightest clue how it's intented to work. If they don't have access to the guy who actually invented the patented thingy, they're relying on low quality information. The people who are being sued are, by definition, working in the field and possess far more expert knowledge than their tormentors. They just look for any language they can abuse, and they know the very threat of litigation is their greatest asset, because an actual court battle means going toe-to-toe with other tech experts who are NOT on the troll's payroll.

As a defendant, if you do your homework about the plaintiff and find they're in this position of technical inferiority, Drew Curtis' tactic can work very well. Call their bluff!

Disclaimer: I used to work at a law firm, and was occasionally called upon as a technical consultant on IP suits. Can't tell you which, but it was one of the reasons why I left. I tolerate most lawyers but I despise patent trolls.

Re:Best defense against a true patent troll (3, Interesting)

dgatwood (11270) | more than 2 years ago | (#39735763)

On the other hand, all of the patent troll lawsuits that have ever been filed were filed only because someone called their bluff. The reason people settle is that A. some of the patent trolls are too clueless to know that they are bluffing, and B.when they file suit anyway, the cost of defending the lawsuit could easily exceed the requested settlement.

A better way to prevent patent trolls is to develop a reputation for stomping them into the ground with countersuits (ideally, before they even have the chance to file their lawsuit). Even if they have never produced a product, you can still pull together undeclared prior art and sue to have pretty much their entire patent portfolio overturned. Do that a couple of times and the trolls will think twice about talking to you unless they have successfully sued a fair number of other companies first. :-)

Re:Best defense against a true patent troll (0)

Anonymous Coward | more than 2 years ago | (#39736389)

the case is strong enough, or has a very high earning potential, they will enlist the help of a technical consultant. This is a guy like you and I who will interpret and vulgarize the patent's claims into lay-speak. Now, most lawyers are pretty sharp, but they're not engineers. Their skills are honed differently, to such a degree that even a lawyer that specialized in tech IP cases will have a very hard time truly understanding the subtleties of why X database is different from Y.

Which is why IT always speaks in car analogies, if I'm not mistaken.

Re:Best defense against a true patent troll (1)

psxndc (105904) | more than 2 years ago | (#39778491)

True patent trolls, entities that solely exist to acquire patent portfolios and weaponize them for profit, do not know anything about the content of the actual patent.

Straight up WRONG. For every non-techie litigator that a patent troll has, there is a technical patent attorney with an engineering degree that is supporting the litigator.

I say this having represented defendants in about a dozen patent troll cases.

Sincerely,
A patent attorney with a comp. sci. degree

Slashdot was on the target list (0)

Anonymous Coward | more than 2 years ago | (#39735647)

Did it settle or fight?

Ah, fark. (-1, Flamebait)

Anonymous Coward | more than 2 years ago | (#39735781)

Another website that has followed the slashdot model of coming up with a good idea, attracting a giant loyal userbase, and then immediately becoming irrelevant.

Re:Ah, fark. (0)

Joe Tie. (567096) | more than 2 years ago | (#39740583)

The appeal of fark ended when they started shadowbanning people for even mentioning competing sites, while still continuing to take their money if they were paid subscribers. The best way to get people to stop caring about a site is to treat the users like shit.

Re:Ah, fark. (0)

Anonymous Coward | more than 2 years ago | (#39740931)

A bigger factor was when Curtis turned it into a blog for bashing Bush/Palin/Republicans/Fox News. It happened pretty suddenly and coincided with an overhaul of the site and restrictions on NSFW posts. Really looked like he was on someone's payroll (*cough* George Soros *cough*). Him appearing on TED to give such an obvious talk makes that connection even stronger.

Re:Ah, fark. (1)

Stiletto (12066) | more than 2 years ago | (#39747955)

LOL, now George Soros is behind Fark, too? Is there anything he ISN'T behind nowadays?

EPIC! (0)

Anonymous Coward | more than 2 years ago | (#39736195)

Wow, I felt goosebumps on hearing the "Don't negotiate with terrorists line". In an ideal world, I suppose big tech would see the societal costs which accrue by settling with trolls. Sigh....

A question for IP attorneys (3, Insightful)

whitroth (9367) | more than 2 years ago | (#39736847)

Has *anyone* ever fought back asserting that by Article 1, section 8(8) specifically says "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors", and since trolls is neither the author nor inventor, nor to they use the material of the patent to produce the product of the patent, their claim to the patent is invalid?

                mark

Re:A question for IP attorneys (3, Informative)

Theaetetus (590071) | more than 2 years ago | (#39739611)

Has *anyone* ever fought back asserting that by Article 1, section 8(8) specifically says "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors", and since trolls is neither the author nor inventor, nor to they use the material of the patent to produce the product of the patent, their claim to the patent is invalid?

Not that I know of, but they would fail. The Constitution doesn't define what a patent is, but rather gives Congress the power to pass laws securing time-limited monopolies for copyrights and patents. In the use of that power, they passed 35 USC 261, which states:

Subject to the provisions of this title, patents shall have the attributes of personal property.

Applications for patent, patents, or any interest therein, shall be assignable in law by an instrument in writing. The applicant, patentee, or his assigns or legal representatives may in like manner grant and convey an exclusive right under his application for patent, or patents, to the whole or any specified part of the United States.

So, arguing that the troll's claim to the patent is invalid means you're arguing that Congress lacked the power to pass that law... Specifically, you'd have to argue that letting inventors sell their patents doesn't encourage at least some inventors to invent in the first place, and I doubt such an argument would be entertained by any court, much less the Supreme Court.

good going, Mr. Curtis (0)

Anonymous Coward | more than 2 years ago | (#39829433)

Wasn't the Supreme Court's recent Bilski ruling supposed to liberate us from ridiculous patent [aminn.org] litigation like this? If someone slaps you with this kind of lawsuit, you should definitely hit back. Good on Mr. Curtis!

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